author: LGAIDBY, J.

text:
    STATE of Louisiana v. Philip FOSTER.
    No. 2002 KA 1259.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Doug Moreau, District Attorney, By Sandra Ribes, Assistant District Attorney, Baton Rouge, Counsel for Plaintiff/Appellant State of Louisiana.
    Karl J. Koch, Baton Rouge, Counsel for Defendant/Appellee Philip Foster.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   LGAIDBY, J.

On January 31, 2001, Philip Foster was charged by grand jury indictment with one count of conspiracy to commit malfeasance in office in violation of La. R.S. 14:26 and La. R.S. 14:134 (count one); one count of conspiracy to commit money laundering in violation of La. R.S. 14:26 and La. R.S. 14:230(A)-(E) (count two); and one count of conspiracy to commit money laundering in violation of La. R.S. 14:26 and La. R.S. 14:230 (count three). Defendant pled not guilty to all counts.

Defendant filed a pre-trial “Motion to Quash, or for Other Appropriate Relief, and for Evidentiary Hearing,” asserting that he was indicted in violation of a “use plus derivative use immunity” extended pursuant to La.Code Crim. P. art. 439.1. After a hearing, the trial court quashed the indictment. On appeal, the state seeks relief from the adverse ruling of the trial court, relying on the following single assignment of error:

The trial court erred in granting defendant’s motion for a Kastigar hearing and erred in granting defendant’s motion to quash the indictment when defendant’s grand jury testimony, which was compelled by a grant of use and derivative use immunity, contained no incriminating statements by defendant or information from which a prosecution on the charged offenses could possibly be based.

Finding no merit in this assignment of error, we affirm the ruling of the trial court.

FACTS

On August 9, 1999, the Legislative Auditor filed a report indicating that from 1991 through 1999, the Department of Elections and Registrations paid excessive prices for the purchase of automatic voting machines, parts, and installations, resulting in a loss to the state in excess of $8,000,000.00. The matter was already before the Grand Jury for the Parish of East Baton Rouge for investigation. As a result of that investigation, the Commissioner |3of the Department of Elections and Registrations, Jerry Fowler, was indicted on August 19, 1999, on eight counts of malfeasance, maintaining false public records, and conspiracy to commit money laundering. The grand jury investigation proceeded as to others believed to be involved.

In connection with the continuing grand jury investigation, the District Attorney petitioned the Nineteenth Judicial District Court for a certificate, pursuant to La. Code Crim. P. arts. 741-744, to compel the attendance before the grand jury of Philip Foster, a witness located outside the State of Louisiana. The state represented that Foster, on behalf of Sequoia Pacific Voting Equipment, Inc., had entered into transactions with the Department of Elections and Registrations. The state further represented that these transactions were under investigation for violations of Louisiana criminal laws and that Foster was a material and necessary witness to the grand jury investigation. Thereafter, the Attorney General for the State of Louisiana and the District Attorney jointly petitioned the court for an order, pursuant to La.Code Crim. P. art. 439.1, compelling Foster to testify because he was expected to invoke his privilege against self-incrimination. The movants advised the court that “[n]o testimony or other information compelled under the order, nor any information directly or indirectly derived from such testimony or other information, will be used against [Philip Foster] in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” An order was signed on September 23, 1999, compelling Foster to testify and granting him use plus derivative use immunity.

Phillip Foster testified before the grand jury in September 1999, in compliance with the court’s order. He was questioned about his knowledge of business and financial arrangements between Fowler and Pasquale Ricci. [4 He was also questioned about the designation of his brother-in-law, J. David Philpot, as the exclusive agent for the sale of automatic voting machines. The state’s contention was that the designation of Philpot as a sole source for Sequoia equipment was accomplished in order to allow Fowler to avoid having to put a contract for voting machines out to bid. This allowed Fowler to order goods and services at inflated rates, with part of the state funds expended being funneled back to him and his alleged coconspirators. Foster was also questioned about his knowledge of the relationship of Philpot to others the state contended were involved in disguising the flow of money. The state filed the September 1999 grand jury testimony of Foster into the record of this proceeding. On its face, Foster’s testimony did not implicate him or anyone else in illegal activity. However, because the grand jury testimony of all of the other witnesses called during the investigation is not before us, it is unclear whether Foster’s testimony might have so diverged from that of other witnesses that it drew suspicion upon him.

On November 18, 1999, the grand jury returned a superceding and supplemental indictment, charging Jerry Fowler, J. David Philpot, Pasquale Ricci, and John Richard Delhaume, Jr., with multiple counts of violation of Louisiana law in connection with the alleged automatic voting machine kickback scheme under investigation. Guilty pleas were entered by Fowler and Ricci on November 27, 2000. Their statements, filed in connection with the entry of their pleas, implicated Foster in the kickback scheme.

In January 2001, Foster was indicted for complicity in the same voting machine kickback scheme that was the subject of his immunized testimony before the grand jury. Foster filed a “Motion to Quash, or for Other Appropriate Relief, and for Evidentiary Hearing.” He alternatively urged the trial court to dismiss the indictment against him or to suppress all of the |Revidence the government intended to use against him at trial, asserting that his indictment and the evidence to be used emanated from his September 1999 grand jury testimony. Foster asserted that under the binding principles established in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), he was entitled to a hearing and to the relief requested. Under Kastigar, when a witness is compelled to relinquish his right to refuse to testify for fear of self-incrimination in exchange for a grant of use plus derivative use immunity, the burden of proof in any subsequent prosecution of that witness is on the government to prove that it did not use the compelled testimony in any way, directly or indirectly-

The trial court initially heard oral arguments on whether the state was required to make an evidentiary showing pursuant to Kastigar prior to trial. The trial court ordered that a Kastigar hearing be held and advised the state that it should consult the governing law and be prepared to meet the appropriate burden of proof.

On April 29, 2002, the trial court held the Kastigar hearing. In keeping with the burden of proof established in Kastigar, the defendant called upon the state to affirmatively demonstrate that his indictment and any evidence to be used against him at trial did not emanate directly or indirectly from his compelled grand jury testimony in September 1999. At the Kastigar hearing, the state called no witnesses. No representative of the state testified to establish that the state did not make direct or indirect use of Foster’s testimony to secure his indictment, nor did the state call Fowler or |fiRicci to prove that their actions in pleading guilty and implicating Foster were not a direct or indirect result of Foster’s testimony, even though the state argued to the court that Foster’s indictment was based upon information obtained from Fowler and Ricci after their indictments. Other than the unsworn assertions of the prosecutor at the Kastigar hearing and the memoranda submitted, both accepted as argument only, the state made no effort to produce evidence to affirmatively demonstrate that the Foster indictment was the result of evidence obtained from sources wholly independent of Foster’s immunized testimony. Furthermore, the prosecutor conceded that prior to eliciting Foster’s 1999 compelled testimony, the State had no information that implicated Foster in criminal activity.

The state filed an analysis of Foster’s September 1999 testimony, also accepted as argument only. It is clear that the state believed Foster concealed his involvement in the kickback scheme and misrepresented the facts to the 1999 grand jury. The state also offered the record of the court proceedings against others implicated in the kickback scheme and proffered, but without attempting to lay an evidentiary foundation for admissibility, twenty-three boxes of unauthenticated materials gathered for the purpose of responding to defendant’s discovery requests.

After the state completed its submission at the Kastigar hearing, the trial court pointed out that the state did not adduce evidence of what it used to gain Foster’s indictment or what it would use to secure his conviction so that the court and the defendant could examine whether there was an improper connexity, direct or indirect, with the compelled testimony. While the state introduced various documents at the healing, it did not offer any testimony or affidavits to establish that the state did not gain any prosecutorial advantage from the immunized testimony. Essentially, the |7state took the position that the trial court should look at the documents in the case and accept the representations made by the state in oral argument that it did not make direct, indirect, or derivative use of Foster’s testimony. The trial court repeatedly advised the state during the hearing that it considered this an insufficient showing under Kastigar and that, based upon the showing made, there was no way for it to determine whether a Kastigar violation had occurred. At the conclusion of the hearing, the trial court found that the state failed to sustain the affirmative burden of proof imposed under Kastigar and quashed the indictment.

LAW AND ANALYSIS

The state’s assignment of error presents three related issues for our consideration. At the outset, we must determine whether the trial court erred in entertaining defendant’s request for a hearing pursuant to Kastigar. If we find that such a hearing was appropriate, we must further determine whether the trial court erred in holding that the state failed to meet its burden of proof and whether the appropriate remedy was imposed.

The Fifth Amendment to the United States Constitution provides that no person shall be compelled to bear witness against himself. This privilege has been extended to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The privilege against self-incrimination is also guaranteed in Article 1, Section 16 of the Louisiana Constitution of 1974. However, notwithstanding the constitutionally-guaranteed privilege, an individual can be compelled to testify if granted immunity coextensive with the scope of the privilege against self-incrimination. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 54, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964).

s A grant of immunity to procure testimony which would otherwise be incriminating is characterized as either “transactional immunity” or “use plus derivative use immunity.” “Transactional immunity” affords complete immunity from prosecution on the charged offense. “Use plus derivative use immunity” allows for prosecution on the charge, but the state cannot “use” evidence provided by the defendant as a result of the immunity agreement or any information derived therefrom. State v. Parker, 625 So.2d 1364, 1368 (La.App. 1st Cir.1993), writ denied, 93-2832 (La.2/25/94), 632 So.2d 761. If the government has independent evidence, a party who has testified under compulsion may still be prosecuted. State v. Edmonson, 97-0108, p. 6 (La.App. 1st Cir.7/28/97), 699 So.2d 882, 885-886, reversed on other grounds, 97-2456 (La.7/8/98), 714 So.2d 1233.

Where a formal statutory grant of immunity is extended, the Fifth Amendment is necessarily implicated. State v. Edmonson, 97-2456, p. 6 (La.7/8/98), 714 So.2d 1233, 1237. In this case, the state obtained a formal statutory grant of immunity pursuant to La.Code Crim. P. art. 439.1, compelling the defendant to testify at the grand jury hearing in September 1999 in connection with the grand jury’s investigation of the State Commissioner of Elections and Registrations and individu-ais associated with him. Pursuant to that order, Philip Foster was precluded from invoking the privilege against self-incrimination guaranteed to him under the federal and state constitutions. Where a court orders a witness to relinquish that privilege, La.Code Crim. P. art. 439.1(C) provides in pertinent part:

[N]o testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.

lain Edmondson, the Louisiana Supreme Court explained the constitutional implications of immunity statutes such as the one adopted and embodied in La.Code Crim. P. art. 439.1:

Statutory immunity is what may be granted by statute when a witness is summoned to testify at a trial or before a grand jury and refuses to do so by invoking his Fifth Amendment privilege against self-incrimination. The State, through the explicit authorization of an immunity statute, may then grant the type of immunity afforded by the statute, and may compel the recalcitrant witness’ testimony, under penalty of contempt, and over the witness’ invocation of his or her right to remain silent. However, the immunity provided to the witness under the statute in order to compel his or her testimony must be at a minimum co-extensive with the asserted Fifth Amendment privilege which it has displaced. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Therefore, the United States Supreme Court has held that where a witness’ testimony is compelled through a statutory grant of immunity, prosecu-torial authorities are prohibited from using the compelled testimony itself or the fruits derived from the testimony in a subsequent prosecution of the compelled witness. By preventing the use of the compelled statement in any respect, the immunity required by Murphy insures that the testimony cannot lead to the infliction of criminal penalties on the compelled witness. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); In re Parker, 357 So.2d 508 (La.1978). (Footnote omitted.)

97-2456 at pp. 6-7, 714 So.2d at 1237.

In Kastigar, the United States Supreme Court established a mechanism for insuring that the state does not make direct or indirect use of compelled testimony. Once a defendant demonstrates that he has testified under a grant of immunity, a heavy burden shifts to the prosecution to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Kastigar, 406 U.S. at 461-462, 92 S.Ct. at 1665. In United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000), the United States Supreme Court reiterated its holding in Kastigar:

[A] person who is prosecuted for matters related to testimony he gave under a grant of immunity does not have the burden of proving that his testimony was improperly used. Instead, ... the statute imposes an affirmative duty on the prosecution, not merely to show that its evidence is not tainted by the prior testimony, but “to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

530 U.S. at 40, 120 S.Ct. at 2045.

While the court in Kastigar did not mandate the state to bear its burden of proof at a hearing conducted prior to trial, courts routinely consider this issue in the context of a pre-trial motion to quash an indictment or in the context of a motion to suppress evidence, depending on the circumstances of the case. A trial court may hold a Kastigar hearing pre-trial, post-trial, mid-trial (as evidence is offered), or it may employ some combination of these methods. United States v. De Diego, 511 F.2d 818, 823-824 (D.C.Cir.1975).

The state has cited no authority, nor are we aware of any, that stands for the proposition that the trial court cannot hold the hearing contemplated by Kastigar prior to trial when the defendant asserts a Kasti-gar violation in a pre-trial motion. Indeed, the jurisprudence suggests that it would have been error for the trial court to deny such a hearing. For example, in United States v. Cantu, 185 F.3d 298, 304 (5th Cir.1999), the court made it clear In that the substantial burden of Kastigar requires the government to give the defendant a chance to cross-examine relevant witnesses to ensure the lack of tainted evidence.

Under Kastigar and Hubbell, the burden of proof is entirely on the state. In Hubbell, the Supreme Court rejected the argument that someone other than the prosecutor, presumably the defendant, must show that there is some substantial relationship between the compelled testimonial communications and some aspect of the information used in the investigation or the evidence presented at trial. Hubbell, 530 U.S. at pp. 45-46, 120 S.Ct. at 2048.

Based on the controlling jurisprudence, we are unswayed by the argument of the state, advanced in the trial court and again on appeal, that defendant was obligated to point to some particular piece of allegedly tainted evidence in order to be entitled to a Kastigar hearing. Kastigar explicitly holds that one raising a claim under an immunity statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate, independent sources. Accordingly, we find that the trial court did not err in granting an evi-dentiary hearing prior to trial on the question of whether the state made direct, indirect, or derivative use of Foster’s 1999 compelled grand jury testimony.

The next question we must resolve is whether the trial court erred in finding that the state failed to bear its burden of proof under Kastigar. Louisiana courts have not yet addressed the findings required by a trial court or the standard of review for a trial court’s ruling on a motion to quash an indictment or on a motion to suppress evidence held in compliance with the principles announced in Kastigar. However, federal jurisprudence | ^interpreting the analogous federal use and derivative use immunity statute provides us with ample guidance. Under the rationale used in Kastigar, the court should make specific findings of fact with regard to the evidence presented to the grand jury by the government to determine whether it was tainted directly or indirectly by the immunity provided to the defendant. The burden is on the government to show by a preponderance of the evidence that each item of evidence presented to the grand jury was derived from sources wholly independent of the compelled testimony. United States v. Brothers, 856 F.Supp. 380, 383 (M.D.Tenn.1993). The prosecution need not negate all abstract possibility that its evidence was tainted by exposure to the defendant’s immunized testimony, but it must show by a preponderance of the evidence that the evidence it used was derived from legitimate sources independent of the immunized testimony. United States v. Byrd, 765 F.2d 1524, 1529 (11th Cir.1985). When the court uses the correct legal principles, its determination of taint is a factual finding subject to review under the clearly erroneous standard. United States v. Harris, 973 F.2d 333, 337 (4th Cir.1992).

In this case, the state failed to sustain its burden of proof as set forth in Kastigar. The government’s mere representations in argument to the court that it did not make direct or indirect use of immunized testimony is generally regarded as insufficient to carry its burden under Kastigar. To prevail, the government must produce evidence, not just argument. See United States v. Harris, 973 F.2d at 337; See United States v. Tantalo, 680 F.2d 903, 908 (2nd Cir.1982); See United States v. Seiffert, 463 F.2d 1089, 1092 (5th Cir.1972). As the trial court noted, since the state never disclosed the evidence it used to obtain the grand jury indictment of Foster, it clearly did not meet its burden of affirmatively demonstrating that the indictment 113was based on evidence derived from wholly independent sources. While that may have been the case, the state did not demonstrate such at the Kastigar hearing. After a thorough review of the record, we are satisfied that the trial court did not commit clear error in finding that the state failed to meet the burden of proof imposed under Kastigar.

The final issue for us to resolve is whether the trial court erred in quashing the Foster indictment as a remedy. The “use plus derivative use immunity” provided to Foster did not insulate him from prosecution for the offenses that were the subject of his testimony; it only precluded the state from using against him any advantage gained directly or indirectly from the compelled testimony. The state contends that quashing Foster’s indictment 114was not the proper remedy for a violation of La.Code Crim. P. art. 439.1. It argues that the proper procedural vehicle for a defendant to use in a case such as this is a motion to suppress the use at trial of any evidence obtained directly or indirectly through use of the compelled testimony. The state insists that the trial court exceeded its authority in quashing the indictment. Under the particular facts and circumstances of this case, we do not agree.

At the outset, we conclude that the remedy imposed by the trial court is not foreclosed by statute. La.Code‘Crim. P. arts. 532-584 set forth the grounds for a motion to quash. In State v. Tanner, 425 So.2d 760, 762 (La.1983), the court held that even though violation of an immunity agreement is not specifically listed in Article 532, use of a motion to quash as a remedy is not precluded. The Tanner court concluded that the defendant in that case, who had the benefit of complete “transactional immunity,” could not be prosecuted under any circumstances for the transaction charged and could seek to have his indictment quashed. While Tanner does not directly support the proposition that violation of a “use plus derivative use immunity” order may be enforced by a motion to quash, it does support the more general proposition that the lists of enumerated grounds for filing a motion to quash found in Articles 532-534 are not exclusive.

The Louisiana Supreme Court has not yet addressed the precise question of the propriety of an order quashing an indictment as a remedy for a violation of La. Code Crim. P. art. 439.1. However, since a grant of statutory immunity in exchange for compelled testimony implicates federal constitutional guarantees, and since our statute is identical in all material respects to the federal immunity statute, federal jurisprudence on this issue is particularly instructive.

ik The fundamental rule set forth in Kastigar is that in order for a statute granting “use plus derivative use immunity” to be constitutionally valid, the witness must be in the same position after testifying that he or she would have been if the testimony had not been compelled. Where the witness asserts that he would not have been indicted but for the direct or indirect use of his previously compelled testimony, and where the government cannot affirmatively prove the contrary, arguably the only manner of restoring the witness to the pre-immunity position is to quash the indictment. This is particularly true since the reach of Kastigar goes far beyond precluding the direct use of the testimony or evidence compelled. In Kastigar, the court cautioned that the total prohibition on use of compelled testimony provides a comprehensive safeguard, barring its use as an “investigatory lead” and also barring the use of any evidence obtained by focusing an investigation on a witness as a result of compelled disclosures. In Hubbell, where the government could not prove that it would have been able to obtain an indictment of the witness without the compelled testimony, the court held:

Kastigar requires that respondent’s motion to dismiss the indictment on immunity grounds be granted unless the Government proves that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources “wholly independent” of the testimonial aspect of respondent’s immunized conduct ....

530 U.S. at 45, 120 S.Ct. at 2048.

The holding of the United States Supreme Court in Hubbell appears to fully answer the question. Direct, indirect, or derivative use of compelled testimony in obtaining an indictment justifies dismissal of the indictment. In defending against a motion to quash an indictment, the government bears the burden of proving that the evidence used to obtain the indictment was derived from sources wholly independent of the immunized testimony. 11R Numerous federal courts have employed the remedy of quashing an indictment when the government is unable to demonstrate that the indictment did not emanate directly or indirectly from immunized testimony.

Louisiana appellate courts addressing the question of an appropriate remedy for violation of La.Code Crim. P. art. 439.1 prior to the decision in Hubbell reached varying results. In State v. Parker, 625 So.2d 1364 (La.App. 1st Cir.1993), writ denied, 93-2832 (La.2/25/94), 632 So.2d 761, the defendant filed a motion to quash his indictment on the basis of an earlier grant of immunity. This court concluded that the grant of immunity was predicated on certain conditions that were not complied with, and for that reason, prosecution was not precluded by the previous grant of immunity. The court expressed the view that when only “use plus derivative use immunity” is granted, the correct procedure by which to challenge an indictment allegedly returned in violation of a statutory grant would be a motion to suppress any evidence derived directly or indirectly therefrom. State v. Parker, 625 So.2d at 1368. However, because the case was decided on other grounds, this expression is dicta and we are not bound by it.

In State v. Delcambre, 97-1447, pp. 3-10 (La.App. 3rd Cir.4/29/98), 710 So.2d 846, 848-851, the court similarly opined that quashing an indictment was not an appropriate remedy. The court cited La.Code Crim. P. art. 442, which provides that no indictment shall be found invalid on the 117grounds that it was based in whole or in part on illegal evidence. The court also reasoned that a defendant does not generally have a constitutional right to challenge an indictment by asserting the illegality of the evidence that was presented to the grand jury. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (denying a challenge to an indictment based on evidence obtained through an unconstitutional search and seizure); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (denying a challenge to an indictment based on hearsay evidence). However, the Delcambre court did not have the benefit of the United States Supreme Court opinion in Hubbell, nor did it consider the rejection of the Calandror-Costello rule by most federal courts that have considered the issue in the context of violations of grants of immunity. Moreover, the evidence presented at the Kastigar hearing in the Delcambre case arguably refuted the defendant’s claim that his grant of immunity was violated, such that no remedy was needed at all. In Delcambre, the prosecution submitted the transcript of the entire proceedings before the grand jury that indicted the defendant. The transcript demonstrated that the prosecution used numerous sources other than the compelled testimony. It was undisputed that the compelled testimony was referred to before the indicting grand jury in only two instances, both of which were innocuous. The court found that there was an abundance of other testimony introduced at the grand jury proceeding. Since the court found that the government bore its burden of proving that the indictment was not based on the immunized statement, it was unnecessary for the court to reach the question of which remedy was available to the trial court. Accordingly, that portion of the Delcambre opinion addressing the issue before us is dicta.

|isln State v. Lehrmann, 532 So.2d 802, 807-809 (La.App. 4th Cir.), writ denied, 533 So.2d 364 (La.1988), a different conclusion was reached. In that case, the appellate court quashed defendant’s indictment, finding that the state did not bear its burden of affirmatively proving that the indictment was secured based on evidence wholly independent from the evidence given pursuant to a grant of use immunity.

Although we are not bound by the views expressed in dicta in Parker and Delcam-bre, the instant case is distinguishable in that the state failed to provide the court with the evidence it intended to use to convict Foster and the source of the evidence so that the court could determine whether there was an improper connexity between the two in violation of the grant of immunity. Foster filed a “Motion to Quash, or for Other Appropriate Relief, and for Evidentiary Hearing,” asking the court to alternatively quash the indictment or suppress the evidence the government intended to use against him that had been obtained directly or indirectly from his compelled testimony. Had the state provided the court with the evidence it intended to use to convict Foster and the source of the evidence, the court could have determined whether there was an improper con-nexity between the compelled testimony and the evidence obtained. In such a case, the appropriate remedy would be for the court to suppress any evidence obtained in violation of the grant of immunity. However, because the state failed to make such a disclosure at the Kastigar hearing, it was impossible for the court to make such a determination and suppress evidence improperly obtained. As a result, the only remedy the court could provide was to quash the indictment.

Although dismissal of an indictment is a harsh remedy, it is an appropriate remedy pursuant to the controlling jurisprudence of the United States Supreme Court in Hubbell and other persuasive decisions of the 113federal judiciary. Since the state did not produce any evidence whatsoever of what was used to obtain the grand jury indictment against Foster, it was impossible for the trial court to conclude that the compelled testimony was not used, directly or indirectly, in securing Foster’s indictment. Under the particular facts and circumstances of this case, the trial court did not err in concluding that the state failed to carry its burden of proof and in quashing the indictment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . For a review of the federal jurisprudence that has developed in this area, see Richard J. Link, Effect of Defendant’s Immunized Statements on Testimony by Prosecution Witness—Post-Kastigar Cases, 122 A.L.R. Fed. 429 (1994).

      . The trial court warned the prosecutor that introduction into evidence of Foster's September 1999 grand jury testimony would not be sufficient to enable her to determine whether the state made indirect or derivative use of the compelled testimony.

      . The state took the position that it was up to the defendant to point out some particular advantage that the state gained through the use of Foster’s compelled testimony.

      . La.Code Crim. P. art. 439.1 was enacted in 1972. It is identical in all essential respects to a parallel immunity provision in the federal Organized Crime Control Act of 1970, 18 U.S.C. § 6002. As a consequence, our courts have deemed federal jurisprudence surrounding the parameters of 18 U.S.C. § 6002 instructive in inteipreting the scope of La.Code Crim. P. art. 439.1, particularly since both enactments deal with the constitutional implications of extending immunity to a witness in exchange for precluding assertion of the privilege against self-incrimination. See State v. Lehrmann, 532 So.2d 802, 807-809 (La.App. 4th Cir.) writ denied, 533 So.2d 364 (La.1988). See also James E. Boren, Comment, Constitutional Considerations of Federal and State Testimonial Immunity Legislation, 36 La.L.Rev. 214, 227-232 (1995).

      . The hearing to determine whether the state can bear its affirmative burden of proof is commonly referred to as a Kastigar hearing. United States v. Jimenez, 256 F.3d 330, 348 (5th Cir.2001).

      . In Edmondson, our Supreme Court held that the defendant was not entitled to a Kasti-gar hearing because the immunity at issue in that case was not compelled by a court order but was extended pursuant to an agreement voluntarily entered into between the defendant and the state. In discussing the issue, the court noted that compulsion is the essential factor necessary for a defendant to invoke a Kastigar hearing. Edmondson, 97-2456 at p. 9, 714 So.2d at 1238.

      . In this case, the defendant suggested that the decision of Fowler and Ricci to implicate Foster may have resulted directly or indirectly from Foster's testimony. For a case involving a similar issue, see United States v. Kurzer, 534 F.2d 511, 517-518 (2nd Cir.1976). Where the issue is whether testimony of a coconspirator was motivated by immunized testimony, the prosecution should detail its evidence against the coconspirator and prove it did not come from the immunized testimony. The coconspirator should be questioned as to his motivations for implicating the party whose testimony was compelled. United States v. Hampton, 775 F.2d 1479, 1488-1489 (11th Cir.1985). The prosecutor can prove that an indictment did not result from compelled testimony through the testimony of the coconspirators. United States v. Biaggi, 909 F.2d 662, 689 (2nd Cir.1990) cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991); United States v. Brimberry, 803 F.2d 908, 916 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1977, 95 L.Ed.2d 817 (1987). Numerous indirect uses of compelled testimony have been found problematic. For instance, use of grand jury testimony to refresh the recollections of witnesses who later testify may be a violation. United States v. Kristel, 762 F.Supp. 1100, 1108 (S.D.N.Y.1991). Use of immunized information by a prosecutor to focus his questions to a witness might constitute a violation. United States v. Carpenter, 611 F.Supp. 768, 780 (N.D.Ga.1985). Prosecutors can offer evidence that they have not made use of immunized testimony to defeat a challenge by a defendant. See United States v. Bartel, 19 F.3d 1105, 1112 (6th Cir.1994), where the court heard testimony of an investigator even though the defendant's immunized statement did not disclose any overtly incriminatory information. In United States v. Garrett, 849 F.2d 1141, 1142 (8th Cir.1988), co-conspirators who implicated the defendant were proven to have done so for reasons other than his compelled testimony.

      . Because the state did not disclose the evidence it used to obtain the indictment or offer any witnesses for examination, we do not reach the issue of whether the state may have made use of the immunized testimony in non-evidentiary ways and the extent to which such use falls within the reach of Kastigar. See Harris, 973 F.2d at 337. Evidentiary use could conceivably include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy. United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973).

      . In Edmondson, the defendant sought only an order suppressing evidence.

      . A distinction has been drawn between the general rule that a facially valid indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege may not be dismissed and the situation where evidence obtained through a statutory grant of immunity is used to obtain an indictment. See e.g., United States v. Garrett, 797 F.2d 656, 660 (8th Cir.1986); United States v. Zielezinski, 740 F.2d 727, 732 (9th Cir.1984); United States v. Hampton, 775 F.2d 1479, 1489 (11th Cir.1985); United States v. Beery, 678 F.2d 856 (10th Cir.1982).

      . In Parker, the defendant violated the terms of his immunity agreement, therefore it was unnecessary for the court to determine the correct procedural vehicle to challenge the revocation of immunity. State v. Parker, 625 So.2d at 1368.

      . See cases cited in footnote 10.


source: Caselaw Access Project

author: LGAIDRY, J.

license: Public Domain

text:
    Kristina W. SHAPIRO and Alfred B. Shapiro v. L & L FETTER, INC., NIE Insurance Company, and State Farm Fire and Casualty Company
    No. 2002 CA 0933.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Alfred B. Shapiro, Baton Rouge, Counsel for Plaintiffs/Appellants Kristina W. Shapiro and Alfred B. Shapiro.
    William H. Justice, Baton Rouge, Counsel for Defendant/Appellee State Farm Fire & Casualty Company.

      Robert H. Cooper, Metairie, Counsel for Defendant/Appellee L & L Fetter, Inc. and NIE Insurance Company.
    Lon Norris, Baton Rouge, Counsel for Defendant/Appellee Lonnie Fetter.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   LGAIDRY, J.

This appeal has been brought pursuant to the trial court’s certification of a summary judgment as a final partial judgment under La. C.C.P. art.1915. For the following reasons, we find on our de novo review that the trial court erred in certifying the partial summary judgment as a final judgment. As a result, this court lacks subject matter jurisdiction, and the appeal must be dismissed.

FACTS AND PROCEDURAL HISTORY

On February 19, 1999, a fire destroyed a town house in Baton Rouge. The plaintiffs, Alfred and Kristina Shapiro, resided in an adjacent town house, also damaged by the fire. As a result of the fire, much of the movable property in the Shapiros’ residence was damaged by smoke and water. Following the fire, Mr. And Mrs. Shapiro delivered damaged clothing to L & L Fetter, Inc., doing business as Fetter’s Cleaners (Fetter’s), a dry cleaning and laundry business specializing in smoke residue removal and cleaning. A malfunction occurred in equipment used by Fetter’s. When Fetter’s returned the Shapiros’ clothing, a large portion of the clothing had been damaged beyond repair.

On February 18, 2000, Mr. and Mrs. Shapiro filed suit seeking to recover the value of their damaged clothing. Named as defendants were Fetter’s; its insurer, NIE Insurance Company; and State Farm Fire and Casualty Company (State Farm), which issued a homeowner’s insurance policy to the Shapiros providing fire and extended damage coverage. State Farm filed a motion for partial summary judgment seeking to dismiss the Shapiros’ claims against it for the alleged damage caused by Fetter’s. The Shapiros filed a motion for partial summary judgment seeking a | ¡¡determination that the State Farm policy did provide coverage for the damage to their clothing by Fetter’s.

Following a hearing on the opposing motions for summary judgment, the trial court denied the Shapiros’ motion, but granted State Farm’s motion. The trial court made a specific finding that there was no coverage under the State Farm homeowner’s policy for any and all damages arising from the alleged negligent dry cleaning process of Fetter’s, as opposed to damages caused directly by the fire. The trial court noted that its ruling did not prevent the Shapiros from attempting to prove alternatively that irreparable damage was already done to their clothing as a direct result of the fire, and therefore covered as a loss under their State Farm policy. In the judgment, the trial court expressed the finding, “per the stipulation of counsel,” that its judgment was immediately appealable as a final judgment pursuant to La. C.C.P. art.1915. Mr. And Mrs. Shapiro appeal the judgment of the trial court.

APPELLATE JURISDICTION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 3 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art.2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. Whether a partial final judgment is appealable is determined by examining the requirements of La. C.C.P. art.1915.

Louisiana Code of Civil Procedure Article 1915 authorizes the immediate appeal of final judgments, including “final” partial judgments. It provides, in pertinent part:

|4A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Our emphasis; footnote added.)

The first determination a trial court must make in certifying a partial judgment as immediately appealable under La. C.C.P. art. 1915(B) is its finality. A certification of a judgment as final by the trial court under La. C.C.P. art. 1915(B) is jurisdictional in nature, rather than discretionary. Van v. Davis, 00-0206, p. 2 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 480. But Lthe trial court’s mere designation of a partial judgment as final, without more, does not make that judgment immediately appealable. This court is not bound by the trial judge’s certification of the partial adjudication as final for the purpose of an immediate appeal; we should confirm finality de novo. See Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, 99-0460, pp. 9-10 (La.App. 1st Cir.3/31/00), 764 So.2d 1041, 1047, writ denied, 00-1265 (La.6/16/00), 765 So.2d 338.

The motion on which judgment was rendered is designated on its face as a motion for “partial” summary judgment. The judgment does not dismiss the plaintiffs’ claims against State Farm in their entirety, despite both parties’ imputation of that result in their briefs to this court. Instead, it expressly states that it “does not in any way prevent the plaintiffs from attempting to prove that irreparable damage was already done to their clothing as a direct result of the fire.”

There is no evidence in the record that the trial court made an “express determination” that the issue was ripe for appeal; in other words, there is no evidence showing that the trial court made a considered determination of the propriety of an immediate appeal, nor that the court articulated express reasons why it found “there is no just reason for delay.” There is only a purported “finding” expressly based upon the “stipulation of counsel.” This appears to be “form” verbiage used under the prior version of La. C.C.P. art. 1915(B). Under the present version of the article, the parties may not invoke this court’s appellate jurisdiction to review a partial judgment by mutual consent. Valid certification of a partial judgment as final requires that the trial court give explicit reasons on the record as to why | (¿here is no just reason for delay; mere conelusory statements do not suffice. Dean v. United Medical Center, 01-1414, p. 8 (La.App. 4th Cir.4/17/02), 816 So.2d 926, 930. This requirement is implicit from the language of La. C.C.P. art. 1915(B); Article 1915(B)(1) requires the designation (“certification”) be made “after an express determination,” and Article 1915(B)(2) refers to “determination and designation.” Unless the pre-certification determination is made and “express,” the certification of the partial judgment as “final” is deficient. See Boudreaux v. Audubon Insurance Company, 01-2061 (La.App. 1st Cir.10/16/02), 835 So.2d. 681.

The determination that a partial judgment’s certification as final is deficient does not mean that the appeal should be necessarily be dismissed, however. Appeals are favored in the law, and should not be dismissed unless the reason for doing so is free from doubt. Fraternal Order of Police v. City of New Orleans, 02-1801, pp. 2-4 (La.11/8/02), 831 So.2d 897, 899-900. In the cited case, the Louisiana Supreme Court held that “[i]n the absence of an explicit expression of legislative will, Louisiana courts have no basis for imposing a specific delay for filing a motion to certify a partial summary judgment as final for purposes of immediate appeal.” Id., 02-1801 at p. 4, 831 So.2d at 899. The court further observed that “[ajppeals of partial judgments often facilitate matters pending before a trial court by allowing for correction of errors prior to trial and entry of final judgment.” Id., 02-1801 at p. 4, 831 So.2d at 900.

In the event of a deficient certification lacking the required express determination, the appellate court should conduct a de novo review of the record for the purpose of determining whether dismissal without prejudice or remand for supplementation of the record by the trial court is appropriate. In conducting its review, the appellate court should utilize the same criteria |7used by a trial court in expressly determining the propriety of certification of a partial judgment as final. See Berman v. De Chazel, 98-81, pp. 3-5 (La.App. 5th Cir.5/27/98), 717 So.2d 658, 660-61. If the record does not disclose factors upon which a trial court could base a finding that there is “no just reason for delay,” the appeal should be dismissed without prejudice. If such factors are found, the case should be remanded to the trial court for the purpose of allowing it to make the required express determination of finality to supplement the appeal record. As the legislature has vested that authority in the trial court, as factfinder, the appellate court should not substitute its own determination on that issue for that of the trial court.

Here, the judgment of the trial court held that there was no coverage under the State Farm homeowner’s policy for any damages arising from the alleged fault of Fetter’s during the dry cleaning process. The trial court noted that its ruling did not prevent the Shapiros from attempting to prove that irreparable damage was already done to their clothing as a direct result of the fire described in the petition. The judgment neither dismissed State Farm as a defendant from the suit nor resolved the factual issue of what caused the damage to the Shapiros’ clothing. The judgment merely clarified that State Farm would have no exposure under its policy if it was determined that the damage to the Shapi-ros’ clothing was caused by Fetter’s. Ultimate liability for the loss was not determined by the partial summary judgment, only the availability of insurance coverage under one possible factual ^scenario. This judgment neither grants relief nor terminates the litigation as to any party. We also note that this judgment would be rendered moot if the factfinder ultimately determines that the damage to the Shapiros’ clothing was caused directly by smoke and water damage from the fire.

After a thorough review, determining that the interests of efficient judicial administration predominate, we conclude that the trial court improperly certified the partial summary judgment as final for immediate appeal, and that this appeal must be dismissed without prejudice. Due to our resolution of this jurisdictional issue, we do not determine the merits of the coverage issue addressed in the trial court’s judgment. As the partial summary judgment is not a final judgment, it may be revised at any time prior to rendition of a judgment adjudicating the remaining issues in this case. La. C.C.P. art. 1915(B)(2).

CONCLUSION

This court lacks jurisdiction to review the partial summary judgment, as it is not a partial final judgment subject to immediate appeal under La. C.C.P. art. 1915(B), being improperly certified for appeal. The appeal is dismissed without prejudice. All costs of this appeal are assessed against the plaintiffs-appellants, Kristina W. Shapiro and Alfred B. Shapiro.

APPEAL DISMISSED.

      . La. C.C.P. art. 966(E) states, "A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.”

      . Under the prior version of La. C.C.P. art. 1915, applicable to actions filed prior to January 1, 2000, the judgment could either be certified as immediately appealable by the trial court or by specific agreement of the parties.

      . Such factors include but are not limited to (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and (5) miscellaneous facts such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like. Van, 00-0206 at p. 6, 808 So.2d at 483-84; Berman, 98-81 at p. 4, 717 So.2d at 660, citing Banks v. State Farm Insurance Company, 30,868, p. 4 (La.App. 2nd Cir.3/5/98), 708 So.2d 523, 525.


author: _[gPETTIGREW, J.

text:
    Richard L. COOPER v. Kathy REED, the City of Baton Rouge and the City of Baton Rouge Police Department, the City of Baton Rouge Police Department Risk Management
    No. 2002 CA 0575.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Randal L. Gaines, Laplace, for Plaintiff-Appellee Richard L. Cooper.
    James L. Hilburn, Baton Rouge, for Defendant-Appellant City of Baton Rouge.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   _[gPETTIGREW, J.

This ease presents an issue res nova in this circuit as to whether a political subdivision may be vicariously liable for the negligence of an employee driving a vehicle owned by the political subdivision regardless of whether the employee acted within the course and scope of her employment. From a judgment finding the political subdivision liable pursuant to a theory of respondeat superior, the political subdivision has appealed.

FACTS

On October 22, 1998, petitioner, Richard L. Cooper, Jr. (“Mr.Cooper”), was involved in an automobile accident when the 1995 Mazda Protégé he was driving was struck from the rear by a 1998 Ford Crown Victoria operated by defendant, Kathy Reed (“Ms.Reed”), an employee of the Baton Rouge Police Department. The accident occurred at the end of the Interstate 10 down ramp at the Gonzales/Burnside exit for Louisiana Highway 24 in Ascension Parish, Louisiana.

Mr. Cooper subsequently filed a Petition For Damages on October 14, 1999 , and named Ms. Reed, Police Chief Greg Phares, the City of Baton Rouge and the City of Baton Rouge Police Department, and XYZ Insurance Company as defendants. Mr. Cooper filed a supplemental and amending petition on November 23, 1999, wherein it was alleged that at the time of the accident, Ms. Reed was serving as a police officer and operating a patrol car owned by the City of Baton Rouge Police Department. Mr. Cooper further urged application of the theory of “respon-deat superior.”

On November 15, 2000, an answer to Mr. Cooper’s original and supplemental petitions was filed on behalf of defendant, City of Baton Rouge (“City”). The City admitted that Ms. Reed was a police officer at the time of the accident and that she was driving a car owned by the City. Said answer asserted however that neither the City nor the City of Baton Rouge Police Department Risk Management were entities capable of being sued or responding in judgment, and denied that the City of Baton Rouge Police | ¡¡Department Risk Management was the liability insurer of the vehicle operated by Ms. Reed. All other remaining allegations were generally denied. Through an amended answer, the City admitted that Ms. Reed was an employee of the Baton Rouge City Police Department at the time of the accident, and operated a vehicle owned by the City of Baton Rouge/Parish of East Baton Rouge. The City denied however that Ms. Reed was “on duty” at the time of the accident, and further denied that Ms. Reed was acting within the course and scope of her employment.

A bench trial was held in this matter on April 11, 2001. At the conclusion of the testimony, the court took the matter under advisement. In a judgment signed on August 21, 2001, the trial court rendered judgment in favor of Mr. Cooper and against the City. On September 14, 2001, the City filed a motion for a suspensive appeal.

ISSUE PRESENTED ON APPEAL

The sole issue presented in connection with this appeal is whether respondeat superior liability may be imposed on an employer if the plaintiff fails to establish that the employee was acting in the course and scope of her employment.

DISCUSSION

In its brief to this court, the City states that it previously admitted that at the time of the accident, its employee, Ms. Reed, was the driver of a vehicle owned by the City. The City asserts that at trial, Mr. Cooper failed to prove that Ms. Reed was acting within the course and scope of her employment with the City at the time of the accident.

By way of response, Mr. Cooper argues that the City has ignored an alternative ground for the City’s liability: the City is self-insured for motor vehicle liability and was both the owner and the self-insurer of the vehicle operated by Ms. Reed. Thus, Mr. Cooper contends that the City is liable in its capacity as insurer, irrespective of whether Ms. Reed was acting within the course and scope of her employment.

The Louisiana Motor Vehicle Safety Responsibility Law (“LMVSRL”)(La. R.S. 32:851 et seq.), provides a mandatory, comprehensive scheme for the protection of the public from damage caused by motor vehicles. Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991). Pursuant to La. R.S. 32:861(A), the owner of every motor vehicle registered in the |4state of Louisiana (with the exception of certain classifications of vehicles) is required to maintain proof of financial responsibility as a result of the ownership/operation of the said motor vehicle. The motor vehicle owner may either: (1) purchase a motor vehicle liability policy with limits that conform to the requirements of La. R.S. 32:900(B)(2) or a binder for the same; (2) post a motor vehicle liability bond that satisfies the requirements of La. R.S. 32:861(B); (3) deposit with the state treasurer sufficient cash and securities to insure the risk in accordance with La. R.S. 32:861(C); or (4) obtain a certificate of self-insurance in accordance with the terms of La. R.S. 32:1042.

It is important to understand that self-insurance is, in actuality, not insurance at all. It is merely one of the four methods by which an owner of a motor vehicle is allowed to meet the requirements of the LMVSRL. Hearty v. Harris, 574 So.2d at 1237. To obtain a certificate of self insurance in accordance with La. R.S. 32:1042, a vehicle owner must present proof of sufficient assets to pay judgments against him. Tybussek v. Wong, 96-1981, p. 7 (La.App. 4 Cir. 2/26/97), 690 So.2d 225, 229, writs denied, 97-0766, 693 So.2d 731, 97-0795 (La.5/1/97), 693 So.2d 734, 734. Although self-insured vehicles are uninsured, a certificate of self-insurance indicates the self-insured is fiscally responsible and will pay damage claims and judgments involving its liability exposure. Hearty v. Harris, 574 So.2d at 1238. However, as the City points out in its brief to this court, La. R.S. 32:1041(A) provides that the LMVSRL does not apply to political subdivisions. Thus, the City is not required to maintain auto liability insurance and is not required to file a certificate of self-insurance. Even if the City would participate in a program of self-insurance, this does not constitute an insurance company or an insurer under the laws of this state, and the development and administration of such a program shall not constitute doing an insurance business. La. R.S. 33:3062(B).

In a case arising out of similar facts, a motorist in New Orleans sustained injury when her vehicle was rear-ended by an unmarked police car operated by an off-duty police officer. The fourth circuit reversed that portion of the judgment that found the city vicariously liable for the plaintiffs injuries, and stated in pertinent part:

|RIn most cases, an innocent victim who is injured as a result of the negligence of an employee driving his employer’s car can be compensated through the employer’s liability insurance, regardless of whether the employee acted within the course and scope of his employment. This is so because the [LMVSRL] requires that vehicle owners maintain vehicle liability insurance. “At the heart of this statutory scheme is the decision to attach the financial protection to the vehicle rather than to the operator.” Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991). The requirement to provide insurance generally includes the mandate that vehicle owners insure permissive use of their vehicles by providing omnibus coverage, which is “intended to extend liability beyond the law of principal and agent.” Id. at 1238.
However, a political subdivision, such as the City of New Orleans, is exempt from the requirements of the of the LMVSRL. La. R.S. § 32:1041. Because the City is not required to maintain vehicle liability insurance, it has no legal obligation to furnish omnibus insurance coverage for its vehicles. Consequently, assuming it has no independent liability, the City has no responsibility for the injuries to Ms. Hanson unless Lt. Benelli was in the course and scope of his employment with NOPD. Neither the LMVSRL nor any City regulation required that Lt. Benelli insure the automobile for his personal use, despite the foreseeable risk of harm arising from that use. Lt. Benelli had a personal automobile liability policy, but this policy excluded his use of the City-owned car he was driving at the time of this accident, as is discussed infra. As a result, there is no insurance available to compensate Ms. Hanson for the injuries she sustained in this accident if Lt. Benelli was not in the course and scope of his employment.

Hanson v. Benelli, 97-1467, p. 5 (La.App. 4 Cir. 9/30/98), 719 So.2d 627, 631, writ denied, 98-2754 (1/8/99), 735 So.2d 632.

Louisiana Civil Code article 2320, provides in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the functions in which they are employed.

This court, in interpreting the language “ ‘in the exercise of the functions in which they are employed’ has held that said language is the Codal expression of the usual phrase “in the course and scope of the employment.” Romero v. Hogue, 77 So.2d 74, 79 (La.App. 1 Cir.1954). In order to establish vicarious liability for an employee’s negligence pursuant to La. Civ. Code art. 2320, it must be shown that the employee’s general activities at the time of the tort were within the course and scope of his employment. Ermert v. Hartford Insurance Company, 559 So.2d 467, 478 (La.1990).

In Hanson, the fourth circuit referred to its earlier decision in Johnson v. Dufrene, 433 So.2d 1109 (La.App. 4 Cir.), writ denied, 441 So.2d 765 (La.1983), wherein the court held that prior jurisprudence has repeatedly stated that in those instances where an injury is caused by an employee’s negligence while driving a vehicle owned by his employer, each case must be decided on its own facts. Hanson v. Benelli 97-1467 at 10, 719 So.2d at 634. The fourth circuit in Johnson, and later in Hanson, further identified four important considerations that bear on the determination of whether the employee was acting within the course and scope of his employment. Those considerations are: (1) whether the vehicle was being used in such a manner as to benefit the employer; (2) whether the employee was subject to the employer’s control at the time of the accident; (3) whether the employee’s use of the vehicle was authorized by the employer; and (4) whether the employee’s motive arose from personal objectives or, instead, from his employer’s concerns. Hanson, 97-1467 at 10, 719 So.2d at 634 (citing Johnson, 433 So.2d at 1112).

This court is unable to ascertain from the record before us whether at the time of the accident, Ms. Reed was engaged in a function related to her employment or a mission that was purely personal. Ms. Reed was not served personally with the petition, and consequently, never filed an answer or otherwise made an appearance in this matter. Mr. Cooper was the only witness to present live testimony at trial, aside from the introduction of trial depositions given by various doctors. As previously mentioned, the City has denied that Ms. Reed was “on duty” at the time of the accident, and further that Ms. Reed was acting within the course and scope of her employment. Absent proof to the contrary, we must conclude that the City cannot be held vicariously liable in this case. As the fourth circuit observed in Hanson, “[t]o find vicarious liability based on these facts would have serious ramifications for the doctrine of respondeat superior, far beyond the context of this case.” Hanson, 97-1467 at 14, 719 So.2d at 635.

We reiterate the court’s sentiments expressed in Hanson:

Absent a legislative requirement that government vehicles be insured for any permissive use, the City, therefore, may allow unlimited personal use of its vehicles with impunity. This leaves members of the general public, as well as the employee-drivers, unprotected for much of the time these vehicles are being used. Given this State’s strong public policy that only insured automobiles be allowed on its roads, the Legislature should consider if this is the result it intended.

Hanson, 97-1467 at 6, 719 So.2d at 632.

CONCLUSION

For the foregoing reasons, the trial court’s judgment against the City of Baton Rouge is hereby reversed, and Mr. Cooper’s claims against the City are hereby dismissed with prejudice. All costs associated with this appeal shall be assessed against Mr. Cooper.

REVERSED.

      . The chronological index contained in the record in this matter erroneously indicates that Mr. Cooper's petition was filed on October 14, 1998, prior to the date of the accident.


author: |¡.WHIPPLE, J.

text:
    STATE of Louisiana v. Bradley GRAHAM.
    No. 2002 KA 1492.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Lewis Murray, Franklinton, Gwendolyn Brown, Baton Rouge, for Plaintiff/Appel-lee, State of Louisiana.
    Frederick Kroenke, Baton Rouge, for Defendant/Appellant, Bradley Graham.

      Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |¡.WHIPPLE, J.

The defendant, Bradley Graham, was charged by bill of information with attempted second degree murder (count 1), a violation of LSA-R.S. 14:27, 14:30.1; armed robbery (count 2), a violation of LSA-R.S. 14:64; attempted aggravated rape (count 3), a violation of LSA-R.S. 14:27, 14:42; aggravated sexual battery (count 4), a violation of LSA-R.S. 14:43.2; second degree kidnapping (count 5), a violation of LSA-R.S. 14:44.1; and eight counts of aggravated oral sexual battery (counts 6-13), violations of LSA-R.S. 14:43.4. He pled not guilty. The defendant subsequently waived his right to a jury trial and elected to be tried by the trial judge.

Following a bench trial, the defendant was convicted and sentenced as follows: count 1, guilty as charged, sentenced to thirty years at hard labor; count 2, guilty of the responsive offense of simple robbery (a violation of LSA-R.S. 14:65), sentenced to seven years at hard labor; count 3, guilty as charged, sentenced to thirty years at hard labor; count 4, guilty of the responsive offense of sexual battery (a violation of LSA-R.S. 14:43.1), sentenced to ten years at hard labor; count 5, guilty as charged, sentenced to thirty years at hard labor; counts 6 through 9, guilty as charged, sentenced to ten years at hard labor without probation, parole, or suspension of sentence on each count. The defendant was found not guilty on counts 10 through 13. The trial court ordered that all sentences run concurrently. The defendant filed motions for new trial and for postverdict judgment of acquittal, which the trial court denied. Thereafter, the state filed an habitual offender bill of information, seeking to enhance the sentence imposed on the attempted aggravated rape conviction (count 3). After a hearing, the trial court adjudged the defendant a second felony offender. The trial court vacated the previous thirty-year sentence | ¡¡imposed on count 3 and, pursuant to LSA-R.S. 15:529.1, resentenced the defendant to thirty years at hard labor. The defendant filed a motion to reconsider sentence. The trial court denied the motion. Defendant now appeals, arguing insufficient evidence of the attempted second degree murder conviction and that the aggregate thirty-year sentence is excessive. Finding no merit in the assigned errors, we affirm the convictions, the habitual offender adjudication, and the sentences.

FACTS

On the morning of November 11, 2000, J.C. was at home asleep in her bedroom when she was awakened by the defendant (her stepfather) standing over her. The defendant was fondling J.C.’s breasts, stomach and chest. J.C. resisted and requested that the defendant discontinue his inappropriate behavior, but he refused. The defendant crawled on top of J.C., held her down and continued to fondle her. Confused by her stepfather’s actions, J.C. asked the defendant, “Why are you doing this to me?” In response to this inquiry, the defendant stated, “You know you want me to do this. You got to do it. You stupid f-. bitch. You got to do this.” J.C. fought to get away from the defendant. The defendant stated, “Don’t fight back. You know you want this. Don’t fight back. Because I’m going to kill you. I’ll kill you if you fight back. Either way, you are going to die. You are just going to die. You don’t deserve to live.” Despite the threats to her life, J.C. continued to fight. Using his fists, the defendant struck J.C. in her head, chest, stomach and back. The defendant then used a piece of rope to tie J.C.’s arms together. With J.C.’s arms bound, the defendant proceeded to fondle and grope J.C.’s body. He also kissed and licked her face. The defendant forced J.C. to dress up in several different bra and panty outfits that he provided. He also forced J.C. to put on stockings and makeup that he provided.

| ¿Next, the defendant forced J.C. into the bedroom that he shared with J.C.’s mother. In the bedroom, the defendant continued the sexual assault. The defendant told J.C. that she would either perform oral sex on him or he would force her to have sexual intercourse with him. According to J.C., when she resisted, the defendant threw her on the ground and hit her so hard that she could not breathe. The defendant threatened to kill J.C. and her mother if J.C. did not honor his sexual demands. The defendant forced J.C. to perform oral sex on him. The defendant sat on the bed, held J.C.’s arms behind her head, shoved her head down and pushed his penis into her mouth. The defendant also used his fingers to penetrate J.C.’s vagina.

The defendant then forced J.C. back to her bedroom. In her bedroom the defendant again demanded that J.C. either have sexual relations with him or perform oral sex on him. The defendant positioned himself on top of J.C. and attempted to insert his penis into her vagina. J.C. pleaded with the defendant and requested that he stop. When the defendant ignored J.C.’s pleas, a struggle ensued. J.C. fought to prevent the defendant from vaginally raping her. The defendant forced his penis into J.C.’s mouth again.

The defendant continued to take J.C. back and forth between her bedroom and her mother’s bedroom, repeatedly beating her, attempting to rape her, and forcing her to perform oral sex upon him. J.C. testified that the defendant forced her to perform oral sex on him at least four or five different times. During the final episode of oral sex, the defendant ejaculated in J.C.’s mouth. Because J.C. continued to struggle and fight, each of the defendant’s attempts to vaginally rape J.C. were unsuccessful.

Because J.C.’s mother was scheduled to arrive home soon thereafter, the defendant placed a jacket over J.C.’s tied hands to prevent her from moving her arms, and forced her into a tool shed located behind the house. In the shed, the |Bdefendant tied J.C.’s hands again, gagged her with a red bandanna, tied her legs together, and wrapped her body up in a cushion and blanket. The defendant then used some rope to tie the blanket in place around J.C. The defendant told J.C. that he was going to move J.C.’s car so that her mother would not know that she was at home. The defendant left J.C. bound and gagged, lying on the shed floor. After the defendant left, J.C. managed to untie herself and escape from the shed. J.C. ran to a nearby highway where a passing motorist stopped and transported her to the Boga-lusa Police Department.

SUFFICIENCY OF THE EVIDENCE

In this assignment of error, the defendant contends that the evidence adduced at trial was insufficient to support the conviction of attempted second degree murder because it failed to establish that he had the specific intent to kill J.C.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in LSA-C.Cr.P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides the fact-finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Hendon, 94-0516, p. 4 (La.App. 1st Cir.4/7/95), 654 So.2d 447, 449.

The offense of second degree murder is defined in LSA-R.S. 14:30.1(A) in pertinent part, as the killing of a human being: (1) when the offender has a specific | ^intent to kill or to inflict great bodily harm; or (2)(a) is engaged in the perpetration or attempted perpetration of aggravated rape even though the offender has no intent to kill or to inflict great bodily harm.

Under LSA-R.S. 14:27(A), a person is guilty of an attempt to commit an offense when he has a specific intent to commit a crime and “does or omits an act for the purpose of and tending directly toward the accomplishing of his object.”

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Huizar, 414 So.2d 741, 746 (La.1982). A conviction of attempted second degree murder requires a finding that the defendant had the specific intent to Mil. State v. Franklin, 95-1876, p. 7 (La.1/14/97), 686 So.2d 38, 42.

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. LSA-R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as defendant’s actions or facts depicting the circumstances. State v. Cummings, 99-3000, p. 3 (La.App. 1st Cir.11/3/00), 771 So.2d 874, 876.

In its reasons for judgment on the attempted second degree murder conviction, the trial court stated:

I will then go to the attempted second degree murder. Again, Title 14, Section 27 which is attempt. And Title 14, Section 30.1, which is second degree murder. Second degree murder is the killing of a human being, and here it has to be the attempted Mlling because this is an attempt. So second degree murder is the killing of a human being when the offender has a specific intent to Mil, or to inflict great bodily harm, or when the offender is engaged in the perpetration or attempted perpetration of aggravated rape.
Since I have found him guilty of aggravated rape [sic], I find him guilty of attempted second degree murder.

7 It is clear that the trial court convicted the defendant of attempted second degree murder under the felony-murder provision for unintentional killings provided in LSA-R.S. 14:30.1(A)(2)(a). After finding the defendant guilty of the offense of attempted aggravated rape, the trial court proceeded to convict the defendant of attempted second degree murder based upon the commission of the underlying felony offense of attempted aggravated rape. The trial court’s oral reasons are silent with respect to a finding of specific intent to kill. It is well settled in Louisiana jurisprudence that the crime of attempted second degree murder cannot be based upon an underlying felony. State v. Guccione, 96-1049, p. 17 (La.App. 5th Cir.4/29/97), 694 So.2d 1060, 1068, writ denied, 97-2151 (La.3/18/98), 712 So.2d 869. An attempt to commit second degree murder requires that the offender possess the specific intent to kill and commit an overt act tending toward the accomplishment of that goal. LSA-R.S. 14:27(A); 14:30.1(A)(1). This is inconsistent with the felony-murder theory of an unintentional killing as provided in LSA-R.S. 14:30.1(A)(2)(a). Therefore, the trial court erred in relying on this provision to convict the defendant of attempted second degree murder. Nonetheless, on review, we find the trial court’s ultimate conclusion that the defendant was guilty of attempted second degree murder to be correct, and we affirm the defendant’s conviction, albeit on a different basis. Herein, we find the State did establish by sufficient evidence that the defendant had the specific intent to kill the victim.

For the attempted second degree murder conviction to stand, the evidence presented at trial must establish that the defendant had the specific intent to kill J.C. and that he did something tending toward the accomplishment of this goal. The defendant avers that the evidence presented at trial in this case failed to make such a showing. We disagree. Upon reviewing the testimony and evidence |scontained in the record before us, we are convinced that the state sufficiently established that the defendant had the specific intent to kill J.C.

The testimony in this case showed that the defendant repeatedly and forcefully struck J.C. J.C. testified that when she attempted to flee, the defendant threw her onto the ground and struck her so hard that she could not breathe. The defendant held J.C. down and continued to violently beat her over an extended period of time. The defendant repeatedly struck her and delivered blows to her head, stomach, and back.

The testimony further establishes that the defendant repeatedly threatened to take J.C.’s life. According to J.C., the defendant told her, “You are going to die. I’m going to kill your mom. I’m going to kill you. You are going to die. You might as well just go with it.” Later, when J.C. struggled to resist the defendant’s sexual attack, he stated, “I’m going to kill you. You might as well ... do it because you are not going to live anyway.” J.C. also testified that at some point during the ongoing attack the defendant armed himself with a knife. Moreover, he specifically told J.C. that he was going to use the knife to “cut [her] up in to pieces.” Although J.C. was eventually able to escape before the defendant completed his stated plan, the evidence shows the defendant gagged, bound and concealed J.C. in a nearby shed to avoid detection by her mother, who was expected to arrive before the defendant could complete his violent mission.

Viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant specifically intended to kill J.C. and that the defendant acted directly toward accomplishing his objective. The defendant violently attacked J.C. and beat her endlessly over an extended period of time. The defendant’s repeated verbal threats to take J.C.’s life, and his actions in arming himself with a knife, coupled with the force and duration of his attacks upon her clearly established the | fldefendant’s specific intent to kill as required to support the attempted second degree murder conviction. This assignment of error has no merit.

EXCESSIVE SENTENCE

In this assignment of error, the defendant contends the trial court imposed excessive sentences. Specifically, defendant asserts that the thirty-year aggregate sentence imposed in this case is unconstitutionally excessive.

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979); State v. Lanieu, 98-1260, p. 12 (La.App. 1st Cir.4/1/99), 734 So.2d 89, 97, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962. However, a trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La.1992).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not cite the entire checklist of article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by article 894.1, a review for individual excessiveness should |inconsider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App. 1st Cir.1988). Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La.1982).

The defendant in this case was sentenced as follows: count 1, attempted second degree murder, thirty years at hard labor; count 2, simple robbery, seven years at hard labor; count 3, attempted aggravated rape, thirty years at hard labor; count 4, sexual battery, ten years at hard labor; count 5, second degree kidnapping, thirty years at hard labor; counts 6 through 9, aggravated oral sexual battery, ten years at hard labor without probation, parole, or suspension of sentence on each count. The trial court ordered that all sentences run concurrently.

We have reviewed each of the sentences imposed herein and do not find any of them to be excessive under the facts and circumstances of this case. Because the trial court ordered that the sentences run concurrently and because the defendant primarily complains of the excessiveness of the aggregate thirty-year sentence, we will discuss only the sentences imposed on the offenses of attempted second degree murder, attempted aggravated rape and second degree kidnapping.

A sentence for attempted second degree murder ranges from ten to fifty years at hard labor without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:27(D)(1) and 14:30.1(B). The attempted aggravated rape conviction carries a penalty of imprisonment at hard labor for not less than ten years nor more than fifty years. LSA-R.S. 14:27(D)(1) and 14:42(D)(1). As a second felony offender, on this conviction, the defendant faced an enhanced sentence of twenty-five to one hundred years. LSA-R.S. 14:27(D)(1) and 14:42(D)(1); 15:529.1(A)(l)(a). The penalty exposure for the second degree kidnapping conviction was imprisonment at hard labor for five to forty years. LSA-R.S. 14:44.1(C). The court imposed concurrent thirty-year sentences on each of these |n convictions. Even after adjudicating the defendant a second felony offender on the attempted aggravated rape conviction, the trial court vacated the previously imposed thirty-year sentence and resentenced the defendant to the same term of thirty years.

Upon reviewing the record and the potential sentences for each of the convictions, we do not find the sentences imposed to be excessive in this case where the defendant violently beat, sexually assaulted, bound, gagged, kidnapped and hid his teenaged stepdaughter, while armed with a weapon. The record adequately supports the sentences imposed. This assignment of error lacks merit.

For the foregoing reasons, the defendant’s convictions, habitual offender adjudication, and sentences are affirmed.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . The crime of aggravated oral sexual battery, formerly LSA-R.S. 14:43.4, was repealed by 2001 La. Acts No. 301, § 2. Such conduct now constitutes either aggravated rape or forcible rape. See LSA-R.S. 14:42(A) and 14:42.1(A), as amended by 2001 La. Acts No. 301, § 1.

      .The defendant does not contest the convictions on counts 2-9.


author: J^FITZSIMMONS, J.

text:
    Jerry MONTALBANO v. WEYERHAUSER COMPANY.
    No. 2002 CA 0523.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Gary M. Pendergast, New Orleans, Counsel for Plaintiff/Appellant Jerry Mon-talbano.
    Cheryl I. Magee, Covington, Counsel for Defendant/Appellee Weyerhauser Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Jerry Montalbano appeals a decision of the Office of Workers’ Compensation, denying his claim against his former employer, Weyerhaeuser Company (Weyerhaeu-ser) , for supplemental earnings benefits (SEB). After a thorough review of the submitted evidence and the applicable law, this court affirms.

BACKGROUND

Jerry Montalbano was employed as a market development manager/outside salesman for Weyerhaeuser until the company closed its Louisiana facility in December 1999. On August 26,1999, approximately four months prior to the closure, Mr. Montalbano had been involved in a motor vehicle accident during the course and scope of his employment at Weyer-haeuser. He aggravated a preexisting back condition. After the accident, he returned to work for Weyerhaeuser and he was earning a weekly wage of $813.77 at the time of Weyerhaeuser’s closure. From January 3, 2000, until March 31, 2000, Mr. Montalbano was employed by Philips Abita Lumber Company, where he earned a gross salary of $865.39 per week, plus a two percent commission for profits above twenty-one percent of gross margin. After voluntarily leaving Philips Abita Lumber Company, Mr. Montalbano purchased a franchise of Cottman Transmission (Cottman’s). He worked full-time at Cott-man’s until he hired a full-time manager in March 2001.

Mr. Montalbano contends that he is entitled to SEB payments subsequent to April 1, 2001. Following trial, the Office of Workers’ Compensation determined that Mr. Montalbano’s earning capacity exceeded the ninety percent threshold established pursuant to La. R.S. 23:1221(3). The court further noted that|sMr. Montal-bano had “either held jobs and quit, was offered jobs he refused or was shown jobs available for which he declined or was not selected;” therefore, he was not entitled to SEB payments.

On appeal, Mr. Montalbano asserts error in the Office of Workers’ Compensation’s conclusion that: (1) Mr. Montalba-no’s earning capacity exceeded the ninety percent threshold; (2) Mr. Montalbano either held jobs and quit, was offered jobs he refused or was shown jobs available for which he declined; and (3) Mr. Montalba-no was physically able to perform certain employment but had removed himself willfully from the workforce as a matter of personal convenience.

DISCUSSION

Mr. Montalbano’s wages at Philips Abita Lumber Company were higher wages than the sum he had received from Weyerhaeu-ser. Additionally, W. Wallace Poole, Jr. testified that at the time of Weyerhaeu-ser’s closure, he had offered Mr. Montalba-no a sales position at Poole Lumber Company which would have paid approximately the same salary that Mr. Montalbano had been earning at Weyerhaeuser. Thus, the gravamen of Mr. Montalbano’s claim for entitlement to SEB payments centers on his assertion that he resigned from Philips Abita Lumber Company because he was no longer able to perform its physical demands as a result of the 1999 vehicular accident.

At trial, testimony by several individuals indicated that Mr. Montalbano voluntarily terminated his position with Philips Abita Lumber Company for the purpose of participating in the Cottman’s franchise venture. After receiving evidence from both sides, the workers’ compensation judge made the credibility determination that Mr. Montalbano’s departure from Philips Abita Lumber Company was not due to physical demands, but rather was because of his desire to become involved in a private monetary enterprise.

[4This court may not set aside the findings of fact of the workers’ compensation judge in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). When there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Id. In the instant case, the documents and objective evidence do not so contradict a witness’s story, nor is the story itself so inconsistent or implausible, that a reasonable person would not credit the story. Rossell v. ESCO, 549 So.2d at 844-845. Although the report of Dr. John Schuhmacher, who was consulted for a second opinion, presents some conflicting medical evidence relative to the interpretation of an MRI test and Mr. Montalbano’s diagnosis, the record is replete with other medical evidence demonstrating that the condition of his back had returned to its pre-accident status. The court’s acceptance of this latter medical opinion is not unreasonable. Id. Thus, we do not ascribe manifest error to the factual determinations of the workers’ compensation judge that Mr. Montalbano elected not to take or remain in positions offering a salary that exceeded ninety percent of his Weyerhaeu-ser salary and that those positions did not exceed his physical capabilities.

Accordingly, the judgment of the Office of Workers’ Compensation is affirmed. All costs associated with this appeal are assessed to Jerry Montalbano.

AFFIRMED.

      . Although the spelling of the defendant’s name is different in the caption and judgment, it is evident from the record that the foregoing represents the correct spelling of the name.


author: | ¡.KUHN, J.

text:
    Ralph SLAUGHTER, Secretary of the Department of Revenue, State of Louisiana v. EDISON CHOUEST OFFSHORE, INC.
    No. 2002 CA 0583.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Otha “Curtis” Nelson, Jr., Baton Rouge, Counsel for PlaintiffiAppellant Ralph Slaughter, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    H. Alston Johnson, III, Baton Rouge, Robert W. Nuzum, Robert P. McCleskey, Jr., New Orleans, Counsel for Defendant/Appellee Edison Chouest Offshore, Inc.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   | ¡.KUHN, J.

Plaintiff, Ralph Slaughter, Secretary of the Department of Revenue and Taxation, State of Louisiana (“the Department”) has appealed the trial court’s denial of the Department’s motion to set aside an earlier judgment of dismissal in favor of defendant, Edison Chouest Offshore, Inc. (“ECO”). Because the Department’s motion was untimely and this court has no jurisdiction to address the Department’s appeal, we must dismiss it.

I. PROCEDURAL AND FACTUAL BACKGROUND

On December 7, 1994, the Department filed suit against ECO, seeking to recover $96,812.40, representing Louisiana corporate franchise taxes for taxable periods ending in 1991 and 1992, plus accrued interest. On December 20, 1994, ECO filed its answer generally denying liability. On July 9, 1998, the Department filed a motion to compel discovery responses.

On August 31, 2001, ECO filed a motion for dismissal on the grounds of abandonment. On that same date, the trial court signed an order dismissing the Department’s action with prejudice. By certified letter dated September 5, 2001, counsel for ECO mailed a copy of the order of dismissal to the Department. On October 8, 2001, the Department filed a motion to set aside the order of dismissal, contending that ECO had taken a “step” in the litigation by providing supplemental responses to discovery on February 22, 1999 and March 28, 2000. Accordingly, the Department urged that the action had not been abandoned. Alternatively, the Department asserted that the order of dismissal should be modified to provide for a | ^dismissal without prejudice. ECO opposed the motion to set aside the order, contending that the motion was untimely and without merit.

A contradictory hearing was held, and the trial court determined that the motion to dismiss was untimely because more than 30 days had lapsed between the service of the order of dismissal and the filing of the motion to dismiss. The trial court found that the record contained “adequate proof that service of the order of dismissal was mailed on September 5th to the [Department].” By judgment dated January 30, 2002, the trial court denied the motion to set aside the order of dismissal with prejudice. On March 11, 2002, the Department filed a motion seeking a devolutive appeal of only the January 30, 2002 judgment. The order of appeal was signed on March 13, 2002.

On appeal, the Department raises a single assignment of error, contending that the trial court erred in denying the Department’s request to modify the order of dismissal to provide for a dismissal without prejudice. The Department argues that the August 31, 2001 order should have been modified at the contradictory hearing because there was no legal basis for dismissal of the case with prejudice under La. C.C.P. art. 561. Additionally, the Department asserts that this court has authority to amend the August 31, 2001 order to remove the “with prejudice” language |4pursuant to La. C.C.P. art. 2164, which mandates that appellate courts shall render any judgment which is “just, legal, and proper upon the record on appeal.”

II. ANALYSIS

Louisiana Code of Civil Procedure art. 561 A(l) provides that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ....” The provision for abandonment is operative without formal order, but when a party or other interested person, by ex parte motion, establishes by affidavit that “no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.” La. C.C.P. art. 561 A(2). The order of dismissal “shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal.” (Emphasis added.) Id.

Louisiana Code of Civil Procedure article 1313 A(l) provides for service by mailing a copy to the counsel of record. La. C.C.P. art. 1313 B further requires that “[w]hen service is made by mail ..., the party or counsel making the service shall file in the record a certificate of the manner in which service was made.” But Article 1313 A(l) establishes that service is “complete upon mailing.” Service is not contingent upon the filing of the certificate. Morrison v. Dillard Department Stores, Inc., 1999-2060, p. 3 (La.App. 1st Cir.9/22/00), 769 So.2d 742, 744, writ denied, 2000-3379 (La.2/2/01), 784 So.2d 646.

The record supports the trial court’s determination that counsel for ECO accomplished service of the order of dismissal by mailing it to the Department on | ^September 5, 2001. Counsel for ECO also filed a certificate in the record on October 16, 2001, showing that service was made by mailing a copy of the order to the Department. Because the Department’s motion challenging the order of dismissal was made more than 30 days after September 5, 2001, the Department’s motion to set aside the order of dismissal was untimely. Id. at 744.

In the absence of a timely motion to set aside the order of dismissal, the trial court did not have the authority to decide the merits of the motion. Id. at 744. Because the Department’s motion was untimely, any amendment of the order of dismissal would have been an absolute nullity. See Starnes v. Asplundh Tree Expert Co., 1994-1647 (La.App. 1st Cir.10/6/95), 670 So.2d 1242, 1246. Likewise, there was no authority for the trial court’s January 30, 2002 judgment denying the Department’s motion, and there is no valid basis for an appeal of that judgment. Morrison v. Dillard Department Stores, Inc., 1999-2060 at p. 3, 769 So.2d at 744. A motion for appeal from an invalid judgment is considered untimely, and this court lacks jurisdiction to hear an untimely appeal. Avants v. Kennedy, 2002-0830, p. 9 (La.App. 1st Cir.12/20/02), 837 So.2d 647. Because this court lacks jurisdiction to review the January 30, 2002 judgment, we dismiss this appeal. La. C.C.P. art. 2162.

We acknowledge there is jurisprudence stating that a dismissal pursuant to La. C.C.P. art. 561 should be without prejudice and that a judgment that | ^erroneously provides for a dismissal with prejudice cannot form the basis for a plea of res judicata. D & S Builders, Inc. v. Mickey Construction Co., Inc., 524 So.2d 245, 247 (La.App. 5th Cir.1988); Pounds v. Yancy, 224 So.2d 1, 4-5 (La.App. 1st Cir.1969). However, despite the provisions of La. C.C.P. art. 2164, this court lacks jurisdiction to amend the August 31, 2001 judgment to provide for a dismissal without prejudice.

III. CONCLUSION

For the above reasons, this appeal is dismissed. Appeal costs may not be assessed against the Department based on the provisions of La. R.S. 13:4521. See St. Tammany Parish School Bd. v. State, Dept. of Labor, Office of Employment Security, 2001-0757 (La.App. 1st Cir.5/10/02), 818 So.2d 914, 919.

APPEAL DISMISSED.

      . A motion to set aside an order of dismissal was also pending before the trial court in the matter of Slaughter v. Alpha Marine Services, Inc., Suit No. 2002-0620. The trial court consolidated argument regarding the motion in that case with the motion in the instant case since the issues presented in both matters were identical. The trial court also denied the motion to set aside the order of dismissal in that case.

      . A supplemental memorandum filed by the Department admitted, "Arguably, the time delays for the Department to set aside the Court’s Order of abandonment has prescribed.”

      . The Department did not appeal the August 31, 2001 order of dismissal and the question of whether that order is final is not before us. However, we note that in the case of Woodward v. Lumbermens Mut. Cas. Co., 2000-0399, p. 4 (La.App. 1st Cir.3/28/01), 808 So.2d 554, 556, this court held that after the thirty-day period provided for in La. C.C.P. art. 561 lapses, an order of dismissal becomes a final appealable judgment

      . On this date, we also dismiss appeals in Slaughter v. Alpha Marine Services, Inc., 2002-0620 (La.App. 1st Cir.2/14/2003)(unpublished) and in Slaughter v. North American Shipbuilding, Inc., 2002-0856 (La.App. 1st Cir.2/14/2003)(unpublished). Both appeals involve the Department’s challenge to judgments denying a motion to set aside an order of dismissal. Oral argument of these three appeals was consolidated since the same issues were raised in each case.