text:
    STATE of Louisiana v. Craig S. PARENT.
    No. 02-KA-835.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff-Appel-lee.
    Craig S. Parent, In Proper Person, Angola, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   j .EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a seven count bill of information charging defendant, Craig Parent, with unauthorized entry of an inhabited dwelling occurring on February 19-20, 2000, LSA-R.S. 14:62.3 (count 2), unauthorized use of a motor vehicle occurring on February 19-20, 2000, LSA-R.S. 14:68.4 (count 3), simple burglary occurring on March 23, 2000, LSA-R.S. 14:62 (count 5), extortion occurring on March 18, 2000, LSA-R.S. 14:66 (count 6), and three counts of intimidating a witness occurring on November 10, 1999, February 19-20, 2000, and April 2-3, 2000, LSA-R.S. 14:129.1 (counts 1, 4, and 7).

The charges proceeded to trial before a twelve person jury which found defendant guilty as charged of all counts. The trial court sentenced defendant to five years at hard labor on each of counts 1,4, and 7, six years at hard labor on count 2, ten years at hard labor on count 3, twelve years at hard labor on count 5, and fifteen years at hard labor on count 6. The court ordered that all sentences be served consecutively to each other.

The state thereafter filed a multiple offender bill of information alleging defendant to be a third felony offender. Defendant denied the allegations, and after a hearing, the court found defendant to be a third felony offender. The court | .vacated the sentence as to count 6 of the bill of information, and imposed an enhanced sentence of thirty years at hard labor. The court ordered that the sentence run consecutively to the sentences previously imposed, and that the sentence be served without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

Geralyn Lambert met defendant, Craig Parent, in January of 1999 when a coworker of Ms. Lambert, introduced them. Defendant worked as a building contractor, and Ms. Lambert asked him to inspect a house in New Orleans she wanted to buy. After looking at the house, defendant suggested that she look for something in a safer neighborhood. Defendant offered to help her find a suitable house, and the two spent a great deal of time looking at real estate together. With defendant’s help, Ms. Lambert found a suitable house in Metairie. Ms. Lambert continued to see defendant after she moved into the new house, and the two soon became romantically involved.

Defendant suggested to Ms. Lambert that she convert her home’s detached garage into an apartment that she could lease to earn extra money. He told her the cost would be five thousand dollars, and that if they worked together, they could finish the job within two weeks. Pursuant to defendant’s persuasion, Ms. Lambert applied for a $25,000 loan which was finalized in July of 1999.

Ms. Lambert made incremental disbursements of cash to defendant as he incurred expenses on the project. Ms. Lambert soon became concerned about time and cost overruns. Defendant made excuses for the disappearance of building materials. He often asked her to pay the same bills more than once. When she questioned defendant about the extra money he requested, or asked for receipts for 14materials, he became furious. He used abusive language with her. Ms. Lambert testified that she became frightened of defendant. Also, in late July of 1999, an incident occurred between defendant and one of Ms. Lambert’s neighbors, which caused Ms. Lambert to become even more fearful of defendant.

Ms. Lambert testified that she now wanted to end her connection with defendant as quickly as possible. The building project was still unfinished, and she urged defendant to complete it. Defendant responded that he could finish the job more quickly if she allowed him to stay at her house. He began to work into the night, and to sleep at Ms. Lambert’s house. Ms. Lambert did not consider this a permanent arrangement, and defendant brought with him only a bag of personal belongings.

On November 2, 1999, defendant arrived at her house and demanded a great deal of money. The two began to argue. Ms. Lambert received a telephone call from her friend and co-worker, Melissa Barbier. Defendant flew into a rage when she answered the call, and took the telephone away from her. Defendant insisted that Ms. Lambert give him checks written to cash, then ordered her to write checks to some of the contract workers she knew had already been paid. When she refused, he grabbed her by the back of the neck and the arm, saying, “You know what I’m capable of. You’re going to write those checks.” He then called her a b* * *h and m* * * * * .p * * * *. Ms. Lambert testified that she believed defendant intended to seriously injure or kill her. She ran out of the house and stood in the street until Ms. Barbier arrived. Ms. Bar-bier advised her to call police. Ms. Lambert did not want to involve police, because defendant had told her that he had friends in law enforcement, and they would let him know if she made a report. At her friend’s insistence, Ms. Lambert reluctantly called police to report the incident.

Out of fear of defendant, Ms. Lambert and her young son, Luke, began to stay at the Harahan home of her mother, Josephine Blanco. Ms. Blanco testified 15that defendant repeatedly telephoned her home, threatening to harm her, her daughter, and her grandson. Ms. Blanco was able to recognize defendant’s voice, and saw his telephone number on her caller I.D. device. Ms. Lambert would become frantic with fear when defendant called, and would promise not to call police if defendant would stop calling her. Ms. Lambert testified that when defendant called her at her mother’s house, he threatened to set fire to her house, and to kill her and her son in the process. He also told her he would drown her in her mother’s swimming pool. He threatened to call her son’s father and tell him she was an unfit mother.

Officer Chris Graham of the Harahan Police Department testified that on November 10, 1999, he reported to Ms. Blan-co’s residence on a complaint of harassing telephone calls. Graham stated that Ms. Lambert was very shaken. She told him she had received numerous telephone calls from defendant during which he threatened to do her serious bodily harm or to kill her. While Graham was taking Ms. Lambert’s statement, there were several calls from telephone number (504) 616-3554. With each call, Ms. Lambert became more frantic. She told the officer, “This is him. This is his phone number.”

At trial, defendant denied having threatened Ms. Lambert on November 10, 1999. He further denied having threatened to burn down Ms. Lambert’s house.

Shortly after the events of November 10,1999, defendant contacted Ms. Lambert several times to apologize. He said he did not mean what he had said, and that his actions had been prompted by his fear of losing her. Eventually, defendant regained her trust, and she agreed to go on a vacation trip with him to Lake Tahoe, although she insisted upon paying her own expenses. In December of 1999, while in Lake Tahoe, Ms. Lambert resolved to end the relationship permanently. She informed defendant of her decision; however, she relented when defendant called Lher in January of 2000, and told her he was ill due to alcohol abuse, and had only four to five months to live. She did not resume an intimate relationship with him, but she continued to speak to him by telephone.

On February 19, 2000, Ms. Lambert was again living at her own house. Her friend, Darlene Bennett, was visiting her from out of town. The two women returned to the house that night between 8:30 and 9:00 p.m. and observed defendant’s truck parked on the side of the house. Ms. Lambert asked the woman seated in the truck the whereabouts of defendant. The woman responded that defendant had gone into the house. Ms. Lambert testified that defendant was not supposed to be inside of her house, and that she was angry. When Ms. Lambert and Ms. Bennett entered the house through the back door, they could hear someone exiting through the front door. They went back outside and saw that defendant was returning to his truck. Ms. Lambert asked him what he was doing at her house, and he did not respond. She attempted to hand him a basket of items he had left at the house, but he would not take it. He left the premises in his truck.

Ms. Lambert was upset and frightened by the fact that defendant had been in her house without permission. After locking the doors and covering the windows, Ms. Lambert and Ms. Bennett slept in the same bedroom. Some time later, a loud banging noise woke the women. Ms. Lambert testified that she heard defendant’s voice, and that she and Ms. Bennett were frightened. When Ms. Lambert did not open the door, the banging grew louder. Ms. Lambert testified that defendant began to curse and make threats against her. Defendant eventually walked away from the house, but returned a short time later.

This time he threw himself against the back door so forcefully that the wood surrounding the deadbolt began to break. Ms. .Lambert felt that if he continued in this manner, he would kill her and Ms. Bennett. She stood in the kitchen and asked defendant to calm down so they could talk. She opened the door and started to go 17outside. Defendant pushed her back inside the house and into the kitchen counter. Defendant raged wildly, punching the kitchen cabinets, countertop, and refrigerator until his hands were bloody. He knocked over a large water cooler, spilling its contents onto the kitchen floor. Ms. Lambert testified that defendant threatened to kill her. Ms. Bennett telephoned police. Defendant demanded money and the keys to Ms. Lambert’s Jaguar automobile. When she refused, defendant took the keys away from Ms. Lambert, left the house, and took her car.

Sergeant Brady Buckley of the Jefferson Parish Sheriffs Office testified that at 12:02 a.m. on February 20, 2000, he and Deputy Chris Smith responded to a complaint of domestic violence. He observed that Ms. Lambert was extremely upset and was crying and shaking. He attempted to interview Ms. Lambert, but she was not cooperative. She told him she was afraid. Buckley interviewed Ms. Bennett, who recounted defendant’s violent behavior and the fact that he had taken Ms. Lambert’s car.

While Buckley was at Ms. Lambert’s house, the telephone rang continuously. Buckley attempted to answer the calls, but Ms. Lambert would not allow it. Instead, Ms. Lambert spoke to the caller, assuring him she was not telling the police anything. Ms. Lambert testified that defendant described in lurid detail how he would kill her and Luke. Defendant said he would cut her throat in front of Luke, then leave him in the house with her rotting body.

Ms. Lambert refused to press charges against him at that time. Nevertheless, an officer from the Crime Scene Division photographed the damage to her house. Upon completing his investigation, Buckley drove Ms. Bennett to the airport in Ken-ner, and dropped Ms. Lambert off at Melissa Barbier’s house. After Ms. Lambert and Ms. Bennett left the house, Mr. La-naux, a neighbor who had witnessed the earlier incident, saw defendant return. Defendant used a piece of | Rwood to break a window. Mr. Lanaux also saw defendant leave Ms. Lambert’s car there. He reported this to police. After dropping off the two women, Sergeant Buckley returned to the house to investigate the additional damage.

Regarding the February charges, defendant testified that he called Ms. Lambert three times on February 19 and 20, 2000. He didHiot threaten or harass her. Rather, he told her that he loved her. He also testified that he had the authority to enter Ms. Lambert’s house, because he resided there between July of 1999 and March of 2000.

Ms. Lambert further testified that, on March 18, 2000, defendant called her several times at her mother’s house and demanded money. He used obscenities, and told her “You better meet me and give me whatever money you have.” Defendant threatened that, if she did not give him the money, he would break her legs and Luke’s legs, and that he would hurt other members of her family.

Officer Troy Rigby of the Harahan Police Department testified that on March 18, 2000, he and Officer Chris Graham responded to a complaint of harassing telephone calls. When he arrived, he observed that Ms. Lambert was frightened to the point of being frantic. She told him Craig Parent had called her ten times that day demanding money. Defendant told her that if he did not get the money, he was coming to get her. Defendant threatened to break down the door and break her legs, and said he would do the same to anyone who was with her.

Rigby testified that Ms. Lambert did not wish to press charges, as she was frightened of retribution from defendant. However, the officer met with Ms. Lambert at the Harahan Police Department on March 29, 2000, at which time he took a formal statement from her.

Defendant testified that, on March 18, 2000, he and Ms. Lambert argued on the telephone because she refused to move back into her house and live with him. |n Defendant told Ms. Lambert that if she did not repay money she owed him, he would place a lien on her house. She responded that if he did so, she would make sure he went to jail for the rest of his life.

Another incident occurred on March 23, 2000. On that day, Mr. Lanaux saw defendant go into Ms. Lambert’s garage, and leave carrying property. Mr. Lanaux informed Ms. Lambert of what he had seen. She called police on March 28, 2000, to report the incident.

Deputy Brian Schuyler of the Jefferson Parish Sheriffs Office testified that he responded to the burglary call on March 28, 2000. Ms. Lambert reported to him that her neighbor, Mr. Lanaux, had seen defendant remove items from her garage. She showed the officer a lock on the garage that had been taken apart, and a window through which she believed defendant had gained entry. Ms. Lambert told Schuyler that defendant did not have her permission to enter the garage, or to take items stored there. She told the officer she wished to pursue charges against defendant. One of the items taken from the garage was an exercise bike that Ms. Lambert said defendant had given her as a gift.

Defendant testified that he entered the garage to retrieve some items belonging to him, including a hammer, a nail bag, and the exercise bike a friend had given him as a gift. He called Ms. Lambert first to notify her, and she told him he could pick up his belongings. She told him she did not want him to take the exercise bike, and he told her he was entitled to it, since it belonged to him.

On March 29, 2000, Deputy Schuyler took Mr. Lanaux’s statement. During the interview, a man in a pickup truck drove past them. Mr. Lanaux told Schuyler and other officers at the scene that the driver of the truck was defendant. The officers followed defendant, stopped him, and placed him under arrest.

On March 29, Schuyler also took a statement from Ms. Lambert regarding defendant’s ongoing harassing behavior toward her. Ms. Lambert stated that on |inthat day alone, defendant had made 18 threatening telephone calls to her. On March 30, 2000, Ms. Lambert obtained a Louisiana Uniform Abuse Prevention Order, barring defendant from calling or contacting her or her family in any way.

Despite his arrest and the subsequent protective order, defendant made several calls to Ms. Lambert at her mother’s home on April 2 and 3, 2000. Ms. Lambert testified that defendant said he was going to kill her and her son if she went forward with the charges against him. Defendant threatened to dismember Luke.

Ms. Blanco also testified that defendant called her home several times on April 2-3, 2000. If no one answered the calls, defendant left recorded messages. Defendant said, “You know you think you’re scared now. You don’t know what scared is.” Defendant also told Ms. Blanco, “I’m coming after her. You tell her I’m coming to get her.” Ms. Blanco heard Ms. Lambert tell defendant to stop threatening her family. She assured him that she would stop making reports to the police if he would stop calling. Ms. Blanco testified that the caller I.D. feature on her telephone showed the calls came from defendant’s cellular telephone, a pay telephone, and the home of someone named Melvin Fau-cheaux.

Ms. Lambert reported the calls to the Harahan Police Department. When Captain Blanco arrived, Ms. Lambert appeared to be nervous and upset. She reported that she had received seven to ten threatening telephone calls, and that defendant had threatened her in a like manner numerous times in the past.

Regarding the April incidents, defendant testified that he stayed at Melvin Fau-cheaux’s house April 2-4, 2000, but denied that he called Ms. Lambert during that time.

After listening to this evidence which was presented at trial, the jury found defendant guilty as charged of all seven counts.

| -i,ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues his right of appeal is compromised because the record is incomplete. Specifically, he complains about the trial court’s failure to record a bench conference which occurred during his testimony and which dealt with the relevance of state’s exhibit number 59, documents pertaining to his divorce from Dawn Casey. Defendant is also complaining about the failure to record bench conferences relating to objections made during the rebuttal testimony of his ex-wife, Dawn Casey, pertaining to the introduction of the diary which she kept during their marriage. Defendant contends that during the unrecorded bench conferences, counsel objected to the testimony of Dawn Casey based on the fact that it contained privileged information as well as inadmissible other crimes evidence. He asserts that the failure to record these bench conferences may prohibit consideration on appeal of the merits of his assignments of error relating to this testimony.

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 586. On the other hand, inconsequential omissions or slight inaccuracies do not require reversal. An incomplete record may nonetheless be adequate for appellate review. Finally, a defendant is not entitled to relief in this situation absent a showing of prejudice based on the missing portions of the transcript. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).

In State v. Hoffman, 768 So.2d at 586-587, the Louisiana Supreme Court stated:

112This court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La. Code Crim. Proc. Art. 843. Still, art. 843’s description of “objections” and “arguments” will normally apply only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke art. 843. Similarly, Art. I § 19’s command to record “evidence” does not encompass bench conferences, at least not ones that do not satisfy the materiality requirements of La.Code Crim. Proc. art. 848. (Citations omitted).

In the present case, defendant has in no way been prejudiced by the failure to record the bench conferences. Defendant has raised assignments of error on appeal relating to the introduction of the divorce documents as well as the testimony of his ex-wife. This court, in the pertinent assignments of error which follow, will address those issues.

After filing his original pro se brief, defendant filed a document entitled “Supplemental Brief on Behalf of Craig Parent, Appellant, Pro-se.” In it he complains that his right of appeal is prejudiced because the appeal record does not contain closing arguments of counsel, or an exchange in which the jury requested additional instructions from the judge. Without being specific, defendant argues that the missing portions of the transcript contain reversible error.

Defendant does not frame the document as a motion to supplement the record, although it appears his intention is to have the appeal record supplemented with the transcripts of closing arguments and additional jury instructions. Even if defendant’s supplemental filing is considered to be a motion to supplement the record, he is not entitled to relief. The transcripts cited by defendant are unrelated to any of defendant’s assignments of error. LSA-C.Cr.P. art. 914.1; State v. Williams, 00-0011 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, 520, fn. 1, writ denied, 01-1813 (La.5/10/02), 815 So.2d 832.

Based on the foregoing discussion, we find no merit to the arguments raised 113by defendant in his first assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues that the trial court erred in admitting state’s exhibit number 59, in globo, documents pertaining to his divorce from Dawn Casey. He specifically asserts that this exhibit contained inadmissible “other crimes” evidence in the form of a diary kept by Ms. Casey. Defendant contends that this “other crimes” evidence was irrelevant to the charges at issue, and further that the state failed to provide proper notice of its intention to produce this evidence.

An examination of this exhibit shows that it contains a court judgment ordering that the parties to the divorce be evaluated by a psychiatrist and setting out visitation and child support schedules. It also contains an evaluation report by the court appointed psychiatrist. However, it does not, as defendant asserts, contain Ms. Casey’s diary. The diary entries of which defendant complains were admitted as state’s exhibit number 62A during Ms. Casey’s rebuttal testimony. In a subsequent assignment of error, we have addressed the issue of whether the trial court properly allowed the evidence relating to Ms. Casey’s diary. Accordingly, this assigned error is without merit.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

Defendant argues that the trial court erred in that it failed to advise state rebuttal witness Dawn Casey that she might take advantage of the spousal privilege, and thereby decline to testify against him. Defendant further complains that the court erred in allowing Ms. Casey to testify at trial.

The Louisiana Code of Evidence provides for both confidentiality and testimonial privileges for married persons. LSA-C.E. arts. 504-505. These are two distinct privileges. With some limited exceptions, each spouse has a privilege |uduring and after a marriage to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they are husband and wife. LSA-C.E. art. 504B. A communication is considered “confidential” “if it is made privately and is not intended for further disclosure unless such disclosure is itself privileged.” LSA-C.E. art. 504A. Additionally, witness spouse has a privilege, during the marriage, not to testify against the other spouse in a criminal case. LSA-C.E. art. 505. State v. Sarrio, 01-543 (La.App. 5 Cir. 11/27/01), 803 So.2d 212, 222.

A privilege may be waived if the person upon whom the privilege has been conferred voluntarily discloses any significant part of the privileged matter. LSA-C.E. art. 502A. If a spouse waives the right to testimonial privilege, the waiver gives the spouse the right to testify against the other spouse as to non-privileged evidence. State v. Taylor, 94-0696 (La.9/6/94), 642 So.2d 160, 164; State v. Bennett, 357 So.2d 1136, 1139-1140 (La.1978); State v. Sarrio, supra.

In this case, the testimonial privilege did not apply to Ms. Casey, and thus, a waiver was unnecessary. LSA-C.E. art. 505 provides that “[t]his privilege terminates upon the annulment of the marriage, legal separation, or divorce of the spouses.”

The privilege for confidential communications does apply even after the marriage is terminated, and may be invoked by either spouse. LSA-C.E. art. 504B. In the present case, however, the litany of threats and abuse about which Ms. Casey testified did not include anything that could reasonably be considered a confidential communication. Accordingly, these two assigned errors are likewise without merit.

ASSIGNMENTS OF ERROR NUMBERS FIVE, SIX, AND SEVEN

By these assignments, defendant argues the trial court erred in allowing the state to introduce improper rebuttal testimony by Dawn Casey, Mel Robarts and |1KKeith Prejean. Defendant complains that Ms. Casey’s testimony constituted inadmissible “other crimes” evidence, that the testimony adduced from Robarts was not relevant to the charges against him, and that the state improperly held Prejean’s testimony for rebuttal when it should have presented it in its case in chief. Defendant further argues that the testimony of these witnesses exceeded the scope of proper rebuttal evidence.

LSA-C.E. art. 611E provides, “The plaintiff in a civil case and the state in a criminal prosecution shall have the right to rebut evidence adduced by their opponents.” Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939. The issue of what constitutes valid and admissible rebuttal evidence lies within the sound discretion of the trial court. State v. Huizar, 414 So.2d 741, 749 (La.1982). The trial court’s determination will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining an undue advantage. State v. Amato, 96-0606 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, 987, writs denied, 97-2626 (La.2/20/98), 709 So.2d 772 and 97-2644 (La.2/20/98), 709 So.2d 772.

In the present case, Ms. Casey, defendant’s ex-wife, testified that she had kept a diary during 1991 and 1992 to maintain a record of defendant’s physical and emotional mistreatment of her. Her diary entries (state’s exhibit 62A) recounted how defendant had threatened to kill her and her family, to kidnap their son, to do harm to her divorce attorney and his family, and to burn down her parents’ business. She recorded instances in which defendant telephoned her repeatedly and harassed her at work. According to Ms. Casey, defendant routinely flew into fits of rage and caused damage to her house.

1B Although LSA-C.E. art. 404 provides that “other crimes” evidence is not generally admissible, evidence of “other crimes” may be used by the state in rebuttal if the defendant, through his own testimony, makes it relevant. State v. Banks, 307 So.2d 594, 599 (La.1975), State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 23, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). The notice requirements of State v. Prieur, 277 So.2d 126 (La.1973) do not apply to “other crimes” evidence offered on rebuttal. State v. Silguero, 608 So.2d 627, 630 (La.1992).

At trial, defendant stated that he did not threaten Ms. Lambert, nor did he make harassing telephone calls. He also testified that he has never threatened to kill anyone. He said he never punched the walls of the house while he was married to Ms. Casey in order to intimidate her. Defendant denied having threatened to kill Ms. Casey, her family, or her lawyer. He said he did not threaten to burn down the business owned by Ms. Casey’s family. This testimony by defendant raised issues which the state was entitled to rebut through Ms. Casey’s testimony. Therefore, we find that the trial judge did not err in allowing this rebuttal evidence.

Defendant also complains about the rebuttal testimony of Mel Robarts. Mr. Roberts testified that he hired defendant to construct his family’s home. Although defendant drew more than $60,000 from Mr. Robarts’ building account, he failed to make the proper disbursements to subcontractors. After defendant declared bankruptcy, Mr. Robarts fought the discharge of that debt in bankruptcy court, and was awarded $66,000 in 1997. Thereafter, defendant made harassing telephone calls, telling Mr. Robarts, “You need to watch what you say to me. You don’t want to make me mad. You know, you’ve got a lot to lose on Martin Street.” Defendant implied to Mr. Robarts that he might harm his children. Mr. Robarts recounted an altercation he and defendant had in the Jefferson Parish courthouse in 1996.

117Pefendant argues that Mr. Robarts’ testimony was not valid as rebuttal evidence because it did not contradict any of his own testimony. We find no merit to this argument. Mr. Robarts’ testimony was relevant to refute defendant’s testimony that he did not tell Mr. Robarts “You have a family. You don’t want to get stupid.” Defendant also testified that he did not recall an altercation with Mr. Ro-barts in the courthouse.

Defendant also complains about Mr. Prejean’s testimony which had to do with defendant’s offer to pay him to kill Ms. Lambert. Defendant complains that the state improperly reserved Prejean’s testimony for rebuttal when it should have been part of the case-in-chief. Defendant further argues that Prejean’s testimony was not relevant to rebut any evidence produced by the defense.

The state may not forego use of “other crimes” evidence in its case-in-chief simply to circumvent Prieur requirements. State v. Silguero, supra. The record does not reveal that the state withheld Mr. Preje-an’s testimony in order to avoid notice requirements. Moreover, Prejean’s testimony served to rebut defendant’s testimony that he would never offer someone money to kill someone.

Based on the foregoing discussion, we find that the trial judge did not err in allowing the rebuttal testimony of these witnesses. These assigned errors are likewise without merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

By this assignment, defendant argues he was prejudiced by the trial court’s denial of his motion to sever offenses for trial. He asserts that the state’s purpose in trying all seven counts in the same proceeding was simply to confuse the jury and to portray him as a bad person.

LSA-C.Cr.P. art. 495.1 provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court |18may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1232, the Louisiana Supreme Court discussed the considerations a trial court must take into account in determining whether to grant a severance:

A motion to sever is addressed to the sound discretion of the trial court, and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. Brooks, 541 So.2d at 804 (citing State v. Williams, 418 So.2d 562, 564 (La.1982)). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Id. (quoting State v. Washington, 386 So.2d 1368, 1371 (La.1980)). However, the fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So.2d 126 (La.1973), in a separate trial on the joined offense, does not per se prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So.2d 1012, 1019 (citing State v. Celestine, 452 So.2d 676 ([La.]1984)). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Brooks, 541 So.2d at 805. .

In the present case, the state presented its case chronologically, and in such a manner as to keep the evidence pertaining to each count relatively simple and distinct. The trial court charged the jury separately as to each offense, explaining in detail what the state was required to prove with respect to each count. Thus, we find it unlikely that the jury was confused by the various counts.

|igIn this assignment, defendant asserts that the three charges of intimidating a witness should have been tried together, and that the extortion count should have been tried separately. However, the seven charges were all part of the same course of conduct. Even if the trial court had allowed severance of the counts in the manner in which defendant suggests, evidence of the burglary, unauthorized entry, and unauthorized use of a motor vehicle would have been admissible as integral parts of the charges of extortion and intimidating a witness. State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708.

Based on the foregoing discussion, we find no error in the trial court’s denial of defendant’s motion to sever the offenses. This assigned error is without merit.

ASSIGNMENTS OF ERROR NUMBERS NINE AND TEN

By these two assignments, defendant complains that the trial court erred in allowing the state to amend its original bill of information to add two additional felony counts, in the absence of defense counsel. Defendant argues that his right to counsel was further violated when the trial court arraigned him on these two additional counts in the absence of counsel.

At that time, Frazilia Wiggins was defendant’s counsel of record. She made an appearance at the beginning of that day’s proceedings, at which time the parties discussed the amendments to the bill. The record reflects that the court then took up other matters. Later that day, when defendant’s case was called for arraignment, attorney Archie Creech informed the court he would be standing in for Ms. Wiggins. Defendant objected to Mr. Creech’s representation, stating that Creech was a friend of the victim in the instant case. The trial judge responded, “Then I cannot permit him to stand in for purposes of this arraignment.” The judge did not appoint another attorney, but proceeded with the arraignment. The judge then informed defendant of the additional charges against him, and asked |anwhether he wished to enter a plea of not guilty as to those counts. Defendant responded that he did.

An accused has a constitutional right to the assistance of counsel at every stage of criminal proceedings. LSA-Const. art. I, § 13; State v. White, 325 So.2d 584, 585 (La.1976). Furthermore, the constitutional right to assistance of counsel provided by the Sixth Amendment to the United States Constitution mandates the right, unless waived, to the assistance of counsel at every stage of the proceedings. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

In the present case, the trial court’s failure to appoint another attorney to represent defendant at his arraignment on the amended bill does not constitute reversible error. Defense counsel was present when the amendments to the bill were discussed. Furthermore, the court fully apprised defendant of the additional charges against him, and defendant pled not guilty. Defendant does not claim that he failed to understand the amended charges, or that the court adversely affected his defense by entering a not guilty plea on his behalf.

We further note that on February 12, 2001, the state amended the bill of information a second time, to add a seventh count. Ms. Wiggins was present at that time, and defendant was arraigned as to the new count. He might have asked the court, through Ms. Wiggins, to arraign him again as to the counts added on November 21, 2000, but he did not do so. Nor did Ms. Wiggins object to the November 21 arraignment. Defendant does not show how he was prejudiced by the trial court’s actions. Accordingly, these assignments of error are without merit.

| ^ASSIGNMENT OF ERROR NUMBER ELEVEN

By this assignment, defendant challenges the sufficiency of the evidence used to convict him of the three counts of intimidating a witness (counts 1,4, and 7), and the single count of extortion (count 6).

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604.

With regards to intimidation of witnesses, LSA-R.S. 14:129.1 provides, in pertinent part, as follows:

No person shall intentionally:
(a) Intimidate or impede, by threat of force or force, or attempt to intimidate or impede, by threat of force or force, a witness with intent to influence his testimony, his reporting of criminal conduct or his appearance at a judicial proceeding;

Defendant argues that the threats he was alleged to have made against Ms. Lambert during telephone conversations on November 10, 1999, February 19-20, 2000, and April 2-3, 2000, do not fall under the provisions of LSA-R.S. 14:129.1, since his actions did not ultimately prevent Ms. Lambert from bringing charges against him and pursuing them in court. Defendant’s argument is misplaced. First, paragraph (a) of the statute explicitly encompasses attempts to impede a witness from reporting criminal conduct, even if they are unsuccessful. Moreover, the evidence was sufficient to show defendant had the specific intent to intimidate Ms. Lambert, and that Ms. Lambert felt threatened by his actions.

| ^Defendant’s pattern of threatening behavior towards Ms. Lambert began at least as early as November 2, 1999, and escalated from there. On November 10, 1999, defendant repeatedly telephoned Ms. Lambert at her mother’s house. He alternately threatened to slit her throat, burn down her house, drown her, and kill her son. In his report regarding those incidents, Captain Blanco wrote, in part, “Mrs. Lambert stated that she believes that if she does anything to get Mr. Parent in trouble, that Mr. Parent would attempt to either kill her or do serious bodily harm to her.” In a written interview attached to the officer’s report, Ms. Lambert is quoted as saying, “I do beheve that if [illegible] get [Craig Parent] in trouble, he will try and kill me.”

On February 19-20, 2000, defendant arrived at Ms. Lambert’s house in the middle of the night. When she would not let him inside, he beat on the door with his hands and feet. He screamed at Ms. Lambert, demanding that she let him into the house. Ms. Lambert was frightened for her safety. She was certain defendant would kill her and her houseguest, Darlene Bennett. When Ms. Lambert’s neighbor, Mr. La-naux, offered to call police, Ms. Lambert begged him not to do so.

Ms. Lambert, fearing defendant would break the lock on her door, opened it with the intention of allowing him inside. She believed she could calm him if she talked to him. Defendant flew into a rage and pushed her against a kitchen counter. He beat on the kitchen cabinets and the refrigerator until his hands were bloody. He told Ms. Lambert he would kill her. Ms. Lambert testified that she knew she was going to die.

Ms. Bennett called police, and when an officer arrived, defendant began to call on the telephone and threaten Ms. Lambert. He said he would slit her throat. Ms. Lambert testified that she refused to press charges against defendant that night. Sergeant Brady Buckley attempted to take a statement from Ms. Lambert, but she was uncooperative. She was extremely upset, and told him she was afraid. Ms. [ 2aLambert testified that on March 28, 2000, she relented, and told police she wished to pursue criminal charges against defendant for his actions on February 19-20. At that point she felt it was the only way to keep herself and her child alive.

On April 2-3, 2000, defendant telephoned the home of Josephine Blanco, Ms. Lambert’s mother, repeatedly. He said, “You know you think you’re scared now. You don’t know what scared is.” Defendant said he was coming after Ms. Lambert. Ms. Blanco testified that both she and Ms. Lambert were terrified. Tommy Huff, who associated with defendant in prison, testified that defendant told him he had routinely made threatening calls to Ms. Lambert from his cellular telephone when he was intoxicated. Defendant also told Huff he called Ms. Lambert’s mother and said, “If she tries to take me away from my kid, I’ll kill her.” Huff and Keith Prejean both testified that defendant offered to pay them to kill Ms. Lambert.

The content of the threats defendant made against Ms. Lambert and her family and friends, together with his apparent attempts to have Ms. Lambert killed, are sufficient to show specific intent to intimidate her and induce her not to pursue criminal charges against him. Ms. Lambert’s testimony, along with the testimony of those who witnessed her behavior, show that she felt threatened and intimidated by defendant’s actions. Accordingly, we find that the state produced sufficient evidence to support defendant’s three convictions of intimidating a witness. See State v. Mayeaux, 570 So.2d 185 (La.App. 5 Cir.1990), writ denied, 575 So.2d 386 (La.1991), in which defendant was convicted of intimidating a witness under facts similar to those herein.

Defendant also challenges the sufficiency of the evidence used to convict him of extortion. That offense in defined in LSA-R.S. 14:66, in pertinent part, as follows:

| ^Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description. The following kinds of threats shall constitute extortion:
(1) A threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him.

Defendant argues the state failed to prove extortion because 1) the evidence showed he simply called Ms. Lambert to ask her to repay a $7,000 loan he had made to her; and 2) because he did not receive anything of value as a result of any communicated threats. Again, defendant’s argument lacks merit. The extortion statute proscribes the communication of a threat with the intent to obtain some advantage or something of value, regardless of whether the accused ever obtained the thing he sought. It is therefore irrelevant to a review of sufficiency whether the evidence showed Ms. Lambert owed defendant money, or whether the state proved defendant obtained the money. The pertinent questions are whether the state proved the communication of threats and defendant’s specific intent.

Ms. Lambert testified that defendant called her on March 18, 2000, and threatened to break her legs and harm other members of her family if he did not give her what money she had. Ms. Lambert reported to Officer Troy Rigby of the Harahan Police Department that defendant had called her 10 times that day demanding money. Defendant threatened that if she did not give him what he wanted, he was coming to get her. From the testimony regarding defendant’s communications with Ms. Lambert, it can be inferred that he had the specific intent to obtain money by threatening her. Accordingly, we find that state sufficiently proved the elements of the offense as provided in the statute. This assignment of error challenging the sufficiency of the evidence is without merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

| ¡^Defendant argues that the sentences imposed, each one the maximum allowed by law, and each one designated to run consecutively to the others, are excessive. As evidenced by the following discussion, we find that the record clearly supports the sentences which were imposed by the trial judge.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and Suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). Maximum sentences are reserved for the worst offenders. State v. Lefeure, 00-1142 (La.App. 5 Cir. 1/30/01), 778 So.2d 744, 755. The trial judge is given wide discretion in determining a sentence, and if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. LSA-C.Cr.P. art. 881.4D; State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 76.

If a defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, LSA-C.Cr.P. art. 883 provides that “the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” LSA-C.Cr.P. art. 883. If the trial judge elects to impose consecutive sentences for crimes arising out of a single course of conduct, the trial court must articulate particular justification for such a sentence. State v. Johnson, 97-867 (La.App. 5 Cir. 4/15/98), 711 So.2d 848, 852, writ denied, 98-1293 (La.10/9/98), 726 So.2d 20.

The trial judge gave the following reasons when imposing sentence:

The court notes that the defendant has been convicted of seven felonies. The Court is of the opinion that there is an 1 gfiUndue risk that if any sentence was suspended, that this defendant would commit additional crimes.
The Court is of the opinion that the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution under the supervision of the state of Louisiana.
Any lessor (sic) sentence which I will now impose in each one of these matters would depreciate the seriousness of the defendant’s crimes.
The Court notes that the offender’s conduct during the commission of these offenses manifested and delivered cruelty to the victim.
The Court further finds that the offender offered something of value in connection with the commission of one or more of these offenses.
Further, that the offender used threats of actual violence and did, in fact, commit violence upon the victim in this case.
The Court further notes that the offender committed at least two of the offenses in order to facilitate or conceal the commission of the other crimes.
The Court further notes the testimony offered during the course of this trial which supports that the defendant has, in fact, been involved in prior conduct, which has not been adjudicated.
The Court finds that the defendant is a danger to society and most particularly to this victim before this Court.

In the present case, the trial court sufficiently articulated reasons for imposing consecutive sentences. The judge was clearly concerned not only by defendant’s extensive record of felony convictions, but by the crimes of violence recounted at trial for which defendant had not yet been prosecuted. Also, a reading of the habitual offender bill of information shows that defendant was once charged with first degree murder in 1987, but was allowed to plead guilty to attempted armed robbery. The trial court’s belief that defendant was a continuing |9i7threat to Ms. Lambert’s safety is supported by the testimony at trial that defendant attempted to pay two men to kill her.

Further, we find that the record supports the maximum sentences imposed by the trial court. Defendant engaged in a relentless campaign to terrorize Ms. Lambert and put her in constant fear for her safety for months. Even after his initial arrest, he continued his constant threats against the victim and her family. The record shows that defendant’s behavior towards Ms. Lambert was consistent with a long-time pattern of violent behavior. Based on the foregoing, we find that the trial court did not abuse its sentencing discretion. This assigned error lacks merit.

ERRORS PATENT DISCUSSION

We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

For the reasons set forth herein, defendant’s convictions and sentences are hereby affirmed.

AFFIRMED.

      . The original bill of information charged defendant with four counts. The state then amended the bill of information to join a pending two count bill (district court case number 00-5104). The state again amended the bill to add another charge, for a total of seven counts.

      . Pursuant to a motion to correct illegal sentence filed by the state, the trial court resen-tenced defendant on count 6, as a multiple offender, to life imprisonment at hard labor without benefit of parole, probation, or suspension. However, the appeal of this sentence is a separate matter and is not part of the instant appeal.

      . Defendant testified that his cellular telephone number is 616-3554.

      . Defendant later told police he had Ms. Lambert’s permission to take the car.

      . See discussion set forth in Assignments of Error Numbers 5, 6, and 7.

      . LSA-C.Cr.P. art. 555 provides that ”[a]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”

      . The reference is to defendant's son Garrett, the offspring of defendant’s earlier marriage to Dawn Casey.

      . Considering that defendant was resentenced as a habitual offender to life imprisonment, it is not necessary to address the excessiveness of his original thirty year enhanced sentence.

      . A sentencing judge may consider not only convictions, but past criminal behavior which did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522; State v. Gilbert, 00-1822, p. 5 (La.App. 5 Cir. 1/16/01), 788 So.2d 574, 577.


source: Caselaw Access Project

author: I «SOL GOTHARD, Judge. h ROTHSCHILD, J.,

license: Public Domain

text:
    In re Joyce WOODS Applying for Medical Review Panel.
    No. 02-CA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Wanda Anderson Davis, Anderson Davis and Associates, New Orleans, LA, . for Plaintiff/Appellant.
    Charles F. Gay, Jr., Arthur F. Hickman, Jr., Elisia E. Shofstahl, Adams and Reese, New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANELLA, MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   I «SOL GOTHARD, Judge.

This is a medical malpractice action. On or about April 11, 2001, plaintiff filed a medical malpractice claim with the Patient’s Compensation Fund, alleging that her respiratory condition was not properly evaluated and her thyroid mass was not diagnosed during her treatment by defendants, and that it was not until she was seen at Louisiana State University Medical Center on May 3, 2000 that she was properly diagnosed.

On November 5, 2001, defendants filed an exception of prescription, alleging that plaintiffs claim was not sent to the Division of Administration, as required by statute, and therefore her claim was prescribed.

On May 3, 2002, the trial court granted defendants’ exception of prescription and dismissed plaintiffs suit. Plaintiff appeals from that judgment. For the following reasons, we reverse the decision of the trial court and remand the matter for further proceedings.

La. R.S. 9:5628 provides for a one-year prescriptive period for filing medical malpractice actions. La. R.S. 40:1299.47A(2)(a) states that:

(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his |sattorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until sixty days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and soli-dary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review. Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription. (Emphasis added.)

The requirement of filing with the Division of Administration became effective on August 15, 1997. Holmes v. Lee, 35,021 (La.App. 2 Cir. 9/28/01), 795 So.2d 1232. The events at issue in this matter occurred after this date.

Despite its actions in amending to La. R.S. 40:1299.47(A)(2)(a), the legislature did not amend La. R.S. 40:1299.47(A)(2)(b) or La. R.S. 40:1299.47(A)(2)(c), which currently provide:

(b) The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the board or on the date of mailing of the complaint if mailed to the board by certified or registered mail.
(c) The board shall dismiss a claim ninety days after giving notice by certified mail to the claimant or the claimant’s attorney if no action has been taken by the claimant or the claimant’s attorney to secure the appointment of an attorney chairman for the medical review panel within two years from the date the request for review of the claim was filed. (Emphasis added.)

“Board” means the Patient’s Compensation Fund Oversight Board. Holmes v. Lee, supra.

Plaintiff admits that she did not file her request for a medical review panel with the Division of Administration. However, plaintiff alleges that La. R.S. 40:1299.47(A)(2)(a), is in direct conflict with La. R.S. 40:1299.47(A)(2)(b), and the filing of the claim with the Patient’s Compensation Fund Oversight Board is sufficient to interrupt the running of prescription.

|4C.C. art. 9 provides that “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” However, in ABL Mgmt, Inc. v. Board of Supervisors, 00-C-0798 (La.11/28/00), 773 So.2d 131 at 135, the Supreme Court stated:

... It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless. Id. The Legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. A statute’s meaning and intent is determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature in its enactment of the statute. Where it is possible, the courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions. Moreover, when a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the statute and will carry out the Legislature’s intention. Ultimately, it is clear that the law provides that the statute be accorded a fair and genuine construction. A reasonable construction in light of the statute’s purpose is what is required.

Furthermore, where there are two permissible interpretations of a prescriptive statute, the courts must adopt the one that favors maintaining rather than barring the action. Holmes v. Lee, supra, citing Bustamento v. Tucker, 607 So.2d 532 (La.1992).

The conflict between the two provisions of La. R.S. 40:1299.47(A) was addressed in the cases of Patty v. Christus Health Northern La., 34,871 (La.App. 2 Cir. 8/22/01), 794 So.2d 124, and Collins v. Sisters of Charity, 34,897 (La.App. 2 Cir. 8/22/01), 794 So.2d 127:

| sClearly, the legislature intended that a request for review be filed with the Division of Administration rather than with the Board as a wholly separate entity. A review of the legislative history shows that the original wording of Act 664 of 1997 specifically directed that requests for review be filed with the PCF (the Board), but a Senate floor amendment changed the filing agency from the PCF to the Division of Administration. Focusing solely upon this change, it can be argued that the legislature intended that claims be filed with the Division of Administration instead of the Board; however, reading the change together with the next provision reasonably leads to the conclusion that the legislature intended that claims be filed with the Division of Administration through the Board. Although the intent behind the language change is not clear, it may be that while the legislature wanted all malpractice claims, those against private health care providers as well as state providers, to be filed “with” the Division of Administration for purposes of suspending or interrupting prescription, the legislature desired the filing to be physically accomplished by sending the claims directly to those charged with the responsibility for processing them. In the case of claims against state health care providers, this is the Commissioner of Administration. La. R.S. 40:1299.39.1(A)(3). In the case of private health care providers, this is the Board. La. R.S. 40:1299.47(A)(3).
This interpretation of the statutory language does not lead to absurd results, but harmonizes the provisions of Subsection (A)(2)(a) with those of Subsection (A)(2)(b) of La. R.S. 40:1299.47. Furthermore, filing a request for review by sending it directly to the Board makes practical sense considering that the Board is charged with the duty of acting upon the claim within 15 days of receipt. La. R.S. 40:1299.47(A)(3). Finally, we note that nothing in the law suggests that the Board is so unconnected with the Division of Administration that it cannot reasonably be deemed to act on behalf of the Division of Administration in receiving requests for review.

Patty v. Christus Health Northern La., supra at page 126.

The Second Circuit found that prescription was suspended or interrupted when a request for review of a malpractice claim is received by or mailed to either the Division of Administration or the Patient’s Compensation Fund Oversight Board.

The Second Circuit then revisited the issue in the case of Holmes v. Lee, supra at page 1237-8:

Interpreting the Statute to allow filing with the PCF to suspend prescription is possible at the risk of reading out the Division of Administration filing requirement, but this interpretation only reads it out in part because filing at a place other than the PCF or the Division of Administration would still not suspend prescription.

Ifiln granting defendants’ exception of prescription, the trial court in this matter concluded that the Second Circuit cases cited above were erroneous. We disagree. We believe that this interpretation of the statutes gives effect to all the provisions of the statute, and we follow it in this case. We therefore find that the trial court erred in granting defendants’ exception of prescription.

For the reasons discussed above, the trial court’s decision granting the exception of prescription is reversed and this matter is remanded for further proceedings. All costs are assessed against appel-lees.

REVERSED AND REMANDED.

ROTHSCHILD, J., dissents with reasons.

h ROTHSCHILD, J.,

dissenting with reasons.

By Act 664 of 1997, the Louisiana legislature amended La. R.S. 40:1299.47(A)(2)(a) to specifically provide that filing a request for a medical malpractice claim with any agency or entity other than the Division of Administration would not suspend the running of prescription set forth in La. R.S. 9:5628. This statute became effective on August 15,1997.

The legislative history of this Act is contained in the record, and notes that the amendment provides a change in the law, that the purpose of the change was for purposes of uniformity, and that pursuant to the amendment, both private and state medical malpractice actions must be filed with the Division of Administration. Plaintiff alleges that she discovered defendants’ alleged malpractice in May of 2000 and the record shows that she filed a medical malpractice claim with the Patient’s Compensation Fund in April of 2001. Defendants filed this exception of prescription on November 5, 2001, and plaintiff forwarded her claim to the Division of Administration on November 13, 2001.

In holding that the filing of the claim with the PCF suspended prescription of plaintiffs claim, the majority relies on cases rendered by our colleagues on the Second Circuit. After a review of the statute as amended, the applicable jurisprudence, and the record before this Court, I find that the reasoning relied on by the majority completely thwarts the clear intention of the legislature in amending the statute to provide uniformity in the filing of malpractice claims. The holding of the Second Circuit and of the majority opinion in this case which allows claims filed with the PCF to suspend prescription applies this statute as if the 1997 amendment does not exist.

In light of the clear intent of the legislature in enacting this amendment, I believe that the majority erred in relying on subsequent provisions of the statute which refer to the “board” for support that a claim filed with the PCF is sufficient to interrupt prescription. In my view, this interpretation of the amended statute completely reads out |¡>of the law the express requirement that malpractice claims be filed with the Division of Administration only. Based on testimony in the record that the Division of Administration and the PCF are completely distinct entities, the majority’s interpretation of the statute will lead to absurd consequences of uncertainty in filing claims, a situation that the legislature tried to avoid by the 1997 amendment.

The amendment to the statute was effective for over three years at the time plaintiff filed her claim with the Patient’s Compensation Fund. This is not a case where an application of the amendment as written unreasonably deprives plaintiff of her rights. For these reasons, I believe that plaintiffs malpractice claim, which was not filed with the Division of Administration within one year from the date plaintiff discovered the alleged malpractice, has prescribed. In my opinion, the trial court did not err in granting defendants’ exception of prescription on this basis, and the judgment appealed from should be affirmed.


author: I «SOL GOTHARD, Judge.

text:
    Rita S. and Daniel J. BERNAL v. Jeffrey M. LONG and JML Automotive, Inc.
    No. 02-CA-760.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Irl Silverstein, Gretna, for Defendant/Appellant.
    L. Kevin Coleman, New Orleans, for Plaintiffs/Appellees.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   I «SOL GOTHARD, Judge.

Plaintiffs, Rita S. and Daniel J. Bernal, filed suit against Jeffrey M. Long and JML Automotive, Inc., seeking damages for fraud, redhibition, and unfair trade practices, as well as recission, arising from a purchase of a used automobile by plaintiffs from defendant. The trial court granted summary judgment in favor of plaintiffs, ordering defendant to return the purchase price and all costs of the sale, and awarding damages, legal interest, and costs of the proceedings. The plaintiffs were instructed to return the car and transfer title, at defendant’s expense, once the judgment had been paid.

Defendants appeal, alleging that summary judgment is not appropriate in this case. Plaintiffs have answered the appeal, alleging that they are entitled to attorney fees both at the trial court level and on appeal.

In June of 1997, the Bernals contacted Mr. Long in response to an advertisement in “News on Wheels,” for the sale of a 1995 Saturn SL2. The advertisement instructed “Call Jeff,” and listed Mr. Long’s home phone telephone number. The plaintiffs went to Mr. Long’s residence to view the automobile. Mr. Long told them he was selling the car for his father, who had purchased it for his stepsister. Plaintiff stated in his deposition that he called the Saturn dealership, and was told that the car had an extended warranty,

| «Plaintiffs purchased the car for $10,300.00. They obtained financing through their credit union, and paid Mr. Long with a check made out to JML Automotive, Inc. At the time of the sale, all parties were aware that the extended warranty was a factor in plaintiffs’ decision to purchase the car.

JML Automobile, Inc., incorporated on November 13, 1996 by Jeffrey Long, has a business address different from Mr. Long’s home address. Plaintiffs stated that they believed that they were purchasing the car from Mr. Long as an individual and not JML Automobile, and that they were told by defendant that JML was a company he used to work for, and that the use of the name would facilitate the purchase and save on taxes. Mr. Long asserts that they purchased the automobile from JML, and therefore he has no personal liability.

Mr. Bernal stated that after he got the car home, he discovered evidence that the car had been wrecked and the front end extensively repaired. Plaintiffs aver that Mr. Long did not tell them that the automobile had been in an accident; however, Mr. Long states that he did inform them that the automobile had been wrecked.

The affidavit of Mr. Wade McManus, adjuster for State Farm Insurance Company, states that he inspected the car on March 3,1997; that the car had been in an accident on February 15, 1997; and, that the vehicle had been badly damaged. The retail value of the car at the time of the accident was $13,625.00, the cost of the parts and labor to repair the vehicle was $9,768.07 and, therefore, the damage to the vehicle represented 72% of its retail value.

After the purchase of the car, Mrs. Ber-nal discovered that the airbag light did not come on when she started the car, so they brought the car to the Saturn dealership. Steve Allain, service supervisor at the dealership, avers that upon inspection, it was determined that both driver side and passenger side air bags were missing, that the steering column, air bags, air bag coil, and air bag monitor needed |4to be replaced, and that an alignment would then be needed. The cost of those repairs was estimated to be $2,587.39. Allain did not inspect the rest of the vehicle.

As stated, the existence of the extended warranty was important to plaintiffs. As a result of the accident, the extended factory warranty had been altered. Andrew Hag-er, representative of Saturn Corporation, averred that the warranty was not voided because the damage to the vehicle was not greater than 75% of the actual cash value of the vehicle. However, the repairs necessary as a result of accident or collision damage were not covered, and the warranty did not cover damage or failure resulting from modification or alteration of the vehicle’s original equipment, including the installation of non-Saturn parts. There was no evidence presented to show wheth-. er the parts used in repairing the car were Saturn parts or another brand.

Thereafter, plaintiffs requested that the sale be rescinded; however, defendant did not refund the money. Plaintiffs have remained in possession of the automobile, which they have stored since its purchase.

We conduct our review of the grant of a motion for summary judgment as follows:

In Louisiana, summary judgments are now favored, and are designed to secure the just, speedy, and inexpensive determination of all actions, except those specifically excluded in La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered by the trial court if the pleadings, depositions, interrogatory responses, admissions, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate review of summary judgment is de novo, applying the same criteria as the trial court to determine whether summary judgment is appropriate.

Molaison v. Tran, 01-919 (La.App. 5 Cir. 12/26/01), 803 So.2d 441.

Plaintiffs argued that they were entitled to recission of the sale due to failure of principal cause of the contract, La. C.C. arts.1948-1950, and due to redhibitory | (¡defects in the car. La. C.C. art. 2545. They argue that they intended to purchase a car that had not been in an accident, and that all parties knew of the importance of having the full, extended Saturn warranty in place.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art.1906. A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art.1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art.1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred, and that cause was known or should have been known to the other party. La. C.C. art.1949. La. C.C. art.1950 states:

Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should have regarded, as a cause of the obligation.

In this case, both parties stated that one of the causes of the contract was the extended warranty. It is also undisputed that the full factory extended warranty had been altered as a result of the accident, and therefore the unaltered extended warranty was not in effect at the time plaintiffs purchased the automobile. Thus, plaintiffs consent was vitiated by error, and the trial court did not err in granting summary judgment rescinding the sale of the automobile.

In this appeal, Mr. Long also alleges that the trial court erred in granting summary judgment finding him personally liable, since plaintiffs purchased the automobile from JML Automotive, a Louisiana corporation, and not Jeffrey Long, the individual. Plaintiffs respond that Mr. Long is personally liable, since he committed fraud in the sale of the automobile. Plaintiffs further allege that Mr. Long committed unfair trade practices pursuant to La. R.S. 51:1409.

In addition, plaintiffs have answered this appeal, and have requested attorney fees based on La. C.C. art. 2545, La. C.C. art. 1958 and La, R.S. 51:1409.

IfiWe find that the record before us does not contain sufficient uncontested facts to establish the personal liability of Mr. Long.

We further find factual issues on the issues of fraud and/or unfair trade practices of both Mr. Long and JML Automotive. We also note that there is no evidence as to the entitlement, or amount, of attorney fees at issue, and therefore these issues are not ripe for summary judgment.

For the above discussed reasons, that portion of the trial court’s judgment which grants rescission of the sale of the automobile is affirmed. The judgment holding Jeffery Long personally liable is reversed, and this matter is remanded for consideration of personal liability. All other claims of plaintiff, including plaintiffs claims for fraud and unfair trade practices against all defendants, are remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: 1 ¡WALTER J. ROTHSCHILD, Judge.

text:
    Adam CLIATT v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, T.J. Ward General Contractors, Inc. and the Zurich American Insurance Company.
    No. 02-CA-909.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Darleen M. Jacobs, Al A. Sarrat, Robert A Preston, Jr., New Orleáns, LA, for Adam Cliatt, Plaintiff/Appellant.
    Marilyn R. Cohen, Stephens & Grace, Metairie, LA, for T.J. Ward General Contractors, Inc. and Assurance Company of America, Defendants/Appellees.
    Michael W. McKay, McKay, Williamson, Lutgring and Cochran, Baton Rouge, LA, for Superfresh/Sav-A-Center, Inc. (incorrectly sued as “The Great Atlantic & Pacific Tea Company”), Defendants/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY And WALTER J. ROTHSCHILD.
   1 ¡WALTER J. ROTHSCHILD, Judge.

On August 8, 2000, the plaintiff, Adam Cliatt, filed suit against the Great Atlantic & Pacific Tea Company, T.J. Ward General Contractors, Inc. (“T.J.Ward”), and the Zurich American Insurance Company, alleging that he suffered injuries while operating his bicycle behind a grocery store, owned by the Great Atlantic and Pacific Tea Company, when his bicycle struck a board that was on the ground. The plaintiff contends that T.J. Ward was performing construction on the premises at the time and had placed two boards around a steel rod or pipe for support. The plaintiff filed a First Supplemental and Amending Petition on February 19, 2002, adding T. Jerard Ward General Contractors, Inc. (“T. Jerard Ward”) as a defendant, and a Second Supplemental and Amending Petition on March 1, 2002, adding Assurance Company of America as a defendant.

• T.J. Ward and Assurance Company of America filed a Motion for Summary Judgment asserting that T.J. Ward and T. Jer-ard Ward are separate legal entities and that it was T. Jerard Ward that was working on the site where the accident allegedly occurred. Therefore, it asserts that T.J. Ward is not responsible for the plaintiffs injuries and is entitled to dismissal from the lawsuit. After a hearing on [3March 26, 2002, the trial court granted the Motion for Summary Judgment filed by T.J. Ward and Assurance Company of America and dismissed them from the suit with prejudice. It is from this ruling that the plaintiff appeals.

DISCUSSION

On appeal, Mr. Cliatt contends that the dismissal of T.J. Ward and Assurance Company of America was improper, because there are genuine issues of material fact as to whether T.J. Ward and T. Jerard Ward are the same company. T.J. Ward argues that T.J. Ward and T. Jerard Ward are separate legal entities and that T.J. Ward was an inactive company at the time of the accident.

Appellate courts review summary judgments de novo, using the same criteria applied by the trial court to determine whether a summary judgment is appropriate. Magic Moments Pizza, Inc. v. Louisiana Restaurant Ass’n., 02-160 (La.App. 5 Cir. 5/29/02), 819 So.2d 1146, 1149; Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/81/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. Summary judgments are now favored in the law and the rules should be liberally applied. Nutt v. City of Gretna, 00-1864 (La.App. 5 Cir. 5/16/01), 788 So.2d 617, 619. LSA-C.C.P. art. 966 provides that a summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, establish that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. Prince v. K-Mart Corp., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248.

In support of their Motion for Summary Judgment, T.J. Ward and Assurance Company of America submitted an affidavit from Mr. T.J. Ward indicating that T.J. Ward General Contractors, Inc. was dissolved on March 15, 1994, and that it was not involved in the construction project from which Mr. Cliatt alleges injuries. T.J. Ward asserts that although Mr. T.J. Ward and Mr. T. Jerard Ward are father and son, Mr. T. Jerard Ward incorporated T. Jerard Ward General Contractors, Inc. |4in June of 1996 and T.J. Ward was not affiliated with this company. An affidavit from Mr. T. Jerard Ward was also submitted, indicating that T. Jerard Ward had entered into a contract with Great Atlantic and Pacific Tea Company for renovations, that T.J. Ward had nothing to do with this project, and that T.J. Ward and T.Jerard Ward are separate legal entities. T.J. Ward also submitted the contract for construction/renovation work between the Great Atlantic & Pacific Tea Company, Inc. and T. Jerard Ward General Contractor, Inc., which was dated March 17, 1999. Mr. Cliatt’s accident allegedly occurred on August 30,1999.

The evidence submitted by T.J. Ward and Assurance Company of America in support of their Motion for Summary Judgment presents a prima facie case that they are entitled to a summary judgment, dismissing them from this lawsuit. When a summary judgment movant makes a pri-ma facie showing that its motion should be granted, the burden shifts to the nonmov-ant to present evidence demonstrating that material factual issues remain and that he will be able to satisfy his evidentiary burden of proof at trial. LSA-C.C.P. art. 966; Black v. Avondale Industries, Inc., 00-1511 (La.App. 5 Cir. 3/28/01), 783 So.2d 505, 508; Prince, supra at 248. Although the plaintiff argues that there are issues regarding whether or not T.J. Ward and T. Jerard Ward are the same company, there has been no evidence presented to support this allegation or to establish that there are genuine issues of material fact on this issue.

Considering the record before us, we find that the trial judge was correct when he granted summary judgment in favor of T.J.Ward General Contractors and its insurer, Assurance Company of America, and dismissed them from this lawsuit. Accordingly, this judgment of the trial court is affirmed.

AFFIRMED.


author: J^MARION F. EDWARDS, Judge.

text:
    Kim Ruffin STRAUGHTER Wife of/and Anthony Straughter, Amani Straughter v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and John Doe, American Freightways, Inc. and/or American Freightways Corporation.
    Nos. 02-CA-792, 02-CA-793.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Ford T. Hardy, Jr., New Orleans, for Appellants, Kim R. Straughter, et al.
    John E. Galloway, Bruce A. Bannon, New Orleans, for Appellants, American Freightways, Inc.
    Dwayne R. McClure, Joseph E. Lucore, New Orleans, for Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   J^MARION F. EDWARDS, Judge.

Appellants, Kim, Anthony and Amani Straughter, and American Freightways, appeal from the trial court’s ruling that granted summary judgment in favor of defendant, Government Employees Insur-anee Company. For the following reasons, the judgment of the trial court is reversed.

FACTS AND PROCEDURAL HISTORY

On May 27, 1998, plaintiffs, Kim, Anthony and Amani Straughter, (“plaintiffs”), were driving on Interstate 10 in Mobile, Alabama, when an 18-wheeler attempted to enter into their lane of travel. The 18-wheeler hit the front of the Straughter’s vehicle, thereby causing it to run into a barrier on the highway. After hitting the plaintiffs vehicle, the truck did not stop at the scene. The Straughters claimed to have sustained various injuries as a result of the impact.

Although they did not provide a description of the 18-wheeler to the investigating officer at the time that they made an accident report, subsequently, plaintiffs Kim and Anthony Straughter identified the 18-wheeler as being in the 1 «employ of American Freightways, based upon writing they recalled seeing on the side of the trailer.

At the time of the accident, the plaintiffs were insured by Government Employees Insurance Company (“GEICO”). The GEICO policy provided uninsured motorist “Hit-and-Run” coverage to the Straught-ers.

On March 25, 1999, plaintiffs filed suit against John Doe, as driver of the 18-wheeler, and American Freightways as the employer of John Doe. Plaintiffs also sued GEICO, as their UM carrier, under the theory that GEICO would be compelled to provide coverage should plaintiffs not be able to prove the identity of the hit and run vehicle, or if American Freightways was found to be underinsured.

GEICO filed a Motion for Summary Judgment asserting that since plaintiffs had identified American Freightways as the operator of the 18-wheeler, they were prevented from making a claim under the UM “hit and run” portion of their policy. After a hearing on February 1, 2002, the trial court granted GEICO’s Motion for Summary Judgment, finding that the Straughters failed to show that the identity of the 18-wheelers owner or operator is unknown. The Straughters and American Freightways timely filed this appeal.

LAW AND ARGUMENT

In their first assignment of error, both the plaintiffs and American Freightways assert that the trial court erred in granting summary judgment because there is still a genuine issue of material fact regarding whether an American Freightways vehicle was involved in the accident.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court |4in determining whether summary judgment is appropriate: Whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

The definition portion of the GEICO policy pertaining to “Hit and Run” accidents reads as follows:

“Hit^and-Run Auto” is a motor vehicle causing bodily injury to an insured through physical contact with him or with an auto he is occupying at the time of the accident and whose operator or owner cannot be identified ... [Emphasis provided].

At issue is whether or not the identification of American Freightways by Plaintiffs, as the owner or operator of the hit and run vehicle, is sufficient to preclude coverage under the GEICO policy.

The record shows that both Kim and Anthony Straughter, in their deposition testimony, stated that they were certain that the truck which caused the accident belonged to American Freightways. The trial court relied upon this testimony in making the determination that the identity of the hit and run vehicle’s owner or operator was known, concluding in its Reasons for Judgment:

| ^Because the owner of the truck has been identified, then the driver of the tractor-trailer can be ascertained. As such, GEICO, is not liable for damages that resulted from the accident and the owner, American Freightways, has liability insurance coverage in the amount of five million dollars which is sufficient to cover plaintiffs stipulated damages.

Appellants argue, however, that the trial court, in finding that the plaintiffs made a “valid” identification of the owner of the “hit and run” vehicle, has legally decided that American Freightways was the tort-feasor in the accident. Appellant, American Freightways, denies that its vehicle was involved in the accident, and asserts that this constitutes a genuine issue of material fact that should preclude summary judgment. American further argues that if the plaintiffs fail at trial to establish that American’s truck was indeed the hit and run driver that plaintiffs will have a claim against GEICO under the uninsured motorist provisions of their automobile insurance policy. We agree.

In Todd v. LeBlanc, the Third Circuit considered a case where a plaintiff was the victim of a hit and run accident and believed that she had ascertained the identity of the hit and run driver. After being struck, the plaintiff wrote down the license plate of the vehicle that she thought had hit her. The license plate was traced to defendant, Doris LeBlanc. During the police investigation that followed, the defendant admitted that she was in the vicinity at the time that the accident occurred, but denied that she was involved. Other than the plaintiff, there were no witnesses to the accident. The jury determined at trial that LeBlanc was not the driver of the other vehicle, and the Third Circuit affirmed the jury’s finding.

In affirming the jury’s verdict in favor of LeBlanc, the court noted:

A plaintiff must prove his case by a clear preponderance of the evidence, which means the plaintiff need only show it is more probable than not that the cause of the harm, damage or injury was the fault of the defendant. Nailor v. International Harvester Company, 430 So.2d 784 (La.App. 5th Cir.1983).

| (After our review of the record, we find the case of Todd to be similar to the present case in at least one important respect: As in Todd, in spite of identification made by the Slaughters, plaintiffs have not demonstrated at this point, by a clear preponderance of evidence, that the American Freightways truck was the vehicle which struck them and fled the scene. Therefore, we find a genuine issue of material fact that precludes summary judgment still exists in this case. Because of this finding, we pretermit discussion on appellants’ remaining assignment of error.

Accordingly, the judgment of the trial court is reversed.

REVERSED.

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir.12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . 520 So.2d 833 (La.App. 3 Cir.1987).