text:
    Zachary D. RELAN v. The STATE of Louisiana THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS and Lindsay L. Pantaleo
    NO. 18-CA-348
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ZACHARY D. RELAN Daniel J. Mackel, Jr., New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, THE STANDARD FIRE INS CO (2ND APPELLANT) John W. Martinez
    COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS AND LINDSAY L. PANTEALEO Jeffrey M. Landry, Chicago, W. Bartlett Ary
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

Plaintiff/Appellant, Zachary Relan, and Intervenor, The Standard Fire Insurance Company, appeal the trial court's ruling that denied their respective motions for new trial in this automobile accident case. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On October 14, 2013, appellant, Zachary Relan ("Relan") was a passenger in a vehicle traveling on U.S. Highway 51 though St. John Parish for the purpose of his employment with Shuffle Master, Inc., when that vehicle was struck by a car driven by Lindsay L. Pantaleo ("Pantaleo"), who was acting within the course and scope her employment with the State of Louisiana through the Department of Health and Hospitals ("DHH"). Relan timely filed a petition for damages on April 17, 2014, in the Fortieth Judicial District Court, against DHH and Pantaleo. On July 8, 2014, Relan filed a motion for partial summary judgment on the issue of the defendants' liability for the accident at issue, which the trial court granted on September 10, 2014. On October 20, 2014, The Standard Fire Insurance Company ("Standard") filed a petition for intervention alleging that, as Shuffle Master, Inc.'s workers compensation insurer, it had paid benefits to Relan and was entitled to reimbursement. After several continuances, a jury trial in the matter, solely on the issue of damages, began on August 14, 2017, and lasted through August 16, 2017. At the conclusion of trial, the jury determined that Relan had not suffered any injuries as a result of the October 14, 2013 accident, and accordingly did not award any damages.

On August 30, 2017, Relan filed a motion for new trial which alleged, in summary, that the defendants had omitted a document entitled "New Problem Questionnaire" from a joint exhibit of Relan's medical records introduced at trial. Relan argued in his motion that the exclusion of that particular document helped to bolster the defendants' argument that Relan had not told his medical providers for his October 14, 2013 accident, that he had also undergone treatment for a 2001 car accident. On September 6, 2017, Standard filed a motion for new trial that adopted Relan's arguments. Both motions for a new trial were denied following a hearing on September 27, 2017. Relan thereafter sought a devolutive appeal on November 14, 2017, which was granted on that same date. On November 21, 2017, Standard filed its own motion for a devolutive appeal, which was granted that day.

ASSIGNMENTS OF ERROR

In their first assignment of error, appellants argue that the trial court abused its discretion and denied Relan a fair trial when it allowed the defendants-appellees to add the retained medical expert witness, Christopher Cenac, Sr., M.D. after the discovery deadline date. In a related issue, appellants assert that Relan was prevented from conducting the deposition of Dr. Cenac before trial.

LAW AND ANALYSIS

In the instant case, the record indicates that several pre-trial scheduling orders were issued by the trial court which pertained to different jury trial settings. The first scheduling order, for a proposed April 13, 2015 jury trial date, provided that exhibit and witness lists "shall be exchanged within 90 days prior to trial" by January 19, 2015. All discovery was ordered to be completed "60 days prior to trial" by February 12, 2015. The second scheduling order, for a proposed December 5, 2016 jury trial date, also had the 90-day and 60-day deadlines; however, no specific dates were provided in that order. A third scheduling order, which anticipated a May 8, 2017 jury trial, allotted only 30 days, until March 17, 2017, to complete exhibit and witness lists, and 60 days prior to trial to complete discovery, March 9, 2017.

On May 5, 2017, Relan filed an unopposed motion to continue and reset jury trial on the merits, requesting an August 14, 2017 trial date. The record does not indicate that a new scheduling order was issued in relation to the August trial setting deadlines for the completion of witness lists and discovery. On June 22, 2017, DHH filed, by fax, its fourth supplemental and amended witness exhibit list, which included Dr. Christopher E. Cenac, Sr. as a medical expert witness. No formal objection to the timeliness of DHH's supplemental filing by appellants appears in the record, nor does an objection to Dr. Cenac's inclusion on the witness list appear to have been made. Further, on the eve of trial, appellants had no pending motions in limine pertaining to the exclusion of Dr. Cenac's testimony.

Most importantly, appellants did not object to Dr. Cenac's testimony at the time of trial.

Error may not be predicated on a ruling that admits evidence unless a contemporaneous objection was made, and the ruling affected a substantial right of the party. La. C.E. art. 103(A). For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. The reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. Willis v. Noble Drilling (US), Inc. , 11-598 (La. App. 5 Cir. 11/13/12), 105 So.3d 828, 835-36. "It is well established that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal." Aisola v. Beacon Hosp. Mgmt., Inc. , 13-1101 (La. App. 4 Cir. 4/2/14), 140 So.3d 71, 78. On appeal, an appellant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. State v. Grimes , 09-2 (La. App. 5 Cir. 5/26/09), 16 So.3d 418, 424, writ denied , 09-1517 (La. 3/12/10), 28 So.3d 1023.

Accordingly, in this case, where the record before us does not reflect that appellants objected to Dr. Cenac's testimony either before trial or during trial, we find that this issue is not properly before us on appeal.

Dr. Cenac's Deposition

In a related argument, appellants assert that the trial court's alleged error of allowing DHH to untimely add Dr. Cenac to its witness list was compounded when the trial court would not allow them to depose Dr. Cenac prior to trial. Our careful review of the record in this matter does not show that Relan noticed the deposition of Dr. Cenac, or otherwise sought leave from the trial court to depose prior him prior to trial.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it and render its judgment upon the record on appeal. LSA-C.C.P. art. 2164 ; Hover v. Farber , 05-613 (La. App. 5 Cir. 1/31/06), 922 So.2d 637, 638. The record on appeal is that which is sent by the trial court to the appellate court and includes pleadings, court minutes, transcripts, jury instructions, judgments, and other rulings, unless otherwise designated. LSA-C.C.P. art. 2128 ; Reed v. Peoples State Bank of Many , 36,531 (La. App. 2 Cir. 3/5/03), 839 So.2d 955, 958. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. Id.

It is well-settled that the appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider facts referred to in appellate briefs if they are not in the record that is lodged in the appellate court. Austin v. State Farm Ins. Co , 06-808 (La. App. 5 Cir. 3/13/07), 956 So.2d 13, 15, writ denied , 07-0761 (La. 6/1/07), 957 So.2d 178. If a party's brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial court, an appellate court may not consider those memoranda or exhibits, since they are outside the record. LSA-C.C.P. art. 2164 ; Reed , 36,531 at 5, 839 So.2d at 958 ; Ray Brandt Nissan, Inc. v. Gurvich , 98-634 (La. App. 5 Cir. 1/26/99), 726 So.2d 474, 476.

Here, appellants' briefs refer to facts which are not in the record before us. Accordingly, appellants' assignment of error pertaining to Dr. Cenac's deposition cannot be considered.

The Missing Exhibit

In their final argument, which served as the basis for the respective motions for new trial, appellants argue that the defendant knowingly and willingly, or through neglect, failed to include as part of a joint exhibit, a medical record entitled "New Problem Questionnaire." Appellants contend that the document is significant as evidence that Relan disclosed to Dr. Shackleton that he had previously undergone physical therapy for an injury sustained in a 2001 car accident. At the hearing on the new trial motion, counsel for DHH asserted that it was Relan who had failed to provide the records at issue for inclusion in the joint exhibit.

Trial courts are vested with the power to grant new trials on either discretionary or peremptory grounds. In the instant case, appellants based their motions for new trial on La. C.C.P. art. 1972, which details peremptory grounds, and La. C.C.P. art. 1973, which provides discretionary grounds for new trial and states that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

In the instant case, it is not disputed that the "New Patient Questionnaire" had been in Relan's possession for several years before trial, thus it was not newly discovered. It is also not disputed that DHH offered to have all pages of Relan's medical records Bates-labeled, and had possession of the entirety of the medical records for that purpose. Approximately two weeks before trial, after Relan's medical records were Bates-labeled by a vendor, counsel for Appellees circulated the prepared exhibit (on CD), with a letter that requested Relan's approval or supplementation, as appropriate. The record shows that Mr. Relan's counsel gave no indication prior to trial that he was dissatisfied with, or objected to, the prepared exhibit.

In denying the motions for new trial, the District Court first found no evidence that the document in question was intentionally excluded. Next, the court noted that while the evidence was not newly discovered, Dr. Cenac apparently was unaware of it. The court ultimately concluded:

Dr. Cenac's testimony relied largely on his evaluation of the medical records of Zachary Relan by comparing the pathology and images related to the first accident with images taken after the second accident. He concluded that the pathology was virtually identical save for minimal degenerative changes attributable to the normal wear and tear of the body's aging process. The fact finder, in this case the jury, was in the position to weigh Dr. Cenac's testimony in this regard, along with the testimony and evidence put on by the plaintiff, and concluded, after two hours of deliberation, that the accident which was the subject of this litigation did not cause injury to the plaintiff, Zachary Relan.
...
While I personally do not necessarily agree with the jury's conclusion, I do not believe that the omission of the evidence complained of would have altered Dr. Cenac's conclusions regarding causation nor the jury's verdict in reliance upon those conclusions. Simply stated, I cannot conclude that the jury's verdict cannot be supported by any fair interpretation of the evidence. I do not find that the judgment results in a miscarriage of justice.

It appears that appellants specifically take issue with the portion of Dr. Cenac's testimony where he opines that the diagnoses of other doctors who treated appellant after the October 14, 2013 accident were inaccurate because Relan did not disclose the injuries he sustained, or the subsequent treatment he received, following the 2001 accident. Relan's counsel did not object at the time of Dr. Cenac's statement at trial. Nor did Relan attack Dr. Cenac's testimony with questions related to the "New Problem Questionnaire," a document that Relan was clearly aware of and now contends was a cornerstone of his case.

The trial court correctly found that Dr. Cenac's testimony regarding appellant's injuries was made by comparing the pathology and images related to the first accident with images taken after the second accident. To the extent, if any, that Dr. Cenac's opinion about Relan's disclosure about his 2001 accident was incorrect, the jury had the benefit of reviewing the entirety of the medical evidence, which contained information gathered by Relan's treating physicians following the 2013 accident.

While not discussed on direct examination, Relan testified on cross examination at trial that he had been in a prior automobile accident. He was asked about the doctors who treated him in relation to that accident, as well as the injuries he sustained and his course of treatment. Relan was also asked whether he disclosed his prior accident to any of the doctors who were treating him for the most recent accident. That exchange was as follows:

DEFENSE COUNSEL:
Now, again, referring to the eighteen wheeler accident, you didn't tell any of your doctors about that accident, did you?
RELAN:
I want to say I told the doctors about the accident. They asked how long ago it was and I told them it was in 2001. Did you -- are you -- well, did you have pain from that? No.
DEFENSE COUNSEL:
It's your testimony that you told each of your doctors, you saw for this accident, you told all of them about --
RELAN:
Maybe not all of them.
DEFENSE COUNSEL:
the, the -
RELAN:
I, I don't know.
DEFENSE COUNSEL:
Let me finish the question. About the eighteen wheeler accident?
RELAN:
I don't recall.
DEFENSE COUNSEL:
Can you explain why it's not referenced in any of the records, the three or four hundred pages of records we have over there?
RELAN:
I have no idea.

Based on the foregoing, Relan, by his own admission, conceded before the jury that he may not have informed all of his treating physicians about his prior accident.

The trier of fact is not bound by expert testimony; rather, expert testimony must be weighed just as any other evidence. The weight to be accorded to the testimony of experts depends largely on their qualifications and the facts on which they base their opinions. The trial court may evaluate expert testimony by the same principles as apply to other witnesses; it has great discretion to accept or reject medical or lay opinion. Keener v. Mid-Continent Cas. , 01-1357 (La. App. 5 Cir. 4/30/02), 817 So.2d 347, writ denied 02-1498 (La. 9/20/02), 825 So.2d 1175. It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO , 549 So.2d 840, 843 (La.1989). In the instant case, Dr. Cenac's testimony focused on the comparison of Relan's medical records from the first accident and the October 14, 2013 accident. Dr. Cenac opined that the diagnoses of other doctors who treated appellant after the October 14, 2013 accident were inaccurate because Relan did not disclose the injuries he had previously sustained. Relan himself admitted that he possibly did not tell all of his doctors about the past accident, and the medical records in evidence do not indicate that Relan made the disclosure to each of his treating doctors. To the extent that Dr. Cenac's testimony conflicted with Relan's testimony, and the jury chose to believe Dr. Cenac, we find no manifest error.

The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Martin v. Heritage Manor South , 00-1023 (La. 4/3/01), 784 So.2d 627, 632. After a review of the record in this matter, and upon the specific facts presented, we find no abuse of the trial court's discretion in denying appellants' motions for a new trial, upon finding that the inclusion of the evidence at issue would not have altered Dr. Cenac's conclusions regarding causation for Relan's injuries.

Based on the foregoing, the trial court's judgment is affirmed.

AFFIRMED

      Standard was granted leave by the trial court to file its petition for intervention on October 21, 2014.

      On appeal, Standard has essentially adopted all three of Relan's assignments of error. Because the assignments are virtually identical, they will be discussed together in this opinion. Where appropriate, Relan and Standard will hereinafter be referred to together as "appellants."

      We note the trial court's pre-trial order, for the May 8, 2017 setting, allotted 30 days before trial for the parties to complete their respective lists. Assuming that the trial court intended to use the same time periods for the August 14, 2017 trial date, then DHH's fourth supplemental and amended witness exhibit list, filed June 22, 2017, was actually produced weeks earlier than required.

      Relan states in his memorandum, "On Friday, June 30, 2017, approximately 44 days before trial, a telephonic hearing/status conference was held wherein the trial court denied the motion of the defendants for an independent medical examination of the plaintiff but allowed the defendants to file a 'Fourth Supplemental and Amended Witness list' adding Christopher Cenac, Sr., M. D. as a retained medical expert witness even though the court further held all discovery deadlines had by then passed... Thereafter, undersigned counsel received a telephone call from the law clerk of the trial judge informing the parties the court had ruled the witness and exhibit lists could be supplemented and amended even though the discovery deadline had passed and even though the plaintiff would then be precluded from deposing before trial the then added retained medical expert witness of the defendants, Christopher Cenac, Sr., M.D."
      No evidence or documentation of this status conference, or any resulting court order, appears in the record.

      As explained by Relan's counsel at the hearing on his motion for new trial, the missing document was important to contradict "the heart of the State's defense" that plaintiff failed to inform his treating physicians of his full medical history and, therefore, the doctors were unable to discern that his injury was suffered in 2001 rather than 2013.

      The article, in its entirety, states:
      A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
      (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

      This has been interpreted to mean that, when the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. See , Smith v. Alliance Compressors , 05-855 (La. App. 3 Cir. 2/1/06), 922 So.2d 674.

      The record also reflects email correspondence between the Louisiana Attorney General's Office and counsel for appellants, regarding verification that all records were included in the final exhibit.

      Dr. Cenac testified at trial that the plaintiff failed to disclose his prior accident from nearly a dozen years earlier to his treating orthopedic physicians, thus challenging the plaintiff's credibility.

      The record demonstrates through the testimony of Dr. Sondes, however, that appellant did not disclose the prior accident in the medical history that was taken. Similarly, physical therapist, Sidney Borne, testified that plaintiff did not disclose a prior accident during treatment. Finally, Dr. Shackleton, whose records are at issue, testified that appellant never told him that he had been in a prior accident in 2001. Notably, appellant did not ask Dr. Shackleton whether he was mistaken that appellant had never told him about a prior accident.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Latessia MCCLELLAN and Markethy McClellan v. PREMIER NISSAN L.L.C. d/b/a Premier Nissan of Metairie
    NO. 18-CA-376
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, LATESSIA MCCLELLAN AND MARKETHY MCCLELLAN, Danatus N. King
    COUNSEL FOR DEFENDANT/APPELLEE, PREMIER NISSAN L.L.C. D/B/A PREMIER NISSAN OF METAIRIE, Brett M. Dupuy
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

Latessia and Markethy McClellan appeal an April 5, 2018 judgment of the trial court granting a motion for summary judgment and dismissing with prejudice their claims against Premier Nissan, L.L.C. ("Premier"), arising out of an alleged breach of contract and fraud relating to an automobile purchase. For the following reasons, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

Latessia and Markethy McClellan filed suit on May 10, 2013, against Premier alleging breach of a sales agreement and fraud pertaining to the McClellans' purchase of a green 2004 Nissan Armada automobile on August 19, 2005, and an associated trade-in of the McClellans' gray 2004 Nissan Armada as "partial payment." On August 21, 2013, Premier filed an exception of prescription, which the trial court granted. On appeal, the Court reversed that judgment of the trial court, finding the applicable prescriptive period for the breach of contract action to be ten years. McClellan v. Premier Nissan, L.L.C. , 14-726 (La. App. 5 Cir. 2/11/15), 167 So.3d 934.

Following remand, on May 28, 2015, Premier filed an Answer and Reconventional Demand. In its position as plaintiff-in-reconvention, Premier seeks to recover from Latessia McClellan sums equal to 35 cents per mile and $35 per day for the use of the green 2004 Nissan Armada until the ultimate sale of the vehicle.

On February 2, 2018, Premier filed a Motion for Summary Judgment in which it argued that, with respect to Mrs. McClellan's breach of contract claim, there were no genuine issues of material fact and Premier was entitled to judgment as a matter of law. Following a March 28, 2018 hearing on the motion, the trial court issued a judgment on April 5, 2018, granting summary judgment in favor of Premier and dismissing Mrs. McClellan's breach of contract claim with prejudice. The McClellans appeal this judgment.

DISCUSSION

Louisiana Code of Civil Procedure article 1915(B) states:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The April 5, 2018 judgment is a partial judgment because it only addresses Mrs. McClellan's breach of contract claim in the McClellans' main demand, but does not resolve Premier's claim in reconvention. See Vince v. Koontz , 15-301 (La. App. 5 Cir. 12/9/15), 182 So.3d 333. Pursuant to La. C.C.P. art. 1911, no appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment. The record before us reflects that there is no designation of the April 5, 2018 judgment as a final or partial final judgment, and therefore, in its current posture, we have no jurisdiction to hear this appeal.

DECREE

Having found that we lack jurisdiction, we dismiss this appeal. The matter is remanded to the trial court for further proceedings consistent with this opinion.

DISMISSED AND REMANDED

      Additionally, given that the April 5, 2018 judgment is cast solely against Mrs. McClellan, it is unclear on what basis Mr. and Mrs. McClellan have jointly filed this appeal.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Corey WOODS
    NO. 18-KA-413
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Andrea F. Long, Douglas W. Freese, Gretna, Andrew Decoste
    COUNSEL FOR DEFENDANT/APPELLANT, COREY WOODS, Prentice L. White
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

Defendant/Appellant, Corey Woods, appeals his consecutive 50-year sentences for his convictions of distribution of a controlled dangerous substance and habitual offender adjudication from the 24th Judicial District Court, Division "L". For the following reasons, we affirm Defendant's convictions and adjudication, affirm the enhanced sentence, vacate the underlying sentences on counts two and three, and remand the matter to the trial court for resentencing on those two counts.

FACTS AND PROCEDURAL HISTORY

On February 23, 2017, the Jefferson Parish District Attorney filed a bill of information charging Defendant with three counts of distribution of heroin in violation of La. R.S. 40:966(A) (counts one through three), possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count four), and possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count five). Defendant was arraigned on February 24, 2017, and pleaded not guilty. On November 9, 2017, the trial judge denied Defendant's motions to suppress identification and evidence after a hearing.

On December 5, 2017, the State severed counts four and five. On that same date, Defendant was tried on counts one through three before a 12-person jury. At trial, Deputy Misty Favalora with the Jefferson Parish Sheriff's Office (JPSO) testified that prior to attending the police academy, she worked as an undercover narcotics agent in the JPSO narcotics division. She further testified that she made three different purchases of heroin from Defendant on January 10, 17, and 19, 2017. Deputy Favalora explained that she recorded the transactions using audio and video equipment that was either on her person or in something she was carrying and that other officers were nearby monitoring her for safety reasons.

Deputy Favalora stated that during undercover narcotics purchases, she tries to capture the suspect's face and if she cannot, she tries her best to get audio of the transaction. She testified that with respect to the January 17th and 19th transactions, she was able to capture Defendant's face. Deputy Favalora noted that the video from January 10th showed narcotics on the seat and Defendant in the vehicle, but it did not show Defendant handing her the money. She acknowledged that the video from January 17th did not show Defendant receiving the money or her handing him the money, and it did not show narcotics being passed from him to her. Deputy Favalora stated that the video from January 19th did not show money or narcotics being passed between the two of them. Nevertheless, she maintained that Defendant did, in fact, sell her heroin on those three occasions. Deputy Favalora positively identified Defendant in a photographic lineup after the January 10th transaction as the individual whom she purchased the heroin from. She stated that Defendant also sold her heroin on January 17th and 19th.

JPSO Agent Sean Williams testified that he was the lead agent on those cases and that he and other officers monitored those transactions. He explained that they conducted more than one controlled purchase because they wanted to ensure that Defendant was a heroin distributor. Agent Williams further explained that he was given a phone number that was later determined to belong to Defendant and that they used that phone number to contact Defendant to set up the narcotics purchases using marked currency. Agent Williams testified that at the time of his arrest, Defendant was in possession of approximately $730 or $750 and that drugs were found "stashed" outside of Defendant's house.

Sandy Lee and Brian Schulz testified that they were forensic drug analysts with the JPSO crime lab. The trial judge accepted them as experts in the analysis and identification of controlled dangerous substances. They testified that the substances that they tested in connection with the instant case were found to contain heroin.

At the conclusion of the trial, the jury unanimously found Defendant guilty as charged. On December 14, 2017, the State filed a habitual offender bill of information, alleging Defendant to be a fourth-felony offender. On February 1, 2018, Defendant filed a Motion for New Trial and for Post-Verdict Judgment of Acquittal, which was denied after a hearing on February 2, 2018. Thereafter, on February 2, 2018, Defendant waived sentencing delays, and the trial judge sentenced him to imprisonment at hard labor for 50 years each on counts one, two, and three to run consecutively. The trial judge also ordered the first ten years of each sentence to be served without benefit of parole, probation, or suspension of sentence. Afterward, on that same date, Defendant denied the allegations of the habitual offender bill.

On February 27, 2018, Defendant filed a motion for appeal and motion to reconsider sentence. On March 1, 2018, Defendant stipulated to being a second-felony offender, after which the trial judge vacated the original sentence on count one and resentenced Defendant under the habitual offender bill statute to imprisonment at hard labor for 50 years without benefit of probation or suspension of sentence to run consecutively to the sentences on counts two and three. On March 2, 2018, the trial judge granted the previously filed motion for appeal and denied the motion to reconsider sentence. The instant appeal followed.

ASSIGNMENT OF ERROR

Defendant's sole assignment of error alleges his 50-year consecutive sentences are grossly excessive.

LAW AND ANALYSIS

Defendant argues that his three maximum 50-year consecutive sentences are constitutionally excessive. He contends that although the sentences were within the statutory range, they were grossly excessive given the circumstances surrounding his arrest and the lack of a pre-sentence investigative report prior to sentencing. Defendant asserts that the trial court made a decision to impose the maximum sentences without a complete understanding of his educational, family, and mental background. He notes that he was convicted of three counts of distribution of heroin, even though there were no eyewitnesses to any of the transactions other than the undercover agent-who admitted that she conducted the transactions solely to secure a position in the JPSO narcotics department. Defendant also notes that no weapons were found on his person or in his residence, and neither the marked currency used during the transaction nor the heroin were found on him or in his residence. He argues that considering the facts of his arrest, he is not the worst type of offender, and therefore, should not have received the maximum or consecutive sentences.

The State responds that Defendant is precluded from challenging his sentences because they were imposed in conformity with a negotiated plea agreement. The State further responds that, even if Defendant could establish a basis for review of his claim, no relief would be warranted as he cannot demonstrate a manifest abuse of the trial judge's broad sentencing discretion in this matter.

On February 2, 2018, at the sentencing hearing, the trial judge said that he had considered all of the evidence and took into account the sentencing guidelines set forth in La. C.Cr.P. art. 894. The trial judge stated that he based his sentences, in part, on Defendant's prior history of drug offenses. He asserted that any lesser sentence for these counts would deprecate the seriousness of Defendant's crimes. Afterward, the trial judge sentenced Defendant to imprisonment at hard labor for 50 years each on counts one, two, and three to run consecutively. Defense counsel orally indicated that she objected to the "fifty year consecutive sentence." On February 27, 2018, Defendant filed a written motion to reconsider sentence, arguing that his sentences were unconstitutionally excessive; the sentences "unlawfully considered factors either not proven by the state or not allowed to be part of sentencing considerations;" the sentences were imposed without consideration of mitigating factors which would have been more fully revealed had a PSI been ordered, especially in light of him being given the maximum sentence per count; and the statute under which he was sentenced called for an unconstitutional mandatory minimum.

La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams , 12-299 (La. App. 5 Cir 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-0109 (La. 6/21/13), 118 So.3d 406.

Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for unconstitutional excessiveness only. State v. Bolden , 04-1000 (La. App. 5 Cir. 3/1/05), 901 So.2d 445, 447, writ de nied , 05-2030 (La. 4/28/06), 927 So.2d 279. See also La. C.Cr.P. art. 881.1(E).

In the instant case, on March 1, 2018, Defendant stipulated to being a second-felony offender with an agreed upon enhanced sentence of 50 years to run consecutively with the sentences on counts two and three. The trial judge then vacated the original sentence on count one and resentenced Defendant under the habitual offender statute to imprisonment at hard labor for 50 years to run consecutively to the sentences on counts two and three. Defendant did not orally object to the sentence. Defendant's enhanced sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Defendant stipulated to being a second-felony offender on March 1, 2018. The plea agreement shows that Defendant understood that the sentencing range as a habitual offender was "25-100 years per count and there are three counts." The plea agreement also shows that Defendant understood that the sentences he would receive were "50 years per count, consecutive w/credit for time served." At the hearing, Defendant's counsel stated that Defendant wanted to stipulate to being a second-felony offender with an "agreed upon sentence of fifty years per count, consecutive with one another." During the subsequent colloquy, Defendant indicated that he understood that his enhanced sentence would be 50 years at hard labor without benefit of probation or suspension of sentence, which would run consecutively with the sentences on counts two and three. On March 2, 2018, the trial judge denied the previously filed motion to reconsider sentence.

In light of the foregoing, we find that Defendant is precluded from raising an excessive sentence claim on appeal regarding his enhanced sentence and the consecutive nature of it because he agreed to the enhanced sentence. However, Defendant did not enter into a plea agreement regarding his original sentences on counts two and three. As such, we find that he is entitled to raise excessive sentence claims on those two counts.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen , 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied , 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen , 958 So.2d at 64.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Nguyen , 958 So.2d at 64 ; State v. Taylor , 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied , 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato , 603 So.2d 739, 751 (La. 1992) ; State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56 ).

In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen , 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy , 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied , 02-2900 (La. 4/4/03), 840 So.2d 1213. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Badeaux , 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied , 01-2965 (La. 10/14/02), 827 So.2d 414.

In determining whether sentences are excessive, this Court should consider, among other things, whether the convictions arise out of a single course of criminal conduct. State v. Ortego , 382 So.2d 921 (La. 1980), cert. denied , 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). 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 shall be served consecutively. La. C.Cr.P. art. 883. In other words, if the trial court elects to impose consecutive sentences for crimes arising out of the single course of conduct, it must articulate the reasons it feels consecutive sentences are necessary. State v. Cornejo-Garcia , 90 So.3d 458, 465 ; State v. Blanchard , 03-612 (La. App. 5 Cir. 11/12/03), 861 So.2d 657, 664, writ denied , 03-3389 (La. 10/15/04), 883 So.2d 1045. According to the evidence presented at trial, Defendant's convictions arose from a common scheme that occurred over the course of three days; thus, there was a presumption in favor of concurrent sentences. However, at the sentencing hearing in this matter, the trial judge did not articulate any particular reasons or identify any specific facts particular to Defendant for requiring that his sentences be served consecutively.

Considering sentences imposed for similar crimes in this and other courts, the following jurisprudence indicates to us that the consecutive nature of the sentences imposed upon Defendant herein-resulting in a total period of incarceration of 150 years, which is greater than a life sentence reserved for the most violent of crimes-is unconstitutionally excessive and shocks our sense of justice. Specifically, the following jurisprudence shows a range of sentences for a total period of incarceration imposed for similar offenses for which Defendant was convicted.

In State v. St. Amant , 14-607 (La. App. 5 Cir. 3/11/15), 169 So.3d 535, the defendant was convicted of three counts of distribution of heroin and eight counts of distribution of cocaine. The trial court sentenced the defendant to imprisonment at hard labor for 20 years on each count to be served concurrently. On one of the counts of distribution of heroin, the defendant was adjudicated a second felony offender and sentenced to 30 years at hard labor that ran concurrent with the other sentences. On appeal, this Court, noting that the defendant had a prior conviction for possession of cocaine, affirmed the defendant's concurrent sentences.

In State v. Julien , 17-57 (La. App. 5 Cir. 9/13/17), 225 So.3d 1197, writ denied , 17-1791 (La. 5/25/18), 243 So.3d 566, the defendant was sentenced to 40 years at hard labor for distribution of heroin and possession with intent to distribute heroin. He received a 40-year-sentence for manslaughter, 10-year-sentence for possession of a firearm by a convicted felon, and five-year-sentence for possession of hydrocodone, all to run concurrent. The defendant was adjudicated a second felony offender on the distribution of heroin count and was sentenced to 40 years at hard labor to run concurrently with any other sentence being served. This Court upheld the defendant's concurrent sentences.

Furthermore, in State v. Melancon , 14-221 (La. App. 5 Cir. 9/24/14), 151 So.3d 100, writ denied , 14-2161 (La. 5/22/15), 170 So.3d 982, the defendant was sentenced to 30 years for his distribution of heroin conviction, which was ordered to run concurrent with his other concurrent sentences of 30 years for possession with intent to distribute heroin and 20 years for possession of a firearm by a convicted felon. The defendant was adjudicated a third felony offender on the distribution of heroin conviction and was sentenced to 40 years to run concurrent with the other two convictions. On appeal, this Court affirmed the defendant's concurrent sentences.

While the trial court may certainly consider the full context of the current charges, as well as many other factors in sentencing a defendant, it nevertheless is important to focus upon the facts of that particular record in first rendering the sentence and then upon review for constitutional excessiveness. In light of the record before us and the jurisprudence outlined above, we find the consecutive nature of Defendant's sentence, essentially exposing him to a total of 150 years of incarceration, shocks our sense of justice and is grossly disproportionate to the severity of the crime. Moreover, it imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe Defendant for potentially the rest of his natural life. The crimes with which Defendant was charged carry mandatory minimum sentences, indicating that the Legislature is deeply concerned with the distribution of heroin. A lengthy period of incarceration is allowed by the sentencing provision and is well-within the trial court's broad sentencing discretion. Separation of Defendant from society for a significant period of time assures the community of safety from his trafficking of a deadly drug.

With these factors in mind, while sentencing Defendant to the maximum term for each of the counts does not constitute cruel and unusual punishment, ordering that the sentences be served consecutively for a full 150-year sentence does. The record contains scant evidence to support a finding that this case involved the most serious violation of the offense and the worst type of offender. Therefore, we vacate Defendant's sentences for the underlying convictions on counts two and three and remand the matter for resentencing on those counts. Pursuant to La. C.Cr.P. art. 881.4(A), this Court may provide direction regarding a constitutionally reasonable sentence in a given case. Accordingly, we suggest a sentence of 20 to 40 years for the convictions of distribution of heroin to run concurrently with each other, as those would be reasonable sentences.

Error Patent Discussion

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). There are no errors that require corrective action.

DECREE

For the foregoing reasons, we affirm Defendant's underlying convictions and habitual offender adjudication. We also affirm Defendant's enhanced sentence. Furthermore, we find that Defendant's underlying sentences for distribution of heroin on counts two and three are unconstitutionally excessive. Accordingly, we vacate those sentences and remand the matter to the trial court for resentencing consistent with this opinion.

CONVICTIONS AFFIRMED; ENHANCED SENTENCE AFFIRMED; ORIGINAL SENTENCES ON COUNTS TWO AND THREE VACATED; REMANDED FOR RESENTENCING

      On March 1, 2018, the State entered a nolle prosequi as to counts four and five.

      Defendant filed a premature motion for appeal after he was convicted and sentenced for the offenses but prior to the habitual offender bill adjudication; however, that procedural defect was cured by the subsequent sentencing as a habitual offender. See State v. Williams , 02-852 (La. App. 5 Cir. 1/28/03), 839 So.2d 348, 357, writ denied , 03-596 (La. 6/6/03), 845 So.2d 1089. The trial judge in this matter granted the motion for appeal after he imposed the enhanced sentence.

      The Louisiana Supreme Court has recognized that although Louisiana law favors concurrent sentences for crimes committed as a part of a single transaction, a trial court retains discretion to impose consecutive penalties in cases where the offender's past criminal acts, violence in the charged crimes, or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Williams , 445 So.2d 1171, 1182 (La. 1984). See also State v. Harris , 11-626 (La. App. 5 Cir. 11/27/12), 105 So.3d 914, 935 ; State v. Williams , 08-556 (La. App. 5 Cir. 1/13/09), 8 So.3d 3, 9, writ denied , 09-330 (La. 11/6/09), 21 So.3d 298 ; 21 So.3d 298 ; State v. Cornejo-Garcia , 11-619 (La. App. 5 Cir. 1/24/12), 90 So.3d 458, 465.


author: GRAVOIS, J.

text:
    GEOVERA SPECIALTY INSURANCE COMPANY, as Subrogee of Justin and Courtney Johnson v. Rosa HERNANDEZ
    NO. 18-CA-330
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, GEOVERA SPECIALTY INSURANCE COMPANY, Franklin G. Shaw, Walter J. Leger, Jr., Walter J. Leger, III
    COUNSEL FOR DEFENDANT/APPELLEE, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY (REGARDING POLICY ISSUED TO ROSA HERNANDEZ), Charles V. Giordano, Michael E. Escudier, Jennifer Stieman Edwards, Jairo F. Sanchez, Dianna Duffy Willem
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
   GRAVOIS, J.

In this subrogation action, plaintiff/appellant, Geovera Specialty Insurance Company ("Geovera"), appeals a trial court judgment granting summary judgment in favor of defendant/appellee, Allstate Property and Casualty Insurance Company ("Allstate"). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 2, 2014, David Hernandez, the minor son of Jose Servando Hernandez and Rosa Hernandez, was driving a 2012 Toyota Sienna van on Moss Drive in Laplace, St. John the Baptist Parish, Louisiana, when he crashed into and damaged the home of Justin and Courtney Johnson. Prior to the accident, David Hernandez was at the home of his aunt, Maritza Hernandez, and her husband, Mauricio Bendeck, who owned the van. At the time of the accident, David Hernandez did not have permission to operate the van.

On January 27, 2015, Geovera filed a petition for damages as subrogee of the Johnsons against Rosa Hernandez, seeking reimbursement for the amounts paid under Geovera's homeowner's policy issued to the Johnsons. The petition alleged a claim of negligent entrustment. On August 6, 2015, Geovera filed an amended petition adding David Hernandez as a party to the suit. On October 15, 2015, a second amended petition was filed by Geovera adding Allstate as a defendant. The second amended petition alleged that Allstate is liable to Geovera pursuant to the following policies of insurance issued by Allstate: an automobile insurance policy providing coverage to Rosa Hernandez, a homeowner's insurance policy issued to Rosa Hernandez, and an automobile insurance policy for the vehicle driven by David Hernandez.

On December 9, 2016, Allstate, as the homeowner's insurer for Jose S. and Rosa Hernandez, filed a motion for summary judgment on the grounds that the homeowner's policy in question excludes coverage for property damage arising out of "the ownership, maintenance, use , occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer." (Emphasis added.) Allstate argued that the property damages Geovera alleges it paid under its policy of homeowner's insurance arose from David Hernandez's unauthorized use of a motor vehicle, and thus the Allstate homeowner's policy expressly excludes Geovera's claims for damages.

In opposition, Geovera argued that Allstate wrote and issued both automobile and homeowners policies to Jose S. and Rosa Hernandez. Geovera showed that the automobile policy covers permissive use and excludes "use" without permission. Geovera reasoned that because of this, it would be reasonable that the automobile exclusion in the homeowner's policy only included permissive "use" otherwise covered under the auto policy. If it didn't, Geovera argued, then there would be a gap in coverage, i.e. , there would be no coverage at all under either policy for non-permissive use of the vehicle. Geovera contended that the term "use" in the homeowner's policy could be construed as providing coverage for use with permission, use without permission, or both. Geovera argued that this renders the term "use" ambiguous, and thus, the policy should be construed in favor of the insured so as to provide coverage.

Following a hearing on March 8, 2017, the trial court issued a judgment on April 21, 2017 granting Allstate's motion for summary judgment and dismissing the claims against it regarding the homeowner's policy in question with prejudice. In its written reasons for judgment, the trial court found that the term "use" in the homeowner's policy was not ambiguous. The trial court found that the word "use" in the homeowner's policy is "reasonably understood as the operation of a vehicle and no differentiation between use with and without permission is warranted given the plain meaning of the policy." Having found the insurance policy unambiguous, the trial court noted that it did not consider the wording of the automobile policy, as such is extrinsic evidence not contained within the body of the homeowner's policy.

This timely appeal followed.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). It shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, 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) and (4).

The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Pouncy , supra .

Appellate courts review a judgment granting or denying a motion for summary judgment de novo , using the same criteria that governs the trial court's determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bernard v. Ellis , 11-2377 (La. 7/2/12), 111 So.3d 995, 1002.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Robinson v. Rockhill Ins. Co. , 13-860 (La. App. 5 Cir. 4/23/14), 139 So.3d 1031, 1032-1033. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage should be afforded. Id. at 1033. An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Id.

An insurance policy is a contract between the parties and has the effect of law between them. Davis v. Scottsdale Ins. Co. , 13-255 (La. App. 5 Cir. 10/30/13), 128 So.3d 471, 475. The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties. Doerr v. Mobil Oil Corporation , 00-0947 (La. 12/19/00), 774 So.2d 119, 124 ; La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Words and phrases in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047 ; Doerr , 774 So.2d at 124. If the contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties' intent. Id.

The purpose of liability insurance is to afford the insured protection for damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds v. Select Properties, Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id. The rule of strict construction does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Doiron v. Louisiana Farm Bureau Mut. Ins. Co. , 98-2818 (La. App. 1 Cir. 2/18/00), 753 So.2d 357, 363.

On appeal, Geovera argues that the term "use" in the automobile exclusion of the homeowner's policy is ambiguous because it can be construed to be use with or without permission, or both. Geovera asserts that since the automobile policy issued by Allstate provides coverage only if there is a "use" with permission, the term "use" in the automobile exclusion in the homeowner's policy should be likewise construed such that non-authorized use of a non-owned vehicle would be covered. According to Geovera, if found otherwise, there would be a gap in the coverage provided by both policies.

The Allstate homeowner's policy in question provides, in pertinent part:

General
Definitions Used In This Policy
1. "You" or "your" - means the person named on the Policy Declarations as the insured and that person's resident spouse.
2. "Allstate" "we" "us" or "our" - means the company named on the Policy Declarations.
3. "Insured person(s)" - means you and, if a resident of your household:
a) any relative; and
b) any dependent person in your care.
Under Coverage X-Family Liability Protection and Coverage Y-Guest Medical Protection, "insured person" also means:
c) any person or organization legally responsible for loss caused by animals or watercraft covered by this policy which are owned by an insured person. We do not cover any person or organization using or having custody of animals or watercraft in any business, or without permission of the owner.
d) with respect to the use of any vehicle covered by this policy, any person while using the vehicle with your consent.
* * *
Section II - Family Liability and Guest Medical Protection
Coverage X
Family Liability Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
We may investigate or settle any claim or suit for covered damages against an insured person, regardless of the amount of damages sought. If an insured person is sued for covered damages, we will provide a defense with counsel of our choice, even if the allegations are groundless, false or fraudulent. We are not obligated to pay any claim or judgment after we have exhausted our limit of liability by the payment of judgments or settlements.
Losses We Do Not Cover Under Coverage X:
* * *
5. We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer. (Emphasis added.) However, this exclusion does not apply to:
[The enumerated exceptions to the exclusion are not pertinent herein.]

Upon de novo review, we find that the term "use" in the subject homeowner's policy is unambiguous and should be applied as written. The automobile exclusion of the homeowner's policy functions to broadly exclude coverage for bodily injury and property damage "arising out of the ... use ... of any motor vehicle." The policy is not made ambiguous simply because Allstate did not specify if the "use" of any motor vehicle is with or without permission. This limitation of "use" does not conflict with any statutory provisions or public policy and therefore is enforceable as written. See Reynolds , supra .

Geovera relies heavily on the argument that because Allstate also issued an automobile policy that excluded coverage for "use" of a vehicle without permission, then the term "use" of a motor vehicle in the automobile exclusion of the homeowner's policy should be construed to only exclude "use" of a vehicle with permission. Otherwise, it argues, there would be a gap in the coverage provided by both policies. We find, however, after being able to simply construe the homeowner's policy based on the language of the policy, we need not consider any extrinsic evidence. See Doerr , supra , 774 So.2d at 124. Therefore, the terms of the Allstate automobile policy are not considered in this analysis.

David Hernandez was a resident of Jose S. and Rosa Hernandez's household, and thus was an "insured person" under the policy. It is undisputed, as alleged in Geovera's petition, that David Hernandez was driving the vehicle when he lost control and crashed into the Johnsons' home. The Louisiana Supreme Court found in Edwards v. Horstman , 96-1403 (La. 2/25/97), 687 So.2d 1007, 1012, for conduct to constitute "use" of an automobile, that conduct must be essential to the defendant's liability and the specific duty breached by the insured must flow from the use of the automobile. Here, it is undisputed that David Hernandez's use of the automobile resulted in the property damage to the Johnsons' home. His use of the vehicle was an essential element of the case, and a duty was breached by his failure to operate the vehicle in a prudent manner.

In conclusion, we find that Allstate met its burden of proving that the claims brought by Geovera fall within the automobile exclusion of the subject homeowner's policy, and thus, the trial court properly granted Allstate's motion for summary judgment. Considering the foregoing, we find that no genuine issue of material fact remains and that Allstate is entitled to judgment as a matter of law. Geovera's arguments on appeal are without merit.

CONCLUSION

For the foregoing reasons, the trial court's judgment granting Allstate's motion for summary judgment is affirmed.

AFFIRMED

      Although the judgment under review was granted in favor of "Allstate Property and Casualty Insurance Company," the record reflects that the motion for summary judgment in question was actually filed by "Allstate Indemnity Company." All of the various Allstate entities named and identified in various places in the record will simply be referred to herein as "Allstate."

      The petition erroneously named Rosa Hernandez as David Hernandez's grandmother and owner of the van.

      A suit was also filed by the Johnsons against Rosa Hernandez, Maritza Hernandez, and Allstate. On March 7, 2016, this suit was consolidated with the present suit. Three motions for summary judgment were then filed in these consolidated cases. First, on June 13, 2016, Allstate, as the automobile liability insurer of Maritza Hernandez, filed a motion for summary judgment on the grounds that its policy did not provide coverage to David Hernandez at the time of the accident. On July 8, 2016, Maritza Hernandez, individually, filed a motion for summary judgment on the grounds that David Hernandez took the car without permission and there was no evidence of any negligent entrustment on her part. Finally, on July 15, 2016, Allstate, as the automobile liability insurer of Jose S. and Rosa Hernandez, filed a motion for summary judgment on the grounds that its policy did not afford coverage since David Hernandez did not have either express or implied permission to drive the vehicle. After a hearing on August 23, 2016, the trial court granted in part the summary judgment filed by Allstate regarding the automobile policy issued to Maritza Hernandez. By judgment on August 24, 2016, the trial court granted in part the motion for summary judgment filed by Maritza Hernandez and granted in part the motion for summary judgment filed by Allstate, as liability insurer regarding the automobile policy issued to Jose S. and Rosa Hernandez.

      The record reflects that Jose is actually the named insured on this homeowner's policy.

      Additionally, Allstate argued that the policy excludes any claims that the damages arose out of Rose Hernandez's vicarious liability for the entrusting of a motor vehicle to David Hernandez and the vicarious liability for David Hernandez's alleged negligence, matters which are not at issue in this appeal.


author: GREMILLION, Judge.

text:
    Gabriel ACOSTA v. AMERICAN POLLUTION CONTROL CORPORATION
    18-348
    Court of Appeal of Louisiana, Third Circuit.
    December 28, 2018
    Grady J. Abraham, Attorney at Law, 5040 Ambassador Caffery Parkway, Suite 200, Lafayette, LA 70508, (337) 234-4523, COUNSEL FOR PLAINTIFF/APPELLANT: Gabriel Acosta
    Andrew H. Myers, Breaud & Myers, P.O. Box 3448, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR DEFENDANT/APPELLEE: American Pollution Control Corporation
    Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

The plaintiff-appellant, Gabriel Acosta, appeals the trial court's judgment dismissing his claims with prejudice for overtime wages against his former employer, the defendant-appellee, American Pollution Control Corporation (AMPOL). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Acosta was employed at AMPOL from April 2015 until his termination on January 9, 2017. In April 2017, Acosta filed a Rule to Show Cause via a summary proceeding why AMPOL should not be ordered to pay him $27,057.75 in overtime wages that he claimed to have earned over a five-month period from July 16, 2016 through December 31, 2016, in violation of La.R.S. 23:631. In 2016, Acosta earned $176,533.50 in wages, of which $119,723.30 was paid for overtime. Acosta alleged that his supervisor, Brooks Tastet, told him to fabricate time cards so that he was not showing that he worked over 100 hours per week regardless of how much time he actually worked.

Following a two-day hearing on the rule, the trial court issued a judgment in favor of AMPOL, dismissing Acosta's claims with prejudice. Thereafter, Acosta filed a Motion to Re-open the Record relating to attorney fees, which the trial court denied. Acosta now appeals.

ASSIGNMENTS OF ERROR

Acosta assigns as error:

1. The Trial Court erred when it failed to apply the Fair Labor Standards Act 29 U.S.C. § 207 to the Plaintiff's claim for unpaid overtime wages.
2. The Trial Court erred when it denied the plaintiff's claim for unpaid overtime wages pursuant to 29 U.S.C. § 207 and/or La.R.S. 23:631 where the Trial Court found that the employee worked the hours he claimed with his employer's knowledge and consent but the work was performed in violation of his employer's illegal company policy.
3. The Trial Court erred when it denied the plaintiff['s] claim for penalty wages and costs, including attorney fees, pursuant to 29 U.S.C. § 216 and/or La.R.S. 23:632 , where the employer-defendant did not have a good faith defense for refusing to pay the wages owed.

DISCUSSION

Assignment of Error One/Fair Labor Standards Act/ 29 U.S.C. § 207

Acosta's claims pursuant to 29 U.S.C. § 207 (the Fair Labor Standards Act/FLSA) are being raised for the first time on appeal. The FLSA was neither mentioned in his pleadings nor at the hearing on the Rule to Show Cause. Acosta cannot now assert claims under the FLSA. See La.Code Civ.P. arts. 425 and 891. Accordingly, assignment of error one is without merit.

Assignment of Errors Two and Three/Overtime Pay, Penalties

Manifest Error Review

The supreme court summarized the manifest error standard of review:

This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg , 15-247, p. 10 (La. 10/14/15), 186 So.3d 83, 90.

A trial court is in a better position to make credibility determinations as it has the benefit of examining the nuances of a witness's testimony and demeanor. Lopez v. Lopez , 00-660 (La.App. 3 Cir. 11/2/00), 772 So.2d 364.

Wages and overtime pay owed to any employee upon termination is addressed in La.R.S. 23:631(A)(1)(a) :

Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

Louisiana Revised Statutes 23:632 addresses an employer's failure to pay wages:

A. Except as provided for in Subsection B of this Section, any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.
B. When the court finds that an employer's dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer's failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

The employee bears the burden of proving by a preponderance of the evidence that he is entitled to wages and penalties under La.R.S. 23:631 and La.R.S. 23:632. As La.R.S. 23:632 is penal in nature, it is strictly construed, and a good faith defense will prevent the imposition of penalty wages. Beard v. Summit Institute of Pulmonary Medicine & Rehabilitation , 97-1784 (La. 3/4/98), 707 So.2d 1233.

At the conclusion of the hearing, the trial court stated:

Mr. Acosta worked extremely long hours for American Pollution Control Corporation. The Court has considered all of the testimony and finds that Mr. Acosta was a dedicated employee. The Court further finds that Mr. Acosta was a hard worker. But the Court does find that Mr. Acosta doesn't listen to orders. The Court finds that American Pollution Control informed Mr. Acosta that he was not to work over a hundred hours of work per week. Mr. Acosta violated those orders, although he felt as though he had to do that in order get his work out. Mr. Acosta had two options, either go to management and indicate to them that he could not complete his work for the number of hours that he had or quit the job if he was working too long of hours.
The Court finds that he violated the orders from American Pollution Control, and therefore, is not entitled to a judgment because he worked more than the number of house that American Pollution Control told him to work. Therefore the Court will deny the claim of Mr. Acosta at Mr. Acosta's cost.

Testimony

Kirk Headley, the President and CEO of AMPOL, testified that Acosta earned $25.00 per hour and $37.50 in overtime pay for anything over a forty-hour work week. His overall testimony was that Acosta routinely turned in huge amounts of overtime exceeding 100 hours a week and that on numerous occasions verbal instructions were given to Acosta that he was to have management approval to work overtime, which Acosta routinely ignored.

Brooks Tastet testified that he was Acosta's direct supervisor and the Director of Operations. He described Acosta as a "scam artist" who got paid for many more hours than he actually worked. Tastet testified that Acosta was repeatedly told not to exceed working a certain number of hours but would sit on the clock and sleep at work and claim overtime pay. Tastet said conversations with Acosta about reducing overtime began about six to eight months before Acosta was terminated but that he routinely ignored instructions to not work more than 100 hours a week. Tastet clarified that the "work" Acosta claimed to do was unnecessary work such as sweeping the floors in the middle of the night when he would sleep at the AMPOL facility. Tastet testified:

I told him work one hundred hours or less. I didn't say you're not getting paid. I said you work a hundred hours or less. That's the cap. And he keeps pushing it. I'd be worried about my job because you're disregarding an order from an upper level manager in the company. And then, furthermore, it came from Jeff Ducato who was now acting General Manager. I'm sure, at some time or another, it came from Kirk Headley as the CEO. And you still push the envelope. There was times that he was seen sweeping the floors for two or three hours in the middle of the night.

Tastet further testified regarding the text messages which Acosta claims indicate that Tastet instructed him to fabricate time cards. The texts exchange is as follows:

Tastet: You're going to need to cut your hours back brother?
Acosta: Are you serious, we're doing this again?
Tastet: I know, but Kirk doesn't want to pay the OT at your pay rate when he can pay techs less for the same work.
Acosta: I agree in regards to the cost, but please let me know which techs and when. I haven't had ANY help for months now as far as techs go to include replacing Ron or Angela and everything still gets done all by myself.
Tastet: I know brother. We all know what you do and how much you do and I appreciate it. It's chicken shit but he is the CEO and it's his company.
Acosta: There's no way that I can get everything done Brooks, not by myself. Plus you know it's not me to walk away from work that needs to be done or to set myself up for more work the next day.
Tastet: Do what you have to complete what you have. Your time just cannot exceed more than 100 hours per week. That's the best I could do and even that was hard to get him to understand.
Acosta: So basically my time card needs to reflect no more than 100 hrs regardless of how much time it takes or how much I'm here?
Tastet: Correct
Acosta: Roger that. I'll "fabricate' my time card to reflect no more than 100 hours per week.
Tastet: Thanks brother!

Tastet then addressed the texts:

Like I said, they were taken out of context because there were multiple conversations that, of course, are not in your favor or Mr. Acosta's favor that did not make it here that attest to, if you work more than a hundred hours, I'm going to tell you do not come in anymore. Plain and simple. There is nothing in that shop that required more than a hundred hours except maybe for that small period of time, or two months tops, that we were on a major spill. My direction was always to delegate.

Tastet testified that Acosta was having marital problems and would often sleep on a cot at the AMPOL facility. He brought beer to the facility that he kept in a cooler. Tastet also said that, at one point, Acosta had a key to the time clock, which would allow him to manipulate it in anyway possible. Tastet was then questioned about some time cards from two days in October 2016, which indicated that Acosta clocked in at 6:00 a.m. and clocked out at 8:00 p.m. Tastet had noted on the time cards "sick per Brooks" and said that Acosta was not present on those two days and was not paid for those two days. Tastet testified that "He got paid for way more than what he worked over his time there. Definitely I can state that, yeah." He further testified that there were no reasons in the last half of 2016 that would require Acosta to work the number of hours he claimed to have worked and that "he's been over-compensated already."

Jeffrey Ducato testified that he began working at AMPOL in August of 2015 and was in charge of special projects, which encompassed a wide variety of things such as analyzing the overtime of the company. Ducato said that there were employees working seven or eight hours of overtime and then Acosta, who claimed to be working 100 hours of overtime. He said that "[Acosta] was given an allowance of a hundred hours which was ten times more than any other employee was getting." Ducato then discussed how AMPOL advanced Acosta money to buy tires and have his vehicle aligned and loaned him $7,000.00 to buy a welder, which he paid back over time even though he was making $170,000.00 per year. He testified that Acosta was told over and over again about claiming excessive amounts of overtime and that he would do good for a week and then "boom, he'd come right back and start again." Ducato said he would have taken a harder stance earlier on but that it was not in his chain of command at the time. However, once he reached supervisory level, Ducato took action:

So when I took the job [Chief Operations Officer] January 1st, I told Brooks we're done with this. We're going to bring Gabe in. We're going to be real clear on the expectations. No more bringing alcohol. No more parking the truck in the warehouse, because tools started to be missing big time. No more working Saturdays and Sundays. We're done playing this game. We brought Gabe in. This was January 9th. It was a Monday. I sat down. Brooks was in the room. Maybe the H.R. guy, I'm not sure. I said, Gabe, here's the law of the land and we're not varying from this. If you do this, this, this or this, you won't work here anymore. He signed it.
Q. That was January 9th?
A. That night he broke it.
Q. Okay. So you terminated him?
A. Exactly. That's exactly how it happened.

Ducato further testified that the last half of the year was extremely slow relative to the first half of the year when there was a big spill requiring a lot of overtime work. When questioned if there were any legitimate reasons for Acosta to work in excess of one hundred hours per week during the last half of the year, he replied, "Absolutely none."

Acosta testified that he worked at AMPOL for approximately two years. He testified regarding his duties as facilities manager. He then discussed the time cards entered into evidence stating that, "I was instructed to fabricate - well, not fabricate, was told to fabricate to not exceed no more than a hundred hours per week regardless of how much I worked." When questioned about the testimony that he created work, Acosta testified that he disagreed with the position that he was creating jobs because the warehouse needed to be cleaned. Acosta testified that his position was that regardless of how many hours he actually worked, he would only be paid for 100 hours. In that regard, Acosta discussed the second set of time cards introduced into evidence, which he claims were the actual hours he worked "in comparison to the time cards that I was instructed to fabricate that would reflect only a hundred hours versus the amount of time that I did work." Acosta said that he kept the secret set of time cards for six months.

When asked how someone could work 120-130 hours per week and not pass out from exhaustion, Acosta said he was accustomed to it from working in the oilfield and as a Marine. Acosta said that AMPOL knew he was working that many hours because there is a camera in front of his office. Acosta disputed AMPOL's claim that late night calls would occur maybe once a week. Acosta also testified that he returned the timeclock key to Tastet sometime in February 2016. He admitted having a regular monthly appointment at the doctor but did not deduct it from the time cards he turned in to AMPOL because "those time cards reflect what I was instructed to turn in." He said he was not claiming that there were not times that he left. Acosta testified that he could not have completed his job duties without working 120-130 hours per week.

On cross-examination, Acosta said he lived about forty-five minutes away from the AMPOL facility. He admitted that he was claiming to have worked 18.6 hours per day, seven days a week, for six months straight. He admitted the doctor visits were not reflected in either set of time cards. When questioned about the two days in October that Tastet noted as sick days, Acosta stated that the hours he claimed to have worked on the second secret set of time cards, seventeen hours on October 20th and nearly nineteen hours on October 21st, were accurate, and Tastet's notation must have been on the wrong days. Acosta claimed that those two days were in January 2016 before he was fired. However, he said he did not have the January time cards with him because the stipulated period he was claiming wages for ended in December. Acosta never punched out for lunch, either, and explained that he did not take a lunch or dinner but instead ate from the company vending machine. Acosta also testified that he worked Thanksgiving Day (18.25 hours), Christmas Day, and New Year's Day, stating that he worked every day and never took a day of vacation. He admitted that even the time cards he turned in to payroll were in excess of the 100 hours he was told not to exceed. For the week ending December 10, the turned-in time cards claimed a 122.5-hour work week, the week ending December 17, a 123.5-hour work-week, the week ending December 24, a 128.92-hour work week, and the week ending December 31, a 111-hour work week. Pay periods ending on November 5th, 12th, and 19th also reflect time cards submitted to AMPOL in excess of 120 hours per week. Acosta stated that, as a member of management, he did not require authorization to work overtime. Acosta was questioned:

Q. Well, you've used the term fabricated. So the first set of time cards that you submitted to AMPOL on a weekly basis, that's a false set of time cards in your opinion, correct?
A. It doesn't reflect the amount of hours that I did work.
Q. So they're incorrect. They're inaccurate. Those time cards are inaccurate?
A. They do not reflect the amount of hours that I did work.
Q. So, therefore, those time cards are inaccurate. Agreed?
A. They're false.
Q. False. Okay. That's a better word. So you were submitting false time cards to AMPOL for the last six months of your employment there?
A. As per instructed by my employer.

Acosta was then questioned about several two-day periods on the "accurate" time cards that claimed he worked forty-one hours straight in a forty-eight-hour period. In some instances, the set of time cards submitted to payroll reflected that Acosta worked more hours than the "accurate" secret set. Acosta denied sleeping on the cot at the AMPOL facility, instead stating that he only removed it from his truck because it was taking up too much space. He further stated that he never slept in his truck.

Several co-workers testified that Acosta was a good employee and that as part of their job duties they would occasionally need to contact him after normal business hours. A former employee of AMPOL testified that Acosta was present at the facility sometimes until early morning hours.

Mary Broussard, the payroll clerk at the time in question, testified that she brought Acosta Thanksgiving dinner at the AMPOL facility on Thanksgiving Day. She said she honked her horn for about fifteen minutes until he came out to get it and that he explained that he had been sleeping in his truck. She further testified that there were "several occasions" when she looked for Acosta about payroll issues and no one knew where he was for two or three hours.

Based on this testimony, we do not find the trial court erred in concluding that Acosta was told to limit his working hours to 100 hours per week, which he continually refused to do. Acosta has already been compensated for many more than 100 per hours week, therefore the trial court did not manifestly err in concluding that he is not due any additional overtime wages. The underlying allegation made by Acosta is that Tastet told him fabricate time cards to reflect that he only worked 100 hours even if he worked greater than 100 hours. We do not find this to be the case. Instead, the trial court found that Acosta was told to not work more than 100 hours per week. Acosta completely ignored the instruction to limit his working hours to 100 per week as evidenced by the submitted time cards routinely exceeding 100 hours per week. His second set of secretly-kept time cards do not advance his cause as they sometimes show that he worked less hours than the time cards submitted to the payroll department and do not account for times when Acosta was absent, such as doctor's appointments and absences from work which were never deducted.

Although not necessary to our finding that the trial court did not err, the question of whether he actually "worked" 120-130 hours per week was a much-discussed issue at the hearing. While the trial court found Acosta to be a hard worker and a dedicated employee, the testimony by Acosta's supervisor, which Acosta confirmed, was that Acosta spent time doing menial "work" at odd hours at overtime wages of $37.50 per hour, such as sweeping, that could have been completed by a $10.00 an hour employee, even though Acosta had been instructed not to do so numerous times. Further, reasonable people could easily conclude that Acosta's claim that he worked eighteen to twenty-hour days for six months straight without eating lunch or dinner and did not sleep at the workplace on the cot he brought was simply not credible. Acosta claimed he received phone calls all night long, yet supervisors testified that they only occasionally needed to call him and that an answering service was in place to take calls twenty-four hours a day. Acosta essentially spent his days at the AMPOL facility out of choice rather than necessity and in direct contravention of the order he was given.

As AMPOL points out, it paid Acosta for 8.27 hours of overtime every single day of the week for over five-and-a-half months straight. The trial court did not err in finding that Acosta failed to follow his employer's orders to limit his working hours to 100 hours per week. Accordingly, assignments of error two and three are without merit.

CONCLUSION

The judgment of the trial court in favor of the defendant-appellee, American Pollution Control Corporation, dismissing the plaintiff-appellant, Gabriel Acosta's, claims is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Gabriel Acosta.

AFFIRMED .