author: |,EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Rubin BELL.
    No. 02-KA-1127.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Rehearing Denied March 24, 2003.

      Honorable Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Plaintiff-Appellee.
    Prentice L. White, Louisiana Appellant Counsel, Baton Rouge, LA, for Defendant Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY and SUSAN M. CHEHARDY.
   |,EDWARD A. DUFRESNE, JR., Chief Judge.

The St. James Parish Grand Jury returned an indictment charging defendant, Rubin Bell, with first degree murder of Keith Williams which occurred on April 6, 2000, LSA-R.S. 14:30. The state subsequently amended the indictment to charge defendant with second degree murder, a violation of LSA-R.S. 14:30.1. This matter proceeded to trial before a twelve person jury which found defendant guilty as charged. The trial judge, after listening to victim impact statements and reviewing a pre-sentence report, sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals.

FACTS

On April 6, 2000, defendant, along with three other individuals, Trevor Sanders, Adrian Dunn, and Mike Armour, drove to LaPlace in Armour’s vehicle with the intent to rob a drug dealer. However, they changed their plan and drove to Vacherie. While in Vacherie, the men drove by a car wash, and Dunn spotted a red Cadillac that he wanted to steal. They parked on a back street, at which time defendant and Dunn exited the vehicle and proceeded to the car wash. Both men wore masks and were armed with guns. The two assailants approached Keith Williams and Henry Ou-bre who were washing Williams’ red Cadillac. Defendant Land Dunn aimed their guns at the two men and forced them against the car wash wall. One of the perpetrators hit Williams in the head with his gun, and then ordered both victims to get into the back seat of the Cadillac. The assailants drove to the vicinity of the We-bre-Steib Plantation and ordered the victims to exit the vehicle. When Williams exited, he was shot in the head, and thereafter died. Oubre attempted to flee, and in the process, was shot in the shoulder. He managed to crawl to the roadway and summon help.

Shortly after this murder, the St. John Parish Sheriffs Office contacted the authorities in St. James because of distinct similarities between this murder and one that had occurred in LaPlace three days earlier. The joint investigation of the two offices led to the arrest of Rubin Bell, Adrian Dunn, and the other participants in the robberies. Search warrants issued during the investigation led to the recovery of evidence of both crimes from the residences of Bell and Dunn.

Following Bell’s arrest, he was interviewed by authorities from St. James and St. John Parishes. He gave a confession in each parish. Regarding the April 6, 2000 incident that occurred in Vacherie, defendant admitted to being involved but claimed that Dunn was the gunman.

DENIAL OF MOTION FOR MISTRIAL

In his first assigned error, defendant argues, that the trial court erred in denying his motion for mistrial when the state solicited testimony from a witness about defendant’s involvement in an unrelated crime.

At the trial of this case, the state attempted to show that defendant was a principal with Adrian Dunn to the murder of Keith Williams, and as such, was criminally responsible. The defense presented by Bell at trial was that he was an unwilling follower who feared that Dunn would also kill him.

|4The challenged remark occurred during the redirect testimony of state witness, Trevor Sanders. Pursuant to cross-examination by defense counsel, Sanders testified that Dunn drove the stolen car and admitted to killing the vehicle’s owner. Sanders testified that he helped dissuade Dunn from stealing another car that night and killing its owner. When asked if Bell also had attempted to dissuade Dunn, Sanders responded that Bell was not saying much. Defense counsel then asked if Sanders thought Bell was scared, and Sanders replied that he did.

On redirect examination, Sanders testified that defendant and Dunn had told him what had transpired during the robbery, and that Bell was laughing about it. Sanders further testified that Bell knew why they were going to Vacherie on the night in question. Thereafter, the prosecutor questioned Bell about defendant’s presence with Adrian Dunn when another individual was killed. Defense counsel moved for a mistrial based on this other crimes evidence. As the judge had previously ruled that this evidence was admissible, he denied defendant’s motion for mistrial. Thereafter, the trial judge instructed the jury regarding the limited use of the other crimes evidence, and defendant objected.

On appeal, defendant asserts that he was entitled to a mistrial pursuant to LSA-C.Cr.P. arts. 770(2) and 775. According to Article 775, “a mistrial shall be ordered ... when prejudicial conduct in or outside the courtroom makes it impossible for defendant to obtain a fair trial, or when authorized by Article 770 or 771.” LSA-C.Cr.P. art. 770(2) provides that a mistrial shall be ordered “when a remark or comment, made within the hearing of the jury by the judge, district attorney or a court official, during the trial or in argument, refers directly or indirectly to ... another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” As a general rule, Article |s770 does not apply to testimony by a state witness, since a witness is not considered a “court official” for purposes of the article. However, the jurisprudence reflects that an impermissible reference to another crime deliberately elicited by the prosecutor would be imputable to the state and would therefore trigger the mandatory mistrial provisions of Article 770. The reference must be to another crime committed or alleged to have been committed by defendant as to which evidence is not admissible. State v. Girod, 96-660 (La.App. 5 Cir. 11/25/97), 703 So.2d 771, 775, writ denied, 98-0244 (La.6/19/98), 719 So.2d 480; State v. Williams, 01-1007 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030.

The other crimes evidence that defendant is complaining about was previously found to be admissible by the trial judge. Prior to trial, the state filed notice of intent to use evidence of other crimes, in particular, an incident that occurred on April 3, 2000, in St. John Parish, in which defendant and Adrian Dunn were involved in a kidnapping, armed robbery, murder, and attempted murder. In its motion, the state alleged that the April 3 offense was peculiarly similar to the one committed against Mr. Williams and Mr. Oubre, and that it was admissible to “prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident on the part of defendant.” Prior to trial, the court conducted a Priem hearing to determine the admissibility of this other crimes evidence. After listening to the testimony presented, the trial judge ruled that the evidence was admissible. We agree with the trial judge that the evidence of the other crime was admissible.

While evidence of other crimes, wrongs or acts is not admissible to prove the character of a person to show that he acted in conformity therewith, according to LSA-C.E. art. 404B(1), such evidence is admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, | ^absence of mistake or fact ...” In the present case, intent was clearly at issue, and therefore, we find no error in the trial judge’s admission of the other crimes evidence. Accordingly, the trial judge did not err in denying defendant’s motion for mistrial under either LSA-C.Cr.P. art. 770 or 775. This assigned error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second assigned error, defendant contends that he was denied effective assistance of counsel. He specifically alleges that two certain stipulations and one remark by his attorney during the trial of this matter were prejudicial and gave undue weight to the state’s case. He reasons that defense counsel’s actions were more than just “trial strategy” and amounted to a confession that the state made a prima facie case against defendant.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Truitt, 500 So.2d 355 (La.1987). It is well settled, however, that where the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780 (La.1993); State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1057. Since the record contains sufficient evidence to decide the issue, we will address defendant’s allegations of ineffectiveness.

A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Under the Strickland test, the defendant must show (1) that his attorney’s performance was deficient, that is, that the performance fell below an objective |7standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. It is not enough for the accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. State v. Brown, 742 So.2d at 1058.

On appeal, defendant alleges that counsel was ineffective and severely jeopardized his case by entering into certain stipulations during the testimony of Major Bobby Hay, the chief of detectives in St. John Parish. The state called Major Hay to testify about a kidnapping, armed robbery, murder and attempted murder that occurred in St. John Parish on April 3, 2000. The state asked for a stipulation that it had presented a prima facie case of the St. John crime, and defense counsel refused. The court ruled that in the absence of a stipulation, the state could proceed with the questioning. Defense counsel then changed his mind and agreed to stipulate that the state has presented a prima facie case of Mr. Bell’s involvement in the incident that happened in Laplace, Louisiana.

After this stipulation, in order to admit into evidence the ski mask and jacket allegedly worn in both incidents, the state intended to question the officer on these limited subjects. Defense counsel said he “will stipulate that it (jacket) is similar to the one or it is the one I don’t know whatever.” The judge refused to accept this as a stipulation. Thereafter, the prosecutor noted that state witness Anthony Breaux had already testified that the defendant gave Breaux the jacket, Breaux turned the jacket over to Major Hay, and in the jacket pocket was a commercial mask and a .9mm bullet. Defense counsel stipulated to these facts which were previously testified to by Breaux.

Although defendant complains that his trial counsel was ineffective in entering into these stipulations, these stipulations appear to be nothing more than effective trial tactics. The judge had already ruled that he was going to allow the | ¡¡state to question Major Hay in detail regarding the crimes of murder, attempted murder, armed robbery, and kidnapping, which Bell engaged in three days before in St. John Parish. In order to ameliorate the damaging effect of this detailed testimony, trial counsel chose to agree that the state had presented sufficient evidence that he was “involved” in the LaPlace incident. The exact nature and extent of his involvement was not specified and defense counsel precluded the jury from hearing details of Bell’s involvement in the other crimes. Additionally, the stipulation regarding the defendant’s jacket was merely repetitive of testimony already given by state witness Anthony Breaux. Given these circumstances, we find that the defendant has failed to overcome the presumption that trial counsel’s actions amounted to sound trial strategy.

Defendant also complains that trial counsel did not consult him regarding the ramifications of the stipulations and merely rested the case without putting on any evidence. Having found that the stipulations did not amount to deficient performance, but rather were sound trial tactics, we likewise reject this complaint by defendant.

The final action of trial counsel which defendant alleges was deficient occurred when Gerald Adams, the victim in the St. John Parish incident, was called to testify. When the state called Mr. Adams to testify, trial counsel for defendant objected on the basis that trial counsel had already stipulated regarding the incident in La-Place. After argument of the prosecutor on the issue, trial counsel stated the following basis for his objection: “Your Hon- or, I think to permit evidence of other crimes, that has already been satisfied. And this is duplicating and this is driving more nails into the coffin, and I don’t think it’s proper.” (Emphasis added).

This statement was merely an inarticulate attempt by counsel to impress upon the court the fact that Adams’ testimony should be excluded as repetitive. From a tactical perspective, it was counsel’s attempt to control any damage that |9may have resulted from the jury hearing details of the other crime. Under these circumstances, this comment does not rise to the level of “deficient performance” contemplated by Strickland. Additionally, there was overwhelming evidence presented at trial which established that defendant was a principal to second degree murder.

For these reasons, we find that defendant has failed to prove that his counsel’s performance was deficient and that the deficiency prejudiced him. This assigned error is likewise without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, LSA-C.Cr.P. art. 920, and have found none.

For the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . Trevor Sanders participated in the planning of the robbery and was in the car with defendant, Dunn, and Armour when they stopped at the car wash to steal Williams’ red Cadillac.

      . State v. Prieur, 277 So.2d 126 (La.1973)


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Willie TURNER, Walter Kyle and Winnie Jones, Plaintiffs, v. Billy JAMES and Carolyn Caldwell, Clerk of Court for Madison Parish, Defendants.
    No. 37,405-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2003.
    Writ Denied March 3, 2003.
    Mulhearn & Smith By Leroy Smith, Jr., Tallulah, for Defendant, Appellant, Billy James.

      Samuel H. Thomas, Tallulah, for Plaintiffs.
    Before BROWN, STEWART, GASKINS, CARAWAY and PEATROSS, JJ.
   BROWN, C.J.

This is an appeal from a judgment disqualifying defendant, Billy James, as a candidate for the Tallulah City Council. The district court found that the provisions of Article I, Section 10(B) of the Louisiana Constitution do not permit James, who pled guilty to a felony in 1989, to qualify for public office. For the reasons that follow, we affirm the trial court’s judgment.

Facts

The essential facts of this case are undisputed. On August 2, 1989, James pled guilty to attempted obstruction of justice, a felony prohibited by La.R.S. 14:130.1 and 14:27, and the court imposed a sentence of two and a half years at hard labor with the Louisiana Department of Corrections; the court suspended execution of James’ sentence and placed him on supervised probation for three years. Special conditions included forfeitures of a bank box and a 1987 Camaro. Effective August 2, 1992, James received an automatic first offender pardon pursuant to the provisions of La. R.S. 15:572.

On February 19, 2003, plaintiffs, Willie Turner, Walter Kyle and Winnie Jones, filed a petition to challenge James’ qualifications as candidate for Tallulah City Council, District 4. The next day, James filed an application for post-conviction relief, claiming ineffective assistance of counsel, urging that his prior actions did not constitute the elements of obstruction of justice, and seeking to have his conviction for attempted obstruction of justice set aside. Additionally, on that same date, the court minutes for the criminal division of the Sixth Judicial District Court indicate 1 pthat James’ counsel filed a “Motion for Benefit of Article 893” in James’ criminal ease in which he pled guilty; those minutes also show that the judge in the criminal division signed an “Order Providing for 893 Benefits,” pursuant to which the minutes of court for August 2, 1989, were amended to provide:

State vs Billy James, Docket #57099, charge of Attempted Obstruction of Justice: Dismissal of the Prosecution by the State of Louisiana. Accordingly the conviction is hereby set aside and the prosecution is dismissed.

The following day, February 21, 2003, another judge heard the challenge to James’ qualifications for election. After hearing testimony and receiving other evidence that established the facts outlined above, the court noted that the Louisiana Constitution does not permit a person to qualify for public office if he has been convicted of a felony and has exhausted all legal remedies, unless he has been pardoned by the governor or more than 15 years have passed since completion of his original sentence. The court found that when he qualified for office, James was a convicted felon who had not received a pardon from the governor, and approximately ten and a half years had passed since he had completed his sentence. The court concluded that neither his “Article 893 expungement,” nor James’ motion for post-conviction relief had any effect on James’ qualifications to run for office. Accordingly, the court held that James was ineligible and that his name must be removed from the ballot. James timely appealed the court’s judgment.

|«Discussion

The disqualifying provisions of Article I, Section 10(B) of the Louisiana Constitution state:

The following persons shall not be permitted to qualify as a candidate for elected public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not after-wards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.

An exception to the above-quoted disqualifying provisions is found in Article I, Section 10(C):

Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold such office if the date of his qualifying for such office is more than 15 years after the date of the completion of his original sentence.

In the instant case, James does not argue that he falls within the exception stated in Article I, Section 10(C), but he makes two arguments for reversal based on the provisions of Article I, Section 10(B). First, James urges that once he “received his benefit of Article 893,” he did not have a conviction but an acquittal; therefore, he argues, he was not a convicted felon prohibited from running for office. Second, he argues that to be disqualified, a person must not only have been convicted of a felony, but |4also have exhausted all legal remedies. However, at the time James qualified for office, he had never filed an application for post conviction relief pursuant to La.C.Cr.P. art. 930.8; therefore, he had not exhausted all of his legal remedies and was not disqualified. For the reasons that follow, we reject both of James’ arguments.

The record in this case does not include a copy of the “Motion for Benefit of Article 893” referred to in the court minutes for February 20, 2003, nor do we have a copy of the criminal court judge’s order providing such benefits. Nevertheless, the criminal court judge could not validly set aside James’ conviction and dismiss the prosecution under the undisputed facts of this case. The pertinent provisions La.C.Cr.P. art. 893(D)(1)(a) state in part:

... the court may defer, in whole or in part, the imposition of a sentence after conviction ... and place the defendant on probation ...

Article 893(D) addresses a court’s deferral, in whole or in part, of the imposition of a sentence. Because James’ sentence was actually imposed and served, Paragraph (D) does not apply. However, Paragraph (D) is the source of the language upon which James relies to avoid disqualification. | ¡¿Because Paragraph (D) does not apply to James, this argument must be rejected.

Turning now to James’ application for post conviction relief, we observe that under the provisions of La.C.Cr.P. art. 924(1), an “application for post conviction relief’ means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside. Under this definition, James could not properly file an application for post-conviction relief unless he was a person “in custody” after sentence following conviction for the commission of an offense. The term “custody” is defined in Article 924(2) as “detention or confinement, or probation or parole supervision, after sentence following conviction for the commission of an offense.” James was not “in custody” when he filed his application for post conviction relief because he was neither detained nor confined, nor on probation or parole supervision. Instead, the execution of his sentence had been suspended, and his period of probation had been completed over ten years before he filed his application for post-conviction relief. Accordingly, even if we were to assume arguendo that an application for post-conviction relief is one of the “legal remedies” referred to in the disqualifying provisions of Article I, Section 10(B), James plainly waited too long to file his application for post conviction relief, and he cannot now rely on that application to escape the constitutional prohibition of his candidacy.

| fiConclusion

For the reasons set forth above, the judgment of the trial court is hereby affirmed at appellant’s cost.

AFFIRMED.

      . Article 893(D)(2) provides: Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.

      . Thus, we do not reach the question of the effect of a legitimate art. 893 proceeding on the qualifications for an elected office.


author: DREW, J.

text:
    Keith MASTERS and Rachael Diane Masters, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 36,735-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Rehearing Denied April 3, 2003.

      Peters, Ward, Bright & Hennessy, by: J. Patrick Hennessy, Shreveport,for Appellants.
    Stone, Pigman, Walther, Wittman & Hutchinson, by: Wayne J. Lee, Casten & Pierce, by: Marshall R. Pearce, for Appel-lee.
    Before WILLIAMS, DREW and HARRISON (Pro Tempore), JJ.
   DREW, J.

Keith Masters and Rachael Diane Masters, plaintiffs, appealed the summary judgment dismissing their claim against their auto insurer, State Farm Automobile Insurance Company, for its proportionate share of attorney’s fees and costs arising from State Farm’s recovery of its medical payments to Mr. and Mrs. Masters from the responsible third party’s insurer. Mr. and Mrs. Masters contended that the summary judgment in favor of State Farm, in essence, required their attorney to be an unpaid collection agent for State Farm. According to the insurer, Mr. and Mrs. Masters sought to force State Farm to pay for their attorney’s fees for services which State Farm neither needed nor requested, when the insurer received no timely notice of retention of the attorney or his subsequent activities. For the following reasons, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In their action filed November 16, 2000, Mr. and Mrs. Masters alleged:

• State Farm issued the Masterses an auto insurance policy containing the standard medical payments coverage.
• After Mrs. Masters was injured in an auto accident on December 27, 1999, State Farm paid her medical expenses.
• Plaintiffs retained an attorney on a contingent fee contract to recover their damages from the other driver.
• Under the terms of the policy, State Farm was subrogated to the extent of its medical payments to the plaintiffs’ recovery against the other driver.
!?• State Farm did not hire an attorney but filed a notice of subrogation claim with the insurer of the third party.
• Plaintiffs’ attorney reached a settlement with the insurer of the other driver, and Mr. and Mrs. Masters paid their portion of the attorney’s fees.
• Plaintiffs’ attorney demanded that State Farm pay its proportionate part of the attorney’s fees and costs, and State Farm refused.
• Mr. and Mrs. Masters deposited with the trial court a check made payable to them and State Farm and sought to have the court order State Farm to endorse the check so it could be placed into the registry of the court.

Along with its answer, State Farm filed a number of affirmative defenses including: (1) the plaintiffs’ claim was extinguished because State Farm had paid all the sums due plaintiffs under their policy; (2) the plaintiffs were not entitled, as a matter of law, to recover damages, penalties or attorney’s fees; (3) neither plaintiffs nor their attorney gave timely notice to State Farm that plaintiffs were represented by an attorney; and (4) State Farm was not bound by the fee contract between Mr. and Mrs. Masters and their attorney, and alternatively, if State Farm were obligated (which State Farm denied), then the quantum must be reasonable. In its answer, State Farm contended that the medical expenses paid to Mrs. Masters exceeded the $2,670.52 alleged by plaintiffs. State Farm acknowledged that its personnel notified the third party’s insurer of its subrogation claim and that State Farm did not retain an attorney to pursue the subro-gation claim.

State Farm sought a summary judgment to dismiss with prejudice plaintiffs’ action to compel State Farm to pay a portion of the attorney’s fees the plaintiffs incurred in pursuing and settling their claim against the tortfeasor’s insurer in the auto accident. As plaintiffs’ insurer, State Farm | apaid Mrs. Masters’ medical expenses and was subrogated to recover medical payments from the tortfeasor’s insurer. According to State Farm, the uncontroverted facts were:

• Plaintiffs did not timely notify State Farm they had retained an attorney.
• Plaintiffs did not keep State Farm abreast of the attorney’s actions.
• State Farm did not retain or rely on plaintiffs’ lawyer but pursued its own subrogation claim.

Following a hearing, the trial court issued oral reasons for judgment in which the trial court noted:

• Following the December 27,1999, accident, Mr. and Mrs. Masters informed State Farm in December 1999 that they intended to pursue a claim against the other driver and his insurer, Progressive Insurance Company. Plaintiffs did not indicate who their attorney was to be.
• On January 12, 2000, Mr. and Mrs. Masters hired attorney Pat Hennessy.
• On January 28, 2000, State Farm claims representative, Janet Sanders, sent a letter to Jennifer Minner with Progressive stating that the letter was notice to Progressive of State Farm’s subrogation rights and requesting that Progressive contact State Farm.
• Jeff Ray of State Farm wrote Progressive again on June 2, 2000, and repeated that the letter was a notice of subrogation and a request for Progressive to contact State Farm.
• On June 22, 2000, plaintiffs informed State Farm by telephone that they had a lawyer.
• Mr. Hennessy first contacted State Farm on or about September 8, 2000, when he spoke with Jeffrey Ray, a State Farm subrogation agent. Plaintiffs’ attorney asked that State Farm reduce its medical payment recovery by one-third in accord with the plaintiffs’ contingency fee contract.
• This was the first formal contact between the plaintiffs’ attorney and State Farm.
14» At this time, Mr. Hennessy had already reached a settlement with Progressive, the third party’s insurer.
• Except for Mrs. Masters’ June phone call, there were no progress reports or any notice to State Farm.
• The first written contact was a September 12, 2000, letter from Mr. Hennessy to State Farm demanding payment of attorney’s fees and costs.
• State Farm did not agree to the contingency arrangement, and suit was filed on November 16, 2000.
• The affidavit of Griff Williams explained that (1) the Medical Payment Subrogation Arbitration Agreement provided that participating insurers must arbitrate disputes regarding medical payments subrogation that do not exceed $100,000; and (2) State Farm arbitrated medical payment claims with other members of the Medical Payment Subrogation Arbitration Agreement with in-house staff.
• State Farm and Progressive were members of the Medical Payment Sub-rogation Arbitration Agreement.
• State Farm did not ask Mr. Hennessy to pursue its subrogation rights for medical payments.
• State Farm at all times intended to handle the subrogation claim with in-house personnel and did not intend to hire an attorney.
• The matter was settled by August 2000, well before prescription ran; there was still time for State Farm to arbitrate with Progressive.
• There was neither timely nor adequate notice from Mr. Hennessy to State Farm.
• Mr. Hennessy did not inform State Farm of the progress of the case and did not involve State Farm in settlement negotiations.
• State Farm was entitled to summary judgment as a matter of law.

DISCUSSION

Appellate review of the grant or denial of a motion for summary judgment is de novo. Green v. State Farm General Ins. Co., 35775 (La.App.2d Cir.4/23/2002), 835 So.2d 2,. La. C.C.P. art. 966 provides that the plaintiff or defendant may move for a summary judgment in its favor for all or part of the relief for which it has prayed. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of an action. The procedure is favored, and the trial court should construe it to accomplish the stated goals. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require it to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966; Green v. State Farm, supra.

Both Mr. and Mrs. Masters, as well as State Farm, cite Barreca v. Cobb, 96-1651 (La.2/28/96), 668 So.2d 1129, as authority for their opposing positions. Blue Cross paid $15,360.91 for medical expenses Bar-reca incurred when he was injured in an auto accident. Barreca sued the other driver, the owner of the car and both their insurers. Barreca’s attorney 16wrote Blue Cross, notifying the insurer of the suit and informing Blue Cross that in the event of judgment or settlement, Barreca would obtain the portion due Blue Cross and forward the money to the insurer. Blue Cross choose not to intervene. The matter later settled for $69,000. Under the terms of Barreca’s policy, Barreca’s attorney sent Blue Cross a letter stating that the matter had settled and that Barreca was going to send Blue Cross its reimbursement less 1/3 for the attorney’s fee. Blue Cross rejected this, and Barreca filed a concursus proceeding.

Contrary to reimbursement which gives the insurer only the right to be repaid by the insured, subrogation gives the insurer the right to assert the actions and rights of the insured and places the insurer in the shoes of the insured. Barreca v. Cobb, supra.

... [U]nder the principles of subrogation, the insurer and the insured are co-owners of the right to recover the medical expenses paid by the insurer. As co-owners, both the insured and the insurer are responsible for the corresponding litigation expenses. However, we hold that, in subrogation cases, an important prerequisite to the assessment of attorney fees is timely notice to the insurer. Timely notice is necessary to allow the insurer to exercise its right to join the action, or bring its own action, and be represented by legal counsel of its own choosing if it so elects. Assessment of attorney fees is justified only when the insurer chooses to rely on the efforts of plaintiffs counsel.

Barreca v. Cobb, 668 So.2d at pp. 1131-1132. Because it was undisputed that Blue Cross was notified of Barreca’s action and chose to take no action, Blue Cross was ordered to bear its proportionate share of the legal fee.

In this matter, State Farm’s right of subrogation to recover medical payments was undisputed. However, the Masterses denied State Farm’s contention that the insurer actively pursued the sub-rogation claim through |7its in-house personnel. Plaintiffs contended that State Farm did not have sufficient employees and did too little to pursue its subrogation claim. This record belies plaintiffs’ argument.

•State Farm supported its motion for summary judgment with the affidavit of Griff Williams, a subrogation consultant in State Farm’s home office Corporate Sub-rogation Unit. Williams averred that State Farm, along with Progressive Insurance Company, were participating members of the Automobile Subrogation Arbitration Agreement and Medical Payment Subro-gation Arbitration Agreement in 1999 and 2000. The agreements provided that participating members must arbitrate disputes regarding medical payments that do not exceed $100,000. Williams also stated that State Farm arbitrated medical payment subrogation claims with other participating members, including Progressive, using State Farm in-house staff.

The record also contained the depositions of Jeffrey Ray, the State Farm sub-rogation expediter who handled this matter, along with the depositions of Dean LeBlanc and A1 Joshua, the co-supervisors of the Monroe subrogation unit at which Ray was employed. In addition, State Farm supplied its log on the plaintiffs’ claim, plaintiffs’ responses to State Farm’s discovery requests and various correspondence pertaining to this dispute.

Following the December 27, 1999, accident and after plaintiffs informed State Farm that they intended to pursue damages from the tortfeasor, State Farm responded with a December 30, 1999, letter to ^plaintiffs asking the Masterses to contact State Farm for any desired assistance. The State Farm log indicates that during January, the company investigated the accident. On January 28, 2000, Janet Sanders, State Farm Senior Claims Representative, wrote Jennifer Minner of Progressive Insurance, stating Progressive’s insured was responsible for the accident, notifying Progressive of State Farm’s sub-rogation rights, and asking that Progressive communicate with State Farm. State Farm ultimately made medical payments to plaintiffs exceeding $2,600.

On May 12, 2000, Sanders sent the file to State Farm’s subrogation unit. On June 2, 2000, Ray sent Progressive another letter giving Progressive notice of State Farm’s subrogation claim and asking Progressive to communicate and send its check to State Farm. The log also reflects that on June 16, 2000, Paul Kyle with Progressive informed Ray that Progressive had State Farm’s “med pay lien noted in their file and they would consider it at the time of settlement.” Paul also reported that Progressive was waiting for wage information from the plaintiffs’ attorney in order to settle. On June 22, Diane Masters informed State Farm they had an attorney. On August 17, Ray requested that Progressive provide a status report on the dispute.

On September 8, 2000, Mr. Hennessy, plaintiffs’ attorney, phoned Ray and sought to have State Farm reduce its medical payments recovery by a third. After Ray determined that there was no policy limits problem with the recovery, Ray informed plaintiffs’ attorney that State Farm was entitled to 100% of the medical payments recovery. On September 12, |9Mr. Hennessy wrote Ray, again demanding that State Farm pay its share of the attorney’s fees related to its subrogation claim.

Dean LeBlanc, Ray’s immediate supervisor, stated in his deposition that normally, the only circumstance in which State Farm would retain an attorney to recover medical payments was if the matter was close to prescribing, a settlement had not been reached, and the other insurer was not a member of the Medical Payment Subrogation Arbitration Agreement. If the insurer was a member of the arbitration agreement, State Farm was required to use arbitration, which cost the company a filing fee of $40. If the matter had prescribed, State Farm would consider going to plaintiffs’ attorney, requesting that State Farm’s interests be protected. Le-Blanc also explained that State Farm had an internal tickler system to alert personnel two months prior to prescription so a subrogation arbitration claim could be filed.

In his deposition, Joshua, LeBlane’s co-supervisor, stated that State Farm would consider relinquishing a third of the medical payments recovery, if that was necessary to make its insured whole, or if State Farm had let the claim prescribe. Generally, when the insurers both were members of the subrogation arbitration agreement, State Farm used arbitration and would not reduce its medical payments recovery. Although Joshua declined to give a percentage, he estimated a large majority of major companies were members of the arbitration agreement.

| vnRay, a State Farm expediter who handled clear-cut liability matters for the sub-rogation department, reviewed in his deposition the sequence of acts performed by State Farm (detailed above) to pursue the subrogation claim against Progressive. State Farm communicated with Progressive and did not seek assistance from Mr. Hennessy, with whom State Farm had no contact until a September 8, 2000, phone call. In June 2000, when Mrs. Masters informed State Farm they had an attorney, State Farm had already taken steps to independently recover the medical payments directly from Progressive.

The plaintiffs correctly urged that insurers generally, via subrogation, are co-owners with their insureds of the right to recover medical expenses and that “both the insured and the insurer are responsible for the corresponding litigation expenses.” Barreca v. Cobb, 668 So.2d at p. 1132. However, the Masterses and their attorney did not meet the very specific prerequisite set out in Barreca, supra; i.e., timely notice so that the insurer has the opportunity to decide whether to exercise its right to join the action or to bring its own action, represented by legal counsel of its own choosing. The insurer must have the opportunity to choose to rely on the efforts of plaintiffs counsel before the insurer can be held responsible for the attorney’s fees of plaintiffs’ attorney. In this case, State Farm communicated its subro-gation claim directly to Progressive shortly after the accident. Neither plaintiffs nor their attorney, whom they retained in January 2000, communicated with State Farm to provide the insurer the required notice and opportunity to decide if State Farm wanted to avail itself 111 of Mr. Hennessy’s services. In fact, the attorney did not give any notice until he informed State Farm the matter had settled. Because the plaintiffs and their attorney did not comply with the prerequisite of timely notice set out in Barreca, supra, other arguments raised on appeal are pretermitted.

Our de novo review of the pleadings, depositions, answers to interrogatories, admissions on file and the affidavits reveal the facts and sequence of events are basically undisputed. The Masterses and State Farm disagree on the interpretation of those facts. In concluding there are no genuine issues of material fact concerning the notice in this ease and in finding here that State Farm was entitled to summary judgment as a matter of law, we are limiting this result strictly to the facts in this particular case. Since each case must be decided on its own unique facts and circumstances, we make no ruling as to what constitutes “timely notice” under Barreca, supra, in general. Our review of this record revealed that “timely notice” did not occur in this dispute.

DECREE

After a thorough review of the record and the arguments, we find that the trial court did not err in granting summary judgment in favor of State Farm Insurance Company and against Mr. and Mrs. Masters. For the reasons set out above, the judgment of the trial court granting the summary judgment and dismissing the plaintiffs’ action with prejudice is affirmed. Costs are assessed against the plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, KOSTELKA, DREW, and HARRISON, JJ.

Rehearing denied.

      . The plaintiffs also brought this as a class action on behalf of similarly situated persons. Although the record contains a motion for class certification, there is no indication that the class was ever certified. Further, on appeal, the plaintiffs state the question of class certification is not before this court.

      . In his deposition, Joshua stated the arbitration fee was $45.


author: |,BROWN, C.J.

text:
    KEN LAWLER BUILDERS, INC., Plaintiff-Appellee, v. Cynthia M. DELANEY, et al., Defendants-Appellants.
    No. 36,865-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Larry English, Shreveport, Counsel for Defendants-Appellants and Intervenor, Access 1 Communications.
    William Lake Hearne, Counsel for Ap-pellee.
    Before BROWN, C.J., and GASKINS, and KOSTELKA (Pro Tempore), JJ.
   |,BROWN, C.J.

Plaintiff, Ken Lawler Builders, Inc., filed a petition against defendants, Cynthia M. Delaney and Sandra Richardson Kittler, for damages suffered by reason of the repudiation of a lease, including all rent due under the remaining term of the 10-year lease, legal interest, attorney fees afforded under the lease and all costs of the proceeding. Plaintiff moved for summary judgment, and the matter was submitted on briefs without oral argument. The trial court granted the motion and rendered judgment in favor of plaintiff and against defendants in the amount of $36,750, together with legal interest and all court costs incurred in the proceeding. Although plaintiff had sought attorney fees in its petition, the judgment did not award or mention attorney fees. Access 1, the successor in interest to the lease and the current owner of the property, had intervened in the lawsuit and devolutively appealed the judgment. On appeal, this court amended the judgment to award Lawler the sum of $4,200 and in all other respects affirmed the trial court. See Ken Lawler Builders, Inc. v. Delaney, 36,263 (La.App.2d Cir.08/14/02), 837 So.2d 1.

While the appeal on the summary judgment was pending, plaintiff filed a motion styled as “Motion for Award of Attorney Fees and Examination of Judgment Debt- or.” Defendants and Access 1 filed a motion to dismiss, alleging that the appeal of the summary judgment divested the 12trial court of jurisdiction pursuant to La. C.C.P. art. 2088. The court denied the motion to dismiss and awarded $2,625 in attorney fees. Delaney, Kittler, and Access 1 now suspensively appeal this second judgment. We reverse and set aside the attorney fee award.

Discussion

Although plaintiffs petition sought attorney fees, plaintiff did not argue for them in its brief submitted in support of its summary judgment motion. The district court rendered judgment based upon the relief requested in plaintiffs brief. The judgment signed was a final judgment, from which an appeal was granted. Plaintiff did not answer the appeal to assign as error the district court’s failure to award attorney fees. Instead, it filed a motion in district court for attorney fees, which motion the district court, based upon its prior decision to enforce the provisions of the lease, granted.

La.C.C.P. art. 2088 provides, in pertinent part, that “the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal_” Plaintiff submits that attorney fees were not a part of the judgment and therefore, not a matter reviewable under the appeal. We do not agree.

The lease agreement provided for the recovery of attorney fees if defendants were shown to have breached the lease. The summary judgment granted by the trial court was based upon a finding that defendants had violated the terms of the lease. Whether the lease was viable and breached |3was the matter reviewable on appeal. Plaintiffs recovery of attorney fees was part of such a decision. Accordingly, under La.C.C.P. art. 2088, the trial court was divested of jurisdiction. Obviously, judicial economy is thwarted when a district court renders piecemeal judgments based upon the merits of a single claim.

Defendants also argue that the additional award is precluded by res judicata, that is, the authority of the thing adjudged. La.R.S. 13:4231. Summary judgment is a definitive judgment and will support plea of res judicata. Snipes v. Southern Baptist Hospital, 243 So.2d 298 (La.App. 4th Cir.1971). When a court renders a judgment that decides the merits of the case in whole or in part, the judgment is a final judgment. La.C.C.P. art. 1841; Tolis v. Bd. of Sup’rs of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206. A final judgment is conclusive between the parties except on direct review. La.R.S. 13:4231; Tolis, supra.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. La.R.S. 13:4231; La.C.C.P. art. 425; Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.07/02/96), 676 So.2d 1077; Leon v. Moore, 98-1792 (La.App. 1st Cir.04/01/99), 731 So.2d 502, writ denied, 99-1294 (La.07/02/99), 747 So.2d 20. This promotes judicial efficiency and final resolution of disputes. Id. Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. La.R.S. 13:4231; Jackson v. Iberia Parish Government, 98-1810 (La.04/16/99), 732 So.2d 517. Once a final judgment acquires the authority of |4the thing adjudged, no court has jurisdiction to change the judgment. Avenue Plaza, L.L.C., supra.

Identification of issues actually litigated for purposes of determining whether res judicata bars an issue shall be determined not solely from the pleadings but also by examining the entire record in the first suit. Ebey v. Harvill, 26,373 (La.App.2d Cir.12/07/94), 647 So.2d 461.

We conclude that the judgment in this instance was final. All issues related to the breach of the lease were extinguished and merged into the final judgment rendered by the district court. La. R.S. 13:4231(1). As previously stated, neither the record nor the previous judgment rendered indicate any reservation of the attorney fees issue for future adjudication. In this instance, we deem it appropriate to apply the principle that a demand not granted or reserved in the judgment must be considered as rejected. See Soniat v. Whitmer, 141 La. 235, 74 So. 916 (La.1917). The legal effect of the silence of a judgment on any part of a demand that might have been allowed under the pleadings is a rejection of such part of the demand, which tacit rejection has the force and effect of res judicata against subsequent suit for such part of the demand. Edenborn v. Blacksher, 148 La. 296, 86 So. 817 (1921).

Conclusion

We conclude that, based upon the record presented to us, the district court was divested of jurisdiction to award attorney fees afforded under the lease, and moreover, the issue of attorney fees was merged in the original summary judgment, precluding further litigation of this issue.

IsAccordingly, the judgment of the trial court awarding attorney fees to plaintiff is reversed, vacated and set aside.

REVERSED, VACATED AND SET ASIDE.

      . Defendant Delaney, who represented Delaney Broadcasting, Inc. (“DBI”), entered into a lease agreement with plaintiff to erect and use a radio tower on land Lawler owned. DBI subsequently sold the tower and its interest in the lease to "Ninety Five Point Seven, Inc.,” who in turn assigned it to “Access 1.” Plaintiff Lawler sold the property with reservation of its rights to rentals due under the lease to Mary Hutches, who subsequently sold the property to Access 1. Dispute over Lawler’s right to continue to collect rent, even though Access 1 now owned the leased land and the tower, resulted in this litigation.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Calvin Ray FEASTER, Appellant.
    No. 36,868-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      G. Paul Marx, Lafayette, Angela G. Waltman, Counsel for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, R. Randall Smith, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

Following a serious traffic accident, the defendant in this criminal case pled guilty to one count of DWI, third offense, and two counts of first degree vehicular negligent injuring. He was sentenced to five years imprisonment at hard labor for each count, to run consecutively. On appeal, the defendant argues that the sentence for the DWI is illegal and that the others are excessive and in violation of La.C.Cr.P. art. 883. For the foregoing reasons, we affirm in part, reverse in part, and remand for re-sentencing on the DWI, third offense, conviction.

Facts

On July 22, 2001, the defendant was driving his vehicle on La. 164 near La. 614 in Bossier Parish, Louisiana. The defendant then lost control of his vehicle and crashed, head-on, with another vehicle. Five other people were seriously injured as a result of the accident, two of whom sustained life-threatening injuries.

The defendant was transported to LSU Medical Center where a blood-alcohol test was performed. His blood-alcohol level was .15 grams of alcohol per one hundred cubic centimeters of blood; he was charged with one count of driving while intoxicated (“DWI”), pursuant to La. R.S. 14:98, and five counts of first-degree vehicular negligent injuring, pursuant La. R.S. 14:39.2. As the result of a plea bargain entered on November 19, 2001, the defendant then pled guilty to the DWI, third offense, and to two counts of first-degree vehicular negligent injuring.

| p.The trial judge, at sentencing, considered a pre-sentencing investigation report (PSI). The court noted that the defendant had caused critical injuries to the occupants of both vehicles involved in this traffic collision. Defendant had prior convictions for simple burglary, the probationary sentence for which later was revoked, plus convictions for disturbing the peace, simple battery, the two pertinent DWI offenses, flight from an officer, simple escape, drinking in public, disturbing the peace (drunk) and simple theft. Defendant denied having a problem with alcohol. He had never married but claimed to have four children. The court found that there was an undue risk that the defendant would commit other crimes if granted probation, and that he was in need of correctional treatment in a custodial environment.

The defendant received the maximum amount of time (five years at hard labor) for each count, to run consecutively. On appeal, the defendant argues that the sentences of the trial court were excessive and that the trial court applied the wrong law when sentencing him.

Discussion

In reference to the two counts of first degree vehicular negligent injuring, La. R.S. 14:39.2 provides, in pertinent part, the following:

A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
D. Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.

Since the offenses in this case arise from the same incident, La.C.Cr.P. art. 883 governs the imposition of consecutive sentences, as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.

“Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background ... justify treating him as a grave risk to the safety of the community.” State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McKenzie, 36,580 (La.App.2d Cir.10/23/02), 830 So.2d 478; State v. Thompson, 25,583 (La.App.2d Cir.1/19/94), 631 So.2d 555; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (1988); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir.1988).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. |4894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dallas, 36,397 (La App.2d Cir. 11/6/02), 830 So.2d 1113. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Strange, 28,466 (La.App.2d Cir.6/26/96), 677 So.2d 587; State v. Hudgins, supra.

Whether a sentence is too severe depends on the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered 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 (La.1985); State v. Dallas, supra; State v. Tuttle, 26,307 (La.App.2d Cir.9/21/94), 643 So.2d 304.

As a general rule, maximum or near maximum sentences are appropriate only in cases involving the most serious violation of the offense and the worst type of offender. State v. Gay, 36,357 (La.App.2d Cir.10/23/02), 830 So.2d 356; State v. Walker, 573 So.2d 631 (La.App. 2d Cir. 1,4991); State v. Madison, supra. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Strange, supra.

Defendant’s history of alcohol-related offenses and his unwillingness to admit that he has a substance abuse problem gave the trial court an articulable and particularized basis for concluding that defendant was a dangerous repeat offender for whom consecutive terms of imprisonment were appropriate. The trial court found that he posed a grave risk to the safety of the community. We find that the consecutive sentences were not in violation of the provisions of Article 883 as interpreted by our supreme court in Walker. The trial court appropriately found that a lesser sentence would deprecate the seriousness of the offenses.

Our review of the record discloses that the defendant was driving without a valid driver’s license. He received a substantial benefit from his plea bargain. The individual sentences imposed are within the statutory range available to the trial court and, under the circumstances, are not excessive. We find that the trial court’s imposition of consecutive five-year sentences on the two charges of first degree vehicular negligent injury is not excessive punishment in this case.

Regarding the DWI sentence, however, the trial court imposed sentence on June 10, 2002, immediately before the ruling of the Louisiana Supreme Court in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526. Therefore, although the former penalty for DWI, third offense, allowed for the five-year sentence imposed by the trial court,, the new penalty for that |fioffense, which became effective on August 15, 2001, after the present offense, is applicable under the Mayeux ruling. The applicable sentencing provision following the 2001 change of law is set forth under La. R.S. 14:98(D)(1)(a), is as follows:

D. (l)(a) On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.

Accordingly, the sentence imposed for the DWI conviction must be vacated pursuant to the Mayeux ruling.

Conclusion

For the foregoing reasons, the sentences for first degree negligent vehicular injuring are affirmed. The sentence imposed for the DWI offense is vacated and the matter is remanded for further proceedings in accordance with State v. Mayeux, supra.

CONVICTIONS AFFIRMED; SENTENCE FOR DWI VACATED; REMANDED.


text:
    D.M. KENNEDY, Jr., Plaintiff-Appellant, v. Rosanne KENNEDY, Defendant-Appellee.
    No. 36,974-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Mason Oswalt, Monroe, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

This community property partition dispute arises from the parties’ compromise recited in open court during the trial. Before the later rendition of the consent judgment, appellant claimed an error in his understanding of the settlement’s disposition of one of the assets and contested the imposition of interest on his equalizing payment under the terms of the compromise. The trial court rejected appellant’s claims and upheld the compromise. A consent judgment expressing the settlement was rendered subject to appellant’s right to appeal. We affirm the trial court’s upholding of the compromise and the consent judgment, but amend to adjust the rate of interest owed on appellant’s equalizing payment to the contractual rate stipulated in the parties’ agreement.

Facts

After obtaining their divorce, D.M. Kennedy, Jr. and Rosanne Kennedy proceeded to trial to partition their community property in October, 2001. During the trial, in open court, the parties informed the trial court that they had settled the great majority of their dispute. From the parties’ stipulations, Mr. Kennedy was to receive property that exceeded the value of the property received by Mrs. Kennedy. Therefore, Mr. Kennedy would make three equalizing payments to Mrs. Kennedy to make up the difference. The value of one piece of property, however, the 1103 Warren Drive property (the “Warren Drive Property”), was not finally determined by the settlement. Instead, the parties in their compromise agreed to submit conflicting property appraisals for that property to the court.

li>Mr. Kennedy’s first equalizing payment in the amount of $57,000 was made at the time of the settlement on October 11, 2001. According to the compromise, the second equalizing payment in the amount of $151,692.48 was to be made within 90 days, by January 10, 2002. The amount of the third equalizing payment was tied to one-half of the value of the Warren Drive Property and would be paid to Mrs. Kennedy when the trial court determined the property’s value. In exchange, Mr. Kennedy was to obtain full ownership of the Warren Drive Property.

At the time of the parties’ compromise in open court, they utilized Mrs. Kennedy’s detailed descriptive list of community property and accounting claims, which was marked as joint Exhibit J-2 for the compromise. Section 1(A)(2) of Exhibit J-2 listed rental properties as items “a” through “x.” Item “c” described the Warren Drive Property. At trial, before reaching the compromise, Mr. Kennedy submitted an appraisal by Richard Moore estimating the gross value of twenty-three rental properties at $453,000 and the net value at $385,000. Notably, Moore’s appraisal omitted item “c” (the Warren Drive Property) from the $453,000 valuation. Beneath the rental property section, the next section of Exhibit J-2, entitled “Mobile Home Park at 1103 Warren Drive,” included the disputed property. Mrs. Kennedy valued this parcel at $263,000 in her detailed descriptive list.

From the above description of the properties, it is seen that the Warren Drive Property had a confusing dual listing on Mrs. Kennedy’s detailed descriptive list which eventually became the critical Exhibit J-2 for the compromise. This dual listing was not specifically addressed by the lacolloquy between the court and respective counsel in the discussion of the compromise:

Mr. Kneipp: And I’m going from the beginning of the second amended sworn detailed descriptive list. [J-2] Under the immovable category, the former matrimonial domicile, we’ve agreed to a value of a hundred and twenty-five thousand dollars ($125,-000). And that will be allocated ... to Ms. Rosanne Kennedy....
Mr. Kneipp: The rental properties that’s (sic) listed as item number 2, “a” through “x”, we have agreed to a value of four hundred and twenty-eight thousand dollars ($428,000). And ... those assets will be allocated to Mr. D.M. Kennedy.
Mr. Oswalt: That’s correct. And he will also not have to account any further from today for any rent income received off of those properties. Is that correct....
Mr. Kneipp: That’s correct. Going on to the second page, but continuing on immovable (sic), the mobile home park is the one item that we have not agreed as to a value. However, we have agreed that Robert Horton will be permitted to conduct a full appraisal. A.J. Burns—
The Court: Okay. Now I’m assuming that by full appraisal he will be using more than one approach perhaps?
Mr. Kneipp: That’s correct. And A.J. Burns will be commissioned to ... update his earlier appraisal, but do a full appraisal.
Mr. Oswalt: Correct.
Mr. Kneipp: You’ll have two ... appraisals ....

The compromise reached in open court was concluded, and the parties subsequently filed two appraisals of the Warren Drive Property. The tract of land contains approximately 3.109 acres and consists of a mobile home |4park with 28 mobile home lots plus another lot improved with a three-bedroom house, which the Kennedys also leased.

The record and the minutes reflect that besides the two competing appraisals, no other evidence, argument or briefs were formally presented to the court prior to its ruling on the Warren Drive Property. Nevertheless, the trial court knew of Mr. Kennedy’s argument, now presented in this appeal, regarding the problem of the dual listing for the Warren Drive Property in Exhibit J-2, as shown by the following excerpt from the trial court’s ruling:

It should be noted that counsel for Mr. Kennedy takes the position that the residence located within the mobile home park at 1103 Warren Drive has already been allocated to Mr. Kennedy, and as such should be excluded from the Court’s consideration of the appraised value of the mobile home park. In support of this contention, Kennedy makes reference to the stipulation entered into in open Court on October 11, 2001, where in regard to the second amended sworn detailed descriptive list of Rosanne Kennedy, which list was denominated as Exhibit “J-2” under the category of “Rental Properties,” Item c is the entry “1103 Warren Drive.” The total value agreed upon by the parties for the rental properties was some $428,000, as can be seen by reference to the transcript of the stipulation. However, after having reviewed the record and listened to the argument of counsel, it is clear to this writer that the $428,000 figure for rental properties represents a figure agreed upon mutually by the parties for those rental structures which were previously appraised by Monroe Appraiser Richard K. Moore. Mr. Moore’s appraisal, which is contained in the record as Exhibit “J-l,” lists only the numerous rental houses formerly owned by the parties in community. Therefore, the rent house at 1103 Warren Drive, together with all 28 lots, must be properly considered by the Court in determining valuation of what has been heretofore referred to as the “Warren Drive Mobile Home Park.”

The court then fixed the value of the Warren Drive Property at $229,500.

The trial court rendered a partial judgment pertaining to the contested value of the Warren Drive Property on April 22, 2002 (hereinafter “Partial | ¡Judgment”), and subsequently, on September 5, 2002, rendered a consent judgment (hereinafter “Consent Judgment”) embodying the terms of the parties’ October 11, 2001 compromise. By the time of the Consent Judgment, the trial court was advised that the second equalizing payment for $151,692.48 remained unsatisfied during the initial 90-day period after the compromise and was still unpaid. The court therefore fixed interest on that payment at three percent (3%) from October 11, 2001 until January 10, 2002, and, thereafter, at the legal rate of interest until paid.

Significantly, the Consent Judgment reserved to Mr. Kennedy the right to appeal (i) “the issue of whether the rent house located at 1103 Warren Drive is to be considered in the value of the mobile home park,” and (ii) “the court’s ruling that interest is due on the equalizing payment and accounting owed by him to Rosanne Kennedy.” Those issues are now the subject of this appeal.

Discussion

A compromise reached by the parties in the course of their litigation is addressed in Civil Code Article 3071, as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

1 (¡Compromise cannot be attacked on account of any error in law or any lesion, but an error in calculation may always be corrected. La. C.C. art. 3078. The compromise may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. La. C.C. art. 3079.

Reviewing our law pertaining to the interpretation of a disputed compromise, the Louisiana Supreme Court, in Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 748, stated:

... LSA-C.C. Art. 3071 further provides that a compromise is a written contract. It follows that the compromise instrument is the law between the parties and must be interpreted according to the parties’ true intent, [citations omitted] It also follows that the compromise instrument is governed by the same general rules of construction applicable to contracts.
LSA-C.C. Art.2046 sets forth a general rule of construction, providing that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” LSA-C.C. Art.2046 (emphasis supplied). The underscored word “further” in this article signifies the true nature of contractual interpretation. The determination that the language contained in a contract is clear and explicit, in itself, involves an interpretive process. For that reason, LSA-C.C. Art.2046 emphasizes that the process involves no further interpretation, as opposed to ho interpretation at all. [Citations omitted] LSA-C.C. Art. 3073 contains a supplementary rule of construction governing the interpretation of the operative language, and the determination of the scope, of a compromise agreement. LSA-C.C. Art. 3073 provides that a compromise agreement extends only to those matters that the parties expressly intended to settle and that the scope of the transaction cannot be extended by implication, [citations omitted] More precisely, LSA-C.C. Art. 3073 set forth the following four factors to be considered in determining the scope of a compromise instrument: ■
[1] Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties,
|7[2] whether it be explained in a general or particular manner,
[3] unless it be the necessary consequence of what is expressed; and
[4] they do not extend to differences which the parties never intended to include in them.
*. * *
In applying the rule of construction set forth in LSA-C.C. Art. 3073, courts are guided by the general principle “that the contract must be construed as a whole and in light of attending events and circumstances.” [citations omitted] LSA-C.C. Art.2050. Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.

In this case, in accordance with Article 3071, the parties recited their compromise in open court, incorporating by reference the written document, Exhibit J-2, which contained the dual listing of the Warren Drive Property. The substance of the oral compromise was later memorialized in the Consent Judgment. In rendering that judgment, the trial court interpreted the parties’ open court compromise as having dealt with the Warren Drive Property in its entirety, granting ownership of the whole 3.109-acre tract and the three-bedroom home to Mr. Kennedy in exchange for one-half of the disputed value of the property received by Mrs. Kennedy. The Warren Drive Property value was to be resolved by further litigation and was the only issue left unsettled by the compromise.

Mr. Kennedy argues that the rental house located on a portion of the Warren Drive Property was included in the parties’ compromise and Consent Judgment, and that he received ownership of that dwelling along with the other rental properties valued by the parties in their compromise at $428,000. We view this argument as an assertion of error concerning apportion of the disputed community property which was the subject of the compromise/partition. Mr. Kennedy asserts that the error was caused by Mrs. Kennedy’s misdeseription of the rental properties included on her descriptive list, Exhibit J-2. While Mr. Kennedy urges that this court should simply revise the Consent Judgment in his favor and lower the award to Mrs. Kennedy rendered by the Partial Judgment, the alleged error would equally vitiate both parties’ consent to the compromise, and effectively rescind the entire contract pursuant to Civil Code Article 3079. Mrs. Kennedy likewise would be deemed to have been in error because of the ambiguous inclusion of the Warren Drive Property in two separate sections of Exhibit J-2. Nevertheless, from our review of the parties’ open court agreement and the record, we agree with the trial court that no such error in the parties’ intent occurred.

The record reflects that in the trial of the partition action before the compromise, Mr. Kennedy filed into evidence an appraisal of twenty-three rental properties. Those appraised properties were the same properties listed as rental properties “a” through “x” on Mrs. Kennedy’s detailed descriptive list, with the exception of item “c,” the Warren Drive Property. Mrs. Kennedy’s position during the litigation, as reflected on her detailed descriptive list, was that the rental properties were worth $453,000, the gross value of the properties as estimated in the Moore appraisal. The appraisal assigned a lower net value for the properties after excluding the “total cost to sell” the properties. Mr. Kennedy was asserting this lower 13value of $385,000. The parties eventually compromised their positions and settled for $428,000 as the value of the rental properties.

The trial court appropriately relied on the Moore appraisal as evidence that Mr. Kennedy could not be in error in the parties’ compromise over the twenty-three rental properties. Additionally, the court could consider the $263,000 which Mrs. Kennedy’s detailed descriptive list asserted for the separate item she listed as the “Mobile Home Park at 1103 Warren Drive.” This figure coincides with the highest appraised value for the entirety of the disputed property, including the three-bedroom house valued separately at approximately $60,000. Therefore, despite the dual listing for the Warren Drive Property on Exhibit J-2, the values which Mrs. Kennedy asserted in the litigation demonstrated that the three-bedroom house was included and valued with the adjacent trailer park lots, not with her listing of the rental properties.

In its determination of the parties’ intent, the trial court also indicated that it relied on the record of the trial which preceded the compromise. Thus, at trial, further clarification may have been given regarding Mrs. Kennedy’s confused listing of the Warren Drive Property. The trial transcript prior to the compromise is not in the record. When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant. Gay v. C & D of Shreveport, 25,319 (La.App.2d Cir.10/26/94), 645 So.2d 280.

From all of the surrounding circumstances of the litigation, the trial court, which accepted the parties’ oral compromise, was in the best position |into interpret their intent and to express their contract in the Consent Judgment. The trial court found that there was no error regarding the parties’ understanding of the status of the Warren Drive Property and its three-bedroom house and enforced their contract in the Consent Judgment. We find no error in that ruling.

The next issue concerns the trial court’s judgment ordering that legal interest be paid on the equalizing payments from January 10, 2002, until paid. From our review of the oral compromise, the only mention of the interest to be paid on the amounts owed by Mr. Kennedy are the following statements by counsel for Mrs. Kennedy and the trial court:

Mr. Kneipp: “And Mr. Kennedy will owe three percent interest on one-half of those [equalizing payment amounts] from the date the petition was filed until the payment”
* * *
The Court: “Mr. Kennedy will make an accounting of one-half of that sum and pay interest at three percent on that sum from the date the petition was ... for partition of the community was filed until it is paid.”

Our examination of Exhibit J-2, which served as the written accounting statement for the compromise, indicates that the parties also made a notation in the margin for “+ interest,” “3%,” under the section of the exhibit listing the amounts of various monies previously received by Mr. Kennedy for which his accounting was owed. These amounts were included in the computation of a second equalizing payment which Mr. Kennedy was to |nhave made within 90 days following the October 11, 2001 compromise. That equalizing payment was eventually determined and stipulated to be $151,692.48. Mr. Kennedy does not now dispute the fact that $151,692.48 became owed by him on January 10, 2002, nor does he dispute that interest is owed on that amount for the 90 days between October 11, 2001 and the due date. He argues, however, that no interest was owed after January 10, 2002, and that the trial court erred in adding legal interest on the amount of the equalizing payments owed from January 10, 2002 until paid.

The compromise of October 11, 2001 was a contract. Mrs. Kennedy agreed that after that date,-Mr. Kennedy would own the rental properties and trailer park and receive all rents generated from those properties. Mr. Kennedy agreed that he would owe her two debts, represented by two remaining equalizing payments that would become due in 2002. Mr. Kennedy concedes that he was initially to pay interest on those amounts at 3%, but he insists that such interest was stipulated for only 90 days. As shown above by the quoted testimony during the oral compromise, the only stipulations concerning the 3% interest expressed that such contractual rate would be owed “until it is paid.”

Civil Code Article 2000 provides as follows:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by Article 2924.

The legal rate of interest in 2002 was 5.75%. La. R.S. 13:4202; Vol. 50, No. 4, La. B.J. 266 (2002). Since the parties in their compromise provided | ^for the contractual rate of 3%, the legal interest rate stated in the judgment was in error. The contractual rate of interest was not just owed until the due date, it was owed until paid.

Conclusion

The Consent Judgment is hereby amended to provide for interest at the rate of 3 percent per annum on the equalizing payments owed by Mr. Kennedy from October 11, 2001, until paid. The judgment as amended is affirmed. Costs of this appeal are assessed to appellant.

JUDGMENT AMENDED AND AS AMENDED, AFFIRMED.

      . Interest in the amount of 3% from the date of the petition through October 11, 2001 was included in the computation of the total of all the accounting and equalizing amounts owed by Mr. Kennedy. That interest amount is not disputed by Mr. Kennedy.