author: PICKETT, Judge.

text:
    STATE of Louisiana v. Jarmaine JONES.
    No. 02-813.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Assistant District Attorney Opelousas, LA, for PlaintiffAppel-lee, State of Louisiana.
    Clement Story III, Lafayette, LA, for Defendants/Appellant, Jarmaine Jones, Savant Insurance Company.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

FACTS

Jarmaine Jones was involved in a one-car accident in the City of Opelousas on November 19, 2000. He was cited for first-offense DWI in violation of La.R.S. 14:98, driving without a license in violation of La.R.S. 32:52, and careless operation of a motor vehicle in violation of La.R.S. 32:58. The record includes an undated document from a magistrate’s hearing with handwritten charges and notations of $1,200 for D.W.I., $500.00 for No Driver’s License, and $850 for Careless Operation. It is signed by the “Booking Desk Sergeant,” but the section for the court to complete is not filled out.

On December 7, 2000, Mr. Jones was charged by Bill of Information with DWI. That same day, the minutes of the court reflect he pled “no contest” to DWI and Driving without a License. The Careless Operation charge was dismissed. At the arraignment, when Mr. Jones entered his plea, the trial judge stated:

Okay, on your DWI you are looking at six hundred and seventy-five dollars, you are looking at fifty hours of community service, eight hours of driver’s school and an evaluation and I’ll tell you are looking at possible probation, I don’t know it depends on your evaluation. I’ll put a question mark.
All right on the No Driver’s License you are looking at a fine of one hundred and twenty-five dollars that includes all the court costs.

Regarding bond, the court stated:

All right on the DWI I am going to set a bond at eight-fifty and No Driver’s License a bond at four-fifty.

On December 13, 2000, six days after the plea by Mr. Jones, the appellant Savant Insurance Company issued three bonds on behalf of Mr. Jones in amounts of $1,200.00, $850.00, and $500.00. We note these amounts correspond to the amounts |2set forth in the document from the magistrate’s hearing and exceed the amount set by the court at arraignment. Additionally, it appears a bond was issued by Savant on Mr. Jones’ behalf for the charge of Careless Operation — a charge which had been dismissed by the time the bonds were issued. The appearance bond indicates Mr. Jones was scheduled to appear in Opelou-sas City Court on January 16, 2001, to answer for charges of “DWI, no D/L, Reckless Operation.” Again, we note the Careless Operation charge had already been dismissed.

On January 8-11, 2001, Mr. Jones attended eight hours of a court-ordered Driver Improvement Program. On January 12, 2001, he attended an evaluation interview as ordered by the court.

There is no indication that Mr. Jones appeared on January 16, 2001, the date originally set by the court and which appears on the bond, or that the matter was continued. The entries from the court indicate that Mr. Jones failed to appear on January 23, 2001, but that the matter was “handled out of court” and sentencing was set for February 15. The record also includes two receipts in the total amount of $125.00 that Mr. Jones paid to the court on January 23, 2001.

On February 15, 2001 Mr. Jones appeared without counsel, paid $50, and sentencing was set for March 8, 2001. On March 8, 2001, Mr. Jones appeared without counsel and sentencing was set for March 15, 2001. On March 29, 2001, Mr. Jones appeared without counsel, paid $40, and sentencing was set for April 12, 2001. On April 12, 2001, the minutes indicate the matter was “handled out of court,” Mr. Jones paid $50, and sentencing was set for April 26, 2001. On April 26, 2001, Mr. Jones appeared without counsel and sentencing was set for May 1, 2001. On May 1, 2001, Mr. Jones appeared without counsel, paid $50, and sentencing was set for May |a14, 2001. On May 14, 2001, Mr. Jones was present without counsel, paid $50, and sentencing was set for May 31, 2001. On May 31, Mr. Jones was present without counsel and sentencing was set for June 4, 2001. On June 4, 2001, Mr. Jones failed to appear and a bench warrant was issued, ordering Mr. Jones to appear on the charges of No Driver’s License and Driving While Intoxicated.

At this point, Mr. Jones had paid $445.00 to the court, presumably towards the fines totaling $800.00 which the trial judge told him on December 7, 2000, when he entered the plea, he would be “looking at.” Further, on June 25, 2001, the Deputy Clerk/Probation Officer of the Opelou-sas City Court, Mary Rose, sent a letter to Mr. Jones ordering him to appear by July 12, 2001, and show cause why he did not complete his community service.

On June 28, 2002, the trial court issued three separate Judgments of Forfeiture of Appearance Bond because Mr. Jones had failed to appear on June 4, 2001. As surety, Savant was ordered to forfeit the three bonds in the amounts of $1200.00, $850.00, and $500.00. Savant was sent notice of the judgments on July 2, 2001. On January 24, 2002, the clerk of court sent three separate letters requesting payment on the three bonds or collection proceedings would begin.

On February 1, 2002 Savant filed a Motion to Overturn Bail Bond Forfeiture, alleging that the defendant had been sentenced on January 22, 2001, and pursuant to La.Code Crim.P. art. 326(B), their obligation had been fulfilled. On April 8, the court held a hearing on the motion, and on April 22, 2002, the court signed a judgment denying the motion on the basis that the defendant was never formally sentenced. This appeal followed.

\ ¿DISCUSSION

The appellant argues the trial court erred in ordering the bond forfeited, alleging sentence had been pronounced and that pronouncement of sentence or imposition of sentence releases them from the bond obligation.

Initially, this court issued a rule to show cause why this appeal should not be dismissed as untimely. A panel of this court referred that rule to the merits. Accordingly, we will first address the timeliness of the appeal.

The judgment appealed from was signed on April 22, 2002. Savant filed a Petition for Appeal with the City Court on May 6, 2002.

The pertinent portion of La.Code Civ.P. art. 5002 states:

A. An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.

Ten days from the date of the judgment was May 2, 2002. We must determine, therefore, whether “notice is necessary” as set forth in Article 5002 and whether the May 6 filing date falls within the ten days from the “service of notice of judgment.” La.Code Civ.P. art 4905 provides that in city court, notice of a signing of judgment shall be given as required in La.Code Civ.P. art.1913.

Article 1913 states in pertinent part:

A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
|5P. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom notice of the signing of the judgment was mailed.

In the'instant case, notice was clearly required. There is, however, no certificate in the record indicating the date or to whom the notice of the signing of judgment was mailed. The appellant has attached the copy of the judgment mailed to him by the clerk’s office, which indicates the judgment was filed with the city clerk on May 30, 2002, twenty-four days after the appellant filed its Petition for Appeal. The appellant argues this date is in error and the date should be April 30, 2002. Assuming the judgment was mailed to the appellant April 30, 2002, this appeal is clearly timely filed.

As to the merits of the appeal, Savant claims that Mr. Jones was formally sentenced on January 22, 2001, and its obligation was no longer continuing for further court appearances. The record, however, does not reflect a formal sentencing.

The court advised Mr. Jones of the substance of the sentence that would be imposed on the day he pled guilty, one week prior to the issuance of the bonds. It appears from the record that the sentence was never imposed. Instead, what follows is re-fixing followed by re-fixing at which the defendant would appear, pay some money, and be carried over for a few more weeks. During this time he attended a “court-ordered” driver improvement program — which in fact could not be considered “court-ordered” since he had not been formally sentenced. Mr. Jones received, during this time, a letter from the Opelousas City Court ordering him to appear by July 12, 2001, and show cause why he did not complete his community service — community service which had not in fact been court ordered, because he had not been formally | ^sentenced. There could be, therefore, no legal basis for the clerk to order him to show cause.

It appears from the facts taken as a whole, that the court was requiring the defendant to complete his sentence, regarding payment of fines, community service, and driver improvement school, before the court had actually imposed the sentence. It is legally impossible to require a sentence to be fulfilled before it is actually imposed. We find in this record, however, no formal sentencing of Mr. Jones. Since there has been no sentencing, the bond obligation has not been extinguished, as argued by counsel, pursuant to the provisions of La.Code Crim.P. art. 326. We find other glaring errors, however, in both the issuance and forfeiture of these bonds.

On the day he entered his plea, the trial court ordered the bonds be fixed in the amount of $850.00 for the DWI and $450.00 for the No Driver’s License charge. Instead, the defendant was required to post bonds which exceeded the amount ordered by the trial court— $1,200.00 for the DWI, $850.00 for the No Driver’s License, and $500.00 for the charge of Careless Operation, which in fact no longer existed at the time the bonds were issued as it had been dismissed. '

That Mr. Jones was required to post a bond for the charge of Careless Operation, which had clearly been dismissed a week prior to the issuance of the bond, is absurd.' There can be no requirement for the posting of a bond to assure appearance for a charge which no longer exists. It naturally follows that Savant cannot be held responsible to assure the appearance for an non-existent charge. Savant has no obligation as to the bond issued for the offense of Careless Operation, and the judgment as to the forfeiture of that bond is null and void.

17As to the forfeiture of the remaining bonds, we must look to the provisions of La.R.S. 15:85 to ascertain whether these bonds were properly forfeited.

LSA. R.S. 15:85, in pertinent part, provides as follows:

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1) Failure to appear and answer.
If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(2) Signing of the judgment of bond forfeiture. Following the defendant’s failure to appear, the court shall sign a written judgment of bond forfeiture.
(3) Notice of judgment.
(a) After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture. The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt to all of the following:
(i) The defendant at the address designated pursuant to Code of Criminal Procedure Art. 322.
(ii) The personal sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.
(iii) The agent or bondsman who posted the bond for the commercial sureties at the address designated pursuant to Code of Criminal Procedure Art. 322.
(iv) The commercial sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322. Notice to the commercial sureties shall include the |Rpower of attorney number used to execute the bond without which the bond obligation of the commercial surety shall be suspended until the power of attorney number is supplied provided the commercial surety provides notice to the clerk of court who mailed the notice to the surety of the failure to include such number in the notice by certified mail not later than thirty days following receipt of notice of the judgment. If the power of attorney number is not provided to the commercial surety within thirty days following the date of receipt by the clerk of court of the notice that it was not included in the notice of the judgment, the commercial surety shall be released from the bond obligation.
(b) After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.
(c) Failure to mail proper notice of the signing of the judgment within sixty days after the defendant’s failure to appear shall release the sureties of any and all obligations under the bond.

The record reflects when the defendant failed to appear, the court ordered a bench warrant be issued. Subsequently, the trial court issued three separate Judgments of Forfeiture of Appearance Bond. The record does not reflect the procedure required under La.R.S. 15:85 was followed. Although the record reflects Mr. Jones, Vidrine Bonding Co., and Savant were notified of the entering of the judgment of bond forfeiture by certified letter on July 2, 2002, the record does not contain return receipts evidencing this notification as required by La.R.S. 15:85(3)(b). La.R.S. 15:85(3)(c) provides unless proper notice is sent of the signing of the judgment within sixty days of the defendant’s failure to appear, the sureties shall be released of any and all obligations under the bond.

Furthermore, the record does not indicate the state requested that the bonds be forfeited. A clear reading of the statute suggests that the trial court may not initiate 19a bond forfeiture on his own motion. The statute requires the prosecuting attorney to request the bond forfeiture.

Furthermore, the date which appears on the appearance bonds issued by Savant for Mr. Jones to appear is January 16, 2001. There is no note in the court minutes that he either appeared on that day or that he was required to appear or that the matter was continued. When he did appear on subsequent dates, the matter was continued ten different times. Since neither the state nor Mr. Jones requested the continuance, we must assume the trial court continued the matter sua sponte.

Finally, the Judgments of Bond Forfeiture indicate Savant was notified through Vidrine Bonding that Mr. Jones was .ordered to appear on June 4, 2001. No evidence of this notification appears in the record.

Because there is no evidence that the mandatory requirements set forth in La. R.S. 15:85 were followed, we find Savant’s obligation under the bonds have been released. The judgment of the trial judge is reversed, and the bond forfeitures are, therefore, set aside.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    John M. GIBSON v. ALLSTATE INSURANCE COMPANY.
    No. 02-0892.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      William Howard Goforth, Lafayette, LA, for Plaintiff/Appellee, John M. Gibson.
    David Chalavon Forrester, Forrester, Jordan & Dick, L.L.C., Baton Rouge, LA, for Defendant/Appellant, Allstate Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   AMY, Judge.

The plaintiff brought an action against his homeowner’s insurer to recover losses from an alleged burglary. The trial court awarded the plaintiff damages in the amount of $15,226.94 for his loss in the burglary, together with $1,500 as penalties, and $4,503.42 in attorney’s fees. The defendant appealed, and the plaintiff answered seeking additional attorney’s fees. For the following reasons, we affirm and award additional attorney’s fees for work performed on appeal.

Factual and Procedural Background

This case arises out of an alleged burglary on June 1, 2000, in Rayne, Louisiana. The plaintiff, John Gibson, testified that he and his family were away from their home between the hours of 9:30 or 10:00 p.m. until shortly after midnight. When the plaintiff and his family returned, the plaintiffs oldest son noticed glass on the ground, and the plaintiff testified that he subsequently noticed that the glass on the side door of his home was shattered. Thereafter, the plaintiff and his family left the home and went to the Rayne Police Department. The plaintiff testified that, upon returning to the home with the police, he found the window in the side door damaged, two windows in his bedroom damaged, the bedroom ransacked, and many items from his home missing. The Rayne Police Department took pictures at the scene, and these pictures were admitted into evidence. There is no indication, however, that the Rayne Police Department conducted any follow-up investigation.

On July 3, 2000, the plaintiff made a claim with his homeowner’s insurer, Allstate Insurance Company. The claim was initially handled by Allen Beasley. However, Officer Carroll Stelly of the Rayne Police Department testified that he contacted Mr. Beasley and stated that the circumstances surrounding the burglary were suspicious. Specifically, Officer Stelly told Mr. Beasley that he suspected that |gthe burglary was staged. As a result, the plaintiffs claim was .transferred and assigned to an Allstate special investigator in Arkansas, Mack Hicks.

Mr. Hicks testified that he opened the file on July 26, 2002. On July 27, 2002, Mr. Hicks took the plaintiffs statement by telephone. Notably, this is the only statement that was recorded by Mr. Hicks. Mr. Hicks also requested that the plaintiff produce more proof of ownership of a few of the things that were claimed to be stolen. On July 28, 2002, Mr. Hicks phoned the Rayne Police Department hoping to speak to Officer Stelly. However, Mr. Hicks was only able to speak to an unnamed dispatcher. Nevertheless, Mr. Hicks eventually interviewed Officer Stelly by telephone on August 9, 2002. Although the plaintiffs claim was denied because Allstate believed the plaintiff falsified the burglary, Mr. Hicks sent a letter to the plaintiff on August 30 informing him that his claim was denied because he failed to provide sufficient proof of ownership. Allstate never canceled the plaintiffs policy or told the plaintiff that it believed that he staged the burglary. The plaintiff brought the instant action to recover his alleged losses.

After a trial on the merits, the trial court found that it was more probable than not that a burglary did occur. Further, the trial court found that the plaintiff provided sufficient proof that he owned the items which were claimed to have been stolen. The trial court additionally found that Allstate failed to act in good faith when dealing with the plaintiff. Consequently, the trial court rendered judgment in favor of the plaintiff in the amount of $15,226.94 for his loss in the burglary, together with $1,500.00 as penalties, and $4,503.42 in attorneys’ fees. Allstate now appeals raising the following assignments of error:

|3I. The trial court erred in finding that Mr. Gibson’s story about that alleged burglary and his acquisition of the recording equipment were not knowing misrepresentations of material fact;
II. The trial court erred in finding that a burglary occurred at the plaintiffs dwelling; and,
III. The trial court erred in finding that Allstate violated La.R.S. 22:658 and in awarding plaintiff penalties and attorney’s fees under that statute.

Discussion

Testimony of Mr. Gibson and the Burglary

Raising several arguments in support of these assignments of error, Allstate generally contends that the trial court’s conclusion that it was more probable than not that a burglary did occur is clearly erroneous. Allstate asserts that Mr. Gibson gave incredible, contradictory statements and testimony. Further, Allstate contends that Mr. Gibson made misrepresentations of material fact. In turn, Allstate argues that the trial court’s reliance on Mr. Gibson’s testimony was misplaced and led to an erroneous conclusion. We find that Allstate’s argument lacks merit.

In its written reasons for ruling, the trial court explained:

It is more probable than not that the burglary did occur. The facts at the scene are consistent with a burglary, with the possible exception of a lack of mud in the bedroom (if you believe Officer Stelly’s recollection to be correct) and even that is suspect. I reviewed the pictures and did not find the lawn to be freshly mowed. In fact the grass was rather long. Furthermore, wet yards do not yield muddy footprints if there is a sufficiently thick lawn.
Officer Stelly testified, after reviewing the pictures in evidence, that he believes the side door and one window were broken from the outside. The other he believes was broken from the inside. (Hicks’ notes say Stelly couldn’t tell.) This seems consistent with a break-in, and no evidence suggested the second window was not the most convenient place to off-load the items stolen, particularly since the stolen computer was located directly in front of that window.
I ¿Finally, I find Mr. Gibson’s testimony to be credible. He was confident and unwavering, and no credible evidence was presented that he was being anything but truthful. The Court does not believe he would be so devious as to fabricate a burglary and thereafter close his bank account (checks were stolen), remove the alarm system because he believed it was flawed and add burglar bars to the home in an effort to make his story more believable.
Has Gibson provided sufficient proof that he owned the items he claims were stolen?
The Court concluded he has. Except for being unable to find some sellers, there was no other evidence to suggest otherwise. I find little probative value in the fact that Gibson claims that he did not retain e-mail addresses anywhere but his computer. (Neither does this Trial Judge). And while it may be risky to do business with money orders, it seems to have worked for Gibson when buying items on the Internet.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993). Further, in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989), the Louisiana Supreme Court stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finders’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

(Citations omitted.)

Although Allstate provides several interpretations of the testimony and evidence, the trial court’s interpretations of the testimony and evidence are | ¡¡reasonable. The trial court’s written reasons for ruling provide that the trial court found that Mr. Gibson was credible; and, we do not find Mr. Gibson’s testimony inconsistent or implausible on its face such that a reasonable fact finder could not credit his testimony. On the other hand, the trial court found that Officer Stelly’s testimony was suspect. Accordingly, in light of Rosell, the trial court’s finding that it is more probable than not that the burglary did occur is not manifestly erroneous or clearly wrong.

Penalties and Attorney’s Fees

In its brief, Allstate argues that the trial court erred in finding that it was arbitrary, capricious or without probable cause in its denial to pay Mr. Gibson’s claim because Allstate asserts that it had a reasonable basis to suspect fraud. As a result, Allstate argues that the trial court’s ruling assessing penalties and attorney’s fees should be reversed. We find that Allstate’s argument lacks merit.

In its written reasons for ruling, the trial court stated:

Apparently, the extent of Mr. Hicks’ investigation was to speak by telephone with a person or persons with the Rayne Police Department and take a taped statement of Gibson by telephone. No other recorded statements were taken or interviews conducted. In fact, nothing else was done. A review of Gibson’s recorded statement provides no evidence the burglary was staged.
Thereafter, Allstate, through Hicks, informed Gibson his claim was being denied because of a lack of proof of ownership submitted by him (Gibson). He was not notified that it believed the burglary was staged.
Not only did Allstate not respond within 30 days, it clearly misrepresented its position to Gibson in its Aug. 30, 2000 letter. (Unless, of course, its position has changed — in which case this would be a strong indication of bad faith on its part. See La. Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, et al, 616 So.2d 1250 (La.1993).)
[ r,The Court is troubled most by the lack of effort by Allstate to thoroughly investigate the claim. It was happy to write the policy and, presumably, believed Gibson and his family were a good risk, yet it seemed to deny the claim before making an honest effort to determine its validity. It did no more than speak with the Rayne Police Department by telephone and later, receive its file (what little there is). Even an untrained investigator (which Mr. Hicks is not) would see that the Rayne Police Department did no investigation at all. And the hearsay opinion of a “dispatcher” can hardly be helpful in evaluating the claim. Allstate forwarded the ease to an out-of-state investigator who made a few phone calls. No real effort was made to determine if the items claimed stolen existed until after the claim was denied. Gibson was misled (presumably) with respect to why the claim was rejected. At the very least, it failed to act in good faith. It has spent far more time and effort to defeat the claim than it ever did investigating it in the first place.

A trial court may award penalties and attorney’s fees against insurers under La. R.S. 22:658 or 22:1220. First, La.R.S. 22:658 provides:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any other party in interest.
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658(A)(2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any said employees, together with all reasonable 17attorney fees from the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Second, La.R.S. 22:1220 provides:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

Addressing these statutes, the Louisiana Supreme Court stated:

The determination that an insurer’s handling of a claim is arbitrary and capricious is a factual finding which may not be disturbed unless manifestly erroneous. Brinston v. Automotive Cas. Ins. Co., 96-1982 (La.App. 4 Cir. 12/3/97), 703 So.2d 813, 816; Marcel v. Allstate Ins. Co., 536 So.2d 632 (La.App. 1 Cir.1988), writ denied, 539 So.2d 631 (La.1989). We have described an insurer’s action as “arbitrary and capricious” when its willful refusal of a claim is not based on a good faith [ defense, Louisiana Maintenance Servs., Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993), or is unreasonable without probable cause, Darby v. Safeco Ins. Co., 545 So.2d 1022, 1029 (La.1989). However, where the insurer has legitimate doubts about coverage, the insurer has the right to litigate these questionable claims without being subjected to damages and penalties. Darby, supra.

Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 5 (La.1/19/00); 753 So.2d 170, 173. Recognizing the relationship between La.R.S. 22:658 and La.R.S. 22:1220, the Louisiana Supreme Court also stated:

We have previously recognized the close relationship between the conduct prohibited in La. R.S. 22:658, subd. A(l) and the conduct prohibited in La. R.S. 22:1220, subd. B(5). Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97); 694 So.2d 184, 192, n. 14. In fact, the conduct prohibited is virtually identical, i.e., failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious or without probable cause. The primary difference is that under La. R.S. 22:658, subd. A(l), the insurer must pay the claim within 30 days of receiving satisfactory proof of loss, rather than the longer 60-day period allowed under La. R.S. 22:1220, subd. B(5).

Id. at pp. 6-7; 174. A panel of this court has interpreted La.R.S. 22:658 “to require that the insurer take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim.” McClendon v. Economy Fire & Cas. Ins. Co., 98-1537, p. 7 (La.App. 3 Cir. 4/7/99); 732 So.2d 727, 731. Thus, if an insurer has questions regarding the validity of a claim, the insurer must nevertheless investigate that claim within the statutory period. See Id.

Mr. Hicks testified that his entire investigation was done through phone calls made from Arkansas. Mr. Hicks never visited Rayne, Louisiana or met with Mr. Gibson in person. Furthermore, no agent of Allstate inspected Mr. Gibson’s home or met with Mr. Gibson in person. Mr. Hicks primarily relied on his telephone conversations with members of the Rayne Police Department. However, the | (Investigation file indicates that the Rayne Police Department conducted little initial investigation and no follow-up investigation.

When he spoke to Mr. Gibson on the telephone, Mr. Hicks stated that he requested that Mr. Gibson provide more proof of ownership and that Mr. Gibson complied. Notably, Mr. Hicks admitted at trial that Mr. Gibson provided sufficient proof of ownership of the claimed items. But, Mr. Hicks mailed a letter to Mr. Gibson providing Allstate was declining payment because Mr. Gibson failed to provide documentation to verify the loss or sufficient proof of ownership. Due to the fact that Mr. Gibson’s claim was denied because Allstate suspected that Mr. Gibson falsified the burglary claim, Mr. Hicks also admitted that this letter was misleading.

Mr. Gibson testified that he was never told by Allstate that it suspected that the burglary was staged until he brought this action against Allstate. In addition, Mr. Gibson stated that he telephoned Allstate to inquire about his claim, but he was told by Allstate that everything was fine. Mr. Gibson also testified that, although his policy with Allstate contained a cancellation clause for misrepresentation, Allstate never canceled his policy and accepted premiums until Mr. Gibson canceled the policy himself.

Initially, we note that, due to the trial court’s findings, penalties could have been arguably assessed pursuant to La.R.S. 22:1220. However, it appears from the trial court’s discussion and the amounts awarded that the penalties were assessed according to La.R.S. 22:658. In light of the evidence, we conclude that the trial court’s determination to assess penalties and attorney’s fees is not clearly wrong or manifestly erroneous under the particular facts of this case.

_L^Attorney’s Fees on the Appeal

Mr. Gibson’s counsel has answered the appeal seeking an increase in the award of attorney’s fees for work done on this appeal. The trial court awarded $4,503.42 in attorney’s fees for work performed in the prosecution of this case in the court below. See La.R.S. 22:658. When an award of attorney’s fees, pursuant to La.R.S. 22:658, is affirmed, the appellate court may award additional attorney’s fees for work done on appeal, provided that the plaintiff has requested the increase through proper appellate procedure. See Hayes v. Allstate Ins. Co., 99-1558 (La.App. 3 Cir. 3/1/00); 758 So.2d 900, writ denied, 00-1597 (La.8/31/00); 766 So.2d 1280; La.Code Civ.P. art 2133. Accordingly, we award additional attorney’s fees in the amount of $2,500.00 against Allstate for work done on this appeal.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. An additional $2,500.00 in attorney’s fees is awarded against the defendant, Allstate Insurance Company, for work done on this appeal. All costs of this appeal are assigned to the defendant, Allstate Insurance Company.

AFFIRMED; ADDITIONAL ATTORNEY’S FEES AWARDED.


author: WOODARD, Judge.

text:
    W.T.A., Individually and as Co-Administrator of the State of the Minor Child, A.J.A., v. Marcie YEAGER and S.J.S.H.A.D.
    No. 02-881.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Jack C. Fruge, Jr., Lafayette, LA, for PlaintiffiAppellant, W.T.A.
    L. Albert Forrest, Roy, Forrest & Lo-presto, New Iberia, LA, for Defendant/Ap-pellee, S.J.S.H.A.D.
    Gwendolyn S. Hebert, Hulse & Wanek, New Orleans, LA, for Defendant/Appellee, Marcie Yeager.
    Gretchen Heider, John E. Ortego & Associates, Lafayette, LA, for Intervenor/Ap-pellee, State Farm Fire and Casualty Company.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   WOODARD, Judge.

W.T.A. (Mr. A) appeals a summary judgment in State Farm’s favor, finding that no reasonable interpretation of the insurance policy at issue could afford coverage to S.J.S.H.A.D. (Ms. D) for any of the allegations in Mr. A’s petition for damages against her. We affirm.

* # # * *

A.J.A. is the son of Mr. A. and Ms. D, who were divorced in 1994. Ms. D remarried R.D. in 1995. A.J.A. lived with them.

During the domestic proceeding that underlies Mr. A’s cause of action, the court appointed an expert therapist to evaluate all parties. Ms. D retained a different therapist, Ms. Marcie Yeager, allegedly to offset any negative findings by the independent, court-appointed expert. Mr. A filed a petition, individually, and on behalf of his son, A.J. A., for the alleged tortious conduct of his ex-wife, Ms. D, and Ms. Yeager. Specifically, he asserted that Ms. D has caused A.J.A. harm by dressing him in female clothing and cosmetics for years, willfully and intentionally interfered with the normal father/son relationship between Mr. A and A.J. A., and, both, Ms. D and Ms. Yeager engaged in a pattern of making A.J.A. believe that his father abused him.

Initially, Ms. D answered in proper person. Subsequently, counsel for State Farm enrolled as her counsel because R.D. had a homeowners insurance policy with it. The insurance policy at issue was for July 1996 to July 1997 but still listed R.D. and his ex-wife, Patricia, as the insureds. Less than a month later, through different counsel, State Farm gave notice of its intent to attempt to defeat coverage by filing a petition of intervention and declaratory judgment. It filed a motion for summary judgment relative to the petition for declaratory judgment. State Farm’s counsel for Ms. D did not appear at the hearing on this motion, as he was retained to represent her “on the merits” of the claim against her. She agreed to continue without counsel.

The trial court granted summary judgment in State Farm’s favor, finding that the policy provided no coverage to Ms. D or A.J.A. for the injuries alleged. It relieved State Farm from defending Ms. D in this matter. Mr. A appeals the judgment, asserting numerous assignments of error.

| 2Assignments OF ERROR

Mr. A asserts that the trial court erred by granting summary judgment because: 1) State Farm did not produce a non-waiver or reservations of rights letter to Ms. D and therefore waived its coverage defenses, and the trial court’s denial of Mr. A’s subpoena of these documents based on an attorney-client privilege between State Farm and Ms. D demonstrates a conflict of interest; 2) the trial court’s statement that State Farm was paying an attorney to defeat the claim against Ms. D, yet did not assert the claim of coverage on her behalf, evidences a conflict of interest that should result in State Farm’s waiver of its coverage defenses; 3) the trial court’s judgment went beyond the pleadings when it relieved State Farm of its obligation to defend Ms. D because the summary judgment motion was based on only one policy for one specific policy term and because the court should have found a continuous tort; 4) State Farm’s failure to have counsel to represent Ms. D at the summary judgment hearing while providing counsel for itself to defeat coverage demonstrated a conflict of interest; and 5) State Farm did not meet its burden of proof under La.Code Civ.P. art. 966.

Standard of Review for Summary Judgment

We review summary judgments de novo under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Therefore, a motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

|3Non-waiver Agreement/Reservations of Rights Letter

A non-waiver agreement or reservation of rights letter is a document, indicating that the insurer retains its rights to defend itself based on the alleged insured’s lack of coverage under its policy. Even though, initially, the insurer may provide the potential insured with a defense against the claim, this is not. an admission that the policy covers that person. However, when an insurer undertakes to defend the potential insured, without reserving its rights to assert coverage defenses, it does so at the risk of waiving those defenses. Mr. A argues that the trial court’s grant of summary judgment was improper because State Farm presented no evidence that it had reserved its rights to assert that Ms. D was not covered under its policy. Accordingly, it waived all coverage defenses.

However, State Farm did not produce the reservation of rights letter because neither Ms. D nor Mr. A controverted its receipt at the summary judgment hearing. Therefore, the issue was not even before the trial court. Nonetheless, Mr. A argues that he should be able to assert this argument on appeal because State Farm’s conflict of interest was indirectly responsible for this argument not being asserted at the summary judgment hearing. Specifically, he argues that it was a conflict of interest for State Farm to have counsel present on its own behalf, attempting to defeat coverage, at the summary judgment hearing, while the counsel, which State Farm enlisted on Ms. D’s behalf, was not present.

It is questionable whether Mr. A has standing to argue these issues, notwithstanding, we will address them.

We acknowledge that one of the main purposes of stringently applying waiver principles is to ensure that no conflicts of interest between the insurer and insured affect legal representation. Mr. A seems to be arguing that the alleged conflict of interest did, in fact, affect Ms. D’s legal representation, mandating that this court make presumptions adverse to State Farm. Namely, he is asking us to presume that | ¿if Ms. D’s counsel had been present, he would have raised the issue of whether State Farm had reserved its rights. Even though Ms. D clearly chose to proceed at the hearing without any counsel, she changed her mind during the proceeding and admitted that, perhaps, she did need counsel. Thus, he urges that the trial court erred in granting summary judgment without, at least, confirming the existence of a non-waiver agreement.

Inter alia, effectively, this would put the trial court in the position of being an advocate. Moreover, we neither see the logic in or merit to this speculative argument nor do we find that there was a conflict of interest. State Farm retained separate counsel to represent Ms. D on the merits of the claims against her and to represent itself on whether she was actually covered. It was not required to defend her on the issue of coverage alone.

Importantly, Mr. A, himself, was present at the summary judgment hearing. Certainly, he cannot argue that the absence of counsel for Ms. D prevented him from raising the issue before the trial court. Therefore, he has no basis for asserting this argument on appeal. Accordingly, we do not find State Farm’s reservation of its rights to be a genuine issue of material fact that was in dispute.

Notwithstanding, we note that State Farm did include the reservation of rights letter as a proffer. It is dated more than a month before it enlisted counsel on Ms. D’s behalf. Furthermore, Ms. D had notice that State Farm was asserting a coverage defense when it filed a petition for declaratory judgment on the issue less than a month after it undertook her defense. We cannot say that State Farm intentionally relinquished its right to assert a coverage defense.

Thus, we pretermit the remaining assignments of error based upon State Farm’s alleged conflict of interest and turn to whether the trial court erred in finding that Ms. D was not covered under the policy.

Coverage Under the Homeowners Policy

The trial court found that, even though there were several bases for denying coverage, the most apparent one is that, even if the policy covered the present Ms. D, the alleged conduct and injury were excluded. Though the policy does cover bodil^injury, “emotional distress, mental anguish, humiliation, mental distress, mental injury or any similar injury unless it arises out of actual physical injury to some person,” is specifically excluded from the definition of bodily injury. This is precisely the nature of Mr. A’s complaints. Moreover, “bodily injury ... which is either expected or intended by an insured; or to any person ... which is the result of willful and malicious acts of an insured,” (emphasis added) is excluded from the personal liability coverage under the policy. Mr. A states in the last paragraph of his petition that:

As a result of the aforestated willful and wanton misconduct of Jacobs [Ms. D] and the multiple deviations from applicable therapeutic standards, i.e., therapeutic malpractice, by Yeager, both plaintiff and his minor child, [A.J.A.], have suffered severe mental anguish and distress, emotional and psychological harm, humiliation and inconvenience for which plaintiff and his minor child are entitled to be compensated fully and completely.

(Emphasis added.)

Thus, we agree with the trial court that no reasonable interpretation of the policy would provide Ms. D with coverage for any of the damages which Mr. A asserts in his petition.

Furthermore, Mr. A argues that “since the motion for summary judgment and the judgment simply dismiss State Farm under that policy number as insurers of [R.D.] and [Patricia], the motion and judgment should apply only to that policy and policy period insuring those two parties until divorce or remarriage to [Ms. D].” Mr. A’s concerns are irrelevant to our ruling. We have only one policy before us. We decided this case based on the terms of that policy. A change of insureds, dates of effectiveness, or policy numbers, absent a change of terms involving our decision, would not alter our decision.

Given our ruling, the remaining assignments of error are pretermitted.

| «CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of State Farm and cast the costs of this appeal on Appellant, Mr. A.

AFFIRMED.

AMY, J., concurs.

      . Seaman v. Howard, 98-1492 (La.App. 3 Cir. 6/2/99); 743 So.2d 694, writ denied, 95-1901 (La.10/29/99); 748 So.2d 1165.

      . La.Code Civ.P. art. 966(B).

      . Steptore v. Masco Const. Co., 93-2064 (La.8/18/94); 643 So.2d 1213.

      . Id.

      . Gilbert v. B.D.O.W.S., Inc., 33,006 (La.App. 2 Cir. 6/23/00); 764 So.2d 313.

      . Steptore, 643 So.2d 1213.

      . Menard v. Lafleur, 98-1558 (La.App. 3 Cir. 3/3/1999); 737 So.2d 844.


author: DECUIR, Judge.

text:
    Tamaran Lynn SANDOVAL v. Lorenzo J. SANDOVAL.
    No. 02-0849.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Writ Denied Feb. 5, 2003.

      Scott Westerehil, Leesville, LA, for Ta-maran Lynn Sandoval.
    Charles A. “Sam” Jones, III, DeRidder, LA, for Lorenzo J. Sandoval.

      Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   DECUIR, Judge.

In this domestic case, the mother appeals a judgment modifying child custody, visitation and support. For the reasons that follow, we affirm as amended.

FACTS

Tamaran and Lorenzo Sandoval are both active duty military personnel currently stationed in Washington, D.C. and California, respectively. On March 20, 2001, the trial court, based on Tamaran’s stated intent to leave the military, awarded sole custody of their one-year-old daughter to her and ordered broad general visitation for Lorenzo. In addition, Lorenzo was ordered to pay $390.00 per month in child support.

Tamaran repeatedly refused Lorenzo visitation with his daughter. On January 9, 2002, Lorenzo filed a rule to set visitation, change custody, lower child support and a rule for contempt against Tamaran for failure to comply with a visitation order. After a hearing, the trial court, noting that Tamaran had not left the military and that the parties do not cooperate well, awarded joint custody. Finding that both were good parents, the court made neither the domiciliary parent, instead splitting custody on an alternating six month basis. In addition, the trial court ordered neither party to pay child support. Tamaran lodged this appeal.

MODIFICATION OF CONSIDERED DECREE

Tamaran alleges both manifest and legal error on the part of the trial court. Specifically, she argues that the trial court erred in finding that Lorenzo had satisfied the burden of proof for modification of a considered decree.

In custody modification cases, when a party attempts to modify a “considered decree,” he bears the heavy burden of proving that the continuation of present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a |2change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

In the case at bar, there is no evidence to suggest that Tamaran’s care of the child is inadequate. Accordingly, the question is whether Lorenzo proved by clear and convincing evidence that the harm caused by the change of environment would be substantially outweighed by its advantages to the child. The trial court noted that the original custody plan had not worked as intended by the court and that the child was in effect being denied access to her father. It is apparent to us that the trial court concluded that Lorenzo established that the advantage of having a father as a regular part of her life substantially outweighed any harm caused by the change in environment. We find no abuse of discretion in that determination.

However, we find that the trial court abused its discretion in ordering split six month custody. In custody cases the court’s primary consideration should be the best interest of the child. La.Civ.Code art. 131; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). It is important that the critical issues of continuity and stability of environment be considered in determining custody. Ezell v. Kelley, 535 So.2d 969 (La.App. 2 Cir.1988). In providing for joint custody, the legislature contemplated that each party have substantial rather than equal time with the child. La.R.S. 9:335; Nichols v. Nichols, 32,219 (La.App. 2 Cir. 9/22/99), 747 So.2d 120.

In cases such as this one where the parties are living on opposite coasts, assuring contact with both parties is particularly difficult. Nevertheless, the courts of this state have found equal sharing of time to be an abuse of discretion when the parties lived significant distances from one another. See Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731; Alexander v. Alexander, 02-683 (La.App. 3 Cir. 11/13/02), 831 So.2d 1060; Stanley v. Stanley, 592 So.2d 862 (La.App. 3 Cir.1991), writ denied, 592 So.2d 1339 (La.1992); Swope v.Swope, 521 So.2d 656 (La.App. 1 Cir.1988); Templeton v. Templeton, 98-2503 (La.App. 1 Cir. 4/1/99), 730 So.2d 1070. We likewise find the equal sharing of custody, as ordered by the court, to be an abuse of discretion.

We find it in the best interest of the child that the joint custody established by the trial court be upheld. However, we amend the order to designate Tamaran the primary domiciliary parent subject to the following visitation schedule:

1) Lorenzo to have domicilary custody of the child every summer from June 1 until and including Labor Day, until such time as the child reaches school age. Thereafter, Lorenzo shall have domiciliary custody commencing three days after the close of school until three days prior to the opening of school.

2) The parties to alternate the major holidays of Easter, Thanksgiving, Christmas and New Year’s, with Lorenzo having Easter and Christmas this year and Ta-maran Thanksgiving and New Year’s. The duration of each holiday visitation will be one week or the duration of the school break when applicable.

3) Lorenzo to be allowed visitation of one day during the week of the child’s birthday each year.

4) Travel arrangements and additional visitation as ordered in the judgment of the trial court.

CHILD SUPPORT

In its judgment, the trial judge ordered no child support by either party because custody was equally divided. Since we have amended the court’s visitation plan, we must reverse the trial court’s judgment regarding the child support. After reviewing the record, we find that Lorenzo failed to establish a change in circumstance warranting a reduction of the trial court’s original support order of $390.00 per | ¿month. Accordingly, we reverse the judgment of the trial court and order Lorenzo to pay $390.00 per month in child support with said payments to be suspended for the designated summer visitation periods. Recognizing that there are additional cost associated with being the primary domiciliary parent, we decline to order support by Tamaran during those months.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed as amended in part, reversed in part, and rendered. All costs of these proceedings are taxed one-half to appellant, Tamaran Sandoval and one-half to appellee, Lorenzo Sandoval.

AFFIRMED AS AMENDED IN PART, REVERSED IN PART, AND RENDERED.


author: LAMY, Judge.

text:
    STATE of Louisiana v. Brian Keith FRANCIS.
    No. 02-0862.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Neal Glen Johnson, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defen-dani/Appellant, Brian Keith Francis.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   LAMY, Judge.

The defendant appeals his conviction for four counts of manslaughter. He contends that the trial court failed to establish a sufficient factual basis to support his plea, which he asserts was conditionally entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). We affirm.

Factual and Procedural Background

The offenses at issue in this appeal arise from the traffic deaths of Toyori Kees, Garland Malbreaux, Cardella Charles, and Arthur Broussard on August 22, 1999. The defendant, Brian Keith Francis, was charged by bill of information with four counts of manslaughter, violations of La. R.S. 14:31, a single count of flight from a police officer, a violation of La.R.S. 14:108.1(C), a single count of reckless operation, a violation of La.R.S. 14:99, three counts of failure to stop at a stop sign, violations of La.R.S. 32:124, and a single count of speeding, a violation of La.R.S. 32:123.

Pursuant to a plea agreement, the defendant pleaded guilty to four counts of manslaughter on May 15, 2001. The minutes indicate that the State dismissed the remaining charges. The trial court ordered a pre-sentence investigation report.

On June 4, 2001, the defendant filed a Motion to Withdraw Guilty Plea, wherein he alleged that he was misled as to, or misunderstood the availability of, any sentencing. cap, or lack thereof, on the sen-tenting exposure. The defendant also asserted that his attorney refused to allow him to enter a plea of not guilty by reason of insanity. The trial court denied the defendant’s motion and turned to sentencing. On each count of manslaughter, the defendant was sentenced to fifteen years at hard labor. The trial court ordered that the sentences be served concurrently.

The defendant appeals, assigning the following as error:

The trial court erred in accepting a guilty plea where there was no factual basis for the charge of manslaughter, a specific intent crime, in the case of accidental deaths arising from a police chase and traffic accident.

Discussion

Errors Patent

As is required by La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. Our review in this regard reveals no errors patent.

Factual Basis

In his sole assignment of error, the defendant contends that the State provided an insufficient factual basis to support his plea which, he contends, was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This argument differs from the basis for withdrawal asserted in the defendant’s motion to withdraw. The argument in the motion focused on the defendant’s understanding, or lack thereof, of the plea agreement. The State contends that the defendant’s plea was not sufficiently preserved under the requirements of Alford and its progeny. The State points out that the defendant did not assert his innocence at the plea hearing so as to alert the trial court that it was required to establish a factual basis for the guilty plea.

In Alford, 400 U.S. 25, 91 S.Ct. 160, the United States Supreme Court, considered a guilty plea entered by a defendant who expressly denied his guilt in the commission of the offense. He explained that he entered the guilty plea because he faced the threat of the death penalty. Finding the plea valid, the Supreme Court explained:

Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, see McCarthy v. United States, supra, 394 U.S., at 466-467, 89 S.Ct., at 1170-1171 (1969), its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.

Id. at 37-38, 91 S.Ct. at 167-68 (footnotes omitted).

In State v. Orman, 97-2089 (La.1/9/98); 704 So.2d 245, the Louisiana Supreme Court considered a plea purportedly entered under the qualifications of Alford, and concluded that circumstances of the plea did not preserve the plea. The supreme court explained:

Although relator purported to enter a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), relator did not claim at the guilty plea colloquy, and does not maintain in his present application, that he is innocent of the crime but instead has alleged only that as the result of drug and alcohol intoxication at the time of the offense, he remains unable to recall the critical events surrounding the death of the victim. Relator thus entered the equivalent of a nolo contende-re plea which did not require the trial court to resolve the inherent conflict between the waiver of trial and a claim of innocence. See State v. Guffey, 94-0797, p. 11 (La.App. 3d Cir.2/1/95), 649 So.2d 1169, 1174 (a nolo contendere plea, unlike a plea accompanied by a claim of innocence, does not put the trial court on notice that it must ascertain a factual basis).
Moreover, even assuming that relator had protested his innocence when he entered his guilty plea and further assuming that in all cases involving a bona fide Alford plea the record “before the judge [must] contain! ] strong evidence of actual guilt,” id., 400 U.S. at 38, 91 S.Ct. at 167, the standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea “represents a voluntary and intelligent choice among the alternative[s].” Id., 400 U.S. at 31, 91 S.Ct. at 164.

Id. at p. 1-2; 245. See also State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00); 759 So.2d 126, writ denied, 00-1175 (La.3/16/01); 786 So.2d 745.

Our review of the plea colloquy reveals similarity to that examined by the Louisiana Supreme Court in Orman in that there is no express declaration of | innocence. Following the Boykinization, the following exchange contains the only reference to Alford:

BY THE COURT: Do you understand that by entering this plea of guilty, you are giving up and waiving all the rights that I’ve mentioned?
THE DEFENDANT: Yes.
BY THE COURT: Has anyone made any promises of any kind or threats— has anyone made any promises or threats—
THE DEFENDANT: No.
BY THE COURT: — in order to get you to plead guilty, other than your discussions with the State about your sentence?
THE DEFENDANT: No.
BY THE COURT: Your plea form indicates that in No. 84820, you are charged with four (4) counts of manslaughter, a violation of Title 14, Section 31. That crime is punishable by imprisonment at hard labor for not more than forty (40) years on each count. Your plea form indicates that you’ve agreed to plead guilty to those four (4) counts and that a pre-sentence investigation will be ordered and sentence to be imposed by the Court after the pre-sentence investigation. Is that your understanding of the plea agreement reached with the State?
THE DEFENDANT: Yes.
BY THE COURT: Ms. Duhon, what would the State intend to prove as to Mr. Francis?
MS. DUHON: Your Honor, the state would have proven at trial that on August the 22nd, 1999, Brian Keith Francis did commit manslaughter of Toyori Kees, did also commit manslaughter of Garland Malbreaux, did commit manslaughter of Cardella Charles and did commit manslaughter of Arthur Brous-sard. This occurred in Lafayette Parish in violation of the provisions of R.S.14-.31.
BY THE COURT: How do you plead, Mr. Francis?
MR. CALAHAN: Your Honor, on behalf of Mr. Francis, he wishes to enter a plea of guilty which he’ll do in his own voice under the terms of State versus Alfred [sic] because it’s in his best interest and he will enter this plea.
BY THE COURT: How do you plead, Mr. Francis?
|rTHE DEFENDANT: Guilty.
BY THE COURT: Okay. I find your plea to be knowing and voluntary. I accept it. I adjudicate you guilty and I sentence you in accordance with that plea agreement. I’m sorry, I order a pre-sentence investigation, following which I will schedule a sentencing hearing and I’ll notify you and counsel as to the date that that is set. I’ll set it just as soon as is convenient after the receipt of the pre-sentence investigation report.

In Alford, the defendant entered an express declaration of his innocence. The same is not true in the instant matter. Instead, only a passing reference to Alford was made. Given the guidance provided by Orman, defense counsel’s reference was insufficient to afford the protections of Alford. Furthermore, the defendant does not proclaim his innocence in his brief to this court. Rather, he asserts that he admitted to no fact which would support a conviction under La.R.S. 14:31. Although the defendant’s attorney purported to enter a plea under Alford, we conclude that, as in Orman, the defendant entered the equivalent of a nolo contendere plea, relieving the trial court of the burden to resolve the conflict between a waiver of trial and a claim of innocence.

This assignment is without merit.

DECREE

For the foregoing reasons, the convictions of the defendant are affirmed.

AFFIRMED.


author: GREMILLION, Judge.

text:
    SUCCESSION OF Winona Quirk VENTRE. Emile K. Ventre, Jr. v. Kathleen Q. Lipari, Administrative of the Succession of Winona Quirk Ventre.
    Nos. 02-0541, 02-0542.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      David L. Carriere, Opelousas, LA, for Kathleen Q. Lipari, Administratrix of the Succession of Winonaquirk Ventre.
    Tracy Peter Curtis, Lafayette, LA, for Appellant, Emile Ventre, Jr.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

In these consolidated cases, the plaintiff, Emile K. Ventre, Jr., appeals the judgment of the trial court in favor of the defendant, Kathleen Q. Lipari, Administra-trix of the Estate of Winona Q. Ventre (Estate). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Winona and Emile were married on December 12, 1975. On November 3, 1991, Winona was killed in a car accident. On July 28, 1994, Emile filed a declaratory judgment action seeking that the trial court find the marriage contract, which instituted a separation of property regime, null. In Succession of Ventre, 96-559 (La. App. 3 Cir. 11/6/96), 682 So.2d 988, we upheld the trial court’s ruling for different reasons, and found the marriage contract was valid. We further found that Emile had come to court with “unclean hands” and that his testimony was not credible.

Emile filed a claim for reimbursement on March 13, 1998. Karl claims that the Estate is indebted to his father’s estate for a return of his separate funds expended on Winona’s separate property. The Estate filed exceptions of res judicata and prescription and answered the petition. In an affirmative defense, the Estate claimed parole evidence could not be used to prove the amount of indebtedness, citing the Dead Man’s Statute, La.R.S. 13:3721. After a hearing in June 1998, the trial court overruled the exception of res judicata. In December 1998, Emile filed an | ¡.amended and restated petition adding additional monies as due for reimbursement. The Estate again filed an exception of prescription. Emile then filed a motion to set for hearing his exception of prescription and his own motion in limine as to why parole evidence should not be allowed to prove the claims for reimbursement.

Following a hearing in February 2002, the trial court found that Emile’s reimbursement claim against the estate had prescribed and, therefore, pursuant to the Dead Man’s Statute, he would be unable to meet his evidentiary burden at trial. Therefore, it denied Emile’s motion in li-mine and dismissed his claims. Emile timely appealed to this court.

ISSUES

Emile assigns as error:

1. The trial court’s dismissal of his case based on a single evidentiary ruling (that the Dead Man’s Statute precluded the introduction of parole evidence).
2. The trial court’s finding, which, if correct, would have resulted in the trial court granting the exception of prescription, that the claim for reimbursement was not timely filed and that the petition for declaratory judgment did not interrupt the running of prescription.

PETITION FOR DECLARATORY JUDGMENT

In February 2002, counsel for both parties signed a stipulation that the declaratory judgment action was filed in July 1992. However, the trial court determined that said date was a typographical error and that it was actually filed on July 28, 1994. Factual findings of the trial court will not be disturbed in the absence of manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). If a reasonable basis exists in the record for the trial court’s finding, no error has | ^occurred. Id. We have reviewed the evidence and find that the trial court did not commit manifest error in finding that the petition for declaratory judgment was filed in July 1994, more than two years following Winona’s death. Emile offers no evidence, other than the stipulation, and we have reviewed the original filing date of the petition for declaratory judgment, which was in 1994. Moreover, the Declaratory Judgment action itself states, “On July 1, 1994, Kathleen Quirk Lipari was appointed administratrix of the Succession of Winona Quirk Ventre.” Surely, Emile does not now claim that, in 1992, he foresaw that Lipari would be named adminis-tratrix of the estate in July 1994. We find Emile’s claims incredulous and find no error in the trial court’s factual finding that the petition for declaratory judgment was not filed until July 1994. Moreover, for the reasons stated below, we do not find that the filing of the petition for declaratory judgment interrupted the prescriptive period set forth in the Dead Man’s Statute, as urged by Emile.

DEAD MAN’S STATUTE

The trial court’s evidentiary ruling that this statute applies will not be reversed in the absence of an abuse of discretion. Johnson v. First Nat'l Bank of Shreveport, 00-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, writs denied, 01-2770 (La.1/4/02); 805 So.2d 212 and 01-2783 (La.1/4/02); 805 So.2d 213. The Dead Man’s Statute, La. R.S. 13:3721, requires that a claim for reimbursement from an estate of the deceased be filed within one year of the decedent’s death. It states (emphasis added):

Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless vnth-in one year of the death of the deceased:
|4(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.

The trial court found that Emile’s claims for reimbursement were not instituted until March 13, 1998, over six years following Winona’s death and, therefore, the Dead Man’s statute applied to exclude parol evidence of the alleged reimbursements owed to him. We agree. Further, we do not find that the petition for declaratory judgment, which was filed more than two years following Winona’s death, serves to interrupt prescription in this case. Although the trial court stated that it could not determine if the petition for declaratory judgment put the parties on notice of Emile’s claim for reimbursement, we find this of no moment. Even if it did, it was still filed more than one year following Winona’s death and, therefore, no parol evidence would be allowed as proof of Emile’s reimbursement claims. Emile failed to take any of the actions required by the statute within one year of Winona’s death, therefore, he is precluded from submitting parol evidence to prove his reimbursement claims.

Emile relies on the case of Adams v. Carter, 393 So.2d 253 (La.App. 1 Cir.1980), writ denied, 398 So.2d 531 (La.1981), which found that the Dead Man’s | ¡¡Statute was not applicable in a suit for reimbursement. We find that case inapplicable to the one at hand. Emile had ample opportunity to bring claims for reimbursement within one year of Winona’s death. Now, more than six years after her death and after his own death, Emile’s son seeks to bring reimbursement claims. We find this factual situation to be one where the purpose of the statute, the prevention of fraud and bringing of stale claims, is clearly met.

Finally, Emile makes the novel argument that, until we declared that he and Winona were governed by a separate property regime, he was the owner of her succession, and therefore, did not have to put himself on notice of the claim for reimbursement. We disagree. Emile had notice and should not have been remotely surprised when we determined that a separation of property agreement had been entered into by the parties. Thus, his claim for reimbursement within the one year period would not have been futile, but would have preserved his right to present parole evidence. This assignment of error is without merit.

DISMISSAL

Without the introduction of parole evidence to support the reimbursement claims, the trial court was of the opinion that Emile would not be able to meet his evidentiary burden at trial. Therefore, it dismissed his claims. We agree and find no error in the trial court’s dismissal. The effect of the application of the Dead Man’s Statute is that Karl will be unable to introduce any evidence to support his father’s reimbursement claims. Pursuit of these claims would be a waste of the trial court’s time. Thus, we find this assignment of error to be without merit.

CONCLUSION

The judgment in favor of the defendant, Kathleen Lipari, as administratrix of the succession of Winona Quirk Ventre, and against the plaintiff-appellant, Emile K. Ventre, Jr., is affirmed. All costs of this appeal are assessed against Emile K. Ven-tre, Jr.

AFFIRMED.

      . Emile's son, Dr. Emile K. Ventre III (Karl), filed these proceedings on his father's behalf pursuant to a power of attorney. Emile died in March 1999. Karl wished to prove the claims for reimbursement via canceled checks written by his father, various receipts, and banking statements. Emile did not provide testimony concerning the reimbursements before his death.


author: LEE, Judge,

text:
    Clifton Lee HARLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00226-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2002.
    Ray Charles Carter, Madison, for Appellant.
    Office of the Attorney General by: Deirdre McCrory, Jackson, for Appellee.
    Before SOUTHWICK, P.J., LEE, AND MYERS, JJ.
   LEE, Judge,

for the Court.

PROCEDURAL HISTORY

¶ 1. The appellant, Clifton Lee Harley, was indicted in August 1997 on four counts: kidnaping, rape, sexual battery, and aggravated assault. After a trial in December 2000, a mistrial was declared with regard to the kidnaping and rape counts, but Harley was found not guilty of sexual battery and guilty of aggravated assault. He was sentenced to serve twenty years for the aggravated assault charge.

¶ 2. On appeal, Harvey argues that the court erred in granting the State’s motion in limine concerning admission of evidence regarding the victim’s prior sexual history, and that the verdict was against the overwhelming weight of the evidence. Having reviewed the arguments raised, we find no merit to either issue; thus, we affirm.

FACTS

¶ 3. On or about August 7, 1997, Alicia Anderson was with Clifton Harley, her live-in boyfriend at that time. Anderson conveyed at trial that beginning the early morning of August 7 continuing through the evening of August 8, Harley accused her of infidelity and held her prisoner against her will. During this time, Anderson testified that Harley beat her with various objects including a tire iron, belt buckles, and a stick with an extension cord wrapped on it. Anderson also described how Harley forced her to perform oral sex on him and also how he tied her up and stuck a broom handle into her vagina. He also forced her to have sex with him. Later, Harley forced Anderson from their home into a vehicle where he continued to assault her. A witness called the police and they came to the scene. Once Harley noticed the police, he ran away and was not apprehended until a later time. Anderson was taken to the hospital where she was treated for the multiple bruises, abrasions and cuts she had suffered all over her body.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN GRANTING THE STATE’S MOTION IN LIMINE, THEREBY DENYING THE APPELLANT THE RIGHT TO A FAIR TRIAL?

¶ 4. Prior to trial, the State filed two motions in limine. The first motion asked the court to prohibit the defense from referring to Anderson’s past sexual behavior except as relating to Harley or to Anderson’s cousin, Michael Thomas. The second motion asked the court to prohibit any reference to Anderson’s criminal history since this, too, was irrelevant to the present case. The motions in limine were heard prior to opening statements by each party, and the court granted both motions.

¶ 5. On appeal, Harley declines to contest the court’s granting of the motion concerning Anderson’s criminal history; however, he takes issue with the court’s granting the motion concerning Anderson’s sexual history. “Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Unless [its] judicial discretion is abused, this Court will not reverse [its] ruling.” Crawford v. State, 754 So.2d 1211(¶ 7) (Miss.2000) (citation omitted).

¶ 6. Harley argues that the court erred in granting the motion because this decision effectively rendered him unable to raise his theory of defense. This defense, specifically, was that Anderson had engaged in sexual intercourse with her cousin and was assaulted by the cousin the day prior to the alleged attack, which would have explained some of her injuries, yet Anderson chose to blame those injuries on Harley rather than admit to the jury that she had a sexual relationship with her cousin. Harley admits that he did hit Anderson, but .explains he was angry with her because on the morning of the attack she had confessed to him that she had engaged in sexual relations with her cousin. Harley argues that to deny him the opportunity to point out and explore the nature, extent and timeliness of a recent prior sexual encounter which involved violence to Anderson was error that violated Harley’s right to a fair trial.

¶ 7. The court ruled that to the extent that Harley wanted to prove why he was mad at Anderson, he could refer to Anderson’s confession of the relationship with her cousin. However, any specific reference to dates and times of Anderson’s sexual relations with her cousin or with any other person would not be permitted due to their prejudicial impact, which outweighed the probative value of such information.

¶ 8. From the transcript, we ascertain that the defense intended to attack Anderson’s character through the introduction of various witnesses who would testify as to Anderson’s past sexual relations and history, and this was the reason for the State’s filing the motion in limine. At the hearing, the defense acknowledged that the only witness that would be called in this regard would be Anderson’s cousin, and the judge said the cousin could only be questioned to show that the reason for Harley’s anger towards Anderson was her revelation that she had been seeing her cousin behind Harley’s back. No specific information could be solicited concerning the specific nature and frequency of Anderson’s physical relations with her cousin.

The relevancy and admissibility of evidence are largely within the discretion of the trial court and this Court should only reverse where it is clear that discretion has been abused. It is also well settled that error may not be predicated-upon a ruling which admits or excludes evidence unless a substantial right is affected by the ruling.

Simmons v. State, 805 So.2d 452 (¶ 92) (Miss.2001) (citations omitted). The judge explained in her ruling that the probative value was outweighed by the prejudicial effect that would result were Harley allowed to attack Anderson’s credibility by showing her promiscuity, which was irrelevant to the case except with regard to the cousin and to Harley. Harley had the burden of showing that the court abused its discretion in ordering this evidence be excluded. Harley has not met his burden; thus, we find no merit to this issue.

II. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 9. In arguing that the verdict was against the overwhelming weight of the evidence, Harley claims that Anderson’s story was not corroborated by other witnesses, no forensic or other scientific evidence connecting himself to the crimes was produced, and the evidence did not support the verdict such that a reasonable jury could have found him guilty on the facts as presented.

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77 (¶ 14) (Miss.2001). Looking to the evidence in support of the verdict, we find that no unconscionable injustice results if we allow the verdict to stand. Harley was convicted solely of aggravated assault, a charge which he admitted in his statement to police that he had committed. Accordingly, we affirm.

¶10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: SOUTHWICK, P.J.,

text:
    Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., Appellants, v. The CITY OF BATESVILLE, Appellee.
    No. 2001-CA-01089-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2002.
    Pope Shannon Mallette, Oxford, Donna L. Gurley, attorneys for appellants.

      Benjamin E. Griffith, .Cleveland, attorney for appellee.
    Before SOUTHWICK, PJ„ BRIDGES, and BRANTLEY, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Panola County entered into a development agreement with several landowners. Included was an obligation under certain contingencies to build a public road. The City of Batesville later assumed the County’s obligations under the agreement. The landowners are here asserting that the City’s failure so far to build the road is a breach of the agreement. We find that since the agreement had no definite time requirement for the construction of the road, that the landowners have not shown that there has yet been a breach. We affirm the lower court’s judgment.

STATEMENT OF FACTS

¶ 2. Panola County developed plans for construction of an arena on property east of Interstate 55 and south of Highway 6 East in Batesville, Mississippi. The County’s architect, the Warrior Group, LTD, prepared drawings for what was called the “Arena Project.” Those drawings included both the layout of the buildings to be constructed as well as parking lots and a five-lane road leading from the project and intersecting with Highway 6. Also included was a topographical map detailing the extent to which certain portions of the property would be leveled.

¶ 3. On July 31, 1996, Panola County entered into an agreement for a temporary easement with James Whitaker, Sr., James Whitaker, Jr., and David and Julia Lange (collectively referred to here as “the Whit-akers”). The Whitakers granted to Panola County “a temporary right of entry and temporary easement” to a certain parcel of property which was to the east of the Arena Project property. The Whitaker property and the Arena Project property shared a common boundary. The temporary easement allowed Panola County to enter the Whitaker property for the purpose of removing 70,000 cubic yards of dirt. The project ultimately required 100,-000 cubic yards of dirt. Once the removal was complete, the easement and right of entry would terminate.

¶ 4. Several conditions were placed upon the grant of the easement. The condition which is the subject of this litigation reads as follows:

The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part .of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.

The County also agreed to transfer to the Whitakers a .11 acre parcel of property to the east of the road, but only if a road was built.

¶ 5. The County later determined that it did not have the financial resources to continue with the Arena Project. The County began negotiations for transferring ownership to and completing the project by the City of Batesville. The County, in a letter dated August 3, 1998, requested that the negotiations include a promise by the City to honor the agreement it had entered with the Whitakers concerning the possible construction of a public road.

¶ 6. The County and City signed an agreement on June 16, 1999. The City agreed to complete only Phase I of the Arena Project. The agreement specifically stated that Phase I consisted solely “of the construction of a Stall barn and Multi-Plex Arena.” The agreement referred to the plans drawn by the Warrior Group, LTD. The City specifically refused to agree to the construction of any other parts of the project shown on those plans. The City also specifically agreed to “honor the Agreement for Temporary Easement between the County and James S. Whitaker et al dated July 31, 1996....” A copy of the temporary easement was attached to the agreement.

¶ 7. While the Arena Project was proceeding, a new hospital was constructed on property located west of it. Also proposed was the construction of Wal-Mart Super-Center between Interstate 55 and the new hospital. For clarity, we note that the Whitaker property was to the east of the Arena Project, while both the hospital and the Wal-Mart store were to the west. All these projects were south of the major west-east road, which was Highway 6.

¶ 8. At a February 18, 2000 meeting of the Board of Alderman for the City, discussion turned to the Arena Project. The minutes note that the “need and placement of roads in the area was also discussed.” The minutes note that “Whitaker Road is to be a five lane road.” Presumably, this is a reference to the five-lane public road shown on the plans prepared by the Warri- or Group, LTD, and the public road that was to be constructed should Phase 2 of the Arena Project commence.

¶ 9. At a May 2, 2000 meeting, the minutes show that the assistant city attorney was authorized by the Board “to draw up appropriate documents to move forward on the agreement between the County and Mr. Whitaker that the City has agreed to honor.” A memorandum provided to the Whitakers requested that they sign and have notarized a deed to the City “in fulfillment of [the] agreement with the County.” On May 23, 2000, the Whitakers executed a deed donating to the City 4.81 acres of property for the proposed road. The deed did not include specifications for the road such as how many lanes the road might be or when its construction would be completed.

¶ 10. At a September 5, 2000 meeting, the Board decided to delay determining the layout of the roads in the Arena Project area. However, the Board stated that as to the arena, “the main road will be the east most road agreed to in the original agreement between the county and land owners.... ” The minutes were later amended to specify that the eastern-most road would be the main road if there were two entrances to the property. The Board also authorized a traffic study for the hospital and civic arena area.

¶ 11. At a September 19, 2000 meeting, the minutes show that James “Doc” Whitaker and John Hyneman were present. Mr. Hyneman had donated to the County a portion of his property for construction of the new hospital. Wal-Mart wished to locate its proposed SuperCenter on the remainder of the property owned by Mr. Hyneman near the hospital. The minutes note that both Whitaker and Hyneman “stated their opinions as to the location of the main [road] to this area.” The administrator of the hospital also provided the Board with his preference for location of the main entrance to the area from Highway 6. The Board was informed that the existing entrance was “not adequate for the hospital traffic.”

¶ 12. At the October 3, 2000 meeting, the Board discussed in executive session “the location of a large retad outlet near the new hospital.” When the Board returned to its public meeting, a motion was adopted that the city engineer be ordered to “draw a road design leaving the current entrance off Highway 6 and the frontage road as is and showing construction of an entrance and road at the east side of the city’s property with a road ‘T-ing’ off this ‘new5 entrance and road and running westerly to tie into the hospital road network and thereafter to submit this design layout to the business prospect desiring to construct a retail outlet northwesterly of the new hospital for its consideration.” This option would provide a road on the Whitaker property.

¶ 13. Two weeks later, on October 17, 2000, the Board again discussed the issue of road design in the area of the Arena Project. The assistant city attorney stated that Wal-Mart did not approve the road design proposed during the last meeting. The Board decided to adopt “the road configuration as proposed by Wal-Mart in the letters of its attorney.... ” The construction of this road configuration was made contingent upon the following: (1) obtaining title to two parcels of land, (2) the removal of a building through which the road would pass, (3) funding, and (4) “matters involving the bidding and construction process.” The minutes of this meeting note that James “Doc” Whitaker and his attorney were present and objected to Wal-Mart’s proposal.

¶ 14. The Whitakers appealed this decision by filing a bill of exceptions. The Whitakers argued’ that the action of - the Board in adopting the Wal-Mart proposal was an “arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated , and often-confirmed obligation to build the ‘main’ — or primary— road on the strip of land donated, for that purpose, to the City in May. of 2000.” The Whitakers alléged that the City’s decision devalued their property and adversely impacted negotiations entered into with other parties about the sale or development of their property. The Whitakers also alleged that their constitutional rights had been violated.

¶ 15. The circuit court found that “the decision of the Batesville Board of Alderman changing the route and location of the primary road to serve a newly constructed community hospital and other commercial developments was not arbitrary and capri-. cious and should be affirmed.” The appeal of the Whitakers was deflected here. Miss.Codé Ann. § 9-4-3 (Supp.2001).

DISCUSSION

¶ 16. Like the circuit court, our review of this matter is limited to the record created by the bill of exceptions. Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 639 (Miss.2001). The bill of exceptions is prepared by the parties and “embodies the facts, judgment, and decision involved in the Board proceedings.” Ladner, 793 So.2d at 639.

¶ 17. The Whitakers assert that the City breached a contract “at the direction of a competing developer and a major retailer.” The approval of Wal-Mart’s proposal was “beyond the power of the City to make” and was arbitrary and capricious. The Whitakers want the City to be ordered to commence building a five-lane road to the Arena Project along the western boundary of their property consistent with the May 23, 2000 deed. They alternatively seek damages.

¶ 18. The City does not deny that it is obligated to build a public road on the property donated by the Whitakers. The City asserts that there has been no breach of the agreement, just that the Whitaker Road has yet to be constructed.

¶ 19. The parties agree that there is a binding contract and that the City is obligated, after having accepted the donated land, to build a public road. The parties do not agree as to the specifics of this agreement. For example, the Whitakers argue that the public road must be a five-lane road with a major intersection with Highway 6. The City argues that the language of the agreement only requires a public road and that it has the authority to determine the public road’s dimensions. If there has yet to be a breach of the agreement, this matter is not ripe for adjudication, and the suit should be dismissed. Insured Sav. and Loan Ass’n v. State, 242 Miss. 547, 558, 135 So.2d 703, 708 (1961).

¶ 20. The Whitakers base their claim for breach of contract upon their belief that Whitaker Road will not or cannot now be built. The Whitakers assume that “their” road will not be built because the City approved the road configuration proposed by Wal-Mart. The Whitakers contend that the Board “heard testimony from Mississippi Department of Transportation Officials that it would be unlikely for them to approve two roads of the dimensions promised for the Whitaker road with equal access to Highway 6 within 430 feet of each other where both of those roads were less than one-half mile from Interstate 55.” However, there is nothing in the record to support this contention.

¶ 21. Likewise, the record contains no indication by the Board that Whitaker Road will not be built. For there to be a breach of contract on this ground, one of two things could be shown: (1) an unambiguous statement by the Board of Aider-man that Whitaker Road will not be built, or (2) an unambiguous statement by the Mississippi Department of Transportation that construction of the Whitaker road will not be permitted because of the Wal-Mart road configuration. Since neither of these exists, there is nothing in the record to prove that Whitaker Road will not be built.

¶ 22. As an appellate court we may not use our power of review “for the purpose of settling abstract or academic questions, and ... we have no power to issue advisory opinions.” In Interest of T.H., III, 681 So.2d 110, 114 (Miss.1996). Until there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road. It is enough that we are satisfied that no breach of those obligations has occurred.

¶ 23. This is not to say that the City may absolve itself of a possible claim for breach of contract by simply never beginning construction. The City may not in perpetuity continue not to act. This is because the temporary easement agreement does have a time limitation, although an implied one. The temporary easement agreement provides this:

If the Grantee [County] commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors [Whitakers] agree to extend the aforesaid two (2) year period for a reasonable time.

¶ 24. The agreement was executed in June-1996. It would appear that Phase 2 of the Arena project was not commenced by 1998, but the Whitakers did not cancel the agreement. Instead, they donated the land to the City in May 2000. The City has conceded that having accepted the donated land, it must build the public road. No time limitation is contained within the contract. A reasonable time for performance will therefore be implied. Associates Commercial Corp. v. Parker Used Trucks, Inc., 601 So.2d 398, 402 (Miss.1992). The City accepted the donated land in May 2000, a little more than two years prior to our ruling on this appeal. No evidence on a reasonable time to perform under a development contract was introduced, and thus we have nothing to review. At some stage, delay can itself be the breach of the duty to build the road within a reasonable time.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. McMILLIN, C.J., NOT PARTICIPATING.

      . The Whitakers have also filed suit against the City in Cause Number 2:01CV076SB in the United States District Court for the Northern District of Mississippi. That action has been stayed pending resolution of this matter.