author: J^CLARENCE E. McMANUS, Judge.

text:
    Jacqueline Peralta DUFRENE, Individually and as personal representative of the Estate of Rodney P. Dufrene, Jr., and as Guardian and Natural Tutrix of the minor children, Claudia Marie Dufrene and Marcos Alexander Dufrene v. Garrett FARRELL, Susan C. Farrell, State Farm Mutual Automobile Insurance Company, State Farm Insurance Company, Charles and Nadine Muse, Christine Muse, Dustin Frickey, Ruby Folse Frickey, Sherwood Frickey, ABC Insurance Company, Def Insurance Company, Richard Mills, Donna Bowing, GHI Insurance Company, JKL Insurance Company, Allstate Indemnity Company, the State of Louisiana, through the Department of Transportation and Development, Office of Highways, Hill City Oil Co., Inc. and MNO Insurance Company.
    No. 03-CA-1391.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Tracey L. Rannals Gainsburgh, Benjamin, David, Meunier & Warshaues, Orleans, LA, for Plaintiff/Appellant.
    John E. McAuliffe, Jr. Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^CLARENCE E. McMANUS, Judge.

The trial court granted summary judgment in favor of State Farm Fire and Casualty Insurance. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On the morning of August 11, 1999, Garrett Farrell, Duston Frickey, and Richard Mills were all occupants in a Ford Taurus vehicle, which belonged to Charles and Nadine Muse, the parents of Christine Muse. They were all minors at the time and had allegedly been drinking and ingesting drugs since the previous evening while with Christine Muse at her parents’ home. At approximately 7:00 a.m. that morning, the Ford Taurus collided head-on with a vehicle being driven by Rodney Dufrene. Dufrene was severely injured and later died as a result of the injuries he suffered.

Louisiana State Trooper Randy Harness investigated the accident and spoke to Frickey and Mills in the hospital after the accident. Frickey and Mills stated that Farrell was the driver of the vehicle at the time of the accident. Farrell was later convicted of negligent homicide for the death of Dufrene.

I/The plaintiffs, Jacqueline Dufrene and her children, filed a lawsuit to recover damages for her husband’s death. The plaintiffs named as defendants the occupants of the Ford Taurus, as well as their parents, the automobile insurers of all occupants of the Ford Taurus, the homeowners’ insurers of all occupants of the Ford Taurus, Dufrene’s automobile insurer, the Louisiana Department of Transportation and Development, Hill City Oil Co. and the liability insurer for Hill City Oil Co. Hill City Oil Co. allegedly sold alcohol to the minors involved in the accident.

The trial court granted a motion for summary judgment in favor of Hill City Oil Co. and dismissed all claims against it. State Farm was the auto insurer for the Farrells, the Frickeys and the Muses. State Farm settled with the plaintiffs’ on behalf of the Farrells, the Frickeys and the Muses, as their auto insurer.

This appeal addresses only the claims by the plaintiffs against Dustin Frickey and his mother, Ruby Frickey, and State Farm Fire & Casualty Company, their homeowner’s insurer. State Farm, as the homeowner’s insurer of Dustin and Ruby Frickey, filed a Motion for Summary Judgment arguing no liability for Frickey or his mother in the cause of the accident. Frickey alleges that he was not driving and was only a guest passenger in the vehicle. The Frickeys and State Farm argue that Frickey is not liable because he had no duty as a guest passenger. Further, they argue that even if it is found that he was driving, the Frickeys had previously signed a release in connection with a settlement which absolved them from further liability with respect to the operation of that particular vehicle.

In opposition to that motion for summary judgment, plaintiffs allege a “conspiracy theory” that Frickey and the other minors, who were occupants of the Ford Taurus, agreed to commit the illegal act of possession of alcohol under the age of twenty-one. Plaintiffs argue that it was this consumption of alcohol that was a cause-in-fact in the accident. Therefore, all of the occupants of the vehicle are [¡Jiable for the injuries caused by the accident. Plaintiffs also allege that Frickey was negligent as a guest passenger because it was a “joint venture” in the operation of the vehicle for the purpose of taking Frickey to his home and both had equal right to control the operation of the vehicle. Therefore, the plaintiffs allege that Frickey was liable as a guest passenger. In addition, the plaintiffs alleged that Frickey was at fault for providing alcohol to Farrell, the alleged driver. And finally, the plaintiffs alleged that Ruby Frickey was independently negligent for failure to supervise her minor son.

The trial court heard arguments and then granted the motion for summary judgment in favor of State Farm and the Frickeys, dismissing all claims against them. By written reasons, the trial court found that there was no conspiracy or agreement to commit a tortuous act and no evidence of an agreement to be involved in a car accident and to hurt a third party. The trial court also found that there was no evidence that creates genuine issues of fact as to whether Frickey had equal right of control in the operation of the car. Further, the trial court held that Frickey was not at fault, therefore, his mother could not be held liable for negligent supervision of her child.

Thereafter, the plaintiffs filed an Application for Supervisory Writs with this Court. Defendants filed a Motion to Dismiss the Writ as untimely. This Court denied the Motion to Dismiss and granted the writ for the limited purpose of remanding the writ application to the trial court with instructions to treat the writ application as a petition for appeal.

Plaintiffs then filed a Motion to Enforce Order and Motion for Appeal, which was granted by the trial court. For the reasons which follow, we affirm the trial court’s granting of summary judgment in favor of State Farm and the Frickeys.

I (.DISCUSSION

On appeal, plaintiffs argue four assignments of error: (1) the trial court erred in finding insufficient evidence of a conspiracy, (2) the trial court erred in finding insufficient evidence of the fault of Dustin Frickey as a guest passenger, (3) the trial court erred in finding insufficient evidence of the fault of Dustin Frickey for providing alcohol to Farrell, and (4) the trial court erred in finding insufficient evidence of Ruby Frickey’s independent negligence for failure to supervise her minor son.

First, plaintiffs argue that there is evidence of a conspiracy or agreement between all of the minors to illegally possess and consume alcohol and that this possession and consumption of alcohol was a cause-in-fact in the accident. The plaintiffs cite to deposition testimony from Farrell and Frickey to prove this agreement. According to Farrell, he drank a couple of beers at the Muse house and saw Mills and Frickey drinking. He also stated he saw Frickey passing around vodka. According to Frickey’s deposition, he went to the store with Christina Muse, who was over the age of 21, to get more beer. Muse actually purchased the beer. Frickey stated he then observed Farrell drinking alcohol for another hour.

The plaintiffs are alleging a civil conspiracy under La. C.C. art. 2324, which states, in part: “A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” To recover under the theory of civil conspiracy, the plaintiff must establish that there was agreement as-to the intended outcome or result. Butz v. Lynch, 1997-2166 (La.App. 1 Cir. 4/8/98), 710 So.2d 1171, writ denied, 721 So.2d 473, 98-1247 (La.6/19/98).

|7We agree with the trial court and find that there is no evidence that the minors conspired to commit a tortuous act. Further, there is no evidence that the minors conspired to have an automobile accident and to injure Dufrene. We find that the plaintiffs have not established that there was an agreement as to the intended outcome or result and, therefore, there was no civil conspiracy under La. C.C. art. 2324.

Next, the plaintiffs argue that Frickey is negligent as a guest passenger because he, Farrell and Mills had a joint interest. 'Plaintiffs allege that they were on a joint interest to take Frickey home in the Muse’s vehicle. Further, plaintiffs allege that Farrell and Frickey had equal right to control the operation of the vehicle. Frickey drove the Muse vehicle the night before the accident and Farrell had driven it several times before the accident. Plaintiffs also point to the fact that the boys stopped to get gas and Frickey pumped the gas while Farrell paid for it. Plaintiffs argue this further proves the joint venture between Frickey and Farrell in furtherance of driving Frickey home.

We again agree with the trial court and find that there is no joint interest between Farrell and Frickey, nor did Frickey have equal right to control the operation of the vehicle. He was a guest passenger and was actually asleep in the backseat at the time of the accident. The evidence presented shows that Farrell was the driver of the vehicle that night and Frickey did not have any control oyer the operation of the vehicle.

Third, the plaintiffs argue that the trial court erred in finding insufficient evidence of the fault of Frickey for providing alcohol to Farrell. Plaintiffs contend that Frickey possessed vodka the evening before the accident and that he passed it around to the others. They also contend that Frickey drove to the store for the purpose of obtaining more alcohol and then consumed it and prescription Ismedications. Plaintiffs argue that this negligent behavior was a cause of the accident.

We find that there is insufficient evidence to - prove that Frickey negligently provided alcohol to Farrell. In his deposition, Farrell denied drinking any vodka. Farrell was drinking beer and Frickey was not the one who purchased the beer at the convenience store. Christina Muse purchased the beer. Frickey merely drove her to the store. Therefore, we do not find any evidence to support the plaintiffs’ contention that Frickey was negligent in providing alcohol to Farrell.

And finally,- the plaintiffs allege that Ruby Frickey, Dustin Frickey’s mother, was independently negligent for the failure to supervise her minor son. The evening before the accident, Farrell, Frickey and Mills were at the Frickey residence, unsupervised. Farrell left after an altercation with another individual. At approximately 11:00 p.m., Ms. Frickey returned home and found Frickey and Mills there. She then took her son to the Muse residence and told him to return in one hour. She went home and fell asleep. She did not learn of the accident until she awoke the next morning.

In her deposition, Ms. Frickey testified that she knew of drinking by minors at the Muse residence. She also testified that prior to the evening in question, she spoke to Mr. Muse about the drinking and was assured that the kids were not drinking at his house and if they were he wouldn’t let them leave. Plaintiffs argue that Ms. Frickey was negligent in failing to properly supervise her son by allowing him to do drugs and drink alcohol and failing to pick him up from the Muse home that night. They allege that this negligence is covered by her homeowner’s insurance, and, therefore, the motion for summary judgment by State Farm and the Frickeys should have been denied.

We find that Ms. Frickey was not negligent for failing to supervise her son. Ms. Frickey testified in her deposition that she did not know that Frickey was | flgoing to be drinking at the Muse residence that night. She had already spoken to Mr. Muse and was assured that the kids were not drinking or doing drugs at his house. In addition, we find that Frickey was not at fault in the accident, and therefore, his mother will not be held liable for alleged failure to supervise.

In accordance with the above, we find there are no genuine issues of material fact and the defendants, Dustin and Ruby Frickey and State Farm, are entitled to judgment as a matter of law. Therefore, we find the trial court did not err in granting summary judgment in favor of Dustin Frickey, Ruby Frickey and State Farm Fire & Casualty Insurance Company. The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: |,SOL GOTHARD, Judge.

license: Public Domain

text:
    Leah F. VERDIN, Individually and on Behalf of Her deceased husband, Randall Verdin, and Jeff Verdin v. Slade A. ROGERS and Louisiana Farm Bureau Mutual Insurance Company, Gertrude Gardner, Incorporated, ABC Inspection Co., and the ABC Insurance Co.
    No. 03-CA-1457.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Vincent J. Glorioso, III, Maria B. Glorio-so, The Glorioso Law Firm, New Orleans, LA, for Plaintiffs/Appellants.
    Scott G. Jones, Hulse & Wanek, New Orleans, LA, for Defendant/Appellee (GBS Properties, LLC d/b/a Prudential Gardner Realtors).
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   |,SOL GOTHARD, Judge.

Plaintiffs, Leah F. Verdin, individually and on behalf of her deceased husband, Randall S. Verdin, and Jeff Verdin, appeal from a judgment in favor of defendant, GBS Properties, LLC d/b/a Prudential Gardner Realtors, granting its exceptions of prescription and no right of action.

On June 21, 2002, Randall Verdin sustained a fatal electrical shock while servicing an air-conditioning unit at the home of Slade A. Rogers. It is alleged that the accident occurred as a result of defective wiring. Mr. Rogers had purchased the house almost two years prior to the accident.

On February 6, 2003, decedent’s wife and major son instituted this suit for damages. Named as defendants were Slade Rogers, the home owner, and his insurer, Louisiana Farm Bureau Mutual Insurance Company, and GBS Properties, LLC d/b/a Prudential Gardner Realtors (hereinafter “GBS”), realtor in the sale transaction in which Rogers acquired the house. By amending petition, plaintiffs named the sellers of the house and Mitch Kapoulas, who performed the house inspections at the time of the sale.

GBS filed an exception of prescription, alleging that the sale of the house to Mr. Rogers took place on June 27, 2000, almost two years before the decedent’s |sdeath. Plaintiff responded that the damage occurred at the time of death, and this suit, filed on February 6, 2003, was well within one year of the date the damage or injury was sustained.

GBS also filed an Exception of No Right of Action, in which it argued that plaintiff failed to state a cause of action against it. GBS argued that plaintiffs have no cause of action against GBS because at no time did the plaintiffs have any agency/client or any other relationship with any representative of the defendant, and thus no duty was owed by GBS to the defendant. GBS argues that at the time of the decedent’s death, it did not own the property or have care, custody or control over the electrical wiring that caused the accident, nor was there any representative present or anywhere near the decedent at the time of his death. GBS further states that plaintiffs’ claim, arising out of the alleged failure of the real estate agents to disclose, inspect, or reveal that there were defects in the property, is either in redhibition or negligent misrepresentation which would have occurred at the time of the sale of the property. Plaintiffs responded that their cause of action arises under La. C.C. art. 2315, 2316, 2315.1 and 2315.2, general tort law and that no privity is required as defendant’s duty extends to the public at large. Plaintiffs further allege that an exception is not an appropriate vehicle for making a duty-risk analysis.

The trial court granted both exceptions filed on behalf of GBS, dismissing plaintiffs’ claims against it with prejudice. This appeal followed.

The Exception of No Cause of Action is separate and distinct from the Exception of No Right of Action, and each serves a particular purpose with different procedural rules. Pitre v. Dufrene, 98-570 (La.App. 5 Cir. 12/29/98), 726 So.2d 81; Fergu son v. Dirks, 95-560 (La.App. 5 Cir. 11/28/95), 665 So.2d 585. We will review the defendant’s exception as both an exception of no cause of action and as no right of action.

| ¿The Exception of No Cause of Action asks “whether the law extends a remedy to anyone under the factual allegations of the petition.” The Exception of No Right of Action questions “whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged.” Pitre, supra; Treasure Chest Casino, LLC v. Parish of Jefferson, 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, writ den., 97-1066 (La.6/13/97), 695 So.2d 982.

In this case, plaintiffs petition alleges that the real estate agent was negligent in its inspection of the property. A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Lazard v. Foti, 2002-2888 (La.10/21/03), 859 So.2d 656. The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim. Lazara, supra; Clayton v. Illinois Central R. Co., 03-972 (La.App. 5 Cir. 1/27/04), 865 So.2d 896.

A purchaser’s remedy against a real estate broker is limited to fraud and/or negligent misrepresentation. Smith v. Remodeling Service, Inc., 94-589 (La.App. 5 Cir. 12/14/94), 648 So.2d 995. A real estate broker or salesman (agent) is not considered to be an agent of the seller. Smith v. Remodeling Service, Inc, supra. We do not know of any jurisprudence that extends the duties owed by a real estate agent to a purchaser to a third party. Accordingly, we find that plaintiff has no right of action against the defendant real estate company in this case.

Plaintiff argues a breach of the general duty not to cause harm, citing the case of Ditcharo v. Stepanek, 538 So.2d 309 (La.App. 5 Cir.1989). That case did not involve a third party plaintiff, but instead was a redhibition/rescission action by the purchaser of a home against the seller, real estate agent and termite inspector. We do not find the Ditcharo case applicable to this matter. The petition in this case fails to allege acts which, if proven, would show that defendant caused the | Bharm. We find that plaintiff has failed to state a cause of action against this defendant.

C.C.P. art. 934 generally requires that the plaintiff be allowed to amend his petition after a peremptory exception has been granted, if the general ground for the exception may be cured by the amendment. However, the article does not require that the plaintiff be provided the opportunity to speculate on unwarranted facts merely for the purpose of defeating the exception. Broussard v. F.A. Richard & Associates, Inc., 740 So.2d 156, 99-10 (La.App. 3 Cir. 5/5/99). We do not believe that an amendment would allow plaintiff to cure the defects in her petition in this matter.

Because we find that there was no cause/right of action stated in plaintiffs petition, we do not discuss the issue of prescription.

For the above discussed reasons, the ruling of the trial court which granted the exception of no right of action is affirmed. All costs are assessed against appellant.

AFFIRMED.


author: I «SUSAN M. CHEHARDY, Judge.

text:
    Jerome A. SAUER and Barbara Sauer v. NATIONAL CAR RENTAL SYSTEM, INC., Iva A. Heflin, Rose Hutchins and Allstate Insurance Company.
    No. 03-CA-1456.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Harold S. Bartholomew Jr., Metairie, LA, for Plaintiffs/Appellants, Jerome A. Sauer and Barbara Sauer.
    Jeffery P. Lozes, New Orleans, LA, for Defendant/Second-Appellant, Iva A. Hef-lin.
    James L. Donovan Jr., Metairie, LA, for Defendant/Appellee, Allstate Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I «SUSAN M. CHEHARDY, Judge.

This is an automobile accident case, in which the plaintiffs and the individual defendant appeal a judgment granting the defendant insurer’s motion for summary judgment based on a coverage defense. We reverse, finding the matter was not ripe for summary judgment, and remand for further proceedings.

The accident occurred on May 30, 2001, when a vehicle owned and being driven by Jerome Sauer was struck by a rental car being driven by Iva A. Heflin. Heflin’s vehicle was owned by National Car Rental System, Inc. and had been rented by Hef-lin’s sister, Rose Hutchins, who was a passenger in the car.

Sauer and his wife filed suit against National Car Rental, Heflin and Hutchins. The petition also sued Allstate Insurance Company as the Sauers’ uninsured/under-insured motorist insurance carrier.

During discovery Allstate disclosed that it also carried a policy of insurance issued to Heflin herself. Allstate filed separate answers both capacities, as UM carrier for the Sauers and as liability insurer for Hef-lin. In its answer as Heflin’s insurer, Allstate denied coverage of the accident on the basis that Heflin was not an authorized driver of the National rental car.

Allstate then filed a motion for summary judgment regarding its liability under Hef-lin’s policy. Allstate asserted that the policy provided no coverage for | ¿this accident because Heflin was operating a non-owned vehicle without the owner’s permission, since she was not named as an authorized driver on the National Car Rental contract.

In opposition to the motion for summary judgment, Heflin filed an affidavit in which she made the following statements: On the date of the accident she was traveling in New Orleans with her sister, Hutchins, and they rented the ear from National using Hutchins’ credit card. While Hutch-ins made arrangements for the rental, Heflin was obtaining baggage and assumed she would be listed as an additional driver. The National Car Rental desk clerk escorted Hutchins and Heflin to the vehicle, at which point Heflin sat in the driver’s seat and received instructions from the National Car Rental employee on opera-' tion of the vehicle. Heflin and Hutchins frequently traveled together and Heflin generally was the driver since Hutchins had health problems. Hutchins passed away subsequent to this accident.

In her opposition memo, Heflin argued that the action of the National Car Rental employee in explaining the vehicle’s features to her while she was sitting in the driver’s seat, despite her not being listed as an additional driver on the rental documents, was implied permission for her to drive the car, so as to satisfy the policy requirement that permission be granted by the owner of the vehicle. She asserted that “permission” in Allstate’s policy is interchangeable with “implied permission” and is not interchangeable with “authorized” under the car rental contract.

The trial court granted summary judgment in favor of Allstate. The Sauers and Heflin (hereafter collectively called “appellants”) have appealed.

Appellants raise seven assignments of error. Assignments 1, 2, 3, 5, 6 and 7 all relate to the same questions, so we combine them for discussion. Rephrased, the Rissues are whether the term “authorized driver” in the rental agreement must be equated with the express or implied permission required by the policy; if not, whether there is a genuine issue of material fact regarding express or implied permission for Heflin’s use of the rental car that precludes summary judgment.

The other issue (No. 4 in appellants’ brief) is whether the trial court should have applied La.R.S. 22:1406, La.R.S. 32:900, and Louisiana’s Motor Vehicle Safety Responsibility Laws to require coverage.

The Allstate policy provides that an “insured auto” includes an auto that is not owned by the insured only when such vehicle fits the policy definition of “Non-owned Auto.” The policy definition states:

“Non-owned Auto” means an auto used by you or a resident relative ivith the owner’s permission but which is not: a) owned by you or a resident relative, or b) available or furnished for the regular use of you or a resident relative. [Emphasis added.]

The rental agreement between Rose Hutchins and National Car Rental states in pertinent part:

2. Who May Drive the Vehicle — Authorized Drivers I am the authorized driver if I ... meet all of your rental requirements. An additional authorized driver is authorized only if they pay an additional driver charge and that person has a valid driver’s license and is named on the rental agreement. ALL OTHER DRIVERS ARE UNAUTHORIZED. I am responsible for any losses or damages which occur while the car is in the possession of any driver.

Appellants contend that “permission” must be interpreted with regard to Allstate’s policy, not the rental car agreement’s listing of authorized drivers. They assert that “permission” in Allstate’s policy is interchangeable with “implied permission” and is not interchangeable with “authorized” under the National Car Rental Contract.

15In contrast, Allstate contends having the owner’s permission to drive the rental car is the same as being an authorized driver under the rental contract.

In Simms v. Butler, 97-0416 (La.12/2/97), 702 So.2d 686, the defendant Butler was driving a rental vehicle with permission of Newton Moore, the person designated on the rental agreement as the only authorized driver. Butler was not listed on the rental agreement. Butler’s parents had an automobile insurance policy with Allstate Insurance Company and Butler was a legal resident of his parents’ home, making him eligible to be an insured under the policy.

Butler’s policy, like the policy here, provided that an insured would be covered while operating a non-owned vehicle only if such vehicle was used with the owner’s permission. The trial court found no merit to the insurer’s coverage defense and granted judgment in favor of the plaintiff, which was affirmed by the court of appeal. The supreme court reversed.

The supreme court found that under the auto rental agreement’s explicit restrictions limiting authorized drivers, the renter did not have authority to lend the rental vehicle to Butler. Therefore, the court concluded, Butler was driving the car with neither express nor implied permission of the rental agency. Simms, 97-0416 at p. 6, 702 So.2d at 689. Hence, the insurance policy did not apply.

Here, as in Simms, the National Car Rental agreement stated that an additional driver is authorized only if an additional driver charge is paid and the person is named on the rental agreement. In the Simms case there was no indication of any implied permission. Here, however, after Heflin got in the driver’s seat, the rental agent explained the use of the rental car to her.

In both Simms and this case there was an Allstate policy, with the same or similar regarding use of non-owned autos; there is a rental vehicle with a rental | ^contract; and there is a driver of the rental vehicle who is not named on the rental contract as an authorized driver.

In Simms, the supreme court equated the authorization required under the rental agreement with the permission required by the policy. Simms had no facts that raised the issue of implied permission.

Here, in contrast, although Hutchins failed to list Heflin as an authorized driver on the rental form, the rental company employee explained use of the auto to Hef-lin as Heflin was sitting in the driver’s seat. This raises a genuine issue of material fact as to whether implied permission could be construed from the actions of National Car Rental’s employee or employees in instructing Heflin in the operation of the car. That issue of fact is sufficient to defeat summary judgment.

Considering our ruling on the permission/authorization argument, it is unnecessary to address whether thp statutory law requires us to find coverage in order to protect the victims (ie., the Sauers).

For the foregoing reasons, the judgment is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed against the appellee, Allstate Insurance Company.

REVERSED AND REMANDED.


author: | ¡.SOL GOTHARD, Judge.

text:
    Lori Dunn, Wife of/and Mark DUNN, Individually and On Behalf of the Minor, Chad Dunn v. Mark A. PONS and Allstate Insurance Company.
    No. 03-CA-1486.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Cameron C. Gamble, New Orleans, LA, for Plaintiffs/Appellants.
    Lucia G. Hawks, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendant/Appellee, Allstate Insurance Company Encompass Insurance.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   | ¡.SOL GOTHARD, Judge.

Plaintiffs, Lori and Mark Dunn on behalf of the minor child Chad Dunn, bring this appeal from a trial court judgment that granted a defense motion for summary judgment and dismissed the lawsuit with prejudice. For reasons that follow; we vacate the summary judgment and remand the matter to the trial court for further proceedings.

Plaintiffs filed this personal injury lawsuit to recover damages sustained as a result of an automobile accident in which their vehicle was rear-ended by a vehicle driven by Mark Pons. Plaintiffs also named Allstate Insurance Company (Allstate) as defendant in the suit, alleging that Allstate insured the vehicle driven by Mr. Pons, and is also the provider for the uninsured/underinsured motorist coverage for plaintiff, Mr. Dunn.

Allstate, in its capacity as uninsured/un-derinsured motorist provider for plaintiff, filed a motion for summary judgment on the basis that on the date of the accident the policy issued in favor of Mark Dunn did not include uninsured motorist coverage. The motion for summary judgment was continued without date by consent of the parties.

Plaintiffs filed a motion to dismiss defendants, Mark Pons and Allstate as his liability insurer with prejudice. In that motion plaintiffs reserved their rights to | ^proceed against Allstate in its capacity as their uninsured motorist carrier, and any related defendant. That motion was signed on January 22, 2001.

In a supplemental and amending petition, plaintiffs added Elliott J. Raley, III as a defendant. Mr. Raley is an agent of Allstate who wrote the policy on the Dunns. The petition alleges Mr. Raley misrepresented the insurance coverage regarding the uninsured motorist coverage. The petition further makes claims against Allstate for acting in bad faith in denying the claim for uninsured losses.

Allstate re-urged its motion for summary judgment and the matter was set for hearing. After hearing the arguments of counsel and reviewing the memoranda of law, the trial court granted the motion in favor of Allstate and Mr. Raley and dismissed plaintiffs’ action with prejudice. It is from that judgment that plaintiffs appeal.

In brief to this court, plaintiffs argue that there are material facts remaining to be decided with regard to the causes of action against both Allstate and Mr. Raley which would preclude summary judgment. Allstate counters that a valid waiver of UM coverage was signed by Mr. Dunn in 1998 which extended to the renewal policy in force at the time of the accident.

La. C.C.P. art. 966 provides that summary judgment should be granted when the pleadings, depositions and other documents show there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. The article also declares that summary judgment procedure is favored and must be construed to accomplish the just, speedy and inexpensive determination of most actions. The burden of proof remains with the mover.

Appellate courts review summary judgments de novo under the same criteria that governs the district court’s consideration of whether summary judgment is appropriate. Knight v. Owens, 03-1064 (La.App. 5 Cir. 2/23/04), 869 So.2d 188. We must consider whether the summary judgment is appropriate under the circumstances of the case and whether there is a genuine or triable issue on which reasonable minds could disagree. Id. A material fact is one that would matter in the trial on the merits. Id.

The undisputed facts are that Mr. Dunn had a valid automobile liability insurance policy with Allstate at the time of the accident. Further, the record shows that Mr. Dunn signed an uninsured motorist waiver on October 26, 1998 in a renewal of his automobile insurance policy with Allstate. The effective dates of the renewal policy were September 12, 1998 to March 12, 1999. That waiver reads as follows:

I do not want UMBI (Uninsured Motorist Bodily Injury) coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.
The choice I made by my initials on this form will apply to all persons insured under my policy. My choice shall apply to the motor vehicles described in the policy and to any replacement vehicles, to all renewals of my policy, and to all reinstatement or substitute policies until I make a written request for a change in my Bodily Injury Liability Coverage or UMBI coverage.

The policy was renewed every six months thereafter. There were several changes to the policy which involved adding cars and drivers, and changing coverage. On April 26, 2000, a correspondence sent from Mr. Raley to Mr. Dunn confirms the deletion of one or more drivers and a change in use of the 1991 Toyota Pickup. The letter also states:

The coverages and limits you carry for your vehicles, and the costs of those coverages, are listed in detail on the enclosed Amended Policy Declarations. By comparing this Policy Declarations with the most recent Declarations mailed to you, you can see any changes in detail.

A correspondence from the Allstate Agency Support Center in Jackson, Mississippi to Mr. Dunn reflects more extensive changes to the policy effective April 26, 2000, including the addition of a driver and changes in use or driver in all Rthree insured autos. This correspondence also contains the identical language as quoted above regarding the reference to the Amended Policy Declarations. Attached to that correspondence is Louisiana Automobile Policy Amendment AU2424 which states that “economic-only uninsured motorists coverage is added to the policy.” On August 20, 2000 the accident at issue herein occurred.

Also contained in the record is a form letter dated November 30, 2000 that was sent from the Allstate home office in Illinois that explains the economic-only uninsured motorist coverage. The letter states:

If your Allstate auto insurance policy was in effect before September 6, 1998 and you or any other insured person under your policy was involved in an accident on or after September 6, 1998 with an uninsured or under underin-sured motorist who was at fault in any way for the accident, you should contact your Allstate agent or any Allstate Claim Office to determine whether uninsured motorists coverage applies. Coverage may apply to your loss, even if your policy documents at the time of the accident indicated that you did not have uninsured motorists coverage on your policy, (emphasis in original)

In his deposition, Mr. Dunn testified that, although he did not recall signing the waiver of uninsured motorist (UM) coverage in 1998, he recognized his signature. He further testified that when he received the correspondence dated November 30, 2000 indicating he may have UM coverage, he called Mr. Raley and was told that he did have the coverage. Mr. Dunn did not recall telling Mr. Raley that he did not want the uninsured motorist coverage because of the cost.

The record also contains an affidavit from Mr. Dunn that states he requested full coverage, including UM from Mr. Ra-ley before the accident occurred and assumed he had the coverage when he received the endorsement to the policy sent with the April 26, 2000 changes. He further stated that he called Mr. Raley after receiving the correspondence from Allstate’s home office, and was informed that he had UM coverage.

Lori Dunn also testified by deposition. She assumed they had uninsured motorist coverage when she got the amended policy. Although Mrs. Dunn could | finot recall the date she received the amendment to the policy, she knew that it was before the accident. When they received the letter from Allstate after the accident, they did not understand it so they decided to call their agent. She did not have any conversations with Mr. Raley directly because her husband handled that. However, when her husband completed his telephone conversation with Mr. Raley, Mr. Dunn told his wife they had the coverage.

In his deposition, Mr. Raley stated that the Dunns waived UM coverage in 1998 to cut the cost of insurance. Mr. Raley further testified that when the Dunns added their daughter to the policy, his office did a full review of coverages with them. He testified that Ken McKeever, an employee of Mr. Raley, had a personal meeting with them in which he offered the Dunns UM coverage, but they declined to add the coverage. Mr. Raley admitted that he did not personally do the insurance review in April of 2000. However, he did speak to them after the accident when they requested he add UM coverage, but he could not recall the date.

It is clear from the transcript that the trial court reviewed the applicable law and ruled that the waiver executed in October of 1998 was valid and continued to apply to subsequent renewals of the policy. Allstate argued successfully that the 1999 amendments to La. R.S. 22:1406(D), effective September 6, 1998 that upheld the validity of a properly executed waiver of UM coverage on renewals regardless of changes made in the policy, makes the waiver signed by Mr. Dunn effective on the date of the accident. Allstate further concludes that changes in drivers and substitutions of vehicles made since the waiver did not constitute a new policy for the purposes of requiring a new waiver form.

While we do not quarrel with Allstate’s argument on that issue, we find the trial court erred in granting the summary judgment. The issue before the trial court and before us in this de novo review was whether Mr. Dunn requested a 17reformation of his policy in his dealings with Mr. Raley. Did Mr. Dunn ask Mr. Raley to add UM coverage to his policy after the waiver was executed? Did Mr. Raley, or someone in his office inform Mr. Dunn that the policy was reformed? In this regard there is clearly a conflict in the factual presentations made by Allstate and Mr. Dunn. Mr. Dunn avers that he requested UM coverage in 2000, and thought he had it when he received the Amendato-ry Endorsement indicating it changed the policy. Mr. Raley denied that Mr. Dunn made such a request, although Mr. Raley admits that he did not personally do the insurance review with Mr. Dunn in April of 2000. Further, there is a conflict in testimony about what Mr. Dunn was told by Mr. Raley, or someone in his office regarding UM economic-only coverage after the accident.

Allstate argues that an Amendato-ry Endorsement alone does not require a new waiver. Again,. Allstate goes beyond the issue at hand which is restricted to whether there is a material issue of fact undecided. A summary judgment is not a substitute for a trial on the merits. Pye v. Insulation Technologies, Inc., 97-237 (La.App. 5 Cir. 9/17/97), 700 So.2d 892, writ denied 97-2571 (La.12/19/97), 706 So.2d 461. The mover has the burden of affirmatively showing that there is no genuine issue of material fact. Id. 700 So.2d at 893.

In Raymond v. Zeringue, 422 So.2d 534 (La.App. 5 Cir.1982) this court stated:

A written insurance contract can be reformed to conform to the original intention of the parties thereto, whether for mutual error or for the negligent, mistaken or fraudulent conduct of the agent who issues the policy. If an insurance agent knows of a policyholder’s true intention as to the coverage desired, the insurance company is bound by the agent’s knowledge, and a policy erroneously issued will be reformed so as to conform to the original intention. An insurer is bound by its agent’s actions in completing a policy application, (citations omitted)

Id. 422 So.2d at 536

IsThe issue of whether Mr. Dunn requested a reformation in his policy to include UM coverage is a material issue of fact which is not sufficiently settled by the conflicting affidavits and deposition testimony. Accordingly, we find the trial court erred in granting summary judgment. We vacate the summary judgment and reinstate plaintiffs’ action, and we remand the matter to the trial court for further proceedings.

VACATED AND REMANDED

      . It appears Mr. Raley's name was misspelled in the petition as Riley.


author: I,SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Raymond BROOKS, Jr.
    No. 04-KA-22.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Raymond Brooks, Jr.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   I,SUSAN M. CHEHARDY, Judge.

After reviewing the record, we find that we must remand this matter to the trial court for the ruling on defendant’s Motion to Reconsider Sentence. This is the third appeal of defendant’s multiple offender adjudication before this Court.

On January 29, 2002, this Court affirmed defendant’s conviction for possession of cocaine, but vacated his life sentence as a third felony offender and remanded for rehearing of the multiple offender proceeding. Specifically, this Court concluded that the State failed to prove the date of discharge of defendant’s 1977 armed robbery conviction, which precluded the State from using that conviction as a predicate to enhance defendant’s penalty as a third felony offender. State v. Brooks, 01-864 (La.App. 5 Cir. 1/29/02), 807 So.2d 1090, 1101-1102.

On remand, the trial court held a multiple offender proceeding in which the State alleged that defendant was fourth felony offender based on the following predicate convictions: (1) 1977 conviction for armed robbery; (2) 1986 conviction for illegal carrying of a weapon by a felon; and (3) 1994 conviction for simple robbery. The State submitted evidence of the defendant’s convictions for illegal carrying of a weapon by a felon and simple robbery. The defense argued that the State was precluded from using the firearm charge as a predicate because it 13subjected defendant to double enhancement. The trial judge found defendant to be a second felony offender and imposed an enhanced sentence of seven years imprisonment at hard labor without benefit of probation or suspension of sentence.

The State appealed the trial court’s finding. This Court vacated the multiple offender adjudication and enhanced sentence and remanded for further proceedings. State v. Brooks, 02-1051 (La.App. 5 Cir. 2/25/03), 841 So.2d 997, writ denied, 03-664 (La.6/27/03), 847 So.2d 1271. Thereafter, the State filed a motion to resentence defendant on the multiple bill. On August 7, 2003, the trial judge found that defendant was a third felony offender and imposed a sentence of life imprisonment without benefit of probation or suspension of sentence. On August 11, 2003, defendant filed a motion for appeal, which was granted on August 15, 2003.

On August 13, 2003, defendant filed a timely pro se motion for reconsideration of sentence. The motion asserts that defendant’s sentence was excessive because the court had previously imposed a seven-year sentence and urged the court to depart from the “guidelines” to impose a lesser sentence. The record contains a typed but unsigned order which reads, in part, that defendant’s motion to reconsider sentence was denied as moot because an appeal was pending.

La.C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evidentiary hearing.” This Court, relying on La.C.Cr.P. art. 881.4, has held that remand is warranted where the appellate record does not reflect a ruling on a timely motion to reconsider sentence. State v. Hymes, 02-836 (La.App. 5 Cir. 12/30/02), 836 So.2d 648, 649; State v. Harris, 01-1243 (La.App. 5 Cir. 2/26/02), 811 So.2d 984, 985; State v. Smith, 96-285 (La.App. 5 Cir. 10/1/96), 683 So.2d 826, 827.

We remand this matter, therefore, to the trial court for supplementation of the record with a ruling on defendant’s motion to reconsider sentence. If there has been no disposition of the motion to date, the trial court is ordered to rule on the motion within 30 days of this appellate opinion. Defendant is ordered to re-lodge his appeal within 60 days of the date on the ruling on his motion, or the date of this opinion, whichever is later.

REMANDED WITH INSTRUCTIONS.

      . We note that, even after an order of appeal has been entered, the trial court is not divested of jurisdiction to “take appropriate action pursuant to a properly made or filed motion to reconsider sentence.” La.C.Cr.P. art. 916(3).


author: 11 STEWART, J.

text:
    STATE of Louisiana in the Interest of M.A.S. and R.S.
    Nos. 38,677-JAC, 38,678-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 7, 2004.

      Brian C. McRae, for Appellant T.S.
    Audie L. Jones, Haughton, for Plaintiff-Appellee State of Louisiana, DOSS.
    Steven R. Thomas, Mansfield, for Appel-lee Confidential Party.
    David S. Kendrick, for Appellee W.S.
    Before STEWART, MOORE and LOLLEY, JJ.
   11 STEWART, J.

This is an appeal from a judgment terminating the parental rights of T.S. to the minor children, M.A.S. and R.S. At issue is whether the State proved by clear and convincing evidence that there exists no reasonable expectation of reformation in the near future for T.S. so as to justify termination of her parental rights. For the reasons which follow, we affirm the judgment of termination.

FACTS

By instanter order of June 15, 2001, the minor child M.A.S., born August 8, 1999, was removed from the custody of his mother, T.S., and placed in the custody of the State of Louisiana, Department of Social Services. He was subsequently adjudicated a child in need of care. Removal was necessitated by T.S.’s abusive behavior toward M.A.S. The child, who was not yet two years of age, had adult size bite marks on his face and left forearm. T.S. admitted that she bit M.A.S. on his face after he had bitten her. At the time of M.A.S.’s removal from parental custody, T.S. was separated from W.S., her husband and the father of M.A.S. W.S. was living with his stepfather, a convicted child molester, who had previously molested W.S. when W.S. was a child.

At the first family team conference on July 12, 2001, the participants developed a case plan for reunification of M.A.S. with T.S., who was expecting another child. The case plan set forth seven goals for T.S. to meet and the actions she must take to achieve these goals. The stated goals required T.S. to provide a safe and stable home for M.A.S. She was to be a nurturing and responsible parent able to meet the physical, medical, and | ^emotional needs of M.A.S. T.S. was required to cooperate with the agency (Office of Community Services) in assessing her parental needs and in following recommendations. She was to fulfill her legal responsibilities toward M.A.S. and to provide financial support for M.A.S. She was also to cooperate with the agency in making a permanent plan for M.A.S. Finally, she was to establish the paternity of her unborn child and seek prenatal care.

In meeting the seven goals, the case plan required T.S. to satisfactorily complete parenting and anger management classes. She was to undergo a psychological evaluation and successfully follow the recommendations of the evaluation. The plan also required her to establish and maintain a home kept clean and free from hazards. Among other actions, she was also required to interact in positive ways with M.A.S., treat him in an age appropriate manner, provide monthly financial support as well as gifts for M.A.S., and show her understanding of why M.A.S. was placed in the custody of the State. The plan was approved by the court.

By the second family team conference on December 18, 2001, T.S. and W.S. had reconciled and were living together in a mobile home along with W.S.’s step-father. T.S. and W.S. had completed their psychological evaluations and had attended anger management classes. However, there was concern about the chaotic lifestyle of the couple and the lack of a good support system to assist them with parenting and maintaining a home. Notably, there was also concern about them allowing a convicted child | ¡¡molester to live in their home and their failure to understand how this could compromise the safety of a child living with them.

T.S. gave birth to R.S. on February 24, 2002. R.S. was placed in the custody of the State pursuant to an instanter order issued May 31, 2002, on the basis of validated allegations of sexual molestation by W.S. and his step-father involving two minor children of a family with whom W.S. and T.S. had lived at times. R.S. was subsequently adjudicated a child in need of care. A case plan for services with the goal of family reunification was developed and approved by the court.

Records from the family team conference of June 25, 2002, show that T.S. had been hospitalized for depression. Family reunification.remained the goal for M.A.S. and R.S. until the next family team conference on November 19, 2003. T.S. was then separated from W.S. and living with a man, B.C.C., against whom there had been validated allegations of sexual molestation of a child. Despite being advised of the risk of harm to children posed by B.C.C. and the fact that there could be no recommendation for return of the children under such circumstances, T.S. believed B.C.C. to be innocent and not harmful to children. Records also show that T.S. was having difficulty in redirecting M.A.S. during visits when he would become aggressive toward her and not follow instructions. Based on T.S.’s lack of progress toward satisfaction of the case plan goals, the State decided to pursue termination of parental rights with the permanent goal being adoption for M.A.S. and R.S.

|4On June 16, 2003, the State filed the petition for termination of parental rights, and the hearing took place on August 5, 2003. Laura Bounds, a case manager with the Office of Community Services, testified on behalf of the State regarding the agency’s involvement with the family and T.S.’s progress toward her case plan goals. Bounds testified that even though T.S. attended all the family team conferences and took part in the services offered, she did not show improvement in her ability to parent or protect the children from abuse. For instance, T.S. underwent the psychological evaluation as set forth in the plan and “somewhat” followed the recommendations from the evaluation, but she did not show substantial improvement in her mental health condition. As recently as July 2003, T.S. had been hospitalized after she threatened to kill herself or her boyfriend’s sister. The evaluation placed T.S. in the mild mental retardation range. Poor parenting skills and a limited understanding of child development were two problems noted in the evaluation, which concluded that T.S. was at a high risk to repeat abuse of her children. Even with the provision of services to address her needs, the prognosis for a positive outcome was guarded due to T.S.’s limited intellectual functioning and the severity of her personality and emotional disturbances.

Bounds noted that although T.S. attended parenting classes, she did not demonstrate that she had learned anything from the classes during the visits with the children. Bounds described T.S. as being “immature” in her dealings with the children. T.S. called them by different names and did not ^interact much with them. T.S. also had problems redirecting M.A.S., who was defiant with her. Bounds also testified that T.S. did not benefit from the anger management classes as she continues to lose her temper and make threats of violence, as mentioned above. Of most concern was T.S.’s continuing relationship with B.C.C., even though she was made aware that this relationship would jeopardize her relationship with her children.

The State also presented the testimony of Angela Ledford, who directed T.S.’s parenting classes. Ledford testified that T.S. did not learn anything from the classes. She described T.S. as being passive and noted that T.S. gave inappropriate responses in class. For instance, she referred to M.A.S. and her unborn child as “brats.” Ledford believed it was “very questionable” as to whether T.S. could parent her children and suggested that the situation would have to be “very closely monitored” if the children were returned to T.S.’s care.

T.S. testified on her own behalf. She stated that she still lived with B.C.C. T.S. explained that she did not take her caseworker’s advice to leave his residence because she “thought she was not telling me the right thing to do.”

At the close of evidence, the judge found that there had been no substantial compliance with the case plan by either parent and that there was no reasonable expectation of substantial improvement in either parent’s condition. Considering the children’s ages and need for a safe, stable, and permanent home, the court determined termination to be appropriate. | ^Judgment terminating the parental rights of T.S. and W.S. was signed August 21, 2003. This appeal by T.S. followed.

DISCUSSION

In a proceeding to terminate parental rights, the burden is on the State to prove all the elements of its case by clear and convincing evidence. La. Ch. C. art. 1035(A); State in the Interest of T.D., T.D., and W.D. v. R.D. and L.D., 34,580 (La.App.2d Cir.3/2/01), 781 So.2d 871. The grounds for termination are set forth in La. Ch. C. art. 1015, in relevant part, as follows:

(5) Unless sooner permitted by the court, at least one year has lapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Even when the State meets its evidentiary burden, a court should not terminate parental rights unless termination is found to be in the child’s best interest. State in the Interest of J.M., J.P.M., and M.M., 2002-2089 (La.1/28/03), 837 So.2d 1247.

The issues of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a termination proceeding. State in the Interest of A.R.H. and A.A.H. v. Hines, 35,800 (La.App.2d Cir.2/27/02), 810 So.2d 1166. The manifest error standard of review applies to a trial court’s findings as to whether parental |7rights should be terminated. State in the Interest of K.G. and T.G., 2002-2886, 2002-2892 (La.3/18/03), 841 So.2d 759.

On appeal, T.S. argues only that the State failed to prove by clear and convincing evidence that there exists no reasonable expectation of reformation in the near future for her. T.S. contends that she has been trying to comply with her case plan and has shown some improvement. She asserts that while all her problems have not been eliminated, the facts do not justify termination.

La. Ch. C. art. 1036 governs proof of parental misconduct in termination proceedings. The relevant part, La. Ch. C. art. 1036(D) provides as follows:

D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

In State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 450, the Louisiana Supreme Court addressed the concept of parental reformation with approval in the following passage:

Prior to August 15, 1997, there was no statutory guidance in | ¡¡determining whether the parent had shown “reformation” sufficient to preserve family reunification as a viable option to termination of parental rights. However, after reviewing the jurisprudence, we established the test in State in Interest of L.L.Z. that “a reasonable expectation of reformation is found to exist if the parent has cooperated with state officials and has shown improvement, although all of the problems that exist have not been eliminated.” State in Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309 at 1317 (La.1993) (emphasis added.) Utilizing our statement in State in Interest of L.L.Z. as a springboard for elaboration, several appellate courts have held that “reformation” means more than mere cooperation with agency authorities. More importantly, reformation of the parent is shown by a “significant substantial indication of reformation ... such as altering or modifying in a significant way the behavior which served as a basis for the state’s removal of a child from the home.”
Furthermore, the jurisprudence has held that “[a] parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated.”

(Footnotes and citations omitted).

With these concepts of parental reformation and the statutory guidance in mind, our review of the record reveals no manifest error in the trial court’s finding of no reasonable expectation of significant improvement in T.S.’s condition in the near future. T.S. lost custody of M.A.S. due to her abusive behavior toward him and her poor parenting skills. She lost custody of R.S. because of validated allegations of child molestation against W.S. and his step-father, who was residing with T.S. and W.S. The record shows that T.S. was provided with a variety of services by the state for the purposes of achieving family reunification. The record further shows that while T.S. took part in the services offered, she did not benefit from them to the extent of showing any appreciable improvement in her condition and in her ability to parent two small children.

| ¡Although T.S. attended anger management classes and obtained some counseling, she continues to exhibit some anger and violent tendencies associated with her mental health condition as testified to by the OCS caseworker, Laura Bounds. T.S. also attended parenting classes, but she has not demonstrated improvement in her parenting skills during the scheduled visits with her children. Of gravest concern is that at the time of the hearing, T.S. was continuing to live with her boyfriend, a known child molester, despite having been warned that doing so would jeopardize her ability to regain custody of her children. It is T.S.’s failure to appreciate the danger posed to the safety of her children by her association with a known child molester and her unwillingness to take steps to end the relationship and find another place to live that most clearly establishes the lack of any reasonable expectation of significant improvement in her conduct in the near future. T.S.’s conduct, particularly her pattern of association with sexual predators and her failure to benefit from the services offered, reasonably indicates that she is unable or unwilling to provide an adequate permanent home for her children.

While we recognize that T.S., despite limited intelligence and resources, did attempt to comply with her case plan, we are compelled to conclude that her efforts fell short of success. The trial court was correct in finding that the State met its burden of proof and that termination was in the best interests of the children, M.A.S. and R.S. In instances where the State succeeds in proving the grounds for termination and where the best interest | inof the child is served, the drastic step of termination of parental rights is appropriate. This is such an instance.

CONCLUSION

In accordance with the foregoing reasons, we affirm the Judgment of Termination of Parental Rights. No costs assessed as per La. Ch. C. art. 406(A).

AFFIRMED.

      . The evaluation by Daniel J. Lonowski, Ph.D, P.C., was introduced into evidence. Dr. Lo-nowski did not testify.


author: hEZELL, Judge.

text:
    STATE of Louisiana v. Cedric DANIELS.
    No. KA-2003-1621.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Rehearing Denied June 16, 2004.

      William E. Tilley, District Attorney-Thirtieth Judicial District Court, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Dmitrc Ian Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant, Cedric Daniels.
    Cedric Daniels, Leesville, LA, pro se.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

The Defendant, Cedric Daniels, was charged by bill of information on April 23, 2001, with armed robbery, a violation of La.R.S. 14:64. On April 23, 2001, the Defendant was arraigned and entered a plea of not guilty. An amended bill of information charging the Defendant with armed robbery wherein a firearm was used, a violation of La.R.S. 14:64 and La.R.S. 14:64.3, was filed on February 18, 2003. On March 6, 2003, the Defendant was arraigned and entered a plea of not guilty to the amended charge.

On April 14, 2003, a jury was selected to hear this matter. The jury returned a verdict of guilty as charged on April 15, 2003. On September 30, 2003, the Defendant was sentenced to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served for armed robbery. For use of a firearm during the robbery, the Defendant was sentenced to serve an additional five years at hard labor without benefit of probation, parole, or suspension of sentence to run consecutively to his sentence for armed robbery.

The Defendant filed a motion for appeal on October 7, 2003. The motion was granted on October 9, 2003, and the matter made returnable to this court on December 9, 2003.

FACTS

On February 8, 2001, Jason Hendricks had a part-time job as a pizza delivery person for Domino’s Pizza. Mr. Hendricks delivered a pizza to 1206 Dogwood Circle at approximately 8:00 p.m. Once the customer paid for the order, Mr. Hendricks returned to his car and placed the pizza warming bag in the back passenger side of his car. Mr. Hendricks then heard someone say “hey, man.” Mr. Hendricks turned and saw a black man, fifteen to twenty feet away, walking toward him. The man asked |?Mr. Hendricks if he worked for Domino’s and if he had twenty dollars. Mr. Hendricks indicated that he did not have any money and walked to the back of his car. At that time, the man reached into his pocket, pulled out a gun, and “pulled back on the slide.” The man then ordered Mr. Hendricks to give him everything Mr. Hendricks had in his pockets, including his wallet. Mr. Hendricks took twenty-three dollars and placed it on the ground. The man then picked up the money and jogged away.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals *are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent as to the sentence imposed pursuant to La.R.S. 14:64.3. Pursuant to La.R.S. 14:64.3, the trial court sentenced the Defendant to five years at hard labor without benefit of probation, parole or suspension of sentence, to be served consecutive to the sentence imposed for armed robbery. When the Defendant committed the present offense, La. R.S. 14:64.3 provided:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Section shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

This provision does not provide for the sentence imposed to be served at hard labor. Thus, the trial court erred in ordering the additional five-year sentence to be served at hard labor. In State v. Williams, 01-1398 (La.App. 1 Cir. 3/28/02), 815 So.2d 378, writ denied, 02-1466 (La.5/9/03), 843 So.2d 388, the first circuit found that even though La.R.S. 14:64.3’s failure to provide for imprisonment at hard labor may have been a legislative oversight, any ambiguity must be resolved in favor of the defendant. Accordingly, the court found that a term of imprisonment imposed | ¡¡pursuant to La.R.S. 14:64.3 could not be imposed at hard labor. See also State v. Hyland, 36 La.Ann. 709 (1884), wherein the court stated “that the word ‘imprisonment’ alone and unqualified, when used in criminal statutes, does not import imprisonment at hard labor.... ” Id. at 710.

Accordingly, we find the five-year sentence imposed pursuant to La.R.S. 14:64.3 should be amended by deleting the provision requiring the sentence to be served at hard labor. Therefore, we will remand the case and order the trial court to correct the minutes accordingly.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends “the trial court erred in sentencing [him] under LSA R.S. 14:64.3 ... when the jury only returned one verdict but was not given an opportunity to return a separate verdict with respect to LSA R.S. 14:64.3.” In brief to this court, the Defendant contends the following:

[T]he trial court instructed the jury concerning armed robbery ... but did not instruct the jury separately on the elements of the offense under Revised Statute 14:64.3, use of a firearm during an armed robbery. Because the jury was not given separate instructions on what constitute the elements of the use of a firearm and because the jury was not given the opportunity to vote separately on that, only one verdict ... was returned.
More specifically, in enumerating the elements required to return a verdict of armed robbery, the trial court did not instruct the jury that it must find a firearm was used. The trial court, in listing the elements, only explained to the jury that they must find that “the defendant was armed with a dangerous weapon.” When the jury returned it’s verdict of “Guilty as Charged”, that verdict ... was to the charge of violation of Louisiana Revised Statute 14:64, armed robbery. There was no separate instructions, findings, or verdict concerning Louisiana Revised Statute 14:64.3 returned by the jury.

The Defendant also contends that an improper set of verdicts and responsive verdicts was presented to the jury.

|4The State argues that the Defendant did not object to the jury instructions or ask the court to give any additional jury instructions. Additionally, the State contends that La.R.S. 14:64.3 does not establish a new crime and is only a sentencing provision. The transcript of the trial indicates the jury instructions at issue were not recorded by the court reporter at the trial of this matter. However, a copy of jury instructions signed by the trial judge was filed into the record on April 15, 2003, the date the Defendant was found guilty. We will address the Defendant’s arguments based on the jury instructions filed in the record.

ELEMENT OF THE OFFENSE/SEPARATE VERDICT

The Defendant contends that use of a firearm is an element of the offense of armed robbery and a separate verdict regarding firearm use should have been presented to the jury. As noted by the Defendant, the authors of the Louisiana Civil Law Treatise, Criminal Jury Instructions, are of the opinion that La.R.S. 14:64.3 is an added element of the offense of armed robbery since it expands the penalty range. Cheney C. Joseph, JR. & P. Raymond Lamonioa, 17 Louisiana Civil Law Treatise (2002 Pocket Part) Criminal Jury Instructions § 10.66.1, at 153.

The State contends that La.R.S. 14:64.3 is a sentencing provision. In support of its argument, the State cites State v. Durant, 00-1246 (La.App. 5 Cir. 12/27/00), 776 So.2d 1265, writ denied, 01-313 (La.12/14/01), 803 So.2d 985, wherein the fifth circuit stated in footnote number one that “La. R.S. 14:64.3 does not create a new crime, but simply enhances the penalties for a violation of La. R.S. 14:64, the armed robbery statute, when the dangerous weapon used to commit the armed robbery is a firearm.” Id. at 1267. Additionally, the Defendant points out that in State v. Morrison, 01-268 (La.App. 5 Cir. 8/28/01), 795 So.2d 465, writ denied, 01-2856 (La.8/16/02), 822 So.2d 614, the defendant was charged in a bill of information with farmed robbery in violation of La. R.S. 14:64. At the beginning of trial, the State filed a notice indicating its intent to “invoke the firearm enhancement of sentence provisions of La.R.S. 14:64.3.” Id. at 466 (emphasis added). The defendant was found guilty as charged and was sentenced to serve ten years at hard labor for armed robbery and an additional five years for the “firearm enhancement,” to run consecutively. Id. The court noted in its opinion that the defendant was appealing his “con-vietion of armed robbery, his sentence and enhancement for committing the offense with a firearm.” Id.

This court finds there is little law regarding La.R.S. 14:64.3. We cannot find any case law other than that suggested by the State that would indicate whether La. R.S. 14:64.3 should be considered an element of the offense of armed robbery or a sentencing provision and whether a separate verdict is required to be rendered under La.R.S. 14:63.4. Accordingly, we will compare La.R.S. 14:63.4 with the version of La.R.S. 14:95.2 that was in effect until 1988.

Louisiana Revised Statutes 14:95.2, which was repealed by 1988 La. Acts No. 319 § 2, required the imposition of an additional penalty for possession of a firearm or explosive device in the commission of certain enumerated felonies. In State v. Jackson, 480 So.2d 263 (La.1985), the defendant appealed alleging he did not receive notice that either La.R.S. 14:95.2 or La.Code Crim.P. art. 893.1 would be utilized to enhance his sentence; accordingly, his sentence should not have been enhanced. The bill of information did not charge use of a firearm in the commission of manslaughter and the district attorney, prior to trial or sentencing, did not move the court to enhance the sentence or notify the defendant that either La.R.S. 14:95.2 or La.Code Crim.P. art. 893.1 would be applied. Nonetheless, the trial judge, who was aware of the evidence of firearm use, applied both statutes when sentencing the defendant. |fiThe supreme court discussed the differences between La.R.S. 14:95.2 and La.Code Crim.P. art. 893.1 as follows:

The statutes under consideration are conceptually different. ' Although § 14:95.2 does not define a fully independent crime, it does define criminal activity, use of a gun attending commission of ten specified felonies, and it does provide for an independent or supplemental penalty. Furthermore, it appears in the Criminal Code (Chapter 1 of Title 14) at Part VI “Offenses Affecting the Public Generally,” Subpart A “Offenses Affecting the Public Safety.” It is sufficiently an accusation as to require that the accused “be informed of the nature and cause” thereof (U.S. Const, amend, art. VI and In re Oliver 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 [(1948)]). The prescribed method in Louisiana for informing an accused of a criminal charge, in this instance § 14:95.2, is inclusion in a bill of information or indictment.
In this case the defendant Jackson was not charged with firearm use, or, more specifically, violation of § 14:95.2. Nor did the jury convict him of same. Accordingly he may not be sentenced to the additional two years at hard labor under the provisions of § 14:95.2. We overrule our earlier decision in State v. Roussel, 424 So.2d 226 (La.1983), which held, to the contrary, that an accused need not be charged under § 14:95.2.
Art. 893.1, on the other hand, appears in the Louisiana Code of Criminal Procedure within Title XXX, “Sentence,” Chapter 2, “Suspended Sentence and Probation.” It is a sentencing statute (“Art. 893.1- — Use of firearm in commission of a felony; sentencing”). It does not define a crime, and it does not prescribe a penalty. It rather limits a judge’s sentencing discretion when felonies (those where “suspension of sentence is not otherwise prohibited”) are committed with a firearm, by providing a minimum sentence, and restrictions thereon (without benefit of parole, etc.) within the penalty framework of the statutory crime committed.
It is evident that the Legislature did not perceive art. 893.1 as charging a crime, for it entrusted to “the court” alone the sentencing authority, rather than to the jury or judge, the trier of guilt or innocence, the responsibility for “finding” the firearm use. Because art. 893.1 is only a sentencing statute — and of course a defendant is charged with knowledge of the law — it is not imperative that a defendant be charged with firearm use for him to be exposed to the penalty provided in part by art. 893.1.
|7For these reasons a defendant need not be charged in a bill of information or indictment with firearm use to trigger art. 893.1’s penalty enhancement provisions.
An accused is entitled to know in advance of trial by receipt of a written notice from the prosecutor that the state intends to invoke art. 893.1 by calling on the trial judge prior to sentencing to make a finding that a firearm was used in the commission of the charged felony. Absent such pre-trial notice, the penalty enhancement provision contained in art. 893.1 shall not be applied.

Id. at 268-71 (footnotes omitted).

The court then held that because the bill of information did not charge the defendant with violating La.R.S. 14:95.2, and applying La.Code Crim.P. art. 893.1 unfairly prejudiced the defendant, neither La.R.S. 14:95.2 nor La.Code Crim.P. art. 893.1 could be applied in sentencing the defendant.

We find La.R.S. 14:64.3 is more akin to La.R.S. 14:95.2 in that it does define criminal activity and provide for a supplemental penalty. Accordingly, the State was required to list the provision in the bill of information.

Recently, in Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 739, 154 L.Ed.2d 588 (2003), the United States Supreme Court summarized its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) stating, in pertinent part:

Our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), clarified what constitutes an “element” of an offense for purposes of the Sixth Amendment’s jury-trial guarantee. Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact — no matter how the State labels it — constitutes an element, and must be found by a jury beyond a reasonable doubt. Id., at 482-484, 490, 120 S.Ct. 2348.

Inasmuch as use of a firearm under La.R.S. 14:64.3 can increase the penalty imposed for armed robbery, use of a firearm, under Apprendi and Jackson, would be considered an element of the offense that must be proven by the State and a factual | ¡^determination regarding the issue made by the trier of fact. We find there is nothing that indicates a separate verdict is required before a defendant’s sentence can be enhanced under La.R.S. 14:64.3.

The jury instructions found in the record read, in pertinent part:

The defendant is charged with armed robbery of Jason Hendricks, wherein a firearm was used as the dangerous weapon during the commission of the offense, in violation of R.S. 14:64 and 14:64.3, it being alleged that the offense occurred on or about February 8, 2001.
Armed robbery is the taking of anything of value belonging to another from the person of another or which is in the immediate control of another, by use of force or intimidation, while the offender is armed with a dangerous weapon.
Anything of value must be given the broadest possible construction including any conceivable thing of the slightest value.
A dangerous weapon includes any instrumentality which, in the manner used, is calculated or likely to cause death or great bodily harm.
Thus, in order to convict the defendant of armed robbery, you must find:
(1) That the defendant intentionally took something of value belonging to another; and
(2) That the thing of value taken was in the possession or in the immediate control of Jason Hendricks when it was taken; and
(3) That the defendant used force or intimidation against Jason Hendricks in order to accomplish the taking; and
(4) That the defendant was armed with a dangerous weapon.

In State v. Walker, 01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, writ denied, 01-1922 (La.5/10/02), 815 So.2d 834, the defendant alleged the issue of whether his offense fell within the provisions of La.R.S. 14:64.3 was a factual determination to be made by the jury and not the trial judge. ■ Prior to trial, the State filed in the record written notice of its intention to utilize La.R.S. 14:64.3. However, there was no mention of the statute in the bill of information and there was no indication in the 19record that the statute was mentioned to the jury or that the court gave instructions to the jury regarding its application. Additionally, the defendant did not request that the jury be instructed as to the provisions of La. R.S. 14:64.3. The fifth circuit noted the following:

Given the Supreme Court’s holding in Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], our relevant inquiry is whether La. R.S. 14:64.3 requires a factual determination, and if so, whether that determination increases the sentence beyond the maximum statutory penalty provided by La. R.S. 14:64.
The statute clearly requires a factual determination as to whether the armed robbery was committed using a firearm as opposed to some other dangerous instrumentality. We find noteworthy that both defendant and the jury were put on notice that the state intended to prove the armed robberies were committed with a firearm. The bill of information, which was read to the jury at the commencement of trial, specifically alleges that defendant committed the offenses with a gun. Moreover, the state filed written notice prior to trial, alerting defendant to the fact that it intended to utilize the provisions of LSA-R.S. 14:64.3. The only weapon mentioned by prosecution witnesses was a gun. Therefore, since the jury found defendant guilty as charged on both counts, it can be reasonably inferred that the jury (i.e., the trier of fact) found that the dangerous weapon used in the commission of the armed robberies was a gun.

Id. at 91.

In the case at bar, La.R.S. 14:64.3 was listed in the bill of information, the jury was instructed that a firearm was used as a dangerous weapon, and the only weapon mentioned at trial was a firearm. Based on the jury instructions in the case at bar, the jury’s verdict of “guilty as charged,” and the fifth circuit’s ruling in Walker, we find that the jury could have reasonably inferred that the dangerous weapon used in the armed robbery at issue was a firearm. Accordingly, we find that the jury was not required to render a separate verdict under La.R.S. 14:64.3 and the jury was properly instructed regarding the Defendant’s use of a firearm.

jjjYERDICT SHEET AND RESPONSIVE VERDICTS

Louisiana Code of Criminal Procedure Article 814(22) provides the following responsive verdicts for armed robbery:

Guilty.
Guilty of attempted armed robbery.
Guilty of first degree robbery.
Guilty of attempted first degree robbery.
Guilty of simple robbery.
Guilty of attempted simple robbery.
Not guilty.

The verdict sheet in the case at bar listed the responsive verdicts as found in La. Code Crim.P. art. 814.

We find there are no proposed responsive verdicts listed in La.Code Crim.P. art. 814 for a violation of La.R.S. 14:64.3. The Defendant contends the court should have used the list of responsive verdicts proposed in the LOUISIANA Civil Law Treatise, Criminal Jury Instructions, which provides for the following responsive verdicts when a defendant has been charged under both La.R.S. 14:64 and La.R.S. 14:64.3:

Guilty
Guilty of Attempted Armed Robbery
Using a Firearm
Guilty of Armed Robbery
Guilty of Attempted Armed Robbery
Guilty of First Degree Robbery
Guilty of Attempted First Degree Robbery
Guilty of Simple Robbery
In Guilty of Attempted Simple Robbery
Not Guilty.

Joseph, ET AL. at 155.

The jury instructions given in the case at bar indicate the jury was instructed that the Defendant was charged with armed robbery wherein a firearm was used as a dangerous weapon. Accordingly, the jury was instructed that the dangerous weapon used was a firearm. Furthermore, as previously indicated, the only evidence presented to the jury in this case regarding a dangerous weapon was that the Defendant was armed with a gun. We find the responsive verdicts in this case were not incorrect based on the instructions given to the jury and the fact that no testimony regarding any other type of dangerous weapon was presented to the jury.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court erred in failing to suppress the out of court identifications of the Defendant.

The Defendant filed a motion to suppress identification on June 20, 2001. On March 18, 2003, the Defendant filed a motion to suppress identification, testimony, and evidence. The matters were set for hearing several times, but were eventually referred to the merits. The court notes the victim, Jason Hendricks, identified the Defendant on February 8, 2001, and again on February 9, 2001. Additionally, Mr. Hendricks made an in-court identification of the Defendant at trial. It is the identifications made on February 8, 2001, and February 9, 2001 that are at issue herein. In brief to this court, the Defendant does not set forth any allegations that the in court identification was improper.

hgOn two separate occasions, Jason Hendricks identified the Defendant as the man who robbed him. Jason Hendricks testified that after he was robbed on February 8, 2001, he returned to Domino’s Pizza. Officer Chris Wright, who responded to a call reporting the robbery, overheard Mr. Hendricks give a description of the perpetrator as a black male with a thin face, approximately twenty years old, wearing dark colored wind pants and a stocking cap. Approximately thirty minutes after the robbery, Mr. Hendricks testified that Officer Wright presented him with pictures of three black males. Officer Wright showed Mr. Hendricks the photographs and instructed him to look at the photographs and make a decision as to whether he recognized any of the men as the man who robbed him. Mr. Hendricks identified the Defendant as the man who robbed him. On February 9, 2001, Officer Wright gave the photograph of the Defendant to Detective Marvin Hilton with the Vernon Parish Sheriffs Office. Mr. Hendricks went to the Vernon Parish Sheriffs Office on the same day and was shown a photographic lineup consisting of photographs of six men. Mr. Hendricks again identified the Defendant as the man who robbed him.

Prior to the close of trial, defense counsel argued that he had not been allowed to cross examine and confront the evidence put forth to the jury because the photographs presented to Jason Hendricks on February 8, 2001, other than that of the Defendant, were not available at trial. Furthermore, there was no testimony that those photographs matched the description given by Mr. Hendricks. Accordingly, the initial identification of the Defendant was suggestive and any subsequent identification was, therefore, tainted. Additionally, only the photograph of the Defendant in the lineup presented to Mr. Hendricks on February 9, 2001, matched the description given by Mr. Hendricks. The State then presented its argument. In rebuttal, defense counsel argued that the court could not make a ruling as to whether |iathe initial identification was suggestive because all the photographs presented to Mr. Hendricks were not available.

The court then made the following ruling:

problem I have is categorizing the showing of the photographs at the pizza parlor as a lineup. There is a line of cases where the arresting officers can actually arrest a defendant when he’s apprehended in the proximity of the scene of a crime and return in custody to the witness and ask for the witness to identify that person. I can’t imagine anything more suggestive than that. But that procedure has been upheld by the Supreme Court. This is a similar circumstance where this defendant was seen in the proximity of the offense before the offense was committed and then exhibited a photograph of the defendant within thirty minutes of the alleged offense and I think that meets the criteria established in that line of cases where they can do that. Now, there were two or three other — two other photographs exhibited or maybe different views of two other persons, I think that’s irrelevant.

Defense counsel then argued that Officer Wright conducted a photographic lineup. The judge then denied Defendant’s motion to suppress. Defense counsel objected to the trial court’s ruling.

In brief to this court, the Defendant contends the photographs shown to Jason Hendricks by Officer Chris Wright on February 8, 2001, were not compiled using the ordinary procedure for photographic lineups. Additionally, because the photographs were not presented by the State at trial, the Defendant was deprived of an opportunity to have the court examine the photographs in order to determine if they were unduly suggestive. The Defendant also argues that having photographs of three individuals is, in and of itself, overly suggestive. The Defendant also contends the photographic lineup conducted at the Vernon Parish Sheriffs Office on February 9, 2001 was tainted by the prior suggestive identification inasmuch as the photograph Mr. Hendricks selected on February 8, 2001, was used in the photographic lineup at the Sheriffs Office.

The defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Crim. Proc. art. 703D. To suppress |14an identification, the defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proved by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, supra.
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court held that an identification may be permissible, despite the existence of a suggestive pretrial identification, if there does not exist a “very substantial likelihood of irreparable misidentification.” The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114, 97 S.Ct. 2243.

State v. Broadway, 96-2659, p. 14 (La.10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

FEBRUARY 8, 2001

We will first discuss the February 8, 2001 identification. The State admitted at trial that it did not have the two additional photographs shown to Jason Hendricks on February 8, 2001. Accordingly, the photographs were not available for the trial court’s consideration. Therefore, for the purposes of this opinion, we will presume the identification procedure used by Officer Wright was suggestive. In addition to proving that the identification procedure was suggestive, the Defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. We will now address the Manson factors in order to determine whether, under the totality of the circumstances, the suggestive nature of the photographs presented a substantial likelihood of misidentification.

^Opportunity to View the Criminal at the Time of the Offense

Although there was some dispute as to the amount of lighting at the crime scene, Mr. Hendricks testified that he had no problems seeing that night. Mr. Hendricks testified that there was a street light behind him and a light on at the entry to 1206 Dogwood Circle. Mr. Hendricks further testified that the light from 1206 actually illuminated the right front of the Defendant’s face and the area where the Defendant reached down to pick up the money was very clear. Hendricks clearly saw the Defendant from the time the Defendant picked up the money until he jogged away, which was approximately forty to sixty seconds.

We find that Jason Hendricks had ample opportunity and time to view the Defendant during the robbery and was able to give a description to police thirty minutes after the robbery.

Witness’ Degree of Attention

Jason Hendricks testified that upon being employed by Domino’s Pizza he was required to watch seven to eight videotapes. In those tapes, Mr. Hendricks was taught to remain calm and focus on the perpetrator’s face during a robbery so that he could give a description of the perpetrator to police. Again, Mr. Hendricks testified that his view of the Defendant was not obstructed and the Defendant was six to seven feet away from Mr. Hendricks for approximately forty to sixty seconds.

We find Jason Hendricks’ testimony indicated he had specialized training and paid ample attention to the Defendant’s appearance at the time of the robbery. Accuracy of the Witness’ Prior Description of the Criminal

Mr. Hendricks testified that he described the perpetrator as a “black male approximately 6 foot tall, maybe he’s just slightly taller, around 20 — about 20 years old, very thin, very thin faced, longer face, with very distinctive facial features” |16wearing “black nylon wind pants, a dark colored long sleeve sweat shirt or jacket and a navy blue stocking cap.” Detective Steven Moss with the Vernon Parish Sheriffs Office testified that Mr. Hendricks described the perpetrator as a black male, twenty to twenty-two years old, thin faced, and wearing black or dark colored wind pants, a dark colored, possibly blue stocking cap, and a dark colored long sleeve shirt.

We note Mr. Hendricks’ description of the person who robbed him never changed. Additionally, Detectives Moss and Hilton testified that the description given by Mr. Hendricks matched that of the Defendant. Furthermore, Mr. Hendricks made an in-court identification of the Defendant at trial.

Level of Certainty Demonstrated at the Confrontation

Mr. Hendricks testified that'he reviewed the photographs shown to him on February 8, 2001, very carefully so as not to falsely accuse anyone. After viewing the photographs, Mr. Hendricks was one-hundred percent positive that the Defendant was the man who robbed him. Officer Wright testified that Mr. Hendricks did not hesitate in selecting the Defendant’s photograph.

Time Between the Crime and the Confrontation

Mr. Hendricks gave a description to Officer Wright on February 8, 2001 approximately twenty to thirty minutes after he was robbed. We submit that the amount of time that elapsed between the robbery and the identification of the Defendant was not substantial.

We find the factors set forth in Manson are satisfied in this case. Even if the February 8, 2001 identification procedure was suggestive, there was no substantial likelihood of misidentification by Jason Hendricks and the Defendant has not proven that the identification was unreliable. Accordingly, the trial court properly denied the Defendant’s motion to suppress the identification made on February 8, 2001.

[^February 9, 2001

We will now discuss whether the photographic lineup conducted on February 9, 2001, was suggestive. The lineup at issues consisted of six photographs each depicting a black male.

The Defendant contends the lineup conducted on February 9, 2001, was tainted because Detective Hilton used the same photograph of the Defendant that Jason Hendricks had selected the previous night.

In State v. Neslo, 433 So.2d 73 (La.1983), only the defendant appeared in both a second photographic lineup and a live lineup. The court noted that “[sjince only the defendant appeared in both the photographic and the physical lineups, there is the possibility of suggestion; that the witnesses might have remembered the defendant from the photograph and not from the night of the crime.” Id. at 78. One of the witnesses testified that she had not remembered the defendant from the photographs and the other witness was not sure any of the people in the physical lineup had also been in the photographs. The court held that the identification procedure was not unduly suggestive noting that the persons in the photographic lineup and the physical lineup sufficiently resembled the defendant to properly test the identification.

In State v. Tate, 454 So.2d 391 (La.App. 4 Cir.1984), the defendant argued that the identification procedures were suggestive because only the defendant appeared in both the physical lineup and photographic lineups. The court held that the identification procedure was not suggestive inasmuch as each of the police officers took particular care in selecting photographs or “fill-ins” whose facial features and general physical characteristics resembled that of the defendant and each officer meticulously avoided any actions which could have influenced or even appeared to influence the identification.

In State v. White, 446 So.2d 1317 (La.App. 2 Cir.), writ denied, 450 So.2d 957 (La.1984), the defendant argued that a live lineup was suggestive because he was the only person exhibited in both it and the photographic lineup. The court held that the live lineup was not suggestive, pointing out that the victim testified that she did not think about the photos at the time she viewed the live lineup and based her identification solely on her memory of the defendant at the time of the crime.

In State v. Calloway, 97-796 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, the defendant contended that the identification procedure was suggestive. The defendant argued that the victim chose him from a physical lineup because the victim had previously seen the defendant’s photograph in two photographic lineups. The court concluded that the identification procedure was not suggestive noting that the victim did not identify anyone in the two photographic lineups and the record did not support the defendant’s argument that the victim recognized the defendant at the physical lineup based on his inclusion in the photographic lineups.

Based on the above cited eases, we conclude that the lineup conducted on February 9, 2001 was not suggestive merely because the lineup contained the photograph of the Defendant that Mr. Hendricks viewed the previous night. Mr. Hendricks testified that it did not matter that the picture of the Defendant was displayed to him on February 8, 2001. He testified that he looked at the face alone when he chose the Defendant from the lineup on February 9, 2001. Additionally, Detective Hilton testified that he did not make any suggestion to Mr. Hendricks and no one prompted Mr. Hendricks to select the photograph of the Defendant.

The trial court properly denied the Defendant’s motion to suppress the identification made on February 9, 2001. This assignment lacks merit.

1 ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends the trial court erred during its instructions to the jury by omitting the definitions of attempted first degree robbery and attempted simple robbery.

Again, we note the jury instructions were not recorded by the trial court as required by La.Code Crim.P. art. 843. However, the record does not reveal that defense counsel objected to the instructions before, during, or after the instructions were given and at no time did defense counsel ask the judge to give any additional instructions to the jury. Accordingly, the Defendant is precluded from alleging error in the instructions on appeal. State v. Sykes, 03-397 (La.App. 3 Cir. 10/8/03), 857 So.2d 638.

CONCLUSION

The Defendant’s conviction is affirmed. However, the sentence imposed pursuant to La.R.S. 14:64.3 should be amended by deleting the provision requiring the sentence to be served at hard labor. The case is remanded and the trial court is instructed to correct the minutes of sentencing accordingly.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.