author: h GASKINS, J. JjPER CURIAM. | STEWART, J.,

text:
    STATE of Louisiana, Appellee, v. Glenn E. HOWARD, Appellant.
    Nos. 37,580-KA, 37,581-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Opinion Granting Rehearing in Part Oct. 23, 2003.

      Derrick D. Carson, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   h GASKINS, J.

The defendant, Glenn E. Howard, entered pleas of guilty to one count of attempted manufacture of methamphetamine and one count of possession of methamphetamine with intent to distribute. The pleas were entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving the defendant’s right to appeal the denial of his motion to suppress the evidence against him. The trial court sentenced the defendant to serve five years at hard labor, without benefit of parole, probation, or suspension of sentence, for attempted manufacture of methamphetamine, and five years at hard labor for possession of methamphetamine with intent to distribute. The sentences were ordered to be served concurrently. The defendant now appeals the denial of his motion to suppress, and claims that the sentences imposed are excessive. For the following reasons, we affirm.

FACTS

On December 31, 2001, following a tip from a confidential informant, Franklin Parish Sheriffs deputies investigated allegations that the defendant and several individuals were manufacturing methamphetamine at the defendant’s camp house. The deputies received the defendant’s permission to search the house and discovered materials used in the production of methamphetamine, as well as the finished product. They also discovered marijuana, which the defendant acknowledged was his. The defendant was arrested and charged with the manufacture of methamphetamine, and possession of methamphetamine with intent to distribute. On December 12, 2002, the defendant filed a motion to suppress the evidence against him, as well as any statements he made during his detention and/or arrest. He [¡.claimed that he did not consent to the search of the camp house. The motion to suppress was denied by the trial court. Pursuant to a plea bargain, the defendant entered pleas of guilty to attempted manufacture of methamphetamine and to possession of methamphetamine with intent to distribute. The pleas were entered pursuant to Crosby, with the defendant reserving the right to seek review of the ruling on the motion to suppress.

The defendant was sentenced to serve 10 years at hard labor on each count, with the sentences to run concurrently. The sentences were suspended and the defendant was placed on supervised probation for five years.

The state filed a motion to reconsider the sentences, arguing that attempted manufacture of methamphetamine carries a mandatory sentence of at least five years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court granted the motion to reconsider and resentenced the defendant to serve five years at hard labor without benefits for attempted manufacture of methamphetamine and five years at hard labor for possession of methamphetamine with intent to distribute, with the sentences to run concurrently. The defendant was given credit for time served and was allowed to post an appeal bond.

The defendant appealed, claiming that the trial court erred in denying his motion to suppress the evidence and that the sentences imposed were excessive.

| ,.MOTION TO SUPPRESS

The defendant contends that the trial court erred in denying his motion to suppress. He argues that the warrantless entry into the camp house was unlawful and without his consent and asks that all physical evidence and his statements be suppressed. In his amended motion to suppress, he also objected to the use of all statements made after he was arrested and transported to the detention center in Franklin Parish.

La. Const, art. 1 § 5 provides:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

Motions to suppress are governed by La C. Cr. P. art. 703 which provides in pertinent part:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the 14defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
E. (1) An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.

A warrantless search and seizure is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Talbert, 449 So.2d 446 (La.1984). A valid consent search is a well-recognized exception to the warrant requirement, but the burden is upon the state to prove that the consent was given freely and voluntarily. State v. Crews, 28, 153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. An oral consent to a search is valid. State v. McGill, 31,202 (La.App.2d Cir.9/23/98), 720 So.2d 720, writ denied, 1998-2721 (La.2/5/99), 737 So.2d 746.

Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. These factual determinations are to be given great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Ossey, 446 So.2d 280 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); State v. Durr, 28,197 (La.App.2d Cir.6/26/96), 677 So.2d 596.

In this matter, the defendant filed a motion to suppress all evidence seized from his camp house and outbuildings. He also sought to suppress |sall statements he made to law enforcement officials. He argued that he did not give free and voluntary consent of any kind to any search of his “premises, camp house or any outlying buildings on the said property.” He argued that his initial encounter with Deputy Kevin Bass of the Franklin Parish Sheriffs Office constituted an unlawful detention and arrest because it was made without an arrest warrant and without probable cause to arrest.

On December 31, 2001, Deputy Bass received a tip from a confidential informant that the defendant and other individuals were manufacturing methamphetamine at the defendant’s camp house. At around 2:00 a.m., Deputy Bass and Deputy Don Ferrington arrived at the camp house to investigate. They observed a fire in the front yard and saw a man standing near the fire turn and walk into the house. Deputy Bass noted the smell of “starting fluid” which contains ether and is used in the manufacture of methamphetamine.

Deputies James Freeman and Kenneth Alexander were called for assistance. When they arrived approximately one and one-half hours later, Deputies Bass and Ferrington approached the camp house. Deputy Alexander covered the back door while Deputy Freeman detained two individuals in a vehicle who were attempting to leave the area. At the hearing on the motion to suppress, Deputy Bass testified that he knocked on the door of the camp house at 3:30 a.m. and the defendant answered. Deputy Bass noticed a slight odor of alcohol on the defendant which was not detected by Deputy Ferrington. Both deputies stated that the defendant | fidid not appear to be intoxicated. He did not appear to be unsteady on his feet and did not have slurred speech.

Deputy Bass inquired about the smell of ether and asked the defendant if he and his companions were making “dope” inside. The defendant said they were not and refused to allow the deputies inside the house.

The defendant then asked Deputy Bass if he would be arrested if he showed him what was in the camp house. He was told that he would be arrested. According to Deputies Bass and Ferrington, the defendant then opened the door to the house and motioned for them to enter. Deputy Bass said that the defendant motioned with his hand. Deputy Ferrington testified that the defendant gestured with his head.

Deputy Bass stated that upon entering the house, the defendant showed them a duffel bag with material used for the manufacture of methamphetamine. Several other persons were present in the house and moving about. No one was asleep. After securing the premises, another duf-fle bag was found in the bathroom. Homemade hydrogen chloride gas generators were found outside the bathroom window. The window was open and a fan was blowing, even though it was a cold night. Several grams of methamphetamine were found in the house. Deputy Bass was told that the production “didn’t turn out” and only a few grams were produced that night.

Deputy Bass testified that he took the defendant outside and told him that he could stop the search, but the defendant told him to continue because |7he knew he was guilty. Numerous items used in the production of methamphetamine were recovered in the house as well as some marijuana that the defendant acknowledged was for his personal use. Several weapons were also recovered. Outside a shed on the property, an insulated cooler of anhydrous ammonia, a chemical used in the manufacture of methamphetamine, was recovered. Deputy Bass stated that the defendant did not make any statements until he was read his Miranda rights.

Deputy Ferrington corroborated the testimony of Deputy Bass that the defendant initially denied access to the camp house, but later opened the door and motioned for them to follow him inside. Deputy Fer-rington said that there was a strong odor of ether in the house, and that numerous items associated with the production of methamphetamine were located in the house. He said that all occupants of the house were read their Miranda rights.

Deputy Alexander testified that he was called to the house by Deputy Bass and that he covered the back door of the house. Deputy Alexander said that he found materials outside the bathroom window used for the production of methamphetamine. After entering the house, Deputy Alexander said that he did not see or hear the defendant object to the search.

The defendant testified at the suppression hearing and stated that on December 31, 2001, prior to the arrival of law enforcement officers, he had consumed 12 beers and some methamphetamine. He said that he had not slept in a couple of days. However, the defendant claimed that he wasn’t so tired that he thought he needed to sleep. He testified that he doesn’t [sremember if he initially refused to alow the officers to enter the camp house. The defendant denied making a motion for the officers to enter the house and denied giving permission for the officers to enter and search the premises. He claimed that Deputy Bass alone folowed him into the house after knocking on the door. The defendant acknowledged that at one point, Deputy Bass took him outside and asked whether there were drugs in the house. He disputed the testimony that Deputy Bass told him that he could stop the search. The defendant claims that he was not given his Miranda rights until he was arrested and placed in the deputies’ vehicle. The defendant stated that he was not under the influence of drugs or alcohol when he made a statement to deputies later that morning after his arrest.

Under the facts presented, the trial court did not err in denying the motion to suppress. The trial court, as trier of fact, found the testimony of the deputies to be credible and rejected that of the defendant. The deputies had information from a confidential informant that drugs were being manufactured in the camp house. There was activity in and around the house and a strong smel of ether was detected coming from inside the house. The defendant was informed as to why the deputies were present and what they were looking for. The defendant was aware that if drugs were found, he would be arrested.

The testimony of Deputy Bass, as corroborated by Deputies Ferrington and Alexander, shows that the defendant gave consent to allow the deputies to enter and search the house. The defendant motioned for the deputies to come inside the house. Under some circumstances, even a 19gesture may be sufficient to convey vald consent to search. State v. Brown, 598 So.2d 565 (La.App. 4th Cir.1992), writ denied, 605 So.2d 1092 (La.1992). No force, threats, or promises were used to gain permission to search the house.

The defendant sought to suppress his statements based upon them being “fruit” of an ilegal search. Our finding that the defendant gave vald consent to search negates his theory that his statements must be suppressed because they emanated from an ilegal search.

After alowing the deputies to enter the house, the defendant showed them where some of the materials used in the production of methamphetamine were located. The defendant was informed that he could stop the search, but he chose not to do so, saying that he knew he was gulty. Also, in an unsolicited statement, he identified some of the property as his. Even if the defendant had been in custody, but no Miranda warnings had been given at the time these statements were made, he was not being subjected to interrogation. The special procedural safeguards of Miranda were not required. These statements were properly ruled to be admissible. See State v. Payne, 2001-3196 (La.12/4/02), 833 So.2d 927; State v. Robinson, 384 So.2d 332 (La.1980); State v. Williams, 36,456 (La.App.2d Cir.10/4/02), 827 So.2d 1286.

Further, al parties agree that once the defendant was arrested and taken into custody, his Miranda rights were given before he made any statements.

h Although Deputy Bass testified that the defendant had a sight odor of alcohol about his person, al the deputies agreed that the defendant did not appear to be impaired by drugs or alcohol and understood the seriousness of the situation. The defendant corroborated this as wel. The degree of intoxication is but one of the circumstances to which the trial judge must look in assessing the voluntariness of the consent to search. State v. Edwards, supra. In this case, the trial court was within its discretion in finding voluntary consent to search the house as well as a valid detention and arrest of the defendant. The trial court did not err in granting the motion to suppress.

EXCESSIVE SENTENCE

The defendant contends that the sentences imposed upon him are excessive. We note that the defendant did not file a motion to reconsider his sentences. Therefore we are limited to a review of the bare claim that the sentences are constitutionally excessive. State v. Duncan, 30,458 (La.App.2d Cir.2/25/98), 707 So.2d 164; State v. Daggs, 36,216 (La.App.2d Cir.8/14/02), 823 So.2d 1093.

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. Caldwell, 32,377 (La.App.2d Cir.9/22/99), 742 So.2d 91; State v. Daggs, swpra. A sentence is deemed to be grossly disproportionate if, when the crime and punishment are weighed in In light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985). A district court has wide discretion to sentence within the statutory limits, and such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Square, 433 So.2d 104 (La.1983).

At the original sentencing, the court noted that the defendant allowed some individuals to use his camp house to manufacture methamphetamine in exchange for a quantity of the drug for his own use. The camp was forfeited as a result of the criminal charges. The court noted that the defendant had a good work ethic and supported his elderly mother. Other than a DWI conviction in 1989, the defendant had no prior criminal record. The court stated that the defendant had used drugs since his 20’s and had never undergone any sort of drug treatment.

The court found that the goals of rehabilitation and deterrence would not be served by a lengthy sentence in this matter. The court then imposed an illegally lenient sentence of 10 years at hard labor, on each count, to run concurrently, suspended the sentences, and placed the defendant on five years supervised probation.

However, at the time of the offense, La. R.S. 40:967(B)(3) provided for a mandatory hard labor sentence for the manufacture of methamphetamine of 10 to 30 years, “at least ten years of which shall be served without benefit of parole, probation, or suspension of sentence.” Because the defendant pled guilty to attempted manufacture of methamphetamine, the minimum sentence is five years at hard labor without | ^benefit of parole, probation, or suspension of sentence. La. R.S. 40:979. Also, for the conviction of possession of methamphetamine with intent to distribute, the sentencing range was not less then two years nor more than thirty years at hard labor. La. R.S. 40:967(B)(1).

After acknowledging that the original sentence was illegally lenient, the court resentenced the defendant to serve five years at hard labor, without benefit of parole, probation, or suspension of sentence for attempted manufacture of methamphetamine and five years at hard labor for possession of methamphetamine with intent to distribute. The sentences were ordered to be served concurrently.

The defendant has not shown that the mandatory minimum sentence in this case is constitutionally excessive. The defendant knowingly and voluntarily allowed others to use his camp house for the manufacture of methamphetamine. The charges against the defendant were reduced, in exchange for his plea, and the charges of possession of marijuana and reckless handling of hazardous materials were dismissed.

The defendant has not shown clearly and convincingly that he is exceptional, which in this context means that because of the unusual circumstances, the defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the ease. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03),13 840 So.2d 1213. The sentences are tailored to the offender and the offense and are not excessive.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling denying the defendant’s motion to suppress the evidence against him. We also affirm the convictions and the sentences imposed.

AFFIRMED.

STEWART, J., concurs with reasons.

JjPER CURIAM.

ON REHEARING

LIMITED REHEARING GRANTED.

The defendant was originally sentenced to 10 years at hard labor for attempted manufacture of methamphetamine and 10 years at hard labor for possession of methamphetamine with intent to distribute. The sentences were to run concurrently, but were suspended and the defendant was placed on supervised probation for five years.

The prosecution filed a motion to reconsider, claiming the sentence for attempted manufacture of methamphetamine was illegally lenient. The state argued that under La. R.S. 40:967 and 40:979, a portion of the sentence for attempted manufacture of methamphetamine must be served without benefit of parole, probation, or suspension of sentence. The .state also contended that a mandatory minimum sentence applied.

The trial court agreed and granted the state’s motion. The defendant was resen-tenced to serve five years at hard labor without benefits for attempted manufacture of methamphetamine. He was also sentenced to serve five years at hard labor for possession of methamphetamine with intent to distribute, with the sentences to run concurrently.

The defendant did not file a motion to reconsider his sentences in the trial court. On appeal the defendant argued that the sentences were excessive.

The defendant sought rehearing. This court invited the state and the defendant to address the issue of a mandatory sentence for attempted manufacture of methamphetamine.

|{>La. R.S. 40:967 provides that the penalty for manufacture of methamphetamine is a sentence of imprisonment at hard labor for not less than 10 years nor more than 30 years, at least 10 years of which shall be served without benefit of parole, probation, or suspension of sentence. In addition, a defendant may be sentenced to pay a fine of not more than five hundred thousand dollars. Regarding the penalty for an attempt, La. R.S. 14:27 is the general attempt statute and states in pertinent part:

D. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. [Emphasis supplied.]

However, La. 40:979 provides a more specific statute on attempts to commit drug offenses. That statute provides:

A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. [Emphasis supplied.]

The state may choose which of these statutes to use in prosecuting a defendant. State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Thomas, 95-2348 (La.App. 1st Cir.12/20/96), 686 So.2d 145, writ denied, 97-0192 (La.3/14/97), 690 So.2d 36. In the present case, when the state amended its bill of information, the defendant was charged under La. R.S. 40:979.

Some disagreement existed as to whether mandatory minimum sentences are required under the wording of these statutes. In State v. Callahan, 95-1331 (La.3/29/96), 671 So.2d 903, the Louisiana Supreme Court found that La. R.S. 14:27 provides only a maximum sentence for a conviction for an attempt to commit a crime. In that case, the defendant was convicted of attempted possession of marijuana with intent to distribute. The court found that there was no express statutory minimum sentence for an attempt under that provision and the principles of leniency required that the statute be strictly construed.

State v. Thomas, supra, considered the differences in La. R.S. 14:27 and 40:979, as written before the amendment. In that case, the defendant was convicted of attempted possession with intent to distribute cocaine in a drug free zone. That court concluded that although the supreme court in Callahan ruled that there was only a maximum sentence under La. R.S. 14:27, the different language in La. R.S. 40:979 required a mandatory minimum sentence.

In State v. Odle, 2002-0226 (La.App. 3d Cir.11/13/02), 834 So.2d 483, writ denied, 2003-0625 (La.6/20/03), 847 So.2d 1219, the defendant was convicted of attempted possession of 400 or more grams of cocaine. Because the court could not determine if La. R.S. 14:27 or La. R.S. 40:979 Lapplied, the matter was remanded. However, the court stated that if La. R.S. 40:979 applied, as written before the 2001 amendment, there is a mandatory minimum sentence. The court also expressed agreement with the dissent in State v. Callahan, supra. See also State v. Chatman, 599 So.2d 335 (La.App. 1st Cir.1992); State v. Williams, 588 So.2d 1239 (La.App. 1st Cir.1991), writ denied, 592 So.2d 1333 (La.1992); State v. Laprime, 521 So.2d 538 (La.App. 4th Cir.1988), writ denied, 524 So.2d 517 (La.1988).

In the present case, at the time the court heard the motion to reconsider the sentence, the amendment to La. R.S. 40:979 was in effect. We do not know if the trial court considered the amendment to the provision in finding that the sentence, as originally imposed, was illegally lenient. Because the language in La. R.S. 14:27 and 40:979 is now virtually identical, it would appear that the reasoning of State v. Callahan, supra, would apply and there is no longer a mandatory minimum sentence for an attempt. The current sentencing range for attempted manufacturing of methamphetamine is 0-15 years at hard labor, to be served with or without benefit of parole, probation, or suspension of sentence.

While the original and the subsequent sentences imposed for attempted manufacture of methamphetamine fall within the sentence parameters, the trial court’s ruling that the first sentence was illegally lenient is in error. Since the judge based his sentence for the second charge, possession of methamphetamine with intent to distribute, on the sentence imposed on the attempted manufacture of methamphetamine, justice demands that the sentences be vacated. We remand for further proceedings. |s We deny the rehearing application regarding our ruling on the motion to suppress.

SENTENCES VACATED; REMANDED.

| STEWART, J.,

concurs.

I agree that the trial court’s ruling that the first sentence was illegally lenient is in error. However, instead of remand, I would reinstate the original probated sentence.

      . This statute was amended by Acts 2001, No. 404 § 4, effective June 15, 2001, six months before this offense. It changed the wording of paragraph A to make it very similar to the wording of La. R.S. 14:27. Prior to the amendment, that paragraph read as follows:
      Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. [Emphasis supplied.]

      . Justice Marcus dissented, saying that the phrase “in the same manner” refers to the minimum sentence requirement, and the second sentence refers to the maximum sentence.


source: Caselaw Access Project

author: | STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Christopher SARTIN, Appellant.
    No. 37,446-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Charles L. Kincade, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   | STEWART, J.

Defendant, Christopher Sartin, pled guilty as charged to one count of oral sexual battery, a violation of La. R.S. 14:43.3 punishable by imprisonment at hard labor for not more than ten years without benefits. The court sentenced him to serve six years at hard labor without benefits which, after denial of his timely motion for reconsideration, he argues is excessive. We affirm.

FACTS

During the night of April 13, 2002, Sar-tin, age 20, called the victim, age 12, on the telephone and convinced her to leave her residence through her bedroom window. He met the child, assisted her exit from the residence, and took her to his truck, which he had left in a church parking lot. Sartin kissed and fondled the child and had her perform fellatio. The victim’s mother, who was searching for her after noticing she was gone, caught Sartin and her child in the act. Sartin initially claimed the child had been the aggressor in this sexual event.

DISCUSSION

Excessive Sentence

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

| ¡¿Prior to imposing sentence, the court reviewed a PSI report which provided extensive details of defendant’s social history, including his education and work experiences. The court noted that defendant had no criminal record but, considering the facts of the case, found this was an “egregious offense for a grown man to commit with an obviously young girl.”

On this record, we do not find constitutional error. Sartin had a childhood without negative events. He was a leader in his high school’s athletics program. He was trained to work as a brick layer and in auto mechanics. He had been involved in sexual relations with women of his own age, but chose to engage in this offense even after realizing the child was under the age of consent. There is no justification for the commission of this offense. The lawful sentence imposed is mid-range. It is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of this case, is not constitutionally excessive.

CONCLUSION

Based on the foregoing, the conviction and sentence are affirmed.

AFFIRMED.


author: JjBROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Alexander SURRY, Jr., Appellant.
    No. 37,448-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Cary J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, Edward Brossette, J. Thomas Butler, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   JjBROWN, C.J.

Alexander Surry, Jr. was charged by bill of information with possession of cocaine, a violation of La. R.S. 40:967(C), which was alleged to have occurred on January 9, 2001. After preliminary matters, trial commenced on September 25, 2001, with selection of a six-person jury. Defendant was convicted as charged. Defendant pled not guilty to a habitual bill of information on October 11, 2001, in which the state alleged that he was a third felony offender. On April 29, 2002, defendant was adjudicated a third felony offender and was sentenced to a mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension. A motion to reconsider the sentence was denied. Defendant was granted an out-of-time appeal. He argues, that effective June 15, 2001, the habitual offender statute was amended to remove the mandatory life sentencing provision. He contends that he should receive the benefit of any ameliorative amendment enacted after the commission of the crime but before imposition of sentence. Defendant also argues that a life sentence under the circumstances of his case is excessive. The trial court rejected these arguments. We affirm.

Discussion

Amendment to Habitual Offender Law

At the time of the offense, the habitual offender law provided that if the third felony or either of the two prior felonies was a violation of the Uniform Controlled Dangerous Substance Law and punishable by imprisonment for more than five years, the penalty shall be life imprisonment without the benefit of parole, probation or suspension.

I/This statute was amended to lessen the penalty to a determinate term of not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. La. R.S. 15:529.1(A)(l)(b)(i) as amended by 2001 La. Acts No. 403. The effective date of the amendment was June 15, 2001, and Section 6 of the act provided that it was to have prospective effect only.

In a per curiam opinion, the supreme court in State v. Barnes, 02-2059 (La.04/04/03), 845 So.2d 354, held that the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date, June 15, 2001. The court specifically noted that this rule extends to habitual offender sentences imposed pursuant to La. R.S. 15:529.1, citing, inter alia, State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.04/04/03), 840 So.2d 1213.

In light of the clear legislative intent and the reasoning set forth in State v. Barnes, supra, and State v. Wade, supra, the trial court did not err in sentencing defendant in accordance with La. R.S. 15:529.1 as it read at the time of the offense of conviction. This assignment of error is without merit.

Excessive Sentence

On January 9, 2001, parole agents made a field visit to defendant’s Shreveport home. Defendant, who was home alone, was seen placing a small bottle on a chair and covering it with a shirt before letting the agents | ¡¡into the house. A field test of the substance in the bottle indicated that it was cocaine and the crime lab confirmed the identity of the substance. A unanimous jury found defendant guilty as charged of possession of cocaine. Defendant had two prior felony convictions for distribution of CDS, one in August 1993 and one in August 1998. In both cases, defendant was sentenced to five years at hard labor.

Defendant contends that if the prior version of R.S. 15:529.1 applied, the mandatory life sentence without benefit still violates his right against excessive punishment. Defendant points out that the 2001 amendment to La. R.S. 15:529.1(A)(l)(b)(i) reduces his exposure to a maximum of ten years and represents a legislative determination that the prior mandatory life sentence was inappropriate.

The definition of criminal conduct and the provision of penalties for such conduct is a purely legislative function. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). Pursuant to this function, the legislature enacted the habitual offender statute, which has been held by the supreme court on numerous occasions to be constitutional. State v. Johnson, supra. Since that statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. Id.; State v. Wade, supra. While the judiciary can declare a mandatory minimum sentence under the habitual offender law excessive, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. To merit a deviation below the mandatory minimum |4sentence, the defendant must show that he is “exceptional.” Such downward departures should occur only in rare instances. Id.

Defendant’s only contention is that he should benefit from the amendment to R.S. 15:529.1. He did not show that he was exceptional such that the mandatory sentence would not be “meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the crime.” State v. Johnson, 709 So.2d at 676.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . The amendment provided that if the three felonies are all violations of the CDS law and all punishable for ten years or more, then life imprisonment would be imposed. In this case the crime of conviction, possession of cocaine, carries a maximum sentence of five years. La. R.S. 40:967(C).


author: I,CARAWAY, J.

text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN SELF INSURANCE FUND, Plaintiff-Appellee, v. A-1 PALLET COMPANY, Defendant-Appellant.
    No. 37,648-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      C. Daniel Street, Monroe, for Appellants, A-l Pallet Company and Denny Braswell.
    Joseph J. Bailey, Alexandria, for Appel-lee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   I,CARAWAY, J.

This appeal concerns a venue dispute for a contract suit regarding the non-payment of insurance premiums. The suit was brought in the parish of the plaintiffs administrative offices, where services under the contract were allegedly performed. The defendant appeals the denial of his exception of improper venue. For the following reasons, we affirm.

Facts and Procedural History

Louisiana Safety Association of Timber-men — Self Insurance Fund (hereinafter “LSAT”) filed this suit in Winn Parish against defendant, Albert G. “Denny” Braswell, d/b/a A-l Pallet Company (hereinafter “Braswell”), seeking approximately $19,000 allegedly due for worker’s compensation insurance premiums for the years 1994 through 1998. Upon an evidentiary hearing on Braswell’s exception of improper venue, the following information regarding the parties’ relationship was revealed.

In 1992, Braswell contracted for workers’ compensation insurance with LSAT. At that time, Braswell resided in Ferriday in Concordia Parish where his business was also located. An agent for LSAT initially contacted Braswell in Ferriday, and the contract between Braswell and LSAT was executed there. At the time of trial, Braswell had moved to Catahoula Parish, but his business was still located in Ferriday.

The evidence further revealed that the administrative office of LSAT was in Winn Parish, where LSAT received premiums and performed premium accounting. LSAT also initiated premium audits and issued certificates from the Winn Parish office. We also note that the contract ^between Braswell and LSAT contained language stating that in the event of litigation regarding collection under the agreement, “the parties stipulate that the proper venue for the legal action shall be at the location of the administrative office of the Fund.”

When Braswell originally entered into the contract with LSAT, his premium was based on an estimate of the business payroll. Subsequently, the payment for premiums was calculated from the actual payroll dollars reported each month by Braswell. Each year, LSAT conducted a premium audit by sending an auditor to Braswell’s business in Ferriday to verify the payroll records for that year. LSAT would then either credit or debit to Bras-well’s account based upon the audit information.

From the trial court’s denial of the exception, Braswell brings this appeal of the interlocutory ruling pursuant to La. C.C.P. art.2088.

Discussion

Braswell argues that the controlling venue article is La. C.C.P. art. 76 which provides for suits pertaining to contracts of insurance. Winn Parish is not a venue under Article 76. The venue for actions on contracts generally is set forth under La. C.C.P. art. 76.1 which provides:

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

Braswell argues that Article 76.1 is inapplicable in light of the specific venue for insurance contracts under Article 76 and, alternatively, he insists that no “work or service” was performed under the contract in Winn Parish.

| ¡¡Contrary to Braswell’s arguments, we find that Article 76.1 does have application in this case. As we observed in Clarendon Nat'l Ins. Co. v. Belt, 33,997 (La.App.2d Cir.8/25/00), 766 So.2d 717, writ denied, 00-2673 (La.11/17/00), 774 So.2d 982, the provisions of La. C.C.P. art. 76.1 do not expressly limit the article’s application to any particular type of contract. Clarendon was an action seeking a declaratory judgment on an insurance policy, and the same argument against the application of Article 76.1 was rejected by this court. We held that both Articles 76 and 76.1 provide permissive optional venues in keeping with the interpretations of the venue statutes of our supreme court. See, Jordan v. Central Louisiana Elec. Co., Inc., 95-1270 (La.6/23/95), 656 So.2d 988. Accordingly, the contract between Braswell and LSAT squarely falls within the scope of the language of Article 76.1 which may govern venue in this case.

Next, the evidence revealed that “services” under the terms of the contract were performed in Winn Parish, making that parish a proper venue under Article 76.1. Winn Parish was the location of the administrative office of LSAT and the parish where Braswell mailed his monthly premiums and the payroll reporting forms from which LSAT calculated his premium. Furthermore, LSAT’s office was the location from which the auditor was sent to verify the payroll records, and to which the auditor’s information was returned for comparison with the payroll information submitted by Braswell. As we observed in Coleman v. Fisher Lumber Corp., 28,446 (La.App.2d Cir.6/26/96), 677 So.2d 678, writ denied, 96-1789 (La.9/3/96), 678 So.2d 558:

14As we appreciate Art. 76.1, “an action on a contract,” of whatever type, may be brought in “the parish where any work or service was performed or was to be performed under the terms of the contract.” (Our emphasis.) The article is not facially ambiguous and does not restrict or limit its applicability to actions on certain types of contracts or to situations where a “substantial” or some other measurable amount of the contractual work or service was performed or was to be performed in the parish where the action is brought.

Under this ruling, the services rendered by LSAT in Winn Parish are therefore sufficient to support venue in that parish.

Finally, because of our prior decisions regarding Article 76.1 which are controlling in this case, we have pretermitted discussion of the parties’ contractual provision regarding venue. Such provision is in question under Louisiana law and the jurisprudence. See, Tulane Industrial Laundry, Inc. v. Quality Lube & Oil, Inc., 00-0610 (La.App. 4th Cir.1/24/01), 779 So.2d 99; La. C.C.P. art. 44; and La. R.S. 51:1407.

Accordingly, the venue of Winn Parish is appropriate in this case. The trial court’s ruling is affirmed and costs of appeal are assessed to appellant.

AFFIRMED.


author: I,GASKINS, J.

text:
    Betty GREER, et al., Plaintiffs-Appellants, v. Dr. Thomas R. JOHNSON, Defendant-Appellee.
    No. 37,655-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Sumpter B. Davis, III, Baton Rouge, for Appellants.
    Donald C. Douglas, Jr., McLeod Verlan-der, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   I,GASKINS, J.

In this survival and wrongful death ease, the plaintiffs, Betty Greer, Roger Greer, and Michael Greer, appeal a judgment rendered by the trial court in favor of the defendant, Dr. Thomas R. Johnson, sustaining his peremptory exception of prescription. For the following reasons, we reverse and remand.

FACTS

On or about January 28, 2000, Gerald Greer was admitted to Glenwood Regional Medical Center in West Monroe, Louisiana, for therapy treatments intended to achieve a remission of his leukemia. Approximately four days later, on February 1, 2000, Gerald Greer died while in the course of receiving the cancer therapy treatments. Mr. Greer was survived by the plaintiffs in the present action, Betty Greer, his wife, and Roger and Michael Greer, his children.

On or about February 1, 2001, the plaintiffs filed a complaint against Glenwood Regional Medical Center with the Patient’s Compensation Fund (PCF) alleging that it had breached the acceptable standard of medical care in treating Mr. Greer and that this breach was the cause of his death. In particular, the complaint stated that a Glenwood nurse administered three shots through his I.V. and that he collapsed immediately thereafter while being helped to the restroom by his granddaughter. No other defendants were named in the plaintiffs’ complaint.

On May 15, 2001, the plaintiffs supplemented their complaint to the PCF and named Dr. Thomas Johnson as an additional defendant. The complaint alleged that, as the physician administering the cancer therapy ^treatments, Dr. Johnson failed to order appropriate monitoring of the patient for negative reaction to the cancer therapy, failed to recognize symptoms indicating a negative reaction, failed to take the appropriate measures to treat the reaction and failed to place him in intensive care. Subsequently, the plaintiffs discovered that Dr. Johnson was not covered under the PCF and as such their claims against him were not subject to the procedural requirements of the Louisiana Medical Malpractice Act. Accordingly, on September 18, 2002, the plaintiffs filed a petition against Dr. Johnson in district court making the same basic allegations as were made in their supplemental complaint filed with the PCF.

On October 17, 2002, Dr. Johnson filed a peremptory exception of prescription and sought dismissal of the plaintiffs’ claims. Dr. Johnson alleged that the claims were prescribed on the face of the petition since it was filed more than two years after the death of the decedent. The plaintiffs opposed the exception on the basis that the timely filing of their claim against Glen-wood, coupled with the allegation in their petition that Dr. Johnson was solidarily liable with the Glenwood, served to suspend the running of prescription on their claim against him. The exception was taken up and granted at a hearing on December 19, 2002, with the plaintiffs waiving their appearance therein. (Since the proceedings were not recorded by a court reporter, the record does not contain a transcript of this hearing.) On January 29, 2008, the trial court signed a judgment granting the exception of prescription and dismissing the plaintiffs’ claims. The instant appeal followed.

I .¿DISCUSSION

The question presented here is whether prescription as to Dr. Johnson was suspended by the plaintiffs’ filing of a request for review of their claim against Glenwood. The plaintiffs filed wrongful death and survival claims.

Suspension is alleged to have occurred under La. R.S. 40:1299.47(A)(2)(a) of the Louisiana Medical Malpractice Act, which provides in pertinent part:

The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

This principle is also recognized in La. R.S. 40:1299.41(G) which provides:

Notwithstanding the provisions of Subsection D, the running of prescription against a health care provider who is answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1299.47(A)(2)(a).

In general, the burden of proving that a suit has prescribed rests with the party pleading prescription. Wilkes v. Carroll, 30,066 (La.App.2d Cir.12/10/97), 704 So.2d 938. In those instances, however, when the petition shows on its face that the prescriptive period has expired, the burden shifts |4to the plaintiff to demonstrate suspension or interruption of the prescriptive period. Lima v. Schmidt, 595 So.2d 624 (La.1992).

Dr. Johnson argues that the burden of defeating the exception rested with the plaintiffs because the petition was filed more than two years from the date of Mr. Greer’s death and the dates of alleged acts of medical malpractice, making it prescribed on its face. The plaintiffs argue that the burden remained with Dr. Johnson because the petition clearly alleged facts invoking the suspension of prescription under La. R.S. 40:1299.47(A)(2)(a).

In resolving this question, we must first examine the contents of the plaintiffs’ pleadings. While it is clear that the death of Mr. Greer and the conduct which allegedly caused it occurred more than a year before the plaintiffs filed their petition, the crux of whether the petition is prescribed on its face rests on the language in the following allegation made in the petition:

The same allegations as alleged herein are presently pending against Glenwood Regional Medical Center pursuant to LSA-R.S. 40:1299.41, with whom the present defendant is alleged to be liable in solido, under Section 41(G) of the Louisiana Medical Malpractice Act.

Dr. Johnson argues that despite the petition language quoted above, the plaintiffs failed to make any specific allegations which would support a conclusion that Dr. Johnson is solidarity and/or jointly liable with Glenwood. We disagree. For prescription to be interrupted, Dr. Johnson must be solidarily or jointly liable with Glenwood. The petition specifically alleges that Dr. Johnson breached the standard of care by failing to recognize symptoms indicating a negative reaction and failing to take the | ^appropriate measures to treat the reaction. The petition makes the same allegations by reference against Glenwood. A joint tort-feasor is one whose conduct (whether intentional or negligent) combines with the conduct of another so as to cause injury to a third party. Therefore, the petition clearly makes a prima facie showing that Dr. Johnson and Glenwood were joint tort-feasors in bringing about the damages suffered by the plaintiffs.

The Medical Malpractice Act clearly provides that the timely filing of a request for review suspends the running of prescription against all those who are joint and solidary obligors and joint tort-feasors with the timely sued party, whether or not they are health care providers and whether or not they are qualified under the PCF. La. R.S. 40:1299.47(A)(2)(a). Neither party disputes that a timely request for a medical review panel was made against Glenwood. Accordingly, to the extent that the record before us indicates that the plaintiffs made a timely request for review of a claim against Glenwood, an alleged joint tort-feasor of Dr. Johnson’s, that request served to interrupt prescription against Dr. Johnson. Therefore, we find that the burden of proof at the trial of the peremptory exception of prescription rested with Dr. Johnson.

Since the petition made a prima facie case that prescription was interrupted by the timely filing against Glenwood, the burden then rests on Dr. Johnson to prove otherwise. The record indicates that Dr. Johnson presented no evidence to show either that the request for medical review against Glenwood was not filed timely, or that the parties were not joint tort-feasors, we must conclude that Dr. Johnson failed to meet his burden of [ (¡showing that the running of prescription was not suspended by the request for a medical review against Glenwood. Accordingly, we find that the trial court erred in granting Dr. Johnson’s exception of prescription.

Dr. Johnson’s reliance on the cases of St. Romain v. Luker, 2000-1366 (La.App. 1st Cir.11/9/01), 804 So.2d 85, writ denied, 2002-0336 (La.4/19/02), 813 So.2d 1083, and Hernandez v. Chalmette Medical Center, 2001-0074 (La.App. 4th Cir.8/21/02), 826 So.2d 641, writ denied, 2002-2364 (La.11/22/02), 829 So.2d 1054, is misplaced. In St. Remain, supra, the appellate court found no error in the trial court’s granting of the exception of prescription because the plaintiffs’ petition in the district court failed to allege any liability on the part of the hospital against whom they had filed a timely medical review claim, and whom they argued on appeal was solidarity liable with the named defendant. Since the medical review panel had already concluded that the hospital was not negligent and no proof was presented to the contrary at the trial of the exception, the appellate court found that the defendant doctor could not be jointly or solidarity hable with someone absent allegations and/or proof. In the present case, the allegation of joint liability has been made at the district court level, and that allegation remains viable until a conclusion is reached to the contrary.

In Hernandez, supra, three doctors and the PCF were named as defendants in a medical malpractice lawsuit filed more than one year after the conduct complained of in the petition. Only one of the doctors had been named in a timely complaint of medical malpractice filed with the PCF 17before institution of the suit. After a full trial on the merits, that doctor was found not to be negligent while the other two doctors were found to be 100 percent at fault. The two negligent doctors then filed a post-trial exception of prescription on the basis of the exonerated doctor’s lack of solidary liability. The appellate court found that the exoneration of the timely sued doctor provided the two untimely sued and negligent doctors with grounds for asserting prescription. The case was remanded to the trial court for a full hearing on the exception of prescription. Any suggestion, however, that the Hernandez court’s reasoning is applicable in the present case is premature. Glen-wood has not been exonerated and, thus, no basis exists for concluding that its lack of joint liability with Dr. Johnson failed to suspend prescription on plaintiffs’ claims against him. The impact of the trial court’s exoneration of Glenwood, should such exoneration come to pass, is not presently an issue before this Court, and we decline to speculate on same.

CONCLUSION

For the reasons assigned above, we reverse the judgment of the trial court granting Dr. Johnson’s exception of prescription; we remand this matter to the trial court for further proceedings consistent with this opinion. Costs of the appeal are assessed to Dr. Johnson.

REVERSED AND REMANDED.

      . In Taylor v. Giddens, 618 So.2d 834 (La.1993), the Louisiana Supreme Court concluded that a survival action in a medical malpractice' case is governed by the one and three year prescriptive periods contained in La. R.S. 9:5628(A). The prescriptive period of a wrongful death action is governed by La. C.C. art. 3492 which provides for a one year prescriptive period from the date of the decedent’s death. However, this distinction between the prescriptive periods for wrongful death and survival actions has no impact on the instant case.


author: h STEWART, J.

text:
    Gregory and Regina JACKSON, et al, Plaintiffs-Appellees, v. Jack and Wendy BUTTATTIA, Defendants-Appellants.
    No. 37,585-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Brown, Erskine, Burkett & Breithaupt by D. Clay Wirtz, R. Alan Breithaupt, for Defendants Appellants Jack Buttattia and Wendy Buttattia.
    Jack Buttattia, in Proper Person.
    William E. Armstrong, for Plaintiffs Ap-pellees Gregory Jackson, Regina Jackson and Michael Hayes.
    Before STEWART, MOORE and TRAYLOR (Pro Tempore), JJ.
   h STEWART, J.

Defendants, Jack and Wendy Buttattia, appeal from a default judgment awarding plaintiffs, Michael Hayes, Gregory Jackson, and Regina Jackson, damages for the breach of an agreement to purchase real estate. Because we find the trial court erred in granting a default judgment under the circumstances of this case, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

On May 12, 2002, Gregory and Regina Jackson signed a “Residential Agreement to Purchase and Sell” whereby they agreed to purchase a house at 56 Holiday Drive in Monroe, Louisiana, from the But-tattias for $78,000. Michael Hayes was the realtor who brokered the transaction. The agreement specified that the act of sale was to be passed on or before June 17, 2002, and that any extensions were to be agreed upon in writing and signed by the parties. Apparently, the sale was not completed at the specified time. On July 8, 2002, the parties agreed in writing to extend the agreement by allowing the act of sale to be completed on or before July 22, 2002. Again on July 25, 2002, the parties agreed in writing to extend the closing date deadline to August 15, 2002. This latter agreement required the Buttat-tias to remove tenants from the property on or before August 10, 2002. The act of sale was never completed.

bOn November 14, 2002, Hayes and the Jacksons filed suit in Monroe City Court against the Buttattias seeking damages for breach of contract and related expenses. They alleged that the Buttattias breached the contract by failing to remove their tenants from the premises so that the Jacksons could take possession of the property upon passage of the act of sale. The Buttattias answered in proper person on November 20, 2002. Jack Buttattia alleged that he did not remove the tenants because the Jacksons changed their decision about buying the house. Minutes of the court reflect that trial was scheduled for March 5, 2003.

On January 24, 2003, the plaintiffs filed a rule to compel the Buttattias to answer interrogatories, which were alleged to have been propounded on January 2, 2003. In a judgment on the rule rendered February 4, 2003, the city court judge ordered the Buttatias to answer the interrogatories within seven days and assessed them with costs and attorney fees of $150. Thereafter, the Buttattias engaged the services of an attorney, Frederic Amman, who assisted in preparing the answers to the interrogatories. The record contains a copy of a fax from plaintiffs’ counsel to Mr. Amman dated February 13, 2003, noting that the seven day deadline had passed and inquiring about the Buttattias’ intentions. Mr. Amman responded by fax the next day, February 14, 2003, with the explanation that he would prepare the answers and forward them as soon as he completed them. Plaintiffs’ counsel then demanded the discovery responses no later than February 17, 2003, and requested a date to depose Mr. Buttattia.

|3On February 19, 2003, the plaintiffs filed a rule for sanctions on the basis that the Buttattias had failed to comply with the court’s order of February 4, 2003. The plaintiffs asked to be granted a default judgment under La. C.C.P. art. 1471(3) for the Buttattias’ failure to provide discovery responses. That same day, plaintiffs’ counsel received the answers to the interrogatories from Amman’s office; however, the plaintiffs claimed the answers were incomplete and alleged that the But-tattias failed to respond to a request for production of documents.

On February 25, 2003, the city court judge heard the plaintiffs’ rule for sanctions. The Buttattias were not present and no one was present on their behalf. Plaintiffs’ counsel and the judge discussed whether Amman had enrolled in the matter or whether he was retained only to assist in answering the interrogatories. The matter was continued to February 27, 2003, at which time Mr. Buttattia appeared in proper person and attempted to explain the situation during the following exchange:

By Mr. Buttattia: Uh ... it is just really a misunderstanding between me and Mr. Amman. I mean, I thought when I dropped the paper work off by his office, uh ... he would take it over from there. I see that he didn’t get to it on time. I ... I ... I actually thought surely he would have called me and said that we have a court date set for Tuesday or Monday.
By the Court: The record indicates that you were served by personal service. By Mr. Buttittia: Sure, I figured that they had served him papers also. I know that this was just a misunderstanding uh ... I ...
By Mr. Armstrong: For the record Your Honor, Mr. Amman was not served because he has not enrolled as counsel of record at the time.

|4The city court judge thereafter sustained the plaintiffs’ rule for contempt and awarded $1,500 in attorney fees in conjunction with the rule. The judge also concluded that the plaintiffs were entitled to a default judgment as a sanction for the Buttattias’ belated discovery responses. After hearing the plaintiffs’ evidence regarding their breach of contract claim and damages, the city court judge granted the default judgment and awarded damages and attorney fees. Mr. Buttattia was not allowed to speak and was informed by the court that he lost the right to speak by failing to appear in court. This appeal from the default judgment followed.

DISCUSSION

In certain circumstances, a party aggrieved by the failure of another party to obey a court order to provide or permit discovery may obtain a judgment by default against the disobeying party. An avenue for such relief is set forth in La. C.C.P. art. 1471, which provides, in part:

If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

It must be stressed that judgment by default is a draconian penalty which should be applied only in extreme circumstances. Horton v. McCary, 93-2315 (La.04/11/94), 635 So.2d 199. Because the sanctions of dismissal or ^default involve property rights, such sanctions are generally reserved for the most culpable conduct. Id.

In Horton, supra, the court looked to federal jurisprudence for the measure of the proper sanction for failing to obey a court order for discovery. The court noted that before granting a default judgment as a sanction for disobeying a discovery-related court order, federal district courts consider the following four factors:

(1) Whether the violation was willful or resulted from inability to comply.
(2) Whether less drastic sanctions would be effective.
(3) Whether the violations prejudiced the opposing party’s trial preparation.
(4) Whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

Horton, supra, citing Batson v. Neal Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985); U.S. For Use of M-CO Const. v. Shipco General, Inc., 814 F.2d 1011 (5th Cir.1987).

The Horton court also noted that the sanctions of dismissal and default are generally reserved for cases where both the client and attorney are at fault and where the record supports a finding that the failure to obey was due to willfulness, bad faith, or fault. Horton, supra, citing Allen v. Smith, 390 So.2d 1300 (La.1980). See also L & M Hair Products, Inc. v. State, DOTH, 29,998 (La.App.2d Cir.12/10/97), 704 So.2d 415.

The record in the instant case shows that the answers to discovery were due, as per the court’s order, on February 11, 2003. According to a Februray 14, 2003, fax from Mr. Amman to plaintiffs’ counsel, Mr. Buttattia ^provided Mr. Amman with the answers to the interrogatories on Wednesday of that week, which would have been February 12, 2003. Thereafter, plaintiffs did not receive the answers until February 19, 2003, despite their demand by fax that they receive the answers by February 17, 2003. This chain of events establishes that Mr. Buttattia failed to comply with the court imposed discovery deadline and was two days late in forwarding the responses to plaintiffs’ counsel in accordance with the additional leeway plaintiffs provided. However, we do not find that the circumstances support a finding of either willfulness, bad faith, or fault on the part of Mr. Buttattia which is required to support the sanction of a default judgment.

Clearly, the discovery answers were late, and the delay warrants some penalty. Fashioning an appropriate penalty requires consideration of the fact that approximately half of the delay in this case was attributable to whatever delay occurred in Mr. Amman’s office during the formal preparation of the answers for submission. The failure of Mr. Amman to enroll as counsel of record is of no moment, since he was apparently acting as counsel for Mr. Buttattia in the preparation of the discovery. Whether the delay was due to mxs-communication between Mr. Amman and Mr. Buttattia or to some other reason, the record does not establish the type of willful disobedience of a discovery order that merits the most severe sanction of a default judgment. Because of our determination that the sanction of default judgment is not warranted in this instance, we find it unnecessary to reach the assignments of error pertaining to the merits of the default judgment.

^CONCLUSION

For the above-assigned reasons, the judgment of the city court granting a default judgment as a sanction for the failure of the Buttattias to timely comply with the court’s discovery order is reversed, as is the judgment of default. The matter is remanded for further proceedings. Costs of this appeal are assessed to the plaintiffs, Gregory Jackson, Regina Jackson, and Michael Hayes.

REVERSED AND REMANDED.

      . The defendants’ surname is spelled "Buttat-tia" in various pleadings and in the trial court’s judgments. It is also spelled "Buttit-ta” in other pleadings in the record, including the defendants' own filings. However, for purposes of this appeal and to correspond with the caption under which this suit was filed, we will refer to the defendants as "But-tattia.”

      . This matter does not involve a title dispute. La. C.C.P. art. 4847(A)(1).


author: |,PEATROSS, J.

text:
    WHERE ANGELS TREAD, LTD., Bobby Elmer Smith and Janie Dupuy Smith, Plaintiffs-Appellants, v. Dr. Thomas DANSBY, Defendant-Appellee.
    No. 37,689-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Jack Wright, Jr., Monroe, for Appellants.
    Watson, McMillin & Harrison, LLP by W. Michael Street, W. Brooks Watson, Monroe, for Appellee.
    Jay B. Mitchell, Monroe, for John Gif-fen.
    Before GASKINS and PEATROSS, JJ., & TRAYLOR (J. Pro Tempore).
   |,PEATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of Defendant, Dr. Thomas Dansby (“Dr.Dansby”), and against Plaintiffs, Where Angels Tread, LTD, Bobby Elmer Smith and Janie Dupuy Smith (collectively “Plaintiffs”). Plaintiffs now appeal the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

Plaintiffs Bobby and Janie Smith (“the Smiths”) each owned 50 percent of the corporation Where Angels Tread, LTD. The corporation owned a building located at 2120 Cypress Street in West Monroe, Louisiana. This property was acquired with a loan from First Republic Bank, which held a mortgage on the premises. In 1999, the corporation began to face financial difficulties; and, in September 1999, First Republic Bank initiated foreclosure proceedings and seized the property. The Smiths attempted to find a financial solution to the corporation’s difficulties and sought to lease the building.

In February 2000, Mr. John Giffen (“Giffen”), the manager for the Monroe Medical Clinic, contacted the Smiths and expressed an interest in the budding. Mr. Smith told Giffen that the property was listed with John Rea Realty. Giffen contacted John Rea Realty and informed Mr. Jay Johnson (“Johnson”) of John Rea Realty that a group of doctors might be interested in leasing the property as a medical office. Johnson drafted a document entitled “Offer to Lease,” and presented it to Giffen at his office Cat the Monroe Medical Clinic. During the meeting, Dr. Dansby walked through the room and spoke to Johnson briefly, but he did not discuss the “Offer to Lease” with Johnson. Giffen signed his own name to the “Offer to Lease,” following a change to make it a five-year lease with a five-year option to purchase, as opposed to the original ten-year lease. Giffen gave Johnson a check for $6,000 as a deposit securing the property. The check was written on an account for the Monroe Medical Clinic. Mr. Smith later accepted the offer on behalf of Where Angels Tread, LTD.

The “Offer to Lease” was to be effective May 1, 2000, and it set the rent at $6,000 per month for a period of 60 months, at the end of which the tenant would have the option to purchase the property. After the day the “Offer to Lease” was signed, no further payments were made to the Smiths. As a result, the Smiths were unable to make the mortgage payments on the property and First Republic Bank foreclosed.

On July 27, 2001, Plaintiffs filed a lawsuit against Dr. Dansby and Giffen for breach of the “Offer to Lease.” Plaintiffs claimed that Giffen |3had the actual or apparent authority of Dr. Dansby to enter into the agreement with Plaintiffs and that, as the principal, Dr. Dansby is also bound to the “Offer to Lease.” Dr. Dans-by denied that he gave Giffen the authority to enter into the “Offer to Lease” on his behalf. Giffen also insisted that he did not have the actual or apparent authority to bind Dr. Dansby to the “Offer to Lease.” Both Plaintiffs and Dr. Dansby filed motions for summary judgment with the trial court. Plaintiffs’ motion for summary judgment was denied. In his motion for summary judgment, Dr. Dansby asserted that Plaintiffs had no factual support for their claim that Giffen had actual or apparent authority to bind him to the “Offer to Lease.”

Finding that La. C.C. art. 2996 and Tedesco v. Gentry Development, Inc., 540 So.2d 960 (La.1989), applied to the instant case, the trial judge held that written authority from the principal is required for an agent to execute the “Offer to Lease.” The trial judge granted Dr. Dansby’s motion for summary judgment and dismissed him from the case, finding that no evidence had been presented that Giffen had written authority to execute the “Offer to Lease” on Dr. Dansby’s behalf, making any contract signed by Giffen unenforceable as to Dr. Dansby. Plaintiffs now appeal, raising the following assignment of error (verbatim):

Judge Dimos fell into error when he failed to recognize that apparent authority is applicable when the third party changes its position, reasonably relying on the representations that the |4agent had the actual authority to bind the principal, and ruling that there are no factual issues to be presented to the jury.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

The initial burden of proof in summary judgment remains with the mover to show that no genuine issue of material fact exists. Johnson v. Sunbelt Builders, Inc., 02-0959 (La.App. 3d Cir.2/5/03), 838 So.2d 907. Under La. C.C.P. art. 966(C), once the mover has made a primafacie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Id.

When a motion for summary judgment is made and supported by law, an adverse party may not rest on the mere allegations or denials of pleading of the party, and the response of that party, by affidavits or as otherwise | .¡provided by law, must set forth specific facts showing that there is a genuine issue for trial. Savage v. McConnell, 36,441 (La.App.2d Cir.10/23/02), 830 So.2d 414. Once a primafacie showing has been made that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Bertrand v. Air Logistics, Inc., 01-1655 (La.App. 3d Cir.6/19/02), 820 So.2d 1228. If the adverse party does not respond, summary judgment, if appropriate, shall be rendered against him.

Actual Authority

In the case sub judice, Dr. Dansby argues that Giffen was not authorized to bind him to the “Offer to Lease” Plaintiffs’ property and Plaintiffs failed to produce any evidence showing that Giffen had such authority. He further asserted that he never had any contact with the Smiths and they even stated in their depositions that they never saw any document that gave Giffen the authority to bind Dr. Dansby to the “Offer to Lease.” Giffen farther stated in his deposition that he was not authorized to act on behalf of Dr. Dansby and never stated to Johnson or the Smiths that he was so authorized. We find that Dr. Dansby met his burden of showing no genuine issue as to a material fact; and, therefore, the burden shifted to Plaintiffs to show that a genuine issue as to a material fact remained as to whether or not Giffen had the authority to act on Dr. Dansby’s behalf.

First, La. C.C. art. 2989 provides:

IfiA mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.

More specifically, as previously stated, La. C.C. art. 2996 provides:

The authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described. (Emphasis added.)

We have thoroughly reviewed the record and we find no evidence in it that shows that Dr. Dansby, the principal, expressly gave Giffen the authority to sign the “Offer to Lease,” on Dr. Dansby’s behalf. Even though Plaintiffs assert that Giffen had the actual authority to look for a new office building for the doctors in the office , Giffen’s alleged act of signing the “Offer to Lease” on Dr. Dansby’s behalf would not be supported in law as binding Dr. Dansby because the principal is only bound to perform a contract that the man-datary made acting within the limits of his authority. La. C.C. art. 3020 provides:

The principal is bound to perform the contract that the mandatary, acting within the limits of his authority, makes with a third person. (Emphasis added.)

When Giffen acted beyond the authority he had in looking for a new office, he exceeded his authority. Further, La. C.C. art. 3010 provides, in pertinent part:

The principal is not bound to the manda-tary to perform the obligations that the mandatary contracted which exceed the limits of the mandatary’s authority unless the principal ratifies those acts.

|7The record does not contain any evidence to suggest that Dr. Dansby ratified the act of Giffen. Since Plaintiffs failed to show that Giffen was given the express authority to enter into the “Offer to Lease,” their only plausible argument is that Dr. Dans-by caused Plaintiffs to believe that Giffen was authorized to act on his behalf through apparent authority.

Apparent Authority

La. C.C. art. 3021 provides:

One who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative manda-tary.

Plaintiffs claim that Dr. Dansby “clothed” Giffen with the apparent authority to act on his behalf. They argue that it was well known in the community of which the Smiths were part that Giffen conducted business on behalf of Dr. Dansby and that Giffen publicly held himself out to be Dr. Dansby’s agent. The record does not support Plaintiffs’ assertions. After an exhaustive review of the record, we find that Plaintiffs provided no evidence to show that it was well known in the community that Giffen was Dr. Dansby’s agent or that Giffen held himself out to be Dr. Dansby’s agent.

Plaintiffs charge that, because Gif-fen frequently wrote and signed checks on the Monroe Medical Clinic’s account and because Dr. Dansby walked through the room the day Giffen and Johnson discussed and signed the “Offer to Lease,” they believed that Giffen had the apparent authority to act on behalf of Dr. Dansby to sign the “Offer to Lease.” We find no merit in Plaintiffs’ charge. According to La. C.C. art. 3021, it is the actions of the | ^principal and not the actions of the alleged agent that must cause a third person to believe that a person is the principal’s agent; and, thus, the action of Giffen, the alleged agent, in writing the check payable by an entity that is not even a party to this lawsuit is irrelevant in showing that Giffen acted under the apparent authority to act for Dr. Dansby. Moreover, Dr. Dansby’s pass through the room where Johnson and Giffen were discussing the “Offer to Lease” and his brief discussion with Johnson is not enough to conclude that Giffen had the apparent authority to act on Dr. Dansby’s behalf. Again, Dr. Dansby and Johnson did not even discuss the “Offer to Lease.”

The law in Louisiana is well settled as to when a principal will be bound by the acts of an agent through apparent authority. A panel of this court has previously held that an agency relationship is never presumed; it must be clearly established. Bamburg Steel Buildings, Inc. v. Lawrence General Corporation, 36,005 (La.App.2d Cir.5/8/02), 817 So.2d 427. The court in Bamburg Steel Buildings, Inc. held that:

The burden of proving apparent authority is on the party seeking to bind the principal. A third party may not blindly rely on the assertions of an agent, but has a duty to determine, at his peril, whether the agency purportedly granted by the principal permits the proposed act by the agent.

Another panel of this court has further held that to trigger the concept of apparent authority, the third party must prove that the principal gave the third party reason to believe that the agent had authority to act on the principal’s behalf with respect to the particular act taken. Casten v. Cordell, 26,487 (La.App.2d Cir.1/25/95), 649 So.2d 123. More recently a panel of |sour court has held that apparent authority cannot exist without a manifestation by the principal. American Zurich Insurance Company v. Johnson, 37,567 (La.App.2d Cir.7/30/03), 850 So.2d 1112. In the instant case, the Smiths admitted that they did not rely upon any representations from Dr. Dansby. Plaintiffs did not submit any evidence that Dr. Dansby, the principal, gave them reason to believe that Giffen had the authority to act on Dr. Dansby’s behalf; and, therefore, there is no genuine issue as to a material fact regarding apparent authority in this case.

Detrimental Reliance

Plaintiffs further argue that Dr. Dansby had a duty to notify Plaintiffs as soon as he became aware of Giffen’s signing the “Offer to Lease” to let them know that Giffen did not act on Dr. Dansby’s behalf; and, because he did not notify them, they relied on Giffen’s apparent authority to their detriment. Attempting to distinguish the case of Tedesco, supra, from the case sub judice, Plaintiffs assert that, in Tedesco, the third party did not claim that they relied on the actions of the agent to their detriment, whereas, in the instant case, Plaintiffs, as the third party, did rely on the actions of Giffen to their detriment. Plaintiffs again fail to recognize that the law looks to the actions of the principal and not the actions of the agent to determine first, if there was apparent authority and second, if the party relied on the actions of the principal to its detriment. Plaintiffs relied on the actions of Giffen in this case and not the principal, Dr. Dansby. In Tedesco, the court found that the third party relied on the apparent authority of the agent as a result of the actions of the principal. Since there is no showing Imby Plaintiffs in the instant case that the actions of Dr. Dansby caused Plaintiffs to believe that Giffen had the apparent authority to act on Dr. Dansby’s behalf, then we need not discuss the second prong as to whether Plaintiffs relied on Giffen’s apparent authority to their detriment.

Although Plaintiffs cite the Restatement (Second) of Agency § 8B (1958) in support of their argument, we find that no Louisiana authority has cited this section in support of the argument that a principal, who has made no manifestation to a third party that his agent is authorized to contract with that third party, has a duty to notify the third party that the agent did not have the proper authority of the principal to contract with it. In addition, this section of the Restatement establishes that the principal must know of the third party’s belief and Plaintiffs in the case sub judice have failed to show that Dr. Dansby knew that Plaintiffs incorrectly believed that Giffen was acting on behalf of Dr. Dansby.

In summary, Dr. Dansby met his burden in this case by showing that there was no genuine issue as to a material fact because Plaintiffs had not shown that Giffen was authorized to act on Dr. Dansby’s behalf. The burden then shifted to Plaintiffs to set forth specific facts showing that a genuine issue as to a material fact still existed. We find that Plaintiffs did fynot satisfy that burden and, therefore, Dr. Dansby is entitled to judgment as a matter of law. Plaintiffs’ assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Dr. Dansby’s motion for summary judgment is affirmed. Costs of this appeal are assessed to Plaintiffs, Where Angels Tread, LTD, Bobby Elmer Smith and Janie Dupuy Smith.

AFFIRMED.

      . The actual doctors in the group remained undetermined at this time. Dr. Dansby stated in his deposition that he did ask Giffen to begin looking for a new location for an office, but that was the extent of what Giffen was to do and he was only one of among several people who were also looking for a new location.

      . The "Offer to Lease” does not indicate that Giffen signed his name as an agent for Dr. Dansby, the Monroe Medical Clinic or any other entity. Two copies of the "Offer to Lease” are in the record. We note that there is a discrepancy between the two copies. One copy was submitted to the trial court as Exhibit A, attached to the "Memorandum in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment.” At the bottom of this copy of the "Offer to Lease,” Giffen has signed his name as the tenant and no other writing appears next to his name. The other copy submitted to the trial court was attached to Plaintiffs' "Petition for Damages for Breach of Contract for Lease and for Jury Trial.” At the bottom of this copy of the "Offer to Lease,” next to Giffen’s signature, are the words "John Giffen — Manager Dansby & Brown, LLC.” The entity, Dansby & Brown, LLC, however, is not a party to this lawsuit.

      . The entity, Monroe Medical Clinic, however, is not a party to this lawsuit.

      . Plaintiffs also filed this lawsuit against Ray Rhymes and Dr. Douglas Brown, alleging that Giffen had the authority to act on their behalf and bind them to the "Offer to Lease.” Ray Rhymes served as Dr. Brown's business manager. Subsequently, Dr. Brown and Mr. Rhymes were dismissed from this lawsuit after the trial judge granted the Plaintiffs' own motion to dismiss them from the lawsuit.

      . La. C.C. art. 2996 provides:
      The authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described.

      . The Tedesco decision sets forth that, in the sale of immovable property, written authority is required for an agent to execute either an agreement to sell or contract of sale. According to the court, an oral authorization is not enforceable.

      . As previously stated, Dr. Dansby did have a brief contact with Johnson in Giffen’s office, but the two did not discuss the "Offer to Lease." This further supports the conclusion that Dr. Dansby did not give Giffen actual authorization to confect a lease because surely, if Dr. Dansby knew that Giffen and Johnson were discussing a lease for him, then he would have at least mentioned it during his conversation with Johnson.

      . We reiterate that the doctors involved remained undetermined at the time the "Offer to Lease” was signed by Giffen.

      . Plaintiffs allege that Dr. Dansby continued negotiations after Giffen signed the "Offer to Lease” to buy the property, but they submitted no evidence to support this allegation.

      . The record does establish that Dr. Dansby had previously purchased Mr. Johnson's house, showing that the two had a prior relationship.

      . The Restatement (Second) of Agency § 8B (1958) provides:
      (1) A person who is not otherwise liable as a party to a transaction purported to be done on his account, is nevertheless subject to liability to persons who have changed their positions because of their belief that the transaction was entered into by or for him, if
      (a) he intentionally or carelessly caused such belief, or
      (b) knowing of such belief and that others might change their positions because of it, he did not take reasonable steps to notify them of the facts. (Emphasis added.)


author: bTRAYLOR, Judge Pro Tempore.

text:
    STATE of Louisiana in the interest of Carrie WILSON, Plaintiff-Appellee, v. Claude J. WILSON, Defendant-Appellant.
    No. 37,674-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Sam Henry, IV, for Appellant.
    Jerry L. Jones, District Attorney, Brenda M. Howell, Assistant District Attorney, for Appellee.

      Before CARAWAY, DREW and TRAYLOR (Pro Tempore), JJ.
   bTRAYLOR, Judge Pro Tempore.

Claude Wilson appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, in favor of the State of Louisiana, through the Department of Social Services (the “State”), ordering him to pay child support for Carrie Wilson of whom he is the biological father. For the following reasons, we affirm.

Facts

On June 24, 1990, Hollis Wilson (“Hollis”) married Angela Wilson (“Angela”), who, at the time, was pregnant with a child she had conceived with Hollis’s brother, Claude Wilson (“Claude”). Hollis was aware that Angela was pregnant when they married. On June 29, 1990, Carrie Wilson (“Carrie”) was born. Hollis was listed on Carrie’s birth certificate as her father, and, in fact, has always acted as her father. Hollis never sought to disavow his paternity of Carrie and always supported her — Claude never contributed to her support. As far as Carrie knew, Claude was her uncle and not her biological father. In 1999, Hollis and Angela divorced.

This appeal stems from the State’s Rule for Child Support instituted against Claude for the support of Carrie. Claude had previously acknowledged his paternity of Carrie, as well as his rights and responsibilities as her father. Following the August 2002 hearing on the | ^State’s rule, the trial court determined that Claude’s support obligation for Carrie would be $339.00 per month, and this appeal by Claude ensued.

Discussion

On appeal, Claude argues that the trial court erred in ordering him to pay child support for Carrie, and alternatively, that the child support award, if not in error, was excessive. For the following reasons, we determine that Claude’s assignments of error are without merit.

Louisiana has a long line of jurisprudence recognizing a scenario where a child might have a biological father as well as a legal presumptive father. The concept of “dual paternity” allows a child to seek support from the biological father notwithstanding that the child was conceived or born during the mother’s marriage to another man, and therefore presumed to be the legitimate child of the marriage. State, Dept. of Social Services, Office of Family Support ex rel. Munson v. Washington, 32,550 (La.App.2d Cir.12/08/99), 747 So.2d 1245, citing Warren v. Richard, 296 So.2d 813 (La.1974); State, Dept. of Social Services, Office of Family Support v. Williams, 605 So.2d 7 (La.App. 2d Cir.1992).

Smith v. Cole, 553 So.2d 847 (La.1989) is the seminal case regarding the duty of a biological father in cases where another person is presumed to be the legal father. In Smith, the court reasoned that:

The presumed father’s acceptance of paternal responsibilities, either by intent or default, does not enure to the benefit of the biological father. It is the fact of biological paternity or maternity which obliges parents to nourish their children. The biological father does not escape his support obligations merely because others may share with him the responsibility. Biological fathers are civilly obligated for the support of then-offspring. (Emphasis added).

[ %Id. at 854. As we stated previously in State ex rel. Munson, “[T]he presumption of paternity ... is not intended to allow biological fathers to avoid their support obligation.” Id. at 1247.

Additionally, La. R.S. 46:236.1(F)(1) empowers the State, under certain circumstances, as it did in the case sub judice, to file a suit to establish filiation and fix child support. Specifically, the statute authorizes the State to:

... take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section ... A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding. (Emphasis added).

The fact that Claude has played no role in Carrie’s life as her father is of no moment in the determination of whether he is responsible for her support. The only pertinent determination is whether Claude is Carrie’s biological father, which the DNA testing conclusively bears out. So considering, in this case, it is apparent that Claude, as Carrie’s biological father is responsible for at least some share of Carrie’s support. See Jones v. Rodrigue, 2000-0899, 2000-0900 (La.App. 1st Cir.11/03/00), 771 So.2d 275. On this point the trial court did not err.

Nor do we find that the trial court erred in its determination of the amount of support for which Claude was responsible. At the conclusion of |4the hearing and after determining that Claude was responsible for a share of Carrie’s support, the trial court contemplated various means for calculating that share. Ultimately, the trial court combined the adjusted gross incomes of Claude and Hollis, and with that sum, along with Angela’s income, utilized Louisiana’s child support guidelines to derive the paternal support obligation of $519.88. To determine Claude’s portion of support, the trial court compared Claude’s and Hollis’s percentage share of income, and determined that Claude was responsible for 65 percent of the paternal obligation, or $839.00 per month. We do not believe this amount to be excessive, as argued by Claude.

In considering the means for calculating Claude’s support obligation, the trial court correctly noted that the actual calculation of child support in a dual paternity case is not addressed by the guidelines or in the jurisprudence. Notwithstanding the lack of statutory or jurisprudential guidance, we conclude that the trial court properly determined Claude’s share of the paternal responsibility, and moreover, the calculation was performed in the spirit of the guidelines. Notably, La. R.S. 9:315.2 addresses the calculation of the basic child support obligations of mothers and fathers, and subsection C directs that “[t]he parties shall combine the |samounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.” Additionally, we have previously stated that “[cjhild support is to be granted in proportion to the needs of the children and the ability of the parents to provide support.” Reeves v. Reeves, 36,259 (La.App.2d Cir.07/24/02), 823 So.2d 1023, 1026. If the intent of the guidelines is to fairly apportion each parent’s support obligation as to a mother and father by considering their proportionate incomes, we cannot see how a calculation similarly made where two fathers exist could not be concluded to be equally fair. Such a calculation was in keeping with the spirit of the guidelines. Thus, we conclude that the pro rata child support obligation assigned to Claude by the trial court was within its discretion and, moreover, not excessive.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed, with court costs being assessed to Claude Wilson.

AFFIRMED.

      . The legal proceedings in this matter have been drawn out, making for a somewhat confused record. Initially, in 1991, the State sought to have Claude’s paternity established by a blood test. Shortly thereafter, a Petition to Establish Paternity and Support was filed against Claude. However, it was not until May 2000 that Claude filed his answer to the State's petition. In March 2001, Claude filed a third-party demand against Hollis claiming that as Carrie's legal father, he was also obligated for her support. In March 2002, these proceedings ensued.

      . DNA analysis showed a 99.999 percent probability that Claude was Carrie's biological father. The Blood Test Results and Affidavit were made part of the trial record.

      . The Smith court was not faced with the question of whether the “legal” father shared the support obligation, and it declined "for now to hold the legal father will, in all factual contexts, be made to share the support obligations with the biological father and the mother.” Id. at 855. Likewise, in this case, we are not faced directly with the issue of whether Hollis should be made to share in the support of Carrie as the State is not seeking support from Hollis, but whether Claude is responsible for any amount of her support.

      . The Guidelines For Determination of Child Support are set forth in La. R.S. 9:315, et seq. (the "guidelines”).

      . Specifically, this figure was derived by considering Angela’s monthly income of $1,680.00 and the monthly income of a "fictional father,” i.e., a combination of Claude’s and Hollis’s incomes. The "fictional father’s” monthly income was derived by taking the sum of Claude’s monthly income of $2,264.00 and Hollis’s monthly income of $1,209.00 for a total of $3,473.00 a month. Using the combined monthly adjusted gross income of the parents (that being $5,153.00) and considering the guidelines, the basic monthly child support obligation for Carrie was determined to be $711.36. After adding in Carrie’s health insurance premium, which Angela paid, the total child support obligation for Carrie came to $771.36, of which the "fictional father" was responsible for 67.40 percent or $519.88.

      . "In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide ... final support for a child based on the needs of the child and the ability of the parents to provide support.” La. C.C. art. 141.