author: JjFOIL, J.

text:
    Bruno J. DELEO, et al. v. BAYOU LAFOURCHE FRESH WATER DISTRICT and Peoples Water Service Company of Louisiana, Inc.
    No. 2002 CA 0513.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 16, 2003.

      O’Neil J. Parenton, Jr., Donaldsonville, for Appellees Plaintiffs.
    Ricky L. Babin, Stephen P. Sheets, Gonzales, for Appellant Defendant Bayou La-fourche Fresh Water District.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.
   JjFOIL, J.

This appeal challenges a trial court’s judgment awarding property damages to numerous persons residing along Bayou Lafourche in connection with a chemical spill in the Mississippi River. We find that the plaintiffs failed to prove that the defendant acted negligently in its handling of a benzene spill under all of the circumstances of this case, and we reverse.

BACKGROUND

On March 17, 1999, at about 5:00 p.m., the MW F.R. Bigelow, was traveling in the Mississippi River near Baton Rouge, Louisiana, with twenty-five barges in tow, when it collided with a bridge. The barges were carrying among other chemicals, 400,000 gallons of benzene. Benzene is a known carcinogen. As a result of the collision, 270,000 gallons of benzene were released into the Mississippi River. Water drinking standards, promulgated by the Environmental Protection Agency, set the maximum contaminant level (MCL) for benzene at 5.0(ppb).

The collision occurred upstream from the Walter S. Lemann Pumping Station in Donaldsonville, Louisiana, located at the head of Bayou Lafourche where it adjoins the Mississippi River. The pumping station is maintained by the Bayou Lafourche Fresh Water District (BLFWD). Because water does not freely flow into Bayou La-fourche, it is forced from the-Mississippi River into the bayou by four large pumps at the station. With the pump station operation, BLFWD controls the level of water in Bayou Lafourche.

Bayou Lafourche supplies drinking water to approximately 300,000 citizens in four parishes. Peoples Water Service, Inc., a private corporation, obtains water from Bayou Lafourche to supply Donald-sonville residents with drinking water. Peoples Water is a participant in the Early Warning Organic Compound Detection System (EWOCDS). EWOCDS is a cooperative agreement between the State of Louisiana, Department of Environmental Quality (DEQ), water works and industries along the Mississippi River. The |amain objective of the system is to provide adequate warnings of unusual conditions in the Mississippi River to downstream drinking water suppliers.

BLFWD administrator, Mr. Kirk Chera-mie, was informed of the barge accident by a DEQ officer approximately two hours after the spill. Mr. Cheramie asked DEQ to perform a “time of travel run” to ascertain when the hazardous chemical would reach the Donaldsonville area, and later learned that the projected time of arrival was 4:00 the next morning. He was also informed that EWOCDS had been activated. Mr. Cheramie ordered the pumping station to shut down at 2:00 a.m.

On March 18, the following events transpired. Early in the morning, Mr. Chera-mie went to Baton Rouge to the Command Center to discuss the situation in Donald-sonville. Mr. Cheramie later obtained information that samples at Dow Chemical and Peoples Water ranged from 0.5 ppb to 1.0 ppb. Because the samples showed levels of benzene below water drinking standards, Mr. Cheramie ordered the pumping station to resume operations. That evening, Mr. Cheramie received a call from Mr. Norbert Redmond of Peoples Water. Mr. Redmond questioned the decision to resume pumping, informing Mr. Cheramie that sampling at Peoples Water was only done during the day time and that there could be other toxic chemicals in the water that had not yet been tested for concentrations. Mr. Cheramie informed Mr. Redmond that he would shut down the pumping station until he could ascertain the concentrations in person through written, signed test results, and subsequently ordered the pumping station to shut down until further notice.

On March 20, Mr. Cheramie was informed by DEQ that the barge would be offloaded that day, which could result in another large spill during the unloading operation. The next day, Mr. Cheramie learned that the latest sampling and testing at Peoples Water and Dow showed no traces of benzene. He also learned that the barge had not been offloaded, and ordered that pumping resume at pre-acci-dent volumes. He requested to be Lnotified as soon as the unloading operations began and of any spillage that may have occurred during those operations.

On March 25, Mr. Cheramie was apprised that a spill had occurred overnight in the preparation of barge unloading operations, resulting in the release of an undetermined amount of contaminants into the river. The next day, Mr. Cheramie was informed that measurable levels of benzene were present on the latest test, and he decided to keep the station shut down until the barge was up-righted and DEQ certified that the plume of any spillage passed the pumping station’s intakes in the river.

On March 28, eleven days after the spill, the barges were up-righted and removed to a repair facility. DEQ determined it would take twelve hours for the plume to pass by Donaldsonville. The last trace of contaminants was measured at 7:00 the next morning, and several hours later no trace could be detected. At 10:00 that morning, the pumping station went back on line.

During the time in question, Mr. Chera-mie ordered pumping to resume for twenty-thirty minute intervals on three occasions at the request of Peoples Water to refill the water company’s reservoir.

Because the pumps had been shut down, the water levels in Bayou Lafourche dropped. At one point, the bottoms of the bayou were exposed. Numerous residents who own and reside on property contiguous to Bayou Lafourche filed this lawsuit against BLFWD and Peoples Water, seeking to recover damages arising out of the rise and fall of water levels in Bayou La-fourche. Specifically, they claimed that BLFWD was negligent in manipulating the water level in Bayou Lafourche to unnecessarily expose the bayou bottom when no real benzene danger existed. They alleged that the fluctuating water levels in Bayou Lafourche caused their properties to cave into the bayou, and sought to recover damages for repair costs to reconstruct the caved-in portions of their properties, as well as damages to bulkheads and improvements, loss of shrubbery, loss of use and enjoyment |Bof their properties and mental anguish as a result of the damage to their properties.

At trial, BLFWD disputed whether plaintiffs in fact owned the portion of land they asserted had been damaged by the fluctuating water levels, contending that the subject properties were owned by the State of Louisiana. The trial judge rejected this argument, and found BLFWD to be at fault in causing plaintiffs’ property damages. The trial judge also found Peoples Water to be negligent, and apportioned 70% fault to BLFWD and 30% fault to Peoples Water.

The judge awarded owners of fourteen properties the cost or a portion of the cost to reconstruct the caved-in portions of their properties as reflected in repair estimates introduced into evidence. The judge also awarded the owners of seven properties mental anguish damages totaling $18,750.00.

This appeal, taken by BLFWD, followed. BLFWD argues that plaintiffs failed to meet their burden of proving ownership of the land allegedly damaged by it actions. Further, BLFWD asserts that the trial judge erred in finding it was negligent in its handling of the benzene spill, in faffing to assess some fault against third parties who created the disaster, and in faffing to accord statutory immunity to BLFWD, a political subdivision of the State of Louisiana. Lastly, BLFWD claims that the damages awarded to plaintiffs were excessive.

We find merit in BLFWD’s argument that plaintiffs failed to prove they own the land that caved-in as a result of the fluctuating water levels in Bayou Lafourche. However, for the purpose of this appeal, we shall discuss only BLFWD’s challenge to the liability ruling, and pretermit discussion of all other assignments of error.

NEGLIGENCE

In order to recover against a defendant in a negligence action under La. Civ.Code art. 2315, the plaintiff bears the burden of proving fault, | (¡causation and damages. Wainwright v. Fontenot, 2000-0492, p. 5 (La.10/17/02), 774 So.2d 70, 74. Negligence must be established with reasonable certainty and by a preponderance of the evidence; a showing of the mere possibility or probability of negligence is insufficient. Fallon v. Dorsett, 344 So.2d 434, 436 (La.App. 1 Cir.1977).

At issue in this appeal is whether plaintiffs satisfied their burden of proving negligence on BLFWD’s part by a preponderance of the evidence. Negligence is that conduct falling below the standard of care established by law for the protection of others against an unreasonable risk of harm. It is the breach of a duty owed to another to protect that person from the particular harm that ensued. Classert v. Butler, 98-1991, p. 3 (La.App. 1 Cir. 11/5/99), 746 So.2d 787, 789. The determination of whether a duty exists under a particular set of circumstances is a question of law. Anderson v. Piccadilly Cafeteria, Inc., 2000-1666, p. 3 (La.App. 1 Cir. 9/28/01), 804 So.2d 75, 77, writ denied, 2002-0359 (La.4/19/02), 813 So.2d 1084. Once the applicable standard of care has been established, negligence is a question of fact, which must be determined on a case by case basis according to the particular facts and circumstances therein. Classert v. Butler, 98-1991 at p. 4, 746 So.2d at 789.

By Act 113 of the 1950 Legislative Session, BLFWD was created for the purpose of furnishing fresh water from the Mississippi River to localities within the boundaries of the District. The parties dispute whether BLFWD owed the plaintiffs a duty to maintain a certain water level in Bayou Lafourche, and whether BLFWD’s decision to turn the pumps on and off was unreasonable.

The trial judge apparently premised liability in this case on the fact that the morning after the spill, Mr. Cheramie received a report of concentrations of benzene at only 0.5 ppb. The judge stressed that Peoples Water had no direct legal control over the BLFWD administrator, but was consulted on a regular basis and its on/off requests were routinely honored. |7 The judge also took issue with the fact that there was no evidence in the record that BLFWD had an emergency plan in place.

However, whether BLFWD acted negligently in its handling of the benzene spill can only be determined by examining all of the facts and circumstances of this case. Mr. George Pintado, an environmental chemist with the EWOCDS program, was involved in the monitoring of benzene levels at Peoples Water after the spill. He attested that the benzene spill in this case presented a unique situation. In his usual experience with EWOCDS, the leak or discharge was sudden and at one point in time, thus making it susceptible to measurement. However, in this case, the discharge of benzene into the river was gradual and of a long duration because the barges were leaking unknown amounts over a long period of time. There was no way, he stated, to ascertain the true nature of this spill, particularly in light of the dynamic nature of the Mississippi River. Because of these circumstances, the chemical would not evenly disburse and water readings or water samples taken at one point would not guarantee similar readings at a different location. Thus, he attested, there could have been pockets of higher/lower benzene concentrations only short distances away from where the samples were taken.

The evidence also revealed that nine days after the accident, on March 25, benzene concentrations reached 8.8 ppb at Peoples Water. Mr. Norbert Redmond, the manager of Peoples Water, testified that he advised Mr. Cheramie to turn the pumps off only on March 18, one night after the spill, because of the atypical situation it presented, in that the barge was leaking sporadically and the river was in flood stage.

Plaintiffs did not offer any scientific evidence in support of their assertion that no true environmental hazard existed. Rather, the record demonstrates Mr. Cheramie was faced with an environmental emergency, upon which he had little time to act. Mr. Cheramie acted diligently in his attempts to obtain information on benzene concentrations in the river. Mr. | «Cheramie was advised that there were factors other than the actual test results that may influence the amount of benzene in the river at the pumping station’s intake. He chose to take the safe route and shut down the pumps until he was provided with more accurate information to protect the safety of 300,000 residents who rely on Bayou Lafourche for their drinking water. Although Mr. Cheramie’s decisions may have caused the water levels in Bayou Lafourche to fluctuate, they did not unreasonably cause damage to property owners along the bayou, and the trial judge erred in finding otherwise.

After a thorough review of the record, in light of the unique situation presented by the benzene spill in this case, we find that plaintiffs simply failed to prove by a preponderance of the evidence that BLFWD acted negligently in its decision to shut down the pumping station to protect the public health. Accordingly, that portion of the judgment assessing 70% fault to BLFWD must be reversed.

CONCLUSION

Based on the foregoing, the judgment of the trial court against BLFWD is reversed. All costs of this appeal are assessed to plaintiffs.

REVERSED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.


source: Caselaw Access Project

author: 19JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John WILLIAMS.
    No. 02-KA-1188.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, Robert G. Rivard, New Orleans, LA, for Appellant.
    Harry J. Morel, Jr., District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, LA, for Appellee.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   19JAMES L. CANNELLA, Judge.

The Defendant, John Williams, appeals from his conviction of the offense of obscenity and his sentence, as a second felony offender, to seven years imprisonment at hard labor. For the reasons which follow, we affirm the conviction, vacate the finding as a habitual offender and enhanced sentence, and remand.

On October 2, 2001, the St. Charles Parish Sheriffs Office filed a bill of information charging the Defendant with obscenity by exposing his genitals to H.C., a juvenile, under La. R.S. 14:106. On May 8, 2002, the State amended the bill of information to specify that the victim was under the age of 17 and that the crime was under La. R.S. 14:106(G)(4). On May 10, 2002, the Defendant filed a motion to suppress the identification. The motion was heard and denied on May 21, 2002. Trial thereafter commenced.

At trial, H.C. testified that on April 9, 2001 she was 13 years old. At 4:30 P.M., she was walking home from a friend’s house along Highway 631 in Des Alle-mands. A white sports utility vehicle (SUV), possibly a Chevrolet Suburban, passed her “a couple of times.” At first, she did not pay attention to it. The driver, |3a black male, pulled into a driveway, turned the vehicle around, and stopped next to her. H.C. was on the passenger side of the vehicle.

The driver rolled down the vehicle window closest to H.C. and asked her for directions to a playground. H.C. approached the vehicle, intending to give the driver directions. She looked down and saw that the man’s penis was exposed and that he had his hand on it. When she realized what she saw, she walked away.

H.C. went directly to her home and told her sister what had happened. Their mother was not at home, so the girls telephoned her and reported the incident. They then called the police. Two officers went to H.C.’s house and took her complaint. H.C. gave the officers a description of the perpetrator and his vehicle. She did not remember what the perpetrator was wearing or any distinguishing features except that he was “pretty much” bald.

On April 18, 2001, H.C. and her mother went to the St. Charles Parish Sheriffs Office at the request of Detective Jo Ter-luin, to look at books of “mug shots.” H.C. looked through three books. She picked out two photographs of the Defendant, one in the first book and one in the third book, and identified him as the man who had exposed himself. She did not pick out any other pictures. H.C. also identified the Defendant at trial.

Detective Terluin testified that, following an interview with the Defendant, while walking outside with him, she noticed that he came in a vehicle that matched the description of the vehicle involved in the incident.

A defense witness, Halisha Hunter (Ha-lisha), the Defendant’s live-in girlfriend and the mother of his children, testified that she owns a white SUV. However, she testified that the Defendant did not have access to the vehicle on April 9, 2001. She testified that she and the Defendant had gotten into a fight on April 3rd and he did not come back until the 15th or 16th. She was certain that she and her sister used the vehicle the entire day on April 9th. A second witness, RLaqueena Hunter (La-queena), Halisha’s sister, testified that she was with Halisha on April 9, 2001. La-queena stated that she and her sister had Halisha’s vehicle the entire day. On cross examination, it was noted that neither Ha-lisha nor Laqueena could remember what they did on the days near the 9th, although they could remember exactly what they did on that day.

Following trial, the jury found the Defendant guilty as charged. On June 3, 2002, the State filed a habitual offender bill of information, alleging that the Defendant was a second felony offender. On June 20, 2002, the Defendant was arraigned on the habitual offender bill of information and denied the State’s allegations.

On August 8, 2002, the habitual offender bill of information was amended to change the trial court case number of the alleged predicate felony. On that day, the Defendant admitted to the allegations in the habitual offender bill of information. The trial court imposed an enhanced sentence of seven years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. It is from this conviction and enhanced sentence that the Defendant appeals. On appeal, the Defendant assigns three errors in a brief filed by the Louisiana Appellate Project and four errors in a supplemental brief filed with leave of court by retained counsel.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant complains that the trial court erred in denying his challenges for cause as to prospective jurors Dianne Bou-doin (Boudoin), Amy Barattini (Barattini), Lolena Jaramillo (Jaramillo); and William Dempsey (Dempsey). The | ^Defendant then used peremptory challenges on the latter three prospective jurors, causing him to exhaust his challenges.

Defense counsel asked that the jurors be excused because they could not follow the law and were incapable of giving, the Defendant a fair trial.

The grounds upon which a juror may be challenged for cause, as set forth in La. C.CrJP. art. 797, are 1) the juror lacks legal qualifications; 2) the juror is not impartial; 3) there is a relationship between the juror and a witness, victim, or other party associated with the case such that it would be reasonable to conclude that it would influence the juror; 4) the juror will not accept the law as given him by the court; or 5) the juror sat on the grand jury that issued the indictment.

A challenge for cause should be granted, even when a prospective juror declares his or her ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. State v. Allen, 95-1754, p. 14 (La.9/5/96), 682 So.2d 713, 724; State v. Richthofen, 01-500, p. 30 (La.App. 5th Cir.11/27/01), 803 So.2d 171, 190. The trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror and such determinations will not be disturbed on appeal unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Anthony, 98-0406, p. 22 (La.4/11/00), 776 So.2d 376, 391, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000); State v. Anderson, 99-456, p. 7 (La.App. 5th Cir.10/26/99), 750 So.2d 1008, 1013, writ denied, 99-3332 (La.5/5/00), 761 So.2d 541.

To prove error warranting reversal of both the conviction and sentence, a defendant need only show that he exhausted all of his peremptory challenges and | fithat the trial judge erroneously denied a cause challenge. State v. Connolly, 96-1680, pp. 6-7 (La.7/1/97), 700 So.2d 810, 816; State v. Paul, 99-92, p. 3 (La.App. 5th Cir.5/19/99), 738 So.2d 1128, 1129.

Here, the record shows that the Defendant used all of his peremptory challenges. Thus, the Court must determine whether the trial court abused its discretion by denying the Defendant’s challenges for cause.

First, the Defendant objects to the denial of his challenge for cause as to Boudoin. In reviewing the record, we note that the Defendant did not use a peremptory challenge to excuse this prospective juror, nor did this juror sit on the jury. As counsel were going through their peremptory challenges, with the State going first, when Boudoin’s name came up as the fourth prospective juror, she was struck with a peremptory challenge by the State. At this point in the proceedings the defense had four peremptory challenges remaining. Accordingly, we can find no prejudice suffered by the Defendant because of any alleged error in the trial court ruling on the challenge for cause and find that any objection to the trial court’s ruling is moot.

Nevertheless, for completeness of the record, we note that, in challenging Boudoin, defense counsel gave the following reasons, “She works in the sheriff’s office. She doesn’t understand a hundred percent the right of a witness to not testify. She would testify against the advice of her lawyer. That says to me she cannot be impartial.” The trial judge denied the challenge for cause.

Upon review, we find that, while Bou-doin began by saying that she would give more credibility to a police officer’s testimony, when the trial judge explained the law to her, she indicated that she understood that a juror is required to be impartial and said that she was capable of giving equal weight to the testimony of all witnesses.

^Concerning the issue of her understanding the right against self-incrimination, Boudoin was not asked how she would act as a juror. She was only asked to comment on whether she herself would testify if she were a defendant. She did not express an opinion regarding how her decision as a juror might be effected if the Defendant chose not to testify at trial. Therefore, we find no error in the trial court’s ruling denying the defense challenge for cause as to Boudoin.

Next, the Defendant challenged prospective juror Dempsey for cause, because he stated that he would always be right if he had to make a one-on-one identification and because he said that he would testify against his lawyer’s advice. The trial court denied the challenge.

We find no error in this ruling. First, defense counsel was mistaken concerning Dempsey’s understanding of the right not to testify. He said he would follow his attorney’s advice. Further, Dempsey did not indicate that he could not or would not, as a juror, follow the law regarding identification evidence.

The Defendant challenged prospective juror Jaramillo for cause on the grounds that she stated that if she was a defendant she would testify on her own behalf even against her lawyer’s advice if she thought it would benefit her. The trial court denied the challenge for cause.

Upon review, we find no error in the trial court’s ruling. Jaramillo demonstrated that she understood a defendant’s right against self-incrimination, and that even those who are innocent of a crime may choose to exercise the right. Her statement that she thought that she personally would not choose to exercise that right did not mean that she would not follow the law as she was charged as a juror or that she would be impartial to a defendant who did not testify.

The Defendant challenged prospective juror Barattini for cause, arguing to the trial court that, “She said that she would take the witness, the testimony of a young woman more into consideration than a regular person.” The ' prosecutor | responded, “That is not what she said. She was asked if she could, yeah, it could affect her, but she said when questioned earlier whether or not if we did not prove our cause, could she find for not guilty, and she said that she could.” The trial judge denied the challenge for cause.

We find no error in the denial of this challenge for cause. While Barattini expressed possible uncertainty as to whether she would be affected by a young female witness because she had a daughter, her responses as a whole showed that she was prepared to follow the law, and to require the State to prove its case beyond a reasonable doubt.

Moreover, reviewing the entire voir dire, we find that the jurors’ responses as a whole did not reveal any bias, prejudice, or inability to render judgment according to law. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant argues that the evidence produced against him at trial was insufficient to support his conviction. More particularly, he contends that the State failed to prove his identity as the perpetrator. The Defendant argues that H.C.’s identification was unreliable because she only saw the perpetrator briefly at the time of the offense and because she may have simply remembered his face because they lived in the same neighborhood.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604. In addition to proving the statutory elements of the 13charged offense at trial, the state is required to prove the identity of the perpetrator. State v. Williams, 02-645 (La.App. 5th Cir.11/26/02), 833 So.2d 497.

When identity is an issue, the State must negate any reasonable probability of misidentification. State v. Robinson, 02-530 (La.App. 5th Cir.10/29/02), 831 So.2d 460. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251, p. 6 (La.App. 5th Cir.4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. Rivers, 01-1251 at pp. 6-7, 817 So.2d at 219

Defendant was convicted of obscenity under La. R.S. 14:106(G)(4), which provides, in pertinent part:

A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.
G. (4) When a violation of Paragraph (1), (2) or (3) of Subsection A of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned, with or without hard labor, for not less than two years nor more than five years, without benefit of parole, probation, or suspension of sentence.

The Defendant concedes in his brief that the evidence at trial showed that H.C. was stopped by an individual who then exposed himself to her. His sole argument is that the State failed to prove that he was the perpetrator.

|10H.C. testified that when she approached the perpetrator’s vehicle, she saw his face. She looked at him only briefly. She looked away when she realized what he was doing. She had seen him pass by several times prior to him stopping. H.C. was questioned at trial about her testimony at the suppression hearing that she only looked at the perpetrator for three seconds. She responded that she recalled that testimony, but that three seconds was only an estimate. She had really seen the perpetrator’s face for a longer period of time.

The Defendant argues that H.C. gave a sketchy description of the perpetrator to police following the incident, indicating that she did not get a good look at him. H.C. told Detective Terluin that the Defendant was driving a white, four-door SUV. It was not a new model, but was in good condition. H.C. described the perpetrator as a black male with short or shaven hair, full lips, a broad nose, and dark skin. Detective Terluin testified that she did not think H.C. gave a clothing description.

H.C. had no trouble identifying the Defendant as the perpetrator. On April 18, 2001, she looked at mug shot books at the sheriffs office. H.C. was in a room with only her mother, and did not receive any prompting from others. Without hesitation, she selected two photographs of the Defendant, one from the first book and one from the third book, identifying him as the man who had exposed himself to her. H.C. also identified the Defendant in court. She further testified that she did not believe she was mistaken in her identification and that she could tell by looking at him in court that the Defendant was the man who had exposed himself.

Detective Terluin testified that, after the Defendant became a suspect, she asked him to come voluntarily to her office. The Defendant complied. While the Defendant was leaving, Detective Terluin said that she saw him getting into a white, 1995 SUV, in good condition, which matched H.C.’s description.

| ^Halisha testified that she owns a white SUV, but that the Defendant did not have access to it on April 9, 2001. She further testified that she and her sister used the vehicle all day, getting her nails done. Laqueena corroborated Halisha’s testimony, stating that she was with Halisha on April 9, 2001 and that the two of them used Halisha’s vehicle. Laqueena further testified that the Defendant did not use the vehicle that afternoon.

The Defendant argues that the testimony of Halisha and Laqueena was sufficient to refute H.C.’s identification. We disagree. It is apparent from the verdict that the jury found H.C. to be more credible. Halisha was the Defendant’s girlfriend and the mother of his children. She had an interest in having the Defendant support those children. Moreover, on cross examination their credibility was called into question when they were able to recall all the events of April 9, 2001, but were unable to say what they had done on April 10,11 or 12.

Based on the foregoing, we find that the State provided sufficient proof of identity to satisfy the Jackson standard. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE

The Defendant complains that his admission to the allegations in the habitual offender bill of information is invalid because the trial court failed to inform him of his right to remain silent.

In a habitual offender proceeding, a trial court must advise a defendant of his right to remain silent, and of his right to a hearing, at which the state is required to prove the allegations in the habitual offender bill of information. La. R.S. 15:529.1 D(l)(a); State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Jones, 99-972, p. 7 (La.App. 5th Cir.2/29/00), 757 So.2d 110, 114, writ denied, 00-1186 (La.9/21/01), 797 So.2d 58.

The State concedes that the Defendant was not advised of his right to remain silent before his admission to the habitual bill of information was accepted. The | ^failure of the trial court and/or defense counsel to advise a defendant of these rights before he enters an admission to the habitual offender bill is reversible error. State v. Crane, 00-1373, p. 6 (La. App. 5th Cir.3/14/01), 783 So.2d 448, 451. Accordingly, we vacate the trial court’s habitual offender finding, sentence and remand the case to the district court.

ASSIGNMENT OF ERROR NUMBER FOUR

The Defendant adopts the sufficiency of the evidence argument presented by his former counsel. He further argues that the State did not provide sufficient evidence to support a conviction, as it did not prove one of the required elements, that the victim was unmarried. La.R.S. 14:106(G)(4).

As discussed above, the constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604. When circumstantial evidence is used to prove a case, |13the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438.

The Defendant is correct in his observation that there was no direct evidence at trial that H.C. was unmarried. However, the circumstantial evidence provides adequate proof. H.C. testified at trial that, at the time of the offense, she was 13 years old and a student at a middle school. She further testified that, after the incident occurred, she went directly home. Her mother was not there, so she enlisted the help of her sister to telephone her mother, and the police, not her husband. H.C. lived with her mother and sister and no husband was mentioned. When H.C. went to the sheriffs office to view mug shots, her mother, not her husband, accompanied her. It can be reasonably inferred from the above that H.C. was not married. Thus, we find that the circumstantial evidence at trial was sufficient to prove, under the Jackson criteria, the “unmarried” element of the charged offense. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

The Defendant complains that the bill of information was defective, because it did not give him sufficient notice of the crime with which he was charged. Specifically, he argues that the bill failed to fully track the language of La. R.S. 14:106(G)(4), as it did not allege that the victim was “an unmarried person.”

The issue is not properly before this Court, because the Defendant failed to raise it below. The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Johnson, 02-254, p. 4 (La.App. 5th Cir.6/26/02), 822 So.2d 840, 842; State v. Noil, 01-521, p. 19 (La.App. 5th Cir.12/26/01), 807 So.2d 295, writ denied, 02-0276 (La.10/25/02), 827 So.2d 1177. A post-verdict attack on the | ^sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Noil, supra.

In this case, we find that the bill of information was sufficient to give the Defendant fair notice and to identify the offense. The bill of information specifically cites the subpart of the statute under which the Defendant would be prosecuted. A reading of that subpart contains sufficient particulars to give the Defendant fair notice of the offense and the enhanced penalty attached thereto. See. State v. Gainey, 376 So.2d 1240 (La.1979). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

The Defendant contends that he was prejudiced by the trial court’s failure to charge the jury on a lesser included offense. More particularly, the Defendant complains that, although he was charged under a subpart of the obscenity statute providing for an enhanced penalty, the trial court failed to offer the jury the option of returning a verdict of guilty of obscenity under La. R.S. 14:106(A)(1), as a lesser included offense to La. R.S. 14:106(G)(4). The Defendant contends, as he does in Assignment of Error Number Four, infra, that the State did not provide sufficient evidence to support his conviction, because it did not prove that the victim was unmarried. Had the trial court properly instructed the jury, the Defendant argues, he might have been convicted of an offense that carries a lesser penalty.

With regard to general jury instructions, La.C.Cr.P. art. 802 provides, in part, that “[t]he court shall charge the jury ... [a]s to the law applicable to the case.” Under the category of general charges is the requirement that the judge charge the jury as to the law regarding lesser included offenses for which the jury can return a verdict. State v. Simmons, 01-0293, p. 5 (La.5/14/02), 817 So.2d 16, 20. Pursuant to La.C.Cr.P. art. 815, the trial judge instructed the jury that the possible verdicts were guilty of obscenity, guilty of attempted obscenity, and not guilty. Further, obscenity was defined as La. R.S. 14:106(G)(4), “exposing himself in the presence of H.C.” who was an unmarried, 13 year old girl.

The record shows, and the Defendant concedes, that he failed to properly preserve this issue for appeal by objecting to the trial judge’s general jury charge. In order for a defendant to properly preserve his objection to the trial court’s general charges to the jury, he must comply with the contemporaneous objection rule. La. C.Cr.P. art. 841. An objection to the general charge is timely if made immediately after the jury is retired. State v. Hardeman, 467 So.2d 1163, 1171 (La.App. 2nd Cir.1985). However, even if reviewed on its merits, the Defendant’s argument lacks merit.

Defendant cites State v. Harris, 99-0820 (La.App. 1st Cir.2/18/00), 754 So.2d 304, in support of his argument. In that case, the defendant was convicted of obscenity after exposing himself to children in kindergarten through the eighth grade. The bill of information did not cite section (G)(4) of the statute, the jury was not charged as to the elements of that subpart, and the ages of the victims were not included on the verdict sheet. At the time of sentencing, the trial judge did not state under which penalty provision the defendant was being sentenced. However, it was obvious, from comments which the trial judge made at the time of sentencing, that he was sentencing the defendant under the enhanced provisions of subpart (G)(4).

On review, the First Circuit vacated the defendant’s conviction and sentence, and remanded the case. The court pointed to the state’s failure to make the bill of information more specific, the trial judge’s failure to charge the jury on the provisions of subpart (G)(4), and the trial judge’s failure to include the elements of that subpart on the verdict form. The court found that this last omission did not |1fiallow the jury an opportunity to express a finding of guilt either with or without the element that the act was committed in the presence of an unmarried person under the age of 17.

We find that this case is distinguishable from Harris in that the bill of information cited subpart (G)(4). The trial judge instructed the jury as to the elements of that section, the jury verdict form referred to subsection (G)(4) and the Defendant exposing himself to H.C. The only victim in this case was an unmarried 13 year old. There was no lesser offense supported by the evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

The Defendant complains that, because the verdict returned by the jury was guilty of “obscenity,” and there is no mention on the verdict sheet of the elements of La. R.S. 14:106(G)(4), the trial court should have used the lower sentencing range in La. R.S. 14:106(G)(1) to sentence him. We disagree.

Upon review, we find that the jury convicted the Defendant of La. R.S. 14:106(G)(4). The verdict sheet referenced that offense and defined obscenity as the Defendant “exposing himself in the presence of H.C.,” who was a 13 year old unmarried girl. The bill of information charged that offense, the jury was instructed on that offense and the only evidence introduced at trial was that the victim was 13 years old. Although the jury verdict form stated that the jury found the Defendant “guilty of obscenity,” in the context presented, with the only charged offense being guilty of obscenity with an unmarried person under seventeen, we find that was the offense of which the Defendant was found guilty. Therefore, there was no error in sentencing the Defendant based on the range provided in La. R.S. 14:106(G)(4). This assignment lacks merit.

h.ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5th Cir. 1990). Following review, we find no such errors.

Accordingly, for the reasons stated above, the Defendant’s conviction for obscenity is affirmed. His finding as a second felony offender and enhanced sentence are vacated and the case is remanded for further proceedings consistent with this opinion.

CONVICTION AFFIRMED; FINDING AS A HABITUAL OFFENDER AND SENTENCE VACATED; AND CASE REMANDED.

      . The Defendant was originally represented by the Louisiana Appellate Project. However, on January 22, 2003 retained counsel filed a motion to enroll and a motion for additional time to file a supplemental brief. -Both motions were granted. Thereafter, the Louisiana Appellate Project filed a motion to withdraw which was also granted.

      . Barattini's first name is spelled "Amy” in the transcript, but is spelled "Amee” in the minute entry.

      . The State used a peremptory challenge to exclude Boudoin.

      .Defense appellate counsel concedes that trial counsel did not make an express contemporaneous objection to the trial court’s ruling each time that a challenge for cause was denied, but it is argued, and we find that the record supports the contention, that in the context of the proceedings, there was an understanding among both counsel and the trial judge concerning the defense objections. Trial counsel gave full reasons for the challenges at the time she made them. Therefore, we will review the claims.

      . See discussion in Assignment of Error Number Two above.

      . The judge so instructed the jury.

      . Since the case is being remanded, although this point is moot, we note that the trial court did sentence the Defendant under the mistaken view that the range was from four to ten years when under the law the range is two and one-half to ten years.

      . Neither the transcript of the habitual offender sentencing nor the minute entry show that the trial court advised Defendant of the two-year prescriptive period for applying for post-conviction relief. La.C.Cr.P. art. 930.8. Because we have vacated the Defendant's enhanced sentence and are remanding, this error is moot, but is pointed out.


author: I «WALTER J. ROTHSCHILD, Judge.

text:
    The CITY OF KENNER v. Dan KYLE, In His Official Capacity as Legislative Auditor of the State of Louisiana.
    No. 02-CA-1262.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Salvador Anzelmo, Thomas W. Milliner, Law Office of Salvador Anzelmo, New Orleans, LA, Glenn B. Ansardi, Ansardi, Maxwell & Power, Kenner, LA, for the City of Kenner, Plaintiff/Appellee.

      Jenifer Schaye, Baton Rouge, LA, for Dan Kyle, Louisiana Legislative Auditor, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

In this suit for declaratory judgment, Dan Kyle, the Legislative Auditor for the State of Louisiana, appeals from a summary judgment rendered in favor of the City of Kenner. For the reasons stated more fully herein, we affirm in part and vacate in part the judgment of the trial court.

Factual and Procedural History

On February 27, 2002, the City of Ken-ner instituted this petition for declaratory judgment naming as defendant Dan Kyle, in his official capacity as the Legislative Auditor of the State of Louisiana. By this petition, the City of Kenner sought a judgment declaring that a Kenner city ordinance granting a temporary abatement of municipal ad valorem taxes did not violate Article VII, Section 20(A)(3) of the Louisiana Constitution. Further, the City sought a declaration that the subject tax was a special tax and was subject to the homestead exemption pursuant to Article VII, Section 20(1) of the Louisiana Constitution.

|3In response to this petition, Dan Kyle filed an exception of improper venue, which was denied by the trial court on August 29, 2002. Thereafter, on September 4, 2002, Dan Kyle answered the petition generally denying the allegations, and further asserted that the application of the homestead exemption to the municipal taxes imposed by the City of Kenner is unconstitutional.

On October 2, 2002, the City of Kenner filed a motion for summary judgment on the basis that the legislative auditor had no authority to challenge the constitutionality of a municipal ordinance or to withhold approval of ad valorem taxes. The City of Kenner also sought a summary judgment holding that the subject taxes were levied for special purposes, and are therefore special ad valorem taxes which are subject to the homestead exemption. Finally, the City of Kenner sought a judgment that the ordinances do not violate Article VII, Section 20(A)(3) of the Louisiana Constitution because they simply provide a temporary abatement of ad valorem property taxes. Dan Kyle filed a cross motion for summary judgment on October 16, 2002 seeking a holding that the abatement of the municipal taxes by the City of Kenner is in violation of the Louisiana Constitution.

By judgment dated November 13, 2002, the trial court granted in part the motion for summary judgment brought by the City of Kenner and denied the cross-motion filed by Dan Kyle. In its ruling, the court declared that the legislative auditor does not have power and/or authority to determine the constitutionality vel non of ordinances adopted by the Kenner City Council. Relying on a decision in a separate district court case, the trial court also declared that the taxes levied by the City of Kenner are “special taxes” |4which are subject to the homestead exemption as provided in the Louisiana Constitution. For these reasons, the trial court preter-mitted a determination of whether the abatement of taxes by applying the homestead exemption is permitted under the applicable constitutional provisions.

By this appeal, the legislative auditor contends that he was not attempting to challenge the constitutionality of a municipal ordinance, but was merely attempting to adhere to his obligation to approve of the ad valorem property taxes collected by the tax recipient agency. Appellant further contends that the trial court erred in failing to rule on the constitutionality of the ordinances of the City of Kenner in applying the homestead exemption to municipal taxes. Finally, appellant contends that the trial court erred in following the decision of another trial court in determining that the subject taxes are special taxes that are subject to the homestead exemption.

Law and Discussion

The purpose of a declaratory judgment is to provide a method whereby parties may request a trial judge to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. However, in order for a declaratory judgment to be granted, there must be a justi-ciable controversy because courts are not permitted to issue advisory opinions. St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1171 (La.1987). In American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 161 (La.1993), the Louisiana Supreme Court discussed at length the justiciable controversy requirement. It stated:

A justiciable controversy is a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished |Rfrom an opinion advising what the law would be upon a hypothetical state of facts, (citations omitted).

Likewise, the dispute at issue must involve the legal relations of the parties who have adverse interests, which can be determined in a conclusive factor at that stage of the proceedings. Couvillion v. James Pest Control, Inc., 98-2382 (La. App. 4th Cir.3/3/99), 729 So.2d 172, 174.

A suit for declaratory judgment is an appropriate means of testing the constitutionality or applicability of an ordinance in which there is an actual justiciable controversy between the parties. Appellate courts, as well as the trial court, are granted broad discretionary power to determine whether declaratory relief may be appropriate in a particular suit. Atchafalaya Basin Levee Dist. v. Pecquet, 364 So.2d 610 (La.App. 1 Cir.1978). On appeal, the scope of our appellate review is a determination of whether or not the trial judge abused his discretion by granting the declaratory judgment in this case. Ricard v. State, 544 So.2d 1310 (La.App. 4 Cir.1989); Associated Indem. Corp. v. Louisiana Industries Prestressed Corp., 259 So.2d 89 (La.App. 4 Cir.1972).

The first issue presented for our review is whether the trial court abused its discretion in declaring that the legislative auditor did not have the authority to challenge the constitutionality of the Kenner city ordinances. We have reviewed the applicable law on this issue, as well as the entire record in this matter, and we conclude that the ruling of the trial court is correct.

The legislative auditor was created under the constitutional provisions relating to the legislative branch of government. La. Const. Art. 3, Section 11 provides as follows:

| fiThere shall be a legislative auditor responsible solely to the legislature. He shall serve as a fiscal advisor to it and shall perform the duties and functions provided by law related to auditing fiscal records of the state, its agencies, and political subdivisions. He shall be elected by the concurrence of a majority of the elected members of each house and may be removed by the concurrence of two-thirds of the elected members of each house.

The function of the office of the legislative auditor, including a definition of his powers and duties, is set forth in La. R.S. 24:511, et seq. The requirement on the part of a tax recipient agency such as the City of Kenner to supply information to the legislative auditor is contained in La. R.S. 47:1705.

La. R.S. 47:1705(A) provides as follows:

All tax recipient agencies of ad valo-rem taxes of each and every parish of the state of Louisiana, the parish of Orleans excepted, including the police jury, school board, levee district, special districts, municipalities, and all tax recipients of any nature whatsoever of ad valorem taxes, except municipalities which prepare their own tax rolls, are hereby required to furnish the assessor and the legislative auditor the authorizing ordinances or resolutions and the tax rate to be applied to the assessed values for ad valorem tax purposes not later than June 1 of each year.

Appellant argues that the authority of the legislative auditor to challenge the method by which taxes are collected is contained both in the above-cited constitutional provisions and in La. R.S. 47:1705(D), which provides as follows:

D. In order to carry out the mandate of Paragraph B of Section 23 of Article VII of the Constitution of Louisiana, the legislative auditor is hereby authorized and required to review the millages levied by each tax recipient body in each year that reassessment occurs to determine whether the millages levied are in compliance with the provisions of this Section and the constitution. The legislative auditor is also authorized and required to review the millages levied by each tax recipient body in each year in which an increase in millage is made by a two-thirds vote of the total membership of the taxing |7authority under the provisions of Paragraph C of Section 23 of Article VII of the Constitution of Louisiana, to determine whether the millage levied is in compliance with the provisions of this Section and the Constitution. The auditor shall order changes in the amount of millage levied if the auditor determines thereafter that a mathematical error or mathematical errors have been made in the calculation of the adjustment of millages as required by this Section and the Constitution of Louisiana.

Although the legislative auditor is given authority to audit fiscal records and review millages levied by tax recipient bodies, nothing in the above-cited constitutional provisions nor in the applicable legislation authorizes the legislative auditor to determine the constitutionality of a taxing ordinance prior to approving the tax collection. In specific cases involving an increase in millages, La. R.S. 47:1705(D) authorizes the auditor to order changes in the amount of the millages levied where a mathematical error has been discovered. However, this statute does not authorize the auditor to refuse to certify the collection of property taxes based on a unilateral decision that the taxes imposed may violate constitutional provisions.

The record in this case fails to indicate that the city ordinances have been properly challenged by a taxpayer with valid standing within the municipal district. Further, the Attorney General has not joined in these proceedings or instituted suit to challenge the city ordinances on the basis that they violate the state constitution pursuant to his powers and duties contained in Article IV, Section 8 of the Louisiana Constitution. Rather, this case was instituted as a declaratory judgment following the legislative auditor’s refusal to approve of the 2002 ad valorem taxes in the City of Kenner.

lsThe law is well settled that the authority to determine the constitutionality of city ordinances is vested exclusively within the jurisdiction of the courts of this state. See, Midboe v. Commission on Ethics for Pub. Employees, 94-2270 (La.11/30/94), 646 So.2d 351, 356. The office of the legislative auditor is not a court, but is a creation of the legislative branch of government. The legislative auditor has no statutory or constitutional power or other authority to determine the unconstitutionality of the city ordinances, and absent a judicial determination regarding the legality of the ordinances, the auditor must accept their validity. Thus, the ordinances are valid and enforceable until they are judicially held to be invalid. Priola v. Calcasieu Parish Police Jury, 97-161 (La.App. 3 Cir. 6/4/97), 696 So.2d 183, 186, writ denied, 97-1693 (La.10/13/97), 703 So.2d 613.

Based on these fundamental legal precepts, we conclude that the legislative auditor is required to abide by the provisions of the Kenner City ordinances, and he is without legal power or authority to withhold approval of the ad valorem property taxes of the City of Kenner absent a judicial determination that the application of the homestead exemption to these taxes is unconstitutional. Thus, the trial court did not abuse his discretion in rendering a declaratory judgment declaring that the legislative auditor does not have the power or authority to challenge the constitutionality of the Kenner City ordinances.

The remaining issues presented by this appeal are whether the trial court erred in refusing to consider the constitutionality of these ordinances and in determining that the taxes referred to in the ordinances are special taxes which are subject to the homestead exemption. As stated previously herein, there is no constitutional or statutory basis for the legislative auditor | ¡¡to challenge the constitutionality of a city ordinance. Further, in order to render a declaratory judgment, there must be a justiciable controversy.

Absent a determination that the legislative auditor has a legal basis for challenging the constitutionality of the subject ordinances, the court is precluded from reaching the merits of such a claim. Any decision rendered at this time would be premature and would constitute an advisory opinion which we are not permitted to render. Accordingly, as the trial court correctly found that the legislative auditor had no constitutional or statutory authority to challenge the ordinances, the trial court did not err in refusing to consider the constitutionality of these ordinances. However, insofar as the judgment held that the taxes referred to in these ordinances are considered to be special ad valorem taxes within the meaning of constitutional provisions, we find that the trial court erred. As the legislative auditor had no legal authority to challenge the constitutionality of the ordinances, we fail to find the existence of a justiciable controversy that would warrant the rendering of a declaratory judgment.

Therefore because the trial court reached the merits of the constitutional challenge to the city ordinances prematurely, we vacate and set aside in part the summary judgment granted below insofar as it declares that the ordinances referred to are special ad valorem taxes which are subject to the homestead exemption pursuant to constitutional provisions. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; VACATED IN PART

      . Article VII, Section 20(A)(1) of the Louisiana Constitution provides in pertinent part: The bona fide homestead, ... owned and occupied by any person, shall be exempt from state, parish and special ad valorem taxes to the extent of seven thousand five hundred dollars of the assessed valuation. Article VII, Section 20(A)(3) provides in pertinent part: This [homestead] exemption shall not extend to municipal taxes.


author: I,JAMES L. CANNELLA, Judge.

text:
    Gloria Dean GARRISON, Individually and as Executrix of the Estate of John Garrison v. Dr. Rian TANENBAUM.
    No. 02-CA-1181.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Cheryl L. Gray, Alvina R. Mitchell, New Orleans, LA, for Appellants.
    Kristin E. Hendricks, Law Office of Robert E. Birtel, Metairie, LA, for Appel-lee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   I,JAMES L. CANNELLA, Judge.

Plaintiff, Gloria Dean Garrison, individually and as Executrix of the Estate of John Garrison, appeals from the summary judgment granted in favor of the Defendant, Dr. Rian Tanebaum (Dr. Tanebaum), dismissing her case with prejudice. For the reasons which follow, we affirm.

On September 24, 1999, Plaintiff submitted a claim for medical malpractice against Dr. Tanebaum, alleging a delay in diagnosis of gastric cancer. John Garrison, the Plaintiffs husband, had first visited Dr. Tanebaum on August 6, 1997 with complaints about pain in his mid-back and radiating around to his left side and then to his abdomen. In the prior two months, he had been evaluated at the Family Doctor’s Clinic and had undergone an ultrasound of the abdomen, upper gastrointestinal (GI) series and an intravenous pyelogram (IVP). All the tests results were normal. Dr. Tanebaum ordered a series of tests including a complete blood count (CBC), combining forms relating to chemistry (chem.20), amylase, lipase and urinalysis. These tests revealed no abnormalities. On October 17, 1997 a computerized tomography (CT) scan of the abdomen and pelvis was performed and showed no abnormalities. A flexible sigmoidoscopy and barium enema were performed in January and February of 1998. Neither or those tests revealed any abnormalities. John Garrison returned to Dr. Tanebaum in May of |31998 with virtually the same complaints. Dr. Tanebaum ordered a gastroscopy which revealed a 8 x 3 centimeter irregular ulcerated area in the stomach. A biopsy revealed adenocarcinoma of the stomach. John Garrison expired shortly thereafter.

On September 24, 1999, Plaintiff filed a claim for medical malpractice pursuant to La. R.S. 40:1299.47, alleging a delay in diagnosis of gastric cancer. At the conclusion of the medical review panel proceedings, the panel rendered an opinion with reasons in which they found that “the evidence does not support the conclusion that the defendant, Dr. Rian M. Tanebaum failed to meet the applicable standard of care as charged in the complaint.”

On March 5, 2001, Plaintiff filed this malpractice suit. Following the filing of his answer, Dr. Tanebaum filed a Motion for Summary Judgment, arguing that there were no issues of material fact because Plaintiff had no expert to testify concerning the alleged malpractice. On May 30, 2002, the trial court rendered a judgment ordering the Plaintiff to identify on or before June 28, 2002, at 9:00 a.m., any and all experts that would testify against the Defendant. The trial court further ruled that if the Plaintiff failed to so name the experts, the Defendant’s motion for summary judgment would be granted.

On June 27, 2002, the Plaintiff faxed the Defendant a letter identifying her expert witness as Dr. Harold Shelby. The Defendant contacted Dr. Shelby for a deposition and was informed by his office that he had not been retained by Plaintiff. Further, the Defendant secured an affidavit from Dr. Shelby stating that after review of the record regarding the treatment of John Garrison by Dr. Tanebaum, he was not of the opinion that Dr. Tanebaum had breached the standard of care. Thereafter, on July 2, 2002, the Defendant filed a Motion to Reurge Motion for Summary Judgment. Plaintiff filed no opposition to the motion. Plaintiff was present on July 24, 2002 at the hearing on the motion and still had no |4expert witness. The trial court granted the defense motion for summary judgment and dismissed Plaintiffs case with prejudice. It is from this ruling that Plaintiff appeals.

Plaintiffs sole argument on appeal is that, despite the fact that she did not produce an expert witness to testify about the Defendant’s breach of the standard of care, there were still material issues of fact that precluded summary judgment. More particularly, the Plaintiff argues that, even though she did not produce the name of an expert witness, the Defendant, as movant of the motion for summary judgment, did not meet his burden with only the opinion of the medical review panel, absent either an affidavit by one of the physicians on the panel or the affidavit of another physician, stating that the Defendant did not breach the standard of care.

The defense argues, to the contrary, that pursuant to La. C.C.P. art. 966(C)(2), they met their burden and were entitled to summary judgment because of the Plaintiffs failure to produce an expert, who was necessary to satisfy her evidentiary burden at trial.

It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Out Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La. App 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. Thus, this court must consider whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Smith, supra. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Magnon v. Collins, supra.

|RThe burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. P. art. 966(C)(2).

Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Foster v. Consolidated Employment Systems, Inc., 98-948 (La.App. 5th Cir.1/26/99), 726 So.2d 494.

To succeed in a suit for medical malpractice, the plaintiff bears the burden of proving:

(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by a physician licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances;

(2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and

(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. La. R.S. 9:2794(A).

It has been held that expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to |fiestablish the standard of care under the circumstances and. to determine whether the defendant doctor possessed the requisite degree of skill and knowledge or failed to exercise reasonable. care and diligence. Manning v. Sketchier, 99-1128 (La.App. 5th Cir.3/22/00), 759 So.2d 869; Perricone v. East Jefferson General Hosp., 98-343 (La.App. 5th Cir.10/14/98), 721 So.2d 48. An exception to this rule, where expert testimony may not be required, is only where the physician does an obviously careless act, such as amputating the wrong arm, dropping a knife, scalpel or acid on a patient, or leaving a sponge in a patient’s body. The reason for this exception is that a lay person can infer or find negligence from the facts. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228.

The negligence alleged in this case does not involve negligence that is so obvious that it could be inferred from the facts presented. To the contrary, it involved complicated medical considerations concerning which tests were appropriate in response to the symptoms, the timing of the tests and whether other tests should have been performed. Thus, in order to establish the standard of care for the Defendant in this case, and the alleged breach of that standard of care, the Plaintiff must put forward expert medical testimony.

In this case, the Defendant moved for summary judgment based on the Plaintiffs inability to produce an expert witness necessary to the proof of her case. The trial court rendered judgment on the motion requiring the Plaintiff to identify an expert who would testify against the Defendant regarding his breach of the applicable standard of care. The trial court further ruled that if the Plaintiff failed to name an expert that the Defendant’s motion for summary judgment would be granted. Plaintiff was given until June 28, 2002 to identify the expert witness. While the Plaintiff did produce a name, the named doctor signed an affidavit that he had not been retained by the Plaintiff and that, after examining the record, he would not testify that Dr. Tanebaum had breached the applicable standard of care. 17The defense reurged its motion, along with the opinion by the medical review panel, the prior judgment of the trial court ordering identification of an expert and the affidavit of the expert that Plaintiff named. Plaintiff did not oppose the motion. Based on the foregoing, we find that the trial court was correct in granting the summary judgment because the Plaintiff failed to produce factual support sufficient to establish that she would be able to satisfy her evi-dentiary burden of proof at trial.

Plaintiff argues that the Defendant’s evidence was inadequate, without an affidavit by one of the panel members or another physician expert. We disagree. Under La. C.C.P. art. 966(C)(2) the Defendant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if, as here, the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Accordingly, the summary judgment granted against the Plaintiff and in favor of the Defendant, dismissing the Plaintiffs case with prejudice, is affirmed. Costs of appeal are assessed against Plaintiff.

AFFIRMED.


author: LCLARENCE E. McMANUS, Judge.

text:
    Ann GLOVER and Karen Walker v. AMERICAN NATIONAL INSURANCE COMPANY.
    No. 02-CA-1213.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      George B. Recile, Chehardy, Sherman, Ellis, Breslin, Murray & Recile, Metairie, LA, for plaintiffs-appellees.
    Steven B. Witman, Vallerie Theng Matherne, Metairie, LA, for defendant-appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   LCLARENCE E. McMANUS, Judge.

The trial court granted plaintiffs’ partial motion for summary judgment finding uninsured motorist coverage extended to them as guest passengers in a rented vehicle. Defendant appealed. For the following reasons, we affirm.

STATEMENT OF THE CASE AND FACTS

The following facts are not in dispute. Plaintiffs, Ann Glover and Karen Walker, were guest passengers in a vehicle rented and driven by Deanna Baroni. In December 2001, the vehicle was rear-ended in Florida by a vehicle operated by Samuel Loftin. Plaintiffs filed suit against Baro-ni’s personal automotive insurer, American National Property and Casualty Company, (“ANPAC”), alleging Loftin was an under-insured motorist as defined by La. R.S. 22:1406(d) (2)(b), and seeking to invoke coverage under her UM policy. ANPAC answered denying coverage for this accident. Thereafter, it filed a motion for summary judgment |,-¡arguing its policy only provides uninsured/underinsured coverage for an “insured person” occupying an “insured car.” It contended plaintiffs are not insured persons because they are not related to the actual insured person and the vehicle at issue is not an insured car because the rental was not a “temporary substitute car” as required under its policy. In response, plaintiff opposed the motion and filed a motion for partial summary judgment asserting that La. R.S. 22:1406(F) extends coverage for this accident to them. In support, plaintiffs relied on this Court’s opinion in Moldthan v. Krasniak, 97-1013 (La.App. 5 Cir. 2/25/98), 708 So.2d 1187.

After a hearing, the trial court denied ANPAC’s motion for summary judgment but granted plaintiffs’ partial motion for summary judgment designating it as a final judgment. This devolutive appeal followed.

DISCUSSION

ANPAC argues that partial summary judgment was inappropriate because coverage is not mandated by La. R.S. 22:1406(F) in this case. It contends that the plaintiffs are not insureds under its policy and that the rental vehicle at issue does not fit the policy definition of a temporary substitute vehicle such that UM coverage should be extended to plaintiffs in this case. Because we find that plaintiffs would be covered as insureds under the ANPAC policy had plaintiff been driving her own vehicle, we conclude the fact that ANPAC’s insured, Deanna RBaroni, was driving a rental vehicle does not exclude plaintiffs from coverage in this case.

ANPAC’s argument concerning the rental vehicle does not consider the complete language of La. R.S. 22:1406(F), which requires coverage not only for “temporary substitute motor vehicles as defined in the applicable insurance policy” but also for “rental private passenger automobiles.” As this Court found in Moldthan v. Krasniak, 97-1013 (La.App. 5 Cir. 2/25/98), 708 So.2d 1187, we likewise find that the reference in the statute to rental vehicles in addition to “temporary substitute vehicles as defined in the applicable insurance policy” indicates a Legislative intent that rental automobiles be covered, even if not so defined in the policy. Id. at 1189. Therefore, under the clear wording of the statute “all such insurance coverage in effect in the original policy” would apply to the rental vehicle. Thus, the plaintiffs and the rental vehicle are covered by the policy as mandated by La. R.S. 22:1406(F). Accordingly, the judgment of the trial court is affirmed.

CONCLUSION

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

AFFIRMED.

      . The parties do not dispute that the vehicle was rented for the express purpose of transporting the occupants for a trip to and from Disney World in Orlando, Florida.

      . La. R.S. 22:1406(D)(2)(b) provides:
      (b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.

      .La. R.S. 22:1406(F) provides:
      F. Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage, on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if othpr automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source. [Emphasis added]


author: I JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Monica DUFRENE.
    No. 02-KA-1083.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Bourdreaux, Assistant District Attorney, Gretna, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   I JAMES L. CANNELLA, Judge.

The State appeals from a judgment which granted the Motion to Quash filed by the Defendant, Momea Dufrene. For the reasons which follow, we reverse and remand.

There are few facts of record in this case because it was decided pre-trial on a Motion to Quash. The Motion to Quash indicates that the police were called on a report that the Defendant had scratched a 2000 Dodge Intrepid vehicle belonging to the Defendant’s ex-husband, Wayne Du-frene. The bill of information, filed December 4, 2001, charged the Defendant with criminal damage to an automobile, with the damage amounting to over $500, in violation of La. R.S. 14:56.

In her motion, the Defendant alleged that she was a co-owner of the property in question and argued that, as a matter of law, she could not be guilty of criminal damage to one’s own property.

La R.S. 14:56 provides in pertinent part:

Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.

DOn April 1, 2002, at the hearing on the Defendant’s motion, the State introduced into evidence a copy, in globo, of the divorce agreement whereby ownership of the 2000 Dodge Intrepid was granted to Wayne Dufrene, with the Defendant agreeing to give up all of her interest in the vehicle. The Defendant introduced exhibits of the Sevier County Bank loan and the title, both to the vehicle, with her name on them. No testimony was taken. The Defendant argued that the transfer of ownership never took place and that the Defendant was still a co-owner of the vehicle. The State argued that the Defendant ceased being an owner of the vehicle by the divorce agreement irrespective of whether there was a title transfer.

After considering the exhibits and the arguments of counsel, the trial court found that the provision in the divorce agreement, without a change of title, was not sufficient to deprive the Defendant of an ownership interest in the vehicle. Thus, he found that she could not be found guilty of committing criminal damage to property and granted the Motion to Quash the bill of information. It is from this ruling that the State appeals.

The only issue presented in this appeal is whether the trial court erred in granting the Defendant’s motion because she was a co-owner of the vehicle that she is charged with damaging

In State v. Perez, 464 So.2d 737 (La.1985), the Supreme Court discussed the nature of a motion to quash and stated:

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534. It is treated much like an exception of no cause of action in a civil suit. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971).
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be Uadduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720 (1971); State v. Ponthieux, 254 La. 482, 224 So.2d 462 (1969). The question of factual guilt or innocence of the offense charged may not be raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974); State v. Snyder, 277 So.2d 660 (La.1973).

La.C.Cr. P. arts. 532 and 534, specifying the grounds for quashing a bill of information, provide:

Art. 532. General grounds for motion to quash
A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
Ik Art. 534. Special grounds for motion to quash information
A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.

Here, the Defendant raised no issue regarding the sufficiency of the bill of information. Further, she does not argue that the bill of information is defective in failing to advise her of the specific crime with which she was charged, or that it failed to charge a valid offense. Rather, the issue raised is whether the damaged property belonged to another and was damaged without the consent of the owner, a defense on the merits. As such, it is not properly considered by a Motion to Quash.

In State v. Inchaustequi, 97-189, (La.App. 5th Cir.9/17/97), 700 So.2d 884, this Court examined a similar issue. The defendant in that case was charged with unauthorized entry of an inhabited dwelling and simple burglary of an inhabited dwelling. The defendant filed a motion to quash alleging that he was a co-owner of the property and, therefore, his entry could not be unauthorized. The trial court granted the defendant’s motion to quash, and this Court reversed that ruling on appeal. This Court reasoned that, in order to determine whether the defendant’s entry was unauthorized, several factors must be considered, including initial ownership, the status of the property at the time of defendant’s entry, and the living status of the parties. This Court held that a determination of whether defendant’s entry was unauthorized was a factual question that must go to the merits of the case for determination at trial and was not properly considered by a motion to quash.

The Defendant herein, by her Motion to Quash, is arguing that she has a valid defense on the merits, that she is a co-owner of the property and, therefore, the vehicle does not belong to another and was not damaged without the consent of | ¿the owner. In addressing this argument, we must consider several factors: the initial ownership of the property, the effect of the divorce agreement, the effect of the loan agreement, the relevance of the title remaining in her name, and the status of the property at the time the Defendant damaged it. We find that all of these considerations address the merits of the case.

Therefore, we find that the determination of whether or not the Defendant was a co-owner of the property such that it was not the “property of another” damaged “without the consent of the owner” is a factual matter which must go to the merits of the case and is a question for trial. This defense may not be considered by a motion to quash the bill of information. The trial court, therefore, erred in granting the Motion to Quash.

Accordingly, we reverse the trial court judgment which granted the Motion to Quash and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.