author:
JjSCOFIELD, Judge.
     hAMY, J.,

text:
    Hubert VERSTICHELE v. Richard A. MARRINER.
    No. 2004-354.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      John H. Clegg, Benjamin Owen Schupp, New Orleans, LA, for Plaintiff-Appellant, Hubert Verstichele.
    James Buckner Doyle, Lake Charles, LA, for Defendant-Appellee, Richard A. Marriner.
    Rick Charles Normand, Lake Charles, LA, for Defendant-Appellee, Richard A. Marriner.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD, Judges.
   JjSCOFIELD, Judge.

Plaintiff-Appellant, Hubert Verstichele, is a resident of Belgium and appeals the trial court’s granting of Defendant’s Exception of No Right of Action. Verstichele had obtained a Judgment against Richard A. Marriner, a resident of Calcasieu Parish, Louisiana, in a Belgian court. Marri-ner’s Exception of No Right of Action was granted by the trial court on the basis that the Belgian court had lacked personal jurisdiction over Marriner. For the reasons set forth hereinafter, we affirm.

TRIAL COURT PROCEEDINGS

Verstichele filed an Ex Parte Petition in the Fourteenth Judicial District Court seeking recognition of a Judgment rendered on June 28, 2000, by the court of the First Instance in Gent, Belgium. Marri-ner, a resident of Calcasieu Parish, filed several exceptions to the petition alleging lack of subject matter jurisdiction, unauthorized use of summary proceedings, improper service and no right of action. The exception of no right of action is based on the Belgian court’s lack of in personam jurisdiction and subject matter jurisdiction.

An evidentiary hearing was held on November 19, 2003, resulting in the trial court denying all of Marriner’s exceptions except the exception of no right of action, the trial court finding that the Belgian court lacked personal jurisdiction over Marriner. A formal judgment dismissing Verstichele’s lawsuit was signed by the trial court on December 8, 2003. An Order of Devolutive Appeal was granted to Verstichele on January 5, 2004.

| .THE FACTS

Where a party seeks recognition by a Louisiana court of a foreign judgment, the Louisiana court is limited in its ability to consider facts, especially those pertaining to the merits of the underlying case. However, we will recite facts which arguably bear on the merits, because for the most part, they are undisputed and their recitation will assist in placing this matter into proper context. Moreover, where personal jurisdiction is being challenged, facts pertaining to that issue may be considered by our courts.

Marriner is a Lake Charles businessman, having for many years been the owner of the Budweiser beer distributorship serving Southwest Louisiana. At some time prior to December of 1981, more than likely in the late 1970’s, Marriner was involved in a venture promoting the sale of real estate in the state of Vermont. Through a mutual friend, Marriner became acquainted with one Onno Kamer-ling, a businessman from Holland. It seems that Marriner and Kamerling eventually reached a verbal understanding that Kamerling would promote the sale of the Vermont property to residents of Holland, although Kamerling was given no limitations on the place of residence of those whom he was to promote. According to Marriner, Kamerling thereafter brought several groups of Dutch citizens to the United States to inspect the Vermont property.

At some point during the course of Marriner’s relationship with Kamerling, they decided that Marriner would give Kamerling four blank, undated checks signed by Marriner. The checks were drawn on an account of Marriner’s at the Chase Manhattan Bank in New York. Marriner testified that he gave these checks to Kamerling to provide Kamerling with “credibility” in promoting the Vermont real Restate venture. According to Marriner, the only understanding that he and Kamerling had regarding the actual use of the checks was that Kamerling would obtain Marriner’s approval before negotiating a check. Marriner testified that there was no written document memorializing their agreement.

In December of 1981, Marriner closed the Chase Manhattan Bank account upon which the checks had been drawn. His relationship with Kamerling had ended prior to the closure of the bank account.

The record in this case contains some of the pleadings and documents filed in or generated by the Belgian court proceedings. As best that can be determined from these, Kamerling had borrowed a substantial sum of money from Verstichele in 1991. In 1993, Kamerling and Versti-chele signed an agreement whereby, as security for the loan, Kamerling transferred to Verstichele one of the Marriner checks, that check having been filled out payable to Kamerling in the sum of 435,-000.00 Dutch florins. This check is undated but the copy of it in the record indicates that an attempt to negotiate it occurred in February of 1995. The bank refused payment because the account had been closed years before.

Verstichele sued both Kamerling and Marriner in the Belgian court, the claim against Marriner being based on the “security” given Verstichele by Kamerling in the form of the Marriner check. Inexplicably, the Belgian proceedings took several years to finalize, the final judgment having been rendered on June 28, 2000. The record ^contains a document converting the amount of the judgment from Dutch florins into U.S. dollars. The principal amount of the judgment is $210,140.50, together with legal interest thereon from January 4, 1994 to August 31, 1996 at the rate of 8% per annum, and thereafter at the rate of 7% per annum, until paid.

The record also shows that on January 30, 1997, service of process was effected on Marriner by the United States Marshall’s office.

As we have indicated, Marriner was the only person to testify. Other than the Yerstichele petition, the record is bare of any testimony, statement, affidavit, deposition or any other expressions from either Kamerling or Verstichele. It is Marriner’s undisputed testimony that he had only been to Belgium once, that being in 1964 or 1965; that he never has done business in Belgium; that he has never owned an interest in any property or business operating in Belgium; and that whatever relationship he had had with Kamerling, it came to an end at some time prior to December of 1981, when the Chase Manhattan Bank account was closed.

LAW AND DISCUSSION

THE LAW TO BE APPLIED IN DETERMINING JURISDICTION

Neither party has favored this court or the trial court with the law of Belgium setting forth the legal requisites in that country to establish personal jurisdiction. In presenting oral arguments to the Louisiana trial court, counsel for Verstichele conceded that the court could apply the law of Louisiana in determining whether the Belgian Court had personal jurisdiction over Marriner.

Louisiana law provides that where the jurisdictional law of a foreign state may |sbe applicable in determining the jurisdiction of a court in such foreign state, and that law is not presented to the court by a party, the court may presume that the law of Louisiana is applicable.

The law utilized to determine whether the foreign court had jurisdiction is the law of the forum state rendering the original judgment. However, where a party contends that the law of the foreign state applies but does not introduce or demonstrate what the law of that state is with respect to the relevant issued, it is presumed that the law of the foreign state on the questioned point is the same as the existing law of Louisiana.

State v. Konkle, 03-512, p. 5 (La.App. 3 Cir. 11/12/03), 865 So.2d 808, 813, writ denied, 04-3415 (La.2/20/04), 866 So.2d 818,, citing Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir.1979). Accordingly, we will apply Louisiana law in determining whether the Belgian court had personal jurisdiction over Marriner.

JURISDICTION AS A DEFENSE

Louisiana law provides as a valid defense to an action to recognize a foreign judgment, the lack of jurisdiction of the foreign court to render such a judgment. A foreign court, therefore, must have had both substantive jurisdiction and personal jurisdiction.

Here, the trial court found that the Belgian court had substantive jurisdiction. That holding by the trial court has not been appealed. Therefore, it is final and will not be considered by this court.

Although Verstichele has appealed the trial court’s finding that the Belgian court lacked in personam jurisdiction of Marriner, Verstichele does not ■ dispute that lack of personal jurisdiction can be a valid defense to making a foreign judgment executory in Louisiana. The law plainly provides that for a foreign judgment to be recognized and made executory in Louisiana, the foreign court rendering such | ¿judgment must have had personal jurisdiction over the judgment debtor. See Konkle, 865 So.2d 808; Schultz v. Doyle, 00-0926 (La.1/17/01), 776 So.2d 1158; Holiday Hospitality Franchising, Inc. v. Grant, 38,103 (La.App. 2 Cir. 1/28/04), 865 So.2d 257, writ denied, 04-0501 (La.4/8/04), 870 So.2d 275.

Although Verstichele does not dispute this principal of law, he contends that one attacking a foreign judgment on the basis of the lack of personal jurisdiction has the burden of proving this and that Marriner has failed to satisfy this burden.

PERSONAL JURISDICTION

There is no evidence that Mar-riner purposefully directed his own activities at residents of Belgium to the extent necessary to subject himself to the jurisdiction of the courts of that country. As stated above, other than visiting Belgium in the year 1964 or 1965, Marriner had made no personal contacts in Belgium which would subject him to the jurisdiction of the courts of that country. Clearly, Marriner’s own activities in Belgium failed to satisfy the minimum contact aspect of the due process clause.

When a state seeks to assert specific jurisdiction over a defendant, the minimum contracts prong of the due process analysis is satisfied ‘if the defendant has purposefully directed his activities at residents of the forum.’ de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 (La.1991) citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). According to the de Reyes decision, this rule ‘ensures that [the defendant] will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person.’ 586 So.2d at 106. However, a non-resident defendant is considered to have minimum contacts with the forum state for purposes of general jurisdiction only if it engages in ‘continuous and systematic activities’ in the forum. Id. at 108. Thus, this court has held that ‘much more substantial contacts with the forum state are required to establish general, as opposed to specific, jurisdiction.’ Bosarge v. Master Mike, Inc., 95-0986, p. 3 (La.App. 4 Cir. 1/31/96), 669 So.2d 510, 512, writ denied, 95-0397 (La.3/22/96), 669 So.2d 1214. In fact, the contacts must be ‘so substantial and of such a nature as to justify suit against it 17on causes of action arising from dealings entirely distinct from those activities.’ International Shoe Co., 326 U.S. at 318, 66 S.Ct. at 159 90 L.Ed. at 95.

Tulane Industrial Laundry, Inc. v. Quality Lube & Oil, Inc., 00-0610, p. 3 (La.App. 4 Cir. 1/24/01), 779 So.2d 99, 101-02. See also A.O. Smith Corp. v. American Alternative Ins. Corp., 00-2485 (La.App. 4 Cir. 12/27/00), 778 So.2d 615, writ denied, 01-0275 (La.3/23/01), 787 So.2d 321.

Indeed, Verstichele does not contest the trial court’s ruling on the basis of Marri-ner’s own personal contacts in Belgium, but rather contends that the jurisdiction over Marriner was established through Marriner’s agent, Kamerling. The focus of Verstichele’s appeal is that Marriner had sufficiently clothed Kamerling with the authority to be Marriner’s agent in Belgium and thereby subjected Marriner to the jurisdiction of the Belgian courts. In essence, Verstichele argues that when Marriner gave Kamerling the signed, blank checks to be used to promote Marri-ner’s interests, Marriner had made Kam-erling his agent. Verstichele adds that Marriner imposed no restrictions on when the checks could be used by Kamerling or where the checks could be used. Versti-chele asserts that by not prohibiting Kam-erling from using the checks in Belgium, Marriner authorized it. As to Marriner’s testimony that Kamerling was instructed not to negotiate a check without first obtaining Marriner’s permission, Verstichele asserts that this restriction was not known to Verstichele and, therefore, was not binding on him.

Beyond Kamerling’s being given the authority to promote land sales in Vermont in the late 1970’s or early 1980’s, there is no proof of any express agency relationship between Marriner and Kamerling. There was no actual authority given Kam-erling to use a check in a Belgian transaction, much less one involving a loan | sin the mid 1990’s from Verstichele to Kamerling. There was no manifestation from Marriner to Kamerling that Kamerling had such authority. Verstichele argues, however, that based on his dealings with Kamerling there was apparent authority for Kamer-ling to bind Marriner.

Verstichele is correct that as a general rule, the party attacking the validity of a foreign judgment on the basis of the lack of jurisdiction, has the burden of proving the absence of such jurisdiction. However, when a party pegs personal jurisdiction on the basis of an apparent agency relationship, the burden of proving such a perceived agency relationship is on the party attempting to bind the principal.

An agency relationship is never presumed; it must be clearly established. Fleet Finance, Inc. v. Loan Arranger, Inc., 604 So.2d 656, 658, (La.App. 1st Cir.1992); Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 564 So.2d at 338. The burden of proving apparent authority is on the party seeking to bind the principal. A third party may not blindly rely on the assertions of an agent, but has a duty to determine, at his peril, whether the agency purportedly granted by the principal permits the proposed act by the agent. Desormeaux v. Lalonde, 578 So.2d 226, 230 (La.App. 3rd Cir.), writs denied, 581 So.2d 705 and 706 (La.1991); Duplessis Cadillac, Inc., v. Creative Credit Services, Inc., 564 So.2d at 339. One must look from the viewpoint of the third party to determine whether an apparent agency has been created. AAA Tire & Export, Inc. v. Big Chief Truck Lines, Inc., 385 So.2d 426, 429 (La.App. 1st Cir.1980). A trial court’s determination as to whether an apparent agency exists will not be reversed in the absence of manifest error. See Boulos v. Morrison, 503 So.2d at 3.

Cartinez v. Reliable Amusement Co., Inc., 99-333, p. 8 (La.App. 3 Cir. 11/3/99), 746 So.2d 246, 251, writ denied, 99-3404 (La.2/4/00), 754 So.2d 235, quoting with favor from Barrilleaux v. Franklin Foundation Hospital, 683 So.2d 348, (La.App. 1 Cir.1996), writ denied, 686 So.2d 864 (La.1/24/97). See also McManus v. Southern United Fire Ins., et al., 00-1456 (La. App. 3 Cir. 3/21/01), 801 So.2d 392.

As already stated, the evidence of the existence of an actual agency relationship | gbetween Kamerling and Marriner in the mid 1990’s is non-existent. For some reason, Kamerling held on to the check in question for many years after his relationship with Marriner had ended. The undisputed evidence is that the connection between Marriner and Kamerling had ended at some time prior to the closing of the bank account in 1981. The property venture in Vermont, the sole purpose for issuance of the checks, had ended prior to 1981 as well. There can be no question that by 1993, when Kamerling agreed to transfer to Verstichele his rights against Marriner, and in 1995 when there was an attempt to negotiate the check in question, Kamerling knew full well he was not acting under any imprimatur from Marriner. Inescapably, one would have to conclude just the opposite, ie., that Kamerling’s actions were a blatant fraud against the interests of Mar-riner.

Nevertheless, in analyzing the possibility of an apparent agency relationship, we must view the issue from the perspective of the person allegedly relying on the agency. Here, that would be Verstichele. In this task, we are not favored with any testimony from Verstichele. His presence has been conspicuously absent in these proceedings. We must examine what evidence is available to us to determine if Verstichele could have legitimately believed that in 1993, or 1995, Kamerling was the Belgian agent of Marriner.

The record reflects the only indicia known to Verstichele of any sort of connection between Kamerling and Marriner, was the check which Kamerling had provided to Verstichele. It is assumed that Kamer-ling verbally explained to Verstichele why Kamerling possessed the check and how Marriner might fit into the picture. But the record is silent on what Kamerling may have told Verstichele. We are left, therefore, with the only evidence of an agency arrangement between Marriner 1 inand Kamerling being the check in question and Kamerling’s possession of it. We find the following factors to be important in determining whether Verstichele fulfilled his duty to find out if there were an apparent agency relationship between Marriner and Kamerling:

• The check in question, payable to “Mr. Kamerling Onno” in the sum of 435,-000.00 Dutch florins, is undated, and there is no evidence of how Verstichele reacted to this potentially troubling oversight.

• There is no evidence that Verstichele made any inquiry to learn why Kamerling possessed this check and how he came into possession of it.

• Verstichele was presented with no written document spelling out any relationship between Kamerling and Marriner.

• There is no evidence that Verstichele attempted to contact Marriner to confirm that Kamerling was legitimately in possession of the check.

• There is no evidence that Verstichele contacted Chase Manhattan Bank to determine if the check could be negotiated. It is quite apparent that Verstichele made no such contact with the bank because if he had, he would have learned that the account upon which the check had been drawn had been closed for more than a decade.

It is plain that Verstichele did absolutely nothing to verify the so-called agency relationship. “A third party may not blindly rely on the assertions of an agent, but has a duty to determine, at his peril, whether the agency purportedly granted by the principal permits the purposed act by the agent.” Cartinez, 746 So.2d at 246. The lack of evidence showing that Verstichele took any initiative to verify the validity of this most unusual use of the' Marriner check might even suggest that Verstichele was |na knowing party to the scam perpetrated by Kamerling. At the very least, it seems obvious that Verstichele chose to “blindly rely on the assertions” of Kamer-ling, whatever those assertions may have been. Marriner’s own admitted imprudence in giving the blank, signed checks to Kamerling is not enough to give license to Kamerling to use the checks at any time in the future and for whatever reason Kam-erling might choose. Marriner may have been negligent, but his actions or inactions fall short of leading Verstichele to the reasonable belief that Kamerling was the agent of Marriner and had sufficient authority to subject Marriner to the jurisdiction of a court in Gent, Belgium.

For these reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant, Verstichele.

AFFIRMED.

AMY, J., concurs and assigns written reasons.

hAMY, J.,

concurring.

I concur in the majority’s determination to affirm the granting of the no right of action. In support of his exception of no right of action, the defendant presented evidence indicating that although the relationship of principal/mandate may have existed at one point, that relationship ceased well before the checks were allegedly provided to the plaintiff. Furthermore, while the parties argue as to whether a mandate/apparent agency relationship existed, there is no indication that the Belgian court found personal jurisdiction present after finding such a relationship. There is no evidence in the record that Mr. Kamer-ling represented himself to the plaintiff to be the mandatary of the defendant or that there was reliance on such a representation. Rather, the Belgian judgment indicates only that the check was provided “as security for payment of the sum of money which the first defendant [Mr. Kamerling] had undertaken to pay.” This finding relates to the actions of Mr. Kamerling, not those of the defendant. Accordingly, I find no merit in the argument that the Belgian court had personal jurisdiction over the defendant due to the presence of a relationship of representation. The record lacks evidence to support such a finding. Accordingly, I agree that the exception of no right of action was appropriately granted.

       John B. Scofield, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Marriner was the only person testifying in these proceedings, having testified live at the hearing as well as having his pre-hearing deposition introduced into evidence.

      . Marriner testified that as some point prior to the closing of the bank account, two of the four checks given Kamerling had been negotiated and cashed. Marriner could not recall when these checks were cashed and for what purpose. He assumes that he must have given Kamerling his prior approval before these checks had been negotiated.

      .Another of the Marriner checks was filled out (presumably by Kamerling) payable to Kamerling dated March 1, 1995, in the sum of 300,000.00 U.S. dollars. However, it does not appear that this check was transferred to Verstichele, nor has its collection been pursued, at least not in the proceedings under consideration here.

      . The record is not clear why legal interest began to run against Marriner from July 4, 1994, given that service was not effected upon him until January 30, 1997. Apparently, the beginning of the running of legal interest was somehow tied to the date when Kamerling transferred to Verstichele any claims Kamer-ling might have had against Marriner.


source: Caselaw Access Project

author: |, SULLIVAN, Judge. | LAUNDERS, Judge,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellant v. Karen D. BROWN, Defendant-Appellee.
    No. 04-184.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Robert Richard Bryant, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appellant, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Leah White, Matt Henrich, Public Defender’s Office, Lake Charles, LA, for DefendanVAppellee, Karen D. Brown.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   |, SULLIVAN, Judge.

On November 6, 2003, Defendant, Karen Brown, pled guilty to issuing worthless checks in the aggregate amount of $1,117.19, a violation of La.R.S. 14:71. Acknowledging a joint sentencing recommendation, the trial court deferred imposition of sentence and placed Defendant on three years supervised probation with numerous special conditions, including that she pay District Attorney fees of $400.00 pursuant to La.R.S. 16H5.

On. November 14, 2003, the State filed a motion to reconsider sentence, arguing that the trial court did not have authority to reduce the District Attorney fees, which, according to the State, should have been set at $810.00, per La.R.S. 16:15. The trial court denied the motion on November 14, 2003, and the State filed this appeal on November 21, 2003.

Assignment of Error

In its sole assignment of error, the State contends that the trial court erred in reducing the District Attorney worthless check collection fees, arguing that the trial court may not alter those fees because they are set by La.R.S. 16:15. In response, Defendant argues that the trial court exercised its sentencing discretion by reducing the fees to a reasonable amount.

At Defendant’s guilty plea and sentencing, the following colloquy occurred regarding the District Attorney fees:

THE COURT: All right. How much [are] the DA’s fees?
LMR. COFFMAN [for the State]: $810. I think that’s set by statute, Judge.
THE COURT: What’s the statute?
MS. WHITE [for Defendant]: The minimums • are set by statute. We always negotiate them and we always argue over DA fees.
THE COURT: Well, I mean, it may be statute how much you can set, it doesn’t mean I have to impose it.
MS. WHITE: That’s right.
THE COURT: The DA’s fees will be $400. ,
MR. COFFMAN: The State objects to that, Judge.

The State contends that the District Attorney fees ordered in the present case were imposed as a special condition of probation, in accordance with La.Code Crim.P. art. 895. The State further claims that the trial court was not authorized to reduce the fees from $810.00 to $400.00 because the District Attorney, not the trial court, is authorized to determine the appropriate fees. According to the State, the fees set forth in La.R.S. 16:15 “operate independently of trial court control,” and that “both the power to collect the fees and the ability to spend the money collected from them rest with the District Attorney, not the trial court.” By reducing those fees, the State argues that the trial court imposed an illegally lenient sentence.

At the time of the present offense, La. R.S. 16:15 (emphasis added) provided in part:

A. A district attorney may collect a fee whenever his office collects and processes a check, draft, or order for the payment of money upon any bank or other depository, if the check, draft, or order for payment of money on any bank or depository:
(1) Has been issued in a manner ivhich makes the issuance an offense under R.S. 14:71; or
(2) Has been forged under R.S. 14:72.
|SB. The district attorney may collect the fee authorized by this Section from any person who is a principal to the offense described in Subsection A of this Section.
C. The amount of the fee shall not exceed:
(1) Ten dollars, if the face amount of the check, draft, or order for the payment of money does not exceed ten dollars.
(2) Twenty dollars, if the face amount of the check, draft, or order for the payment of money is greater than ten dollars but does not exceed one hundred dollars.
(3) Sixty dollars, if the face amount of the check, draft, or order for the payment of money is greater than one hundred dollars but does not exceed three hundred dollars.
(4) One hundred dollars, if the face amount of the check, draft, or order for the payment of money is greater than three hundred dollars but does not exceed five hundred dollars.
(5) One hundred fifty dollars, if the face amount of the check, draft, or order for the payment of money is greater than five hundred dollars.

Under La.Code Crim.P. art 895(A), when placing a defendant on probation, the trial court “may impose any specific conditions reasonably related to his rehabilitation .... ” Although the supreme court has found that the discretion granted the trial court by this provision is “broad enough to include the exaction of a fine as a condition of probation,” the supreme court has also stated that the “discretion is not without its bounds.” State v. Rugon, 355 So.2d 876, 878 (La.1977) and State v. Parker, 423 So.2d 1121, 1124 (La.1982). Under La. Code Crim.P. art. 895.1(B), the trial court may order as a condition of probation that the defendant pay a sum of money to any or all of the agencies or programs listed in subsections (B)(1)-(7). Even though Article 895 seems to grant the trial court authority to impose any payments it deems appropriate, many courts have found error when the trial court orders payment to an | ¿agency or program not specifically mentioned in Article 895.1(B) or not specifically provided for by another statute. For example, in State v. J.T.S., 03-1059 (La.App. 3 Cir. 2/4/04), 865 So.2d 1032, and in State v. Sanderson, 97-1281 (La.App. 3 Cir. 5/13/98), 715 So.2d 483, this court disallowed as conditions of probation that the defendants make payments to the State, respectively, for the costs of transferring witnesses and for the foster care costs of a child born as the result of the criminal offense of carnal knowledge of a juvenile. Other examples include State v. Cutrera, 558 So.2d 611 (La.App. 1 Cir.1990) (payment for costs of investigation disallowed); State v. Linson, 94-0061 (La.App. 1 Cir. 4/7/95), 654 So.2d 440, writ denied, 95-1120 (La.9/22/95), 660 So.2d 470 (payment to a “law clerk fund” vacated); and State v. Hall, 99-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52 (payment to a “judicial expense fund,” as opposed to the “criminal court fund” under Article 895.1(B)(2), vacated).

In the present case, the fees sought by the District Attorney are authorized by statute, La.R.S. 16:15. Although the statute does not specify who has the authority to set the fees, the statute is directed to the District Attorney and appears to grant him or her the exclusive authority to collect the fees. (Indeed, it appears that the fees authorized by La.R.S. 16:15 may be collected whether or not a person has been convicted of La.R.S. 14:71.) The statute' further provides that the fees shall be deposited in a special fund to be administered by the District Attorney, with “[e]x-penditures from this fund [being] at the sole discretion of the district attorney” to defray the salaries and expenses his or her office (although not as a supplement to his* or her own salary). Because the fees are authorized by statute, we find that the trial court properly included their payment as a condition of probation. However, because the statute is directed to the District Attorney,'we find that the District | ¡Attorney alone may set those fees. Accordingly, we find that the trial court erred in reducing the fees set by the District Attorney. We will, therefore, amend that portion of Defendant’s sentence and remand the case with instructions that the trial court correct the minutes of sentencing to reflect that the District Attorney fees will be set at the requested amount of $810.00.

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find several concerns regarding the amount of restitution imposed as a condition of probation. First, we note that the amount of restitution ordered at sentencing ($1,732.19) exceeds the aggregate amount of checks listed in the bill of information ($1,117.19) by $610.00. Second, we note that “any checks dated prior to today’s date that she admits to writing” was made part of the restitution, even though Defendant was not charged with writing those checks and the record contains no information as to their amount. Finally, we note that the trial court did not establish a payment plan for the restitution ordered, as well as for the other fees imposed as a condition of probation.

In State v. Elkins, 489 So.2d 232 (La.1986), the supreme court found it improper for the trial court to order restitution for offenses that were not included in the guilty plea, absent proof of the defendant’s participation in the crime. However, in State v. Stephenson, 30,271 (La.App. 2 Cir. 1/21/98), 706 So.2d 604, writ denied, 98-0426 (La.6/19/98), 720 So.2d 1211, the court found no error in ordering restitution to the victim of an uncharged offense, where the defendant expressly agreed that he would make restitution to that victim as a part of a plea bargain. In the present case, the State and Defendant apparently reached a joint sentencing agreement; however, |fiin addition to the unexplained discrepancy between the total of the checks listed in the bill of information and the amount stated at the sentencing colloquy, the sentencing colloquy also indicates that the parties were not in agreement, at least as to the amount of the District Attorney fees. Accordingly, we will vacate that portion of Defendant’s sentence setting the amount of restitution and remand the case for a determination of whether Defendant expressly agreed to pay restitution in an amount that exceeds the total of the checks listed in the bill of information. On remand, the trial court is also instructed to determine the amount of restitution owed and to establish a payment plan for restitution and other fees.

Decree

For the above reasons, Defendant’s sentence is amended, in part, as to the amount of District Attorney fees and is vacated, in part, as to the amount of restitution, and the case is remanded with instructions that the trial court (1) correct the minutes of sentencing to reflect that Defendant is to pay District Attorney fees in the amount of $810.00; (2) determine whether Defendant expressly agreed to restitution in excess of the total of the checks listed in the bill of information; and (3) fix the amount of restitution owed and establish a payment plan for restitution and other fees imposed as a condition of probation.

AMENDED IN PART; VACATED IN PART; AND REMANDED.

SAUNDERS, J., dissents and assigns written reasons.

| LAUNDERS, Judge,

dissenting.

The majority has decided that a district attorney is responsible for setting the fee at issue here. This conclusion was reached because, while it does not specify who shall set the amount of the fine, La. R.S. 16:15 empowers the district attorney to collect the fees and determine how the funds will be expended. I disagree with the majority’s decision because I do not believe that this limited grant of power gives the district attorney the authority to set the amount of the fees. Two separate fees are set forth in La. R.S. 16:15. First, La. R.S. 16:15(C) provides that the D.A. “may” collect a worthless check fee that “shall not exceed ...” Next, in addition to this fee, La. R.S. 16:15(E) provides that the district attorney “shall” collect a fee of $25.00 for each worthless check issued. Given the above quoted language, it is clear that the fee described in La. R.S. 16:15(C) is discretionary, while the fee contained in La. R.S. 16:15(E) is mandatory.

|?As previously noted, La. R.S. 16:15 does not identify the party responsible for setting the fees at issue. I believe, as the supreme court has previously held, that:

[wjhere the law is silent, it is within the inherent authority of the court to fashion a remedy which will promote the orderly and expeditious administration of justice. La.C.Cr.P. 17; State v. Edwards, 287 So.2d 518 (La.1973).

State v. Mims, 329 So.2d 686, 688 (La.1976). This language is in harmony with the traditional roles played by courts and district attorneys. District attorneys decide whom to prosecute and for what offenses, while courts perform the sentencing functions in criminal matters. As a discretionary fee, this penalty is a function of Defendant’s sentence. Therefore, I believe the trial judge has the inherent authority to set that fee. I see nothing in La. R.S. 16:15 that abrogates this inherent authority bestowed upon trial courts.

Furthermore, given that Defendant has been placed on three years supervised probation with several special conditions, I believe the fee set forth in La. R.S. 16:15(C) falls within the discretionary powers granted to trial courts under La. C.Cr.P. 895. The majority points out that the supreme court has held that the provision in La.C.Cr.P. 895 stating that trial courts “may impose any specific conditions reasonably related to ... rehabilitation” grants limited discretion to trial courts in setting fines as a condition of probation. State v. Rugon, 355 So.2d 876 (La.1977). I disagree with the majority, however, in that I see nothing in La. R.S. 16:15 that displaces the trial court’s aforementioned authority to set this fine. In other words, I do not believe that the limits upon a trial court’s discretion encompass the authority to set the amount of the fíne. Again, I believe the authority to set these conditions of probation are a part of the trial court’s inherent authority to perform ^[¿sentencing functions in criminal matters.

For these reasons, I respectfully dissent.

      . The other conditions of probation were that Defendant (1) pay restitution of $1,732.19; (2) pay a fine of $100.00, plus court costs; (3) pay a monthly supervision fee of $55.00; (4) have no checking account during the probationary period; and (4) include in the restitution "any checks dated prior to today’s date that she admits to writing.”


author: hEZELL, Judge. | JETERS, J.,

text:
    STATE of Louisiana v. Steven Russell SEDLOCK.
    No. KA 2004-564.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Cecil R. Sanner, Jennifer Jones Bercier, Jones Law Firm, Cameron, LA, for Appel-lee, State of Louisiana.
    Clifford L. Newman, The Newman Law Firm, Lake Charles, LA, for Defen-dani/Appellant, Steven Russell Sedlock.
    Cecil R. Sanner, District Attorney 38th Judicial District Court, Cameron, LA, for State of Louisiana.
    Steven Russell Sedlock, Cameron, LA, pro se.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

On April 29, 2003, the Defendant, Steven Russell Sedlock, was charged in a bill of information with second degree battery, a violation of La.R.S. 14:34.1. In a separate bill of information filed on the same day, the Defendant was charged with cruelty to juveniles, a violation of La.R.S. 14:93. The Defendant entered pleas of not guilty to each charge.

On February 2, 2004, the Defendant waived his right to trial by jury, the matters were consolidated for trial, and a bench trial commenced. After presentation of the evidence, the trial court found the Defendant guilty of simple battery and cruelty to juveniles. On February 9, 2004, the Defendant was sentenced to serve six months in the parish jail for simple battery, with credit for time served. For cruelty to juveniles, the Defendant was sentenced to two years in the parish jail, all suspended but time served, and the Defendant was placed on supervised probation for the remainder of the two years. The two sentences were ordered to run concurrently. A motion and order for appeal was filed on February 18, 2004.

In brief to this court, the Defendant states that he filed a motion for appeal as to both his convictions, but “specifically waives and abandons the appeal as to the conviction for Simple Battery and appeals only the conviction of Cruelty to a Juvenile.” Accordingly, we will address only the conviction for cruelty to juveniles.

FACTS

The Defendant is the father of J.T., the victim in this matter. J.T. was a fourth grade student at Grand Lake School on April 7, 2003. On that day, the assistant principal, Jacqueline Holmes, called J.T.’s parents to inform them that he had been sent to the office due to disciplinary problems. J.T.’s parents had a conference with | Ms. Holmes, and the Defendant then checked J.T. out of school. When leaving the office, the Defendant kicked J.T. in the buttocks and then kneed him in the back. Ms. Holmes was concerned about J.T.’s well-being, so she called the police. Deputy Larry Broussard responded to Ms. Holmes’ call and then went to the Defendant’s residence. While at the Defendant’s residence, Deputy Broussard observed various injuries to J.T. and arrested the Defendant. Paramedics subsequently examined J.T. at the residence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is one error patent involving the sentence imposed for cruelty to juveniles.

For the offense of cruelty to juveniles, the trial court imposed the following sentence: “The Court is going to sentence him to two years in the parish jail. I’m going to suspend all but time served of that two years. I’m going to place him on supervised probation for the balance of that two-year period....” Rather than specify the period of probation, the trial court placed the Defendant on probation for “the balance of’ the two-year period. In other words, the trial court placed the Defendant on probation for whatever time remained after the “time served” portion was deducted from the two years. Since the “time served” portion of the sentence was not specified, we find the trial court imposed an unspecified and indeterminate period of probation. Louisiana Code of Criminal Procedure Article 893(A) provides in pertinent part: “The period of probation shall be specified and shall not be less than one year nor more than five years.” Since the probation period imposed in the present case was not specified and is indeterminate, we find that the sentence imposed |3for cruelty to juveniles should be vacated and the case remanded for resentencing specifying the period of probation in accordance with La.Code Crim.P. art. 893.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends the verdict was not supported by the law and the evidence.

When sufficiency of the evidence is raised on appeal, this court has held:

In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

The Defendant was convicted of cruelty to juveniles, which is defined in La.R.S. 14:93(A) as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.”

The term “intentional,” within the meaning of this statute, has been defined as requiring only “general criminal intent,” and not specific intent to cause a child unjustifiable pain and suffering. State v. Morrison, 582 So.2d 295 (La.App. 1 Cir.1991); State v. Green, 449 So.2d 141 (La.App. 4 Cir.1984). La.R.S. 14:10(2) provides:
General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.
In State v. Comeaux, 319 So.2d 897, 899 (La.1975), the Louisiana Supreme Court stated:
| /‘Mistreatment” is in common usage and is equated with “abuse.” See Webster’s Third New International Dictionary, Verbo abuse. In our opinion, “mistreatment” has a commonly understood meaning.
(Emphasis supplied.)
In Morrison, the court recognized that: “As an alternative to proving that an accused intentionally mistreated or neglected a child, LSA-R.S. 14:93 permits the state to prove the accused was criminally negligent in his mistreatment or neglect of the child.” 582 So.2d at 302. La.R.S. 14:12 defines criminal negligence as follows:
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.
(Emphasis added.)

State v. Cortez, 96-859, p. 7 (La.App. 3 Cir. 12/18/96), 687 So.2d 515, 519-20.

However, an offender’s conduct is “justifiable, although otherwise criminal,” when the “offender’s conduct is reasonable discipline of minors by their parents.” See La.R.S. 14:18(4). “Since ‘justification’ defenses are not based on the nonexistence of any essential element of the offense, but rather on the circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.” State v. Cheatwood, 458 So.2d 907, 910 (La.1984).

State v. Miller, 98-1873, pp. 2-3 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 119, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

Thus, the State had to prove beyond a reasonable doubt that the Defendant intentionally mistreated or criminally neglected J.T. in such a manner as to cause unjustifiable pain and suffering.

Photographs of J.T. were taken by Deputy Broussard on the day of the incident. The photographs depict marks on J.T.’s back, abdomen, chest, face, neck, and leg. The Defendant disputes that he caused any injuries to J.T.’s neck, leg, and face.

|,^Deputy Broussard testified that he saw blood oozing out along the edges of a wound on J.T.’s chest and the wound between his shoulder blades. Charles Thacker, who responded to Deputy Brous-sard’s call for an ambulance, examined J.T. and testified that none of his injuries were oozing blood, but there was an injury to the abdomen where the skin was split and there was surface blood. Additionally, Mr. Thacker testified that J.T. had minor lacerations. Jeffrey Thibodeaux, who also took part in examining J.T., testified that his injuries were not oozing, but he did have blood blisters. J.T.’s mother testified that he had no open cuts.

The Defendant admitted he whipped J.T. on April 7, 2003. Additionally, he admitted that he may have left whelps on J.T. and “anything that was on him that was made with a belt I did that....” The Defendant further testified that he meant to cause pain when he hit J.T. with the belt, but denied intentionally whipping J.T. in any manner that would cause extreme pain and harm. Additionally, ■ the Defendant testified that he did not realize how many marks he left on J.T. and did not intend to cause the marks. The Defendant further testified that if he “wanted to beat somebody, a belt wouldn’t be nowhere in the picture.” The Defendant testified regarding how he felt about whipping J.T. and stated “I hated so much that I whipped him ...” Deputy Broussard testified that while at the Defendant’s resi-denee, J.T. said it was his fault, the Defendant did not hurt him, and he was alright.

The Defendant alleged he whipped J.T. because of his conduct at school, one six-weeks he made five F’s, and he was possibly going to fail the fourth grade for the second time.

Several defense witnesses testified regarding how long the marks depicted in the photographs were visible on J.T.’s body. Several witnesses testified that the marks |fiwere faint between April 10 and 13, 2003. One witness testified that the marks were gone by April 14, 2003, while the others testified they were completely gone on April 16 and 17, 2003.

After hearing the evidence, the trial court found the Defendant guilty, stating the following:

[0]n the charge of Second Degree Battery .... We do have, in the record, an absence of just how — the level of physical pain suffered by the child. Obviously, there was pain involved. The Court can use circumstantial evidence to reach the point that there was pain. Cannot receive the marks without pain; however, the level of extreme is the burden of the State. And the Court finds that that level was not reached. So, the Court is going to find the defendant guilty of the responsive charge of Simple Battery.
I’ll turn my attention now to Cruelty to a Juvenile. Cruelty to a Juvenile must be either an intentional act or criminally negligent act. In this instance, the Court can rely even on the testimony of Mr. Sedlock himself — may not be exact, my quotation, but he says I hate it that I whipped my son or I hated it. I hated that I whipped him at the time. Because by his own testimony, he had apparently lost control, and the amount of pain which he inflicted upon the child was not justified by the child’s grades in school or misbehavior in school. And although, he may not have intended to impose the pain he did — it doesn’t have to be extreme pain. It just has to be unjustifiable pain, and certainly, the child did not deserve the punishment which he received. And all other elements of that crime are met.

The Defendant argues that considering the testimony of Deputy Broussard compared to the other witnesses, the record “clearly shows the inaccuracies, embellishment and enhancement of Deputy Brous-sard’s testimony”; and that therefore his testimony is inaccurate and incredible and should be “disregarded and discounted as to his description of the alleged injury sustained” by J.T.

The Defendant attacks the investigation done by Deputy Broussard prior to his arrival at the Defendant’s residence. The Defendant additionally contends that Deputy Broussard enhanced and exaggerated his testimony regarding injuries to J.T.’s face. The Defendant also argues that Deputy Broussard again exaggerated his testimony when he testified that he saw blood oozing from J.T.’s wounds. The 17Pefendant brings out inconsistencies in Deputy Broussard’s testimony and that of Ms. Holmes regarding whether or not she requested a conference with J.T.’s parents.

The Defendant admitted he whipped J.T., causing injuries to him; therefore, the investigation done by Detective Brous-sard prior to his arrival at the Defendant’s residence and testimony regarding whether or not Ms. Holmes intended to have a conference with J.T.’s parents is irrelevant as to whether the Defendant intentionally mistreated or criminally neglected J.T. Additionally, whether the Defendant injured J.T.’s face, neck, or leg is also irrelevant since he admitted he caused various other injuries found on J.T.’s body. Deputy Broussard did testify that one to two of J.T.’s injuries were oozing blood. Even if this was a mischaracterization, Mr. Thacker testified there was dried blood on an injury to J.T.’s abdomen.

The Defendant also points out the testimony of Deputy Broussard wherein he stated J.T. told him the Defendant did not hurt him. He alleges that the trial court, during closing arguments, acknowledged that it did not recall that portion of Deputy Broussard’s testimony. The Defendant then goes on to state that he pointed out to the trial court that the testimony was on the record and could be heard if replayed but that the trial court apparently did not listen to that portion of the tapes of trial.

During closing arguments, defense counsel told the court that J.T. told Deputy Broussard he was not hurting. The court then asked defense counsel if that was in the record; defense counsel indicated that it was, and closing arguments continued. The record does not indicate the trial court acknowledged that it did not recall that portion of Deputy Broussard’s testimony nor does the record reflect that defense counsel asked the court to listen to tapes of trial testimony.

The trial court could have chosen to accept certain portions of Deputy Brous-sard’s testimony as true and reject other portions thereof. See State v. Blake, 03—1465 (La.App. 3 Cir. 5/5/04), 872 So.2d 602. The trial court found the Defendant guilty of cruelty to juveniles. It clearly made a credibility determination regarding the witnesses in this case, and that credibility determination should not be second-guessed by this court.

The Defendant noted several reasons why his actions were justified and did not cause J.T. unjustifiable pain and suffering, including the following:

1)He explained to J.T. the reasons why he whipped J.T.;
2) There was no pain and suffering “incurred as required to the degree of the statute” inasmuch as J.T. did not seek medical treatment for his injuries;
3) He folded the belt in half when whipping J.T., so, even though there may have been a number of marks on J.T., each mark was not a blow;
4) Part of his right wrist joint was blown away, when he was shot with a shotgun, he had twenty-six screws in his right hand, which was disfigured,, and only the two outer fingers could be used; and
'5) J.T. was almost as big as the Defendant, being five-foot-six inches to five-foot-seven inches tall and weighing 'approximately one hundred thirty five to forty pounds and, in- comparison, the Defendant was five-foot-ten inches tall and weighed one hundred seventy pounds.

The Defendant cites State v. Schultz, 01-995 (La.App. 5 Cir. 4/10/02), 817 So.2d 202, writ denied, 02-1320 (La.11/27/02), 831 So.2d 270, for the proposition that medical treatment must be sought for injuries inflicted in order for a defendant to be found guilty of cruelty to juveniles. In Schultz, the'defendant sprayed her daughter with pepper spray. The defendant contended she acted in self-defense. The fifth circuit concluded that the defendant did inflict' pain upon her daughter. However, she did not inflict unjustifiable pain and suffering which was evidenced by the fact that the child did not seek medical treatment. The child was examined by her father, a physician, who determined that medical treatment was unnecessary. The court held.that the state did not present sufficient evidence to prove the daughter Inexperienced unjustifiable pain and suffering, which is a necessary element of the offense.

In State v. Chacon, 03-446 (La.App. 5 Cir. 10/28/03), 860 So.2d 151, the defendant was convicted of cruelty to juveniles. It was undisputed that the defendant struck the victim in the left arm. Photographs taken two days after the incident showed a large bruise in the shape of a fist on the victim’s arm. The defendant argued that he did not have the intent to mistreat the victim, he was not angry when he hit the victim, he only hit the victim twice, the victim did not cry, and the victim was not thrown off balance by the impact of the punches. The fifth circuit stated that the fact that the victim did not cry or was not thrown off balance from the force of the blows was not determinative of whether the victim experienced unjustifiable pain and suffering. The court went on to note that “[a] bruise of the severity and magnitude exhibited by the photographs clearly demonstrates that unjustifiable pain and suffering were inflicted upon” the victim. Id. at 154. The court then held that the defendant either intentionally mistreated or was criminally negligent in his mistreatment of the victim when he chose to punch an eight-year-old with such force that it left a fist-shaped bruise.

In State v. Swan, 544 So.2d 1204 (La.App. 1 Cir.1989), the defendant was convicted of cruelty to juveniles after two victims testified that he beat them. The court noted that defense counsel alleged in his brief that he examined photographs of the victims with a magnifying glass and detected “ ‘a tiny mark on the forehead on one of the boys...' " Id. at 1207. The court upheld the defendant’s convictions.

We find based on Chacon and Swan, a victim need not seek medical treatment for the court to find he endured unjustifiable pain and suffering. We also find the injuries to the Defendant’s hand and shoulder could affect the degree of force used Imwhen whipping J.T.; however, the photographs speak for themselves. Based on the facts and circumstances of this case, the photographs of J.T., Mr. Thacker’s testimony that the skin was open and surface blood was present on a wound on J.T.’s abdomen, and Mr. Thibodeaux’s testimony that blood blisters were present, a rational trier of fact could have found that the State proved all elements of the offense.

The Defendant argues that his actions were justified as punishment for J.T.’s behavior at school. “Justification can be claimed when the conduct is reasonable discipline of minors by a parent.” Comeaux, 319 So.2d 897. In State v. Barnett, 521 So.2d 663 (La.App. 1 Cir.1988), the defendant was convicted of attempted cruelty to juveniles after spanking his child with a belt. On appeal, the defendant argued the evidence was insufficient to establish the intent element of the crime. Additionally, he argued he was justified in spanking his son and the real issue was whether or not his exercise of discipline was reasonable. The defendant testified that he spanked his child with a dress belt and was not angry when he did so. He quit spanking the child when he noticed red marks on the child’s buttocks. The victim’s cousin observed the spanking, and when asked whether the defendant’s actions exceeded the ordinary realm of a spanking, said no. Photographs taken eight hours after the spanking depicted severe bruises on the child’s buttocks and thighs. A physician who examined the child on the day of the spanking testified that he had bruises all over his body and that the bruises on one area of his leg were overlapping and were too numerous to count. The court concluded that the spanking inflicted on the victim was intentional mistreatment which caused pain and suffering exceeding the bounds of reasonable discipline.

InWe find that the evidence proved beyond a reasonable doubt that the spanking Defendant administered upon J.T. caused pain and suffering that exceeded the bounds of reasonable discipline and was, therefore, not justified. Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court should have granted a judgment of acquittal at the close of the State’s case.

In a bench trial, the trial court shall enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. La.Code Crim.P. art. 778. The denial of a motion for judgment of acquittal “may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion.” State v. Hargrave, 411 So.2d 1058, 1061 (La.1982); see also State v. Williams, 84,370 (La.App. 2 Cir. 2/28/01), 781 So.2d 682.

We cannot say the trial court abused its discretion in denying the Defendant’s motion for post-verdict judgment of acquittal. Accordingly, this assignment lacks merit.

CONCLUSION

The Defendant’s conviction for cruelty to juveniles is affirmed. However, the sentence imposed for cruelty to juveniles is vacated and the case remanded for the imposition of a determinate sentence wherein the trial court must specify any period of probation imposed pursuant .to La.Code Crim.P. art. 893.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

PETERS, J., dissents and assigns written reasons.

| JETERS, J.,

dissenting.

I respectfully disagree with the majority opinion in this matter insofar as it affirms the defendant’s conviction of cruelty to a juvenile. In my opinion, the State of Louisiana (state) failed to establish the defendant’s guilt beyond a reasonable doubt.

It is abundantly clear to me that J.T. required some degree of discipline. He had already failed the fourth grade once and was well on his way to failing a second time. The record reveals that J.T.’s attitude toward his educational and behavioral obligations left much to be desired, and this attitude had existed for an extended period of time. Thus, the defendant was faced with the task of, in some manner, redirecting J.T.’s attention to his shortcomings at school — both from an academic and a behavioral perspective. I do not disagree with the conclusion that the defendant’s disciplinary measures were excessive. The question is whether they crossed the line into criminal activity.

As pointed out by the majority, the state may prove a violation of La.R.S. 14:93(A) by establishing that the defendant intentionally mistreated or neglected J.T. or that he did so in a criminally negligent manner. The state must also prove that the ^mistreatment or neglect caused the child “unjustifiable pain or suffering.” Id.

My review of the record suggests that the state did not assert whether its case was based on intent or negligence. However, in finding the defendant guilty of cruelty to a juvenile, the trial court clearly rejected any conviction on the intent provisions. In finding the defendant guilty, the trial court made the following statement:

Cruelty to a Juvenile must be either an intentional act or criminally negligent act. In this instance, the Court can rely even on the testimony- of Mr. Sedlock himself — may not be exact, my quotation, but he says I hate it that I whipped my son or I hated it. I hated that I whipped him at the time. Because by his own testimony, he had apparently lost control, and the amount of pain which he inflicted upon the child was not justified by the child’s grades in school or misbehavior in school. And although, he may not have intended, to impose the pain he did — it doesn’t have to be extreme pain. It just has to be unjustifiable pain, and certainly, the child did not deserve the punishment which he received.

(Emphasis added.)

Because the trial court specifically found that the defendant “may not have intended” to impose unjustifiable pain or suffering, the only question is whether he acted in a criminally negligent manner. As suggested by the majority, this requires that the defendant’s conduct amount “to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

The entire matter began with a complaint from school officials that the defendant kicked and kneed J.T. as they left school. However, when questioned concerning the nature of the defendant’s actions at school, all witnesses for the state testified that they did not classify the defendant’s actions as violent but as merely degrading or demeaning. The evidence of the degree of J.T.’s punishment at home is conflicting. While the investigating officer claimed to have found severe injuries, 13the trained medical personnel who examined J.T. at approximately the same time concluded that he suffered only minor lacerations and bruises which required no medical treatment. While the photographs do certainly serve as admissible evidence of the alleged offense, the best evidence is that of the trained medical personnel called to the scene.

In its reasons for judgment, the trial court found no gross deviation below the reasonably careful man standard. It found only that “the amount of pain [the defendant] inflicted upon the child was not justified by the child’s grades in school or misbehavior in school.” This finding is insufficient to convict the defendant under La.R.S. 14:93.

The trial record establishes that the defendant has a criminal history. It also seems to establish that the defendant’s motivation in punishing his child was to impress upon J.T. his father’s desire that J.T. not repeat his father’s mistakes. The punishment’s emphasis was on the importance of education, not the defendant’s desire to impose physical punishment. I do not condone the defendant’s imposition of punishment in this case. In fact, I agree with the trial court and the majority that the punishment imposed on J.T. did not fit the offense he committed. However, I cannot conclude that it reached a level such that it constituted a criminal offense. While the defendant could benefit from parenting classes, I do not believe that La.R.S. 14:93 was intended to apply to such a situation, especially given the fact that the defendant could actually lose his parental rights for this conviction. See La.Ch.Code art. 1050.

Additionally, by finding the defendant guilty of the felony offense of cruelty to a juvenile, this court sends a chilling message to parents that corporal punishment |4may well be a path to criminal prosecution. This opinion clearly establishes that this punishment is not only not acceptable for J.T.’s behavior, but that it is also criminal. Should it be within our province to draw a line to state specifically the acceptable parameters of discipline for certain behaviors? I would think not and would reverse the conviction.

      . The victim in this matter is a minor. Accordingly, his initials will be used in accordance with La.R.S. 46:1844(W).


author: _JjEZELL, Judge.

text:
    David HINES, et al. v. RICELAND DRILLING COMPANY.
    No. CA 2004-503.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    Denise A. Vinet, Vinet & Vinet, Baton Rouge, LA, for Plaintiffs/Appellants, David Hines, et al., Donald Hines, et al.

      H.O. Lestage, III, Hall, Lestage, and Landreneau, DeRidder, LA, for Defen-danVAppellee, Riceland Drilling Company.
    Robert B. Purser, Purser Law Firm, Opelousas, LA, for Intervenor/Appellee, American Interstate Insurance Company.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   _JjEZELL, Judge.

This case involves an intentional tort claim arising out of a workplace accident. David Hines asserts that the trial court erred in granting summary judgment in favor of Riceland Drilling Company, claiming that his injury was the result of an intentional tort, thereby allowing him to recover damages in addition to workers’ compensation. We disagree, and for the following reasons, affirm the decision of the trial court.

On January 25, 2001, Hines was working on the floor of a land oil rig. Earlier in the day, a washer had fallen off a metal pin located in a traveling block used to move pipe on the rig. The entire crew of the rig was aware of the missing washer, but the decision was made by Jerry Fonte-not, the toolpusher in charge of the job site, to continue working. The crew began slowly removing pipe from a drilled hole, to insure the pin would stay in place. After removing approximately five bundles of pipe, Fontenot was reassured the pin would not fall out and the pace of the removal was increased. On the next run, the metal pin vibrated loose from the traveling block and fell ninety feet, striking Hines on the head. Hines suffered a fractured skull, dizziness and some memory loss as a result of the blow. Hines began to receive workers’ compensation benefits as a result of the accident.

Hines then filed this suit, alleging that Riceland Drilling intentionally caused his injury by forcing him to work when his superiors knew that the drilling equipment was defective and that continuing operations would be certain to result in his injury. Riceland Drilling answered that there was no intentional act, that Hines was receiving workers’ compensation benefits, and that, under the provisions of La. R.S. 28:1032, his right to these benefits were exclusive of all other claims arising out of his employment. Riceland Drilling filed a motion for summary judgment, which was [^granted by the trial court. From this decision, Hines appeals.

On appeal, Hines asserts two assignments of error: That the trial court erred in striking its memorandum in opposition to the summary judgment, and that the trial court erred in granting Riceland Drilling’s motion for summary judgment.

First, Hines claims that the trial court erred in striking his memorandum in opposition to Riceland Drilling’s motion for summary judgment. We disagree. Rice-land Drilling filed a motion for summary judgment on July 24, 2003. Hearing on the matter was scheduled for August 26, 2003. On Friday, August 22, 2003, Hines filed a memorandum in opposition to Rice-land Drilling’s motion for summary judgment, including an affidavit in support of that memorandum. Riceland Drilling then filed a motion to strike the opposition on the basis that it was filed only one legal day prior to the hearing on the summary judgment, not the four days required by La.Code Civ.P. art. 966(B) and Uniform Rules of the District Courts-Rule 9.10. The trial court granted Riceland Drilling’s motion to strike, and Hines sought supervisory writs to this court, which were denied.

Louisiana Code of Civil Procedure Article 966(B) (emphasis added) provided, in pertinent part, at the time of the hearing:

The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article ISIS at least four days prior to the date of the hearing unless there are local rules of court to the contrary.

Uniform Rules of the District Courts Rule-9.10(C) further provided at the time of the hearing, that “Affidavits in opposition to a motion for summary judgment must be served at least four days prior to the date of the [shearing. A court may not allow filing of opposition affidavits fewer than four days prior to the date of the hearing except by amendment to these rules.”

Finally, La.Code Civ.P. art. 5059 states that when periods of time prescribed by law are less than seven days, legal holidays are not to be included in the calculation thereof.

It is clear that in the instant case, Hines filed his opposition to Riceland’s motion for summary judgment a mere one legal day prior to the hearing on the matter. Thus, the filing was clearly not timely under either La.Code Civ. P. art. 966 or Uniform Rules of the District Courts Rule-9.10. The trial court made no error in striking Hines’ opposition for summary judgment.

Finally, Hines claims that the trial court erred in granting Riceland Drilling’s motion for summary judgment. Again, we disagree.

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action... .The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in | ¿summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Accordingly, we must review the summary judgment de novo.

Louisiana Revised Statutes 23:1032 provides in part:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

Thus, the sole issue in the summary judgment at hand is whether there was any genuine issue of material fact as to whether the acts of Riceland Drilling and its employees were intentional.

The Louisiana Supreme Court has held that:

the meaning of “intent” in this context” it that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result certain to follow from his conduct, whatever his desire may be as to that result.”

Reeves v. Structural Preservation Sys., 98-1795, p. 6 (La.3/12/99), 731 So.2d 208, 211, (quoting Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981)).

| B‘ “Substantially certain to follow” requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ Id. at 213. “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir.), writ denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-08 (La.App. 4 Cir.1991)).

It is clear from the record that Jerry Fontenot was aware that the pin posed a potential hazard. He appreciated that it posed a possible risk. This was evidenced by his telling the crew to “keep an eye on” the pin. However, as noted above, this does not constitute intent. On the contrary, the record, including the depositions of all the other crew members and the evidence proffered by Hines in his opposition to the summary judgment, clearly shows Fontenot was convinced that the pin could not escape its housing. No one on the crew could say with any substantial certainty that the pin would fall. In fact, a similar incident occurred roughly one year prior to Hines’s accident where the washer separated from the pin, yet the pin did not come loose in that instance. The actions of Riceland Drilling’s employees, while perhaps negligent, certainly do not arise-to the level of intent As such, the recovery is precluded under La.R.S. 23:1032.

While any opposition to the motion for summary judgment was stricken, Hines still would have failed to produce factual support sufficient to establish that he would be able to satisfy his- evidentiary burden of proof at trial in accordance with La.Code | fiCiv.P. art. 966(C)(2), even had his opposition been allowed into evidence. There is simply nothing in the evidence proffered by Hines which poses a genuine issue of material fact as to whether the actions of Riceland Drilling and its employees were intentional. Accordingly, the trial court was correct in granting Rice-land Drilling’s motion of summary judgment.

For the reason set forth, the ruling of the trial court is affirmed. Costs of this appeal are assessed against the Plaintiff/Appellants.

AFFIRMED.

      . The trial court did commit a harmless error in its interpretation of the relationship between the Uniform Rules of the District Courts and the Louisiana Code of Civil Procedure. The trial court seemed to interpret the Uniform Rules of the District Courts as eliminating its discretion, stating essentially that it could not allow the late filing rather than it was not going to allow it. This is incorrect. Louisiana Code of Civil Procedure art. 966 clearly allows the court discretion to give the adverse party additional time to file a response for good cause. However, since there was no good cause shown here, and since the proffered evidence would not have an effect on the outcome of this matter, this misinterpretation was harmless error.


author: JjBELSOME, J.

text:
    Sandra Wheeler HESTER v. Walter Fox McKEITHEN, Individually and in his Capacity as the Louisiana Secretary of State; Kimberly Williamson Butler, Individually and in her Capacity as Orleans Clerk of Criminal District Court for the Parish of Orleans, et al.
    No. 2004-CA-1725.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2004.

      Stephen D. Hawkland, Attorney Supervisor, Secretary of State, Baton Rouge, Counsel for Walter Fox McKeithen, in his Capacity as Secretary of the State of Louisiana.
    Dominic N. Varrecchio, Andre’ P. Guieh-ard, Philip A. Costa, Costa Law Firm, New Orleans, Counsel for Intervenor/Ap-pellee, Jimmy Fahrenholtz.
    Deborah L. Wilson, New Orleans, Counsel for Defendant/Appellee, Kimberly Williamson Butler.
    Sandra Wheeler Hester, New Orleans, in Proper Person, Plaintiff/Appellant.
    Court composed of Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME, Judge Ad Hoc SUSAN M. CHEHARDY, Judge Ad Hoc ROBERT D. DOWNING, Judge Ad Hoc JAMES E. KUHN.
   JjBELSOME, J.

These are consolidated cases contesting results from the election held September 18, 2004. For the sake of clarity of our opinions rendered this date, we issue separate opinions in the consolidated cases of 2004-CA-1725 and 2004-CA-1726. Petitioner, Sandra Cabrina Jenkins, a candidate for the Orleans Parish Juvenile Court judgeship and petitioner, Sandra Wheeler Hester, a candidate for the Orleans Parish School Board District 3 seat, lost their respective races. Ms. Jenkins failed to qualify for the runoff election, placing third with only a margin of 276 votes separating second and third place. Mrs. Hester lost her race outright receiving 2,939 votes while her opponent, Jimmy Fahrenholtz, received 12,689 votes. Ms. Jenkins and Mrs. Hester both filed suits in the Civil District Court for the parish of Orleans contesting the election results.

Named as defendants in Mrs. Hester’s suit are Walter Fox McKeithen, individually and in his capacity as the Louisiana Secretary of State, and Kimberly Williamson Butler, individually and in her capacity as Clerk of Criminal District |2Court for the Parish of Orleans. Mrs. Hester’s petition sought to have the election results of September 18, 2004 set aside.

Judge Yada Magee conducted a four-day trial and rendered judgment against petitioner Mrs. Hester, finding that in spite of numerous irregularities with the election process for the September 18, 2004 election, Mrs. Hester could not have won the election for School Board District 3. Therefore, there is no basis for the election to be declared void. Mrs. Hester appeals the trial court’s judgment.

Mrs. Hester, in her first of three assignments of error, contends that the trial court erred in not setting aside the election, even after acknowledging in her reasons for judgment numerous irregularities with the election process.

For Mrs. Hester to be granted the relief sought, a new election, it must first be established that the election process involved irregularities or fraud. The court then looks to La. R:S. 18:1432(A) to determine whether a new election is the remedy warranted. La. R.S. 18:1432(A) provides:

If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred, the judge may render a final judgment declaring the election void and ordering a new primary or general election for all the candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a restricted election, specifying the date of the election, the appropriate candidates for the election, the office or other position for which the election shall be held, and indicating which voters will be eligible to vote.

lain its reasons for judgment the trial court states that the existence of numerous irregularities in the September 18, 2004 election process went undisputed at the trial. Some of the irregularities cited in the judgment were: 289 voting machines were not powered-up by 6:00 a.m.; many deputy custodians were not on site to open premises for delivery of machines; most of those precincts affected did not get voting machines until after 10:30 a.m., many were delivered after 12:30 p.m. and several machines, were delivered after 2:00 p.m. on election day; voters were not able to cast their votes within the times prescribed by the Election Code; and voters did not vote as a result.

. Finding the requisite irregularities, the trial judge focused on the language of La. R.S. 18:1432 to decide the appropriate remedy, for each candidate. Judge Magee analyzed each candidate’s set of circumstances and the potential effect the irregularities of the election process had on the outcome of their individual races.

In Judge Magee’s examination of the evidence provided on behalf of Mrs. Hester, she reasoned that-if the irregularities had not occurred and Mrs. Hester had received every vote from all registered voters who did not vote, she still would have fallen short of a victory. Thus, it is possible to determine the result of the election. Had the irregularities not occurred the outcome would have been exactly the same. The will'of the electorate is obvious. Therefore, in compliance with La. R.S. 18:1432(A) there could be no justification for the trial court ordering a new election for the School Board District 3 race.

In her second assignment of error, Mrs. Hester claims that the Orleans Parish Registrar of Voters, Louis Keller, failed to produce actual registration books for the precincts in the district as per the subpoena duces tecum served upon him. The ^argument is raised to suggest Mrs. Hester did not have the evidence necessary to prove her case. However, the information sought through the subpoena duces tecum was introduced at trial through exhibits F-1, F-2 and F-3. Those exhibits were documents certified by the Secretary of State’s office, which provided the particular precincts contained in District 3 for the September 18, 2004 election that were impacted, the certified election returns or votes for each candidate on that election date, and the certified total voter registration for each precinct on that election date.

In its reasons for judgment, the trial court used the numbers represented in the exhibits to make the calculations relevant to the election. The trial judge gave Mrs. Hester the benefit of every registered voter who did not vote in the affected precincts in District 3. Still, those numbers did not prove favorable for Mrs. Hester. Thus, there would be no grounds for reversal assuming that the registrar of voters failed to make the return on the subpoena duces tecum, because ultimately the information was entered into evidence and considered in the trial court’s judgment. Therefore, Mrs. Hester’s second assignment of error has no merit.

Finally, Mrs. Hester assigns as error that the trial court improperly forced her to rest her case, over her objections. Again, Mrs. Hester argues that she was denied the opportunity to present evidence because she did not receive a return on her subpoena duces tecum from the Orleans Parish Registrar of Voters. Plaintiff fails to demonstrate prejudice in light of the fact that she received the benefit of every available vote in evaluating the irregularities and yet, despite this, she still was not able to prevail. The trial court has vast discretion in controlling the conduct of a trial, and that discretion is subject to review only for abuse of that discretion. Boutte v. Kelly, 2002-2451, p. 26 (La.App. 4 Cir. 9/17/03), 863 So.2d 530, 549, citing Barre v. Bonds, 99-1806, p. 23 (La.App. 4 Cir. 5/10/00), 763 So.2d 60, 70, citing La C.C.P. art. 1631. For the reasons previously stated, this court fails to find any abuse of discretion by the trial court in conducting the trial of this matter and more specifically none relating to Mrs. Hester’s complaints regarding her case in chief. Mrs. Hester’s third assignment of error is unfounded.

Although irregularities existed in the September 18, 2004 election, they do not rise to the level of showing that the electorate was deprived of the free exercise of their will, thereby demanding nullification of this election. In evaluating the effect of the irregularities in the September 18, 2004 election, this Court cannot conclude that the outcome of the election was impossible to determine.

Therefore, the judgment of the trial court dismissing Sandra Wheeler Hester’s claims is affirmed.

AFFIRMED.

      . Although the trial judge in her reasons for judgment indicates that Mrs. Hester received 2,039 votes in her bid for Orleans Parish School Board District 3, the official election results as certified by the Secretary of State’s office reveal that Mrs. Hester's actual vote total was 2,939 votes. This discrepancy in no way affects the outcome of the election or the analysis in this opinion.

      . Claims against defendants were dismissed in their individual capacity.