author: I, TERRI F. LOVE, Judge.

text:
    Lucien DORVILIER v. Peter GAGLIANO, et al.
    No. 2002-CA-2765.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      Stephen C. Hartel, Jr., Hartel & Kenny, PLC, Metairie, LA, for Plaintiff/Appellee.
    John J. Lee, Jr., New Orleans, LA, for Defendant/Appellant, Leon Casadaban.
    Mark J. Shea, Shea Law Offices, New Orleans, LA, for DefendantyAppellant, Peter Gagliano.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   I, TERRI F. LOVE, Judge.

This case arises out of a fistic encounter wherein the trial court held the defendants, Peter Gagliano (“Gagliano”) and Leon Casadaban (“Casadaban”) equally at fault for Lucien Dorvilier’s (“Dorvilier”) injuries. The trial court also awarded Dorvilier $29,244.00 in general damages together with costs and interest in addition to entering judgment in favor of the inter-venor, Charity Hospital, in the amount of $4,062.78 together with the costs and interest. Each defendant was ordered to bear his share of the costs. Gagliano appeals the trial court’s judgment and we affirm for the following reasons:

FACTS AND PROCEDURAL HISTORY

On January 25, 1997, Super Bowl weekend, the defendants, Gagliano and Casada-ban hailed a taxicab driven by Dorvilier. Gagliano and Casadaban agreed with Dorvilier that a flat fee would be paid to deliver them from the French Quarter to Metairie. While en route to Metairie, Dorvilier attempted to raise the cab fare from twenty-five dollars to thirty dollars. Gagliano and Casadaban began arguing with Dorvilier about the increased cost of the trip. From this point, the parties tell two different versions of events. Dorvilier testified that Gagliano and Casadaban were intoxicated when he picked them up at St. Peter and Dauphine in the French Quarter. Further, Dorvilier testified that the argument started when he asked JaGagliano to stop smoking in the taxi and Gagliano refused to do so. Dorvilier also claimed that Gagliano hit the back of the driver’s seat and used racial epithets in response to his request that Gagliano stop smoking in the taxi.

Dorvilier stated that he turned the taxi around and headed back towards New Orleans. Dorvilier stopped at the intersection of Johnson and Canal, and Gagliano and Casadaban exited the taxicab. Dorvi-lier claims that Casadaban dragged him out of the vehicle and beat him, which caused him to lose two teeth. Dorvilier testified that both Gagliano and Casadaban hit him. Dorvilier also denied that he had a weapon in his taxi at the time of the incident. Dorvilier testified that once he brought Gagliano and Casadaban back to the French Quarter, he told them they did not have to pay and asked them to exit the vehicle. Gagliano denied using racial epithets and hitting the back of the driver’s seat. He also testified that once he and Casadaban exited the taxi, Dorvilier also exited the taxi, and began a verbal argument with the two patrons. Gagliano further testified that Dorvilier was the aggressor. According to Gagliano, Dorvilier hit Casadaban in the face and knocked him down. Casadaban defended himself by hitting Dorvilier. Then, Dorvilier attempted to re-enter the taxi and reach for something under the seat. At this point, Gagli-ano testified that both he and Casadaban felt Dorvilier was going to retrieve a weapon from the taxi. Therefore, Gagliano and Casadaban began to yell for someone to call the police, and they held Dorvilier at bay until the police arrived. After the altercation between Dorvilier and Casada-ban, Dorvilier sought medical treatment at the Medical Center of Louisiana at New Orleans. Jerry McClain (“McClain”) witnessed the altercation and he testified that he did not see Dorvilier hit either Gagliano or Casadaban. McClain testified that he saw both of the defendants pull Dorvilier out of the taxi and begin to attack him. McClain also ^testified that he smelled alcohol emanating from each of the defendant’s breath. Dr. Michael Rouhana testified regarding Dorvilier’s injuries and the resulting medical bills for treatment of the dental injuries, which stemmed from the loss of two teeth.

At trial, the court found that despite inconsistent testimony from the parties and the witnesses “it is uncontradicted that a physical battery ensued and that the plaintiff sustained injuries as a result.” In accordance with this finding, the trial court entered judgment in favor of Dorvilier and against Gagliano and Casadaban in the amount of $29,244.00 together with cost and interest with each defendant to bear his share of the costs. The court also entered a judgment in favor of Charity Hospital and Medical Center of Louisiana at New Orleans and against Gagliano and Casadaban in the amount of $4,062.78 together with cost and interest.

ASSIGNMENT OF ERROR ONE

In Gagliano’s first assignment of error, he argues the trial court erred in finding liable and assessing fault to him for Dorvi-lier’s injuries.

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon Preview although the appellate court may feel that its own evaluations and inferences are as reasonable. La. C.C. art. 2315 states that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Gagliano argues that the trial judge failed to ascertain whether Gagliano and/or Casadaban were responsible for the injuries sustained by Dorvilier. The trial judge stated in her written reasons for judgment, in pertinent part:

While the testimony varies from witness to witness as to what perpetuated the incidents made the subject of this lawsuit, it is un-con-tradicted that a physical battery ensued and that the plaintiff sustained injuries as a result. This Court also finds that the defendants became angry, exited the vehicle and upon exiting the vehicle became engaged in a fight. For above reasons this Court finds that the defendants, Peter Gagliano and Leon Ca-sadaban, committed a battery against plaintiff, Lucien Dorvilier, and is liable for the damages sustained by plaintiff resulting from said battery.

The record reflects the first officer on the scene, Eduardo Colmenero, an eyewitness, McClain, and Lucien Dorvilier provided testimony to support the trial court’s finding both defendants Hable and at fault for the damages DorviHer sustained as a result of a fistic encounter.

TESTIMONY OF OFFICER EDUARDO COLMENERO

Officer Colmenero testified that he was dispatched to the scene of the incident at approximately 4:30 in the morning. The officer testified as follows:

Q. In the interest of brevity, I’d like First off, I’d like to ask you who were the parties involved in the incident?
A. According to the report, Leon Ca-sadaban, Peter Gagliano, and Lu-den Dorvilier.
Q. And what did your investigation entail?
A. Well, just by reading the report, there was a fight that occurred over a taxi fare. Allegedly, Mr. Gagliano and Casadaban fought with the cab driver. During the fight, |sthe cab driver lost some teeth. They were all cited during the incident.

Officer Colmenero also testified that he made a notation in his report regarding Gagliano and Casadaban appearing to be under the influence of alcohol at the time of the incident; however, he stated that he did not cite the defendants for public intoxication. The officer further testified that there was report of a weapon at the scene of the altercation.

TESTIMONY OF JERRY MCCLAIN

McClain, a passerby, testified to the following order of events:

Q. And you saw these gentlemen get out of the cab, correct?
A. Yes, sir.
Q. And what happened when they got out of the cab?
A. They struck the cab driver, fighting the cab driver.
Q. So, the cab driver was already out of the car, too?
A. They grabbed him out the car. He wasn’t going to let him pull off.
Q. So, your testimony is they jumped out the back seat, ran around their front door, and pulled him out of the front seat, hit the guy in the mouth and bust all the guy’s mouth. And the other guy came around and hit him, too.
A. Right around the front door. The cab door right here, the cab driver right here. They pulled open the cab driver’s door. The guy right there took and hit the guy in the mouth and bust all the guy’s mouth. And the other guy came around and hit him, too.

McClain farther testified that he did not see Dorvilier swing at either of the defendants and he arrived at the scene of the incident before the police.

TESTIMONY OF GAGLIANO

Gagliano testified to a completely different set of circumstances leading up to the altercation. Specifically, when questioned about the events on the day in question, he stated:

Q. What occurred when the taxi eventually came to a stop?
|fiA. He got out the car. I got out the passenger’s side. Me and Leon were getting out. He got out the car, ran toward the back of the car, and started yelling at us.
Q. So, a verbal altercation or argument ensued?
A. Yes.
Q. Did you at any time pull Mr. Dorvilier out the cab?
A. No, not at all.
Q. What was the argument in reference to on the scene?
A. Why he wouldn’t let us out the car.

Gagliano farther testified that Dorvilier swung at Casadaban first and knocked Ca-sadaban’s glasses off of his face. After knocking Casadaban down, Gagliano testified that he saw Dorvilier return to the cab and they were afraid that Dorvilier was going to retrieve a weapon. Gagliano also stated that the police arrived at the scene before the witness, Jerry McClain. Therefore, the situation was already under control by the time McClain arrived there. Gagliano did testify that both him and Casadaban restrained Dorvilier to keep him from leaving the scene of the incident or retrieving a weapon, but he denied physically striking Dorvilier.

Even though Renetta Dorvilier’s testimony did corroborate her. husband’s statement that he usually keeps a weapon in the taxi for his protection, we find no evidence to support the presence of any weapon in Dorvilier’s taxi at the time of the altercation, particularly in light of the absence of any such notation in Officer Colmenero’s report.

TESTIMONY OF LEON CASADABAN

Casadaban testified that he exited the cab once he felt the argument between Dorvilier and Gagliano had become a little too heated. He further testified that once he approached them, Dorvilier punched him in the face. After Casadaban regained his composure, he testified that he stated:

|7I punched We kind of held each other trying to punch each other. Then he pushed me off of him and ran to his cab and he was looking under the front seat of his cab. At this point I’m thinking, oh gee, this guy is liable to have some kind of weapon or something on him. So, I ran over there and grabbed him and put my arms around him like in a bear hug, so to speak, and started yelling to call the police.

When questioned about the events that led up to the fistic encounter, Dorvilier stated:

Q. And what happened when you arrived at the corner of Canal Street and North Johnson?
A. Okay. I told them, now you can get out. You not have to pay. That’s when one of them grabbed me, he struck me. He struck me.
Q. Wait. You got out of the cab at that place or not? Did you get out of the cab there?
A. I’m just wait there. Then one pulled me out exactly. He one pulled me out first.
Q. Now, did you take any punches yourself at these two gentlemen?
A. I don’t hit them. I try to get away from them because two of them try to beat me up. Two of them. Not one. One try to get away, another one hold me. I try to get away. I didn’t even throw no punch because when two people, don’t fight, try to get away. They hold me up.
Q. At any point during this incident did you attempt to fire weapon?
A. No, I didn’t have no weapon with me, no.
Q. And why did you not want to engage with these men?
A. Because two of them. You cannot fight with two. You cannot fight with two. When you see two people fight, the best thing to do is try to get away.

Upon review of the testimony contained in the record, this court finds no evidence of manifest error in the trial court’s credibility findings of Dorvilier’s testimony. Accordingly, we must give great deference to the weight afforded to the witnesses’ testimony by the trial court.

IsGagliano further asserts that he struck Dorvilier in self-defense and therefore, cannot be held hable for the injuries Dorvi-lier sustained as a result of the fistic encounter. The use of force or violence for self-defense is governed by La. R.S. 14:19, which states:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

In State v. Woods, 2000-2712, p. 10 (La.App. 4 Cir. 5/29/02), 828 So.2d 6, 15, this court stated that “in the non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary.”

In the instant case, the eyewitness testimony given by Dorvilier and McClain, who had no interest in the case, described the defendants’ attack upon the victim as unprovoked. The only evidence offered to show that the defendant acted in self-defense was the self-serving testimony of Gagliano and Casadaban. Both of the defendant’s testified that Dorvilier initiated the attack. Furthermore, there was sufficient evidence provided at trial to substantiate the extent of Dorvilier’s injuries; however, neither Gagliano nor Casadaban presented evidence, which showed that they were injured during the fistic encounter with Dorvilier, and therefore would help to substantiate there claim of self-defense.

The record establishes that Dorvilier has proved beyond a reasonable doubt that the force or violence used by Gagliano was not reasonable, and also was not | ¡apparently necessary. Dorvilier presented the direct evidence of Officer Colmene-ro, Ms. Dorvilier, McClain, and Dr. Rouha-na to substantiate his injuries as a result of the altercation with Gagliano and Casa-daban. McClain testified that Dorvilier did not initiate the encounter. McClain’s testimony was also corroborated by the police report, which noted that Casadaban and Gagliano were not hurt and that the defendants did not advise the officer that they were hurt. On the other hand, Dorvi-lier was noticeably injured and this fact was noted in Officer Colmenero’s police report. Neither Gagliano nor Casadaban presented any direct evidence that either of them acted in self-defense during the altercation. The trial court apparently found the plaintiffs witnesses credible and rejected the defendant’s claim of self-defense. We find no error in the trial court’s decision to find the plaintiffs witnesses’ testimony more credible than the defendant’s testimony in this case.

ASSIGNMENT OF ERRORS THREE, FOUR, AND FIVE

Assignment of errors three, four and five deal with affirmative defenses asserted by the appellant, Gagliano. Therefore, we will address the defenses together. Gagliano contends the trial judge erred in failing to assess a percentage of fault to Dorvilier under the comparative fault theory or assumption of the risk theory.

When assessing the fault of all the parties involved, this court relies on factors set out in Wijngaarde v. Parents of Kenya Guy, 1997-2064, p. 5 (La.App. 4 Cir. 9/12/98), 720 So.2d 6, (citing, Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La.1985)), which states:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an | ^awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

The court in Wijngaarde went on further to state:

[the negligent tortfeasor] who by definition acted unreasonably under the circumstances in breaching their duty to plaintiff, should not be allowed to benefit at the innocent plaintiffs expense by an allocation of fault to the intentional tortfeasor under comparative fault principles. Given the fact that any rational juror will apportion the lion’s share of the fault to the intentional tortfeasor when instructed to compare the fault of a negligent tortfeasor and an intentional tortfea-sor, application of comparative fault principles in the circumstances presented in this particular case would operate to reduce the incentive of the lessor to protect against the same type of situation occurring again in the future. Such a result is clearly contrary to public policy.

In the instant case, we find that Dorvilier reacted to hostile customers by returning them to the location where they hailed the taxi. According to Dorvilier’s testimony, his actions were in accordance with his company protocol. Furthermore, the eyewitness, McClain, testified that he saw Gagliano and Casadaban pull Dorvilier out of the taxi and attack him. As a matter of fact, Dorvilier was the only person involved in the altercation who sustained an injury. A review of the record does not support Gagliano’s contention that Dorvilier was the aggressor in this situation. Equally important, the trial court ruled that Gagliano and Casadaban committed an intentional tort, a battery, against Dorvilier. Therefore, we find that to allocate a percentage of fault to Dorvilier in this case not only contrary to the evidence presented at trial, but also contrary to public policy. Consequently, neither comparative fault nor assumption of the risk is applicable to the instant case.

ASSIGNMENT OF ERROR SIX

Inin his sixth assignment of error, Gagli-ano argues the lump sum award is for general damages and is excessive. This argument has no merit.

The trial court has great discretion in the assessment of damages. An appellate court should increase or decrease an award only when the amount is beyond that which a reasonable trier fact could assess for the effects of the particular injury upon the particular plaintiff under the circumstances of the case. La.C.C. art.1999; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied., 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

A lump sum judgment is presumed to award all items of damages claimed, and appellant’s burden of proving an abuse of discretion is more difficult because the intent to award a specific amount for a particular item is not readily ascertainable. Bryan v. City of New Orleans, 1998-1263, p. 12 (La.1/20/99), 737 So.2d 696, 697. See also Dupuy v. Fitz- Patrick, 2000-1353, p. 12 (La.App. 4 Cir. 5/23/01), 789 So.2d 667, 671.

The trial court awarded a lump-sum judgment in the amount of $29,244.00 in favor of Dorvilier. The portion of the award attributable to special damages includes $11,607.78 (medicals), $600.00 (expert’s fee), and $1,020.00 (lost earnings), totaling $13,227.78, with leaves $16,017.78 in general damages.

The trial court has much discretion in assessing general damages, and an appellate court should not modify the award unless it is beyond that which a reasonable trier of fact could assess for a particular injury to the particular plaintiff under the particular circumstances. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied., 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only if the appellate court finds an abuse of discretion may it examine prior awards of general damages to determine the amount the trier of fact reasonably could award. Theriot v. Allstate Insurance Co., 625 So.2d 1337, 1340 (La.1993); Matthews v. Ferrer, 95-0266 (La.App. 4 cir. 11/30/95), 665 So.2d 1211. We find no abuse in this case.

The trial court entered judgment against Gagliano and Casadaban in the amount of $29,244.00 together with cost and interests with each defendant bearing his share of the cost. The trial court also entered judgment in favor of the interve-nor, Charity Hospital and Medical Center of Louisiana at New Orleans, and against the defendants in the amount of $4,062.78 together with costs and interests. In the instant case, Dorvilier is a forty-five year old taxi driver. His treating dentist, Dr. Rouhana, testified that Dorvilier sought treatment for the loss of two lower anteri- or teeth and damage to his upper teeth. Dr. Rouhana also testified that the loss of the two teeth necessitated fitting Dorvilier with a temporary lower partial denture at a cost of approximately eight hundred and forty-five dollars. The placement of the inexpensive temporary partial requires periodic replacement due to wear and tear of the teeth. A more permanent solution such as implants can cost anywhere from five to six thousand dollars to replace two teeth.

Dr. Rouhana further testified that Dorv-ilier’s future medicals will run anywhere from six thousand dollars for implants and crowns for the loss of the lower anterior teeth to approximately seventeen hundred dollars for the damage to the upper teeth in addition to a root canal at a cost of about seven hundred dollars. Dr. Rouha-na testified that the loss of the lower anterior teeth and damage to the upper teeth was related the altercation at issue before this court, and the emergency room physician’s notes entered into evidence at trial corroborated Dr. Rouhana’s testimony. Due to the medical testimony provided by Dr. Rouhana and the 1 ^medical records from Charity Hospital, we do not find an abuse of discretion in the trial court’s general damage award.

With regards to the lost earnings portion of the damage award, it is the plaintiffs burden to prove past lost wages and time missed from work due to the injury. Stark v. National Tea Co., 94-2633 (La.App. 4 Cir. 5/16/95), 655 So.2d 769, 775. Past lost wages are susceptible of mathematical calculation, and the award is not subject to the much discretion rule. Stark, 655 So.2d at 775; Daigle v. U.S. Fidelity and Guar. Ins. Co., 655 So.2d 431, 441 (La.App. 1 Cir.1995).

In the instant case, Dorvilier testified that he missed two weeks of work. He further testified that he made on average eighty dollars a night. However, during special events, such as the Super Bowl, Dorvilier testified that he would make two hundred dollars a night. Hence, the amount of lost earnings equaled one thousand and twenty dollars over a two-week period. Additionally, Dorvilier also testified that he was required to maintain trip sheets, which detailed the number of fares and how much each customer paid for each shift. We do not find an abuse of discretion in the calculation of lost earnings.

ASSIGNMENT OF ERROR SEVEN

Gagliano argues that the trial court erred in not allowing the defendants more leeway in questioning Dorvilier about his inconsistent statements regarding prior arrests. This argument has no merit.

At trial, Dorvilier responded to this fine of questioning in the following manner:

Q. (Court): When does he say, yes, I have been arrested.
A. (Defense): In his deposition he said he had two previous arrests.
Q. (Defense): This is the actual arrest to discredit him, Your Honor. In fact, he was arrested —
Ii4Q. (Defense): Mr. Dorvilier, do you remember making a deposition in your lawyer’s office on February 19, 2002?
A. In my lawyer office?
Q. Yes. Do you remember that day when you were present and Mr. Harte! was present?
A. Yes.
Q. And us four gentlemen were present?
A. Yes.
Q. And do you remember when Mr. Lee asked you a question: Have you ever been arrested before? And you indicated that you had been arrested on two previous occasions.
A. I told you I been arrested. But, you know, sir, then he not ask me how many times I been arrested. And I say I never been arrested for criminal, drug, stealing, nothing like that, sir, since I been in United States.
Q. (Plaintiff): Your Honor, I think he’s now satisfied with what the attorney was trying to show. There was an inconsistent statement, which he clarified in his deposition.
A. (Court): But you can’t go any further. You make your point. He gave two different statements. You can’t go any further on that issue.

Based on the record, we find the trial court granted sufficient latitude to the defense during cross-examination. As a result, it was noted that Dorvilier’s prior inconsistent statement regarding prior arrests, which was given in an answer to an interrogatory, had been clarified in a subsequent deposition. We find no merit in this argument.

Accordingly, this court finds that the trial court did not err in its assessment of the credibility of the witnesses’ testimony nor did the trial court err in its allocation of fault of the parties and amount of damages awarded to Dorvilier. Therefore, we affirm the trial court’s findings.

AFFIRMED.


source: Caselaw Access Project

author: hTERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Craig A. PETERS.
    No. 2003-KA-0371.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.
    Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   hTERRI F. LOVE, Judge.

Craig A. Peters was charged by bill of information on October 14, 1999, with illegal use of a weapon in violation of La. R.S. 14:94(F), and with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. He entered pleas of not guilty at his arraignment. After a hearing, the trial court found probable cause and denied the motion to suppress the evidence. Subsequently, Peters withdrew his earlier pleas and entered pleas of guilty as charged. The State filed a multiple bill charging Peters as a second felony offender, and he pleaded guilty to the bill; He was then sentenced to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence as a second felony offender on the illegal use of a weapon conviction; he was also sentenced to serve ten years at hard labor without benefits on the possession of a firearm by a convicted felon conviction. The sentences are to run concurrently. This Court granted Peters an out of time appeal on July 26, 2002.

Because the appellant pleaded guilty, no transcript of facts is part of the record.

Counsel filed a brief requesting a review for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990), and filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the ease indicate a thorough review of the record. Counsel moved to withdraw because she believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed available transcripts and found no trial court ruling that arguably supports the appeal. A copy of the brief was forwarded to defendant, and this Court informed him that he had the right to file a brief in his own behalf. He has not done so.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and the transcript in the appeal record. Defendant was properly charged by bill of information with violations of La. R.S. 14:94(F) and 14:95.1, and the bill was signed by an assistant district attorney. Defendant was present and represented by counsel at arraignment, motion hearings, and sentencing. The sentence is legal in all respects. Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal. Defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

AFFIRMED.


author: ^JjLOVE, J. b KIRBY, J. | -i TOBIAS, J.,

text:
    Clare P. LANASA v. CITY OF NEW ORLEANS, Through its Department of Finance, Bureau of the Treasury, and Erroll G. Williams, in his Official Capacity as the Assessor for the Third District of New Orleans and Carol A. Newman, Esq.
    No. 99-CA-2989.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      Laura LaNasa, David Paul LaNasa, Harvey, in Proper Persons, Plaintiffs/Ap-pellees.
    Joyce G. Joseph, Deputy City Attorney, Mavis S. Early, City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, New Orleans, Counsel for DefendanVAppellant.
    Court composed of Judge DENNIS R. BAGNERIS Sr., Judge TERRI F. LOVE, Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO, Jr., Judge MAX N. TOBIAS Jr.
   ^JjLOVE, J.

The City of New Orleans appeals the twelve-year retroactive granting of the homestead exemption in favor of the plaintiff and the annulment of the 1988 adjudication by the Tax Collector of the plaintiffs property to the City of New Orleans (“City”) due to delinquent ad valorem taxes, penalties and interest from 1988 through 1988. For the reasons outlined below we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

From 1988 until 1998, plaintiff Clare P. LaNasa (“LaNasa”) failed to apply for benefits of the homestead exemption and failed to pay the ad valorem property taxes due on LaNasa’s property. In 1988, according to the New Orleans Code Part II, Chapter 150 Section 49, the Tax Collector filed suit and had a hen placed on LaNasa’s property due to delinquent ad valorem taxes, penalties and interest.

On September 3, 1998, LaNasa filed a Petition to Nullify Adjudication and sought injunctive relief. LaNasa alleged that Assessor Erroll G. Williams improperly assessed property owned by her for the tax years 1983 through 1995 |Pand that the City of New Orleans illegally issued a tax bill pursuant to the assessment and the years of unpaid taxes. The property, located at 5721 Vermillion Boulevard, was adjudicated to the City in 1988 for nonpayment of delinquent taxes, interest and penalties, which had accrued since 1983.

LaNasa claims that she is entitled to a homestead exemption for those past years. Prior to 1983, the homestead exemption was applied for by her mortgage company or ex-husband and granted. Likewise, pri- or to 1983, the mortgage company paid the taxes owed on the property. From 1983 to 1998, LaNasa, the property owner, applied for no exemption, nor did she pay her taxes.

When LaNasa attempted to sell the subject property in 1997, she contacted Assessor Williams and applied for the homestead exemption for 1998. She also was permitted to apply retroactively for the exemption for the 1996 and 1997 tax years. Upon the taxpayer showing proof that she received mail at the address and that utilities were in her name for those years, the tax assessor retroactively granted the homestead exemption for the three preceding years.

LaNasa agreed to sell her home for the sum of $68,000.00. This sum is below the $75,000 homestead exemption value, thus she argued she should benefit fully from the homestead exemption. At the same time, the City claims the amount of delinquent taxes, interest and penalties owed on the property is approximately $19,247.06.

The Judgment of the trial court, ordered the assessor’s office to recognize the homestead exemption for the years 1988-1995. Moreover, the Judgment | ¡¡reversed the adjudication of the property to the City for nonpayment of taxes. The trial court ordered the plaintiff to pay all taxes, penalties and interest owing the City after the homestead exemption was applied.

DISCUSSION

It is well settled that a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 698 So.2d 1173.

Article VII, Section 20(A)(1) of the Louisiana Constitution of 1973 (as amended) states in pertinent part:

(1) The bona fide homestead, consisting of ... a residence... owned and occupied by any person, shall be exempt from state, parish, and special ad valo-rem taxes to the extent of seven thousand five hundred dollars of assessed valuation....

In the instant case the evidence showed that LaNasa actually lived in the home during the years in question. Further, LaNasa’s son, David Paul LaNasa, testified at trial that his mother was incompetent and not capable of caring for herself. To that end he and his sister would collect LaNasa’s mail. He stated LaNasa never received mail regarding the homestead exemption. He further testified that his mother is ignoi*ant of the process of claiming the exemption because her husband always took care of it when they lived together, before LaNasa took ownership of the house. The evidence also demonstrated that the certified letter the Assessor sent to LaNasa regarding the 1988 adjudication was returned “unclaimed”. Neither the City nor the Assessor presented evidence that LaNasa actually received any of the applications it sent regarding the homestead exemption.

hWalter O’Brien, a member of the Finance Department, Bureau of the Treasury for the City of New Orleans, testified that there is no rule either limiting or mandating the Assessor’s ability to grant the exemption retroactively, but that it is customary for the Assessor’s office to only grant the exemption retroactively for three years.

A homeowner is absolutely entitled to the homestead exemption as guaranteed by the Constitution. Any local administrative rule or ordinance restricting the application must be strictly construed, so as to prevent that local rule or ordinance from circumventing what has been constitutionally granted. The City recognized that its administrative rule in some instances could cause an inequitable situation; therefore, the City enacted the three-year rule. As the trial court found, if equity requires the retroactive granting, then the City should be limited to reasonableness, not an arbitrary number simply because it has been common practice. Given LaNasa’s age and infirmity, the trial court concluded that her failure to fill out and return a postcard, which it was never shown that she actually received, should not preclude her from receiving the exemption retroactive to 1988. The trial court ordered La-Nasa to pay the City’s expenses, assessments and taxes properly due after the exemption was applied. We find no clear or manifest error in that ruling, considering the facts of this case.

Appellants claim that LaNasa’s cause of action should be dismissed because she did not bring this action properly under La. R.S. 47:2110, which provides with respect to suits to recover taxes paid under protest. Appellants’ claim is without merit, because LaNasa is not suing to recover taxes paid under protest. She is suing to have her homestead exemption recognized.

| -For the reasons outlined above we affirm the trial court’s ruling.

AFFIRMED.

KIRBY, J., dissents with reasons.

b KIRBY, J.

Dissents with Reasons.

The jurisprudence has termed an exemption from taxation as an “exceptional privilege” and one that must be “clearly, unequivocally and affirmatively established.” Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1 Cir.1977); City of New Orleans v. Heymann, 162 So.2d 582 (La.1935).

The majority opinion correctly notes that mandatory language, i.e. “shall be exempt,” is used in the constitution. But it is only mandatory if the taxpayor asserts her entitlement to the benefit of the exemption.

Based upon the preceding, I conclude that the assessor in the present matter had the right to require a homeowner to sign and return the card by mail, in order to claim the homestead exemption. Otherwise the Louisiana State Legislature would not have imposed penalties in La. R.S. 47:1703(C) for false statements in procuring the benefits of the homestead exemption.

When Assessor Williams received neither the card nor any other notification that plaintiff claimed her homestead exemption, he correctly calculated the taxes without the benefit of the exemption. Moreover, when the plaintiff did not pay her | ¡¿axes, he correctly found the taxes the plaintiff owed to be delinquent. This scenario occurred for several years, until in 1988, the property was legally adjudicated to the City. This was done in strict compliance with all the notice requirements and other requirements so as to abide by due process of law.

Although the plaintiff argues that it was due to old age that she did not apply for the exemption and that she did not pay her taxes, the fact remains that Assessor Williams and the City followed the law in this case. The law of due process provides several safeguards so as to protect the property owner as much as possible, and that procedure was followed in this case. Moreover, it strains credulity to hold that from 1983 to 1998 plaintiff lived in the home, yet never received any of the numerous homestead exemption cards nor certified mail that the assessor sent to her home address year after year. As the record clearly reflects, the assessor even sent a certified letter to the plaintiff at the home in question, which was returned unclaimed.

Assessor Williams acted with leniency in waiting several years after delinquent taxes were owed to the City, from 1983 until 1988, prior to having the property adjudicated to the City in 1988.

The plaintiff filed this action in 1998, ten years after the adjudication of the property to the City, seeking an annulment of the adjudication and retroactive application of an exemption that was not sought for fifteen (15) years.

Insofar as the retroactive application of the homestead exemption is concerned, neither party appealed the actions of the assessor in retroactively granting the homestead exemption for three years, i.e. from 1996 through 1998. I cannot find any statute stating that it is not within the discretion of the assessor to retroactively apply a homestead exemption as far back as three years. Nevertheless, we note that an assessor who maintains such a policy makes himself vulnerable to attacks for arbitrariness.

|3I would reverse the trial court’s retroactive application of the homestead exemption which dates back twelve years, i.e. from 1983-1995. As stated in Ethyl Corp. v. Collector of Revenue, supra, and City of New Orleans v. Heymann, supra, an exemption from taxation is an “exceptional privilege” and one that must be clearly, unequivocally and affirmatively established. Here all the plaintiff had to do was to sign and return a card that was mailed to her alleged home to affirmatively establish her homestead exemption. The plaintiff failed to do this for fifteen (15) years, which implies that this may not have been her home, as defined under the homestead exemption. Moreover, a precedent such as the one the trial court and majority opinion order, would place an undue burden upon the courts and the state to retroactively defend their actions everytime a taxpayor had a complaint, no matter how far back it extended.

For the aforementioned reasons, I would reverse the trial court’s ruling that the assessor retroactively grant, beyond three years, the homestead exemption as well as the annulment of the adjudication of the property to the City.

TOBIAS, J., dissents with reasons.

| -i TOBIAS, J.,

Dissents with Reasons.

I respectfully dissent for the reasons assigned by Judge Kirby.

      . It is reasonable that a taxpayor who claims to be living at a certain address and claims that address as his home for purposes of the exemption be sent via mail a questionaire to certify his homestead exemption status. If he is living there, he will receive the mail, if not, he is not entitled to the exemption. See La. R.S. 47:1703.1.


author: | t SAUNDERS, Judge. 1 .THIBODEAUX, J„

text:
    STATE of Louisiana v. Robert Glenn JONES a/k/a Ernest Hancock.
    No. 03-0180.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 2003.
    Rehearing Denied Oct. 22, 2003.

      Earl B. Taylor, District Attorney, 27th Judicial District Court, Alisa Ardoin Goth-reaux, Assistant District Attorney, Opelou-sas, LA, for Plaintiff/Appellee: State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Robert Glenn Jones a/k/a Earnest Hancock.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   | t SAUNDERS, Judge.

Defendant, Robert Glenn Jones a/k/a Earnest Hancock, was charged by bill of information on September 27, 2000, with simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2, conspiracy to commit simple burglary of an inhabited dwelling, a violation of La.R.S. 14:26 and La.R.S. 14:62.2, aggravated flight from an officer, a violation of La.R.S. 14:108.1(C), and attempted first degree murder of a peace officer, a violation of La.R.S. 14:27 and La.R.S. 14:30. On April 17, 2001, the Defendant pled guilty to simple burglary of an inhabited dwelling, conspiracy to commit simple burglary of an inhabited dwelling, and aggravated flight from an officer. Trial by jury proceeded on the charge of attempted first degree murder. The jury returned a verdict of guilty of attempted second degree murder. On October 26, 2001, the Defendant was sentenced as follows:

1) Simple burglary of an inhabited dwelling-ten years at hard labor;
2) Conspiracy to commit simple burglary of an inhabited dwelling — five years at hard labor;
3) Aggravated flight from an officer— two years at hard labor; and
4) Attempted second degree murder— forty years at hard labor.

All sentences were ordered to run concurrently.

The Defendant appeals his conviction of attempted second degree murder on the basis of insufficiency of the evidence. We affirm the Defendant’s conviction and sentence.

J^FACTS

On August 1, 2000, the Defendant, along with another man, burglarized the home of Rocky Edwards, stealing a television, a watch, and various other items. Larry Mire, Mr. Edwards’ neighbor, saw the two men enter Mr. Edwards’ home and called 911. The men were driving a black truck with a net tailgate.

Deputy Andrew Green, an employee of the St. Landry Parish Sheriffs Department, was on radar patrol on August 1, 2000, when he heard a radio transmission that police were in pursuit of a black Sono-ma truck with a dent in the front quarter and an air gate. The vehicle passed Deputy Green traveling at one hundred ten miles per hour. Deputy Green then began to pursue the vehicle. The vehicle eventually turned onto Robert Bihm Road, a dead end street. The vehicle came to a stop about three to five feet from a large fence located at the end of the street. Deputy Green parked his vehicle on the road, got out of the car with his weapon drawn, and ordered the occupants of the truck to surrender. After a minute or two, the truck engine revved and the vehicle started backing toward Deputy Green at a high rate of speed. Deputy Green tried to run to the rear of his car for cover, but he had to jump on top of the trunk of his car. The truck continued an additional one hundred and fifty yards and attempted to make “some type of Hollywood whip around turn.” The truck then flipped over. The Defendant and the other occupant of the truck were then arrested by Deputy Green.

ERRORS PATENT

Reviewing the record, we find two errors patent concerning the Defendant’s sentences.

LFirst, the judge sentenced the Defendant to serve forty years at hard labor for attempted second degree murder. A sentence imposed for attempted second degree murder is to be without the benefit of parole, probation or suspension of sentence. See La.R.S. 14:27(D)(1). Thus, the Defendant’s sentence should have been imposed without benefits. Nonetheless, La. R.S. 15:301.1(A) provides:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

Thus, there is no need for correction as the Defendant’s sentences are deemed to contain this restriction per La.R.S. 15:301.1(A).

Next, one year of the sentence imposed for simple burglary should have been imposed without the benefit of parole, probation or suspension of sentence. See La.R.S. 14:62.2 and State v. Conley, 411 So.2d 448 (La.1982). However, pursuant to La.R.S. 15:301.1, the sentence is deemed to contain this provision. Therefore, there is also no need for correction of this sentence.

ASSIGNMENT OF ERROR

The Defendant contends the evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to sustain the verdict of guilty of attempted second degree murder.

In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, this court held:

|4When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness [sic]. Therefore, the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

The Defendant was convicted of attempted second degree murder. Attempt is defined in La.R.S. 14:27(A), which provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

The elements of second degree murder are set forth in La.R.S. 14:30.1, which provides, in part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to loll or to inflict great bodily harm.

Thus, the State must prove beyond a reasonable doubt that the Defendant specifically intended to kill or to inflict great bodily harm upon a human being and that he “committed an ‘act for the purpose of and tending directly toward the accomplishing of that intent.” State v. Williams, 95-879, p. 3 (La.App. 3 Cir. 1/31/96), 670 So.2d 414, 416 (citation omitted). “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). “[Sjpecific criminal intent need not be proven as fact but may be ¡fiinferred from the circumstances of the ease and actions of the defendant.” State v. Robertson, 98-888, p. 6 (La.App. 3 Cir. 12/9/98), 723 So.2d 500, 504 (citations omitted), writ denied, 99-0658 (La.6/25/99), 745 So.2d 1187.

Once on Robert Bihm Road, Deputy Green stopped his patrol car, leaving it more to the right side of the road. Deputy Green testified it appeared to him that the Defendant looked in the rearview mirror and observed that Deputy Green was standing in the roadway to the left side of his driver’s door, which was slightly open. After a minute or two, the truck engine revved and the vehicle started backing toward Deputy Green at a high rate of speed. Deputy Green testified the Defendant was looking back and coming straight toward him at thirty-five to forty miles per hour. The vehicle kept getting faster and faster as it neared Deputy Green and kept going straight toward him, never veering away. Deputy Green testified there was a yard to the right and left of his car which the Defendant could have used to turn around or pass him. There was approximately sixty to sixty-five feet between the roadway and the- houses. Deputy Green tried to run from the vehicle toward the rear of his car, but he had to jump on top of the trunk of his car in order to avoid being hit.

Angela Leger lives in the last house on the right on Robert Bihm Road. Mrs. Leger testified Deputy Green’s car was parked on the road, “more to the right side, but not completely over.” Mrs. Leger saw both men look back at the deputy and the driver floored the gas, backing up directly toward the deputy at full speed. She testified the truck never slowed down and the deputy had to jump on the back of his car or he would have been hit. The truck did not veer, but could have driven in her yard or the yard across the street. The truck never slowed down when it got close to the deputy, and it continued to increase its speed until it flipped.

|BIn State v. Taylor, 96-320 (La.App. 3 Cir. 11/6/96), 683 So.2d 1309, writ denied, 96-2828 (La.6/20/97), 695 So.2d 1348, the defendant was charged with attempted first degree murder. However, he was found guilty of attempted manslaughter. The defendant struck a police officer’s bicycle tire propelling him onto the hood of the car. The defendant continued to accelerate while zigzagging a block and a half with the officer on the hood hanging onto the driver’s side windshield wiper. As the defendant made a sharp right turn, the wiper broke and the officer fell off the hood and landed in the street. This court concluded the evidence was sufficient to infer that the defendant had the specific intent to kill the officer.

In State v. Percy, 02-255 (La.App. 5 Cir. 6/26/02), 822 So.2d 823, the court concluded the jury’s finding that the defendant had specific intent to kill a peace officer, who was hanging in the driver’s side window, was reasonable where the defendant continued to swerve his vehicle in a parking lot full of cars, fought with the officer for his weapon, and dragged the officer around trees and maneuvered close to a light pole, all while driving at a high rate of speed.

Looking to the above cited cases, and when viewing the evidence in a light most favorable to the prosecution, we find the jury had sufficient evidence to infer the Defendant had the specific intent to kill Deputy Green. The Defendant drove straight toward Deputy Green, continually increasing his speed, and testimony revealed that the Defendant could have turned his truck around at various locations or driven through yards adjacent to the street in order to avoid Deputy Green.

DECREE

For the reasons stated above, the Defendant’s conviction and sentence are affirmed in their entirety.

|7AFFIRMED.

THIBODEAUX, J., dissents and assigns written reasons.

1 .THIBODEAUX, J„

dissenting.

The majority’s reliance on State v. Taylor, 96-320 (La.App. 3 Cir. 11/6/96), 638 So.2d 1309, writ denied, 96-2828 (La.6/20/97), 695 So.2d 1348 and State v. Percy, 02-255 (La.App. 5 Cir. 6/26/02), 822 So.2d 823 is misplaced. The facts in Taylor and Percy were far more egregious than the facts which exist here. Those facts are adequately detailed in the majority’s opinion and need not be repeated.

The Defendant along with an accomplice were leaving the scene of a home burglary when they were pursued by Deputy Green. The Defendant drove down Robert Bihm Road, a dead-end street. Deputy Green followed the Defendant onto Robert Bihm Road, stopped his patrol car and left it parked more to the right side of the road. The deputy testified it appeared that the Defendant looked in the rearview mirror and saw that Deputy Green was standing in the street to the left of the driver’s door of his patrol car, which was slightly open. After the lapse of a minute or two, Deputy Green heard the Defendant’s truck engine “rev” and saw that the truck started backing out of the road at a high rate of speed. Deputy Green testified that the Defendant was looking back and coming straight toward him at thirty-five to forty | ..miles per hour and kept getting faster and faster. The truck came very close to hitting the deputy such that he had to jump on top of the trunk of his patrol car. The Defendant’s truck continued to increase its speed after passing Deputy Green and eventually flipped over.

Ms. Leger’s testimony corroborates that of Deputy Green with respect to the location of his patrol car on the road. She further corroborated Deputy Green’s testimony regarding the speed and direction with which the Defendant backed his truck out of the road. She saw Deputy Green jump on top of his trunk when the Defendant’s truck passed the deputy’s patrol car.

There is no doubt that the Defendant backed his car out from a dead-end street instead of turning around in one of the yards to do so. However, the Defendant’s specific acts directed toward Deputy Green involved swerving his vehicle toward the deputy’s patrol car, while in the process of backing out of a street. The Defendant’s truck did not contact or cause damage to the patrol vehicle. In fact, after passing the deputy’s patrol car, the Defendant, as testified to by Ms. Leger and Deputy Green, continued to go even faster until he flipped the truck. I am convinced that this evidence did not provide a sufficient basis for a rational trier of fact to conclude beyond a reasonable doubt that the Defendant committed attempted second degree murder. Neither the circumstances of the chase — escaping from a recent burglary, no contact between the vehicles, and no damage to the deputy’s vehicle as well as the Defendant’s speed when backing out of the one-way street — nor the testimony of Ms. Leger that the Defendant could have turned around in her yard to get out of the street supplies proof beyond a reasonable doubt that the Defendant had the specific intent to Mil Deputy Green. The fact that the Defendant could have turned around is of no consequence when, because he was on a dead-end-street, he still would have had to pass near Deputy Green. This evidence, without more, shows |3the Defendant’s intent was merely to escape to avoid arrest. Because the State’s evidence was insufficient to establish the essential element of intent to kill, I would reverse the Defendant’s attempted second degree murder conviction, vacate the forty-year sentence imposed, and order the entry of an acquittal.

For the foregoing reasons, I dissent.

      . The bill of information lists Defendant’s name as Robert Jones a/k/a Earnest Hancock. The Defendant’s fingerprints were submitted to the FBI who confirmed the Defendant’s identity as Robert Glenn Jones.


author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Bradley CATHEY v. LOUISIANA STATE RACING COMMISSION.
    No. 2003-CA-0923.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 15, 2003.

      Donald C. Massey, Marrick Armstrong, Adams and Reese L.L.P., New Orleans, LA, for Plaintiff/Appellee, Bradley Cathey.
    Richard P. Ieyoub, Attorney General, Kim Raines Chatelain, Assistant Attorney General, New Orleans, LA, for Defendant/Appellant, Louisiana State Racing Commission.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

Bradley Cathey, the plaintiff/appellee, is a horse trainer licensed by the Louisiana State Racing Commission, the defen-danVappellant. On March 21, 2002, the stewards at the New Orleans Fair Grounds issued a ruling against Mr. Cath-ey and fined him one thousand dollars ($1,000.00). The stewards found three violations of the Louisiana Administrative Code (LAC) relative to Horse Racing Claiming Rules and Engagements and two violations of the LAC relative to Professional Standards of Horse Racing Occupations. Essentially, the stewards ruled that Mr. Cathey failed to register stable personnel, employed an unlicensed and disqualified person, and supplied funds to the account of another licensee in order to facilitate the claim of a race horse named Clinton Hunting, a horse which he trained, and thereby allowed the claimed horse to remain within his stable of horses.

| ?Mr. Cathey appealed the stewards’ ruling to the State Racing Commission. Following a hearing, the State Racing Commission found that Mr. Cathey supplied the funds to facilitate the claiming of Clinton Hunting, a horse he trained, and allowed the horse to remain within his stable in violation of LAC 35:XI.9901, 35:XI.9909, and 35:XI.9931. The State Racing Commission also found that he had unlicensed and unregistered employees in violation of LAC 46:XLI.505 and 46:XLI.1103. The State Racing Commission suspended Mr. Cathey’s license for six months and fined him two thousand five hundred dollars ($2,500.00).

Mr. Cathey then filed a petition for judicial review with the Civil District Court for the Parish of Orleans. After a review hearing, the trial court rendered judgment reversing the decision of the State Racing Commission and dismissed all charges against Mr. Cathey. The State Racing Commission timely appealed the judgment of the trial court.

THE STATE RACING COMMISSION’S FINDINGS

As to the charges that Mr. Cathey supplied the funds to facilitate the claiming of a horse he trained, and allowed the horse to remain in his stable, the State Racing Commission found that the following facts were established at the administrative hearing.

1. Bradley Cathey trained and stabled the race horse Clinton Hunting at his farm in Folsom, Louisiana.
2. He entered Clinton Hunting in the fourth race, a five thousand dollar ($5,000.00) claiming race, on March 14, 2002 at the New Orleans Fairgrounds.
|a3. Prior to the fourth race, Game Necaise, an acquaintance of Mr. Cathey, obtained an owner’s license for the purpose of submitting a claim for Clinton Hunting.
4.Penny Jenks, also an acquaintance of Mr. Cathey, accompanied Mr. Ne-caise to the Horsemen’s Bookkeeper. Once there, Ms. Jenks deposited a six thousand dollar ($6,000.00) cheek issued by Bradley Cathey to her. The check was used to open an account in Mr. Necaise’s name. It was drawn on the account of B.C. Holding Company of Folsom, L.L.C., signed by Bradley Cathey, and dated the same day as the race, March 14, 2002. Mr. Necaise testified that he never saw the check that was deposited into the bookkeeper’s account in his name.
5. To explain the six thousand dollar ($6,000.00) check used to claim the horse, Mr. Necaise testified that Ms. Jenks owed him money for work done on her automobile. Mr. Cath-ey testified that he owed Ms. Jenks six thousand dollars ($6,000.00) for tack equipment purchased from her.
6. Mr. Necaise completed a claim for Clinton Hunting. The claim was subsequently awarded to Mr. Ne-caise.
7. After the race, Clinton Hunting was picked up by Mr. Cathey’s groomer, Wilfred Jarrett. The horse was returned to the barn area occupied by Mr. Cathey where it was loaded into his truck and transported by Ms. Jenks to Mr. Cathey’s farm in Folsom. Both Mr. Cathey and Mr. Ne-caise testified |4that the barn to which Clinton Hunting was returned was located on the Cathey farm but that it was a separate barn Mr. Ne-caise had leased from Mr. Cathey a month earlier. A copy of the lease was produced.

Regarding Bradley Cathey’s failure to register stable personnel, namely Wilfred Jarrett, and his employing of unlicensed personnel, namely Penny Jenks, the State Racing Commission found the following:

1. Bradley Cathey admitted in testimony that on March 14, 2002, Ms. Jenks transported Clinton Hunting from his farm in Folsom to the racetrack and back again. Racetrack arrival and departure forms for other dates also show that Ms. Jenks transported horses for Mr. Cathey. Mr. Cathey stated that he did not employ Ms. Jenks, but that she was just helping out.
2. Mr. Cathey had not registered Ms. Jenks. Further, he admitted knowing that she was not licensed due to her bad standing in other racing jurisdictions.
3. Mr. Cathey’s work list of stable personnel filed with the State Racing Commission showed that he failed to amend and/or otherwise list Mr. Jarrett as stable personnel.
4. Mr. Cathey admitted that he had not listed Mr. Jarrett. He claimed, however, that he had not employed Mr. Jarrett, but that Mr. Jarrett was just helping out because the regular groomer had recently quit.

| .STANDARD OF REVIEW

The judicial standard of review for final agency decisions is found in La. R.S. 49:964. Pursuant to the statute, the reviewing court determines whether the administrative findings are supported by a preponderance of the evidence. In doing so, the reviewing court makes its own findings based on what it determines to be a preponderance of the evidence. Doe v. La. State Board of Medical Examiners, 2000-1987 (La.App. 4 Cir. 5/30/01), 788 So.2d 1234. The statute, however, mandates that the reviewing court give due regard to the agency’s determination of credibility issues. La. R.S. 49:964(G)(6). Specifically, Subsection G of La. R.S. 49:964 provides, in pertinent part:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues. (Emphasis added).

J^DISCUSSION

In reversing the State Racing Commission’s decision, the trial court gave lengthy Reasons for Judgment setting forth her findings. Specifically, she found that the claim of Clinton Hunting by Mr. Necaise was invalid because the claiming procedure set forth in LAC 35:XI.9911 was violated when a check rather than cash was deposited with the Horsemen’s Bookkeeper. Thus, the trial court concluded that because the decision was based on an invalid claim, the decision was arbitrary and an unwarranted exercise of the State Racing Commission’s discretion. The trial court further found the evidence insufficient to, support the finding that Mr. Cath-ey had junlicensed, unregistered employees as the State Racing Commission failed to present! evidence that Mr. Jarrett and Ms. Jenks were employees of Mr. Cathey.

On appeal, the State Racing Commission contends that the trial court erred in applying the standard of review set forth in La. R.S. 49:964(G) by disregarding both the substance of the charges and the weight bf evidence relied upon to support the administrative action. It further asserts that where the administrative agency has the ‘opportunity to judge the credibility of witnesses by first-hand observation, and the reviewing court does not, La. R.S. 49:964(¶) mandates that due regard be given to; the agency’s determination, citing Ream, M.D. v. La. Bd. of Medical Examiners, 2002-0906, p. 3 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726.

Mr. Gjathey, on the other hand, argues that thel trial court applied the appropriate standard of review when she determined that the State Racing Commission’s findings were not supported by a preponderance of ;he evidence. He asserts that the State R icing Commission failed to prove that he interfered with the claiming of Clinton Hunting, that the horse remained under lis control ^notwithstanding the claim by Garrie Necaise, and that he employed unlicensed and unregistered personnel.

At the hearing to review the State Racing Commission’s decision, the trial court heard argument of counsel only. No live witness testimony was presented. The credibility calls by the State Racing Commission are therefore entitled to “due regard” as the Commission had the advantage of first-hand observation of the demeanor of witnesses and the reviewing court did not. Angelle v. Louisiana State Racing Commission, 2002-0610, 2002-0611, p. 4 (La.App. 4 Cir. 9/25/02), 828 So.2d 1153, 1156. A complete reading of the trial court’s Reasons for Judgment in this case reveals that the trial court acknowledged the correct standard of review pursuant to La. R.S. 49:964(G)(6), but did not give due regard to the State Racing Commission’s determination of credibility issues. The trial court found credible the statements of Mr. Cathey and his witnesses, whereas the State Racing Commission did not. In light of the standard of review discussed herein, we find the decision of the trial court to be in error.

The basis of the State Racing Commission’s decision rests on two findings of fact. First, that Mr. Cathey violated the claiming rules by supplying funds to another licensee for the purpose of claiming back or preventing another from claiming Clinton Hunting. Second, that Bradley Cath-ey employed an unlicensed, disqualified person to assist him, Ms. Jenks, and failed to register stable personnel, Mr. Jarrett.

In our opinion, the stewards presented sufficient evidence to the State Racing Commission to support the claims against Mr. Cathey. The evidence included the testimony of Constantin “Tino” Rieger, an investigator for the State Racing Commission appointed by the stewards to investigate the matter, his I ^investigation report, the race track arrival/departure slips, the Horsemen’s Bookkeeper’s records, the official “claim blank” completed by Mr. Necaise, and a copy of the check that was deposited into the bookkeeper’s account opened in Mr. Ne-caise’s name. In view of this evidence, the State Racing Commission’s findings were not arbitrary or capricious. See La. R.S. 49:964(6)(5). Its decision was supported by a preponderance of the evidence. See La. R.S. 49:964(G)(6). The State Racing Commission’s decision was a fair exercise of its administrative authority, and it did not prejudice Mr. Cathey’s substantial rights. Also, we find that the trial court erred in its application of the proper standard of review by not giving due regard to the State Racing Commission’s determinations of credibility.

Regarding the trial court’ s conclusion that the State Racing Commission’s decision was based on an invalid claim of Clinton Hunting because the claiming procedure was violated when Ms. Jenks deposited a check rather than cash with the Horsemen’s Bookkeeper’s account, we find the trial court erred in so holding. At no time either before the State Racing Commission or on review to the trial court did Mr. Cathey raise the issue that the claim was invalid because Mr. Necaise claimed the horse by the deposit of a check rather than cash. Furthermore, it is immaterial whether the claim was valid or not. The State Racing Commission determined that Mr. Cathey’s actions violated the rules of racing and this finding is clearly supported by the evidence.

Finally, insofar as the trial court determined that the State Racing Commission did not prove violations of LAC 46:XLI.505 and 46:XLI.110S because it introduced no evidence to contradict Mr. Cathey’s testimony that he did not employ either Mr. Jarrett or Ms. Jenks, we find she was clearly wrong. LAC 46:XLI.505 requires owners and/or trainers to report personnel changes to the ^stewards within twenty-four hours. It also provides that any owner or trainer harboring or employing an unlicensed person shall be fined. The State Racing Commission clearly demonstrated at the hearing that Mr. Cathey violated the rules of racing by not notifying the stewards of his change in personnel and that unlicensed personnel were assisting him in racing activities. Although Mr. Cathey denied employing Mr. Jarrett, he acknowledged that Emile, his longtime groom, had quit and Mr. Jarrett, who was not registered, was assisting him. Mr. Cathey also admitted that he allowed Ms. Jenks to transport Clinton Hunting from his farm to the racetrack and back even though she was unlicensed due to her poor standing in other racing jurisdictions. Thus we find that the State Racing Commission satisfied its burden of proof by a preponderance of the evidence.

CONCLUSION

Accordingly, for these reasons, we reverse the judgment of the trial court and reinstate the decision of the Louisiana State Racing Commission.

REVERSED.

      . Stewards are racing officials appointed by the Louisiana State Racing Commission for a race meeting who supervise the daily conduct of racing. The stewards have full authority to investigate, inspect, search and inquire into all matters under their supervision. See La. R.S. 4:143 and 4:172.

      . A "claiming race” is any race in which the ownership of every horse running therein may be transferred from the present owner to a claimant in accordance with the claiming rules and engagements promulgated by the Louisiana State Racing Commission. See LAC 35:XI.9901.

      .La. R.S. 4:143 defines "Horseman” as an owner or trainer of a race horse. La. R.S. 4:185 provides that at each race meeting conducted in the state, there shall be a bookkeeper for the collection, disbursement, and investment of monies belonging to horsemen licensed and racing at such a race meeting who shall be known as the Horsemen’s Bookkeeper. The Horsemen’s Bookkeeper shall be bonded, selected, and employed by the authorized representative of horsemen racing in Louisiana.

      . Stable and horse riding gear.

      . Jarrett's name also appears in the record as "Joucert,” "Joumet," and "Jarret.”

      . The rules of racing require that owners and trainers register all stable personnel with the Commission, and report changes in stable personnel within 24 hours. The rules also prohibit the employment of unlicensed personnel. LAC 46:XLI.505.


author: JjLEON A. CANNIZZARO, JR., Judge. |, JONES, J.,

text:
    Ruby BROOKS and Scott Ernest Cleveland v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2003-CA-0389.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 15, 2003.

      Robert G. Harvey, Sr., Maria Del Carmen Calvo Broce, Law Offices of Robert G. Harvey, Sr., New Orleans, LA, for PLaintiffs/Appellants, Ruby Brooke and Ernest Cleveland.
    William Ryan Acomb, Chauntis T. Jenkins, Porteous, Hainkel & Johnson, New Orleans, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.

      (Court composed of Judge CELARLES R. JONES, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

In this case the trial court granted a motion for summary judgment filed by the defendant, State Farm Mutual Automobile Insurance Company (“State Farm”). The plaintiffs, Ruby Brooks and Earnest Cleveland Scott, are appealing the trial court’s decision granting that motion and dismissing their ease.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

While Ms. Brooks was driving her car in the middle of the night on the interstate highway with her passenger, Mr. Scott, sleeping in the front seat, an object suddenly struck the car’s windshield. The windshield shattered, glass was thrown into the car, and Ms. Brooks lost control of the car, because she could not see the highway. Both Ms. Brooks and Mr. Scott were badly jostled while Ms. Brooks was trying to regain control of her car.

|gMr. Scott, who had been sleeping in the car, was awakened when the foreign object hit the windshield. After Ms. Brooks was able to stop her car on the shoulder of the highway, Mr. Scott exited the car in an attempt to determine what had hit the car. There were black marks across the top of the car, and when Mr. Scott followed the path of those marks, he found, lying on the side of the road behind the car, what appeared to him to be a portion of a tire from an eighteen-wheeler truck.

After Mr. Scott discovered what he thought was a piece of a truck tire, he returned to the car. Ms. Brooks then drove her car back onto the highway but stopped shortly after she returned to the interstate. Mr. Scott then tried to drive the car, but he had to exit the interstate at the next exit. He testified at his deposition that “glass and stuff from that windshield was coming down so bad” that he stopped and tried to remove the glass from the car. A policeman arrived on the scene and advised Mr. Scott that he could not drive the car in its condition. The policeman called a state trooper so that a telephone report of the incident could be made. He also called a tow truck to remove the car from the roadway.

Ms. Brooks did not notice anything unusual as she traveled down the interstate just prior to her car being hit by the foreign object, but she did see an eighteen-wheeler truck traveling on the other side of the interstate immediately before she saw the foreign object fall onto her windshield. After the windshield was hit, Mr. Scott saw several eighteen-wheeler trucks traveling in the opposite direction from the direction in which Ms. Brooks’ car had been traveling. He said that the trucks were about two or three car lengths from Ms. Brooks’ car.

Both Ms. Brooks and Mr. Scott suffered injuries as a result of the foreign object hitting the car’s windshield. Therefore, they filed this suit under the [¡¡uninsured motorist provisions of an insurance policy issued to Ms. Brooks by State Farm.

State Farm filed a motion for summary judgment claiming that the plaintiffs could not recover under the insurance policy, because they could not satisfy their burden of proof. State Farm alleged that because there was no independent witness to the incident that occurred, the plaintiffs had to prove that there was physical contact between Ms. Brooks’ car and another vehicle that occurred as a result of an unbroken chain Of events. The trial court agreed with State Farm and granted the motion for summary judgment on the grounds that thé plaintiffs could not satisfy their burden :of proof at trial. The plaintiffs are now appealing the trial court’s decision.

STANDARD OF REVIEW AND !

APPLICABLE LAW

Standard of Review

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

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there -is no genuine issue as to material fact, ánd that the mover is entitled to judgment as a matter of law.” La. C.C.P, art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... ” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgm snt proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual |4support sufficient ta establish that he will be ablé to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Id. at p. 7 and at 280-31. See also, e.g., Austin v. Abney Mills, Inc., 2001-1598 (La.9/04/02), 824 So.2d 1137; Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129.

Applicable Law

Louisiana’s uninsured motorist law is contained in La. R.S. 22:1406(D). That statute provides in relevant part that “[n]o automobile liability insurance ... shall be delivered or issued for delivery in this state ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles_” La. R.S. 22:1406(D)(l)(a)(i).

La. R.S. 22:1406(D)(l)(d)(i), however, provides that uninsured motorist coverage shall not provide protection for the following:

Damage where there is no actual physical contact between the covered motor vehicle and an uninsured motor vehicle, unless the injured party can show, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underinsured.

(Emphasis added).This is the exclusion from uninsured motorist coverage upon which State Farm has denied coverage in this case.

DISCUSSION

Insurance Policy Provisions

The automobile insurance policy issued to Ms. Brooks by State Farm includes uninsured motor vehicle coverage. The policy defines an uninsured motor vehicle to include the following:

| s2. a “hit and run” land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured; or
b. the vehicle the insured is occupying and causes bodily injury to the insured
3. an automobile
a. the driver of which remains unknown;
b. that causes bodily injury to the insured; and
c. that strikes neither the insured nor the vehicle the insured is occupying.
The insured must prove, by an independent and disinterested witness, that the actions of such unknown driver was the cause of the bodily injury.

(Emphasis in original).

The policy’s provisions arguably do not comport with the statutory provisions on uninsured motorist coverage. In all cases where there is no actual physical contact between the vehicle of the insured and the vehicle of a hit-and-run driver, both the policy and the statutory provisions require an independent and disinterested witness to provide proof that damage resulted from the vehicle whose driver is unknown. The policy, however, also seems to require that there be an independent and disinterested witness at any time there is an accident involving an insured’s vehicle and a vehicle of a hit-and-run whether or not there is physical contact between the vehicles.

It is well established in Louisiana jurisprudence that where a conflict exists between the uninsured motorist provisions in an insurance policy and the statutory provisions on uninsured motorist coverage, the statutory provisions will be read into the policy if the policy limits the coverage required by statute. In Breaux v. Government Employees Insurance Co., 869 So.2d 1385 (La.1979), the Louisiana Supreme Comb expressed this rule as follows:

However, it is well settled that our uninsured motorist statute embodies public policy and, thus, any clause in a policy in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts with the statute.

369 So.2d at 1338-39.

Insofar as the policy’s provisions in the instant case require proof by an independent and disinterested witness in situations involving physical contract between the insured’s vehicle and a hit-and-run vehicle, they conflict with the uninsured motorist statute and must be read out of the policy. The statute requires such proof only in situations that do not involve physical contact.

Proof Requirements

There is no independent witness to the incident involving Ms. Brooks’ car. Therefore, to defeat State Farm’s motion for summary judgment, the plaintiffs must show that there is a genuine issue of material fact as to whether Ms. Brooks’ car had physical contact with a vehicle that caused bodily injury to her and her passenger.

In Brock v. Aetna Casualty & Surety Co., 580 So.2d 474 (La.App. 4th Cir.1991), this Court discussed the concept of a “chain of events” being required to show that the physical contact requirement is met in an uninsured motorist claim where there is not a direct impact between the insured’s vehicle and an uninsured vehicle. This Court stated:

In order to recover under an uninsured motorist insurance policy for damages allegedly caused by a hit and run motorist, a plaintiff must prove that there was physical contact between the hit and run vehicle and the vehicle of the insured or between a hit and run driver and | tan intermediate vehicle which began 4 sequence or chain of events eventual!^ resulting in a collision involving the insured vehicle and an intermediate vehicle.

580 So.2d at 476. See also Ray v. DeMaggio, 818 So.2d 251 (La.App. 4th Cir.1975), where this Court stated that “the impact (to the claimant) must be the result of an unbroken chain of events with a clearly definablje beginning and ending, occurring in a continuous sequence.” 313 So.2d at 253 (quoting Springer v. Government Employees Insurance Co., 311 So.2d 36 (La. App. 4th Cir.1975).

Physical Contact

In the instant case there were black marks on the top of Ms. Brooks’ car. We find' that the existence of these marks creates ja genuine issue of material fact regarding how these marks were made and what made them. The plaintiffs claim that a piece of a tire from an eighteen-wheeler truck fell on the windshield of Ms. Brooks’ car and left the marks. The plaintiffs have the right to have a trier of fact determine whether the marks on the top of Ms. Brocks’ car were more likely than not made by a tire from an eighteen-wheeler truck, as they contend. The plaintiffs should have the opportunity to present evidence, such as the testimony of an expert in accident reconstruction, that might convince a trier of fact that the marks on top of Ms. Brooks’ car are consistent with the type of marks that a flying tread from a truck tire would make.

Chain of Events

If a trier of fact determines that the marks oh Ms. Brooks’ car were made by a truck tiré hitting the car, then the trier of fact must consider whether the tire originated from a truck and traveled directly from the truck to Ms. Brooks’ car in an unbroken chain of events. The plaintiffs’ contention is that a piece of a tire on an eighteen-wheeler truck became detached from the tire as the truck was traveling |son the interstate at the same time Ms. Brooks’ car was also traveling on the interstate. The plaintiffs further contend that the piece of tire was propelled upward through the air and that it was airborne from the time it was detached from the rest of the tire until it hit the windshield of Ms. Brooks’ car. There were no witnesses to the events that the plaintiffs claim transpired. In the absence of direct evidence, such as the testimony of a witness, the plaintiffs must use circumstantial evidence to prove their contention that the piece of a tire left the tire of a truck and in an unbroken chain of events hit Ms. Brooks’ car causing injury to the plaintiffs.

It is clear that circumstantial evidence may be used to prove a plaintiffs case. In Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162 (La.1984), the Louisiana Supreme Court stated:

If circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.

452 So.2d at 164 (emphasis in original). This Court has held that circumstantial evidence may also be used to defeat a motion for summary judgment. Wood v. Becnel, 2002-1730 (La.App. 4 Cir. 2/26/03), 840 So.2d 1225.

In this case Mr. Scott testified in a deposition that the object that hit the windshield of the car was a piece of a tire that he found lying on the ground behind Ms. Brooks’ car. Because of the size of the piece of the tire, Mr. Scott determined that it must have come from an eighteen-wheeler truck rather than from an automobile or other smaller vehicle. Both Mr. Scott and Ms. Brooks testified that they saw eighteen-wheeler trucks traveling on the interstate in the opposite direction from which Ms. Brooks’ car was traveling. Ms. Brooks testified that she saw an eighteen-wheeler truck immediately after the windshield of her car was |8struck by a flying object, and Mr. Scott testified that right after the impact, he saw several eighteen-wheeler trucks within two or three car lengths of Ms. Brooks’ car.

We think that there is sufficient circumstantial evidence in this case to create a material issue of fact and to defeat a motion for summary judgment. If the trier of fact determines that a piece of a truck tire hit the windshield of Ms. Brooks’ car, then the trier of fact must determine whether the truck tire hit the ear in a chain of events beginning with a piece of a truck tire becoming detached from a truck traveling on the interstate and concluding with that piece of tire hitting the car after being propelled through the air. There is a genuine issue of material fact regarding how what appeared to Mr. Scott to be a portion of a truck tire happened to land on the windshield of Ms. Brooks’ car. Once it is determined that the foreign object that hit Ms. Brooks’ car was a portion of a truck tire, there is a genuine issue of material fact regarding its source. The trier of fact must determine whether the piece of tire originated from an unknown source and fell onto the interstate into the path of the car, whether a piece of a tire that had been lying on the interstate somehow ascended onto Ms. Brooks’ ear, or whether a portion of a truck tire that came directly from a truck traveling on the interstate in proximity to Ms. Brooks’ car hit the car.

The plaintiffs are entitled to try to prove at trial by a preponderance of the evidence that it is more likely than not that Ms. Brooks’ car was hit by a piece of a truck tire. The plaintiffs are further entitled to try to prove by a preponderance of the evidence that it is more likely than not that in a continuous, unbroken chain of events the piece of tire became detached from a truck traveling on the interstate Imwhen Ms. Brooks’ car was also on the interstate, became airborne, and remained airborne until it hit Ms. Brooks’ car.

In this case the plaintiffs are opposing summary judgment. Because the factual inferences reasonably drawn from the circumstantial evidence presented by the plaintiffs are to be construed in the plaintiffs’ favor at this juncture in the proceedings, summary judgment should not be granted.

CONCLUSION

Based on the foregoing, the judgment of the trial court is reversed. This case is remanded to the trial court for further proceedings in accordance with this opinion.

|, JONES, J.,

Concurs with reasons

I agree that the district court erred in granting the Motion for Summary Judgment, but write separately.

The initial legislation relating to what was known as a “phantom vehicle,” addressed the question of vehicles allegedly causing accidents without a collision of any kind with the tortfeasor’s vehicle. However, when a “part” of the tortfeasor’s vehicle collides with the victim’s vehicle, this constitutes, for me, a collision, and is therefore covered by plaintiffs UM coverage.

A question of material fact exists as to whether plaintiffs vehicle collided with an object forming part of the tortfeasor’s ve-¡And for this reason, I concur here-hide. in.

      . Although the plaintiff's name is given in the Petition for Damages as Ernest Scott Cleveland, in his deposition, he stated that his name is Earnest Cleveland Scott. In this opinion we will refer to him as Earnest Cleveland Scott.