text:
    STATE of Louisiana v. Melvin JACKSON.
    No. 04-KA-293.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Doug Freese, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

Defendant, Melvin Jackson, was charged in a bill of information on October 24, 2001, with one count of conspiracy to commit armed robbery in violation of LSA-R.S. 14:26 and LSA-R.S. 14:64, one count of armed robbery in violation of LSA-R.S. 14:64, and one count of felon in possession of a firearm in violation of LSA-R.S. 14:95.1. He pled not guilty and filed several pretrial motions which were denied pri- or to trial. On May 1, 2003, defendant proceeded to trial on counts one and two, conspiracy to commit armed robbery and armed robbery. After considering the evidence presented, a twelve person jury found defendant guilty as charged on both counts.

On May 28, 2003, the trial court sentenced defendant to forty-nine and one-half years on count one, conspiracy to commit armed robbery, and ninety-nine years on count two, armed robbery, and ordered the sentences to run concurrently with each other. Thereafter, the state dismissed count three, felon in possession of |3a firearm. On that same date, the trial judge denied defendant’s motion for new trial, as well as his motion to reconsider sentence. Defendant now appeals.

FACTS

On August 30, 2001, Constant “C.J.” Probst, was working in his coin shop on Veterans Boulevard in Metairie when he was robbed by two men at gunpoint. A white male, later identified as co-defendant Michael Molina, came to the door of Mr. Probst’s shop carrying a long duffel bag and pressed the door buzzer. Mr. Probst let him in by deactivating the door’s security device. Molina stood in the doorway and inquired whether Mr. Probst was buying silver. Mr. Probst asked if Molina was referring to silver coins, and Molina said yes. Molina then entered the shop leaving the door partially opened at which time a black male, later identified as defendant, followed. Molina put his duffel bag on the counter, leaned over, and displayed a can of mace. Defendant then walked around the counter and pointed a black automatic pistol at Mr. Probst.

The victim was ordered to the back of the shop where he was tied up with duct tape.' Defendant then filled the duffel bag with jewelry and coins from the shop. Defendant demanded to know where the cash was and repeatedly threatened to kill the victim. The perpetrators eventually left the shop at which time the victim managed to free one arm and call the police. When the police arrived, the victim gave them a description of the two perpetrators.

After the robbery, the victim sent a list of all the items that were stolen to other coin dealers in the Gulfsouth area. Approximately one week later, Detective Jeffrey Rodrigue with the Jefferson Parish Sheriffs Office received information from a coin dealer in Biloxi, Mississippi, who recognized the victim’s handwriting on some coins that Molina was trying to sell at his shop. Molina and another co-defendant, Troy Albert, were arrested in Biloxi by the Biloxi police. A search of |4their hotel room revealed a can of mace and various coins. Additionally, a fingerprint taken from the victim’s shop matched that of Molina.

Molina and Albert were brought to New Orleans where they gave statements which led Detective Rodrigue to develop defendant as a suspect. Detective Rodrigue showed a photographic lineup to the victim who positively identified defendant as one of the perpetrators of the robbery. A search warrant was executed at the apartment where defendant was staying. The search yielded jewelry taken from the victim’s shop, the weapon used in the armed robbery, and clothing identified by the victim as having been worn by the perpetrators.

At trial, co-defendant Troy Albert testified against defendant, who is her brother. She stated that she, Molina, and defendant were at defendant’s girlfriend’s apartment on August 30, 2001, when the robbery was planned. Albert testified that Molina and defendant left the apartment and returned with two duffel bags full of coins and jewelry. She was given some jewelry, and the remaining stolen goods were divided between Molina and defendant. The next day, she and Molina went to Houston and pawned some of the stolen goods. They then went to Biloxi and tried to sell some of the stolen goods when they were arrested.

IMPROPER CLOSING ARGUMENT

In his first assigned error, defendant argues that the trial court erred in failing to sustain his objection to a prejudicial statement made by the prosecutor during closing arguments. Defendant asserts the prosecutor’s statement, that defendant could have called various witnesses but failed to do so, suggested to the jury that he had an obligation to present evidence to prove his innocence. Defendant contends that the trial court should have admonished the jury to disregard the prejudicial remark. The state responds that defendant never requested an admonition and, even if he did, the comment was a permissible preference to the lack of evidence and was made in response to defendant’s remark that the state could have called more witnesses.

As part of his defense, defense counsel challenged the identification of defendant as the perpetrator of the crime. He questioned the victim about his failure to mention defendant’s front gold tooth when giving a description of the perpetrators to the police. During closing arguments, the prosecutor stated:

The State bears the burden of proof in this case and in every case we prosecute. But there’s nothing that stops them from calling witnesses. The State has presented no evidence to suggest to you that he didn’t have gold teeth on August 30th of 2001. Have you heard any evidence to suggest that he did? The Defense could have called Monica McKinney. The Defense could have called the Defendant’s mama—

At that point, defense counsel objected on the basis the defense had no burden. The trial court overruled the objection but instructed the prosecutor to “move off of that topic.” A brief bench conference was held after which the prosecutor continued with his closing argument. At no time did defendant request the trial court to admonish the jury.

Closing arguments in criminal cases are restricted to evidence admitted to trial, to lack of evidence, to conclusions of fact that may be drawn therefrom and to the law applicable to the case. The argument may not appeal to prejudice. LSA-C.Cr.P. art. 774; State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 768.

A prosecutor has considerable latitude in making closing arguments. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Williams, 03-942 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, writ denied, 04-450 (La.6/25/04), 876 So.2d 832. A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed | fito the verdict. State v. Fernandez, supra. In making this decision, credit should be given to the jury’s good sense and fairmindedness. State v. Eaton, 524 So.2d 1194, 1208 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989).

LSA-C.Cr.P. art. 771 provides that “upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury” when the remark is made by the district attorney and falls outside the scope of LSA-C.Cr.P. art. 770. LSA-C.Cr.P. art. 770 lists certain prejudicial remarks that mandate a mistrial when made by the district attorney in the presence of the jury. These include comments which refer directly or indirectly to 1) race, religion, color or national origin, if the remark or comment is not material and relevant, 2) inadmissible evidence of other crimes, and 3) defendant’s failure to testify in his own defense.

As noted previously, defense counsel objected to the prosecutor’s comment, but he never requested an admonition. Absent such a request, the trial court need not admonish the jury. State v. McPherson, 98-1207 (La.App. 5 Cir. 3/30/99), 733 So.2d 634, 640.

Moreover, we find that the prosecutor’s comment was permissible and would not have warranted an admonition, even had one been properly requested by defense counsel. A prosecutor’s comments made during closing arguments referencing the lack of evidence are permissible under LSA-C.Cr.P. art. 774. See State v. Smith, 357 So.2d 798, 802 (La.1978) and State v. Forrest, 95-31 (La.App. 5 Cir. 2/14/96), 670 So.2d 1263, 1269, writ denied, 96-0654 (La.6/28/96), 675 So.2d 1117.

|7In the present case, the prosecutor’s comments referencing the lack of witnesses to corroborate the existence of defendant’s gold tooth at the time of the offense were permissible comments on the lack of evidence. At the time of the remarks, the prosecutor was in the process of reviewing the evidence and explaining to the jury how the evidence proved each element of the crime. The prosecutor did not focus the jury’s attention on the defendant’s failure to produce evidence but rather was simply pointing out the lack of evidence. Furthermore, the prosecutor prefaced his remark by emphasizing the burden of proof was on the state.

Based on the foregoing discussion, we find no merit to the arguments raised by defendant in this assigned error.

EXCESSIVE SENTENCE

By this second assigned error, defendant challenges the sentences imposed. In the present case, the trial judge sentenced defendant to the maximum sentences of forty-nine and one-half years on the conspiracy to commit armed robbery conviction and ninety-nine years on the armed robbery conviction. Defendant now asserts that the sentences are constitutionally excessive, and further that the trial court failed to state reasons under LSA-C.Cr.P. art. 894.1 for imposing the maximum sentence on both counts. Defendant argues the mere fact he had a gun does not justify the maximum sentence because the definition of armed robbery means a weapon was used. He also contends the facts of his crime do not warrant a maximum sentence, specifically pointing to the fact that the victim was not physically harmed.

Both the United States and the Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or | Sis nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and a sentence will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

In imposing the maximum sentences on defendant, the trial court stated:

Well, I think it should be clear now that this Court is not going to tolerate citizens of Jefferson Parish being terrorized by armed robbers, people carrying guns committing crimes and terrorizing people. And this sentence, like the one prior to it, is specifically tailored to this Defendant and the actions he committed.

Although the trial judge did not fully articulate the sentencing factors set forth in LSA-C.Cr.P. art. 894.1, we find that the record supports the sentences imposed. Defendant went into the victim’s place of business, pointed a gun at him, tied him up, and threatened to kill him. Also, defendant was apparently not a first felony offender. Although later withdrawn, the state filed a multiple offender bill of information alleging defendant was a second felony offender with a prior conviction for distribution of cocaine. Given these circumstances, we find that the |atrial court did not abuse his discretion in the sentencing of defendant. See State v. Dempsey, 02-1867 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, where the Fourth Circuit found defendant’s four consecutive ninety-nine year sentences for four counts of armed robbery not to be excessive despite the fact the victims were physically unharmed.

Accordingly, this assigned error is likewise without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial judge failed to observe the mandatory twenty-four hour delay between the denial of defendant’s motion for new trial and sentencing as required by the provisions of LSA-C.Cr.P. art. 873. In the present case, when the parties came for sentencing, defense counsel filed a motion for new trial. The trial court requested the record and then a bench conference was held, which was not transcribed. Thereafter, the trial court stated:

All right. This is before the Court for sentencing. Does either side wish to say anything prior to sentence being imposed?
And I’ll deny the motion for a new trial.

Defense counsel objected to trial court’s denial of the motion and then proceeded to make an argument pertaining to defendant’s sentencing. Although defendant did not expressly waive the twenty-four hour delay, we find that defendant tacitly waived the delay by proceeding with argument regarding sentencing. See State v. Biglane, 99-111 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 639, where this court found defense counsel’s announcement that defendant was |1flready for sentencing after the denial of a motion for new trial sufficiently waived the twenty-four hour time delay required by LSA-C.Cr.P. art 873.

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

AFFIRMED.

      . Co-defendants, Troy Albert and Michael Molina, were also charged in the bill of information. However, they did not proceed to trial with defendant and are not involved in the instant appeal.

      . It was established that Albert entered a plea agreement wherein she pled guilty to the charges against her and agreed to testify against defendant in exchange for a twenty year sentence.


source: Caselaw Access Project

license: Public Domain

text:
    Van MULLER v. Bernard M. PLAIA, Jr.
    No. 03-CA-1467.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Randall A. Smith, Owen B. St. Amant, New Orleans, LA, for Plaintiff/Appellant.
    Gus A. Fritchie III, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡.EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Van Muller, plaintiff-appellant, from a summary judgment in favor of Bernard M. Plaia, Jr., defendant-appellee, in this legal malpractice action arising from the preparation of a will. For the following reasons we affirm that judgment.

Summary judgment is appropriate when there are no material facts in dispute and where the moving party is entitled to judgment as a matter of law. La.Code Civ. Pro. Art. 966. In the present case the following facts are undisputed. On about January 20, 1999, Muller asked Plaia, an attorney, if he would draft a notarial will for his mother leaving her entire estate to him. A month later, on Friday, February 19, 1999, Plaia made an appointment to have the will signed and witnessed at Mrs. Muller’s home. Plaia arrived with the will, but when he read over it he realized that it had printed out improperly and could not be used. He told Muller that his secretary was gone for the day and that he did not know how to correct and print out another copy. He further stated that he would return the following Monday to execute the document.

Muller, who is a practical nurse, recites in his affidavit the following exchange:

At the time of the execution of the will on February 19, 1999, Mr. Plaia noted a clerical error on the will, and he stated “I can’t do it 1¡¡today but I will be back on Monday with the corrections.” Affi-ant [Muller] told Mr. Plaia very clearly that his mother would not make it through the weekend, that she would die.

Plaia said in his deposition that during the Friday visit he discussed with Mrs. Muller her intention to leave her estate to her son Van and she told him that that was correct. However, when he took the will out of his briefcase, he first noticed the typographical errors. He admitted that Muller told him his mother was going to die, but was incredulous at this comment. Plaia said that Mrs. Muller was cooking and moving around the kitchen and certainly did not appear to him to be someone whose death was imminent. At about 2PM on Saturday Mrs. Muller was hospitalized with heart failure, and she died at 2AM Sunday.

Muller sued Plaia alleging that he suffered a loss in having to share his mother’s estate with his brother, contrary to his mother’s wishes that he receive the entire estate. He advances two theories of actionable negligence on Plaia’s part. First, he asserts that it was negligence to arrive at his mother’s house on Friday with a defective will which Plaia had not read, thus delaying its execution. Second, once the defect was discovered Plaia was negligent in not instructing Mrs. Muller on how to execute a olographic will on that same Friday. We disagree with both propositions.

In the first instance, there is no evidence to show that Plaia was ever informed that the will had to be executed in any particular time frame or that Mrs. Muller’s condition was critical. Indeed, a month passed between the time Muller first contacted Plaia about the will and the Friday eventually scheduled for its execution, and there is no suggestion that any complaints were made about this delay.

As to the second argument, Plaia made it clear to Muller that he could not produce a new notarial will until Monday. Although Muller was concerned about his mother’s health, he did not demand that Plaia do something immediately. Also, |4he made no attempt to retain other counsel on Friday evening or Saturday morning, even though he admitted that his next door neighbor, who was well known to him, is an attorney. Additionally, Plaia’s observations of Mrs. Muller moving about the kitchen and cooking did not indicate to him that her death was imminent. Further, Mrs. Muller was not hospitalized or even bed ridden on the Friday and Plaia was not informed of any medical condition which would be expected to cause death within the next two to three days. Considering all of the surrounding circumstances, it was not unreasonable for him to plan to return on the following Monday to execute the will. Indeed, Muller himself took no other action, thus showing that in spite of his concerns about his mother’s health, he too deemed as reasonable the delay until Monday. We, like the trial judge, find nothing in Plaia’s actions which would render him liable to Muller.

For the foregoing reasons, we affirm the summary judgment in favor of the defendant and dismissing the matter with prejudice.

AFFIRMED.


author: J^CLARENCE E. McMANUS, Judge.

text:
    BROWN & ROOT and St. Paul Fire & Marine Insurance Company v. Kaylem MATHERNE.
    No. 04-CA-206.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Frank R. Whiteley, III, Reed S. Minkin, Metairie, LA, for PlaintiffiAppellant.
    Smith Stag, Michael G. Stag, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^CLARENCE E. McMANUS, Judge.

In this worker’s compensation case, the employer, Brown & Root, and its insurer, St. Paul Fire and Marine Insurance Company, appeal from a judgment granting claimant’s exception of res judicata and motion in limine. The judgment appealed from is not a final, appealable judgment. Therefore, we dismiss this appeal without prejudice.

Claimant in this matter was exposed to phenol while working on March 16, 1999. He gradually developed severe headaches, nausea, dizziness, loss of balance, vision blurring, insomnia and fatigue. Three weeks later, on April 9, 1999, plaintiff was involved in an automobile accident. On July 27, 1999 he filed a disputed claim for worker’s compensation, alleging that his worsening condition was caused by the exposure to phenol. His employer defended on the grounds that his symptoms were caused by the automobile accident. The workers’ compensation judge found that the claimant’s symptoms were caused by the toxic | ¡¡exposure on September 25, 2000, and this finding was affirmed by this Court on appeal. Matherne v. Brown & Root, 00-1857 (La.App. 5 Cir. 5/16/01), 788 So.2d 550.

This current litigation started when the insurer filed a disputed claim for compensation on October 18, 2002. In this claim, the employer and insurer dispute that the employee’s current disability is related to the accident (chemical exposure on March 16, 1999). The insurer further filed a petition to modify the judgment of September 25, 2000, seeking a finding that no further compensation or medical benefits were due. Mr. Matherne filed an exception of res judicata, an answer and a reconven-tional demand for medical benefits and expenses, as well as penalties, interest and attorney fees. Mr. Matherne also filed a motion in limine to exclude the report of Dr. Nassau.

The trial court heard the exception of res judicata and the motion in limine, and granted both on October 18, 2008. In the judgment however, the worker’s compensation court incorrectly states that the motion and exception were granted on behalf of Brown & Root. The trial court amended the judgment to reflect that the exception and motion were granted on behalf of claimant on October 31, 2003.

Brown & Root filed a motion for new trial on October 27, 2003, which was denied on October 31, 2003. This appeal followed.

Article 1915 of the Louisiana Code of Civil Procedure provides in pertinent part that:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as Uto any of the claims or parties and shall not constitute a final judgment for the .purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment . adjudicating all the claims and the rights and liabilities of all the parties.

The judgment in this case does not adjudicate all the claims of all of the parties because there has been no consideration of the reconventional demands filed by claimant, Mr. Matherne. Further, the workers’ compensation judge did not designate the judgment as final for purposes of immediate appeal, nor did he make a determination that there is no just reason for delay. Thus, the judgment before us is not ap-pealable. Accordingly, we will dismiss this appeal without prejudice. City of New Orleans v. Howenstine, 1998-2157 (La. App. 4 Cir. 5/5/99), 737 So.2d 197. See also Winkler v. Wadleigh Offshore, Inc., 2000-0151 (La.App. 4 Cir. 1/24/01), 781 So.2d 588.

We note that in this appeal, Brown & Root argued that the worker’s compensation judge erred in amending the judgment, arguing that the amendment to the judgment was a substantive change, which was not authorized. La. C.C.P. art. 1951. However, in the absence of a final judgment, the judge’s ruling “may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915(B)(2).

For the above discussed reasons, this appeal is dismissed without prejudice, and the matter is remanded for further proceedings. All costs of this appeal are to be borne equally by the parties.

APPEAL DISMISSED.


author: I a WALTER J. ROTHSCHILD, Judge.

text:
    LOUISIANA REAL ESTATE COMMISSION v. Lisa BLAKES, Robert Blakes, Jr., Shirley Malbrough & B.R. Malbrough.
    No. 04-CA-216.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Tracy A. Glorioso, Metairie, LA, for Plaintiff/Appellee.
    Clarence J. Roby Jr., New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I a WALTER J. ROTHSCHILD, Judge.

This case arises from a dispute between Lisa and Robert Blakes, who were the prospective buyers of a house, and Shirley and B.R. Malbrough, the sellers, over a $25,000 deposit held by ReMax Real Estate Partners (“ReMax”), which was the Malbroughs’ agent. On December 7, 1999, after being informed by ReMax that there was a dispute over entitlement to the deposit, the Louisiana Real Estate Commission initiated this concursus proceeding, pursuant to LSA-R.S. 37:1435(F) to determine who was entitled to the $25,000. On April 1, 2003, the trial judge rendered summary judgment in favor of the Malb-roughs, finding that they were entitled to the $25,000 because the Blakes breached the contract by failing to have the required down payment in cash. For the reasons which follow, we reverse the summary judgment granted in favor of the Malb-roughs, and we remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 4, 1999, Lisa and Robert Blakes entered into an agreement with Shirley and B.R. Malbrough to purchase the Malb-roughs’ home located at # 4 1¡¡Chateau Du Jardín in Kenner, Louisiana, for $738,000. Pursuant to the agreement, the Blakes submitted a deposit of $25,000, consisting of a $20,000 promissory note and a $5,000 check made payable to ReMax Real Estate Partners. This purchase agreement was to remain effective until May 4, 1999 at 12:00 p.m. Liz Ashe, who was an agent for Demand Realty and represented the Blakes, discovered that the necessary financing had not been secured by May 4, 1999, so she contacted Sharon Kochera, who was the agent with ReMax Partners representing the Malbroughs, requesting an extension of time to secure adequate financing. An extension was granted until May 27, 1999, and on May 29, 1999, a second extension was granted, allowing the Blakes until June 4, 1999 to obtain the necessary financing.

Although the Blakes were given two extensions, they were unable to secure sufficient financing for the purchase of the home. On June 9, 1999, Chase Manhattan Mortgage Corporation notified the Blakes that they had not been approved for the loan. On July 1, 1999, Crescent Bank and Trust informed the Blakes that their loan application had been denied. The Blakes assert that they made a diligent and good faith effort to secure the loan to purchase the property, but the Malbroughs contend that the Blakes did not make a diligent effort to qualify for financing.

On July 19,1999, Liz Ashe, agent for the Blakes, notified, Sharon Kochera, agent for the Malbroughs, that the Blakes had not been able to secure adequate financing. Ms. Ashe forwarded correspondence to Ms. Kochera requesting return of the $25,000 deposit due to the Blakes’ inability to obtain financing. However, |4the Malb-roughs contacted their agent, Ms. Koch-era, demanding payment of the $25,000 deposit.

Gerald Peters of ReMax Real Estate Partners informed the Louisiana Real Estate Commission (“LREC”) that there was a dispute as to the ownership or entitlement to the funds that ReMax was holding in escrow. ReMax also turned over a $5,000 check and the $20,000 promissory note to the LREC. The LREC filed a Petition for Concursus and placed the funds in the registry of the court.

On August 31, 2000, the Malbroughs initially moved for summary judgment, which was denied by the trial court. After additional discovery was completed, the Malbroughs filed a second Motion for Summary Judgment on November 5, 2002, asserting that the Blakes did not possess the required cash down payment at the time that they entered into the purchase agreement and that such failure was a breach of the purchase agreement.

The trial court agreed with the Malb-roughs, found that there were no genuine issues of material fact in this matter, and rendered summary judgment in their favor. In the judgment, the trial judge stated, “Specifically, the Court finds that Robert and Lisa Blakes warranted that they possessed $73,800.00 cash as down-payment on the Malbroughs’ home, that the Blakes in fact did not possess said down-payment, and that the Blakes did not purchase the Malbroughs’s home. Pursuant to the relevant Agreement to Purchase or Sell, Movants B.R. and Shirley Malbrough are therefore entitled to the $25,000.00 deposit held in escrow by the Louisiana Real Estate Commission, along with reasonable attorneys fees and costs ...”

DISCUSSION

On appeal, the Blakes argue that the trial court erred in granting summary judgment in favor of the Malbroughs, finding that there were no genuine issues of | (¡material fact and that Lisa and Robert Blakes were in bad faith. They argue that they were never advised that they needed to have cash on hand to complete the deal, and that the down payment for the Malbroughs’ home was to come from the sale of their home. The Malbroughs respond that the only issue on which their motion was based was the Blakes’ failure to possess the $73,800 down payment required at the time of signing, which constitutes a breach of the purchase agreement. They argue that the Blakes admitted in their answers to interrogatories that they were unable to secure the down payment, and they admitted in their deposition that they did not have $73,800 in cash at the time that they signed the purchase agreement. They assert that a showing of bad faith or intent is not necessary.

Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Ekere v. Dupont Chemical Plant, 99-1027 (La.App. 5 Cir. 2/16/00), 757 So.2d 33, 34, writ denied, 00-778 (La.4/28/00), 760 So.2d 1181. A summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there us no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Hutchinson v. Knights of Columbus Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 232. A fact is “material” for purposes of summary judgment when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Estate of Levitz v. Broadway, 37,-246 (La.App. 2 Cir. 5/14/03), 847 So.2d 170, 173. Summary judgment is favored, but the burden of proof remains with the movant. Prince v. K-Mart Corporation, 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248.

IfiThe purchase agreement signed by the Blakes and the Malbroughs was contingent on the Blakes being approved for financing. The parties do not dispute that the Blakes were denied adequate financing by two lending institutions, as evidenced by affidavits of the representatives of these institutions. In support of their position that the deposit should be returned to them, the Blakes rely on lines 19-21 of the purchase agreement, which provide that if the purchaser is unable to obtain the loan, the agent is authorized to return the deposit in full, upon receipt of a written cancellation signed by all parties involved evidencing mutual consent to the release of the deposit. In contrast, the Malbroughs rely on lines 22-24, which state that the purchaser warrants that he has $73,800 cash for a down-payment, and failure to have this down-payment shall not void the purchase agreement, but shall be considered a breach thereof. Also, lines 49-52 provide that if the purchaser fails to comply with the agreement, the seller may reoffer the property for sale and declare the purchaser’s deposit forfeited.

In order to decide who is entitled to the $25,000 deposit, it is necessary to determine whether the cause of the contract’s failure was the Blakes’ inability to obtain financing, which would allow the Blakes to receive the return of their deposit, or whether the cause was the Blakes’ failure to have the down-payment, which would result in the forfeiture of their deposit.

The Malbroughs base their Motion for Summary Judgment solely on the Blakes’ failure to have the down-payment. They cite the Blakes’ response to interrogatory number 8A, in which they stated, “Defendants attempted to acquire the necessary financing required pursuant to the purchase agreement but could not secure the additional down-payment.” According to the Malbroughs, this interrogatory response, along with the Blakes’ admission in their deposition that they did not have $73,800 in cash at the time of signing the agreement, establishes that there are no material issues of fact as to who is entitled to the deposit, because 17the Blakes admit that they breached the contract. However, in their brief, the Blakes contend that their response to interrogatory number 8A was taken out of context and that they had secured personal loans from sources other than banking institutions in order to complete the purchase of the home. The Blakes assert that the contract failed due to their inability to obtain adequate financing, not failure to have the down-payment.

A contract to sell real estate which is contingent upon obtaining sufficient financing is a contract subject to a suspensive condition, and the contract does not become effective until the condition occurs. Garsee v. Bowie, 37,444 (La.App. 2 Cir. 8/20/03), 852 So.2d 1156, 1161. In the present case, the suspensive condition was not fulfilled, because adequate financing was not obtained by the Blakes. 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 a provision of the contract conditioning the agreement on his ability to make the loan, and declare the contract null and void. Id. If the Blakes were unable to obtain financing, through no fault of their own, the purchase agreement would have failed due to inability to obtain financing, and the issue of whether other terms of the purchase agreement were violated would be irrelevant.

After a thorough de novo review of the record, including the exhibits and arguments of counsel, we find that there are genuine issues of material fact which preclude summary judgment in this case. First, there are material issues of fact as to why the contract failed. The trial court must make a factual determination as to whether the contract failed due to the . Blakes’ inability to obtain financing, which could render the contract null and entitle the Blakes to the return of their deposit, or whether the contract failed due to the Blakes’ misrepresentation that they possessed $73,800 cash for the down-payment, which would result in forfeiture of their deposit, pursuant to the purchase agreement. If the trial court determines that |sthe contract failed due to lack of financing, there may be additional factual issues to resolve, such as whether the Blakes made a diligent effort to obtain financing. Regardless, there are material factual issues which remain and, as such, summary judgment is not appropriate. Accordingly, we reverse the summary judgment granted in favor of the Malbroughs, and we remand the matter to the trial court for further proceedings.

We note that, in their brief, the Malb-roughs ask this Court to dismiss the Blakes’ appeal due to their failure to timely file a suspensive appeal bond, and the Malbroughs filed a Motion to Dismiss Appeal on March 5, 2004. However, this Court previously denied this motion on April 4, 2004, stating that the appeal was timely as a devolutive appeal.

DECREE

For the reasons set forth above, we reverse the summary judgment granted in favor of the Malbroughs, and we remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.

      . There were actually two purchase agreements that were signed by both the Blakes and the Malbroughs. One purchase agreement was signed by the Malbroughs at 9:00 p.m. on May 3, 1999 and the Blakes at 8:12 p.m. on May 3, 1999. The other purchase agreement was signed by the Malbroughs at 8:12 p.m. on May 3, 1999 and the Blakes at 10:00 a.m. on May 4, 1999. The purchase agreement signed by the Blakes at 10:00 a.m. on May 4, 1999 was the last executed, and this purchase agreement is the one that the Malbroughs relied on in their Motion for Summary Judgment. Therefore, this purchase agreement is the one we now consider on appeal.

      . We note that the judgment does not in fact indicate that the Blakes were found to be in bad faith.


author: LED WARD A. DUFRESNE, JR., Chief Judge.

text:
    Robert J. McCAFFERTY v. JEFFERSON PARISH SHERIFF’S OFFICE, Sheriff Harry Lee and ABC Insurance Company.
    No. 04-CA-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Miles G. Trapolin, New Orleans, LA, for PlaintiffiAppellant.
    J. Michael Daly, Jr., Peter A. Bourgeois, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   LED WARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Robert McCafferty, plaintiff-appellant, from a judgment sustaining an exception of prescription urged by Joseph T. Hamrick, M.D. and his insurer St. Paul Fire & Marine Insurance Co., defendants-appellees, in this delictual action. For the following reasons we affirm the judgment.

On December 3, 1996, while plaintiff was incarcerated in the Jefferson Parish Correctional Center he was involved in a fistfight during which his right eye was injured. On- December 4, 1996, he was taken to Charity Hospital in New Orleans by a Jefferson Parish deputy and examined. Apparently because of blood in the eye the physician could not see enough of the retina to determine if it was injured. He therefore instructed the deputy to return plaintiff within a week to ten days for further examination. That return visit did not take place until February 7, 1997, and it was then determined that plaintiff had a detached retina. Subsequent surgeries were unsuccessful and plaintiff has lost sight in that eye. He stated in deposition that he had a discussion with the treating physician during the LFebruary 7th visit and was told that had he been returned within a week to ten days as per the original order his retina could probably have been repaired and he would not now, be blind in that eye.

On February 6, 1998, plaintiff filed suit against Sheriff Harry Lee. On May 22, 1998, the petition was amended to name as additional defendants the Parish of Jefferson, Dr. Joseph Hamrick as an employee of the Jefferson Parish Correctional Center, and Hamrick’s insurer (later determined to be St. Paul Fire and Marine Insurance Co.). During discovery it was determined that Dr. Hamrick is not an employee of the Correctional Center. Instead he is the medical director of the Jefferson Parish Correctional Center Medical Program, L.L.C. (JPCCMP), an independent entity under contract with the Correctional Center to provide medical services there.

On June 20, 2003, Sheriff Harry Lee filed a motion for summary judgment pointing out that the deputy who brought plaintiff to the hospital on December 4, 1996, had given all of the paperwork from that visit, including the order that he be returned within a week or ten days, to the personnel of the JPCCMP. Thus the failure to return plaintiff to the hospital timely was not attributable to the Sheriffs Office, but rather to the JPCCMP. That motion was unopposed by plaintiff and on August 11, 2003, it was granted.

Dr. Hamrick and his insurer then urged an exception of prescription which was sustained on November 17, 2003. Plaintiff now appeals that judgment.

The controlling legal principle at issue here is set forth in Renfroe v. State ex rel. Department of Transportation, 2001-1646 (La.2/26/02), 809 So.2d 947. When one joint tortfeasor or solidary obli-gor is sued timely, that suit interrupts prescription as to all other joint tortfea-sors or solidary obligors. However, if the timely sued party is found not liable to the plaintiff, then that suit does not interrupt Dprescription as to other parties who may be liable to plaintiff because no joint or solidary obligation existed.

In the present case, there is no dispute that plaintiff was aware on his first visit to the hospital that he was to be returned shortly because he was listening to the discussion between the doctor and the deputy. He was not told then of the exact date .of the return visit because of prison concerns of escape attempts. Nonetheless, over the next two months he said that he repeatedly asked the medical personnel at the jail when he would be returning for follow up treatment. He also said that when he was finally brought to the hospital on February 7, 1997, he discussed with the doctor the effects of his delayed treatment. It is clear that plaintiff knew of the delay in his treatment and its possible negative consequences on February 7, 1997, and, therefore, prescription commenced on that date.

Plaintiff sued the sheriff on February 6, 1998, but did not add Dr. Hamrick until May 22,1998. Thus for the prescription of one year to have been interrupted as to Dr. Hamrick, there must have existed a joint or solidary obligation between these parties. However, now that the sheriff has been dismissed from the suit, there is no longer any party defendant who has been sued timely. Therefore, the suit against Dr. Hamrick and his insurer has prescribed.

Plaintiff advances two arguments as to why the exception should not have been maintained. He first contends that his amended petition against Dr. Hamrick related back to the date of filing suit against the sheriff because this suit fits the criteria set forth in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). In Ray, a slip and fall case, plaintiff first named Alexandria Mall, instead of Alexandria Mall Co., as the defendant. The manager of the mall was served with the petition and the mall’s insurer paid plaintiffs medical bills before suit was even filed. Finally, the mall admitted that after receiving the petition it remained silent about the mistaken name until the one year prescriptive period had run. Plaintiff then | Jearned of the mistake and amended her petition to name the Alexandria Mall Co. The defendant’s exception of prescription was maintained in the trial court and plaintiff appealed.

In reversing this judgment the supreme court set forth a four part analysis as to when an amended petition should relate back to the date of the original petition as follows:

1. The amended claim must arise out of the same transaction or occurrence as the original claim;
2. The substitute defendant must have received notice of the action such that he will not be prejudiced in defending the suit;
3. The substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant the action would have been brought against him; and
4. The substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would otherwise have prescribed.

In the present matter there is no showing that Dr. Hamrick ever received notice of the suit. Moreover, he is a wholly new defendant and thus the action against him is a new cause of action which has clearly prescribed. We thus reject this argument. See Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986).

Plaintiffs second argument is that the doctrine of contra non valentem should apply. In Gover v. Bridges, 497 So.2d 1364 (La.1986) the court enumerated the four circumstances in which this doctrine applies, only the fourth of which is at issue here. That is where the cause of action is not known or reasonably knowable to the plaintiff, even though his ignorance is not induced by the defendant. Plaintiff points out that the written order for a return appointment given to the guard at the December 4, 1996 visit to Charity Hospital has been lost, and also notes that plaintiff, for security reasons, was never told the exact date for a | fireturn visit. He urges this court to conclude from these facts that since that exact date is not known, he could not have known when his cause of action arose and thus when prescription commenced. This argument has no merit.

Plaintiff testified in deposition that he knew he was to be returned to the hospital in a fairly short time, and that he repeatedly asked the medical staff at the jail when he would be taken back. He also said that he discussed the delay with the doctor when he was eventually returned on February 7, 1997. Thus, the cause of action was known or reasonably knowable by that date, and the doctrine of contra non valentem is not applicable here.

For the foregoing reasons the judgment sustaining the exception of prescription is hereby affirmed.

AFFIRMED.


author: ^CLARENCE E. McMANUS, Judge.

text:
    Robert J. EVANS, Sr. v. Christine S. EVANS.
    No. 04-CA-215.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      D. Douglas Howard, Jr., Danyelle M. Taylor, New Orleans, LA, for Plaintiff/Appellant.
    Pat M. Franz, Metairie, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   ^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE FACTS

Robert J. Evans, Sr. and Christine S. Evans were married on July 26, 1992. They separated and Mr. Evans filed a Petition for Divorce on August 9, 2000 in the Twenty Fourth Judicial District Court. In November 2000, Mr. Evans was ordered to pay Mrs. Evans $1,500.00 per month for interim spousal support. A Judgment of Divorce was signed and Mrs. Evans then requested permanent spousal support. Mr. Evans was ordered to continue paying interim spousal support to Mrs. Evans pending a fault hearing to determine whether Mrs. Evans would be entitled to permanent spousal support. Trial was held to determine the fault issue in October and November 2001.

The trial court signed a Judgment on November 15, 2001 finding that Mr. Evans was at fault in the breakup of the marriage and Mrs. Evans was free from fault. No permanent spousal support was awarded at that time. Mr. Evans filed a Motion for New Trial, which was heard and denied in January 2002. Mr. Evans then appealed the November 15, 2001 Judgment finding him to be at fault in the breakup of the marriage. This Court dismissed the appeal and held that the Judgment was not a final judgment because there had been no award of final support by the trial court.

|8On September 24, 2008, the trial court rendered a Judgment finding Mrs. Evans to be totally and permanently disabled and in need of final spousal support. The trial court ordered Mr. Evans to pay Mrs. Evans $2,250.00 per month beginning September 10, 2003. The Judgment also stated that both parties reserved their rights to appeal the issues of fault, the amount of support, and the effective dates of the award.

Mr. Evans now files this appeal alleging three assignments of error. First, he argues that the trial court committed manifest error in applying the doctrine of con-donation to find Mrs. Evans free from fault in the breakup of the marriage. Second, Mr. Evans argues that the trial court erred in limiting the question of fault to one day, July 12, 2000, the day Mr. Evans vacated the matrimonial domicile. And finally, Mr. Evans argues that the trial court abused its discretion in finding Mrs. Evans free from fault in light of the testimony and evidence.

For the reasons which follow, we affirm the trial court’s judgment finding that Mrs. Evans is permanently disabled, in need of spousal support, and free from fault in the breakup of the marriage. We also affirm the trial court’s award of $2,250.00 per month to Mrs. Evans for final spousal support.

DISCUSSION

La. C.C. art. Ill provides that the court may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage. The support will be based on the needs of that party and the ability of the other party to pay. La. C.C. art. 112 provides further guidelines for determination of the amount of spousal support to be paid to an eligible party. According to these articles, the first issue that must be addressed is whether or not the party seeking support is free from fault.

In Simon v. Simon, 96-876 (La.App. 5 Cir. 5/14/97), 696 So.2d 68, this Court found that “legal fault”, which will preclude support, consists of serious 1¿misconduct, which is a cause of the marriage’s dissolution. This Court further found that all spouses have faults, and spouses seeking support need not be perfect to be free from legal fault. Petty quarrels between husband and wife do not rise to the level of “legal fault” but, rather, to be legally at fault, spouse must be guilty of cruel treatment or excessiveness which compel separation because marriage is insupportable. “Fault” which will preclude support contemplates conduct or substantial acts of commission or omission by spouse violative of his or her marital duties or responsibilities.

According to the trial court’s transcript of the reasons for judgment in this case, the trial court found that there was a lot of fault of the parties, and there was the problem of determining fault for the particular breakup of the marriage considering the absolutions that may have been given. The trial court refers to underage kids staying in the house and engaging in illegal activities. The problem noted by the trial court was that everyone seemed to be going along with everything. So, the trial court posed the following question: “if you don’t stop something, does that mean you condone it?”

There had been financial problems as well. However, Mr. Evans testified that he forgave Mrs. Evans for the financial problems. The trial court noted that there were daily fights, but the final straw was the day Mrs. Evans’ son called about Mr. Evans’ daughter. The trial court found that the daily fights and other actions were acceptable within their marriage and were, therefore, condoned.

The trial court ultimately found that Mrs. Evans was free from fault in the actual breakup of the marriage, even though she was not free from fault for lots of other things. After brief comments from counsel, the trial court went on to explain that his use of the word “condone” in his reasons was not meant in the legal term of condonation. The trial judge explained that he not only looked at the last day before the separation, he looked at the entire situation.

|5Based on the above, the trial court did not base its decision on the doctrine of condonation. The word condone was simply used in an effort to explain the trial court’s reasons for judgment. Further, the trial court evaluated the testimonies given and looked at the day the actual breakup of the marriage occurred, as well as, the remainder of the marriage.

We see no reason to disagree with the trial court’s findings that Mrs. Evans was free from fault in the breakup of the marriage. Both parties took part in daily-arguments and allowed each other’s children to be involved in activities in the home that were illegal and disruptive to a traditional family life. However, neither party left the marriage because of those activities. Mr. Evans finally chose to leave after the events involving his'daughter and Mrs. Evans’ son. Mrs. Evans was not at fault and did not cause Mr. Evans to leave at that time. Therefore, we affirm the trial court’s finding that Mrs. Evans was free from fault in the breakup of the marriage.

The issues of Mrs. Evans’ disability status and the amount of spousal support awarded were not assigned as errors on appeal. Therefore, we will not address these issues and affirm the trial court’s finding that Mrs. Evans is totally and permanently disabled and affirm the trial court’s award of spousal support to Mrs. Evans of $2,250.00 per month, beginning September 10, 2008.

In accordance with the above, we affirm the trial court’s judgment finding Mrs. Evans to be permanently disabled and free from fault in the breakup of the marriage and affirm the award of final periodic spousal support to Mrs. Evans in the amount of $2,250.00.

AFFIRMED.


author: RCLARENCE E. McMANUS, Judge.

text:
    Elizabeth CAMARDELLE v. K MART CORPORATION.
    No. 04-CA-224.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Raymond A. Osborn, Jr., Raymond A. Osborn, III, Osborn & Osborn, Gretna, LA, for Plaintiff/Appellee.
    William C. Cruse, Blue Williams, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   RCLARENCE E. McMANUS, Judge.

Appellant, Kmart, appeals from a ruling of the worker’s compensation judge in favor of claimant, Elizabeth Camardelle. For the reasons that follow, we reverse the decision of the Office of Worker’s Compensation.

FACTS

The following was stipulated at trial: claimant was employed by Kmart on April 26, 1993, and that while in the course and scope of her employment she sustained injury to her lower back. It was further stipulated that at the time of the accident, plaintiff was earning $5.95 per hour, resulting in weekly indemnity benefits of $160.00. It was also stipulated that all benefits had been paid and were current at the time of trial.

At trial it was established that after claimant’s injury, she was initially treated by Dr. Carl Culicchia, and then by Dr. Robert Fleming, an orthopedist. He declared her temporarily and totally disabled, and recommended surgery. Claimant underwent surgery in February of 1995, which was not successful. She has not returned to work since that time.

On March 2, 1999, at Kmart’s request, claimant was evaluated by Dr. Robert Steiner, an orthopedist. He opined that claimant was capable of sedentary employment.

On August 4, 1999, an Independent Medical Examination (IME) was conducted by Dr. James Butler, an orthopedist. He opined that claimant could |3return to work in a light duty capacity. Claimant did not return to work at that time.

In October of 1999, Dr. Fleming diagnosed a symptomatic nonunion of the spine fusion, and he opined that claimant was totally disabled, and plaintiff would be unable to return to gainful employment.

Dr. Fleming relocated out-of-state, and plaintiff began treatment with Dr. Daniel Gallagher, an orthopedist, who continued as her treating physician to date of trial. In February of 2002, Dr. Gallagher diagnosed a nonunion in the lumbrosacral area and he placed claimant on the same “no work” restrictions as Dr. Fleming.

In September of 2000, Kmart advised claimant to return to work, relying on the report of Dr. Butler. When claimant refused, her benefits were suspended, effective August 30, 2000.

Claimant filed this disputed claim for compensation on November 15, 2000. In December of 2001, Kmart agreed to pay back benefits and place claimant on current disability, and claimant agreed to submit to a Functional Capacity Examination (FCE). The results indicated that claimant could function at a sedentary level. Kmart then obtained a labor market survey, and identified several appropriate vocational alternatives.

Job descriptions, based on the FCE, were forwarded to Dr. Gallagher, who did not approve of any of the positions, and Dr. Steiner, who approved several positions. Thereafter, the worker’s compensation judge ordered a second IME, which was performed by Dr. Alexis Waguespaek, an orthopedist. Dr. Waguespaek opined that claimant was capable of sedentary employment.

Thereafter, Dr. Gallagher refused to change Dr. Fleming’s recommendations, and refused to release claimant for employment.

14At trial, claimant testified that she was under treatment by both Dr. Pursell for an unrelated stroke, with no residual problems, and by Dr. Gallagher. At the time of trial, she was taking, blood pressure medication, cholesterol medication, and several pain medications. She lives with a roommate who does most of the housework, however sometimes she prepares meals, does laundry and makes beds. She testified that she can walk about one-half block at a time, and uses the motorized buggy to go shopping. She cannot sit very well, and sleeps about two hours at a time. She can drive for thirty to forty minutes at time. She traveled by car to both Mississippi and Alabama, with rest stops every thirty minutes.

Carla Seyler, and expert in vocational rehabilitation services, testified that she performed the FCE four months post stroke. She also reviewed the records of Drs. Fleming, Gallagher, Culiechia, Steiner and Butler, as well as records of physical therapy. She stated that claimant performed basic activities such as reading, watching TV and light housekeeping. Claimant has a GED, and sufficient education to function in the job market. She concluded that claimant could perform jobs that involved primarily seated positions, allowing for movement, and she performed a job survey and identified several jobs she believed claimant was capable of performing. Both Drs. Waguespack and Steiner approved the jobs, however Dr. Gallagher did not.

In his letter refusing to release claimant for work, Dr. Gallagher stated that “I have told the insurance company that while she [claimant] certainly may be capable of performing some type of work activity, they allowed Dr. Fleming to treat her and put her at total disability, and I will not'change this order.... I do agree that the patient is probably is (sic) physically capable of performing certain types of work activities but she is probably not employable due to the narcotic use and the chronic back pain.”

[RAt the conclusion of trial, the worker’s compensation judge found claimant to be permanently and totally disabled, and awarded continued compensation benefits. No reasons for judgment were given.

ANALYSIS

In this appeal, Kmart argues that the trial court erred in finding that claimant was permanently disabled. Kmart secondly argues that claimant is not entitled to continuing payment of worker’s compensation benefits. At issue in this appeal is the nature and extent of the disability still suffered by claimant.

In this case, the worker’s compensation judge found claimant totally, permanently disabled. R.S. 23:1221(2)(c) provides that

(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

.Thus, a claimant seeking temporary or permanent disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment. The burden of proving the existence of a fact by clear and convincing evidence requires that its existence must be “highly probable, that is, much more probable tha[n] its non-existence.” Scherer v. Interior Plant Design, 98-702 (La. App. 3 Cir. 10/28/98), 724 So.2d 797, writ denied, 99-0297 (La.3/26/99), 739 So.2d 792. In order to meet this clear and convincing standard, the claimant must introduce objective medical evidence. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613. Whether a claimant is entitled to disability benefits is a question of fact that [¿may not be disturbed on appeal absent manifest error. The trial judge’s determinations may not be reversed if they are reasonable in view of the record in its entirety. Sears v. Berg, Inc., 99-457 (La.App. 5 Cir. 9/28/99), 742 So.2d 760.

An employee is not entitled to collect either temporary total disability or permanent total disability when he is physically able to engage in any employment. Spencer v. Gaylord Container Corp., 96-1230 (La.App. 1 Cir. 3/27/97), 693 So.2d 818. A claimant seeking permanent total disability benefits or temporary total disability benefits must prove by clear and convincing evidence that he is unable to engage in any gainful occupation, whether or not the same type of work he was engaging in at the time of injury. A workers’ compensation claimant is not entitled to permanent total disability benefits or temporary total disability benefits where claimant’s treating physician opined that claimant was able to engage in light duty work. La. R.S. 23:1221(1)(e),(2)(c); McDonnell v. Nestle Beverage Company, 97-2029 (La.App. 4 Cir. 4/22/98), 714 So.2d 757.

Following the 1983 amendments to the workers’ compensation statute, evidence that an employee could not return to any gainful employment without suffering substantial pain is no longer sufficient to support an award of permanent total disability benefits. Bank of Winnfield and Trust Co. v. Collins, 31,473 (La.App. 2 Cir. 2/24/99), 736 So.2d 263. Thus, the presence of pain without proof that this pain is substantial enough to make the pursuit of gainful employment an impossibility is inadequate under La. R.S. 23:1221(1). Whether the claimant’s pain is substantial enough is a question of fact to be determined by the totality of circumstances. Furthermore, the factual conclusions of the trial court are entitled to great weight and will not be reversed absent manifest error. Hilts v. Wal-Mart Stores, Inc., 02-1440 (La.App. 3 Cir. 4/2/03), 842 So.2d 465, writ denied, 2003-1258 (La.9/5/03), 852 So.2d 1036.

|7In this case, all of the medical testimony, including that of claimant’s treating physician, indicated that claimant was physically capable of performing sedentary work activities. Claimant’s own testimony that she is capable of driving, and light housekeeping, supports a conclusion that she is capable of performing sedentary work activities. We find that Dr. Gallagher’s statements that claimant “is probably not employable due to the narcotic use and the chronic back pain” insufficient to meet claimant’s burden of proof, by clear and convincing evidence, that she is incapable of any work activity due to substantial pain. Accordingly, we find that the worker’s compensation judge erred in finding plaintiff permanently and totally disabled, and therefore entitled to continuing worker’s compensation benefits.

We therefore reverse the decision of the worker’s compensation court finding that plaintiff is permanently and totally disabled, and entitled to continuing worker’s compensation benefits.

REVERSED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Walter A. GRAHAM v. AMERISTEEL.
    No. 04-CA-225.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Wayne H. Carlton, Jr., New Orleans, LA, for PlaintiffiAppellant.
    David S. Pittman, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

In this worker’s compensation case, claimant appeals from a summary judgment rendered in favor of the employer. For the reasons stated herein, we reverse the summary judgment and remand the case to the trial court for further proceedings.

Walter Graham began working for Am-eristeel as a forklift operator on May 4, 1984. In August of 2002, Graham filed a disputed claim for compensation asserting that he was disabled from continuing his employment due to an aggravation of asthma brought on by work conditions. Graham contends that his condition constitutes an occupational disease, and that he is entitled to weekly compensation benefits and medical expenses pursuant to the provisions of La. R.S. 28:1031.1.

Ameristeel filed an answer to this claim, denying Graham’s allegations and disputing whether he suffered a compensable accident or injury. Ameristeel also filed an exception of prescription on the basis that Graham had been diagnosed with a breathing problem several years prior to the filing of the claim in this case. Graham opposed this exception, arguing 13that pursuant to the occupational disease statute, plaintiffs claim does not arise until the disease manifests itself. In this case, plaintiff was not diagnosed with acute asthma until April of 2002, and his claim was timely filed within the established prescriptive period. The worker’s compensation judge evidently agreed, and Am-eristeel’s exception of prescription was denied.

Thereafter, Ameristeel filed a motion for summary judgment on the basis that there were no genuine issues of material fact as to whether Graham was entitled to compensation and that Ameristeel was entitled to judgment as a matter of law dismissing the claim. Ameristeel attached to its motion copies of depositions of claimant as well as claimant’s treating physician, and contends that claimant failed to prove that his asthma was contracted or caused by his employment with Ameristeel.

Graham opposed this motion for summary judgment, contending that the medical testimony of his treating physician clearly establishes a causal link between the conditions of his employment and his disabling disease. The trial court heard argument in this matter on August 22, 2003. By judgment dated August 29, 2003, the worker’s compensation judge granted Ameristeel’s motion for summary judgment, dismissing the claims of Walter Graham with prejudice. No reasons for judgment were assigned. It is from this judgment that claimant, Walter Graham, now appeals.

Pursuant to La. C.C.P. art. 966, summary judgment should be granted if there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he or she will be able to | ¿satisfy his or her evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. La. C.C.P. art. 966 C.

Ameristeel contends that there was no evidence submitted to prove that the claimant’s asthma was contracted at his employment. The employer relies on claimant’s deposition testimony in which he admits that he had breathing problems for years, and that events other than his employment cause him to have breathing problems. Ameristeel also relies on the deposition testimony of claimant’s treating physician who was unable to state how claimant contracted his asthmatic condition.

Dr. Scott Pethke, a pulmonologist, began treating Graham when he presented to the hospital emergency room in August of 2001. A copy of his deposition is contained in the record. Dr. Pethke noted that Graham had a fifteen year history of asthma which was medically treated, and that he had two severe asthma attacks during this time period. In August of 2001, Graham was evaluated and diagnosed with respiration failure secondary to status asthmati-cus.

Following his discharge from the hospital on August 25, 2001, Graham was seen by Dr. Pethke in his office on several occasions. Graham and his wife related to Dr. Pethke during office visits that he had more difficulty with his breathing in association with his workplace. Graham returned to work on September 18, 2001, but his asthmatic condition did not improve to the satisfaction of Dr. Pethke. Between this time and February of 2002, Graham continued to have episodes of exacerbation of asthma. On February 26, 2002, Dr. Pethke recommended that Graham have a trial period away from work to see if that would alleviate some of his asthmatic symptoms. Dr. Pethke’s records indicate that Graham’s condition improve d | ¡-.during this period, except for one instance when cutting the grass caused him to have an asthma attack. Dr. Pethke’s notes also show that Graham took six weeks off of work in March and April of 2002, and during this time Graham related that he had been feeling much better since leaving his work environment.

Dr. Pethke noted that after Graham stopped working, the office visits with Graham continued to decrease. This indicated to Dr. Pethke that “his asthma symptoms were either not present or they were much better controlled after the time that he stopped working.” Dr. Pethke stated that this led him to believe that there was a causal relationship between these symptoms and the work environment. In Dr. Pethke’s opinion, if Graham returned to his workplace, he would be risking hospitalization or even death.

On cross-examination, Dr. Pethke noted that although medical science cannot determine the cause of a patient’s asthma, it is possible that Mr. Graham’s workplace environment caused and subsequently exacerbated his asthma. Dr. Pethke opined that this was a case of occupational asthma in that the symptoms of asthma were either caused or exacerbated by exposure to something in the workplace. Dr. Pethke stated:

I think that Mr. Graham’s workplace was a specific trigger, and it was a specifically tricky trigger for him. It’s easy enough to avoid perfume, it’s easy enough to avoid cigarette smoke in many situations. You know, to avoid those areas is a conscious choice, to avoid exercise if exercise is your trigger.
That’s where he worked. The only way for him to avoid his workplace is to not work there. So, I mean, there is a fine line between occupational asthma or he has asthma and these are his triggers. This one specific trigger is his workplace and is related to his occupation. If you want to call it occupational asthma based on that, okay. My point is that he has asthma, he had a significant trigger in his workplace that in my estimation if he continued to be exposed to that trigger, he would be at increased risk for further asthmatic exacerbations, further hospitalizations, and perhaps death.

|6La. R.S. 23:1031.1 provides in part that every employee who is disabled “because of the contraction of an occupational disease ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.” The employer argues that because Dr. Pethke is unable to state that Mr. Graham initially “contracted” asthma as a result of his employment, he is not entitled to compensation. We do not agree.

In this case, claimant stated that his job as a forklift operator required him to encounter dust from the steel mesh at the Ameristeel facility. He and his wife both stated that this condition caused an exacerbation of his asthmatic condition which was significantly relieved when he stopped working. Although Dr. Pethke was unable to state how claimant contracted asthma, he stated rather strongly that claimant’s work environment severely exacerbated this condition, rendering him unable to continue with this employment. This testimony clearly established a causal relationship between claimant’s work environment and his asthmatic condition.

After a careful review of the record in this matter, we find that there remains an issue of fact as to whether claimant’s asthmatic condition constitutes an occupational injury within the meaning of La.. R.S. 23:1031.1. Under the facts of this case, we cannot state as a matter of law that claimant’s condition is not compensable under the statute. Therefore, summary judgment was not properly granted in this case.

For the reasons assigned herein, the judgment of the trial court is vacated. The case is further remanded to the trial court for further proceedings. Ameristeel is to bear all costs of this appeal.

REVERSED AND REMANDED.


author: |9CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Casey REICHARD.
    No. 04-KA-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, LaPlace, LA, for Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |9CLARENCE E. McMANUS, Judge.

Defendant, Casey Reichard, was convicted of theft of money valued at over $500.00, a violation of LSA-R.S. 14:67. Defendant’s motions for new trial and for post-verdict judgment of acquittal were denied. Thereafter, defendant stipulated that he was a second felony offender. The trial judge sentenced defendant to five years of imprisonment at hard labor and to pay a $1000.00 fine. This timely appeal follows.

On July 9, 2001, at approximately 7:53 a.m., Monica Normand, a bartender at Rusty’s Pool Tavern in Laplace, reported an armed robbery at Rusty’s. Detective Colas of the St. John the Baptist Sheriffs Office responded to the scene. Detective Colas testified that Normand related that, when she exited the restroom, she observed an individual dressed in black near the front door and another individual dressed in black near the pool table. Normand said that the individuals approached her, walked her to the cash register and the money was removed. She said that the individuals ordered her into the office, which was behind the bar. The Isindividuals attempted to remove the video tape from the recorder. When they could not remove the tape, they removed the recorder from the wall. Additionally, the individuals removed a safe from the office by rolling it, along with the VCR, out of the establishment on top of a chair. One of the individuals accompanied her into the storage room where money was kept in another safe. She opened the safe and the individual removed the money pouch from that safe. After loading the goods into a yellow car, they headed west toward Baton Rouge. However, when Gregory Miller, the owner of Rusty’s Pool Tavern, arrived Normand became nervous, started crying, and said that she was sick. Mr. Miller estimated that the safe contained approximately $12,000.00 or $13,000.00. Of that amount, there was approximately $1,000.00 in checks. Approximately $250.00 to $300.00 was also taken from a small freestanding safe. All of the money had been removed from the cash register, which contained approximately $1,000.00.

Detective Colas and Normand went to the Detective Bureau to continue the interview. At that point, Normand was not considered to be a suspect. While at the Detective Bureau, Normand gave a recorded statement to Detective Colas that was consistent with what she had initially said at the scene. At the conclusion of the taped statement, Normand began crying again, said that she felt sick, and that she would continue the interview when she felt better.

On July 11, 2001, Normand returned to give another recorded statement to Detective Colas. While Detective Colas was questioning her, Normand began crying and said that she wanted to tell the truth. She told Detective Colas that she had been involved in the robbery along with defendant and another person. After Normand was advised of and waived her constitutional rights, she gave another recorded statement.

UAfter the statement was concluded, Normand began writing in the back of her address book. Detective Colas saw that she was writing a note to defendant as follows:

CASEY,
I love you with all my heart I’m Sorry. But I didn’t want you to go back to jail or Gerry and I didn’t want to go to jail. I’m Sorry. I tried real hard. I held everything I could But I couldn’t do it anymore. I want us to have a life together I hope you & Gerry can forgive me I hope you still love me and want to be w/me.

Detective Colas further testified that defendant came to the Detective Bureau that day and was arrested.

Detective Colas obtained a search warrant for 8777 Sunny Side Drive, Gerald Freeland’s house, and executed the warrant while Normand was there. She pointed out various items that Detective Colas seized. In particular, Normand pointed out a cardboard box containing over $4,000.00 seized from the computer room. According to Normand, she and defendant stored their share of the money in the cardboard box. Detective Colas also seized a leather traveling bag containing Gerald Freeman’s share of the money, which was over $4,000.00. Normand also pointed out items that were purchased with the stolen money, including a freezer, a new front door, clothing, toys and jewelry.

Gerald Freeland was arrested and cooperated with the investigation. He directed Detective Colas to an area near a river in St. Charles Parish where clothing and other items were disposed. The next day, July 12, 2001, Detective Colas returned to that location and recovered several items, including black hooded jackets, gloves, bandanas, a .380 caliber pistol, pants, a check endorsed by Rusty’s Pool Tavern, and 'a set of keys from Rusty’s Pool Tavern. Although Detective Colas searched for the safe, the VCR, and the tape in the river, he was unable to find them.

IsGerald Freeland testified at trial that he had pled guilty to theft over $500.00 and received five years of imprisonment in the Department of Corrections. Freeland testified that defendant and Monica Normand were living with him and his children at the time of this incident. Freeland testified that Monica Normand said that there was a safe containing a lot of money at Rusty’s. According to Freeland, the plan was for Monica Normand to telephone Freeland and defendant to let them know when no one else was in the bar. On the morning of July 9, 2001, Normand called defendant and Freeland. She said it was safe to come over because there was no one in the bar. He and, defendant were dressed in black and had their faces and hands covered. Freeland was armed with a .380 caliber gun and there was a BB or pellet gun in the car. After entering the bar, Freeland locked the door. Freeland said they went to the back, retrieved the safe and took the money out of the register. According to Freeland, defendant was the one who removed the money from the register and the other safe.

After loading the goods, including the VCR into Freeland’s car, they drove to St. Charles Parish near the river where Free-land forcibly opened the safe and removed the money. Freeland said that he disposed of the safe and the VCR in the river. Freeland estimated that they took $14,000.00, which was split in half.

When asked on cross-examination whether he had made a statement contrary to his testimony, Freeland answered negatively. However, Freeland admitted that, while he was in jail, he wrote a document that stated the defendant did not participate or have knowledge of the theft from Rusty’s. Freeland stated that his testimony was the truth and that he did not sign the document because it did not contain the truth. Further, Freeland stated that he never intended anyone to see the document and could not explain how defense counsel had obtained it.

On September 19, 2001, Monica Normand pled guilty to theft valued at over $500.00 arising out of the incident at Rusty’s. After her plea, Normand gave a 1 ¿recorded statement to Detective Hymel, in which she reiterated the details of her involvement in the staged robbery at Rusty’s, as well the participation by defendant and Freeland. Further, Normand acknowledged that, as part of her plea agreement, she agreed to testify against Freeland and defendant at their trials.

At trial, Normand testified that she had pled guilty and received a probated sentence of four years. Normand testified that she and defendant, who was her boyfriend at the time, were living with Free-land in July 2001. However, when asked whether she, defendant and Freeland had discussed a plan to take money from Rusty’s, Normand stated she did not remember. Normand testified that one of the people in the staged robbery was Freeman, and she indicated that she knew the identity of the other person. When the prosecutor asked who that person was, Norman replied, “I just, I can’t.” In response to the prosecutor’s question whether defendant was that person, Normand said, “I’m sorry, I just, I, I can’t.” When the prosecutor asked whether he would be wrong if he said that the other person was defendant, Norman replied, “I can’t say yes or no on that.” When confronted with the waiver of rights form that she had initialed and signed, Normand acknowledged that she had agreed to testify. However, Normand said that the portion of the waiver of rights form stating that she would testify truthfully was not on the waiver of rights form when she saw it.

Normand acknowledged the contents of her statement to Detective Colas in which she implicated defendant and Freeland in the staged robbery. She also identified the bandanna that defendant wore over his face. She also acknowledged that Free-land ripped the VCR from the wall and rolled the safe to the front door while she and defendant went into the storeroom. Normand acknowledged that she opened the cash box and defendant removed the bag containing money. She acknowledged that Freeland received one-half of the money while she and defendant received the other half. Regarding the note that she wrote in her address 17book, Normand agreed that it was an apology to Freeland and defendant for her inability to continue to lie about the staged robbery. She also stated that she still loved defendant.

On cross-examination, Normand stated that she believed Tony Trapani was the other robber because of what she had heard when Freeland was talking to Tra-pani on the telephone. Normand said she only implicated defendant because the police kept insisting that defendant was the robber, since he had a prior record. Normand stated that she had testified at defendant’s bond hearing that she had lied to the police. Normand said that the note from the address book was an apology to defendant for implicating him, rather than an assertion that he had actually been involved. On redirect examination, Normand said that she did not intend to implicate defendant in her testimony on direct examination. Rather, she said that she was merely admitting the contents of her statements to the police.

Tony Trapani testified that he was not involved in the incident at Rusty’s. Trapa-ni said that he and Freeland were former co-employees, but that he had never discussed or joked about robbing Rusty’s with Freeland. Further, Trapani admitted that he was divorced at the time of trial and had been violent with his former wife on occasion.

Detective St. Martin also testified on behalf of the State. According to the detective, he was listening to the radio on September 5, 2002 when he heard a conversation between the radio host and a caller identified as “Casey” (defendant’s first name) from the St. John the Baptist Parish Jail. Detective St. Martin obtained a recording of the telephone call from the jail. The tape was admitted into evidence and was played for the jury. On the tape, the caller stated that he was in jail for theft over $500.00, that it was an “inside job,” and involved his ex-girlfriend.

|sTony Trapani’s ex-wife, Blanca Trapa-ni, was the sole witness for the defense. She testified that Freeland and Trapani showed up at her apartment while she and Trapani were separated. According to Blanca Trapani, Freeland and Trapani were talking about the theft at Rusty’s. However, she could not hear the contents of the conversation, and she only heard Gerald’s voice. Further, she was not certain whether the conversation took place before or after the incident at Rusty’s. Rather, she recalled that Freeland and Trapani were celebrating, and Freeland mentioned he was going on vacation for awhile. Blanca Trapani acknowledged that there were bad feelings between her and her ex-husband, but denied that she had any knowledge that Trapani was involved in the theft.

By his sole assignment, defendant contends that the trial judge should have granted a new trial because the evidence was legally insufficient to support his conviction. Specifically, defendant contends that Normand recanted her prior statements implicating him and that the jury should not have believed Freeland’s testimony.

In reviewing the sufficiency of the evidence, the appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” Under this statute, the fact-finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence when analyzing circumstantial evidence. See, State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 55-56. The Jackson standard of review is an ^objective standard for testing all the evidence, both direct and circumstantial, for reasonable doubt. Id.

In the present case, defendant was convicted of theft of money valued at more than $500.00, a violation of LSA-R.S. 14:67, which provides in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.
An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Zeno, 99-69 (La.App. 5 Cir. 8/31/99), 742 So.2d 699, 706, writ denied, 00-0105 (La.6/30/00), 765 So.2d 1065.

Although defendant contends that no rational trier of fact could have found him guilty beyond a reasonable doubt, the record contains sufficient evidence to support his conviction. In particular, Detective Colas testified that Monica Normand pointed out the box where she and defendant stored their share of the money. Further, the jury could have found that Monica Normand was telling the truth on direct examination when she said that defendant was one of the perpetrators of the staged robbery at Rusty’s and when she identified State’s Exhibit 13 as the bandanna defendant wore during the incident. Moreover, Gerald Freeland consistently testified that defendant was the other perpetrator. Further, Freeland denied that Trapani had anything to do with the staged robbery.

It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and a reviewing court will not second-guess the credibility | ^determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297. Considering the evidence adduced at trial, a rational trier of fact could have found defendant guilty as charged. Accordingly, we find no merit to defendant’s allegation of error.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following errors.

Our review reveals that the defendant was not advised of his multiple offender rights before defense counsel stipulated that defendant was a second felony offender as alleged in the multiple offender bill, as required by La. R.S. 15:529.1(D)(1)(a). La. R.S. 15:529.1 provides that the trial court shall inform the defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. La. R.S. 15:529.1 implicitly requires that the trial court advise the defendant of his right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983).

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90. However, when the defendant’s status as a multiple offender is established by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial In court or his attorney, there is reversible error. Id.; State v. Staggers, 03-655 (La.App. 5 Cir. 10/28/03), 860 So.2d 174, 179.

Accordingly, we vacate defendant’s multiple offender adjudication and sentence because the record does not reflect defendant was advised of his multiple offender rights prior to his attorney stipulating to the multiple offender bill of information. See, Staggers, supra.

Further, we note that the defendant’s enhanced sentence is illegal because the trial judge imposed a $1000.00 fine. Although the underlying offense of theft valued at $500.00 or more may be punishable by a fine of not more than $3,000.00, the Louisiana Supreme Court has held that the habitual offender statute does not permit a fine to be imposed as part of an enhanced sentence. State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam). However, because we vacate the defendant’s sentence, discussed supra, this error is moot.

For the above discussed reasons, we affirm defendant’s conviction for theft. We vacate defendant’s adjudication as a second felony offender and the enhanced sentence imposed pursuant to the multiple offender proceedings. The matter is remanded for further proceedings.

CONVICTION AFFIRMED, MULTIPLE OFFENDER SENTENCE VACATED, REMANDED FOR FURTHER PROCEEDINGS


author: LCLARENCE E. McMANUS, Judge.

text:
    Donna AUSTIN v. Dr. Robert TREUTING and Jefferson Parish Coroner’s Office.
    No. 04-CA-160.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.
    William G. Merritt, New Orleans, LA, for Plaintiff/Appellee.
    William C. Credo, III, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   LCLARENCE E. McMANUS, Judge.

On March 27, 2001, Donna Austin(“Austin”) requested and was granted an Order of Protective Custody by the Jefferson Parish Coroner’s Office for her son, Jeffrey Austin, Jr., because he was suicidal, abusing drugs and a danger to himself and others. He was taken into custody by the Jefferson Parish Sheriffs Office on March 28, 2001. He was taken to Charity Hospital and examined by Dr. Robert Treuting. He was released later that day.

Austin again contacted the Coroner’s office to seek another commitment. She alleges she was told that she could not obtain another order of protective custody so close to the original order. Austin’s son committed suicide on April 4, 2001 by taking an overdose of drugs.

Austin filed a suit for wrongful death and a survival action on April 2, 2002. She named Dr. Robert Treuting, the Jefferson Parish Coroner’s Office, and the Coroner of Jefferson Parish. She claimed that the defendants were liable for the death of her son because the Jefferson Parish Coroner’s Office failed to allow her to apply for another protective custody order, failed to issue another order, and had|3a policy that prohibits successive orders. In the alternative, Austin claims that the Jefferson Parish Coroner’s Office was negligent in its training and supervision of its staff members which improperly told her she could not apply for another order.

Defendants filed a motion for summary judgment claiming that the Coroner’s Office is immune from civil liability in this case. On August 20, 2002, the trial court denied the motion. By written reasons, the trial court found that the Jefferson Parish Coroner is not entitled to absolute judicial immunity, but only qualified immunity.

A motion for appeal of the trial court’s denial of the motion for summary judgment was filed by defendants on September 18, 2002. No supervisory writ application was filed and the thirty day time period for filing a writ has passed.

We find that this judgment is interlocutory in nature and renewable by an application for supervisory writs. The trial court’s judgment denying the motion for summary judgment is not an appealable judgment. It is not the practice of this Court to convert an appeal to an application for supervisory writs. Therefore, this appeal is dismissed and the matter is remanded to the trial court for trial.

APPEAL DISMISSED; REMANDED FOR TRIAL.