author: 11 DREW, J.

text:
    STATE of Louisiana, Appellee v. Richard COOKS, Appellant.
    No. 36,613-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 2002.

      Carey J. Ellis, III, Rayville, for Appellant.
    Richard Ieyoub, Attorney General, William Robert Coenen, Jr., District Attorney, Penny Wise Douciere, Assistant District Attorney, for Appellee.
    Before STEWART, KOSTELKA and DREW, JJ.
   11 DREW, J.

Richard Cooks appeals his conviction at jury trial and his seven-year hard labor sentence for the crime of distribution of a schedule II controlled dangerous substance, cocaine, in violation of La. R.S. 40:967(A)(1). Noting error patent in the illegally-lenient sentence, we affirm.

FACTS

The basic facts are not in dispute, with the exception of the most important one: whether or not Mr. Cooks is the person who distributed cocaine to an undercover police officer in the City of Rayville on December 17, 1998, during an undercover drug operation by the Richland Parish Sheriffs Office.

In February 1999, the defendant was charged with distribution of cocaine. Two years later, jury trial was held in March 2001, at which Richland Parish Sheriffs Office Investigator Perry Fleming testified that:

• he used Chris Tarver as a confidential informant (“C.I.”) for this undercover operation because he had confidence in him since Tarver had previously proven reliable working as a C.I.;
• he paid C.I. $150.00 for his services on December 17;
• he also obtained the help of an undercover officer from an adjoining parish, Billy Womack, to whom he supplied funds for the buy;
• he (Fleming) introduced Womack to the C.I.; ' '
• he attempted to use.two types of surveillance equipment — audio and video;
• unfortunately, the audio portion of his audio equipment malfunctioned;
• however, he was able to listen to the audio of the undercover drug transaction through a surveillance wire worn by Womack;
• his video equipment, concealed in Womack’s vehicle, only recorded what transpired outside the residence;
• he had known Richard Cooks for approximately four or five years and was familiar with the gray Cadillac the defendant drove, as well as the gray and purple trailer house in which the defendant lived;
• Womack and the C.I. went to the defendant’s residence, located at 604 Scott Street in Rayville, with the C.I. carrying a cold beer;
• the C.I. had not been drinking or using drugs that day;
!?• Womack stayed in the car while C.I. approached the defendant, requesting $150.00 worth of crack cocaine;
• C.I. went inside the residence with the defendant, who showed C.I. a block of the requested drug;
• C.I. then went outside to get Officer Womack, while the defendant exited the residence and walked to the side of the trailer (allegedly to return some cocaine to a hiding place behind the corner of the trailer, according to C.I.);
• one of the defendant’s brothers walked up and C.I. mentioned something about a debt of $20.00;
• C.I., Womack and the defendant entered the residence, where the officer was introduced to a person who identified himself as “Rich”;
• Womack told the defendant that he wanted some crack cocaine;
• the defendant, said that he had an “eight ball,” which is slang for an eighth of an ounce of cocaine;
• Cooks went into a bathroom, and returned with the “eight ball” of crack cocaine, for which Womack gave $150.00 to the defendant, in the presence of C.I.;
• the peace officer and the C.I. then left the premises;
• immediately after the transaction, he received the cocaine from Womack and the C.I., the drugs being later analyzed by the crime lab as .23 grams of crack cocaine; and
• he drove past the same residence about an hour after the drug transaction and saw the defendant still standing outside the residence in approximately the same place he was standing at the beginning of the drug transaction.

Deputy Fleming made an in-court identification of the defendant as the person he knew as Richard Cooks. The video of the events surrounding the drug transaction was admitted into evidence and played for the jury. Fleming identified in court the persons shown in the surveillance video, including the defendant, the C. I., Andre Cooks (the defendant’s brother), Officer Womack, Howard Green, Jr., Terry Kelly and Timothy Cooks. Fleming pointed out the defendant in the video twice, including the portion of the video showing C.I. approaching and talking to Cooks. The deputy identified Richard Cooks in the video as:

Is* the person in the video who entered and later exited the trailer with C.I.;
• the person who bent over at the corner of the trailer (as if to pick something up) before going back into the trailer with the two undercover operatives, apparently to complete the drug deal; and
• the person he had known for several years, with somewhat singular physical characteristics and body language.

Officer Womack and the C.I. basically corroborated the facts as outlined by Deputy Fleming, with a few disparate recollections.

C.I. testified that:

• he had a criminal history including charges of possession of marijuana with the intent to distribute, burglary charges and some other misdemeanor charges;
• he had known Richard Cooks for about 10 years; and
• the person in court, sitting next to the defense lawyer, was the man who sold cocaine to Officer Womack, as well as the person in the video who went inside and came back out of the trailer with him, and who bent down at the corner of the trailer to put back some cocaine.

Officer Womack also made an in-court identification of the defendant as the same person who sold him the rock of crack cocaine, and as the person in the video who sold him the cocaine. Officer Womack was positive of his identification — he did not ordinarily do undercover work involving black males and specifically remembered this transaction and this defendant as being the last of only three buys he had ever conducted with black men.

At trial, the defense called several witnesses:

• Sylvia McDonald, the defendant’s aunt and a convicted felon, who viewed the video and identified the person who entered and exited the residence as being her brother, Timmy Cooks;
• Sherrie Byrd, who also identified the same person in the video as being her friend, Timothy Cooks, whom she had known for a couple of years;
• Andre Cooks, the defendant’s brother, also a felon, who viewed the video and identified the same person as being his uncle, Timothy Cooks;
• Desmond Covington, a local 23-year-old mechanic and a convicted felon, who had known Timothy Cooks since childhood and who also identified Timothy Cooks as the person in the video; and
14* Priscilla Obbie, the mother of the defendant’s three children, and Mary McDaniels, the defendant’s grandmother, who each testified that person in the video as Timothy Cooks.

The jury rendered a 10 to 2 guilty verdict, convicting the defendant as charged. Richard Cooks was sentenced on June 27, 2001, at which proceeding the trial court noted that:

• it had reviewed the defendant’s pre-sentence investigative report as well as several letters from the defendant’s children and other family members;
• three law enforcement officers and the defendant’s probation officer all basically stated that the defendant was well known by local authorities as a drug dealer and should serve jail time;
• the defendant’s status was as a first felony offender;
• however, the defendant’s extensive criminal record was also discussed, which included a dozen adult misdemeanor convictions from February 1995 through June 2000, at which time he pleaded to possession of marijuana;
• the use by defendant’s mother of cocaine and her bad relationship with the defendant;
• the defendant’s lack of employment for the last three years;
• the defendant only completed his education through the ninth grade;
• his being the unmarried father of three children; and
• several other factors indicated that imprisonment was appropriate.

The sentenced imposed was seven years imprisonment at hard labor, with credit for time served.

INSUFFICIENT EVIDENCE

The defendant argues that the evidence was insufficient because:

• the state’s evidence consisted of the testimony of an undercover officer who did not personally know the defendant, and a C.I. abjectly unworthy of belief;
• although Officer Fleming and other state witnesses identified the defendant on video, this identification was refuted by all defense witnesses who were intimately familiar with the defendant; and
• the video did not depict a sale of cocaine.

The state argues that:

• it proved beyond a reasonable doubt all of the elements of the crime of distribution of cocaine;
|s* only the identity of the defendant as the seller was disputed;
• the minor discrepancy between the testimony of Officer Womack and C.I. regarding whether the transaction occurred in the doorway to the bedroom or in the bathroom of this small trailer home is insignificant; and
• the jury’s credibility determination should not be disturbed on appeal.

Sufficiency of the Evidence

Although this record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, we will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

Our law on sufficiency is quite clear. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When 16the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.), writ denied, 566 So.2d 983 (La.1990).

7 La. R.S. 40:967A provides in part that it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.

Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule 11(A)(4).

This record reveals that a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could have reasonably concluded that all of the elements of the offense of distribution of cocaine were proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The testimony of the undercover officer and the C.I., taken together, provided direct evidence of:

• where, when and how the cocaine sale occurred; and
• the defendant’s identity as the person who sold the cocaine to the undercover officer in the presence of the C.I.

Laboratory results introduced into evidence proved that the substance involved in the drug sale was in fact cocaine. The testimony of the undercover officer and the C.I. regarding the events surrounding the cocaine sale was further. corroborated by the video surveillance tape. Additionally, the ^testimony of the investigating officer who listened to the audio of the transaction via the audio surveillance wire worn by the undercover officer further corroborated what transpired during the cocaine sale, particularly including the seller’s identification of himself as “Rich.” Even though the defendant claims that he was not the person who committed the crime, the state met its burden of proof by negating any reasonable probability of misiden-tification under the Jackson standard. See State v. Powell, supra.

This record shows positive identification of the defendant by two eyewitnesses, one of whom (Womack, the undercover officer) was never seriously impeached. Although the defendant utilized the testimony of other witnesses to dispute his identification, this court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. See La. Const. art. 5, § 10(B); State v. Williams, supra. The jury’s decision to accept or reject the testimony of a witness in whole or in part will be accorded great deference. State v. Bosley, supra. This assignment lacks merit.

Inadmissible Evidence of Other Colmes

On the last day of trial, the defendant called Desmond Covington, who testified that, based on his observation of the video, he was ‘TOO percent positive” that the person in the videotape was Timmy Cooks, not the defendant. During cross-examination by the state, the jury was removed from the courtroom at the state’s request for the exploration of other crimes evidence, to which defense counsel objected. The hearing was held outside the presence of the jury, after which the trial court ruled that the witness could be 19questioned regarding his knowledge of where the defendant kept his illegal drugs. The defendant’s motion for a mistrial was denied.

During cross-examination before the jury, the state asked Covington, “Do you know where Richard Cooks kept his drugs at 604 Scott Street?” The trial court then overruled defense counsel’s objection, after which the witness replied that he didn’t know. The state then asked Covington, “Did you ever tell a law enforcement officer that he told you that?” Covington answered, “Yes, when we were arguing.” Covington explained that the officer was trying to get him to set the defendant up. He asserted that he was lying when he told the officer that he knew where the defendant kept his drugs. Covington denied ever telling Officer Alexander that the defendant hid his dope around by the corner of the trailer at 604 Scott Street. However, Covington later admitted making the accusation/threat to the defendant during an argument, in the presence of the officer. The state asked Covington if he ever told law enforcement officers that he would like to work as a C.I. against the defendant. Again, the defense objection was overruled. Covington said that he only gave police information because they threatened to lock him up. Covington testified on redirect that the officers asked him to “set up” the defendant by planting illegal drugs at the back of the defendant’s house. On re-cross-examination, Covington described his two meetings with the officers about possibly planting dope on the defendant.

On rebuttal, the state called Officer Alexander, who testified:

• about six to eight months ago, he was trying to settle an argument between Covington and the defendant, when Covington told the defendant, in front of Alexander, not to “mess with” him or he would |intell them where he hid his dope (to which the defense entered a timely objection, which was overruled);
• about a year and a half ago, Coving-ton contacted him and wanted to be an informant, at which time Coving-ton told him that the defendant kept his dope out by the corner of the trailer by the dog pen; and
• he never threatened Covington and never asked Covington to be an informant.

On this point, the defendant argues that:

• this other crimes evidence elicited from Covington over defense counsel’s objection was highly unreliable, with low probative value and high prejudicial effect;
• no such acts were proved to have been committed by the defendant;
• this evidence was a subterfuge for depicting him as a drug dealer and did not serve the actual purpose for which it was offered; and
• the trial court erred in failing to grant his motion for a mistrial on these grounds.

The state responds that:

• most of the alleged other crimes testimony was not heard by the jury;
• the testimony was not inadmissible other crimes evidence;
• the testimony was elicited as the direct result of the defense “opening the door” by calling this witness to the stand; and if the evidence was inadmissible other crimes evidence, then the error was harmless.

Discussion

Mistrial, a drastic remedy, is warranted only when substantial prejudice would otherwise result to the accused. State v. Edwards, 420 So.2d 663 (La.1982); State v. Jackson, 629 So.2d 1374 (La.App. 2d Cir.1993), writ denied, 94-0201 (La.5/6/94), 637 So.2d 1046; State v. Harris, 28,517 (La.App. 2 Cir. 8/21/96), 679 So.2d 549, writ denied, 96-2954 (La.9/26/97), 701 So.2d 975. A mistrial is mandatory when a judge, district attorney or court official refers to inadmissible other crimes evidence in the presence of the jury. La. C. Cr. P. art. 770.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126, 128 (La.1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1). Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.5/15/01), 803 So.2d 933, U.S. cert, denied; State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

We find that this other crimes evidence was admissible to assist in proving a material fact truly at issue in the case. See State v. Frederick, 340 So.2d 1353, 1356 (La.1976). The evidence was highly probative in rebutting l^.the primary defense of misidentification of defendant as the offender. See State v. Jacobs, supra.

Identity was the key issue. Evidence of Covington’s previous statements to officers that he knew where the defendant hid his illegal drugs (at the corner of the trailer), and that he wanted to act as a C.I. against the defendant, were clearly relevant to the issue of the identity of the seller because it bolstered the state’s direct and circumstantial evidence of the defendant’s identity as the seller, and as the person who either picked up or put away some cocaine at the corner of the trailer in the video. Covington’s testimony, inconsistent as it may have been, had the clear potential to help jurors evaluate the credibility of both state and defense witnesses regarding the identity of the person in the video as the defendant. His testimony, if believed, also could have discredited two of the law officers involved in this prosecution. In actuality, the witness denied knowing where the defendant kept his stash. The trial court did not err in ruling that the evidence was admissible under La. C.E. arts. 403 and 404.

We further find that the state proved defendant’s connection with the earlier crime by clear and convincing evidence. Based on the totality of the evidence, there was no substantial likelihood of misidentifi-cation. The defendant’s identity was proved by the testimony of Officer Alexander, who was present when Covington angrily threatened the defendant.

13 In any event, the erroneous introduction of other crimes evidence is subject to harmless error analysis. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94; State v. Barnes, 28,835 (La.App.2d Cir.12/11/96), 685 So.2d 1148, writ denied, 97-0274 (La.10/10/97), 703 So.2d 602. The appropriate inquiry is whether the verdict actually rendered was surely unattributable to any alleged error. Based upon the direct evidence (testimony of the undercover officer and the C.I. regarding the defendant’s identity as the seller), the verdict rendered was surely unattributable to any alleged error caused by the admission of this confusing and contradictory testimony.

A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, U.S. cert. denied. This argument is without merit.

Incorrect Jury Instruction

After the charge conference, the defense requested this limiting instruction concerning other crimes evidence:

Proof of Other Offenses

Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense because he may have been involved in any other offense. This evidence may be considered only for the limited purpose of attacking the credibility of a witness, and not in determining the guilt or innocence of the defendant.

The court ruled that it would charge the jury with the standard charge as to other crimes evidence, adding these words to the proffered charge: “... or for proving system or identity.” The defense then asked the court to omit the charge, which request was denied by the court, to which defendant’s objection was noted.

|14The defense notes that the jury vote to convict was 10 to 2, and the jury made three requests during deliberation. Under these circumstances and following Prieur, supra, the defense argues that it should have had the final word regarding this limiting instruction.

La. C. CR. P. art. 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

The court in State v. Nelson, 354 So.2d 546 (La.1978), found that the trial court in a murder prosecution did not err in denying special charges requested by the defendant where such charges were either covered by a general charge or were not wholly correct and pertinent. La. C. CR. P. art. 807. Also see State v. Nuccio, 454 So.2d 93 (La.1984).

La. C.E. art. 404(B) provides in pertinent part:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,- knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

|15The state correctly argues that the defense’s proposed jury charge did not conform to the requirements of La. C. CR. P. art. 807 because it was not wholly correct. The defense’s proposed jury charge stated that evidence of other crimes “may only be considered only for the limited purpose of attacking the credibility of a witness....” Clearly, under La. C.E. art. 404(B), evidence of other crimes, wrongs, or acts may be admissible for many other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Thus, the trial court did not err in refusing to give the proposed jury charge. See State v. Nuccio, supra. Furthermore, the special charge requested by the defendant was covered by a general charge. See State v. Nelson, supra. This argument is meritless.

Excessive Sentence

A timely-filed motion to reconsider sentence was denied by the trial court without a hearing. The defense asserts that the seven-year sentence is harsh under these circumstances, and that the goals of punishment and rehabilitation can be better served with a less severe sentence. The state argues that the facts and circumstances of this case and the criminal and social history of the defendant amply justify a seven-year sentence.

The sentence of seven years at hard labor with credit for time served was less than one-fourth the maximum. This crime was committed on December 17, 1998, at which time the penalty in La. R.S. 40:967(A) for distribution of cocaine was a 5- to 30-year hard labor sentence, with the first five years being without benefit of parole, probation, or suspension of [^sentence, and a potential fine of not more than fifty thousand dollars. This instant sentence is just two years greater than the minimum sentence.

Our law on excessive sentences is also clear. The test imposed by the reviewing court in determining the exces-siveness 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. 894.1. 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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). 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. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.), writ denied, 521 So.2d 1143 (La.1988).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993).

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, 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. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed 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. Bradford, supra.

The trial court was aware of the pertinent matters prior to imposing sentence, i.e., the defendant’s first felony offender status, his reputation with the local law enforcement community as a drug dealer, his extensive criminal misdemeanor record, his social history and letters from family members requesting leniency. Thus, the record clearly shows an adequate factual basis for the sentence imposed in compliance with La. C. Cr. P. art. 894.1.

On this record, it cannot be said that the trial court imposed an excessive sentence. When the crime of distribution of cocaine and the defendant’s punishment are viewed in light of the harm done to society by |1Rillegal drugs, the defendant’s sentence does not shock the sense of justice. State v. Hogan, supra; State v. Bradford, supra.

ERROR PATENT

The defendant’s sentence is illegally lenient because the trial court failed to impose the first five years without benefit of parole, probation, or suspension of sentence. However, when a district court fails to order service of sentence without benefits in a case in which a determinate time period to be served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Officer Womack testified that the defendant went into the bathroom and came out of the bathroom with the cocaine. Officer Womack said the transaction occurred in the doorway to the bedroom. C.I. testified that he stepped out of the way, stood inside the doorway and watched while the defendant and Officer Womack stepped into the bathroom to make the transaction there.

      . In State v. Guillot, 277 So.2d 146 (La.1973), the court analyzed a similar question by the assistant district attorney and determined that it referred directly or indirectly to another crime alleged to have been committed by the defendant. The assistant district attorney asked a defense witness on cross-examination, "Do you know whether or not ... or rather, don't you know that he was involved in an accident when he was drunk about three or four weeks ago?” The court noted that the question was not purely interrogative and included an assertion by the assistant district attorney that the defendant, while drunk, had been involved in an automobile accident about three weeks before the trial. The court further noted that there can be no dispute that driving while intoxicated is a crime in Louisiana.

      . The standard for determining a defendant's connexity with the other prior crimes, i.e., by a preponderance of the evidence or by clear and convincing evidence, for purposes of determining admissibility of other crimes evidence, remains an open question in the Louisiana Supreme Court. See La.Code Evid. art. 1104. See State v. Jacobs, supra, at footnote 15.


source: Caselaw Access Project

author: | GARRISON, Judge Pro Tempore.

license: Public Domain

text:
    Diane DANIEL, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant. Brenda Hutto, Plaintiff-Appellee, v. Wal-Mart Stores, Inc., Defendant-Appellant.
    Nos. 36,451-WCA, 36,673-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      Allen & Gooch, by Charles M. Kreamer, Sr., Lafayette, for Defendant-Appellant.
    Street & Street, by C. Daniel Street, Monroe, for Plaintiff-Appellee.
    Before GASKINS, DREW and HARRISON (Pro Tempore), JJ.
   | GARRISON, Judge Pro Tempore.

The employer, Wal Mart Stores, appeals two judgnents assessing statutory penalties and attorney fees in these worker compensation cases. The claimants, Diane Daniel and Brenda Hutto, answer the appeal, seeking additional attorney fees. We reverse.

Procedural background

Daniel and Hutto were employees of the Wal Mart Super Center in West Monroe. In separate incidents, they injured their backs lifting heavy objects at work in December 2000. They filed separate disputed claims which were set for trial on December 19, 2001. They were represented by the same counsel, who appeared and announced they had settled their cases. Wal Mart’s counsel confirmed that they had resolved the matters by agreeing to pay Daniel $2,220 and Hutto $10,000, together with a full release of all claims and promises not to re-apply for work at Wal Mart. In accepting Daniel’s settlement, the WCJ stated:

After hearing the terms of the settlement, the court finds that it is in the claimant’s best interest to settle this matter, and the court hereby approves the settlement. However, I am going to require written documents to be forwarded within 30 days just so we can maintain the record.

The WCJ’s oral ruling in Hutto’s case was virtually identical.

On January 22, 2002, the claimants filed motions to enforce the settlements. They alleged that Wal Mart had failed to pay the settlements within 30 days as required by R.S. 23:1201 G. They received both sets of settlement papers on January 18, but no funds, and the amount stated in Daniel’s release was wrong. They prayed for statutory penalties and [¡.attorney fees. The cases were set for February 18 and consolidated. Both sides filed briefs, addressing whether the 1999 amendment to La. R.S. 23:1272 A makes an oral compromise, recited and acknowledged in open court, a final nonappealable judgment.

After hearing arguments, the WCJ ruled that its judgment was final on December 19, 2001. Specifically, the 1999 amendment to R.S. 23:1272 A authorizes the approval of settlements in open court. She cited Cormier v. Ellender’s Portable Bldg., 00-1595 (La.App. 3 Cir. 2/28/01), 781 So.2d 776, to hold that an oral settlement recited in open court has the same force and effect as a signed judgment. Finally, she found that even with holidays and personal emergencies, 30 days was sufficient to pay the settlements. She therefore assessed a statutory penalty of $2,400 in favor of Hutto and $1,000 in favor of Daniel, and attorney fees of $1,000 each, against Wal Mart.

Wal Mart now appeals; the claimants answer.

Discussion

Wal Mart raises two assignments of error. First it contends that there was no final judgment on December 19, as every final judgment must be “signed by the judge” and “identified as such by appropriate language.” La. C.C.P. arts.1911, 1918. It argues that in compensation cases specifically, the 30-day payment period of R.S. 23:1201 G does not begin to run until the consent judgment is signed by the WCJ. In support it cites Sanders v. Harrisonburg Nursing Home, 95-114 (La.App. 3 Cir. 5/31/95), 657 So.2d 394, writ denied 95-1629 (La.10/6/95), 661 So.2d 469, and Colbert v. Louisiana State Univ. Dental School, 446 So.2d 1204 (La.1984).

By its second assignment, Wal Mart urges that even if the December 19 judgment was final, a penalty is not warranted because nonpayment resulted from conditions over which Wal Mart had no control. La. R.S. 23:1201 F(2). It argues that because the WCJ “clearly contemplated” the need for settlement papers, there was ambiguity as to when payment was due, thus negating the imposition of penalties and attorney fees.

The approval of compromise settlements in worker compensation cases is governed by La. R.S. 23:1272. Since amendments in 1999 and 2001, this statute provides in pertinent part:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding. (Emphasis added.)

Prior to the 1999 amendment, the parties were required to file a joint verified petition in order to enforce a specific agreement to compromise a compensation claim. Colbert v. Louisiana State Univ. Dental School, supra. The amendment added the method of reciting and acknowledging, in open court, the terms of the settlement such that they can be transcribed from the record. 1999 La. Acts No. 776, § 1, effective August 15, 1999.

The 1999 amendment superseded the holding of Colbert. Cormier v. Ellender’s Portable Bldg., supra; Bellanger v. LaSalle Community Action, 02-199 (La.App. 3 Cir. 10/2/02), 827 So.2d 599. For this reason, we find Uno merit in Wal Mart’s first assignment of error, relying on Colbert and Sanders, supra. Moreover, legislation such as R.S. 23:1272, which is directed to a specific matter, will prevail as an exception to a more general statute such as C.C.P. art.1911. Smith v. Cajun Insulation Inc., 392 So.2d 398 (La.1980); Edwards v. Sawyer Indus. Plastics Inc., 31,316 (La.App. 2 Cir. 11/1/00), 790 So.2d 29, writ granted, 00-3240 (La.2/2/01), 783 So.2d 376.

Wal Mart’s second assignment, however, has merit. Enforcement of worker compensation judgments is governed by R.S. 23:1201, which provides in pertinent part:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.

The penalty provision does not apply “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” R.S. 23:1201 F(2). Awards of penalties and attorney fees in compensation cases are essentially penal in nature, and intended to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry Inc., 98-2271 (La.6/29/99), 737 So.2d 41. Although the compensation statute is liberally construed in regard to benefits, penal statutes are strictly construed. Id.; Langley v. Petro Star Corp. of La., 01-0198 (La.6/29/01), 792 So.2d 721; Harvey v. BE & K Const. Co., 34,057 (La.App. 2 Cir. 11/15/00), 772 So.2d 949, writ de nied, 00-3560 (La.3/9/01), 786 So.2d 732. Penalties and attorney fees under R.S. 23:1201 are permissible only when the facts negate probable cause for nonpayment. Durham v. Plum Creek Mfg., 32,888 (La.App. 2 Cir. 5/10/00), 760 So.2d 564, and citations therein.

As noted, the WCJ approved the settlements but also required written documents to be filed within 30 days to “maintain the record.” While the compromise was final upon compliance with R.S. 23:1272 A, Wal Mart was nevertheless under a court order to prepare a written judgment. This created some ambiguity as to whether the 30-day period of R.S. 23:1201 G was to begin running on December 19 or when the written compromise was filed. See, Kosmitis v. Bailey, 96-1573 (La.10/4/96), 680 So.2d 1167. Notably, Wal Mart did present written compromises to Daniel and Hutto within the 30-day period provided by the WCJ.

Because R.S. 23:1201 G is penal in nature, it can apply only when the employer or insurer fails, within 30 days, to comply with a clear order to pay compensation benefits. On this record, we must find that the oral order of December 19 is not sufficiently clear to warrant imposing penalties and attorney fees. The judgments will therefore be reversed.

We note that Bellanger v. LaSalle Community Action, supra, involved the same WCJ who utilized a similar procedure, approving a compromise in open court but giving the employer only 15 days to submit “the necessary documents.” The employer tendered payment over two months after the court hearing; the WCJ assessed penalties and attorney fees for failure to make timely payment. The third circuit affirmed, but obviously did not | ^consider the ambiguity in the WCJ’s oral ruling. From our close reading of the instant record, bearing in mind the strict construction of R.S. 23:1201 G, we find that penalties and attorney fees are not warranted in this case. The judgment will be reversed.

By answer to appeal, the claimants request additional attorney fees for handling the appeal. An increase in attorney fees is usually awarded when (1) the defendant appeals and obtains no relief, (2) the appeal necessitates additional work on the part of the claimant’s counsel, and (3) the claimant properly presents the issue by appealing or answering the appeal. Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App. 2 Cir. 8/23/00), 768 So.2d 186, writ denied, 00-2947 (La.12/15/00), 777 So.2d 1230. When the defendant obtains relief, no additional attorney fees are awarded. Insurance Co. of North Amer. v. Labit, 99 2449 (La.App. 1 Cir. 11/15/00), 772 So.2d 385; Palisi v. City of New Orleans Fire Dept., 95-1455 (La.App. 4 Cir. 3/12/97), 690 So.2d 1018, writs denied, 97-0953 (La.6/20/97), 695 So.2d 1352, 97-1293 (La.6/20/97), 695 So.2d 1363. Because Wal Mart obtained relief, no additional attorney fees are due.

Conclusion

For the reasons expressed, the judgments assessing statutory penalties of $2,400 in favor of Brenda Hutto and $1,000 in favor of Diane Daniel, and attorney fees of $1,000 in favor of each, against Wal Mart Stores, is reversed. Appellate costs are assessed to the claimants.

REVERSED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The 2001 amendment made further changes to R.S. 23:1272, but these have no bearing on this case.


author: 1, STEWART, J.

text:
    Ronnie Don FISH, Plaintiff-Appellant, v. GREY WOLF DRILLING COMPANY, Defendant-Appellee.
    Nos. 36,480-WCA, 36,481-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      James M. Johnson, Minden, for Appellant.
    Laborde & Neuner by Jennie P. Pelleg-rin, Lafayette, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   1, STEWART, J.

This is an appeal by Ronnie D. Fish (“Fish”) from a judgment denying his claim for workers compensation benefits and medical benefits. The judgment further found that Fish had forfeited his right to workers’ compensation because he made a material misrepresentation for the purpose of obtaining benefits in violation of La. R.S. 23:1208. For the following reasons, we affirm the workers compensation judge.

FACTS

Fish testified that on February 29, 2001, he injured his back while performing roughneck duties. The drilling crew on Grey Wolf Rig Number Fifteen was removing drill pipe when he claimed to have injured his back while lifting slips. Fish testified that when he felt pain in his back, he stopped working and went and rested for the remainder of the crew’s work shift. When the crew’s work shift ended at 5:30 a.m. on March 1, 2001, Fish went to a company mobile home on the drill site premises where he remained in bed until late afternoon. Fish told his driller, Terry Evans, that he thought he would be fine, and that he wanted no formal accident report because he feared a report of his injury would cause him and his crew members to lose a quarterly safety bonus.

On the afternoon of March 1, Fish informed Dennis Fleming, his toolpusher, of his increasing back pain. Fleming immediately took Fish for evaluation and treatment of his back injury at Minden Medical Center.

Fish immediately sought medical treatment from Dr. A.E. Dean, a Shreveport orthopaedist. Fish reported to work on light duty status until July 14, 2001, when Dr. Dean informed him that he needed back surgery.

ls.The workers compensation judge found that Fish had not met his burden of proving that he had suffered a work related injury, and that he had made a material misrepresentation in pursuit of benefits in violation of La. R.S. 23:1208.

DISCUSSION

Standard of Review

The workers compensation judge’s (WCJ) findings are subject to the manifest error rule. Cox v. Roofing Supply, Inc., 36,275 (La.App.2d Cir.8/14/02), 825 So.2d 1271. In applying the manifest error standard, the appellate court must determine not whether or not the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cox, supra. When these findings are based on credibility calls, the manifest error rule demands great deference to the WCJ’s findings. Stobart v. State., 617 So.2d 880 (La.1993). A credibility call may be reversed only when documents or objective evidence so contradict the witness’s story, or when the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit it. Rosell v. ESCO, 549 So.2d 840 (La.1989); Cox, supra. In the absence of such a showing, the WCJ’s choice between two permissible views of the evidence will not be disturbed. Cox, supra; Billington v. General Motors Corp., 31,585 (La.App.2d Cir.2/24/99), 728 So.2d 966.

In a workers compensation proceeding, the claimant bears the burden of demonstrating by a preponderance of the evidence that an employment accident resulted in disability. Blanson v. GM Inland Fisher Guide, 33,498 (La.App.2d Cir.6/23/00), 764 So.2d 307. Proof by preponderance of the evidence is sufficient, when the evidence taken as a whole, shows that the fact sought to be proved is more probable than not. Blanson, supra.

Fish contends that he met his burden of proof by giving clear and convincing testimony concerning the occurrence of the injury to his lower back while acting in the course and scope of his employment duties with Grey Wolf. Fish testified that his injury and accident occurred between midnight of February 29 and March 1 of 2001. However, he admitted that he denied that he suffered a work related trauma to his back when he went to the emergency room. He also admitted that he told Katherine Keller, a claims adjuster, that he did not hurt his back, so that the workers on his crew would not lose their safety bonus for not having an accident. Fish further stated that he was not advised by anyone at Grey Wolf not to report his injury. Fish did not tell Dennis Fleming, who also worked as a tool pusher and driller, that he hurt his back pulling slips. In fact, Fleming testified that Fish told him that his back was hurting when he woke up that morning. Fish repeated this version of how his back began hurting to his immediate supervisor, Terry Evans.

This testimony is consistent with Fish’s medical history of back pain following a motor vehicle accident in 1992. Fish advised Keller that he frequently woke up with back pain, but that it usually worked itself out. Fish later gave a statement to Keller stating that his back injury did not occur all of a sudden, but rather just increased in intensity to the point that he was unable to lift.

|4The WCJ noted that the resolution of this case was primarily based on the medical evidence and the credibility of the parties. The WCJ concluded that Fish’s version of the events giving rise to his injury was rife with inconsistencies and contradictions. Consequently, the WCJ found that Fish’s testimony was not credible, and that he failed to prove a work related accident. The medical evidence showed that Fish had a history of back trouble from two motor vehicle accidents and that he was treated as early as September 23, 1999, for a probable disc herniation. The WCJ’s conclusion was reasonable and Fish’s assignment of error is without merit.

Our finding that Fish failed to meet his burden of proof as to the occurrence of an injury because of a work related accident pretermits a discussion of Fish’s entitlement to indemnity benefits, medical expenses, penalties and attorney fees.

Material Misrepresentation

The WCJ also found that Fish was in violation of La. R.S. 23:1208 by giving a false statement for the purpose of obtaining benefits. The WCJ based this conclusion on a statement made to Katherine Keller. Section 1208 only requires three things for forfeiture of benefits: 1) a false statement or representation, including one concerning a prior injury made to an employer, physician, or an insurer; 2) which is willfully made; and which is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Contr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. Fish told Keller that he was not injured on the job to protect his crew’s | ^safety bonus which would only be given if no accidents occurred. However, the bonus was lost on March 1, 2001, when Fish was restricted to light duty.

Fish denied trauma to the emergency room physician on March 1, 2001, and made no mention of trauma to his treating physician on March 3, 2001. In fact, Fish appears to have never mentioned any February 29, 2001, trauma to any doctor that has treated him since then. Because the crew lost their bonus on March 1, Fish had no reason to lie to the physician who treated him on March 3, 2001, or when he gave a recorded statement to Ms. Keller more than four months later. This assignment is therefore without merit.

CONCLUSION

Based on the foregoing, we find no merit in Fish’s contentions and affirm the findings of the WCJ at appellant’s cost.

AFFIRMED.


author: I,WILLIAMS, J.

text:
    CATFISH CABIN OF MONROE, INC., James Hearn, Russell Hearn and H. David Hearn, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY and Anthony Sims, Defendant-Appellee.
    No. 36,363-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Curtis D. Street, for Appellant.
    Wayne Lee, Robert J. Bozeman, Monroe, Joseph A. Aluise, for Appellee, State Farm.

      William H. Hallack, Jr., Monroe, for Ap-pellee, Anthony Sims.
    Before WILLIAMS, STEWART and DREW, JJ.
   I,WILLIAMS, J.

In this tort action, the plaintiff, Catfish Cabin of Monroe, Inc. (“Catfish Cabin”), appeals a summary judgment in favor of the defendant, State Farm Fire & Casualty Company (“State Farm”). The claim arises from an e-mail sent by Anthony Sims (“Sims”), an employee of State Farm, with regard to food served at the Catfish Cabin restaurant. Catfish Cabin sought damages for defamation, libel and slander, mental anguish and embarrassment, damage to reputation and loss of revenues arising from the publication of the e-mail. Thereafter, State Farm filed a motion for summary judgment. The trial court granted the motion and dismissed plaintiffs suit. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 13, 1999, several employees of State Farm ate lunch at Catfish Cabin, a seafood restaurant. Upon returning to work, approximately four employees who had eaten at Catfish Cabin became ill. Anthony Sims, an employee of State Farm who did not eat lunch at the restaurant, learned of the employees’ illness during a conversation with another employee on the day of the incident. Later that day, Sims drafted and transmitted an e-mail to several personal friends outside the company to inform them of the incident. The e-mail read:

Hey guys,
Got word today that a particular unit from State Farm went to the “Catfish Cabin” on Louisville for a unit lunch. By the time they got back to work they were all vomiting and one passed out. An ambulance had to come pick up several of them and take them to the ER.
A manager of one of the divisions told us that it takes at the very least two to three hours for the very worst food poisoning to take that kind of effect.
12They think someone intentionally poisoned the food. Just wanted to make you guys aware. If you’ve heard anything else let me know!!
Thanks
Anthony

When State Farm’s management staff learned that Sims had transmitted the email, they suggested that he send another e-mail retracting the original message and that he write an apology letter to Catfish Cabin. Sims complied with the request.

Subsequently, Catfish Cabin and three shareholders, James Hearn, Russell Hearn and H. David Hearn, filed suit against State Farm and Sims. The plaintiffs alleged that Sims’ transmittal of the e-mail message constituted libel, slander and defamation. They argued that State Farm was vicariously liable on the basis of re-spondeat superior. Thereafter, the trial court sustained State Farm’s peremptory exception of no right of action and dismissed all claims asserted by the shareholders against State Farm, with prejudice. This court affirmed that judgment on appeal in Catfish Cabin of Monroe, Inc., v. State Farm Fire & Casualty Co., 35,710 (La.App.2d Cir.2/27/02), 811 So.2d 222. Consequently, the only remaining plaintiff is Catfish Cabin.

State Farm moved for summary judgment against Catfish Cabin on the grounds that there were no genuine issues of material fact, and, as a matter of law, State Farm could not be held vicariously liable because Sims’ actions were personal activities and not within the course and scope of his employment. Shortly before the scheduled hearing on the motion for summary judgment, Catfish Cabin filed an amended petition adding a claim 13of negligence against State Farm. State Farm submitted a supplemental memorandum that addressed the negligence claim. It argued that State Farm did not owe a legal duty to Catfish Cabin to prevent Sims’ e-mail and plaintiff failed to satisfy the requirements for liability under the duty-risk analysis of LSA-C.C. art. 2315. The trial court granted the motion for summary judgment and dismissed all claims against State Farm. Catfish Cabin now appeals.

DISCUSSION

Catfish Cabin argues that the trial court erred in granting State Farm’s motion for summary judgment because State Farm failed to prove that there were no genuine issues of material fact.

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35,718 (La.App.2d Cir.2/27/02), 811 So.2d 229. The Code of Civil Procedure prescribes and Louisiana courts have acknowledged that summary judgments are favored and are designed to secure the just, speedy, and inexpensive determination of an action. Champagne v. Angelle, 99-1317 (La.App. 3d Cir.2/2/00), 768 So.2d 55, citing LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered by the trial court after considering the pleading and documents submitted therewith, if there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

|4While the burden of proof on summary judgment initially rests upon the movant, if the movant will not bear the burden of proof at trial, he is not required to negate all essential elements of the adverse party’s claim, 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. A movant can ordinarily meet this burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37. Upon making this showing, the burden shifts to the party opposing the motion for summary judgment to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. LSA-C.C.P. art. 966(C)(2). The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin, supra, citing Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

In the instant case, the plaintiff, Catfish Cabin, has alleged that State Farm is vicariously liable and negligent for Sims’ intentional tort of defamation. Thus, in order to successfully oppose State Farm’s motion for summary judgment, the plaintiff must prove that Sims made a defamatory statement to a third person that harmed the plaintiff, and State Farm is legally responsible for Sims’ act under the theory of vicarious Lability or negligence.

Under Louisiana law, the five essential elements of defamation are: (1) defamatory words; (2) publication to a person other than the one [Bdefamed; (3) falsity; (4) malice; and (5) resulting injury. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La.1988); Bell v. Rogers, 29,757 (La.App.2d Cir.8/20/97), 698 So.2d 749. The cause of action fails if even one of these elements is lacking. Roberts v. Louisiana Bank & Trust Co., 550 So.2d 809 (La.App. 2d Cir.1989); Bell v. Rogers, supra. A defamation plaintiff bears an extremely heavy burden to withstand a motion for summary judgment. Bell v. Rogers, supra.

In Bell, we further stated, “Whether a particular statement is objectively capable of having a defamatory meaning is a legal issue to be decided by the court, considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener.” Bell v. Rogers, supra at 754, citing Kosmitis v. Bailey, 28,585 (La.App.2d Cir.12/20/96), 685 So.2d 1177.

In the instant case, we find that the statement e-mailed by Sims is not defamatory under our law. Sims expressed his opinion that the illness reported was not from food poisoning, but that “some” person intentionally poisoned the food of the ill employees. He neither stated, nor can it be inferred, that that “someone” was connected with Catfish Cabin. In fact, the opposite can be inferred and one could assume that Sims believed some third person poisoned the food.

Since we find that the statements in the e-mail transmission were not defamatory, then State Farm is neither vicariously liable nor negligent. Therefore, State Farm was entitled to judgment as a matter of law. The summary judgment in favor of State Farm was properly granted.

^CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed to Catfish Cabin of Monroe, Inc.

AFFIRMED.


text:
    Dorothy A. WEATHERTON, Plaintiff-Appellant, v. ISLE OF CAPRI CASINO, Defendant-Appellee.
    Nos. 36,677-WCA, 36,682-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      Dorothy A. Weatherton, Pro Se, for Plaintiff-Appellant.
    Lunn, Irion, Salley, Carlisle, & Gardner, by Walter S. Salley, Shreveport, for Defendant-Appellee.
    Hicks, Hubley & Marcotte, by Edwin L. Blewer, III, Shreveport, for Defendant-Appellee, Accurate Reporting.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   | GARRISON, Judge Pro Tempore.

The claimant, Dorothy A. Weatherton, appeals three judgments that dismissed all of her claims filed in the Office of Workers’ Compensation (“OWC”). The defendants are her former employer, Isle of Capri Casino, and a court reporter, Accurate Reporting. We affirm.

Ms. Weatherton, a security officer at Isle of Capri, sustained a minor work-related injury in January 1998. Because Isle of Capri refused to pay her benefits, she filed a pro se Form 1008 (disputed claim). By judgment of April 8, 1999, the WCJ awarded her two weeks of indemnity benefits and a penalty of $2,000. Neither side appealed this judgment.

Ms. Weatherton then filed a new Form 1008, seeking additional indemnity benefits, medical expenses and penalties; she also demanded a new hearing on issues she failed to raise in her first claim. She amended this Form 1008 to claim medical benefits, lost wages, pain and suffering, medical malpractice and penalties totaling over $1.8 million. Isle of Capri filed an exception of res judicata, which the WCJ sustained, dismissing all claims. In an unpublished opinion, this court affirmed with respect to claims arising before the first judgment, but amended on grounds of continuing jurisdiction, La. R.S. 23:1310.8. The effect of that judgment was to permit her to litigate indemnity and medical benefits that might have accrued after the first judgment. Weatherton v. Isle of Capri Casino, 33,772 (La.App. 2 Cir. 8/23/00), 775 So.2d 706.

|2In September 2001, Ms. Weatherton filed two more Form 1008s. The first demanded wage benefits, penalties and attorney fees. Although she made many filings expanding the issues, at two hearings on the matter she limited the issue to penalties and interest for failure to pay benefits within seven days of a judge’s order. At the first hearing, on February 11, 2002, the WCJ rejected this claim as moot because the issue was then on appeal. At the second hearing, on March 11, 2002, the WCJ sustained Isle of Capri’s exception of res judicata, holding that penalties had been adjudicated in the prior claim. Ms. Weatherton has appealed, designating both of these rulings as error.

Her other Form 1008 raised a litany of complaints against Isle of Capri; its attorney, Walter Salley; various doctors and the LSU Medical Center; and Accurate Reporting. To the extent they are comprehensible, these claims allege a massive conspiracy to deprive her of her rightful compensation. She ultimately demanded $15 million in damages. The defendants filed exceptions of lack of subject matter jurisdiction, res judicata and no cause of action. At a hearing on April 1, 2002, the WCJ sustained Accurate Reporting’s exceptions of lack of subject matter jurisdiction and res judicata, dismissing Accurate Reporting with prejudice. At a separate hearing on the same day, the WCJ found no subject matter jurisdiction over the claims of malpractice, unlawful practice, intentional tort and negligence; no cause of action against the health care providers, Isle of Capri’s attorney and other individual defendants; and a prior adjudication 18of all other claims under the Workers’ Compensation Act. These rulings were reduced to one judgment dismissing all of Ms. Weatherton’s claims against all remaining defendants with prejudice. She has appealed, designating this judgment as error.

This court consolidated the matters for briefing and argument.

Ms. Weatherton’s original brief, consisting of one typewritten page, does not designate any specific errors or advance arguments to support them. She claims “conspricy [sic ], theft of trying to deceive injuried [sic ] workers of there [sic ] benefits,” and charges the WCJ with intentionally omitting parts of prior proceedings. She also complains that the WCJ failed to hold a status conference that she requested. She then refers to her “pre-trail [sic ] statement and/or answer” for a listing of “all the reasons for the civil part of the case.” Finally, she asserts that court transcripts have been tampered with. Her reply brief reiterates she has “other proof of court records, etc., has [sic ] been tampered with.”

Ms. Weatherton designated as error the judgments of February 11 and March 11, 2002, which sustained Isle of Capri’s exception of res judicata to her claims for penalties and interest. However, she presents no argument to show that this was error, and our review of the record supports the WCJ’s conclusion that penalties were fully adjudicated at the initial hearings and by judgment of April 8, 1999. Neither side appealed that judgment. The instant judgments, sustaining the exception of res judicata, are affirmed.

The WCJ has “original, exclusive jurisdiction over all claims or disputes arising out of this Chapter [the Workers’ Compensation Act].” La. |4R.S. 23:1310.3 E. If an issue arises out of the Act, jurisdiction is vested in the OWC; however, if it merely relates to the compensation claim, the OWC does not have subject matter jurisdiction. Ellender’s Portable Bldgs. Inc. v. Cormier, 00-1724 (La.App. 3 Cir. 6/6/01), 787 So.2d 601, and citations therein. A tort claim that relates to a compensation claim must be filed in district court. Orthopedic Specialists of La. v. Western Waste Indus. Inc., 28,281 (La.App. 2 Cir. 5/13/96), 674 So.2d 1180.

We have closely reviewed Ms. Weather-ton’s briefs and the considerable filings she lodged in the OWC. Every one of her arguments sounds in tort, over which the OWC has no jurisdiction. For this reason, the judgment sustaining all defendants’ exceptions of lack of subject matter jurisdiction and no cause of action, is affirmed.

As for any other potential appellate issues, we deem them abandoned for failure to designate specific errors or provide arguments. URCA Rule 2-12.4; Weatherton v. Isle of Capri Casino, 36,343 (La.App. 2 Cir. 10/23/02, 829 So.2d 668), unpublished opinion.

For these reasons, the judgments appealed from are affirmed. All costs are assessed to Ms. Weatherton as provided by La. C.C.P. art. 5188.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, CARAWAY, KOSTELKA, and HARRISON, JJ.

Rehearing denied.

      . On remand, the WCJ awarded Ms. Weather-ton medical expenses of $750. On appeal, however, this court reversed that judgment as manifestly erroneous. The court also rejected Ms. Weatherton's appellate arguments for failure to comply with URCA Rule 2-12.4. Weatherton v. Isle of Capri Casino, 36,343 (La.App. 2 Cir. 10/23/02, 829 So.2d 668), unpublished opinion.

      . She also designates a ruling of April 1, 2002, but that is actually a judgment in the other claim.


author: J^DREW, J.

text:
    TITLESITE, L.C., Plaintiff v. Frederick Fletcher WEBB, III, et al., Defendants.
    No. 36,437-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Walker, Tooke & Lyons, by Henry Clay Walker, Shreveport, for Defendant/Appellant, Mattie Lou Brown.
    Weiner, Weiss, Madison, by Geoffrey D. Westmoreland, Shreveport, for Plaintiff/Appellee, Titlesite, L.C.
    Boggs & Thompson, Bossier City, by Jefferson R. Thompson, for Defendants/Appellees, Frederick Webb, Ruben Webb, John Webb, Paul Webb, Mark Webb, and Allison Webb; Sherwood Loe, Jr., Mae Fisher, Linda Suggs, Barbara DeSimone, Julia Lowry, John Wann, Jr., and John Wann, Sr.
    Powell Law Firm, APLC, by Walter William Gerhardt, Shreveport, for Defendant/Appellee, K. Quay McMullan.
    Before CARAWAY, DREW and HARRISON (Pro Tempore), JJ.
   J^DREW, J.

In this concursus proceeding to determine the ownership of a $5,000 deposit and original documents related to a property sale contract, Mattie Lou Brown appealed an amended judgment directing the Caddo Parish Clerk of Court to cancel and revoke two documents filed in the Conveyance Records. We observe that the portion of the amended judgment dealing with recision of the partition deeds is unsupported in the record by evidence or agreement of parties. Our review of the record, the pleadings and the scant evidence therein has revealed that this judgment is a partial judgment under La. C.C.P. art.1915. This appeal is dismissed as premature, and the matter is remanded to the trial court for further proceedings.

Piecemeal appeals are a waste of judicial resources and are not favored. Under La. C.C.P. art. 1915(B), certain partial final judgments may be appealed if designated as a final judgment by the trial court after its express determination that there is no just reason for delaying an immediate appeal. However, the appellate court may review a trial court’s decision to certify a partial judgment and dismiss the appeal if the certification was improper. When the trial court gives reasons for the certification, the appellate review is whether the trial court abused its discretion. If a trial court does not give reasons for the certification, the appellate court makes a de novo review to determine if the certification is appropriate. See discussion, Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App.2d Cir.12/9/99), 748 So.2d 594. The interests of judicial efficiency and economy of court resources will be served by these |2parties obtaining a final judgment disposing all issues among them before again seeking appellate review of this matter.

This ease arises from a failed real estate transaction concerning a 227.336 acre tract of land in Caddo Parish. The tract was owned in indivisión by a group of 15 persons including Mattie Lou Brown, the appellant. In August and September of 1999, the co-owners entered a contract to sell 152.49 acres of the land to a single buyer, K. Quay McMullan. McMullan placed a $5,000 deposit on the property transaction.

The contract in part provided that one of the co-owners, Mattie Lou Brown, would receive from the other co-owners (hereinafter referred to as the Webb Group) all of them undivided interest in a 15.16-acre portion of the total tract in exchange for her interest in the remaining 212.176 acres. |3 This exchange required the co-owners to execute a partition agreement. After the partition, the Webb Group would complete the sale of the 152.49 acres to McMullan from the 212.176 tract.

Additionally, the contract included a 120-day inspection period, extendable “at least thirty (30) days or as needed under the circumstances ...” upon notice 10 days prior to the expiration of the period, to allow the buyer to conduct a feasibility study and an environmental study. McMullan exercised her right to an extension in December 1999. In February 2000, McMullan was notified that the sale was set for closing. McMullan did not appear at closing. The closing agent filed this concursus proceeding, seeking a determination of who was entitled to the $5,000 deposit and to whom certain original documents belonged.

During the course of this litigation, McMullan transferred her interest in the contract to buy and sell to a realtor, who, in turn, transferred his interest in the transaction to Mattie Lou Brown, one of the original co-owners and the appellant here.

PLEADINGS

Titlesite, L.C. filed a concursus proceeding against the undivided owners (the Webb Group plus Mattie Lou Brown) of a 227.336 acre tract in|4Caddo Parish and K. Quay McMullan, who contracted to purchase a portion of the tract. Titlesite alleged:

• In a contract to buy and sell entered into on or about August 10, 1999, McMullan and the 14 undivided owners contracted for McMullan to buy 152.49 acres.
• McMullan paid a deposit of $5,000.
• In an April 3, 2002, letter, the attorney for the sellers advised McMullan the closing was scheduled at 2:00 p.m. on February 25, 2000, at the United Title of Louisiana, Inc. offices.
• Further, the sellers asserted that McMullan breached the contract by failing to appear at the closing.
• The 14 undivided owners contended they were entitled to a forfeiture of the $5,000 deposit held in escrow by Titlesite.
• McMullan countered that she did not breach the contract and objected to the release of funds.
• Titlesite placed the funds in the registry of the court and sought to have the defendants ordered to assert their claims contradictorily.

In their answer to the concursus filed August 29, 2000, the Webb Group made a reconventional demand against K. Quay McMullan. The Webb Group alleged:

• McMullan was liable to forfeit the $5,000 earnest money under the Contract to Buy and Sell in § 8.2 Sellers Remedies.
• § 7.1 of the Contract to Buy and Sell contemplated a partition of certain property among the undivided owners. Damages may result from McMullan’s actions in obtaining or recording deeds in expectation of enforcing the provisions of § 7.1, which is now moot. Therefore, McMullan is liable to the Webb Group for costs associated with remedial measures required to return the ownership to the status quo prior to the Contract to Buy and Sell.
• Those damages would be addition to damages arising from McMullan’s nonperformance of the contract.
• The Webb Group sought a determination that McMullan had breached the Agreement, judgment for $5,000 and an award for all costs associated with remedying changes in ownership interests among the undivided co-owners.

|BOn September 25, 2000, Titlesite filed a first amended petition which corrected the spelling of two names of undivided owners and incorporated the eight paragraphs of the original petition. In addition, Titlesite alleged that Titlesite possessed original documents held in escrow pursuant to the agreement of the parties. Titlesite sought leave to deposit the original documents in the registry of the court and impleaded all parties to assert their claims to the documents. On September 28, 2000, the Webb Group answered Titlesite’s first amended petition.

On October 3, 2001, Brown filed an “Answer to Petition for Concursus and for Declaratory Judgment,” attached a copy of the Contract to Buy and Sell (Agreement), and asserted:

• The Agreement between the sellers and McMullan in Article 19.1 provided the effective date of the Agreement “shall mean the date when a copy of this contract is executed by the last SELLER signatory,” and Webb’s date of execution was 9/9/99.
• Article 6.1 of the Agreement clearly and unambiguously provided that the term of the Agreement shall run for 120 days or until January 8, 2000, within which term McMullan was to perform appraisals, environmental evaluations and other due diligence.
• Article 6.2 of the Agreement clearly and unambiguously provided that McMullan could obtain an extension of at least 30 days as needed for rezoning or wetlands determination.
• McMullan’s December 2, 1999, letter to the Webb Group formed the basis for an extension under Article 6.2.
• McMullan’s February 24, 2000, letter to the co-owners set forth the basis for an additional extension to perform a wetlands evaluation.
• A February 17, 2000, letter from William Peatross to McMullan set the time of closing at 2:00 p.m., Friday, February 25, 2000, pursuant to § 17.1 of the Agreement.

• The ex parte setting of closing, the manner of notification and the selection of the closing attorney disregarded §§ 6.1 and 6.2.

As a plaintiff-in-reconvention, Brown asserted that:

• McMullan assigned and transferred her right, title and interest covering the entire Agreement to a realtor on February 6, 2001.
| k* The realtor then assigned and conveyed the Agreement dated August 9, 1999, and effective September 9, 1999, to Brown as of June 28, 2001.
• McMullan, the realtor and Brown have adhered to all contractual obligations.

Brown’s pleadings did not contain a prayer for any particular relief.

NOVEMBER 12, 2001, HEARING ON CONCURSUS

The attorney for the Webb Group and the attorney for Brown (to whom McMul-lan assigned her rights) agreed at the outset that after putting on evidence, they would obtain a partial consent judgment. The Webb Group attorney explained in argument to the trial court that:

• Originally, the undivided co-owners of the tract were to have a voluntary partition leaving Brown with a piece of the property. The partition arrangement was at the back of the contract.
• The co-owners planned to sell to McMullan.
• It was contemplated that the documents would be executed and recorded at the time the deed was.
• § 6.1 of the contract signed in August 1999 gave McMullan 120 days to perform feasibility studies.
• § 6.2 of the contract provided that the feasibility study period could be extended 30 days within 10 days prior to the expiration of the original time.
• On December 2, 1999, McMullan exercised the extension.
• On February 17, 2000, the attorney with United Title notified McMullan that the closing was set for February 25, 2001.
• McMullan did not appear at the closing; the attorney for United Title notified McMullan that her failure to appear put her in default under the contract, which was terminated, and made the default provisions applicable; i.e., forfeiture of $5,000 earnest money.
• The Webb Group sought a determination that the contract was terminated by McMullan’s default and that voluntary partition documents executed in contemplation of the sale were supposed to have been held until closing.
• Some documents were recorded because they were not held by the Webb Group’s attorney or through inadvertence. Those documents needed to be cancelled or determined to have no effect; the attorneys for the Webb Group and Brown did not know at the hearing how many were actually recorded.
• Brown may have given up some of her interest in the rest of the property to receive sole ownership in a piece; documents executed and recorded that changed ownership prior to the date of the contract 17needed to be rescinded, and the parties were going to have to take responsibility to make sure that gets done.

The Webb Group’s attorney then asked if that was “pretty accurate,” to which Brown’s attorney stated to the court, “That’s accurate.” The trial court informed both attorneys: “You’re going to have to do that by deed. That’s not something I can do.” The Webb Group’s attorney responded that he needed a court order to force the parties to sign the deeds. The trial court stated: “I can’t change the title.”

As rebuttal, the attorney for Brown argued to the trial court that:

• The effective date of the contract to buy and sell was September 9, 1999, and McMullan sought an extension on December 2,1999.
• § 6.2 of the contract stated: “The seller agrees to grant purchaser an extension of the inspection period of at least 30 days or as needed under the circumstances if necessary in securing a rezoning classification or a wetlands determination.”
• On February 24, 2000, McMullan advised the sellers she was availing herself of the extension period for a wetlands determination for 30 days or as needed.
• Therefore, on February 24, 2000, McMullan was not in default because she needed to resolve the wetlands problem.
• The key issue was who was in default.
• The February 25, 2000, closing was an ex parte closing contrary to § 17, which provided that the buyer and seller would agree on a time and place.
• Through her attorney, Brown agreed that the parties should be taken back to where they were, but disputed that the $5,000 deposit should go to the sellers.

The Webb Group’s attorney pointed out that if the $5,000 were forfeited to the sellers, a portion would go to Mattie Lou Brown, one of the original co-owners who contracted with McMullan.

TRIAL COURT’S JUDGMENTS

In a judgment signed November 21, 2001, the trial court ruled:

... the purchaser breached the contract by failing to complete the sale with (sic) 15 days after the expiration of the extension of | sthe inspection period, and the money deposited in the registry of the court in these proceedings is to the paid by the Clerk of Court to the “sellers” in proportion to their respective interests in the property as stipulated by them.

Notice of the judgment was sent on November 26, 2001.

Aside from the motion and order for the withdrawal of Brown’s counsel of record, the next filing is an amended judgment signed January 24, 2002, in which the trial court stated the matter came before the court on a Coneursus Petition and the court had considered the evidence, argument and law. The trial court then repeated the foregoing paragraph from the November 21, 2001, judgment. In addition the judgment ordered, adjudged and decreed:

... the voluntary acts of partition prepared in connection with the contract and contemplated as a part of the sale are null and void, and the Clerk of Court is hereby ordered to cancel and revoke those certain documents recorded as Instrument number 1781994 in Conveyance Book 3506 at Page 130-150; and Instrument number 1682532 in Conveyance Book 3361 in Page 164-1890.
ORIGINAL JUDGMENT READ, RENDERED AND SIGNED in chambers on the 21st day of November 2001, and this amended Judgment read, rendered and signed in chambers on the 24th day of January, 2002.

Notice of the judgment was sent on March 1, 2001. Attached to the judgment (but not in evidence or a part of the record on appeal) was correspondence among the parties and their attorneys indicating the partition documents were to be held in escrow until the closing of the sale to McMullan and that, should the sale not close, the unrecorded partitions were to be returned to the title company.

Brown filed an appeal from the final judgment. The order granting the appeal referred to an appeal from the amended judgment signed ^January 24, 2002. On April 4, 2001 on motion by Brown, her suspensive appeal was converted to a de-volutive appeal.

PROCEDURAL MATTERS IN APPELLATE COURT

After the record was lodged, this court on May 23, 2002, directed the parties to show cause why the appeal should not be dismissed as untimely, since no motions for new trial or appeal were filed following the November 26, 2001, notice of the November 21, 2001, judgment. The amended January 24, 2002 judgment repeated the substance of the initial judgment and added relief concerning the partitions, which was not sought by the appellant, Brown.

The attorney for Brown responded that she appealed only that portion of the amended judgment rescinding the partition deeds and that she could not have appealed during the 60-day delay following the initial judgment, since more than 60 days elapsed between the initial November 21, 2001, judgment and the amended January 24, 2002, judgment. By order of June 13, 2002, this court recalled its show cause order and ordered the appeal maintained on the docket. In addition, appellant was directed to show cause whether this was a prohibited substantive amendment under Stevenson v. State Farm, 624 So.2d 28 (La.App.2d Cir.1993).

DISCUSSION

This litigation commenced as a eon-cursus proceeding, which is governed by La. C.C.P. art. 4651 et seq. C.C.P. art. 4656 provides:

Each defendant in a concursus proceeding is considered as being both a plaintiff and a defendant with respect to all other parties. No exceptions or responsive pleadings may be filed to the answer of a defendant, and every fact alleged | intherein is considered as denied or avoided by effect of law as to all other parties. If a defendant fails to answer, issue need not be joined by default.

The closing agent initiated the proceedings to determine who should receive the $5,000 deposit made by McMullan and amended its petition to determine to whom original documents belonged. Both the funds and the documents were deposited in the registry of the court. The record does not contain the exact nature of the “original documents” about which the title company sought relief and does not resolve that portion of the concursus. We presume the “original documents” placed in the court’s registry pertain to the partition contemplated by the contract among the parties. Since both the initial judgment and the “amended judgment” left the document issue in the concursus unresolved, both judgments are partial ones.

In answering the concursus, the Webb Group asserted (in what they styled a re-conventional demand) that § 7.1 of the contract contemplated a partition among the co-owners and that damages may have resulted from McMullan’s acts in obtaining and/or recording deeds prepared in anticipation of completing the terms of the contract. The Webb Group asserted McMul-lan would be liable for costs associated with remedial measures required to “return the ownership of the subject property to owners in the ownership interest as it existed prior to entering the Agreement.” Among the relief for which the Webb Group prayed was for “all costs associated with remedying any changes in the ownership interest of the WEBB FAMILY members by the actions of K. Quay McMullan as it relates to the partition contemplated in the agreement....”

|nThe initial judgment ruled that McMullan breached the contract and directed that the Clerk of Court pay the deposited money to the “sellers” in proportion to their respective interests. That judgment and the identical provisions in the amended judgment are not an issue in this appeal, which is limited to a dispute over whether the partition documents recorded in the Conveyance Records of Cad-do Parish should be rescinded. However, the Webb Group never specifically sought recision of the partitions in their pleadings, which instead sought an award for all costs associated with remedying changes in ownership interests among the undivided co-owners.

Brown’s pleadings did not seek to have the partition maintained and contained no prayer for relief. Yet on appeal, Brown argued the portion of the amended judgment cancelling the partition deeds should be reversed because:

• The contract was designed with the partitions in mind, and the contract was clearly contingent on the partition.
• No language in the contract made the partitions contingent on the contract.
• The partition deeds were voluntary.

The Webb Group essentially argued in brief on appeal that the parties intended this to be a consent judgment holding that the contract had been breached by the buyer and that the voluntary partitions were part of the intended sale and were to be annulled. That argument is belied by the argument of counsel at the hearing. Although there were initial references to a consent judgment, the Webb Group’s attorney sought a determination that the contract was terminated by McMullan’s default and that the partition documents needed to be rescinded. In contrast, Brown’s attorney 112stated that Brown denied that she was in default and that the $5,000 deposit should go to the sellers. Further, her trial counsel stated that Brown agreed the parties should be taken back to where they were. Trial counsel for Brown withdrew prior to the entry of the amended judgment. Her counsel on appeal argues that the partition deeds should be maintained on the public records. Clearly, there is no basis that the parties agreed to a consent judgment regarding the status of the partition.

It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings. The appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits not filed in evidence are not part of the record on appeal. The briefs of the parties and the attachments thereto are not part of the record on appeal. Further, this court does not consider exhibits filed in the record which were not filed into evidence. Tranum v. Hebert, 581 So.2d 1023 (La.App. 1st Cir.1991), writ denied, 584 So.2d 1169 (La.1991).

Present in the record after the amended judgment are documents which were presumably presented to the trial court in support of the amended judgment, although there was no hearing, no stipulation and no indication these documents were filed into evidence. Therefore, the documents are not part of the appellate record and were not considered by this court. As noted previously, there are also no clear pleadings in the | ^appellate record for the portion of the amended judgment pertaining to the partition deeds. As “plaintiffs” under the provision of La. C.C.P. art. 4656, they must pray for relief regarding the partition.

This court in Stevenson, supra, cited La. C.C.P. art.1951, which allows amendment of final judgments at any time to alter phraseology, but not the substance, or to correct errors in calculation. Therefore, a trial court may amend a final judgment so long as the change takes nothing from or adds nothing to the original judgment. As a general rule, a final judgment is not subject to substantive amendment on motion of the trial court or any party. The appropriate action is a timely application for new trial or timely appeal. An improperly amended judgment containing substantive changes is an absolute nullity. Stevenson, supra. If this court viewed the November 21, 2001, judgment as a final judgment, then the January 24, 2002, judgment which contains substantive changes clearly would be a nullity to be given no effect. As it is, the “amended judgment” is unsupported by the contents of this record. Further, we conclude that the “amended judgment” is an uncertified partial judgment because unresolved issues remain pending among the parties. Moreover, the initial judgment is also a partial judgment for the same reason.

The unresolved issues among these parties include a decision on the “original documents” placed at issue in the concursus. Therefore, the appeal from the uncertified partial judgment is premature. Further, the parties are instructed that further appeals from any partial judgments, certified or not, would be piecemeal litigation which is contrary to judicial | ^efficiency in this dispute. This matter is remanded for further proceedings in which the parties may amend their pleadings and seek a contradictory hearing to litigate the unresolved issues among them. If necessary, an appeal may be taken from a judgment which finally resolves all pending issues among the parties.

CONCLUSION

The appeal from this uncertified partial judgment is dismissed as premature. The matter is remanded to the trial court for further proceedings in which all pending issues between the parties should be resolved.

Costs are assessed against appellant and appellees equally.

APPEAL DISMISSED AS PREMATURE. REMANDED.

      . 7. AGREEMENT SUBJECT TO PARTITION OF MATTIE L. BROWN'S INTEREST

        7.1 PARTITION. The SELLERS shall execute a Voluntary Act of Partition on the form and in conformity with the substance of the form for partition as contained in "EXHIBIT B” which is incorporated and made a part hereof for all purposes to this Contract. Such voluntary partition shall be executed at a mutually convenient date within five (5) days following the execution of all parties, both SELLERS and PURCHASER, of this CONTRACT TO BUY AND SELL or no later than on a date contemporaneous with the execution of the Deed at Closing covering the 152.49 acre tract described herein. The Voluntary Act of Partition will partition the entirety of the approximate 227.336 acre tract as described therein in the proportions as follows:
      (a) To MATTIE L. BROWN, a general warranty deed of all co-owners’ right, title and interest (14/15) which results in a conveyance in fee simple to the said MATTIE L. BROWN of the approximate 15.16 acre tract as delineated on plat labeled "EXHIBIT C” annexed and made a part hereof for all purposes; and
      (b) From MATTIE L. BROWN, a general warranty deed of her right, title and interest to an undivided one-fifteenth (1/15) interest in fee simple of the approximate 212.176 acre tract representing the balance of the area held in co-ownership with MATTIE L. BROWN and the SELLERS as delineated on plat labeled "EXHIBIT D” annexed and made a part hereof for all purposes.
      It is clearly and distinctly understood that the inducement of PURCHASER in the execution of this agreement is predicated on the execution of all co-owners of the said Voluntary Act of Partition. The offer of purchase to the PROPERTY is conditioned and made subject to the timely execution thereof by the SELLERS of the Voluntary Act of Partition.

      . In fact, the attached letter was dated April 27, 2000, and was from the Webb Group’s attorney, who stated that the April 3, 2000 letter informed McMullan that the contract was terminated and her deposit forfeited. The Webb Group demanded that the $5,000 in escrow be paid to the sellers.