author: I,STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Walter HANNON, a/k/a Walter Elmore, Appellant.
    No. 37,351-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, for Appellee.

      Before STEWART, CARAWAY and DREW, JJ.
   I,STEWART, J.

The defendant, Walter Hannon (“Han-non”), was convicted by a jury of attempted forcible rape and attempted oral sexual battery. He was sentenced and found to be a habitual offender. His original sentence was vacated and he was re-sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The latter sentence was ordered to be served without benefits. The defendant now appeals. For the reasons that follow, we affirm his convictions, but we vacate his sentences, and remand the matter for further proceedings consistent with this court’s opinion.

FACTS

On or about November 2, 2000, the victim, T.W., a 13-year-old male, encountered the defendant on his way to a playground near the victim’s home. The defendant raced and “slap boxed” with the victim, and told the victim his name was Walter Hannon. The next day, the victim was playing in his front yard area at 1903 Samuel Drive in Monroe when he was grabbed by the defendant, who covered his mouth and arms and dragged him down the street. The defendant then took the victim “the back way” to an uninhabited structure located on Samuel Drive and opened the door with a key. The victim, who weighed about 105 pounds and was approximately 5'5" tall, was taken to a dark room by the defendant. The victim was alone in the room with the defendant. Some Vaseline and a towel were already in the room. The defendant performed oral sex on the victim. The defendant then put Vaseline on his own private parts and forced the victim to have | ?anal intercourse. The defendant told the victim that he would kill him if he told anyone. The defendant then took the Vaseline and towel with him and left.

The victim went home and told his grandmother, who called the police. The victim went in a car with some family members to look for the defendant. They encountered the defendant when he came out of a house near the corner where he and the victim had raced the day before. David Banks, who was the boyfriend of the victim’s aunt and one of the persons riding with the victim, got out of the car and asked the defendant for a cigarette while the aunt tried to get the attention of a nearby law enforcement officer, but the defendant “took off running.”

In the early morning hours after the crimes, the victim was taken to St. Francis Medical Center where a rape examination was performed and physical evidence was removed from the victim’s body. The examining physician, Dr. Robert Carey, observed bruising around the victim’s rectum, anus and a mucosal tear of the victim’s anus which could have been caused by penile penetration. The victim told the examining physician that the defendant performed oral sex on his body and anally penetrated him. Among the other information the physician noted in the history that he took from the victim was that the victim said the defendant kissed his neck. A couple of days later, the victim was shown a photographic lineup by police. The victim selected the defendant’s picture. The victim also gave a recorded statement to police.

|3The defendant was charged by a bill of information with forcible rape and oral sexual battery. The defendant was tried by a jury. Evidence introduced at trial included the testimony of the victim, who related the facts and circumstances surrounding the crimes, and made an in-court identification of the defendant as the assailant. During his trial testimony, the victim acknowledged that he told police during his recorded statement that the defendant took him to 1938 Samuel Drive. However, the victim corrected himself at trial and stated that the rape occurred at 1930 Samuel Drive. The victim also denied telling police during his recorded statement that the defendant tried to open any other doors. The victim said that there was nothing unusual about the house in which the crimes occurred' — he asserted that it had not been burned. On cross-examination, the victim clarified that he was not forced to perform oral sex on the defendant. The victim did not recall telling the examining physician that the defendant kissed his neck.

At trial, the examining nurse and physician testified regarding the results of.the victim’s physical examination and the collection of the physical evidence contained in the rape kit. Investigating officers testified regarding the investigation of the crime and the collection and chain of evidence. The state presented evidence that the defendant was born on July 23, 1967, and that the victim was born on September 3,1987.

Linda Armstrong of the North Louisiana Crime Lab, an expert in DNA analysis, testified that she analyzed the DNA suspected reference samples obtained from the defendant and compared them to DNA samples | obtained from the rape kit performed on the victim. Armstrong determined that the sperm fraction from the victim’s anal swab was consistent with the DNA profile she obtained from the reference sample of the defendant. Specifically, Armstrong calculated that the probability of finding the same DNA profile if the DNA had come from an African American other than the defendant was approximately one in fourteen point seven trillion. Armstrong’s conclusions and calculations were confirmed at trial by Dr. Pat Wo-jtkiewicz, another expert in DNA analysis and statistical data.

The state also presented the trial testimony of Earnest Gary Hamilton, Sr., the owner of West Ouachita Painting Company, who employed the defendant at the time of the crimes, and who saw him working on Samuel Drive on the date of the crimes. Hamilton testified that the defendant had worked on the apartments on either side of 1938 Samuel Drive and had access to a master key. He related that the unit located at 1938 Samuel Drive had been burned and was unlocked. Hamilton’s payroll records, confirming the defendant’s employment on the date of the crimes, were introduced at trial. Also, Tijuana Thompson, who was employed by the Monroe Housing Authority, testified that the defendant was receiving payments for work being done on Samuel Drive at the time the crimes were committed.

The defense presented the testimony of Theresa Wilson, an alibi witness. Wilson was living with the defendant at the time of the crime and is the mother of his child. She testified that the defendant was at her residence on the evening of the crimes from a little after five o’clock until Lab out eleven or twelve o’clock. On cross-examination, Wilson acknowledged that she had feelings for the defendant. She also acknowledged that she never told the authorities that the defendant was with her until just before trial. The defense also presented the testimony of two witnesses who were also present to corroborate her story.

The defendant was convicted of attempted forcible rape and attempted oral sexual battery. On July 22, 2002, the trial court sentenced the defendant to serve 20 years at hard labor on count one, attempted forcible rape, and 5 years at hard labor on count two, attempted oral sexual battery.

On August 22, 2002, the defendant was found to be a multiple offender. His original sentence was vacated and he was sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The sentences were ordered to be served concurrently to one another, but consecutively with any sentence the defendant was serving for his parole violation. The sentence for attempted forcible rape was ordered to be served without benefit of parole, probation or suspension of sentence. The defendant’s timely filed motions to reconsider sentence were denied. This appeal followed.

DISCUSSION

Insufficiency of the Evidence

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such eases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

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

However, this court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 29,253 (La.App.2d Cir.4/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ponsell, supra; State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175; State v. Standifer, 513 So.2d 481 (La.App. 2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra; State v. Watson, 32,203 (La.App.2d Cir.8/18/99), 743 So.2d 239, writ denied, 1999-3014 (La.3/31/00), 759 So.2d 69; State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

La. R.S. 14:42.1 provides in part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

La. R.S. 14:27 provides, in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

To support a conviction for attempted forcible rape, the state must prove that defendant had the specific intent to commit forcible rape and that he did an act for the purpose of, and tending directly toward, the accomplishing of his objective. La. R.S. 14:27 and 14:42.1; State v. Dorsey, 30,683 (La.App.2d Cir.6/24/98), 718 So.2d 466, writ denied, 98-2227 (La.12/18/98), 732 So.2d 54; State v. Bryant, 607 So.2d 11 (La.App. 2d Cir.1992), writ denied, 92-3082 (La.2/25/94), 632 So.2d 760; State v. Bailey, 585 So.2d 1245 (La.App. 2d Cir.1991). Specific intent, being a state of mind, need not be proved as a fact but may be inferred from the 19circumstances involved and the actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982); State v. Dorsey, supra; State v. Bailey, supra.

La. R.S. 14:43.3, regarding, oral sexual battery, provides in part:

A. Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender when the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense.

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App.2d Cir.5/08/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App.2d Cir.3/1/00), 754 So.2d 387. Even if an offense is legislatively designated as responsive by La. C.Cr.P. art. 814, a defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. La. C.Cr.P. art. 814(C). State v. Mitchell, supra; State v. Johnson, 30,078 (La.App.2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. Absent a contemporaneous objection, however, a defendant cannot complain if the jury returns a legislatively-approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided that the evidence is sufficient to support the charged offense. State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990); State v. Mitchell, supra. In this instant case, the record does not indicate that a contemporaneous objection was made.

The defendant argues that the victim was the only witness to the crimes, and his testimony was varied and unreliable. Particularly, the defendant alleges that the victim’s trial testimony was inconsistent with his statement to the investigating police regarding both the address of the house in which the crimes were committed (1930 Samuel Drive or 1938 Samuel Drive) and whether the house had been burned. The defendant also noted other alleged inconsistencies in victim’s account of the events surrounding his attack.

The defendant argues that the state did not present sufficient evidence of the crime of attempted forcible rape. Specifically, the defendant contends that the victim presented no testimony that he was prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. The defendant notes the victim’s testimony regarding encountering a man who asked for a cigarette while he was being dragged down the street and questions why this man did not ask why the victim was being dragged. Regarding the DNA evidence, the defendant argues that the sperm sample could have been transferred without contact between the two persons-via a towel, lubricant or sheet. Finally, the defendant argues that he presented credible evidence through alibi witnesses that he was at his girlfriend's home at the time the crimes were committed.

^Nonetheless, the record supports the conclusion that the evidence, viewed in the light most favorable to the prosecution, was sufficient for any rational trier of fact to have found the essential elements of both crimes proven beyond a reasonable doubt. Jackson v. Virginia, supra. The testimony of this victim alone was sufficient to convict the defendant. State v. Ponsell, supra. Also, State v. Rives, supra; State v. Thomas, supra; State v. Free, supra; State v. Standifer, supra.

The victim positively identified the defendant as the perpetrator of both offenses both in court and during a photographic lineup. Regarding the charged offense of forcible rape, the victim further testified that the defendant forced him to engage in anal sexual intercourse, and he was prevented from resisting by threats of death under circumstances in which he reasonably believed that such resistance would not have prevented the rape. See La. R.S. 14:42.1 A(l). The victim, who was youthful and small in size, was physically prevented from resisting the defendant’s attack, and the emotional “shock” obviously impeded his resistance, as well. The totality of the circumstances of the crime supports this conclusion, including the 20-year age difference of the victim and defendant and defendant’s forceful taking of the victim into a secluded location to which the defendant had a key. The victim’s testimony alone would have been sufficient proof even if the state had not introduced medical, scientific, or physical evidence to prove the commission of these offenses by the defendant. See State v. Ponsell, supra; State v. Turner, supra. However, medical evidence introduced at trial did indeed corroborate the victim’s testimony that he had h?been raped. Furthermore, the scientific evidence presented by the state in the form of DNA analysis clearly supported the conviction of the charged offense of forcible rape, and conclusion that the defendant was the perpetrator. A review of the evidence supports the conclusion that the state negated any reasonable probability of misidentification to carry its burden of proof of the identity of the defendant as the perpetrator of both offenses. See State v. Powell, supra. Finally, the victim’s testimony that the defendant performed oral sex on him, together with the testimony regarding the respective ages of the victim and the defendant, was sufficient to support the conclusion that the defendant committed the charged offense of oral sexual battery. See La. R.S. 14:43.3; State v. Rives, supra; State v. Thomas, supra; State v. Standifer, supra. It is not the function of this court to disturb the credibility determinations of the jury. Therefore, this assignment is without merit.

Habitual Offender Proceedings

At the conclusion of the habitual offender proceedings, the defendant was re-sentenced to enhanced sentences for both convictions. The defendant argues, and the state concedes, that both of the defendant’s sentences should not have been enhanced since both crimes arose out of a single transaction.

In State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), the supreme court held that a defendant who was convicted on one day for three counts of armed robbery arising out of one criminal episode could not be adjudicated a habitual offender and sentenced as such on all three | ^convictions. Also see State v. McCurtis, 2000-3080 (La.11/2/01), 800 So.2d 862, 863. Also, State ex rel. Berry v. State, 96-0367 (La.5/16/97), 693 So.2d 787, held that: (1) multiple convictions obtained on one day for offenses arising out of one criminal episode should be considered one conviction for purposes of applying the habitual offender law in sentencing, and (2) a defendant convicted on one day for three counts of armed robbery arising out of one criminal episode could not be adjudicated a habitual offender and sentenced as such on all three convictions. The habitual offender bill should have designated which conviction was to have the enhanced sentence, and the trial court should enhance only one conviction. Thus, the defendant’s sentences are vacated and the matter is remanded for further proceedings consistent with this court’s opinion.

Excessive Sentence

Since the state has conceded that both convictions should not have been enhanced, and the record and the law supports this concession, we remand for re-sentencing.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions, but we vacate the sentences and remand the matter for further proceedings consistent with this court’s opinion.

AFFIRMED IN PART. VACATED IN PART AND REMANDED.

      . The victim is identified by his initials because confidentiality requirements are applicable to the instant case under La. R.S. 46:1844(W).


source: Caselaw Access Project

author: L GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Tommy BEVERLY, Appellant.
    No. 37,301-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    John M. Lawrence, Indigent Defender Board, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, H. Melissa Sugar, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and TRAYLOR (Pro Tempore), JJ.
   L GASKINS, J.

The defendant, Tommy Beverly, was originally indicted for first degree murder in the shooting death of Monica Bradley. Pursuant to a plea bargain, he was allowed to plead guilty to attempted first degree murder and sentenced to 50 years at hard labor without benefit of parole, probation or suspension of sentence. Defense counsel argues that the defendant’s sentence is excessive. In a pro se brief, the defendant asserts that the state breached the plea bargain. We remand the case to the trial court for a hearing to determine whether the defendant shall be granted a hearing on his motion for reconsideration of sentence or whether he shall be allowed to withdraw his guilty plea.

On November 21, 1997, the victim died after being shot multiple times. She was the former wife of the defendant’s cousin, Demetrius Bradley. The defendant admitted to the police that Bradley offered him an automobile and an undetermined amount of cash to kill the victim. According to the defendant, he and Bradley laid in wait for the victim outside her residence. As Bradley watched, the defendant approached the victim as she was leaving for work. The defendant initially attempted to shoot her with a .22 caliber rifle but the weapon misfired. The defendant then shot the victim at least four times with a 9 mm pistol. Two bullets grazed her, one passed through the facial bones, and a fourth went through her right lung.

1When questioned, the defendant cooperated with the police and made a full confession. Both he and his cousin were indicted for first degree murder. The state elected to pursue the death penalty against both of them.

On April 7, 2000, the defendant pled guilty to attempted first degree murder. This plea was entered pursuant to an agreement with the state whereby the defendant would testify truthfully against Bradley. The defendant agreed to waive sentencing delays and be immediately sentenced to 50 years at hard labor without the benefit of parole, probation or suspension of sentence. The stated purpose for the immediate imposition of sentence was to allow the defendant to be removed from the Bossier Parish Jail, where Bradley was also an inmate, and transferred to a facility operated by the Department of Corrections where he would be safe. As outlined by the prosecutor, the terms of the agreement called for the defendant to file a timely motion to reconsider sentence, which would not be heard until after Bradley’s trial. The state also requested that the trial court order a post-sentence investigation as if it were a pre-sentence investigation. The plea was then entered and the sentence imposed in accordance with the terms of the agreement.

On April 17, 2000, the defendant filed a timely motion to reconsider. On that same day, he also filed a motion for appeal;, he later assigned excessive sentence as error. However, in February 2001, this court dismissed the appeal without prejudice. We noted that the sentence was imposed in conformity with a plea agreement that specified that the trial court would reconsider the defendant’s sentence after he testified at his cojdefendant’s3 trial, which was scheduled for March 2001. We found that since the trial court had not ruled on the motion to reconsider, the appeal was premature.

The record indicates that instead of being tried, Bradley entered a plea; consequently the defendant was not required to testify against him. In October 2002, the defendant filed a motion asking the court to rule on the motion for reconsideration. The trial court denied the motion.

The defendant appealed. In his brief, defense counsel argues that the sentence is excessive. In a supplemental pro se brief, the defendant contends that the plea agreement was breached or unfulfilled by the state and that the matter should be remanded for performance of the agreement or withdrawal of his guilty plea. He also contends that his counsel was ineffective because he failed to file a motion to withdraw the plea or for performance of the agreement.

The record shows that the state, the defense and the court agreed that after the trial of the co-defendant “the defense will request a sentencing hearing and [the state] will be asking the Court to take the sentencing hearing into consideration on the Reconsideration (sic) as it would normally do in the very first hearing.” The record further shows that, although the defense requested a sentencing hearing when it became clear that defendant’s testimony would not be needed at trial, the court denied the motion for reconsideration without conducting said hearing in violation of the terms of the plea bargain.

|4A guilty plea is invalid when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the bargain are not satisfied. State v. Dixon, 449 So.2d 463, 464 (La.1984); State v. Hall, 26,006 (La.App.2d Cir.5/4/94), 637 So.2d 645, writ denied, 94-1373 (La.9/30/94), 642 So.2d 868; State v. Bates, 29,252 (La.App.2d Cir.1/22/97), 711 So.2d 281; State v. Hoover, 34,952 (La.App.2d Cir.4/5/01), 785 So.2d 184.

Even after sentence is imposed, if a trial court finds that the guilty plea was not free and voluntary, such as due to a breach of a plea bargain, the trial court has the authority to vacate the sentence and set aside the plea. State v. Boudreaux, 616 So.2d 733 (La.App. 1st Cir.1993), writ denied, 629 So.2d 357 (La.1993).

Accordingly, we remand the matter to the trial court which shall conduct a hearing to determine whether the defendant shall be granted a hearing on his motion for reconsideration of sentence or whether he shall be allowed to withdraw his guilty plea.

REMANDED.

      . We note that the record contains a September 1998 letter from the defendant to the judge and a 1999 psychiatric report from a member of the sanity commission in which the defendant recounted a different version of the victim's death wherein he was not the shooter.


author: |,TRAYLOR, Judge Pro Tempore.

text:
    BRECK CONSTRUCTION CO., LLC, Plaintiff-Appellant, v. THOMAS, FARR & REEVES AGENCY, INC., Defendant-Appellee.
    No. 37,484-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Crawford & Anzelmo, by Brian E. Crawford, Jefferson B. Joyce, C. Bryan Racer, Monroe, for Appellant.
    Cook, Yancey, King & GALLOWAY, by Robert Kennedy, Jr., Shreveport, for Ap-pellee.
    Before BROWN, CARAWAY and TRAYLOR (Pro Tempore), JJ.
   |,TRAYLOR, Judge Pro Tempore.

Breck Construction Co., LLC (“Breck”) appeals the grant of summary judgment by the Fourth Judicial District for the Parish of Ouachita, Louisiana in favor of Thomas, Farr & Reeves Agency, Inc. For the following reasons, we affirm.

Facts

Breck, a Dallas, Texas construction company, was the general contractor for the construction of a three story apartment building in Fort Worth, Texas (the “Camp Bowie project”). In connection with the project, Breck contacted Thomas, Farr & Reeves Agency, Inc. (“TF & R”), a Monroe, Louisiana insurance agency, for a commercial liability policy. Through TF & R, Northern Insurance Company of New York (the “insurer”) issued a Builders Risk and Installation Policy (“the policy”) to Breck. The policy covered “damage to all property, including but not limited to materials, supplies, machinery, equipment, fixtures, and other property of a similar nature designated to be a permanent part or which has become a permanent part of the fabrication, erection, installation, or alteration or completion of the project while at the project site.” The original effective dates of the policy were December 18, 1998 until December 18,1999.

During the period of time in question, Morris Funderburg (“Funderburg”) was a sales agent with TF & R, and Breck was his client. Mona Chatham (“Chatham”) was the customer service representative who assisted Funderburg with Breck’s insurance business. On November 16, 121999, Chatham sent a letter to Breck with notification that the policy would expire on December 18, 1999 and further inquired whether Breck would need the policy renewed or extended. Lindy Vineyard (“Vineyard”), a Breck employee, responded that the estimated completion date for the job was February 1, 2000, and based on that information, TF & R obtained an endorsement to the policy (“the endorsement”) up to that date. By a memorandum dated December 30, 1999, Chatham informed Breck of the endorsement, which memo stated the endorsement’s expiration date of February 1, ‘ 2000. Additionally, the expiration date was set forth on the two attachments to Chatham’s memorandum, those attachments being the actual endorsement and TF & R’s invoice.

On February 1, 2000, Breck had not completed work on the Camp Bowie project, to which Vineyard testified TF & R had no knowledge. On February 28, 2000 (obviously well after the endorsement’s expiration date), the endorsement was paid for by Breck, but still no one from Breck informed TF & R that the Camp Bowie project was not completed nor was another extension of the policy requested. Neither Chatham, Funderburg, nor any other representative of TF & R called anyone at Breck to see if the job had been completed or to inform them the expiration date was approaching or had passed, which is the basis for Breck’s claim against TF & R.

On March 28, 2000, a tornado passed through the Fort Worth area causing property damage to numerous ait' conditioning units which Breck had purchased for installation in the Camp Bowie project. Resultantly, a | aBreck representative sent TF & R notice of the property damage, and then later a quote setting forth the extent of the damage to the air conditioning units. Subsequently, the insurer denied the claim, noting the expiration of the policy’s extension period on February 1, 2000 and stating that coverage was not in place at the time of the loss.

The instant lawsuit by Breck against TF & R followed, with Breck claiming that TF & R breached its fiduciary duty to it by failing to give notification of the expiration of the endorsement. Breck alleged that TF & R had engaged in a pattern of informing it when the policy would expire, which warranted an assumption by Breck that it would continue to be so informed by TF & R. A motion for summary judgment was filed by TF & R. After argument by the parties on same, the trial court, ruling from the bench, granted TF & R’s motion, concluding that based on the facts, it was entitled to judgment as a matter of law. This appeal by Breck ensued.

Discussion

On appeal, Breck argues that the trial court erred in granting TF & R’s motion for summary judgment for two reasons. First, Breck maintains that an issue of material fact exists regarding Breck’s reliance on TF & R for notice of the endorsement’s expiration date. Second, Breck states that summary judgment was inappropriate as a matter of law with respect to TF & R’s duty to Breck. We disagree.

The 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). Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but to point out the absence of factual support for one or more elements essential to the claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he can satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2); see also Hamdan v. State Farm Mut. Auto. Ins. Co., 36,888 (La.App.2d Cir.03/05/03), 839 So.2d 1017.

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.08/21/96), 679 So.2d 477.

An insurance agent is responsible for his fault or neglect. Smith v. Millers Mut. Ins. Co., 419 So.2d 59, 64 (La.App. 2d Cir.1982), writ denied, 422 So.2d 155 (La.1982). An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to |snotify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730-31 (La.1973); Graves v. State Farm Mut. Auto Ins. Co., 2001-1243 (La.App. 3d Cir.06/26/02), 821 So.2d 769, 771-772, writ denied, 2002-2320 (La.11/15/02), 829 So.2d 435.

Thus, the duty imposed on the insurance agent is to obtain the coverage desired by the customer. In order to recover for a loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured. McCollough v. Peninsular Fire Ins. Co., 440 So.2d 874 (La.App. 2d Cir.1983); Smith, supra; Redmond v. National Union Fire Ins. Co. of Pittsburg, 403 So.2d 810 (La.App. 2d Cir.1981); Porter v. Utica Mut. Ins. Co., 357 So.2d 1234, 1238 (La.App. 2d Cir.1978).

In the ease sub judice the evidence establishes no basis for a finding that TF & R breached the duty owed to Breck as set forth in our jurisprudence. The pertinent question herein is whether the actions of TF & R warranted an assumption by Breck that it was insured after February Ifil, 2000, an element that Breck cannot prove, because the undisputed facts indicate that Breck was not reasonable in assuming it was insured past February 1, 2000. Whereas a representative of TF & R had in the past informed Breck of other pending policy expiration dates, in this particular instance, Chatham and Funder-burg admitted that they had not called Breck to remind them of the February 1, 2000 expiration for this specific endorsement. However, this oversight by TF & R is not compelling in light of the facts surrounding the issuance of the endorsement.

Primarily, Breck received clear notice from TF & R regarding the endorsement’s expiration date of February 1, 2000. In fact, the three separate writings to Breck unambiguously set forth the February 1, 2000 expiration date. Chatham’s December 30, 1999 memo stated the endorsement “[ejxtends coverage on the Camp Bowie project to 2/1/00,” as well as stating an “expiration” of “02/01/00.” The actual endorsement, an attachment to the memorandum, clearly stated: “POLICY PERIOD EXTENDED FROM 12/18/1999 TO 02/01/2000.” The other attachment to the memorandum, TF & R’s invoice, also indicated that coverage was until February 1, 2000. Although we do recognize that the three writings were transmitted to Breck simultaneously, they were nonetheless three separate, distinct documents containing notice of the endorsement’s expiration date in clear and precise terms.

Next, we note that it was Breck who informed TF & R of the estimated completion date for the Camp Bowie job, which date was used for the expiration date of the endorsement. When that date approached, Breck |7would have been in the superior position to know that the Camp Bowie project was unfinished and that another extension of coverage would be needed. Notably, Vineyard testified in deposition that when she reported the estimated completion date to Chatham, she did not believe the Camp Bowie project would be complete by that date; however, her belief was never communicated to anyone at TF & R.

Moreover, perhaps most significantly, Breck paid TF & R the premium for the endorsement on February 28, 2000 by check, almost a full month past the endorsement’s expiration date. The check stub noted TF & R’s invoice number, indicating that the invoice was considered pri- or to paying the bill. In fact, Vineyard admitted that she reviewed all invoices when she signed checks. As stated, the invoice sent to Breck clearly set forth an expiration date of February 1, 2000.

Finally, knowledge of the endorsement’s expiration date was conceded by Breck. John Schween, president of Breck, testified in deposition that the December 30, 1999 memo received by Vineyard was sufficient to show that the policy had been extended until February 1, 2000, a fact also admitted in brief.

This Court has recognized previously that an insurance agent’s duty to his client may be extended “depending on what services the agent holds himself out as performing and on- the specific relationship and agreement between the particular agent and client.” Smith, supra at 65. However, in this case, TF & R fulfilled its duty to Breck because the notice given to Breck of the February 1, 2000 expiration date was more than sufficient to convey lathe necessary information of when Breck’s coverage expired. Failure of TF & R to extend the same courtesy it may have extended in the past to Breck does not create a breach in its duty in light of the conspicuously apparent notice given to Breck regarding the endorsement’s expiration. Additionally, the actions taken by Breck concerning the endorsement show as well that Breck was absolutely not warranted in assuming it had insurance coverage in place on the Camp Bowie project past February 1, 2000. So considering, the tnal court was not in error in granting TF & R’s motion for summary judgment.

Conclusion

For the foregoing reasons, the judgment in favor of Thomas, Farr & Reeves Agency, Inc. is hereby affirmed, with costs of this appeal assessed to Breck Construction Co., LLC.

AFFIRMED.

      . A builders risk policy provides insurance coverage for a construction project during the period of actual construction. Upon completion of a project, the builders risk policy is terminated or allowed to expire, and the owner of the project is responsible for procuring its own permanent insurance on the building.

      . This case is distinguishable from prior cases that found a breach of a duty by an agent to its client for failure to notify because in those cases there was no information conveyed to the client that it was not properly insured. See Britten v. Payne, 381 So.2d 855 (La.App. 1st Cir.1980), writ denied, 384 So.2d 800 (La.1980)(reversed for other reasons)(agent breached duty to client in failing to inform that the policy was cancelled due to nonpayment of premium); Dauzat v. Gem Underwriters, Inc., 602 So.2d 196 (La.App. 3d Cir.1992), writs denied, 605 So.2d 1368 (La.1992), 605 So.2d 1370 (La.1992)(agent breached its duty to client in failing to advise him of policy's cancellation).


author: I,GASKINS, J.

text:
    Michael David GARSEE, Plaintiff-Appellant, v. James Caldwell BOWIE, Defendant-Appellee.
    No. 37,444-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Leblanc & Waddell, Thomas H. Fields, III, Baton Rouge, for Appellant.
    Paul Loy Hurd, Monroe, for Appellee.
    Before WILLIAMS, GASKINS and TRAYLOR (Pro Tempore), JJ.
   I,GASKINS, J.

The plaintiff, Michael David Garsee, appeals the trial court’s grant of summary judgment in favor of the defendant, James Caldwell Bowie, dismissing the plaintiff’s suit for specific performance of an agreement to purchase -real estate. For the following reasons, we affirm the trial court judgment.

FACTS

In April 2001, Garsee and Bowie entered into an agreement for the purchase of eight multi-family residential properties in West Monroe. Bowie agreed to buy the properties for a total of $1.2 million in “as is” condition. The agreement to purchase contained the suspensive condition that Bowie obtain a 30-year first mortgage with a 25 percent down payment at a rate not to exceed 6% percent interest. The sale was to close on two of the buildings by April 28, 2001. The sale on the remainder of the properties was to close by May 1, 2001.

On April 14, 2001, the defendant filed eight separate purchase money loan applications with Hibernia National Bank (Bank), one for each of the units to be purchased. The Bank’s interest rate was seven percent and the defendant agreed to pursue the loan at that rate. He then negotiated a loan with another lending institution for the 25 percent down payment and closing costs. The plaintiff contends that the defendant requested that the loan application with the Bank be converted from a 75 percent purchase money financing loan to a 90 percent “refinancing” loan. The plaintiff asserts that the defendant also developed concerns about the roofs as well as the electrical, plumbing, heating, and cooling systems. According to the | ¡.plaintiff, the defendant attempted to renegotiate an adjustment in the price even though he agreed to purchase the properties “as is.”

During this period of time, the parties agreed to extend the closing dates to May 20, 2001. The defendant expended approximately $178,000 to pay off mortgages on two of the properties in order to prevent the accrual of interest payments for the month of May 2001.

In early May, the defendant was informed by the Bank that the loan had been denied. At that point, the defendant declared the purchase agreement null and void and refused to carry through with the sale. The plaintiff contends that only the 90 percent refinancing loan was declined and not a loan for 75 percent of the purchase price, as specified in the agreement to purchase.

The plaintiff filed' suit on May 23, 2001 for specific performance and damages. He claimed that the defendant did not make a good faith effort to obtain financing, causing the loan to be denied due to the defendant’s own fault. The defendant filed an answer and reconventional demand claiming that the properties were not placed in the required condition. The defendant also alleged that the agreement to purchase failed by its own terms when he was not able to obtain the financing as set forth in the agreement.

Additionally, the defendant claimed that a second agreement was entered by the parties on April 30, 2001 whereby the defendant paid $178,400.54 on two of the properties to pay off the existing mortgages in order to avoid the accrual of interest for the month of May 2001. The defendant asserted that the plaintiff was required to reimburse him for this 1 ¡¡expenditure. The defendant also urged that the agreement granted him the right to purchase the two properties for $150,000 each.

On February 25, 2002, the defendant filed a motion for partial summary judgment. He argued that the purchase agreement failed when he could not obtain financing as specified in that document. Therefore, he sought dismissal of the plaintiffs suit for specific performance and for damages for the breach of the agreement to purchase. The defendant also sought enforcement of the second agreement with the plaintiff, allowing him to purchase two of the properties. The defendant further asserted that he was entitled to recover the $178,400.54 spent to pay off the mortgages on those two properties.

On August 13, 2002, the trial court entered summary judgment in favor of the defendant. The court found that the agreement to purchase failed by virtue of the defendant’s inability to obtain financing. Therefore, the plaintiffs claims for specific performance of the agreement to purchase and to collect damages for breach of the agreement were dismissed. The court found that the plaintiff was obligated to reimburse the defendant for the $178,400.54 he spent to pay off the mortgages on two of the properties and specified that the defendant had the right to purchase the two tracts pursuant to the terms of the April 30, 2001 agreement with the plaintiff. The court ordered that the plaintiff pay the judgment within 30 days or be subject to contempt of court.

|4The plaintiff filed a motion and order for a new hearing on August 22, 2002, arguing that the reasons for judgment only dealt with the plaintiffs obligation to reimburse the defendant for the amount expended to pay off the mortgages on two of the properties, whereas the judgment covered all relief sought by the defendant. On November 26, 2002, the trial court denied the plaintiffs motion to reconsider. The plaintiff appealed.

SUMMARY JUDGMENT

The plaintiff claims that the trial court erred in granting summary judgment in favor of the defendant where genuine issues of material fact exist regarding the defendant’s good faith, motive, and intent in this real estate transaction. The plaintiff argues that summary judgment is never appropriate where such issues are present. According to the plaintiff, there are issues of material fact as to whether the defendant made a good faith effort to obtain a loan in compliance with the requirements of the purchase agreement. The plaintiff insists that the defendant converted the applications for a purchase money loan to applications for a loan to refinance. He also maintains that the circumstances surrounding the conversion of the loan terms are highly disputed. The plaintiff contends that there is no showing that the loan for purchase money was denied by the Bank before being converted to a refinance loan. The plaintiff insists that the defendant’s action in paying off $178,400.54 in mortgages on two of the properties is not indicative of good faith. According to the plaintiff, the defendant signed the purchase agreement to remove the properties from the market while he attempted to negotiate a more favorable price.

|RLegal Principles

Appellate review of a grant or denial of a motion for summary judgment is de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181 (La.2/29/00), 755 So.2d 226. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment is designed to secure the just, speedy, and inexpensive determination of every action except those disallowed by La. C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Independent Fire Insurance Company v. Sunbeam Corporation, supra.

A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. King v. Career Training Specialists, Inc., 35,050 (La.App.2d Cir.9/26/01), 795 So.2d 1223.

The mover has the burden of establishing the absence of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. La. C.C.P. art. 966(C)(2).

IfiOnce the mover makes a prima facie showing that there is no genuine issue of material fact, the opponent must produce factual support to avert the summary judgment. Speculation that a jury might not believe the mover’s witness is not grounds to deny a summary judgment. Whether a particular fact in dispute is material can be assessed only in light of the substantive law applicable to the case. Allen v. State Farm Fire and Casualty Company, 36,377 (La.App.2d Cir.9/18/02), 828 So.2d 190, writ denied, 2002-2577 (La.12/19/02), 833 So.2d 343.

The party opposing summary judgment cannot rest on the mere allegations of his pleadings, but must show that he has evidence which could satisfy his evidentiary burden of proof at trial. If he does not produce such evidence, then there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Johnson v. Entergy Corporation, 36,323 (La.App.2d Cir.9/20/02), 827 So.2d 1234.

The court should draw those inferences from the undisputed facts which are most favorable to the party opposing the motion for summary judgment since summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. Johnson v. Entergy Corporation, supra; Independent Fire Insurance Company v. Sunbeam Corporation, supra; King v. Career Training Specialists, Inc., supra.

Our summary judgment jurisprudence sets forth the principle that weighing evidence and making credibility determinations have no place in|7the summary judgment procedure. Campbell v. Hospital Service District No. 1 Caldwell Parish, 35,015 (La.App.2d Cir.8/22/01), 793 So.2d 521; Row v. Pierremont Plaza L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952. See also Johnson v. Entergy Corporation, supra; Independent Fire Insurance Company v. Sunbeam Corporation, supra; Wiltheis v. Pennington, 35,872 (La.App.2d Cir.4/3/02), 813 So.2d 1209. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. King v. Career Training Specialists, Inc., supra.

Discussion

In support of his motion for summary judgment, the defendant attached the adverse action letters from the Bank showing that the eight loan applications were denied due to debt ratio level. However, the letters did not specify whether the loan denied was for purchase money or for refinancing.

The defendant attached his own affidavit to his motion for summary judgment, stating that his offer to purchase was accepted by the plaintiff on April 9, 2001. The next day, he contacted Patricia Sims with the Bank and set up an appointment to apply for a loan in accordance with the terms of the purchase agreement. He said that he never signed a loan application for a refinance loan. He stated that on May 5, 2001, he received a message on his answering machine that his loan applications had been declined by the Bank. The adverse action letters from the Bank, reflecting that the loan had been refused, arrived on May 14, 2001.

|sThe record also includes the defendant’s deposition in which he claims that he did not inquire with the Bank about making any other type of loan other than one in accordance with the terms of the purchase agreement.

The record contains the affidavit of Patricia Sims, the loan officer at the Bank who handled the defendant’s loan applications. She said that he applied for a purchase money loan for 75 percent of the value of the properties, he cooperated with efforts to secure a loan, and he did not request that the terms of the loan be changed from a purchase money loan to a refinance loan. Ms. Sims stated that it became apparent internally that the purchase money loan would be declined. The defendant and Charles Joseph, a real estate agent handling the transaction, then communicated with Ms. Sims about alternative underwriting as a refinance loan, believing that the Bank could use the higher valued appraisals on the property held by the plaintiff. She said that this was discussed only as an alternative and that the defendant never signed an application for a refinance loan. Ms. Sims averred that the Bank evaluated the loan as a refinance only after it became apparent that the purchase money loan would be declined.

Ms. Sims’ deposition is also included in the record. She said that the defendant’s loan applications for purchase money, as originally submitted, were declined by the Bank. According to Ms. Sims, the loan the defendant obtained from another lending institution for the down payment in this transaction made his debt-to-loan ratio unacceptable. Ms. Sims stated that the decision to decline the loan was made by the underwriting department of the Bank.

19The record contains a deposition by Charles Joseph, the real estate agent who handled the transaction. He said that he was initially informed by Ms. Sims that the purchase money loan had been conditionally approved by the Bank. A representative of the Bank later told him that the request for refinancing had been declined. Mr. Joseph was also informed that the defendant instructed Bank personnel not to discuss the specifics of the loan underwriting process. Mr. Joseph stated that he suggested to the defendant that he obtain a refinance loan to help with the down payment on the property, but that it had nothing to do with the obligation under the purchase contract.

A deposition by Timothy Colvin of Community Trust outlined the specifics of the loan received by the defendant for the down payment on the properties at issue in this case.

The documents filed into the record in connection with the motion for summary judgment include the loan applications. These documents show that the defendant applied for a purchase money loan in accordance with the terms of the purchase agreement. Although the Bank apparently considered a refinance loan when it became apparent that the purchase money loan would be refused, there is no signed application by the defendant for such a loan.

In this case, the parties agreed upon financing terms for this transaction and set them forth in the purchase agreement. That document also specified that the defendant’s ability to obtain financing according to those terms was a suspensive condition of the sale. A contract to sell which | mis contingent upon the obtaining of financing is a contract subject to a suspen-sive condition. This contract does not become effective until the condition occurs. La. C.C. art. 1767; Shepard v. Calloway, 441 So.2d 488 (La.App. 2d Cir.1983).

When a purchaser, through no fault of his own, is unable to obtain the loan as provided for in the purchase agreement, he may invoke an available provision in the contract conditioning the entire agreement on his ability to make said loan, and declare the contract null and void. Century 21 Acadia Realty and Development Company, Inc. v. Brough, 393 So.2d 287 (La.App. 1st Cir.1980).

The record shows that the defendant applied for financing in accordance with the terms of the purchase agreement and the Bank was not willing to make a purchase money loan to the defendant. The Bank then considered whether the defendant might qualify for a refinancing loan. However, the defendant also failed to qualify for this type loan. The plaintiff claims that the statements made by Ms. Sims are inconsistent on this point. However, she clearly stated that during the underwriting process, it became apparent that the Bank would not grant the purchase money loan to the defendant and then the Bank considered alternate financing terms.

The defendant has shown that he made the required effort to obtain financing in accordance with the purchase agreement and that he was not able to do so. Therefore, as a matter of law, the suspensive condition was not fulfilled and the purchase agreement failed. The plaintiff makes allegations that the defendant was in bad faith. However, the plaintiff has In simply failed to show that the defendant did not comply with the terms of the purchase agreement. Under these circumstances, the trial court did not err in granting summary judgment in favor of the defendant.

The plaintiff also urges that the defendant failed to satisfy his obligation to make a good faith effort to obtain a loan in compliance with the terms of the purchase agreement because he only made an application with one lending institution. The plaintiff relies upon Brewster v. Yockey, 153 So.2d 489 (La.App. 4th Cir.1963), in support of his argument. The facts of Brewster are distinguishable from those in the present matter.

In Brewster, a buyer and seller entered into a purchase contract conditioned upon the buyer obtaining a homestead or conventional loan for a fixed amount for 20 or 25 years. The buyer then made only a verbal application for a loan to one lending institution.

The court held that a single verbal application for a loan was not a good faith attempt or reasonable compliance with the terms of the agreement so as to enable the buyer to avoid the contract and recover her deposit. There was also evidence at the trial on the merits that another lending institution would have lent money to the buyer if she had made a written application.

Numerous other eases have held that the buyer need only make one good faith effort to fulfill the condition of securing financing. The jurisprudence does not support the plaintiffs contention that a buyer must make loan applications with numerous lending institutions. See Weger v. Silveria, 460 So.2d 49 (La.App. 1st Cir.1984); Century 21 Acadia Realty and Development Company, Inc. v. Brough, supra; Woods v. Austin, 347 So.2d 897 (La.App. 3d Cir.1977); Merrill Lynch Realty, Inc. v. Williams, 526 So.2d 380 (La.App. 4th Cir.1988); Bellina v. Graybar, 532 So.2d 847 (La.App. 4th Cir.1988); Katz v. Chatelain, 321 So.2d 802 (La.App. 4th Cir.1975); Thaly v. Namer, 496 So.2d 1211 (La.App. 5th Cir.1986).

The defendant has shown that he unsuccessfully attempted to obtain financing in accordance with the terms of the agreement. The jurisprudence specifies that one valid effort to obtain a loan is sufficient. The trial court was able to make a determination that the suspensive condition in this matter was not fulfilled, thereby voiding the purchase agreement, without having to resort to credibility determinations and the weighing of evidence. The plaintiff did not produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial; consequently, the trial court did not err in granting summary judgment in favor of the defendant.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court, granting summary judgment in favor of the defendant, James Caldwell Bowie, and dismissing the demands of the plaintiff, Michael David Garsee. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . Although the defendant’s motion was for partial summary judgment, as observed by the trial court, the grant of the motion dispensed with all issues in the suit. The plaintiff did not appeal the $178,400.54 judgment in favor of the defendant.


author: I,WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Jacques D. McCALL, Appellant.
    No. 37,442-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Edward R. Greenlee, Baton Rouge, Peggy J. Sullivan, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and TRAYLOR (Pro Tempore), JJ.
   I,WILLIAMS, J.

The defendant, Jacques McCall, was convicted of one count of armed robbery, a violation of LSA-R.S. 14:64. He was sentenced to serve fifteen years at hard labor without the benefit of probation, parole or suspension of sentence. The defendant now appeals. For the following reasons, we affirm.

FACTS

On July 28, 2000, Jerry Daniel Froust and his wife, Sandra Froust, were walking along a residential street in their neighborhood in West Monroe, Louisiana. The couple was on their way to a convenience store when they were approached by three black males and one white male. One of the men held a gun to Mr. Froust’s head and demanded money. As a second man put a gun to Mr. Froust’s back, a third man reached in Mr. Froust’s pocket and took approximately $300 in cash.

Sandra Froust backed away fl’om the scene and displayed a knife that she carried for protection. She then unsuccessfully sought help by knocking on a door of a nearby residence. The four men fled the scene and the couple began walking toward the store to call the police. The couple then saw the man who had put a gun to the victim’s head come out of a house. When the men began to throw sticks and rocks toward them, the couple began running toward the convenience store.

A short time later, Detective Jackie Gilbert of the West Monroe Police Depart-merit arrived at the store. The couple described one of the gunmen’s clothing as a red baseball-type jersey and baggy jeans. The couple also identified the residence where they had seen the gunman after |2the robbery. The next day, a photographic lineup was conducted, and both Mr. Froust and his wife independently identified the defendant as one of the individuals who had robbed Mr. Froust at gunpoint. Police officers arrested defendant at the residence that the couple had earlier identified. They also seized a maroon Cardinals baseball jersey that was lying on the floor in the room where they had arrested the defendant.

When Detective Gilbert questioned the defendant about the armed robbery, he did not deny the couple’s allegations. Rather, when the officer asked the defendant about his accomplices, he told them the identity and location of the white male accomplice. This individual was also arrested in connection with the crime.

After a jury trial, the defendant was found guilty as charged. The trial court sentenced the defendant to serve fifteen years at hard labor, without the benefit of parole, probation or suspension of sentence. The court denied a timely motion to reconsider sentence. Defendant now appeals.

DISCUSSION

Sufficiency of the Evidence:

The defendant contends the evidence was insufficient to support his conviction for armed robbery. He argues that because the victim and his wife gave conflicting versions of the events of the robbery, their inconsistent testimony should have been discounted by the jury.

The question of the sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.06/18/97), 697 So.2d 642. Although the |arecord shows that the defendant did not file a motion for post-verdict judgment of acquittal, this court may still consider his sufficiency of the evidence argument. State v. Courtney, 30,629, 30,630 (La.App.2d Cir.5/13/98), 714 So.2d 176.

When a defendant challenges the sufficiency of the evidence to convict an acquittal should be granted if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

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

The elements of the crime of armed robbery are found in LSA-R.S. 14:64, which reads in part:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

l4Ao examination of the evidence of record shows that the jury could have easily reconciled the differences in the testimony given by the victim and his wife. The first issue, the number of assailants, was explained by the victim’s testimony that he only mentioned three men on direct examination because he could not describe the fourth assailant and he did not identify him for the police. Since only three men were involved in the actual robbery, i.e., two men were holding guns on the victim and the other man was taking money from his pocket, the victim’s response that three men robbed him is actually a correct answer. The victim’s wife, who had walked a short distance away from the men, testified that she could see that there were actually four men involved in the robbery of her husband.

Contrary to the defendant’s argument, the couple’s description of the weapon that was held to the victim’s head was not conflicting. The victim described the gun held to the back of his head as a long black gun. During her trial testimony, Mrs. Froust referred to the weapon once as a gun and twice as a pistol. Neither side asked the two witnesses for a more detailed description of the weapon other than its color. The wife also testified that the pistol was black.

Mrs. Froust testified both on direct and cross-examination that the defendant cocked the gun while he held it to her husband’s head. The defendant argues that this detail was too important for the victim to have omitted from his testimony. We note that this information was only an addition, not a contradiction. Further, the witness was subject to cross-examination and the defense had the opportunity to question Mr. Froust in | F,the presence of the jury with regard to his failure to mention this particular detail.

Defendant also asserts that the witnesses gave conflicting testimony with regard to Mrs. Froust’s possession of a knife. Testimony concerning the knife was first raised from the defense counsel’s cross-examination of the victim.

Q. Now, when did your wife pull out the knife?
A. As far as I know she didn’t.
Q. Are you telling me she didn’t pull the knife out at anytime that night?
A. As far as I know she didn’t.

The victim was the first witness to testify. When Mrs. Froust took the stand, both the state and the defense questioned her about her possession of the knife. In response, Mrs. Froust described how she turned toward one of the men who was approaching her with a gun and held the knife to her side so that the approaching assailant could see it, but not the other assailants. Her testimony explains why her husband did not see her holding the knife. The only other witness in this case, Detective Gilbert, testified on cross-examination and re-direct that during his investigation, Mrs. Froust had not mentioned that she had a knife during the robbery. We note that defense counsel initiated the line of questioning about Mrs. Froust’s knife, and was apparently surprised by the victim’s testimony that he did not know that his wife had a knife during the robbery. Nonetheless, the jury accepted Mrs. Froust testimony with regard to the issue. The testimony does not indicate that either the victim or the wife was untruthful on this point.

iNone of the alleged inconsistencies qualify as material contradictions. Since there were two witnesses, the jury could have accepted or disregarded the testimony of either one or both of the witnesses. This court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

Moreover, the jury was presented with ample evidence of the defendant’s guilt. Both the victim and his wife selected the defendant from a photographic lineup and identified him in court as the person who had held a gun to the victim’s head while another person took money from the victim’s pocket. Both witnesses testified that the defendant approached them at night while they were walking down the street. They gave similar accounts of how the defendant, a black male, held a gun to the victim’s head, a white male held a gun in the victim’s back and another black man went through the victim’s pocket. Both witnesses also testified that the defendant said words to indicate he would shoot the victim if the couple did not cooperate. Further, as stated above, although the defendant did not admit nor deny his participation in the robbery, he identified the white male accomplice and took the police to that individual’s residence.

The jury had the opportunity to listen to the testimony and observe the demeanor of the witnesses during the trial. It obviously chose to believe the couple’s testimony. The physical evidence presented also supports the Frousts’ testimony. Both witnesses reported that the defendant was wearing a red baseball jersey. They later identified a maroon baseball jersey |7retrieved from the defendant’s residence as the shirt the defendant was wearing during the robbery.

There is nothing in this record to support the defendant’s contention that the witnesses’ testimony was inconsistent or contradictory with regard to the major elements of the crime or that the physical evidence presented at trial contradicted their testimony. Therefore, this court is bound to uphold the findings of the trier of fact. This assignment of error lacks merit.

Excessive Sentence:

The defendant contends his sentence is constitutionally excessive. The record reflects that the defendant did not plead specific allegations of error in his motion to reconsider his sentence. A motion for reconsideration of sentence must contain a specific ground or grounds upon which the defendant is seeking to have the sentence reconsidered. LSA-C.Cr.P. art. 881.1(D); State v. Barnes, 607 So.2d 872 (La.App. 2d Cir.1992). If the ground for reconsideration is not specifically pleaded, then the defendant is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances |8of 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 needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

LSA-R.S. 14:64 provides the penalty for armed robbery and reads as follows:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

The record shows that the trial court reviewed the PSI prior to the sentencing hearing. The defendant had a 1999 conviction for burglary and was in the process of being placed in a diversion program when he was arrested for the instant offense. Also, the defendant’s father made negative 19comments about defendant’s work history. With regard to the prior conviction, the defendant told the court that he was with the wrong crowd.

The trial court also investigated a comment allegedly made by the defendant immediately after his conviction. In a telephone interview conducted by the judge in the presence of the state and defense attorney, the judge spoke to the officer who had transported the defendant back to jail. The officer stated that the defendant said that he wished he had killed the “joker.” The defendant responded to the court, “It’s a possibility that I could been (sic) talking to the deputy and he misunderstood it thinking I said something like that.”

After the sentencing, the defendant’s trial attorney objected to the use of the statement. The trial judge ruled that the defendant’s comment showed that the defendant did not have any remorse for his actions. Based on a review of the record, we conclude that the trial judge adequately considered the criteria set forth under the statute in sentencing the defendant.

The trial court imposed a lower-range sentence of fifteen years at hard labor without the benefit of parole, probation or suspension of sentence. As quoted above, the sentencing range for this offense is not less than ten years and not more than ninety-nine years at hard labor without benefits. Based on the defendant’s criminal and work history and the facts surrounding this offense, including the defendant’s threats to the victim at the time of the offense, we find that the trial court did not abuse its discretion in sentencing linthis defendant. The sentence imposed does not shock the sense of justice. Therefore, the sentence is not constitutionally excessive. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Dennis B. DALE, Appellant.
    No. 37,440-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Lavalle B. Salomon, Monroe, for Appellant.
    John Schuyler Marvin, District Attorney, Robert L. Pittard, Carl L. Ekendahl, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and PEATROSS, JJ.
   I,STEWART, J.

Dennis Dale, the defendant herein, pled guilty as charged to one count of possession of more than 400 grams of cocaine, a violation of La. R.S. 40:967(F)(l)(c) punishable by imprisonment for not less than 15 years nor more than 30 years and a fine of not less than $250,000 nor more than $600,000. The court sentenced Dale to serve 20 years at hard labor and to pay the minimum mandatory fine of $250,000. On appeal, Dale argues that the sentence is excessive. However, for the reasons that follow, we affirm.

FACTS

On October 24, 2001, a state trooper stopped a vehicle driven by Dale on 1-20 in Bossier Parish for a traffic violation. A consent search disclosed approximately one kilogram of cocaine and over $4,600 in cash. After being advised of his rights, Dale admitted he had purchased the cocaine in Dallas and intended to take it to his home in Mississippi for resale at a profit. Following his plea of guilty of one count of possession of cocaine, Dale was sentenced to 20 years at hard labor and ordered to pay a $250,000 fine. This appeal ensued.

DISCUSSION

Excessive Sentence

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

In contraband possession cases, past records of drug offenses should weigh heavily in the decision to uphold the imposition of even maximum sentences. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Prior to imposing sentence, the court reviewed a PSI report and considered the facts of the case. Dale, age 35, was a high school graduate who had obtained an associate degree as • an electrician. He was also a second felony offender with a 1995 conviction for conspiracy to distribute | ¡¡cocaine which had been reduced from possession of cocaine with intent to distribute. The court noted this was a serious offense for which there was no justification or mitigation. The court determined that imposition of the statutorily mandated minimum prison term would not be appropriate due to defendant’s second offender status and concluded that a lesser sentence would deprecate the seriousness of the instant offense.

On this record, we do not find constitutional error. As a second felony offender with a prior conviction involving intent to distribute a controlled dangerous substance, Dale received substantial lenience from the state’s agreement not to charge him as a habitual offender. Charging Dale as a habitual offender would have raised his exposure to up to 60 years in prison. Under the jurisprudence noted above, Dale’s prior drug conviction would authorize the imposition of the maximum authorized sentence in this case. The sentence imposed is lawful. The term of imprisonment is not the mandatory minimum, but the imposition of a term in excess thereof is warranted by the defendant’s repeated commission of a drug-related offense. The fine is the statutory minimum.

CONCLUSION

Considering the defendant’s record and the totality of facts and circumstances of this case, including the substantial quantity of cocaine involved, the sentence imposed 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 |4the imposition of this sentence which is not constitutionally excessive. Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    Bentheal McLEMORE, Plaintiff-Appellant, v. WESTWOOD MANOR NURSING and REHABILITATION, L.L.C., Defendant-Appellee.
    No. 37,450-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Gary J. Arsenault, Alexandria, for Appellant.
    John A. Stassi, II, James A. Holmes and Janet L. White, New Orleans, for Appel-lee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   I,WILLIAMS, J.

Plaintiff, Bentheal L. McLemore, appeals a district court judgment sustaining a dilatory exception of prematurity filed by the defendant, Westwood Manor Nursing & Rehabilitation, LLC (“Westwood Man- or”). The district court held that plaintiffs complaints should have been submitted to a medical review panel prior to filing suit in the district court. Consequently, the district court found plaintiffs claims were premature and dismissed his suit without prejudice. For the following reasons, we affirm.

FACTS

On June 26, 2002, the plaintiff, Bentheal L. McLemore, filed suit against Westwood Manor. In his petition, McLemore alleged that on June 29, 2001, while he was a resident of Westwood Manor and under its exclusive care, custody, control and supervision, he was dropped by the certified nursing assistants and then placed in his bed without medical attention. According to plaintiffs petition, his left leg was severely broken when he was dropped and he experienced blood clots because of complications arising from the broken leg. Plaintiffs petition outlined several items of “negligence, fault and deviation from the standard of care”:

a. Negligently dropping McLemore;
b. Failing to properly treat Bentheal L. McLemore;
c. Failing to provide appropriate care under the circumstances;
d. Failing to properly supervise its staff;
e. Failing to properly train staff in the care of elderly patients;
f. Failing to recognize the risk involved in handling a person of 59 years of age without adequate personnel;
g. Failing to take the necessary steps and precautions in moving IgMcLemore;
h. Failing to properly train and supervise employees in the appropriate methodology of moving elderly individuals around; and
i. Failing to administer proper medical treatment and other acts of negligence, fault and/or deviation from the standard of care which will be shown at the trial of this matter.

On July 22, 2002, the defendant, West-wood Manor, filed a dilatory exception of prematurity, asserting that plaintiffs claim was premature because he had not presented it to a medical review panel as required by the Louisiana Medical Malpractice Act (“MMA”), LSA-R.S. 40:1299.47. After a hearing, the trial court granted the defendant’s exception and dismissed the plaintiffs suit without prejudice. This appeal followed.

DISCUSSION

Prematurity

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116. Accordingly, a claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. Id.

Plaintiff argues that since he was not receiving medical care or treatment for any specific condition at the time of his injury, then his claims are not governed by the MMA and, therefore, the prior submission of his claims to a medical review panel was not required.

|3The pertinent legal principles applicable to this case are discussed in the Louisiana Supreme Court’s recent opinion in Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460. In that case, a nursing home patient was alleged to have been negligently allowed to fall out of her wheelchair. An important issue in the case was whether this allegation was a medical malpractice claim under the MMA.

In its analysis, the Supreme Court noted that the MMA defines “malpractice” as:

Any unintentional tort or breach of contract based on health care or professional services rendered or which should have been rendered by a health care provider to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient. LSA-R.S. 40:1299.41 A(8).

Next, the court noted that the nursing home’s staffs alleged act of negligently allowing the nursing home resident to fall from her wheelchair clearly involved the “handling of a patient, including loading and unloading of a patient,” which comes directly under the MMA’s definition of “malpractice.” However, the court then quoted from Price v. City of Bossier City, 96-2408 (La.5/20/97), 693 So.2d 1169, as follows:

[ W]hile clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving “health care” from the doctor or hospital when the negligent rendition of professional services occurs.

The Richard court went on to observe that in the case of a nursing |4home, a resident is not always receiving medical care or treatment for any specific condition, but can always be said to be “confined” to the nursing home. Thus, while the alleged act in Richard did involve the handling of a patient under LSA-R.S. 40:1299.41(A)(8), the court stated that it did not necessarily constitute medical malpractice because the negligent act must be related to medical treatment. The court cited with approval the six-part test of Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, for determining whether a negligent act by a health care provider is covered under the MMA:

(1) Whether the particular wrong is “treatment related” or caused by dereliction of professional skill;
(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) Whether the pertinent act or omission involved assessment of the patient’s condition;
(4) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) Whether the injury would have occurred if the patient had not sought treatment; and
(6) Whether the tort alleged was intentional.

The court concluded its analysis by observing that the first issue, whether the plaintiffs allegations of wrongdoing were related to treatment and were caused by dereliction of professional skill, was a key issue that could not be determined on the record before the court. Likewise, many of the other Coleman factors could not be decided on that record. Accordingly, the Richard court remanded the case to the trial court for a determination of whether the allegations of negligence constituted | ¡^allegations of medical malpractice under Coleman.

In the instant case, there is no dispute that the accident at issue occurred when McLemore was being transferred from his bed to a wheelchair in preparation for lunch. However, we observe that, unlike Richard, the allegations of the plaintiffs petition do not simply encompass the alleged “dropping” of McLemore. As previously noted, the plaintiffs petition additionally stated that after being dropped, McLemore then was placed in his bed “without medical attention.” Furthermore, the itemized acts of fault not only include dropping McLemore, but failing to treat him, failing to provide appropriate care under the circumstances and failing to administer proper medical treatment. Thus, the allegations of wrongdoing not only include an unintentional tort concerning the handling of a patient, but also include failure to render appropriate treatment following the incident.

When reviewing the totality of the allegations of the plaintiffs petition in the case at bar, we conclude that the trial court did not err in sustaining the dilatory exception of prematurity. We recognize that the MMA limits the liability of healthcare providers in derogation of the general rights of tort victims, so that any ambiguities in the MMA should be strictly construed against coverage. Price, supra. Nevertheless, we conclude that the plaintiffs allegations of wrongdoing, especially concerning the failure to render services after the incident, are sufficiently “based on healthcare or professional services rendered or which should have been rendered by a healthcare provider to a patient” so as to require this matter to be presented | fito a medical review panel. In other words, we find that these allegations fit the first part of the Coleman test which requires a determination of whether the particular wrong is “treatment related” or caused by dereliction of professional skill. We also find that questions concerning the alleged insufficiency of treatment following the incident are questions which suggest that expert medical evidence is required to determine whether the appropriate standard of care was breached.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Bentheal L. McLemore.

AFFIRMED.

      . Plaintiff’s petition initially refers to the defendant as "Westwood Manor Nursing & Rehabilitation, LLC”, and that name appears throughout the record. The correct name of the defendanl/facility is Community Care Center of Westwood, LLC. For purposes of this opinion, we will refer to the defendant by the name of record, i.e., Westwood Manor Nursing & Rehabilitation, LLC.