author: CRAIN, J.

text:
    STATE of Louisiana v. Demetri ROBINSON
    NO. 2018 KA 1005
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: April 10, 2019
    Richard J. Ward Jr., District Attorney, Terri Russo Lacy, Antonio M. Clayton, Scotty Chabert, Assistant District Attorneys, Port Allen, Louisiana, Attorneys for Appellee, State of Louisiana
    Joseph C. Bartels, Victoria Lennox Bartels, New Orleans, Louisiana, Attorney for Defendant/Appellant, Demetri Robinson
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

The defendant, Demetri Robinson, pled guilty to three counts of attempted second degree murder. See La. R.S. 14:27 and 14:30.1. He was sentenced to 50 years imprisonment at hard labor on each count, to be served concurrently. The trial court granted a motion to modify the sentences, and resentenced the defendant to 40 years imprisonment at hard labor on each count, to be served concurrently. We affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Because the defendant pled guilty, the facts of the case were not fully developed in the record. Based on pleadings and other documentation in the record, on September 17, 2011, the defendant, armed with a gun, entered the Cajun Circus Casino in Port Allen and shot at three people, striking one in the head.

The defendant initially pled not guilty and not guilty by reason of insanity to all charges. The trial court, with Judge J. Robin Free presiding, appointed a sanity commission. The commission members evaluated the defendant, concluded he was competent to stand trial, and issued reports of their respective findings to the trial court. The defendant and his counsel thereafter appeared in court and agreed to submit the competency issue based on the doctors' reports. The trial court assigned a trial date. On August 18, 2014, the defendant withdrew his plea of not guilty by reason of insanity and, at a Boykin hearing, pled guilty to three counts of attempted second degree murder. On March 5, 2015, the trial court sentenced him to the maximum of 50 years imprisonment at hard labor for each count, to be served concurrently.

The defendant retained new counsel who filed a motion to vacate the guilty pleas or alternatively to modify the sentences, asserting the defendant was provided ineffective assistance by his prior counsel. According to the defendant, his former attorney allowed him to plead guilty while the defendant allegedly suffered from a significant mental illness that rendered him incompetent. At a hearing on January 13, 2016, the defendant presented testimony from a forensic psychiatrist, who opined the defendant had bipolar disorder type 1 with psychotic features, and was incompetent at the time of his plea and sentencing. The trial court denied the motion to vacate the guilty pleas, finding the pleas were knowing and voluntary.

The trial court, however, held open the motion to modify the sentences and ordered the defendant transferred to Elayn Hunt Correctional Center where he was to undergo another psychological evaluation. The trial court explained that the duration of the defendant's sentences was due, in part, to his conduct at sentencing, specifically his smiling during the victim impact statements, which the court interpreted to show a lack of remorse. The trial court stated it might reconsider the sentences if an evaluation found the defendant's conduct was due to psychological issues.

The defendant was examined by a psychiatrist at Elayn Hunt, who issued a report finding the defendant likely had a preexisting mental health disorder that possibly played a role in his behavior at sentencing. At a hearing on January 10, 2018, with Judge Pro Tem Edward J. Gaidry now presiding, the trial court granted the motion to modify the sentences, and resentenced the defendant to 40 years imprisonment at hard labor on each count, to run concurrently.

Procedure for Competency Review and Determination

In his first assignment of error, the defendant asserts the trial court erred in accepting his guilty pleas without first making a determination of his competency.

A criminal defendant has a constitutional right not to be tried while legally incompetent. State v. Carmouche , 01-0405 (La. 5/14/02), 872 So.2d 1020, 1041. A state must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Carmouche , 872 So.2d at 1041.

The procedures applicable herein are set forth in Louisiana Code of Criminal Procedure articles 641, et seq. A trial court must order a mental examination of a defendant when it has "reasonable ground to doubt the defendant's mental capacity to proceed." La. Code Crim. Pro. art. 643. When a defendant enters a combined plea of "not guilty and not guilty by reason of insanity," the court may appoint a sanity commission to make an examination as to the defendant's mental condition at the time of the offense. The court may also order the commission to make an examination as to the defendant's present mental capacity to proceed. See La. Code Crim. Pro. arts. 644, 650. If a defendant's mental incapacity has been properly raised, no further steps can be taken in the prosecution until the defendant is found to have the mental capacity to proceed. La. Code Crim. P. art. 642. The competency issue must be determined by the court in a contradictory hearing. La. Code Crim. Pro. art. 647. While the defendant cannot waive the requirement of a competency determination, he can agree to submit the matter to the trial court for a decision based on the sanity commission's reports. See State v. McCray , 11-1913, 2012 WL 1552257 *2 (La. App. 1 Cir. 5/2/12) ; State v. Darnell , 43,048 (La. App. 2 Cir. 8/13/08), 988 So.2d 870, 876-77.

The trial court appointed a sanity commission of three doctors, all of whom found the defendant competent to proceed to trial. According to a minute entry dated October 3, 2012, "[t]he doctors on the sanity commission were present and will be present at the next hearing to discuss this case." The next minute entry, dated January 9, 2013, confirms the prosecutor, defense attorney, and the defendant were present in court, and "[t]he sanity was submitted on the reports." The trial court then set a trial date. The trial date was continued until August 18, 2014, the day the defendant withdrew his insanity plea and pled guilty to all charges.

While no minute entry indicates the trial court specifically found the defendant competent to proceed prior to accepting his guilty pleas, the trial court's setting of the trial date indicates it found the defendant competent to proceed. See State v. Bonicard , 98-0665 (La. App. 4 Cir. 8/4/99), 752 So.2d 184, 185, writ denied , 99-2632 (La. 3/17/00), 756 So.2d 324. Thereafter, the trial court twice stated on the record that the defendant was competent to proceed on the day he pled guilty. At the hearing on the motion to vacate the guilty pleas, Judge Free recalled the defendant's condition at the guilty plea hearing and confirmed:

He appeared like you and I are right here. He appeared like he looks right now. But I did speak to him on that day. And based on my speaking to him, I was of the opinion and I still am of the opinion that on that day he knew what he was doing and that his waiver of his rights and his plea of guilty was a knowing, voluntary, and intelligent waiver and plea.

Similar conclusions were expressed by Judge Gaidry when he reduced the defendant's sentences in 2018:

I believe that he probably suffers from some mental illness but that does not make him insane under our law nor was he incompetent to stand trial or to voluntarily give a plea in connection with this matter.

The record reflects the defendant agreed to submit the competency determination to the trial court for a decision based on the doctors' reports. Relying on those reports, as well as personal observations and communications with the defendant, the trial court concluded the defendant was competent to proceed, a determination the court repeatedly expressed on the record in open court. Considering all of the circumstances of this case, we find the procedural mandates of Louisiana Code of Criminal Procedure articles 641, et seq. , were adequately satisfied, and the defendant was not denied his due process right to a fair trial. See McCray , 2012 WL 1552257 at *2 ; Darnell , 988 So.2d at 877 ; Bonicard , 752 So.2d at 185. This assignment of error is without merit.

Merits of Competency Determination: Denial of Motion to Withdraw Guilty Plea

The defendant next focuses on the merits of the competency determination, contending the trial court erred in that determination and, for that reason, erred in denying his motion to vacate the guilty pleas.

Louisiana law imposes a legal presumption that a defendant is sane and competent to proceed. See La. R.S. 15:432. The defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Carmouche , 01-0405 (La. 5/14/02), 872 So.2d 1020, 1041. A reviewing court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Carmouche , 872 So.2d at 1041.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. Code Crim. P. art. 641 ; State v. Odenbaugh , 10-0268 (La. 12/6/11), 82 So.3d 215, 227. Relevant considerations in determining whether a defendant is fully aware of the nature of the proceedings include whether he understands the nature of the charge and can appreciate its seriousness, whether he understands what defenses are available, whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each, whether he has an awareness of his legal rights, and whether he understands the range of possible verdicts and the consequences of conviction. State v. Bennett , 345 So.2d 1129, 1138 (La. 1977) ; State v. Walker , 09-1741, 2010 WL 546498 *2 (La. App. 1 Cir. 2/17/10). Facts to consider in determining an accused's ability to assist in his defense include whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times, whether he is able to assist counsel in locating and examining relevant witnesses, whether he is able to maintain a consistent defense, whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements, whether he has the ability to make simple decisions in response to well-explained alternatives, whether he is capable of testifying if necessary in his own defense, and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Bennett , 345 So. 2d at, 1138 ; Walker , 2010 WL 546498 at*2.

The sanity commission in this case consisted of Dr. Jose Artecona, M.D.; Dr. D. Clay Kelly Jr., M.D.; and Dr. Charles P. Vosburg, Ph.D. On December 29, 2011, Dr. Artecona evaluated the defendant's competency to stand trial and his mental state at the time of the offenses. The defendant's cognitive function appeared to be in the normal range of intelligence, and his thoughts were linear, logical, and goal directed. Dr. Artecona found the defendant met the Bennett criteria and was competent to stand trial. At the time of the offense, according to Dr. Artecona, the defendant was not suffering from a mental disease or defect that could have rendered him incapable of distinguishing right from wrong, particularly as to the actions that led to his arrest. Dr. Artecona did note, however, that the defendant's history suggested problems with paranoid ideation, but Dr. Artecona found no evidence of a psychotic motive for the defendant's behavior.

On January 12, 2012, Dr. Kelly and Dr. Vosburg evaluated the defendant's competency to stand trial. They initially noted Dr. Vosburg previously examined the defendant on October 12, 2011, only 25 days after the shooting, because he was exhibiting psychiatric and behavioral symptoms. During that evaluation, the defendant claimed there was a "hit out on me on the streets," and that he was a "prophet" who was being "groomed to be a millionaire." On Dr. Vosburg's recommendation, the defendant started treatment with antipsychotics (risperidone) and showed remarkable improvement.

When examined on January 12, 2012, the defendant's thought process was direct and linear, and the grandiosity and paranoid features were greatly reduced. Dr. Kelly and Dr. Vosburg concluded the defendant could relate to his attorney, had a rational understanding of the proceedings against him, and met the Bennett criteria for competency to stand trial. They noted some indication of psychosis at the time of the offenses, and requested an opportunity to further explore that issue. At a follow up evaluation on November 15, 2012, Dr. Kelly and Dr. Vosburg found no clear indication the defendant did not understand the nature, quality, and wrongfulness of his actions. They noted he fled the scene after the crime, and that possible drug abuse in the days leading up to the crime may have contributed to his conduct. In their opinion, the defendant was sane at the time of the offenses.

At the hearing on the motion to vacate the guilty pleas, the trial court heard testimony from Dr. Daphne Glindmeyer, a forensic psychiatrist retained by the defendant.

Based upon her review of various documentation, including medical records, the sanity commission reports, and letters written by the defendant, Dr. Glindmeyer diagnosed the defendant with bipolar disorder type 1 with psychotic features. She noted the defendant had been in prolonged periods of isolation in jail without his medication, prior to pleading guilty and prior to sentencing. In her opinion, the defendant was not competent when he pled guilty and when he was sentenced.

Conflicting evidence was presented to the trial court. All of the commission members concluded the defendant was competent to proceed, while the defense expert concluded otherwise. The trial court, after weighing that evidence and taking into consideration its own observations and interactions with the defendant prior to accepting his guilty pleas, concluded the defendant was competent to proceed. That determination is entitled to great weight. See Carmouche , 872 So.2d at 1041. Based upon our review of the record, we find no abuse of discretion in the trial court's conclusion. See State v. Brooks , 541 So.2d 801, 807 (La. 1989) ; Walker , 2010 WL 546498 at *4.

The only remaining consideration, for purposes of this assignment of error, is whether the defendant's guilty pleas were knowingly and voluntarily made. For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against compulsory self-incrimination. See Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) ; State v. White , 517 So.2d 461, 462-63 (La. App. 1 Cir. 1987), writ denied , 521 So.2d 1184 (La. 1988). In determining whether the defendant's plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but also other factors that may have a bearing on the decision. See State v. Calhoun , 96-0786 (La. 5/20/97), 694 So.2d 909. Everything that appears in the record concerning the predicate offense, as well as the trial judge's opportunity to observe the defendant's appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. State v. Cadiere , 99-0970 (La. App. 1st Cir. 2/18/00), 754 So.2d 294, 297, writ denied , 00-0815 (La. 11/13/00), 774 So.2d 971.

The trial court conducted a thorough, detailed colloquy with the defendant. The defendant, who was represented by counsel, informed the trial court that he had a bachelor's degree and understood what he was "doing here today." The defendant confirmed he was not under the influence of any drugs or alcohol, and he did not suffer from any mental condition that would prevent him from understanding why he was in court. The trial court informed the defendant of his constitutional rights and explained he would be waiving those rights by pleading guilty, and faced a minimum of a ten-year sentence on each count. The defendant said he understood and further confirmed he was not forced, threatened, or intimidated by anyone into pleading guilty, and no one made any promises to induce his guilty plea. The following exchange then took place:

The Court: Are you pleading guilty of your own free will?
Mr. Robinson: Yes, sir.
The Court: Are you pleading guilty because you are in fact guilty of the crime of three counts of Attempted Second Degree Murder?
Mr. Robinson: Yes, sir.
The Court: Okay. How do you plead, sir, to three counts of Attempted Second Degree Murder?
Mr. Robinson: Guilty.
The Court: All right. Tell me, sir, what you did that makes you guilty of that?
Mr. Robinson: I entered the store. I got upset. I shot Tenesha (spelled phonetically). I shot at a window where another guy was present. And, when I pointed the gun at the third guy, apparently my gun was jammed.

The withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson , 406 So.2d 569, 571 (La. 1981). Based upon our review of the record, the trial court did not abuse its discretion in denying the defendant's motion to vacate his guilty pleas. This assignment of error is without merit.

Ineffective Assistance of Counsel

In his third assignment of error, the defendant argues the denial of his motion to vacate his guilty pleas was due to ineffective assistance of counsel. According to the defendant, he pled guilty without knowing or understanding his right to submit responsive verdicts and present affirmative defenses, which, according to the defendant, his prior counsel did not adequately investigate or prepare. If properly counseled in that regard, the defendant argues he would not have pled guilty. The defendant further avers no psychiatric expert was hired on his behalf to determine his sanity at the time of the offenses.

A claim of ineffective assistance of counsel is analyzed under the two-part test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Fuller , 454 So.2d 119, 125 n.9 (La. 1984). The defendant must show (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. Strickland , 466 U.S. at 687, 694, 104 S.Ct. 2052. Counsel's performance is deficient when it can be shown that he made errors so serious that he was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. In the context of a guilty plea, the "prejudice" component requires the defendant to prove that, but for counsel's erroneous advice, he would have elected to go to trial rather than plead guilty. See Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) ; State v. Crawford , 15-0784 (La. 10/2/15), 176 So.3d 394, 395 (per curiam ); State v. Cheatham , 16-1648 (La. App. 1 Cir. 6/2/17), 222 So.3d 757, 760.

A claim of ineffective assistance of counsel is generally relegated to post-conviction relief, unless the record permits definitive resolution on appeal. State v. Bright , 98-0398 (La. 4/11/00), 776 So.2d 1134, 1157. Decisions relating to investigation, preparation, and strategy cannot possibly be reviewed on appeal. See State v. Kendall , 16-0207 (La. App. 1 Cir. 9/15/17), 231 So.3d 661, 664 ; State v. Tingle , 12-1928, 2013 WL 2484316, *7 (La. App. 1 Cir. 6/7/13). Given the nature of the defendant's claims of ineffective assistance of counsel, we find they are more properly reserved for an application for post-conviction relief, subject to the requirements of Louisiana Code of Criminal Procedure articles 924 through 930.9. This assignment of error is without merit or is otherwise not subject to appellate review herein.

Original Sentences

In two assignments of error, the defendant maintains the trial court erred in "failing to vacate the original sentence[s]" imposed on March 5, 2015, because on that date the defendant was allegedly not competent and his counsel was ineffective. (Emphasis added.)

We first note the defendant's motion actually requested the trial court modify, rather than vacate, the original sentences.

Regardless, on April 4, 2018, in response to the motion, the trial court granted relief and reduced each of the defendant's sentences to 40 years. The result was the imposition of new sentences at that time. See La. Code Crim. Pro. art. 881.1 ; State v. Graham , 14-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 281, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Smith , 03-1153 (La. App. 1 Cir. 4/7/04), 879 So.2d 179, 183 (en banc ). Because the defendant was resentenced on April 4, 2018, any assignments of error concerning his competency and legal representation at the original sentencing on March 5, 2015, are moot. The sentences imposed that day are no longer in effect. This assignment of error is without merit.

Claim of Excessive Sentence

In his final assignment of error, the defendant contends his 40-year sentences are excessive.

In felony cases, a defendant may move for reconsideration of his sentence within thirty days following the imposition of sentence or within such longer period as the trial court may set at the sentencing. See La. Code Crim. Pro. art. 881.1A. The motion shall be oral at the time of sentence or in writing thereafter and shall set forth the specific grounds on which the motion. See La. Code Crim. Pro. art. 881.1B. The failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, precludes the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. See La. Code Crim. Pro. art. 881.1E.

As previously noted, the trial court granted the defendant's motion to modify his sentence, and resentenced him to three, concurrent 40-year sentences. As previously recognized, when a trial court grants relief under Article 881.1 and resentences the defendant, the result is the imposition of a new sentence. Graham , 171 So.3d at 281 ; State v. Gerald , 13-1478 (La. App. 1 Cir. 5/2/14), 145 So.3d 436, 438, writ denied , 15-1370 (La. 2/13/15), 157 So.3d 585. When a new sentence is imposed, Louisiana Code of Criminal Procedure article 881.1 requires a renewed motion for reconsideration be made or filed, specifying the grounds for objection to the new sentence. State v. Smith , 879 So.2d at 183.

The defendant did not make or file a motion to reconsider the new sentences. Following resentencing, defense counsel stated, "Your Honor, of course, note my objection for the record." This general objection did not constitute an oral motion to reconsider the sentences as contemplated by Louisiana Code of Criminal Procedure article 881.1B. See State v. Campbell , 16-1349 (La. App. 1 Cir. 4/12/17), 217 So.3d 1197, 1198 n.3. By failing to make or file a motion to reconsider the new sentences, the defendant did not preserve appellate review of the new sentences and is procedurally barred from having his challenge to the new sentences reviewed by this court on appeal. See Gerald , 145 So.3d at 439 ; Smith , 879 So.2d at 183. This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      These sentences are deemed to be served without benefit of probation, parole, or suspension of sentence. See La. R.S. 14:30.l.B, 14:27D(1)(a), and 15:301.1A.


source: Caselaw Access Project

author: LANIER, J.

license: Public Domain

text:
    Jodie Acosta PELLERANO v. Francisco Juan PELLERANO
    NO. 2017CA0302
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: April 12, 2019
    Lorraine Andreson McCormick, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Jodie Acosta Pellerano
    Timothy J. Martinez, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Francisco Juan Pellerano, Jr.
    BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
   LANIER, J.

This is an appeal from a judgment granting plaintiff's request for a protective order pursuant to the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties, Jodie Acosta Pellarano and Francisco Juan Pellerano, Jr., were married in June 2006. During their marriage, three children were born, N.P. (DOB 1/21/09), J.P. (DOB 12/16/10), and L.P. (DOB 12/3/12) . Jodie filed for divorce in June 2012. On June 26, 2012, Jodie filed a petition for protection from abuse against Francisco and received a temporary restraining order ("TRO") for herself and the children effective through July 31, 2012. A final judgment of divorce was signed on August 22, 2013.

On September 30, 2016, Jodie filed another petition for protection from abuse against Francisco, concerning events that transpired during a September 29, 2016 exchange of the children. The trial court granted a TRO in favor of Jodie and the children that remained in effect until a hearing that was held on November 9, 2016.

At the hearing on November 9, 2016, the trial court heard testimony from several witnesses before granting a protective order, for Jodie only, with an expiration date of May 18, 2018. The November 9, 2016 protective order was issued in the form of a "Louisiana Uniform Abuse Prevention Order." Francisco was ordered to enroll in a court approved Batterer's Intervention Program within 30 days. The trial court also granted temporary custody of the two minor children to Jodie, with unsupervised visitation to Francisco on alternating weekends. On December 27, 2016, the trial court issued written reasons for its judgment.

This appeal by Francisco followed. Thereafter, this court issued a show cause order concerning whether the November 9, 2016 protective order contained the necessary decretal language and whether it was final and appealable. The matter was remanded for the limited purpose of allowing the trial court to sign a judgment that addressed these apparent defects. In response, the trial court issued a per curiam on March 24, 2017, providing, in pertinent part, as follows:

The Court declines to designate the Order of Protection issued November 9, 2016 as a final judgment pursuant to La. C.C.P. art. 1915(B). That Order of Protection did not dispose of all of the claims and issues in the case. Two Judgments were rendered subsequent to the November 9, 2016 Order of Protection changing the terms of custody that were contained in the Protective Order. An Amended Order of Protection was issued March 24, 2017 which replaces the November 9, 2016 Order.

Thereafter, another panel of this court issued an action maintaining the appeal, but reserved a final determination on whether to maintain the appeal to the merits panel. Pellerano v. Pellerano, 2017-0302 (La. App. 1 Cir. 7/7/17) (unpublished action).

We note that Louisiana law mandates the use of a uniform form for the issuance of any TRO or protective order, called the "Louisiana Uniform Abuse Prevention Order." See La. R.S. 46:2136.2(C). The trial court checks off a box provided on the uniform form to indicate under which law it issues the TRO and/or protective order: (1) La. R.S. 46:2131, et seq. (Domestic Abuse); (2) La. R.S. 46:2151 (Dating Violence); (3) La. R.S. 46:2171, et seq. (Non-intimate stalking); (4) La. R.S. 2181, et seq. (Non-intimate sexual assault); (5) La. Ch.C. art. 1564, et seq. (Children's Code Domestic Abuse); or, (6) a court approved consent agreement. Scott v. Hogan, 2017-1716 (La. App. 1 Cir. 7/18/18), 255 So.3d 24, 31.

We have reviewed the November 9, 2016 protective order and find that it clearly identifies the parties, is legible, and delineates the precise actions being taken. Moreover, we find that the order of protection is appealable as a matter of right. See La. Code Civ. P. arts. 2083(C), 3612 ; La. R.S. 46:2136(F)(1). Accordingly, we recall the previously issued show cause order and maintain the instant appeal.

ANALYSIS

On appeal, Francisco argues the trial court abused its discretion in issuing the November 9, 2016 protective order against him because the acts alleged to have been committed by him on September 29, 2016, are not within the scope of the Domestic Abuse Assistance Statute and posed no real or immediate threat of harm to Jodie or the minor children. Jodie responds, noting the evidence supports the trial court's finding that Francisco committed a crime in the presence of the minor children on September 29, 2016, and his actions fall within the scope of the Domestic Abuse Assistance Statute.

Louisiana Revised Statutes 46:2131, et seq. , provides protection in the form of TROs and protective orders for persons subject to domestic abuse. Domestic abuse "includes but is not limited to physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." La. R.S. 46:2132(3). A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Rouyea v. Rouyea, 2000-2613 (La. App. 1 Cir. 3/28/01), 808 So.2d 558, 561. Additionally, the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error. James v. Warren, 2017-0757 (La. App. 1 Cir. 12/21/17), 240 So.3d 967, 969.

During the hearing on November 9, 2016, the trial court heard testimony concerning the September 2016 incident in question. After considering all of the evidence before it, including partial video recordings of the incident made by both Francisco's mother and Jodie, the trial court found there was sufficient evidence to warrant a protective order in favor of Jodie and against Francisco, offering the following written reasons for judgment:

The testimony showed that during and after the parties' marriage, [Francisco] physically and verbally abused [Jodie]. [Jodie] testified that throughout the marriage [Francisco] broke household items out of anger. A neighbor called the police on or about August 9, 2006, because [Francisco] had slapped and punched [Jodie] in the face. [Francisco] was arrested for two counts of domestic abuse battery and false imprisonment, and was later convicted of simple battery. Further, throughout the marriage, [Jodie] testified that [Francisco] broke several items in the marital home, including a lap top, video camera, glasses, and television screen. Several of said incidents occurred in the presence of the parties' minor children.
The incident, which brought this matter before the Court on November 9, 2016, occurred in September 2016. The parties agreed to meet at a salon at Towne Center to exchange the children. After a verbal disagreement, [Francisco] and his mother stood behind [Jodie's] vehicle in a public parking lot and blocked her from leaving in her vehicle. During most of this time [Francisco's] mother was videoing the parties. [Jodie] testified that she was trapped there for approximately 45 minutes. At one point [Jodie] put her car into reverse while [Francisco] and his mother were standing behind the vehicle. As a result, and instead of moving out from behind the vehicle, [Francisco] called the police, alleging that [Jodie] tried to run over him and his mother. The police came to the scene; [Jodie] was questioned by the police, but ultimately, no arrest or further action by the police was taken.
Both [Francisco's] mother and [Jodie] video recorded some of the incident. [Jodie's] video recording was played in court. [Francisco] and his mother can clearly be seen standing behind [Jodie's] vehicle, preventing [Jodie] from leaving the parking lot. The parties' minor children and [Jodie's] minor daughter were present.
[Francisco] testified that [Jodie] called him an idiot and that he thought she was going to attack him. He stated that he was talking to his mother and she started backing out making him realize he needed to "call the cops". The Court cannot understand why, had [Francisco] felt threatened by [Jodie], he would not have simply moved from the back of her vehicle so that she could leave. Instead he elected to trap her there, imprisoning her with no way to leave in her vehicle.
[Francisco's] girlfriend, Haley Baker, testified that she felt that [Jodie] could have maneuvered out of the parking spot even with [Francisco] and his mother behind the car. The video, together with the court's knowledge of the location, lead the court to the conclusion that this assertion is ludicrous and that any such maneuverer would have been not only dangerous, but illegal.
[Jodie] also testified that [Francisco] had a relationship with a woman named Nicole Dellatte who, in the past, also filed a Petition for Protection from Abuse against [Francisco]. Additionally she testified that another of his girlfriends, Emily Broussard, alleged that he through [sic] a brick through her car window, and the police showed up at his home to arrest him while he had the custody of the children.
Based on the history of domestic violence, specifically the incident that occurred in September 2016, perpetrated by [Francisco] against [Jodie], this Court issued a Protective Order, effective through May 18, 2018, against the defendant, [Francisco], and in favor of the Plaintiff, [Jodie]. [Francisco] has a history of family violence and was clearly preventing her from leaving while arguing with her.

In reviewing this matter, we find the trial court very closely and carefully considered all of the evidence presented. Likewise, we have thoroughly reviewed the evidence and find that record does not demonstrate that the trial court's factual findings were manifestly erroneous. We conclude that the evidence in the record supports the trial court's finding that Francisco was "imprisoning" Jodie and prevented her and the children from leaving the parking lot for approximately forty-five minutes. See La. R.S. 14:46 (false imprisonment). Not only is the evidence overwhelmingly in support of the trial court's conclusion, but the trial court's reasonable evaluations of credibility and reasonable inferences of fact must be afforded great deference. Accordingly, we find no abuse of discretion by the trial court in granting the November 9, 2016 protective order.

DECREE

For the above and foregoing reasons, we affirm the November 9, 2016 protective order issued by the trial court and, pursuant to La. R.S. 46:2136.1(A), assess appeal costs against Francisco Juan Pellerano, Jr.

RULE TO SHOW CAUSE RECALLED AND APPEAL MAINTAINED; AFFIRMED.

      According to the record, L.P. passed away shortly after he was born.


author: WINDHORST, J.

text:
    Reginald BILLIOT v. PALA GROUP, LLC, Gallagher Bassett
    NO. 18-CA-664
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, REGINALD BILLIOT, Lloyd N. Frischhertz, Jr., Anthony J. Impastato, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, PALA GROUP, LLC, David T. Butler, Jr.
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellant/claimant, Reginald Billiot, appeals the trial court's September 10, 2018 judgment in favor of appellee/employer, Pala Group, LLC ("Pala"), finding that claimant failed to meet his burden of showing that he sustained a work-related accident or injury and dismissing claimant's case with prejudice. For the following reasons, we affirm.

PROCEDURAL HISTORY

Claimant was employed by Pala as a welder. In early November 2016, claimant alleged that he injured his back while pulling pontoon and deck legs by hand on Tank 308. Claimant filed a Disputed Claim for Compensation on February 17, 2017. After a trial on the merits, the workers' compensation court rendered judgment in favor of the employer, Pala, dismissing claimant's claims with prejudice. In written reasons, the workers' compensation court found the following:

* * *
All of the witnesses testified that the job at Pala was hard work. However, unfortunately, no one could corroborate Claimant's attestation that he had a work accident. Claimant's accident was not witnessed; no one corroborated his account of an accident or complaints of pain as a result of a work accident. All of the witnesses testified about Pala's policy with regard to reporting work accidents. The witnesses testified about the safety meetings and the PTSA forms which were signed at the end of the day to indicate the worker had no work injury. None of the witnesses could corroborate a work accident, despite Claimant testifying that he informed some of them of his injury. Additionally, Pala presented evidence to question Claimant's credibility and/or veracity by presenting evidence that Claimant spent 11 months in prison for credit card fraud.
* * *
The Court reviewed the record in this matter, including the testimony, depositions and medical records and upon doing such, the Court finds that Claimant is unable to sustain his burden in proving an accident as defined by La. R.S. 23:1021(1). Although there was a question regarding the existence of the PTSA for November 11, 2016, Claimant did not testify that he followed protocol regarding signing in and out on the PTSA. He did not dispute signing in and out on each day. He asserted that he reported his accident to Ward, but neither Ward nor any other supervisor or worker had any knowledge of the alleged accident. Claimant's testimony lacks credibility and the evidence presented casts doubt regarding whether he sustained injuries as a result of a work accident. As such, Claimant has failed to sustain his burden to prove that a work related accident occurred November 2016 and that he sustained injuries as a result of said work accident.

This appeal followed.

STANDARD OF REVIEW

In a workers' compensation case, the employee bears the burden of proving an accident occurred, that it occurred in the course and scope of her employment, the accident caused her injury, and the injury caused her disability. Guevara v. Brand Energy & Infrastructure Servs., 13-331 (La. App. 5 Cir. 10/30/13), 129 So.3d 625, 631, writ denied, 13-2782 (La. 2/14/14), 132 So.3d 964 ; Gray v. H.B. Zachary Const. Co., 01-276 (La. App. 5 Cir. 9/25/01), 798 So.2d 271, 274, writ denied, 01-2847 (La. 1/4/02), 805 So.2d 207.

The workers' compensation court's determinations as to whether the claimant's testimony is credible and whether the claimant has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Guevara, 129 So.3d at 635; Dean v. Southmark Constr., 03-1051 (La. 7/6/04), 879 So.2d 112, 117. The findings of the workers' compensation court will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Dean, 879 So.2d at 117. Where there is a 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. Id. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. The determinations by the workers' compensation court as to whether the claimant's testimony is credible and whether the claimant has discharged his burden are factual determinations that will not be disturbed on appeal in the absence of manifest error or unless clearly wrong.

Forbes v. Metro. Developmental Center, 09-901 (La. App. 5 Cir. 3/9/10), 35 So.3d 377, 382 ; Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992).

FACTS AND TRIAL EVIDENCE

On appeal, claimant contends that the workers' compensation court erred in finding that he did not establish a work-related accident and injury.

A workers' compensation claimant must establish a "personal injury by accident arising out of an in the course of his employment." La. R.S. 23:1031 A. An accident is "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021(1). A claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno, 593 So.2d at 361 ; Jimmerson v. Johnson Storage & Moving Co., 13-962 (La. App. 5 Cir. 5/14/14), 142 So.3d 111, 115. An employee may prove by his testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the claimant's version of the incident; and (2) the claimant's testimony is corroborated by the circumstances following the alleged incident. Jimmerson, 142 So.3d at 116. In determining whether the claimant has discharged his burden of proof, the trial court should accept as true a witness's uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. Id. at 116. A claimant may corroborate his testimony concerning the accident with objective medical evidence or testimony from follow workers or his spouse. Hamilton v. Compass Grp. USA/Morrison, 07-501 (La. App. 5 Cir. 11/27/07), 973 So.2d 803, 806-807.

Claimant testified that he was employed by Pala as a welder on November 10, 2016, when he sustained an injury to his back while pulling pontoon and deck legs on Tank 308. When he initially started working on Tank 308, the crane and leg puller were not on site. He testified that it was "Gus, myself, Gary Schroder [sic] and Tyler Johnson and Shane O'Brien" working on the tank, along with Donna John who was on fire watch. He testified that despite the crane and leg puller not being available, Melvin Ward, the site superintendent at Pala, told him to start pulling the legs by hand.

At trial, claimant testified that he hurt his back when he grabbed one of the legs, the others let go, and the leg "came down on me and jerked me back." Afterwards, he told Mr. Ward two different times that he had hurt his back. He stated that Ms. John was present when he told Mr. Ward that he hurt his back pulling the legs by hand. He also told Mr. Stevens, the foreman, and his co-employee, Mr. O'Brien, that he hurt his back pulling the legs. Besides pulling the legs by hand, he had to help carry the legs to a "basket with a rack." He would carry the legs by himself or with another to the rack and afterwards his back and legs were sore. Claimant testified that they pulled around "30, 40" legs by hand before the crane and leg puller arrived later that afternoon. By his calculations, the legs weighed 149.9 pounds. Because his back was hurting, he took prescription strength Advil every day until last day before Thanksgiving. Claimant testified that the job on Tank 308 took four days.

Claimant testified that Pala had requirements for reporting work-related accidents or injuries. Employees are "supposed to report it, and then they're supposed to make a note of it." Claimant stated that employees are required to report any accidents or injuries to Mr. Ward. Once an accident or injury occurs, there are "forms" to fill out. Claimant admits that a report was not filled out that day. Claimant testified that every day employees have "sign-in sheets" but denied that the sign-in sheets required employees to certify that they were not hurt on the job that day. Claimant testified that he complained to his co-workers, "Gary, Gus, Donna, Van, and Ray Burt" that his back and leg were bothering him.

After the work was completed on Tank 308, claimant testified he worked on Tank 72. He stated that he was able to sit down to weld and there were 24 "bad welds" to fix on Tank 72. He testified that he did not work in the pontoon area on that tank; rather, he worked for the remaining two-week period on the outside of the tank. He stated that he did have to do climbing and scaffolding work and he had to pull up his own equipment to where he was working, but that the equipment only weighed "Five pounds, maybe." Claimant testified he continued to work for Pala until the day before Thanksgiving, November 23, 2016.

On November 27, 2016, claimant testified he woke up with a sharp pain in his back and was unable to move. He started having pain in his lower back and he stated before it was "up in like a spasm. This time it was actually in my lower back." He stated that he also started having leg pain. His fiancé, Tina Daigrepont, took him to the hospital where he told them that he hurt his back at work. On the same day he testified that he reported his work-related injury to Will Serin, a safety person at Pala, who told him to call "Ms. Felicia" with human resources. He also reported his work-related accident to "Ms. Felicia." Claimant testified that he never told anyone at Pala that he sustained a non-work-related injury. He testified that he was unable to continue working due to his work-related injuries. Claimant admitted that despite allegedly being unable to work for Pala due to his injury, he started working for another company in December 2016, he subsequently worked for several other companies thereafter, and was currently employed.

Claimant's fiancé, Tina Daigrepont, testified that prior to November 2016, claimant did not have any problems with his back. However, in November 2016, claimant came home one evening and told her he was "hurting." Ms. Daigrepont testified that claimant told her that that he hurt his back when he was working on a tank. She took claimant to the hospital on November 27, 2016, after he woke up "screaming" and could not move. She testified that claimant has worked since he left Pala in November 2016.

Melvin Ward, site superintendent at Pala, testified that claimant was a good worker, he did not have any physical problems, nor did he ever complain about any physical problems. Mr. Ward testified that he did not witness a work-related accident, claimant never reported a work-related accident or injury, and he was not informed by the foreman of a work-related accident involving claimant. He testified that Pala had a procedure for reporting accidents. He stated that the usual procedure is for the injured person to inform his foreman, who would then inform him or the safety person. If an employee reported an accident to him, he would report the accident to his safety person.

Mr. Ward testified that after completing work on Tank 308, claimant worked on Tank 72 fixing "bad welds," "gouging," "pontoon work," and "fixing repairs for X-rays." He worked with claimant on Tank 72 until the day before Thanksgiving, then he was off for a week. Claimant did not have any physical problems working on Tank 72. When he came back to work, he was told that claimant was out for a non-work-related incident.

Van Stevens testified that he was a foreman at Pala in November 2016. He did not remember employees pulling legs by hand and then requesting a crane for the work on Tank 308. He testified that it took "about two days" to pull the legs, which were pulled with a leg puller or crane. Claimant never informed him that he sustained a work-related injury. He stated that Pala's procedure for reporting accidents or injuries is for the employee to report it to him and then he would report it to the safety person and his supervisor. Pala requires PTSA forms for every job and employees are required to state if they are injured on the form. After he found out about claimant's claim, he spoke to the individuals who worked on Tank 308. He was told the same thing, "that all [claimant]

was doing was wiping the legs off. [Claimant] wasn't even pulling on the chain fall, and that's all I heard from any of them." Claimant's co-workers each informed him "I never heard him say that he hurt himself."

Mr. Stevens testified that after working on Tank 308, claimant worked on Tank 72 with other employees, including David Leet, where claimant did welding and grinding inside the pontoons. He stated that a pontoon is "a small area, usually a confined space when you go into a pontoon" and to get into a pontoon, a person has to go in "head first or feet ... you've got to kind of slide down in it." He did not notice anything about claimant that would suggest claimant hurt his back. Claimant did tell him sometime during November that he had a doctor's appointment after Thanksgiving. He testified he called claimant after his doctor's appointment and asked him when he was coming back, to which claimant informed him that he had to have an MRI and he already talked to human resources. Claimant specifically told him that it was "a non-work-related injury." He testified that when claimant first came to work at Pala, claimant told him that he had a "bad sciatic nerve," but that it did not affect his work.

William Corbett, the site safety manager at Pala, testified that Pala's procedure for reporting accidents or injuries was for the employee to tell his supervisor, and if he was not available, inform his foreman, superintendent, and/or safety manager. He received a text message from claimant on November 27, 2016, stating that he went to the doctor, was prescribed medicine and inquired if he could work while on the medication. By text, he told claimant to contact Mr. Ward or William Serin, the site safety person. Afterwards, he called claimant to talk. Claimant informed him that he "pulled a muscle or something in his back ... it was a sciatic nerve." Mr. Corbett testified that the first question he asked claimant was whether his injury was work-related, to which claimant told him, "No." Claimant did not tell him he sustained a work-related injury. Mr. Corbett testified as to Pala's procedures on reporting accidents or injuries and indicated that the first thing to do if someone is injured is make sure the individual gets medical attention, if necessary. As part of his job, he would report any incidents to the corporate office and to the safety person, and at that point, formal documents would be generated and statements would be taken regarding the incident. No such documents were generated in this case. Pala had safety meetings where employees were informed that they needed to report any work-related accidents or injuries. Pala also used daily PTSA forms. The PTSA stated the work to be performed, the hazards, and how to mitigate hazards. The employees signed in on the PTSA, if there are no changes, they initialed the document at lunch, and then signed out certifying they were not injured. If someone was hurt, Pala's policy required the employee to inform their supervisor and the employee would not sign out on the PTSA because "the signature to sign off states that you're okay."

In her deposition, Donna John testified she was employed by Pala and worked "fire watch" on Tank 308. She testified that it took more than three days to complete and some of the legs were pulled manually. On the first and second days, the outside legs were pulled manually. She testified that eight to ten outside legs were pulled manually. She could not recall if any of the inside legs were pulled manually but stated "probably" because the leg puller was not available "the first few days." A few days later, claimant complained that his back was hurting and asked for Ibuprofen, which she gave to him. Claimant never complained of pain nor did he appear to be hurt prior to working on this tank. When asked if claimant told her that he hurt his back pulling legs, she stated that claimant complained to Mr. Ward that the legs were "too heavy' " and that Mr. Ward needed to get a crane. She did not hear claimant tell Mr. Ward or anyone else that he was hurt. Claimant never told her he was injured at work. She could not say that Mr. Ward, Mr. Stevens, or "Teapot" knew that claimant's back was hurting.

Ms. John testified that Pala held daily toolbox/safety meetings and at no time did claimant complain about being hurt during any of the meetings. Claimant only complained about needing a crane to pull the legs; he did not complain about "pain or anything." Pala required all employees to sign out at the end of day stating that they did not have an accident. Ms. John stated that she took photographs of some of the work performed on Tank 308, despite being against the plant's policy, which she subsequently gave to claimant after he left Pala.

Shane O'Brien testified in his deposition that he was employed by Pala in November 2016 as a welder and worked with claimant on Tank 308 pulling legs and drilling holes. He testified that they pulled legs for two days and he worked with "Gary, Ray, Gus, and Reggie, and Donna was a fire watch." The legs weighed about 75 pounds. The pontoon legs were pulled with a crane while the deck legs were pulled with a leg puller. He testified that they "left the older guys with the crane because it's easier" and he went with Tyler and Gary to pull legs with the leg puller. Claimant stayed with the pontoons. Mr. O'Brien testified that he, Tyler, and Gary tried to pull one leg up manually, with claimant wiping oil off the bottom of the leg, but they could not get the leg up so they set it back down. After that the crane arrived, they started pulling the pontoon legs and the leg puller arrived shortly thereafter. Claimant did not have any physical problems prior to or after working on this tank and he did not complain to anyone about his back hurting. If someone gets injured, the procedure is to report it to the foreman. Pala held daily morning meetings where they discussed safety and daily tasks. Mr. O'Brien testified that claimant called him "at least a month after" the job asking him if he had any video of the crew working on the tank and informed him at that time that he hurt his back pulling legs.

In his deposition, Gary Schroeder testified that he was a welder at Pala in 2009 and in 2016. When he first came back in 2016, he did not notice any physical impairment with claimant prior to working on Tank 308. However, he testified that in September 2016, before this alleged accident, claimant complained about his "butt cheek.... He said he had a nerve or something ... something about sciatic." Mr. Schroeder testified that on Tank 308 they used the crane for the pontoon legs and then he, Tyler and Shane used the leg puller on the inside deck legs. Claimant, "Gus, and Ray Bird" were using the crane while Ms. John was the "hole watcher." Claimant helped wipe the oil off the end of the legs pulled by the leg puller when he finished with the crane. He does not remember trying to pull a leg up by hand. Claimant never told him that he hurt his back pulling legs.

Gus Wehmeyer testified that he worked with claimant on Tank 308 in November 2016, for approximately a week. Mr. Wehmeyer testified that some of the deck legs were pulled with the crane and some were pulled with an "A-frame" (leg puller). While some of the legs were being pulled with the leg puller, some of the crew pulled legs manually to try to "speed the job along to where we could hurry up and get out of there." He testified they pulled several legs up by hand and claimant helped. The legs weighed between 100 and 150 pounds.

Mr. Wehmeyer testified that claimant mentioned that his back was hurting "at one time." However, claimant did not specifically tell him that he hurt his back on the job. He did not hear claimant tell anyone else that he had an accident or hurt his back manually pulling legs. He did not remember if claimant took Ibuprofen, or claimant having any problems before working on this tank. Mr. Wehmeyer testified that after claimant left Pala, claimant called and told him that "he had something working against Pala." Claimant said he "hurt his back and wanted to make it look like he got hurt on-the-job." Claimant told him that if he testified against Pala, he would "make it worth your wild [sic ]." He testified that he "did not take it seriously." Mr. Wehmeyer testified that the handwriting in the affidavit is not his, but he read the affidavit and signed it. If an accident occurred, the employees were to inform the "nearest supervisor," who would inform Mr. Ward, and Mr. Ward would inform Mr. Corbett, the safety person. Pala also had toolbox/safety meetings every day and if an individual was hurt they had the opportunity to report it at the meeting. He could not remember if they signed anything at the end of the day stating that there were no accidents or injuries.

At trial, David Leet, a welder at Pala, testified that he worked with claimant on Tank 72. On Tank 72, they were working on a scaffold, going up and down the ladder multiple times, and they had to pull up and down their equipment for the job. He testified that the equipment they pulled up in buckets multiple times a day weighed 25-30 pounds. He testified that they also worked inside the tank, stating, "We had about a 20-inch manway you had to crawl through to get up on the roof." They worked inside the pontoons and would "crawl in and out that darn hole a bunch of times through the day, just go in there and weld. It's a pretty tight area to be working in." He testified that if your back was hurt you would not be able to crawl through a pontoon. Claimant never told him that he hurt his back on the job and he never observed anything indicating that claimant had a back injury. He worked approximately two weeks with claimant on Tank 72, claimant performed his job without any problems, and claimant never complained about his back. As for Pala's accident reporting procedure, Mr. Leet testified that employees are supposed to report accidents or injuries immediately. Additionally, Pala requires the employees to sign in on a "JSA" form in the evening, and if injured, you are not supposed to sign the document.

Jeremy Guidry, the corporate risk manager at Pala, testified that a PTSA form is filled out on a task basis and if there are any changes, it is updated. In the morning everyone signs in on the PTSA, which essentially states that the individual acknowledges they are aware of the hazards. At the end of the day, individuals sign out, stating that they were not involved in an accident or injured. If an individual is injured they are not supposed to sign out on the PTSA. The individual would get with the foreman who was responsible for documenting the accident or injury. The foreman is the last person to sign out on the document after he validates that all employees were "okay" and there were no accidents. Pala has a toolbox meeting everyday where the PTSA is completed and safety is discussed with the employees. Mr. Guidry testified that he was informed by human resources that claimant was out for a non-work related injury. Mr. Guidry testified that he met with Mr. Wehmeyer and the statements made by Mr. Wehmeyer in his affidavit accurately portrayed his conversation with Mr. Wehmeyer. Mr. Wehmeyer relayed the same information to him two different times, once after claimant filed his claim and once with Pala's counsel. When asked why the November 11, 2016 PTSA form was missing, Mr. Guidry testified that he could not answer that without going back and verifying some facts, but he said that Pala does not "work when it rains so we've got rain outs."

LAW AND ANALYSIS

In this case, the workers' compensation court had to determine whether (1) there was any other evidence presented that either discredited or cast serious doubt on the claimant's account of the alleged work-related accident; and (2) whether other evidence existed that corroborated claimant's account. Based on a review of the record, we find that the workers' compensation court was not manifestly erroneous or clearly wrong in finding that claimant did not prove he sustained a work-related accident or injury. As discussed above, a claimant can meet his burden of proving a work-related accident by his own uncontradicted testimony "absent circumstances casting suspicion on the reliability of his testimony." Ricks v. Odyssey Health Care, 10-1099 (La. App. 5 Cir. 10/25/11), 77 So.3d 386, 388. The record shows several inconsistencies in and contradictions of claimant's testimony as to cast suspicion on the reliability of his testimony. Specifically, testimony of claimant's supervisors and co-workers and some other evidence do not corroborate claimant's contention that he sustained a work-related accident. Thus, we cannot say the workers' compensation court was manifestly erroneous in finding claimant did not carry his burden of proving his injury resulted from a work-related accident.

Because we find that claimant did not maintain his burden of proving a work-related accident, we pretermit the issue of whether claimant sustained a work-related injury.

DECREE

For the reasons stated above, we affirm the workers' compensation court's September 10, 2018 judgment.

AFFIRMED

      Pre-test Safety Analysis

      Specifically, claimant asserted the following assignments of error: (1) "The trial court erred in its finding that Claimant failed to prove an injury as a result of a work accident;" (2) "The trial court erred in making a finding that Claimant failed to sustain his burden of proof to establish he sustained an on-the job accident or injury;" (3) "The trial court erred in, when judging credibility, the court failed to consider the false testimony of Employer's witness concerning the report of a work accident and giving inappropriate weight to Claimant's felony conviction;" (4) "The trial court erred in failing to give great weight to undisputed medical testimony that corroborates Claimant's testimony as to sustaining an injury in a work accident;" (5) "The trial court erred in failing to consider and give any weight to facts deemed admitted by law."

      At trial, claimant testified that the accident occurred on November 10, 2016. In his prior deposition testimony, claimant testified that the accident occurred on November 9, 2016. The PTSAs show that on November 9 and 10, 2016, claimant was working on Tank 72 not Tank 308. There is no PTSA for November 11, 2016. The PTSA for November 12 and 13, 2016, indicate that claimant worked on Tank 308 pulling legs and on November 14, 2016, claimant worked on Tank 308 drilling holes in the legs that were previously pulled. On November 15, 2016, claimant started working on Tank 72. It is not until November 22, 2016, that claimant helped re-install the legs on Tank 308. Thus, according to the PTSA, the work on Tank 308 took four days. There is no indication in the record that claimant worked on Tank 308 on November 11, 2016, the day the PTSA is missing.

      However, in his deposition, he testified that he hurt his back two different times, once pulling a leg up by hand and once carrying the leg by himself to the rack and in his disputed claim he stated that he hurt his back carrying a leg to the rack.

      However, in his deposition, claimant testified that the legs each weighed 105-110 pounds.

      Claimant testified that he received the prescription strength Advil from Donna John.

      The medical records show that on November 27, 2016, claimant presented to the hospital with a chief complaint of leg pain and was diagnosed with left-sided sciatica. The only notation in the record indicating a work-related injury states "left leg went to sleep and now with shooting pain, after a welding accident." However, as claimant testified, his alleged injury was not sustained in a "welding" accident; rather it was alleged claimant was injured from pulling pontoon legs by hand. The medical records for November 29, 2016, show that claimant appeared at the hospital for a follow up with primary diagnosis of "left sided sciatica." The records indicate that claimant "had some back pain but does not have back pain at the present time, however, he has numbness of the left foot, pain in the left buttock from time to time, he has to do a lot of climbing at work, up to a tower where he is in a confined space where he had to do welding work. The back pain has been going on for about 2 weeks, he had never had back pain prior to our visit today."

      According to trial testimony, JSA and PTSA forms are essentially the same, although different terminology is used by the employees at various plants.

      Claimant argues that the trial court abused its discretion in not finding claimant's requests for admissions to be deemed admitted due to Pala's untimely response. Louisiana courts have allowed late-filed denials to requests for admissions to constitute requests for withdrawal of those admissions, even if the responses were provided extremely late and were not presented to the court by a motion to withdraw or amend the admissions. We find the trial court did not abuse its discretion in not finding the requests for admissions to be deemed admitted. Claimant admits that Pala filed a response, albeit untimely, and a review of the record reveals that in response to the claimant's disputed claim, Pala filed a denial of the allegations and continually defended against the allegations sought to be admitted by claimant's requests for admissions.


author: MOLAISON, J.

text:
    Zozette Marie REED Wife of/and Bryan Adam Reed v. Kathy MITCHELL Wife of/and Mark Mitchell
    NO. 19-CA-5
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, ZOZETTE MARIE REED WIFE OF/AND BRYAN ADAM REED, Somer G. Brown, Lake Charles
    COUNSEL FOR DEFENDANT/APPELLEE, KATHY MITCHELL WIFE OF/AND MARK MITCHELL, Scott M. Galante, Salvador I. Bivalacqua, Kenner, Lauren B. Griffin
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

In this civil action for rescission, breach of warranty and fraud, appellants, who purchased a home from the appellees, appeal a judgment finding in favor of appellees following a trial on the merits, as well as a subsequent award of costs to appellees. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On August 13, 2015, appellants, Zozette and Bryan Adam Reed ("the Reeds"), filed a petition alleging breach of warranty and fraud by appellees, Kathy and Mark Mitchell ("the Mitchells"), related to the sale of the Mitchells' home to the Reeds. An amended petition was filed on April 22, 2016. A judge trial on the merits of this matter was held on May 8, 2018. On that same date, the court ruled in favor of appellees and dismissed appellants' claims with prejudice. On July 31, 2018, the court awarded appellees $11,500 for reimbursement of costs. Appellants thereafter sought the instant suspensive appeal, which was granted on August 27, 2018.

FACTS

The record shows that, on or about January 10, 2015, the Reeds contacted the Mitchells for the purpose of inquiring about the Mitchells' home, located at 1009 Moss Lane, which was for sale by owner in the River Ridge area of Jefferson Parish. The Reeds subsequently made a verbal offer to purchase the Mitchells' home, and the parties entered into a written purchase agreement on January 11, 2015. Within the inspection period that followed, the Reeds sought information from the Mitchells regarding whether the home had a history of flooding. In particular, the Reeds were concerned about one feature of the home, a sunken den which was constructed below grade, and whether that part of the home was prone to flooding as well.

Mrs. Reed testified that during the first visit to the home, the Mitchells told her and her husband that "exterior waterproofing" had been done because of "little spots of water" that had appeared on the floor of the sunken den in the past. The Reeds received a verbal disclosure from the Mitchells prior to the sale, but did not obtain a copy of the written disclosure until after the sale. The information provided verbally and in writing was consistent: the home had flooded in 1995, and there had also been foundation repair/exterior waterproofing done. The Reeds had an independent inspection done on the home as well, but the inspection did not reveal that water had entered into the sunken den.

The act of sale took place on February 26, 2015. Mrs. Reed testified that flooding issues began in April of 2015, when the den flooded after a heavy rainstorm. In trying to determine a cause of the flooding, the Reeds looked through a folder of information on the home that Mrs. Mitchell had given them, and they located a 2011 document from Dixie Waterproofing regarding interior work to the den that they were previously unaware of. After the flooding, it was discovered that the outlets in the den were rusted, indicating that water had entered through the outlets at some point in the past.

After making a claim on their flood insurance, the Reeds' policy was canceled a week later when FEMA sent the insurer notice of prior losses on the property. The new insurance premium was $1,300 more than the Reeds had been paying. Along with the cancelation notice, the Reeds received a copy of the home's flood history and learned that there had been five flood claims paid on the house. The Mitchells had only told them about the 1995 flood, which occurred after the Mitchells originally purchased the home.

Mrs. Reed thereafter went to Jefferson Parish's Repetitive Loss Office and filed a public records request to learn the full history of water intrusion at the house. From that request, the Reeds learned about concrete that had been poured on the property and that the Mitchells had applied for an elevation grant to lift the home. To that point, the Reeds had not been told that concrete was poured on the slab in 2000 in an attempt to stop water intrusion, and they had not been told about an application for a FEMA grant.

A second flooding event occurred in October of 2015, when water came through the electrical outlets into the den. On July 22, 2016, the den flooded for the third time. The Reeds insurance claim for the 2016 flood was denied. On August 5, 2017, following a large storm, the den flooded a fourth time. Damages from the 2017 flood were covered by FEMA.

The Reeds put the house on the market in spring of 2017. In the disclosure for the house, the Reeds incorporated the entire flooding history they had learned.

By the time of trial, the Reeds had hired approximately 10 contractors and engineers to try to solve the flooding issue. Estimates to stop the flooding ranged as high as $200,000. Mrs. Reed testified that she would not have purchased the house if she had known all of the information that she had learned after purchasing the house. Mrs. Reed indicated that she wanted the Mitchells to take the house back.

On cross examination, Mrs. Reed reviewed the property disclosure and admitted that the house was sold to them without a warranty from the Mitchells. Mrs. Reed stated that water intrusion in the sunken den was discussed with the Mitchells from her very first visit to the home. The Reeds were not prohibited or limited in any way by the Mitchells from having the home inspected prior to the sale. The Reeds' home inspection report, which was received prior to the sale, indicated that the home had subsurface drains and a sump-pump, as well as a water proofing membrane.

Bryan Reed testified that initially he was not verbally advised by the Mitchells about water intrusion issues. He stated that after receiving the home inspection report, he asked the Mitchells about the waterproofing membrane referenced in the report, at which time they told him about the exterior work that was done in 2011. Mr. Reed contended that the Mitchells described the water intrusion in the sunken den as a minimal amount that could be cleaned up with a towel. Over the course of several conversations, the Mitchells told Mr. Reed that the exterior waterproofing by Dixie Walls had stopped water intrusion in the den. Mr. Reed said that the Mitchells did not tell him about a terra cotta pipe under the house, floods that had occurred prior to Mitchells' ownership, their 2009 or 2011 water intrusion claims, 1998 waterproofing work, work in 2000 to add to the concrete slab in the sunken den, 2012 interior waterproofing by Mr. Charbonnet, or about their application for a 2012 FEMA grant to elevate the house.

Kathy Mitchell testified that she and her husband decided to put their house up for sale by owner. Shortly after listing the home online she was contacted by Zozette Reed to set up an appointment to view it, and the Reeds eventually made a total of four visits before the sale. Mrs. Mitchell stated that everything she told the Reeds verbally about water issues in the house was ultimately put into the written disclosure. This specifically included the 1995 flood as well as water intrusion in the sunken den. Mrs. Mitchell recalled that her husband gave Mr. Reed the FEMA document, as well as information about the 2009 and 2011 claims made for water intrusion. She personally told the Reeds about the steps that were taken to address the water intrusion issues in the den, and testified that she believed the water intrusion problem was resolved in 2012 after Peter Charbonnet installed an exterior waterproof membrane around the home. She stated that she had never seen water come through the electrical outlets as the Reeds had described. With respect to the FEMA grant to have the house raised, Mrs. Mitchell stated that she made the application because the program was available for anyone to use and many people were taking advantage of the opportunity. Mrs. Mitchell admitted that she did not provide information to the Reeds about flooding that occurred prior to the time that the Mitchells owned the house.

Upon being recalled as a witness by the defense, Mrs. Mitchell clarified that she was never a real estate agent at the firm where she worked, but was only a receptionist who also sent out marketing materials. She emphasized that she told the Reeds about the flood of 1995, as well as the small water intrusions in the den, which the Mitchells hired Dixie to repair. Mrs. Mitchell showed the Reeds the document from Dixie that documented the repairs. Finally, Mrs. Mitchell denied that she and her husband pressured the Reeds into buying the house.

Mark Mitchell testified that he bought house in question in 1993. In 1996, he first noticed that puddles of water would form in the sunken den. He recalled that a very large puddle formed in the den in 1998. Mr. Mitchell described the water intrusion in the den as occasional and minimal, and said that was what he generally told the Reeds about the issue. Mr. Mitchell told the Reeds about the "drill" he had in place to move furniture from the den if water was present, and he showed the Reeds were they could put their own furniture up, if necessary. He stated that he had never seen water come in through the sockets, as the Reeds had experienced. The Mitchells' home insurance provider never paid a claim for water intrusion in the den because there was not enough water in either instance to be considered a flood.

With respect to the work that was done to stop water intrusion in the sunken den, Mr. Mitchell testified that, in 2000, he had a contractor pour one or two inches of concrete over the slab, and it looked terrible. Mr. Mitchell stated that he told Mr. Reed about Pete Charbonnet before the closing and gave him Charbonnet's name and number. He recalled that after Charbonnet came out for the second round of work, there was no more water intrusion in the den. Mr. Mitchell testified that after the inspection report, he again talked to the Reeds about water intrusion. He told Mr. Reed that he cleaned the back yard drains every time it rained. He also showed Mr. Reed a copy of his flood insurance bill before the sale. Mr. Mitchell stated that he had no personal knowledge of the home's flood history that may have occurred before he lived there.

The Mitchells tried to get a FEMA grant to raise the house in 2010. At that time the couple worked with Orleans Shoring, who put the application package together. Finalization of grant application was accomplished five or six months after work on the waterproofing was completed by Charbonnet, but the process began two years prior to Charbonnet beginning work. Mr. Mitchell testified that he believed that the house was waterproofed at the time he sold it to the Reeds. There was no water intrusion in the den from 2012 until he sold the house. Mr. Mitchell stated that he was not educated on the products that Charbonnet used to waterproof the house. Prior to the instant litigation, he had no knowledge of a terra cotta pipe under the home, but Charbonnet told Mr. Mitchell to call Jefferson Parish to have the pipe inspected. The Parish told him that the entire house would have to be dug up to look at the pipe, and so he passed on doing it at that time.

On cross examination, Mr. Mitchell testified that he did not tell the Reeds about the floods he had relayed to FEMA in connection with the grant application, which occurred before he purchased the home. He stated that he had not told the Reeds about the work that Southeast Distributors did in 1998 to waterproof the outlets in the den, or the work in 2000 to pour concrete on top of the existing slab. Mr. Mitchell did not tell the Reeds about the 2009 or 2011 insurance claims for small water intrusions. He did not intend to defraud the Reeds in selling them the house.

Peter Charbonnet testified that he owns a stucco and waterproofing company. He knew the Mitchells prior to being hired by them to waterproof their sunken den in September of 2011. Initially, he waterproofed the exterior of the living room. After that, he returned months later to address a small amount of water that was still getting into the house, by installing a membrane on the inside of the den. For three years, the Mitchells had no more water intrusion problems. Charbonnet stated that the Mitchells had never experienced water coming through the receptacles in the den in the same way that the Reeds had. Charbonnet noted that the Mitchells had consistently maintained the exterior drains around the home.

In 2015, Charbonnet received a phone call from Mr. Reed about water intrusion in the den coming through the receptacles. He recalled that he had found a terra cotta pipe the first time he dug in the yard, but he did not conclude at that time that the terra cotta pipe was causing water intrusion in the house.

ASSIGNMENTS OF ERROR

On appeal, appellants allege four assignments of error:

1. The Trial Court committed legal error in applying the incorrect burden of proof to Plaintiffs' claim for fraud.
2. The Trial Court committed legal error in applying the incorrect burden of proof to Plaintiffs' claim for redhibition.
3. The Trial Court committed clear manifest error if it made any credibility determinations in favor of Defendants.
4. The Trial Court's assessment of costs was erroneous based on its other errors.

LAW AND ANALYSIS

The central issue of the matter before us is whether disclosures that the Mitchells made to the Reeds prior to the sale of the home, with respect to the potential for water intrusion in the sunken den area, amounted to fraud sufficient to vitiate the contract between the parties.

A seller warrants the buyer against redhibitory defects in the thing sold. La. C.C. art. 2520. A defect is redhibitory when it either renders the thing useless or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect, or it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. Id.

Though a buyer is entitled to the warranty against redhibitory defects, it can be expressly waived. Newton v. Dongieux , 13-776 (La. App. 5 Cir. 6/24/14), 145 So.3d 478, 485. If a valid waiver exists, then a buyer can only obtain relief if he can show fraud in the inducement of the contract. Id. , citing Shelton v. Standard/700 Associates , 01-587 (La. 10/16/01), 798 So.2d 60, 64. "A warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the civil code, upon the buyer." Id.

A contract is formed by the consent of the parties. La. C.C. art. 1927. Nonetheless, consent may be vitiated by fraud. La. C.C. art. 1948. "Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." La. C.C. art. 1953. "Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill." La. C.C. art. 1954.

There are three elements for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by the fraudulent act must relate to a circumstance substantially influencing the victim's consent to the contract. Newton, supra .

Fraud need only be proven by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art.1957;

Shelton v. Standard/700 Associates , 01-0587 (La. 10/16/01), 798 So.2d 60, 64. Circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed. See Sun Drilling Products Corp. v. Rayborn , 00-1884 (La. App. 4 Cir. 10/3/01), 798 So.2d 1141, 1153, writ denied , 01-2939 (La. 1/25/02), 807 So.2d 840 ; Comment (b), La. C.C. art.1957.

In the instant case, the home was sold with a waiver of redhibition. The parties were consistent in their trial testimony that the issue of water intrusion in the sunken den was disclosed by the Mitchells prior to the sale of the home, although the accounts about the timing and detail of the disclosure varies by witness. It was also established at trial that the Mitchells actively took steps to eliminate water intrusion in the den during the time the family lived in the home. Testimony by the Mitchells and Charbonnet demonstrated that the issue of water intrusion in the den was resolved in 2012.

We find that any shortcoming(s) in the Disclosure Form ("the form") were of very limited significance. First, the form's obligations, rights, and remedies apply only to the purchase agreement or to any other written agreement executed prior to the act of sale, but not to the act of sale itself. This is specified in the definitions section of La. R.S. 9:3196(4), and is the clear and logical intent throughout the Chapter 7. Secondly, all rights, obligations, and remedies provided by La. R.S. 9:3198 expired 72 hours after the form was provided to the Reeds (albeit late) as per La. R.S. 9:3198 B(3)(a), and even then the remedy provided would have been modification or cancellation of the purchase agreement, but not the sale. Further, the rights, obligations, and remedies of Chapter 7 were waived and terminated at act of sale ("transfer of title") or upon occupation of the house, as provided by La. R.S. 9:3198 B(3)(b). Lastly, a sale cannot be invalidated due to the failure of a seller to comply with the requirements of Chapter 7, as provided by La. R.S. 9:3198 B(3)(c). Thus, with the waiver of redhibition, the Reeds' only remedy was proving fraud, a difficult burden.

We recognize that the intended evidentiary significance of the form is, in part, that the form did not reveal all previous water events, and Mrs. Mitchell stated that she thought everything that she had told the Reeds verbally was included on the form. However, Mr. Mitchell's testimony indicates that he verbally told the Mitchells more than was written in the form.

In Rogers v. Malbrough , 14-402 (La. App. 5 Cir. 1/28/15), 167 So.3d 868, we considered a similar issue. In that case, the seller of a home had an incident of water intrusion in the garage which he thought was resolved after a roof replacement years prior to the sale of the home. Unlike the appellees in the instant case, the seller in that case did not disclose the leak at all to the sellers. On appeal, we found no error on the part of the trial court in finding the seller's testimony to be credible. We further found no error in the trial court's determination that the seller did not commit fraud against the buyers concerning the water leakage problems with the home, where the record did not reasonably support a finding that the seller intended to obtain an unjust advantage or cause damage or inconvenience to the buyers. Id. at 872-74.

The Reeds also make a more general allegation that the Mitchells concealed from them the complete history of flooding that occurred in the home. It is not disputed that the Mitchells advised the Reeds of the only incident when the entire home flooded in 1995 after the Mitchells had purchased the property. While incidents of water intrusion did occur while the Mitchells lived in the home, these were not classified as "floods" by the home's insurer. And, as discussed above, the water intrusion in the den was believed to have been stopped completely in 2012. Kathy Mitchell testified that she did not have information about prior floods from the previous owners, but that her husband had given the Reeds "documentation from FEMA" that included the denial of the Mitchells' 2009 and 2011 claims for water intrusion. Mark Mitchell testified that on approximately the third visit with the Reeds, they had questions about the cost of flood insurance, at which time Mr. Mitchell showed the Reeds a copy of flood insurance documents that included a page referred to as a "Claims Record." Mr. Mitchell stated that he had no personal knowledge of the floods referred to in the claims record that occurred before he purchased the home. However, Mr. Mitchell was advised by Orleans Shoring that he needed to use information from the claims record to complete the grant application to have the home raised, which he did. Even assuming that the Mitchells made no disclosure to the Reeds about the home's history of flooding prior to the Mitchells' purchase, the record indicates that the Reeds were well aware that the home was in a flood zone that required flood insurance to be in place. Further, as evidenced by Mrs. Reed's act of obtaining from the Jefferson Parish Repetitive Loss Office a record of every flood that had occurred at the home from the time it had been built, including those events that took place prior to the Mitchells' purchase of the home, we cannot say that this information was not otherwise readily available unless the Reeds experienced difficulty or inconvenience, or utilized some special skill, as anticipated by La. C.C. art. 1954.

In its March 8, 2018 judgment, the trial court ruled that after considering the law and evidence, the Reeds had not met their burden of proof on their redhibition or fraud claims. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings, for only the fact-finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Schmuck v. Menees , 13-557 (La. App. 5 Cir. 12/12/13), 131 So.3d 277, 280. Thus, given the trial court's broad discretion as the fact-finder, upon review we find no error in the trial court's determination that the Mitchells did not commit fraud against the Reeds concerning the water leakage problems with the home encountered by the Reeds. The record does not reasonably support a finding that the Mitchells intended to obtain an unjust advantage or cause damage or inconvenience to the Reeds.

Accordingly, we also find no error in the trial court's subsequent award of costs to the Mitchells.

DECREE

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

CHAISSON, J., DISSENTS WITH REASONS

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1953.

The Mitchells claim that they disclosed the issue of "water intrusion" into the home prior to the sale. However, in the Property Disclosure Form, the Mitchells only disclosed a single flood event in 1995, which was a well-known flood event that affected many homes throughout the New Orleans area. The form also described repairs to the den to prevent "occasional minimal water intrusion." Although the Mitchells provided the backdated Property Disclosure Form to the Reeds a few months after the date of the sale, Mrs. Mitchell testified that they put everything in the Property Disclosure Form that they verbally told the Reeds about water issues in the home.

Clearly, the Property Disclosure Form, which by Mrs. Mitchell's admission is the same information verbally related to the Reeds, misrepresents the well-documented, decades-long history of water intrusion that occurred in the home. The evidence in the record indicates that the "water intrusion" was neither occasional nor minimal: the home flooded regularly between 1979 and 2009 and caused extensive damage to the property necessitating very costly repairs. The Mitchells' own witnesses testified that there were regular "drills" to move furniture during heavy rains. This testimony belies the assertion that the water intrusion was occasional and minimal. Additionally, the advertisement for the home omits any reference to water intrusion and describes the home as 'move-in' ready.

The Mitchells also maintained that by April of 2012 they had repaired the defects that allowed water intrusion into the home and that they therefore had no duty to disclose those defects. However, in November of 2012, the Mitchells applied for a FEMA grant to have the home elevated. In the FEMA application, they documented an extensive history of flooding and water intrusion in the home going back to 1978, and they submitted the application knowing that they would be responsible for paying 10% of the $245,000 cost to elevate the home. It is simply not credible to believe that in addition to the many thousands of dollars they had already spent on the issue of water intrusion, the Mitchells were willing to spend an additional $24,500 to elevate the home if they believed they had rectified the problem and there was no future risk of water intrusion.

The Mitchells were clearly aware of a long history of flooding and water intrusion particular to their home. They were obligated to disclose this information to the Reeds. The Mitchells cannot escape this obligation merely by providing unsubstantiated, self-serving testimony that they believed these issues were resolved. In order for the trial court to find that the Mitchells fulfilled their obligation of disclosure, it would necessarily have to find the Mitchells' testimony credible. The Mitchells' testimony was so internally contradictory and inconsistent with the documentary evidence that, in my opinion, the trial court was manifestly erroneous in accepting their testimony.

Accordingly, I would reverse the judgment of the trial court, render judgment, in favor of the Reeds, finding that there was fraud in the inducement for the purchase of the home, and remand the matter to the trial court to determine the appropriate measure of damages in light of the fact that the Reeds have now sold the home.

      Mrs. Reed indicated that she and her husband received the written disclosures after the closing in February, but Mrs. Mitchell asked the Reeds to back date the document to January. The Reeds complied with this request.

      New information from the Mitchells' FEMA application included a report of a 1983 flood, which happened before the Mitchells owned the home.

      Jessica Jones, the Mitchells' daughter, testified that she grew up in the home and recalled the May flood in 1993 and a 1998 water intrusion with a small amount of water. She also recalled a furniture "drill" that happened during a heavy rain. She did not see water in the house after 2012. Jones testified that she was there when the Reeds came to look at the house and she saw her mother go over a file with them. She stated that her parents had a backup offer on the home at the time it was up for sale.

      Michael Bergeron testified that he was a neighbor of the Mitchells, who helped them to move furniture from the sunken den during a heavy rainstorm prior to 2012. Bergeron did not help to move furniture again after 2012, nor did he ever see another incident of water intrusion in the home, although he was a guest there on a regular basis.

      Rick Maraist is an insurance agent who wrote the Mitchells' flood policy in 2009. He testified that in 2009, he looked into a water intrusion at the Mitchells' home, but the event did not qualify as a flood, and the adjuster did not classify it as a flood.

      The Property Disclosure Form asks "[h]as any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the land?" and "[h]as the structure on the property ever taken water by flooding?"