text:
    J. Lindhe GUARISCO, M.D., Martha Guarisco, John L. Wilson, Elizabeth Wilson, Rennie Culver, Richard A. Mills, and South Sena Drive Civic Association v. JEFFERSON PARISH ZONING APPEALS BOARD, Donald W. Wood, Sr.
    No. 04-CA-148.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      J. Kendall Rathburn, Raymond B. Landry, Moliere, Flanagan & Landry, L.L.C. Metairie, LA, for Plaintiffs/Appellants.
    Thomas G. Wilkinson, Parish Attorney, Philip A. Gattuso, Assistant Parish Attorney, Gretna, LA, For Defendant/Appellee, the Jefferson Parish Zoning Appeals Board.
    William P. Connick, Michael S. Futrell, Connick & Connick, L.L.C., Metairie, LA, for DefendanVAppellee, Donald W. Wood, Sr.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

This case concerns a variance granted by the Jefferson Parish Zoning Appeals Board. Appellants are homeowners and neighbors of appellees, Mr. and Mrs. Donald W. Wood, Sr., to whom the Jefferson Parish Zoning Appeals Board granted a variance regarding the construction of the roof of their home at 213 Sena Drive in Metairie. Following this action, the appellants appealed to the 24th Judicial District Court as per LSA-33:4727(E), who found that the Jefferson Parish Zoning Appeals Board committed no abuse of discretion in granting the Woods the variance. Appeal to this court followed. On appeal, appellants assign the following errors:

1. The trial court, acting in an appellate capacity, erred by assuming “facts” which were never part of the record;
2. The trial court erred by making its own findings of fact that differed from the explicit findings of the Jefferson Parish Zoning Appeals Board;
i. The Board granted the Woods a variance without making a finding that the approval would not cause any diminution of property value of any |4surrounding property or would not alter the essential character of the locality;
ii. The Woods were granted a variance without a finding by the Board that the variance would tend to preserve and advance the prosperity and general welfare of the neighborhood and community;
iii. The Board made no finding that the approval of the variance, if granted, would not be detrimental to the public welfare or seriously affect or be injurious to other property or improvements in the neighborhood in which the Woods’ property is located, and that it would not impair an adequate supply of light and air or cause other nuisances.
3. The trial court erred in its interpretation of the crucial term “special conditions and circumstances” found in sub-part 4 of C.Z.O. section XXII 3B.
4. The district court erred when it allowed the Zoning Board to unconstitutionally refuse to enforce the relevant zoning ordinance.

Mr. and Mrs. Donald W. Wood, Sr. submitted plans to the Jefferson Parish Department of Inspection and Code Enforcement for the residence they intended to build at 213 Sena Drive. According to the appellants, the plans called for a hip-type roof forty-five feet (45) in height, which were approved and a building permit issued. During the construction at some point, the roof was reframed with a different shape and pitch, though not with a different height than what was previously approved, without the submission of the new design to the Department of Inspection and Code Enforcement. Appellants allege that the new roof design was a more imposing “mansard” style roof and was thus in violation of the C.Z.O., which provides that mansard type roofs are limited to maximum height of thirtyfive (35) feet.

After receiving numerous complaints from adjacent property owners, the Department of Inspection and Code Enforcement visited the site and on October 29, 2002, issued a citation for height violation. The Woods appealed the citation to the Jefferson Parish Zoning Appeals Board. At a hearing on December 16, 2002, |Bthe Woods presented drawings of the modified plan. Appellants alleged that these drawings, which were of a front view only, did not accurately reflect the actual changes in the roofs shape and slope. The Woods also presented signatures of “no opposition” from several neighbors, which the appellants alleged were based upon the inaccurate elevation drawing noted above, though those neighbors who allegedly felt misled did not appear at the hearing. Counsel for the Woods argued that the Code ordinances were ambiguous regarding the differences between a hip roof and a mansard roof, a position that was countered by appellants’ representative, who argued that no qualified expert could disagree that the new roof was of the mansard type, though the opposition presented no qualified expert.

The Jefferson Parish Zoning Appeals Board granted the variance, noting that it found the Code was ambiguous regarding the definition of the different roof types. The Board noted that the overall height of the roof would be the same as indicated on the original construction plans that were approved for a building permit, and that construction was three-quarters complete. The Board’s judgment was signed and filed on December 19, 2002. The Board issued a clarification in its Reasons for Judgment, which was signed and filed on January 6, 2003. This clarification did not alter the substance of the judgment granting the variance, but added information regarding the exact measurement of the roof height.

Appellants then filed suit for appellate review with the district court on January 21, 2003. Requests for additional discovery were denied. Hearing was held on October 3, 2003, and following arguments of counsel for the Association, appellee, and Zoning Board, the trial court ruled in favor of the Jefferson Parish Zoning Appeals Board, upholding the variance granted to the Woods, in oral reasons issued from the bench. Judgment was signed on October 7, 2003. This appeal followed.

| fiThe parties all agree that Comprehensive Zoning Ordinance (hereinafter referred to as C.Z.O.) Section XXII 3B is the applicable ordinance. It states the following:

In the consideration of all appeals and all proposed variances and/or exceptions, under the terms of this ordinance, the Board shall not grant approval unless it makes a finding, based upon the evidence presented to it, that each case shall indicate all of the following:
a. The approval, if granted, will not cause any diminution or depreciation of property values of any surrounding property or will not alter the essential character of the locality-
b. The approval, if granted, will tend to preserve and advance the prosperity and general welfare of the neighborhood and community.
c. The approval, if granted, will not be detrimental to the public welfare or seriously affect or be injurious to other property or improvements in the neighborhood in which the property is located, in that it will not: impair an adequate supply of light and air; or increase substantially the congestions in the public streets, create a traffic hazard, or permit inadequate parking; or increase the danger of fire; or substantially affect or overburden existing drainage or sewerage systems; or otherwise endanger the public safety; or cause serious annoyance or injury to occupants or adjoining premises by reason of emission of odors, fumes, gases, dust, smoke, noise or vibration, light or glare, or other nuisances.

Additionally, the Board shall not grant approval of any variance unless it makes a further finding that each case shall indicate the following:

d. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district; and the special conditions and circumstances do not result from the intentional actions of the applicant
or any other person who may have or had interest in the property; and the strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner as distinguished from mere inconvenience; or
|7e. Literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance; and granting the variance requested will generally not confer on the applicant any special privilege which is denied by this ordinance to other lands, structures, or buildings in the same district or similarly situated; and the purpose of the variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party.

(Ord. No. 20783, § S(XXII(3)), 9-22-99; .Ord. No. 21734, § 22,12-11-02).

The Appellants argue first that the district court based its judgment that the Woods would suffer a “demonstrable hardship” (as per Section d. of C.Z.O. Section XXII(3) as reprinted below) if they must tear down their roof on facts not contained in the record of the proceeding before the Jefferson Parish Zoning Appeals Board. Specifically, the district court found, at the hearing held on October 3, 2003, that the Woods would suffer a demonstrable hardship if forced to tear down their roof because they had a school age child and would have to rent another property in which to live while the roof was redesigned and reconstructed. Appellants argue that the Jefferson Parish Zoning Appeals Board’s record is devoid of any evidence regarding the Woods’ child or their alleged need to move out and rent a property-while the roof was reconstructed.

Appellants argue that the district court, sitting as an appellate court of review over the Jefferson Parish Zoning Appeals Board, was bound, as any appellate court, to rely solely on the record before it. Since the district court denied further discovery in this matter, appellants argue that the court’s conclusion of demonstrable hardship, based upon facts not in the record, constitutes manifest error and the court’s judgment affirming the variance must be reversed, or in the alternative, the judgment vacated and matter remanded for an evidentiary hearing. [sThe appellants argue that considering facts in the record, the most the Woods have shown is an economic hardship (the expense of tearing down the roof), which does not qualify as a demonstrable hardship under the C.Z.O., but merely an inconvenience.

Our thorough review of the record shows that no evidence was introduced or argued before the Board or the District Court regarding the Woods’ child or the alleged necessity to rent another residence while the roof was constructed. The trial court, however, based its finding that the Board considered the factors in paragraph d of the ordinance with additional reasons:

With regard to requirement Four, the Board’s expert, Mr. Williams, went to great length to explain that the overall height of the roof had not changed; that there are various definitions of Mansard roofs. That is was very questionable to him whether or not this was a Mansard versus a Hip roof. And that if they found it to be a Hip roof, then there wouldn’t have been a variance required. As mentioned in argument, the Secretary of the Board mentioned that at the very close of the meeting.
Also that the Woods did not intentionally, the Board found that the Woods did not — when they were in their discussion — that the Woods did not intentionally seek to trick the Parish or the neighbors. That the Woods thought that since it was similar in design and of the same height, the roof continued to comply with the plans as approved.
As to demonstrable hardship. The Board’s pamphlet does note as through the cases that economic reasons alone do not constitute a hardship. In this case though the homeowners would have been required to rip off a roof, rent another property, live in another property with their small child who is still of grammar school age, while a new roof was designed and constructed. That is demonstrable hardship upon the owner rather than mere inconvenience.

We find that the trial court’s ruling was adequately based upon evidence contained in the record of the proceeding before the Jefferson Parish Zoning Appeals Board, notwithstanding its inclusion of facts not of record.

The Appellants argue that under Jefferson Parish C.Z.O. Section XXII 3B, the Board must make certain mandatory findings of fact before granting a variance, and that 1) the Board failed to make the requisite findings, but instead made | afindings other than what the C.Z.O. requires, and 2) if it had made the requisite findings, granting the variance would have constituted an abuse of discretion.

Appellants argue that the Board failed to make these requisite findings. Our review of the hearing before the Board shows that while they granted a variance, this variance rested primarily on the interpretation of the C.Z.O. and the Board’s feeling that the definition of mansard roof in the C.Z.O. was too vague to enforce in this case. The Board also considered that the approved plans showed a roof height of 45 feet that remained the same after the roofs structural change.

The transcript of the hearing shows that several neighbors came forward and voiced their opposition to the new roof shape. Their objections were that the roof caused the house to look like a hotel, that the house was too large for the lot, and that the character of the neighborhood was being destroyed by the erection of these large imposing homes that towered over other older, smaller homes. One neighbor expressed her concern that her backyard was visible from the Woods’ third story windows and thus her backyard’s privacy was compromised. None of the neighbors opposed the roof variance on any of the factors in paragraph C above.

LSA-R.S. 33:4727(E) contains no affirmative requirement that the Board’s ruling use “magic words” that track the statute or must specifically mention each factor in its ruling. The hearing transcript shows that the Board did hear testimony about the factors in paragraphs a and b, and considered the testimony of witnesses, the arguments of counsel, and photos of other homes on the same blocks as the Woods’ home, before concluding that the variance would not cause the diminution of property values in the neighborhood nor be out of character with other homes on the street. As far as paragraph c, the record shows that the roof height variance did not concern any factor listed in that paragraph, and the opposition to the variance was not made upon any of those factors. Therefore, we decline to find that the Board abused its discretion when it did not specifically mention the factors in | inparagraph a, b, or c in its ruling. Additionally, we find that the trial court was not manifestly erroneous when it found it “abundantly clear” that the Board considered factors a, b, and c when it used the “catch-all” phrase “all factors in affecting the neighborhood,” all of which are subsumed in paragraphs a, b, and c. We respectfully disagree with the appellants’ contention that there is nothing in the record that, indicates the Board considered these factors.

In support of their position, regarding' the factors in paragraph d, that economic reasons do not constitute demonstrable hardship, the appellants cited two cases in oral argument: Pierce v. Parish of Jefferson, 95-719 (La.App. 5 Cir. 1/17/96), 668 So.2d 1153, and Parish of Jefferson v. Davis, 97-1200 (La.App. 5 Cir. 6/30/98), 716 So.2d 428. These cases can be distinguished, however. In Pierce, the Jefferson Parish Zoning Appeals Board denied a variance to construct a carport within the mandatory front and side property line setbacks, finding that it would set an undesirable precedent in the neighborhood, and that appellant did not prove that his needs would satisfy the criteria'for a variance. His “inability” to ¿uild the carport elsewhere was due to his construction of other structures on his lot. Additionally, he failed to show that other carports in the neighborhood were in similar violation of the set-back ordinances. The Jefferson Parish Zoning Appeals Board’s denial was affirmed by both the district court and this Court, which found that the ruling of the Jefferson Parish Zoning Appeals Board was not an abuse of discretion. In this case, the Woods’ variance was granted by the Jefferson Parish Zoning Appeals Board and affirmed by the district court upon a finding, among others, that the roof as built did conform to other structures built in the neighborhood.

Likewise, in Davis, the sole issue presented was whether the homeowner was in bad faith in obtaining a permit to build an additional floor to an accessory In building (garage). Davis applied for and received a variance to construct a structure with a certain height. Inspection revealed that Davis’s structure exceeded the approved height, at which time a stop work order was issued and Davis ordered to bring his building in compliance with his approved plans. Davis requested another variance to have the height increase approved, which was denied. The district court and court of appeal affirmed. In this case, the Woods’ plans were approved for the same height as actually built, and both the Jefferson Parish Zoning Appeals Board and the district court specifically found that the Woods were in good faith despite not having the new roof design re-approved.

The district court, in finding that the Woods bore their burden of proof regarding paragraph d or e, noted that the Jefferson Parish Zoning Appeals Board found that the C.Z.O.’s definition of “mansard” roof was vague and thus unenforceable. The evidence shows that the word “mansard” is used only once in the C.Z.O. and reads as follows:

Building, height of shall mean the vertical distance measured from the average elevation of the grade at the front of the building to the highest point of the coping of a flat roof, to the mean height level between eaves and ridge for gable, hip and gambrel roofs, and to the deck line of a mansard roof.

A page with line drawings of the various roof types was introduced at the Jefferson Parish Zoning Appeals Board hearing and was purported to be published by the Department of Inspection and Code Enforcement, and which is attached to this opinion. Mr. David Williams, an employee of the Parish Department of Inspection and Code Enforcement, testified that he found the C.Z.O.’s definition and his department’s measuring requirements to be problematic and poorly defined. He stated that the Department was currently working to better define the roof types to make them easier to measure in the future. One aspect of the | ^ambiguity was that the different roofs’ heights were measured from different points, depending on the type of roof, and those different points were also not well defined.

Appellants contend that the Jefferson Parish Zoning Appeals Board refused to tackle the findings that were necessary for the variance, and was more concerned with the cost of litigating the issue against the Woods. We disagree with this position. As noted above, we find that the Board properly considered all the criteria necessary for a variance and such considerations are clearly expressed in the hearing transcript. Further, the Department of Inspection’s own Mr. Williams expressed that that very Department had trouble with the application of the roof-type definitions and measuring requirements. The Jefferson Parish Zoning Appeals Board clearly considered the difficulties as expressed by the very department in charge of enforcing the ordinance’s roof requirements when applied to the specific facts of the Woods’ case and style of roof. Mr. Williams could not categorize the Woods’ roof as definitely mansard or hip or flat, finding that it had characteristics of several types. This may not be exactly an “exceptional or unusual condition” of the Woods’ lot, as per paragraph d, but we find that this factor is a valid reason for the Jefferson Parish Zoning Appeals Board’s ruling.

Appellants argue that the Jefferson Parish Zoning Appeals Board is not empowered to find that an ordinance is too vague to enforce, and that their refusal to enforce this particular ordinance in this case is an unconstitutional action, citing Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982). Our review of the record, and our analysis above, indicates that the Board did not refuse to enforce this ordinance. It considered all the factors as required by C.Z.O. XXII (3B) and specifically granted the Woods a variance based upon the particular facts of this case, not the least of which was evaluating the specific design of the Woods’ roof against the definitions in the C.Z.O.

1 ^Accordingly, we affirm the judgment of the trial court that affirmed the ruling of the Jefferson Parish Zoning Appeals Board. Appellant is accessed cost of appeal.

AFFIRMED.

      . Appellants are several neighbors of the Woods, and also the South Sena Drive Civic Association.

      . Text from livepublish.municode.com.

      . Appellants note that it was their impression that the Woods did not yet live in the home and thus rental of another house was not an issue.

      . The printed version of the C.Z.O. the trial court referred to numbered paragraphs one, two, three, etc. The version of the C.Z.O. used in this opinion uses, a, b, and c, etc., though the text is not substantially different in meaning.

      . Code Of Ordinances Parish of Jefferson, Louisiana Codified through Ord. No. 22159, enacted March 31, 2004. (Supplement No. 60, Update 2), Chapter 40 ZONING, ARTICLE I. IN GENERAL, Sec. 40-3. Definitions.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Diana Pertuit Wife of/and Joyle PERTUIT v. STATE FARM INSURANCE COMPANY and Eugene Folse.
    No. 04-CA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Daryl A. Higgins, T.A., Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Plaintiffs/Appellees.
    John E. Unsworth, Jr., Alayne R. Cor-coran, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

The defendant has appealed the trial court’s judgment in favor of the plaintiff. The plaintiff answered the appeal, seeking a change in the allocation of fault and an increase in damages. For the reasons that follow, we affirm.

FACTS:

The plaintiff, Joyle Pertuit, and the defendant, Eugene Folse, were long time friends, neighbors, and co-workers. They often worked on various projects together. In February, 2000, Mr. Folse sought assistance from Mr. Pertuit to move a garage from one portion of his property to another. In order to accomplish this, the men used jacks to lift the building, placed wooden blocks underneath, and then rolled the building on pipes. On February 29, 2000, when the building was very near the desired location, Mr. Pertuit was placing additional blocks under the front of the building when Mr. Folse lowered a jack causing the building to crush Mr. Pertuit’s hand. Mr. Pertuit has undergone extensive treatment for the injury sustained in this accident. He filed suit against Mr. Folse and his homeowner’s | .insurer, State Farm Insurance Company. This matter was tried before a judge who rendered a verdict in favor of Mr. Pertuit. This timely appeal followed.

At trial, Mr. Pertuit testified that he had worked at various jobs over the years in-eluding the maintenance department of American Can Company, the electrical department at Union Carbide, and as a bus driver for the Jefferson Parish School Board. Mr. Pertuit explained that after he became a bus driver, he continued to perform electrical and plumbing work on the side, as well as perform maintenance and repairs on his bus, his wife’s bus, and the couple’s rental property.

Mr. Pertuit testified that in moving this garage, he and Mr. Folse used jacks to jack up the building. He supplied two piston jacks and Mr. Folse supplied a floor jack. He explained that each man operated his own jack. Mr. Pertuit testified that before they started working they agreed that “we had to look at one another you know and verbally say what to do.” He further testified that they did this each and every time a jack was lowered. Mr. Pertuit testified that on the day of the accident, the building was within one foot of the desired location. Mr. Pertuit explained that they decided to stop working for the night, but after pointing out to Mr. Folse that a portion of the building was sagging, they walked back to the building to place more blocks under the sagging area. Mr. Pertuit testified that he was leaning over putting blocks under the building and the next thing he knew the building was.on his hand. He denied telling Mr. Folse to lower the jack. He explained that the force of the building landing on his hand caused his face and knee to strike the building. Mr. Folse helped to get his hand from under the building and took him to the emergency room.

Mr. Pertuit testified that after initially being told that he would lose two fingers on his right hand, a hand surgeon, Dr. Juan Escobar, stated that he could save the fingers, but it would be long and drawn out. Mr. Pertuit explained that he 14lost the tip of his index and long finger of his right hand and underwent eight total surgeries as a result of this accident. He explained that the pain in his hand was initially unbearable and later became tolerable. The fingernail of his index finger continued to attempt to grow and this caused infection and further surgical procedures.

Mr. Pertuit testified that several months after the accident he sought treatment for pain in his knee. He explained that during the initial months following the accident all attention was focused on his hand and although he felt knee pain immediately following the accident, he did not seek treatment for the knee pain until September 2000. He sought treatment from Dr. Chris Digrado for the knee pain, who diagnosed a tear of the medial meniscus, requiring arthroscopic surgery.

Mr. Pertuit also developed carpal tunnel syndrome in his right wrist following the accident, necessitating a surgical procedure on his wrist.

Mr. Pertuit testified that due to the injuries suffered in this accident, he suffered constant pain in his hand. He had loss of strength and coordination in his right hand, which was his dominant hand. This resulted in his being unable to do most of the handyman work he had performed prior to the accident and made it difficult to perform maintenance and repairs on his and his wife’s school busses. He testified that since the accident, he has been unable to jog, ride a bike, fish, hunt, bowl, dance for extended periods of time, and perform wood working. His hand is very sensitive to temperature changes, swells, and he has to wear a glove to protect his hand.

Mr. Pertuit testified that prior to the accident he supplemented his income by performing electrical work. He testified that his tax return for 1999 showed income of $4,340.00 for performance of electrical work. He estimated that he had lost approximately this same amount every year since the accident. Mr. Pertuit 1 ^testified that he had waited for several years for a maintenance position to open at Harvey Kindergarten School. When this position became available in January of 2008, he applied for the job. During the interview he was told he would have to perform painting and sanding of floors. When he was offered the job he initially accepted, then after further thought and fear that he could not perform all of the duties associated with this position, he declined the job. He testified that this job would have increased his income by $16,658.00 to $19,220.00 per year. He explained that since this job was also working for the school board, his retirement benefits would have been increased also.

Diana Pertuit testified that she had been married to Joyle Pertuit for 43 years. She testified that when she arrived at the hospital following the accident, her husband was in excruciating pain. A procedure was performed on her husband in the emergency room in which they cleaned up the wound and closed it, then they were sent home. She testified that she did not leave him alone for several weeks following the accident and accompanied him to all doctor visits. She explained that prior to the accident, Mr. Pertuit did “everything around the home”. Prior to the accident, they danced, ran, jogged, rode bikes, and took several vacations a year. However since the accident, he is unable to do many of these things.

Eugene Folse testified that he had worked with floor jacks for many years and owned the jack he was using at the time of the accident for about 10 years. He testified that at the time of the accident, he and Mr. Pertuit had agreed to stop working for the night and go home. Prior to leaving the worksite, they lowered the jacks. He did not recall any discussion about the building sagging, necessitating the placing of more blocks under the building.

Mr. Folse testified that “each and every time before this incident, there was an acknowledgement, there was a communication both verbal and visual to go |fiahead and lower the jack.” He testified however, that when he lowered the jack on Mr. Pertuit’s hand he had not checked to make sure it was ok to do so. He explained that he was unable to see Mr. Pertuit before he lowered the jack.

Mr. Folse testified that since this accident, Mr. Pertuit is unable to do any type of electrical and construction work.

Janet Folse testified that she had been married to Eugene Folse for 38 years. She witnessed the accident. Mrs. Folse testified that the men had just stated that they were going to go home for the night when Mr. Folse stated that he had to go let the jack down. At the time he went to put the jack down, Mr. Pertuit was “doing something”. She testified that she did not know why Mr. Pertuit had his hand under the building. Mrs. Folse further testified that Mr. Folse was not able to see Mr. Pertuit prior to lowering the jack, nor did he look around to see where Mr. Pertuit was prior to lowering the jack.

Dr. Juan Escobar was accepted by the court as an orthopedic surgeon with a specialty in plastic and reconstructive hand surgery. He explained that he first saw Mr. Pertuit in the emergency room following the accident on February 29, 2000. The accident had resulted in an amputation of the tip of the index and long fingers. He cleansed and closed the wound on the index finger and told Mr. Pertuit to return to his office. Dr. Escobar testified that Mr. Pertuit returned to his office on March 3, 2000 where he closed the wound on the long finger. On March 6, 2000, he did a skin graft on the long finger. On March 16, 2000, it was necessary to divide and re-insert the skin graft. Dr. Escobar explained that despite aggressive physical therapy, Mr. Pertuit developed contrac-tures in his index and long fingers. This required surgery to release the contrac-tures. Physical -therapy continued, but Mr. Pertuit showed minimal improvement. This necessitated another surgery in June 2000 in an attempt to increase the range of motion of Mr. Pertuit’s fingers. Dr. Esco-bar further explained that he had to perform two surgeries on Mr. Pertuit’s |7index finger to remove small portions of the fingernail that had become infected. Dr. Escobar testified that in September 2000, Mr. Pertuit had reached maximum medical improvement. He performed a disability assessment on Mr. Pertuit and concluded that he sustained 22% impairment of the hand, 20% impairment of the upper extremity, and 12% impairment of the whole person. Dr. Escobar testified that Mr. Pertuit was a compliant patient who put forth maximum effort in the disability assessment.

Dr. Escobar testified that he performed a carpal tunnel release on Mr. Pertuit. Dr. Escobar had a difficult time expressing his opinion on whether the carpal tunnel syndrome resulted from the accident. He explained that during the surgery he extracted a lipoma from the carpal tunnel. He explained that the swelling from the trauma of the accident probably caused the lipoma to swell resulting in the carpal tunnel syndrome.

Dr. Escobar’s medical records were admitted into evidence. These records corroborated his testimony.

The deposition of Dr. Chris Digrado was admitted into evidence. Dr. Digrado testified that Mr. Pertuit presented to his office in September 2000 complaining of pain in his left knee since an accident in February 2000. Dr. Digrado diagnosed a tear of the medial meniscus. He performed arthroscopic surgery on Mr. Pertuit. Dr. Digrado testified that he was unable to tell whether this injury was caused by the accident, but that Mr. Pertuit stated that he had no problem with his knee prior to the accident. Dr. Digrado agreed that if Mr. Pertuit had no pain prior to the accident, but had pain after the accident, the accident had to have “exacerbated the problem.”

A report from Steve Theriot, an accountant, was introduced into evidence. Mr. Theriot performed calculations on Mr. Per-tuit’s lost earnings ranging from a | Joss of $5,000.00 per year up to $20,000.00 per year. The lost earnings range from $163,720.00 to $304,667.00.

Defendants admitted a report from Dan Cliff, another accountant, into evidence. Mr. Cliff calculated lost wages of $1,216.6.00 per year, resulting in future lost wages ranging from $4,247.00 per year to $4,407.00 per year.

The medical records from Dr. D.C. Moh-not, a 'neurologist who treated Mr. Pertuit for headaches, were also admitted into evidence.

At the conclusion of trial, the trial judge rendered judgment in favor of Mr. Pertuit, assigning 80% fault to Mr. Folse and 20% fault to Mr. Pertuit. Mr. Pertuit was awarded $79,758.00 in medical expenses, $90,000.00 in general damages, $142,127.00 in lost wages/loss of earning capacity. Mrs. Pertuit was awarded $6,500.00 for loss of consortium.

ASSIGNMENTS OF ERROR AND DISCUSSION:

In their first Assignment of Error, the defendants argue the trial judge committed manifest error in assigning only 20% fault to Mr. Pertuit. Defendants contend this was an inherently dangerous activity and Mr. Pertuit had superior knowledge of this activity since he had previously moved buildings in this manner. Defendants argue that Mr. Pertuit should have known that Mr. Folse was going to lower the jack because they had completed operations for the day. Defendants conclude that Mr. Pertuit should be assessed at least 50% fault.

Mr. Pertuit answered the appeal arguing that he should be found free of fault. He contends that the two men had a verbal and visual protocol for lowering the jacks that they had followed the entire time they had worked on this job except at the time of the accident.

In written reasons for judgment the trial judge stated:

|B... this Court finds the activity in which the plaintiff sustained injury is inherently dangerous. Whenever an object such as a shed is being moved from one location to another, a risk of injury is present. The plaintiff, Joyle Pertuit, sustained his injuries when the defendant, Eugene Folse, lowered a jack without verbal clearance from Pertuit, which caused the shed to fall on Per-tuit’s hand. While the [sic] Folse’s action caused the injury, the testimony clearly asserts that Pertuit had the knowledge and expertise to be aware of the potential of such an accident as the one sustained. Due to the inherently dangerous nature of the activity in which the plaintiff sustained injuries, this Court finds both parties at fault and attributes Folse 80% at fault and Pertuit the remaining 20%.

Our review of the testimony indicates that the trial judge’s allocation of fault is supported by the testimony. Both men testified that before they started the job of moving the shed, they established a protocol whereby they would seek verbal and visual clearance prior to lowering a jack. Mr. Pertuit testified that just prior to the accident, he pointed out an area of the shed that was sagging to Mr. Folse, stating that additional blocks needed to be placed in this area. Mr. Folse had no recollection of this conversation, but admitted that he did not remember all of the events surrounding the accident. Mr. Folse testified that when he lowered the jack at the time of the accident, he did not seek verbal clearance from Mr. Pertuit, nor could he see Mr. Pertuit. Mrs. Folse denied knowledge of the conversation regarding the need for additional blocks under the area of the shed that was sagging, but did testified that Mr. Folse was unable to see Mr. Pertuit at the time he lowered the jack. The trial court’s finding that Mr. Folse was comparatively negligent is supported by the fact that Mr. Folse placed his hand under the raised garage without advising Mr. Pertuit and assuring himself that it was safe. We find that the process of moving a shed in this manner is inherently dangerous and Mr. Pertuit voluntarily took part in this project. Thus, we find no error in the trial court’s ruling finding Mr. Folse 80% at fault and Mr. Pertuit 20% at fault.

In their second Assignment of Error, the defendants contend that trial court erred in awarding $142,127.00 damages for lost wages/loss of earning capacity to |10Mr. Pertuit when these damages were not proven with any degree of certainty. The defendants contend that although Mr. Pertuit testified that he was losing approximately $4,000.00 per year because he can no longer perform electrical work, this was not supported with any documentary evidence. The defendants further contend that Mr. Pertuit declined the maintenance job at Harvey Kindergarten School when it was clear that he could have performed the duties associated with this job.

The amount of lost wages do not have to be precisely proven, they must only be shown with “reasonable certainty”. Harris v. United Agents Insurance Co. of La., 00-1314 (La.App. 3 Cir. 5/2/01), 784 So.2d 132. A trial court’s award for lost wages is subject to the manifest error standard of review. Ploger v. Reese, 2001-2243 (La.App. 4 Cir. 5/22/02), 819 So.2d 1114.

An award for loss of earning capacity is not able to be calculated with certainty and is speculative. Oubre v. Union Carbide Corp., 99-63 (La.App. 5 Cir. 12/15/99), 747 So.2d 212. For this reason, the trier of fact is given much discretion in making such awards. Id.

In the case at bar, the trial judge awarded a lump sum for lost wages and loss of earning capacity. Mr. Pertuit testified extensively regarding his performance of electrical work for additional income prior to the accident. His 1999 income tax return showed earnings of $4,340.00 for electrical work. Mr. Pertuit estimated that he had lost approximately $4,000.00 per year since the accident due to his inability to perform electrical work. Mr. Pertuit also testified regarding his waiting for the maintenance position of Harvey Kindergarten School to become available. He explained that during the interview he was told that he would be expected to apply a fresh coat of polyurethane to the floors and would do extensive painting. This was corroborated by the testimony of the school principal, Ms. Brown. Mr. Per-tuit testified that after he accepted the job, he became concerned that he would be Inunable to perform these duties. due to the injuries he received in the accident, so he declined the job. There is no dispute that this job would have increased Mr. Pertuit’s income between $17,600.00 and $19,200.00 per year. Plaintiff submitted a report from a CPA, Mr. Theriot, who estimated that the economic impact suffered by plaintiff as a result of' this accident ranged from $162,720.00 to $304,127.00. Given the evidence presented, we cannot say the trial court’s award of $142,127.00 was an abuse of discretion.

Mr. Pertuit argues that the general damage award of $90,000.00 for the injuries he suffered in this accident were inadequate and excessively low. He contends that the abusively low award justifies this court raising the award to the lowest reasonable amount. ■

As in the case of lost wages and loss of earning capacity, in accessing general damages, the trier of fact is given much discretion. Fleming v. Smith, 93-488 (La. 5 Cir. 5/31/94) 638 So.2d 467. In determining whether the trial court abused its much discretion,- the appellate court must look at the plaintiffs injuries and the effect of those injuries on that plaintiff. Id. An appellate court should only resort to prior awards for similar injuries when á determination has been made that there was an abuse of discretion. Id.

The record contains extensive evidence regarding Mr. Pertuit’s hand injury.’ -The tip of both his index and long fingers has been amputated and he suffers from loss of strength, loss of coordination, temperature intolerance, hypersensitivity, and pain in this hand. There is no question that the hand injury is related to' this accident. The relationship between the carpal tunnel injury and the knee injury to this accident is less clear. Dr. Escobar’s testified that there was “no way to say the carpal tunnel is 100% related” to the accident. He then explained that the lipoma in the area probably became swollen from the trauma of the accident, and this | iacaused pressure in the carpal tunnel. He admitted on cross examination that it was possible that the carpal tunnel syndrome resulted from some other trauma.

With regards to the knee injury, Dr. Digrado testified that had Mr. Pertuit’s knee been injured in the accident, he would have expected him to seek treatment earlier than seven months after the accident. Dr. Digrado explained that during the surgery he noted extensive damage to Mr. Pertuit’s patella that pre-existed the accident, as well as a partially torn meniscus. Dr. Digrado testified that Mr. Pertuit has limited activities due to pain in his knee that is caused by these degenerative changes, not by the injury to the meniscus. A review of all of the medical records submitted do not indicate that Mr. Pertuit complained of pain in his knee prior to the time he sought treatment from Dr. Digrado. Accordingly, we find that plaintiff did not prove that the knee injury was caused by the accident.

While we find the $90,000.00 in general damages awarded to plaintiff to be low, we do not find it so low as to constitute an abuse of discretion. In Hughes v. Bossier Parish School Bd., 32,225 (La.App. 2 Cir. 10/19/99), 745 So.2d 816, the Court affirmed a $50,000.00 general damage award to the plaintiff who sustained a partial amputation of her thumb resulting in a 28% disability of the thumb. The Supreme Court found an award of $100,000.00 for general damages to be appropriate for a plaintiff who suffered a traumatic amputation of his index finger resulting in a 20% impairment of his hand, taking into account the effect the injury had on the plaintiffs family life and finances. LeBlanc v. Stevenson, 2000-0157 (La.10/19/00), 770 So.2d 766. Although Mr. Pertuit has had several surgeries to his fingers, he fortunately suffered only 22% impairment to his hand and 12% impairment to his person. The testimony indicates that although he still has pain and decreased use of his right hand, he is still able to carry out many of the functions he performed prior to the accident. Taking into consideration the impact |13of this injury on Mr. Pertuit, we find no abuse of discretion in the award of $90.000.00 in general damages.

CONCLUSION:

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

AFFIRMED.


author: SOL GOTHARD, Judge,

text:
    Mary WALKER, Michael Walker, Kimberly Klein and Christopher Walker v. J.P. AND SONS INCORPORATED, Gray Insurance Company, James Phillips, Jr., Odette Phillips and Michael Shields.
    No. 04-CA-167.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Christopher R. Schwartz, Metairie, LA, for Plaintiff'Appellant.
    Denis P. Juge, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   SOL GOTHARD, Judge,

The plaintiffs, Mary Walker, Michael Walker, Kimberly Klein and Christopher Walker, appeal from the trial, court’s ruling granting summary judgment in favor of Gray Insurance Company, Michael Shields, J.P. & Sons Incorporated (J.P. & Sons), James Phillips, Jr., and Odette Phillips, dismissing these parties from the suit with prejudice. For the reasons that follow, the .ruling of the trial court is affirmed.

The plaintiffs are the wife and major children of decedent; Robert Walker. Mr. Walker was killed while at work, when a truck driven by co-worker Michael Shields and owned by J.P. & Sons rolled over him twice while in reverse.

Plaintiffs filed suit against several defendants alleging negligence under traditional tort law principles.. Thereafter, defendants filed a motion for summary judgment alleging that Robert lYalker was a borrowed employee and therefore, plaintiffs’ exclusive remedy was in worker’s compensation pursuant to La. R.S. |a23:1032. They also requested dismissal of défendants James Phillips, Jr. and Odette Phillips on the grounds that they did not own the land on which the accident occurred.

We noth . that the exclusivity of Workers’ Compensation is an affirmative defense. Further, we are mindful that defendants are the movers and bear the burden of proof in a motion for summary judgment.

The law on summary judgment was fully discussed by our Supreme Court in Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 2257 (La.2/29/00), 755 So.2d 226. . ..
Our review of a grant or denial of a motion for summary judgment is de novo. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to , material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

(some citations omitted) Id. 755 So.2d at 230-231

La. R.S. 23:1031 C provides that employers of borrowed employees “shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.” This court has listed the factors for consideration in the determination of borrowed employee status in Foster v. Consolidated Employment Systems, Inc., 98-948 (La. App. 5 Cir. 1/26/99), 726 So.2d 494, 496, citing Ledet v. Quality Shipyards, Inc., 615 So.2d 990, 992 (La.App. 1 Cir.1993).

|4(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?

Defendants’ argument is that Robert Walker was a borrowed employee of J.P. & Sons. In support of that argument they showed that J.P. & Sons owns the trucks, and it owns Robert Walker’s employer Joseph Management Services (JMS). Plaintiff does not dispute these allegations.

Attached to the defendants’ motion for summary judgment is the affidavit of Pauline Phillips who is the secretary of J.P. & Sons. She stated that J.P. & Sons does not have employees on their payroll but does lease or borrow employees from JMS. She further stated that JMS employees are exclusively leased to J.P. & Sons and all labor costs (workers’ compensation insurance, health insurance, FICA and salaries) of JMS employees are invoiced to J.P. & Sons on a monthly basis. The affidavit also stated that this lease arrangement was in place at the time of Mr. Walker’s accident and that all employees of JMS were hired and subject to termination by the officers of J.P & Sons. Ms. Phillips further stated that all tools and equipment issued by JMS employees were provided by J.P. & Sons.

In Ms. Phillips’ deposition she stated that the truck that caused Robert Walker’s death was owned by J.P. & Sons. She further stated that JMS sent |,^invoices to J.P. & Sons, and did not make any profit from the leasing of its employees. It simply transferred all of the costs. According to Pauline Phillips’ deposition, J.P. & Sons is the company that would enter into contracts with any entity in which the JMS employees were working. She explained that JMS issued J.P. & Sons a monthly bill. Funds were then transferred from J.P. & Sons to JMS. JMS then sent those funds to Paychex for distribution to employees.

Also attached to the motion for summary judgment are invoices issued by JMS billing J.P. & Sons for employees, including decedent Robert Walker and Michael Shields, for the month of March, 2002.

The record also contains the deposition of Marion Phillips, vice president of J.P. & Sons. His testimony corroborates that of Pauline Phillips.

In their opposition, plaintiffs present the affidavit of Mary Walker, wife of Robert Walker. In the affidavit, Ms. Walker asserts that there was no written contract between JMS and J.P. & Sons to lease workers. She further asserts that there was neither responsibility for nor supervision of Robert Walker by J.P. & Sons. She asserts that “Robert Walker’s actual paycheck was issued under Joseph Management Systems under a contract with Paychex.” She further states that her husband purchased and provided his own tools for work, disputing defendant’s assertion that the tools were provided by the company.

La. C.C.P. Art. 967(B) provides that when movant has supported his summary judgment motion with competent evidence “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” Further, La. C.C.P. Art. 967(A) in pertinent part provides “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, |fiand shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The affidavit of Mary Walker, relied upon by plaintiffs to dispute defendants’ showings, does not meet these criteria. She has no personal knowledge of nor would she be able to testify to the existence of any contract between JMS and J.P. & Sons or responsibility for supervision of Robert Walker during his employment.

The only relevant issue still in dispute is whether or not J.P. & Sons provided tools for Robert Walker. Assuming arguendo that this fact would be deemed proven, it is not by itself sufficient to defeat the summary judgment. We find that plaintiffs have failed to produce sufficient factual issues to defeat defendants’ affirmative defense of the exclusivity of Workers’ Compensation.

Under these circumstances, we find that the trial court was correct in finding that no genuine issue of material fact remains to be decided and that defendants were entitled to summary judgment as a matter of law. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Neither party contests the part of the ruling which dismisses defendants, James Phillips Jr. and Odette Phillips. Accordingly, issues that relate to the dismissal of those defendants will not be addressed in this opinion.


author: MARION F. EDWARDS, Judge.

text:
    In the Matter of the Succession of Frank W. HORN.
    No. 04-CA-168.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Otha C. Nelson, Sr., Baton Rouge, LA, for Defendant/Appellant.
    Michael W. Hill, Perry R. Staub, Jr., James R. Morton, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

Appellant, Otha Curtis Nelson, Sr., appeals an award of sanctions against him for attorney’s fees, resulting from a prior order of this court. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of the underlying dispute in this matter, which appears before us for the third time, were previously detailed by this Court in In re Succession of Horn. Accordingly, we will pretermit a detailed description of facts and procedural history not relevant to the present appeal.

In our previous opinion, we awarded $1,000 in damages against appellant for the filing of a frivolous appeal, and further ordered:

Applying these factors to the case before us, we find that the conduct sought to be deterred by the trial court in this case is the repetitious filing and pursuit of meritless, duplicative claims. There is no testimony to establish the amount of costs and fees incurred by Farmer caused by the filing of Horn’s meritless litigation.
^Accordingly, we remand to the trial court for a hearing to determine the amount of attorney’s fees Farmer has incurred in defending against Horn’s last amending petition and we order the trial court to award sanctions in the appropriate amount against Horn’s counsel.

On remand, after a hearing on April 25, 2003, the trial court awarded Ann Farmer $12, 295.34 in attorney’s fees, and assessed $1,000 in damages against Nelson as per this Court’s order. Nelson timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Nelson raises four assignments of error: 1) That the trial court erred in allowing Farmer to introduce the profiles of attorneys who did not provide legal services in the proceedings; 2) The amount awarded as attorney’s fees is excessive; 3) The trial court erred in awarding any fees and costs beyond the $1,000.00 designated in this Court’s September 30, 2002 opinion, and; 4) The judgment of attorney’s fees, if executed, would constitute cruel and unusual punishment.

Nelson first argues that the trial court, erred in allowing Farmer to introduce the profiles of attorneys who did not provide legal services in the proceedings. At trial, of the eight exhibits introduced, counsel for Farmer provided two items entitled respectively “Martindale-Hubbell profile of Taggart Morton,” and “taggart-morton.com profile.” While both exhibits profile all of the attorneys employed by Taggart Morton, Nelson argues that only the profiles of Perry Staub, Jr., and Michael W. Hill should have been allowed into evidence. We note that Nelson did not object to the introduction of the profiles at trial.

The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion. After reviewing the record, we find no error or abuse of discretion in|4the trial court’s action of admitting exhibits pertaining to all attorney Taggart Morton profiles in their entirety.

Next, Nelson argues that the amount of attorney’s fees awarded by the trial court in this case is excessive. A trial court’s award of attorney’s fees should only be reduced if they are unreasonable or clearly excessive. The Louisiana Supreme Court, in determining the reasonableness of awards of attorney’s fees, have utilized the following factors: (1) the ultimate result obtained; (2) the responsibility incurred; (8) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.

In the present case, the trial court was presented with the following evidence in making its determination of attorney’s fees incurred by Farmer in defending against Horn’s last amending petition: First, the trial court heard the testimony of Perry Staub, the managing partner of Taggart, Morton, Ogden, Staub, Rougelot, and O’Brien. As managing partner, Staub supervised billing activities at the firm. Staub testified that on the Horn case, he had day-to-day supervisory authority over the associate handling the case, and further reviewed all bills related to the case prior to the time that the bills were sent to Farmer.

Staub authenticated the invoices from his firm in the amounts of $7,683.25, $3,147.25, $1,149.94, and $314.90, pertaining to time periods represented by the filing of the Second Supplemental and Amending Petition, argument of multiple motion hearings, argument on appeal, as well as work on remand proceedings. The invoices provided a detailed breakdown of the work that Staub’s firm had | .^expended in defending Farmer at the respective rates of its attorneys and staff, as well as copies of legal pleadings that Staub’s firm had prepared on Farmer’s behalf. At the hearing, Nelson did not offer any evidence to contradict Staub’s testimony regarding his firm’s bills to Farmer.

Based upon our review of the record, we do not find the trial court’s award of attorneys’ fees in this case to be unreasonable or excessive.

Nelson also argues that the trial court erred in awarding any fees and costs beyond the $1,000.00 designated in our September 30, 2002 opinion. In our previous opinion, however, we specifically instructed the trial court to conduct a hearing to “determine an appropriate amount of sanctions for the attorney’s fees incurred by Farmer in defending against Horn’s last amending petition” in addition to the award of $1,000.00 for frivolous appeal. The “law of the case” is a doctrine whereby an appellate court will not reconsider its prior rulings on an issue in a subsequent appeal in the same case. Accordingly, as we have previously ruled on this issue, we decline to review this assignment of error.

Finally, Nelson asserts that the judgment at issue is illegal, and that if he should be required to pay the attorney’s fees he will be the “victim of cruel and unusual punishment” in direct violation of the United States and Louisiana Constitutions. While raising the issue as an assignment of error, we note that Nelson merely includes a single sentence in his brief that merely restates the assigned error, but-contains no legal authority for his position. According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an ^assigned error in brief without argument or citation of authority does not constitute briefing. Accordingly, we will not consider Nelson’s final assignment of error.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant.

AFFIRMED.

      . 02-430 (La.App. 5 Cir. 9/30/02), 827 So.2d 1241; writ denied, 2002-2917 (La.2/7/03), 836 So.2d 105.

      . 827 So.2d 1241, 1247.

      . Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97); 698 So.2d 1022; writ denied, 1997-2766 (La.1/30/98), 709 So.2d 706.

      . Teche Bank & Trust Company v. Willis, 93-732 (La.App. 3 Cir. 2/2/94) 631 So.2d 644.

      . Rivet v. State, Dept. of Transp. and Development, 96-0145 (La.9/5/96), 680 So.2d 1154, 1161.

      . Veazey v. Elmwood Plantation Associates, 625 So.2d 675 (La.App. 5 Cir.1993), writ granted 93-2818 (La.2/4/94), 633 So.2d 158, affirmed by 93-2818 (La. 11/30/94), 650 So.2d 712.

      . State v. Inzina, 31,439, p. 19 (La.App. 2 Cir. 12/9/98), 728 So.2d 458, 469.


text:
    STATE of Louisiana v. Natelie E. HEBERT.
    No. 04-KA-134.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent Paciera, Jr., Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Piaintiff/Appellee.
    James A. Williams, Butch Wilson, Gret-na, LA, for Defendani/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS,
   MARION F. EDWARDS, Judge.

Defendant, Natelie E. Hebert,- appeals his conviction for manslaughter, a violation of LSA-R.S. 14:31. For the foregoing reasons, defendant’s conviction is affirmed, we amend defendant’s sentence, and we further remand to the trial court to correct errors patent on the face of the record.

FACTS AND PROCEDURAL HISTORY

On March 14, 2002, the Jefferson Parish Grand Jury issued a two-count indictment charging defendant, Natelie Hebert (“Hebert,”) with second degree murder of Robert Hughes, a violation of LSA-R.S. 14:30.1, ánd attempted second degree murder of Lorenzo Craft, in violation of LSA-R.S. 14:27 and 14:30.1. Hebert was arraigned on March 15, 2002, and entered pleas of not guilty to both charges.

Hebert made pre-trial motions to suppress statements and identification. On June 13, 2002, the court heard both motions. The motion to suppress the jydentiftcation was denied that day, and the motion to suppress statements was held open. On July 10 and 11, 2003, the court heard additional evidence as to the motion to suppress statements, and the court denied that motion as well.

Trial began before a jury on September 23, 2002. On September 24, 2002, the court declared a mistrial due to emergency weather conditions. Hebert was tried by a twelve-member jury on May 19, 20, and 21, 2003. As to count one, the jury found Hebert guilty of the lesser offense of manslaughter, a violation of LSA-R.S. 14:31. As to count two, the jury found Hebert guilty as charged.

Hebert made a motion for post-verdict judgment of acquittal, which the court denied in open court on September 3, 2003. Hebert thereafter waived statutory delays, and the trial court sentenced him on count one to twenty-five years at hard labor without suspension of sentence. On count two, the court sentenced defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. The court further ordered that the sentences run concurrently to each other. Hebert made an oral motion for appeal and filed a written motion for appeal on September 5, 2003, which the court granted that same day.

At 5:56 a.m. on January 25, 2002, Nate-lie (“Nat”)’ Hebert, made a 9-1-1 telephone call from his trailer home at 678 Jean Lafitte Boulevard in Lafitte. He reported, “Two guys tried to get in, break in my house to beat me up.” Hebert told the dispatcher he had stabbed both subjects. He said that one of the men, later identified as Lorenzo Craft, escaped and headed toward a nearby E-Z Serve convenience store. Craft was picked up by someone in a white Dodge truck. The other man was still in the house, and was not moving. Hebert admitted that he had “stabbed him a bunch of times.”

| ¿Defendant told the dispatcher that the man who remained in the house was Robert Hughes. He explained that he and Hughes had argued about money, and that a fistfight ensued. He retrieved a knife from the kitchen, and Hughes tried to take it from him. Hebert said he started stabbing Hughes. Hughes’ companion then attacked Hebert, trying to get him off of Hughes. Hebert said he stabbed that man in the back.

Lorenzo Craft testified that he was with Robert Hughes in the early morning hours of January 25, 2002. They rode around in a Ford Escort Craft characterized as a “rock rental.” Hughes sold crack cocaine to various people, including Hebert. After Craft and Hughes returned the Escort to its owner, Hebert drove them to his trailer in his station wagon. Hebert said he had to get something, and went inside the trailer. Craft and Hughes stayed in defendant’s car. Some time later, Hebert called for Hughes to go inside the trailer, and Hughes complied. Craft did not detect anything threatening in Hebert’s behavior.

Craft testified that while he waited in the car, he heard noises from inside the trailer. After ten minutes, Hebert exited the trailer and told him Hughes wanted him. Craft did not see Hughes. Sensing something was amiss, Craft picked up a knife he saw in the car, and threw it on the ground outside the vehicle. He started to get out of the car, and Hebert began stabbing him repeatedly. Craft did not have a weapon.

Craft was eventually able to grab Hebert’s knife and throw it in a nearby wooded area. Craft fled on foot, and Hebert pursued him in his car. Craft then made it to the nearby E-Z Serve convenience store, where he flagged down a white truck and climbed into the back of the vehicle. Lionel Fitzgerald, the truck’s driver, testified that Craft said, “He’s trying to kill me,” and “my partner [sic] dead.”

| ^Fitzgerald saw a car approaching from the opposite direction, and he thought someone was coming to help Craft. However, the other ear’s driver turned and pulled alongside Fitzgerald’s truck, trying to run it off the road. Fitzgerald recognized the driver as Natelie Hebert. Hebert yelled to Fitzgerald that the wounded man had robbed him. Fitzgerald managed to evade Hebert.

Deputy Bruce Chauvet of the Jefferson Parish Sheriffs Office was dispatched to Hebert’s trailer. He testified that en route to the residence, he received information that there was a victim at the E-Z Serve at 798 Jean Lafitte Boulevard. Chauvet stopped at the store, where he found Lorenzo Craft. Craft had been stabbed, and he directed Chauvet to Hebert’s trailer to find another possible victim.

Chauvet and Deputy Steve Higgerson proceeded to Hebert’s trailer. There were blood spatters and smears on the door and outside walls. Chauvet found the body of a man lying on the floor. He found that the victim, whom he identified as Robert Hughes, had sustained a serious chest wound. When the officers arrived, Hebert was still speaking on the telephone to the 9-1-1 operator.

Chauvet advised defendant of his Miranda rights at the scene, and asked defendant to explain what had happened. Hebert told him he agreed to give Robert Hughes and Lorenzo Craft a ride. He parked his vehicle outside of his trailer and asked the men to stay in his vehicle. Hebert told them he was going inside to tell his wife where he was going. Hebert went into the bedroom where his wife was sleeping. When he emerged, he found Hughes standing’in the living room. Hughes demanded that- defendant make good on á one hundred dollar crack cocaine debt. An argument ensued, and Hughes punched Hebert. Hebert told Chauvet that he went to his kitchen and took a knife out of a drawer. Hebert said Hughes threatened to kill him, and he responded by lunging at Hughes with the Rknife. . Defendant said Craft entered the trailer after the altercation began. Hebert told Chauvet that he had attacked Craft and stabbed him.

Hebert showed Chauvet an injury to his left hand. Higgerson testified that Hebert was examined by emergency medical technicians, and was later treated at the Medical-Center of Louisiana for lacerations to his hands.

Lieutenant Grey Thurman of the homicide division supervised the collection and photographing of evidence -at the scene. He testified that upon arriving at the trailer, he found a car parked in the driveway, its door ajar. There was blood on the outside of the car. A large,, wooden-handled kitchen knife was lying near the car. There was blood on the raised platform at the trailer’s front doorway. Robert Hughes’ body was lying just inside the front door.

A paring knife was found several feet from the body, and a potato peeler .tyas near the victim’s feet. There was no blood found on either object. A knife with a broken handle was found under the body. There were three rocks of crack cocaine in a plastic bag inside the victim’s sock. .

Deputy Joseph Kreiger testified that he transported defendant to the detective bureau. Sergeant John Drury of the homicide division conducted a tape recorded interview with defendant. The audiotape and a typewritten transcript of it were admitted in evidence at trial, and the tape was played for the jury. Hebert told Dru-ry that he initially met Robert Hughes through a friend, and that Hughes routinely-. sold him narcotics. He talked to Hughes a few times during the night, and Hughes called him at about 4:00 a.m. to ask for a ride home. When Hebert picked up Hughes, the victim was with a black man (Craft) whom Hebert had met on prior occasions. Hughes gave him two pieces of crack cocaine in exchange for the ride.

RHebert stated that he drove to his house, and told the two men he was going to tell his wife where he was going. He went into the bedroom, and when he came out, he saw Hughes was inside of the trailer. .Hughes told Hebert that he owed him one hundred dollars for cocaine he had given him on a prior occasion. Hebert told Hughes he had satisfied that debt. Defendant said he and Hughes argued about the matter, and eventually Hughes said, “Mother f* * * *r you don’t give me my money I’m going to have to start shooting people ...”

Hughes pushed defendant, and then Hebert took a large knife out of a kitchen drawer and began stabbing Hughes. Hebert told him “I’ll kill- you mother f* * * *r.” He knew Hughes routinely carried a gun, and Hughes had threatened him in the past. Hebert said he stabbed Hughes ten times. Hughes tried to get the knife away from him. Eventually the knife broke, and Hebert reached for another knife and continued to, stab Hughes until the. victim stopped struggling. Hebert admitted that Hughes did not have a weapon at the time of the incident.

Hebert saw Craft in the doorway, and told him, “I’ll Mil you too mother f* * * *r.” Hebert chased Craft out of the trailer and attacked him in the driveway. Hebert said he stabbed Craft seven or eight times. He stabbed Craft in the back as he ran away. Hebert stated that Craft did not have anything in his hands. Michelle Hebert, defendant’s wife, testified that she and the couple’s young sons were all in the trailer at the time of the incident. The family had visited friends on the night of January 24, and they returned home at 12:30 a.m. on January 25. She and the boys went to sleep. She was awakened by the sounds of fighting coming from the living room. She went into the living room and saw Hebert and Robert Hughes fist fighting. She locked herself and the children in the bedroom.

When the house became quiet, Hebert went into the bedroom and said, “Get out, they broke in.” Ms. Hebert and the children left the trailer through the back | ¡¡door. Hebert called to her from inside, and had difficulty opening the front door. It was blocked by Hughes’ body. When Ms. Hebert got inside, Hebert was speaking to the 9-1-1 dispatcher on the telephone. He told Ms. Hebert to start cleaning the mess. The 9-1-1 dispatcher, however, told Hebert they should not clean anything.

Hebert testified on his own behalf at trial. He stated that he began abusing prescription pain Mllers after incurring a back injury on the job in the mid 1990’s. He eventually started buying pills from Hughes. Hughes then began selling him crack cocaine. Defendant testified that he knew Lorenzo Craft as Hughes’ right-hand man in the drug trade.

Defendant eventually decided to stop using narcotics. When Hebert attempted to end his association with Hughes, the man became irate and started to threaten defendant. In response, defendant met with Detective Renton. According to Hebert, Renton arranged for defendant to work as an informant. The two planned to attempt an undercover drug operation involving Hughes. That undercover buy was supposed to have happened on January 25, 2002.

Hebert testified that he and his family spent the evening of January 24, 2002 at the home of Philip Brinkles and his wife, Rita. When they arrived home at 12:30 a.m. on January 25, he watched television while his wife and children went to sleep. Hughes telephoned between 3:30-4:00 a.m. and asked defendant to pick him up. Hughes indicated that he wanted to give Hebert some dope and to talk to him. Hebert agreed to pick up Hughes so as not to jeopardize the planned undercover drug purchase.

19Hebert arrived at Hughes’ house just as Hughes and Lorenzo pulled up in a car. The two men got into Hebert’s car. Hughes tossed Hebert some narcotics, and Hebert drove to his trailer. He wanted to drop off the drugs there, as he had agreed with Detective Renton not to possess drugs. Hebert left the drugs in the bedroom where his wife was sleeping, and returned to the living room to find Hughes waiting for him. He had not given Hughes permission to enter the house.

Hughes claimed defendant owed him one hundred dollars from an earlier drug deal. Defendant reminded Hughes that he had agreed to excuse the debt in exchange for the use of defendant’s truck. An argument ensued. Hughes said, “I want my f* * *ing money,” and he hit Hebert. Hebert went to the kitchen drawer and retrieved a knife. Hebert began stabbing Hughes in an attempt to get him out of the house.

Hebert testified, that Craft rushed to the trailer. Assuming Craft would try to help Hughes, Hebert stabbed him repeatedly. When Craft fled on foot, Hebert went after him in his car. He was stopped by the driver of a truck whose help Craft had enlisted.

Hebert stated his hands were cut in the midst of the stabbings, and were bleeding badly. He did not know whether Hughes was dead or alive when he called 9-1-1.

Dr. Susan Garcia of the Jefferson Parish Coroner’s Office was accepted by the court as an expert in the field of forensic pathology. She testified that Dr. Glenn Rudner had performed an autopsy on Robert Hughes, and that she had reviewed Dr. Rudner’s report. Dr. Rudner referenced sharp force injuries to the victim’s neck, head, chest, ribs, lungs, and heart. Some of the injuries were cuts, while others were stab wounds.

There was a particularly large wound to the chest that was probably caused by a combination of stabbing and dragging motions. It was a lethal wound. j1(1Another blow to the upper back entered the lung, and could be considered lethal, depending, on how much blood was lost from that area.

In his first assignment of error, Hebert' complains that the evidence was insufficient to support his manslaughter conviction, as the state failed to meet its burden of, proving that defendant did not act in self-defense. In considering a claim of insufficient evidence, an appellate court must determine whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime were proved beyond a reasonable doubt.

At the time of the instant offense, LSA-R.S. 14:31 defined manslaughter, in pertinent part, as follows:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.

“Sudden passion” and “heat of blood” distinguish manslaughter from murder, but they are not elements of the offense. Rather, they are mitigatory factors which may reduce the grade of the offense.

Under LSA-R.S. 14:20, a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing' is necessary to save himself from that danger.

When a defendant claims self-defense in a homicide situation, the state must prove, beyond a reasonable doubt, that the defendant did not act in self-defense. ^[yThe relevant inquiry on appeal is whether a rational factfinder, upon viewing the evidence in 'the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense.

The determination of a defendant’s culpability is based on a two-fold test: (1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and (2) whether deadly force was necessary to prevent the danger.

Hebert argues that he reasonably believed his life was in imminent danger based on Hughes’ reputation as a drug dealer who carried a gun. Hebert testified that he knew Hughes to always carry a gun. Both Hebert and his wife testified to an incident that occurred the day before the stabbing incident, wherein Hughes went to Hebert’s residence and accused him of obtaining drugs from a source other than Hughes. Both Hebert and Ms. Hebert testified that Hughes waved a gun in Hebert’s face. Hughes told Hebert, “I’ll kill anybody that play with my money.” Hebert further testified that he and his friend Philip Brinkle encountered Hughes at a convenience store on the night of January 24, 2002. Hughes accused Hebert of doing business with Brinkle, and threatened to kill both Hebert and Brinkle.

Hebert testified at trial that he stabbed Hughes and Craft to save his own life and to protect his family. Of his own accord, however, Hebert stated that he drove Hughes and Craft to his own residence despite having so recently received threats from Hughes. Craft testified that Hebert invited Hughes into the trailer. Hebert also testified that Robert Hughes was at his house on a regular basis in the months before the incident.

Iii his trial testimony, Hebert implied that Hughes may have had a knife. He testified that during their altercation, Hughes was swinging an unknown object, and that he felt pain in his hands when he attempted to grab Hughes’ hands. There liswas, however, no evidence at trial that Hughes was carrying any type of weapon at the time of the stabbing. The evidence was to the contrary. Ms. Hebert, who witnessed the fight that apparently led to the stabbings, testified that the two men were hitting each other with their fists. She did not see any weapons. The transcript of defendant’s 9-1-1 call does not show that Hebert said anything to the dispatcher about Hughes possessing a weapon. Hebert mentioned that Hughes tried, unsuccessfully, to take his knife from him. In his police statement following arrest, Hebert said Hughes reached in his pocket while they were arguing, but that he did not produce a gun at the time of the stabbing.

Deputy Chauvet testified that when he spoke with Hebert at the scene, Hebert did not claim that Hughes had a weapon. While Hebert did sustain lacerations to his hands, he told police that he received the injuries in his confrontation with Craft, not from Hughes. Lieutenant Thurman testified that he did not find any gun or knife on the victim’s person. A paring knife was found several feet away from Hughes, and a potato peeler was near Hughes’ feet. However, Thurman testified that neither utensil had blood on it. He surmised that, because the utensils were clean, they were placed there after the stabbing. Hebert argues that the evidence established Hughes had a motive to attack him. Hebert speculates that Hughes knew he had an arrangement with Agent Renton to orchestrate an undercover drug buy with an eye to having Hughes arrested. There is nothing in the record to indicate that such was the case. In fact, defendant testified it was Philip Brinkle whom Hughes suspected of being a “narc.”

Hebert arguably had a strong motive for disposing of Hughes. Hebert testified that there came a point when he did not wish to be associated with Hughes any longer. Hebert was, however, unable to shake him. Moreover, Hughes was demanding he repay some drug money he owed him. Hebert’s plan was to get JjjHughes out of the way by having him arrested. It is possible he was frustrated by the fact that the undercover drug buy had been planned for weeks, but had not yet taken place. At trial, Hebert testified that he did not have any intention of killing Hughes; he just wanted Hughes in jail so that he would stay away from him. Hebert described the incident as a “dope deal going bad.” However, in his recorded statement, Hebert admitted, “I was meaning at the time, I was meaning to kill them.”

Hebert attempted to hide what he had done by having his wife clean up the evidence. He is heard on the 9-1-1 tape ordering his wife to do so. This is not the behavior of a man who knows his actions were justified because he acted in self-defense. Hebert’s actions imply guilty knowledge.

Dr. Garcia testified that it is human nature to protect oneself in the face of a physical attack, and to thereby sustain injuries to hands, forearms, and legs. The doctor did not, however, find that Hughes incurred any defensive wounds. Hebert argues that this supports his assertion that Hughes had a weapon at the time of the stabbing. We find this argument to have little merit. The more likely explanation for the lack of defensive wounds is that Hughes was simply so overcome by the sheer force of defendant’s attack that he was unable to even attempt to defend himself.

The evidence showed that Hebert’s attack on Hughes was brutal. Dr. Garcia testified that the lethal injury was the large wound to the chest. The blow damaged the victim’s heart and lungs. In order to reach those organs, a sharp object would have had to penetrate the sternum, which is fairly hard bone. That would have required a great deal of force and a sharp instrument. Hebert’s attack was unrelenting. Dr. Garcia testified that Hughes sustained a total of thirteen sharp force injuries to the back of his body, and ten to the front of his body. When one knife broke, Hebert retrieved a second and continued to stab Hughes. Meanwhile, J^Hebert testified, Hughes did not inflict any wounds on him. Nor did Hughes produce any solid blows to his face.

Defendant said in his police statement, “I figured it was my life or there [sic] life, I thought they was gonna kill me if I didn’t kill them.” However, there is little in the record, other than Hebert’s self-serving testimony, to show that he was justified in his belief that deadly force was necessary.

Hebert disputes the reliability of Craft’s- testimony, arguing that it should be given little weight in the sufficiency determination. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Thus, a reviewing court may impinge upon the “ ‘fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.’ ”

Craft’s testimony was substantially supported by the evidence at trial. Craft testified that he did not have any weapon at the time of the stabbing. He further testified that he did nothing to threaten or provoke Hebert. While Hebert testified that Craft approached him, Craft testified that Hebert attacked him outside as he attempted to exit the car. Craft’s testimony is supported by the fact that blood was found on Hebert’s car.

Craft testified that when Hebert attacked him, he immediately attempted to escape. Craft’s testimony is supported by the fact that he sustained stab wounds in his back as he tried to flee. Hebert himself said in his police statement, ‘Yeah right he turned to get away from me and I stabbed him in the back.” Hebert acknowledged in his testimony that Craft ran from him, and that he pursued Craft in his car. Craft’s testimony regarding his flight from defendant and Hebert’s demeanor at the time of the stabbings was also borne out by the testimony of Lionel Fitzgerald, the driver who assisted Craft.

|1fiBased on the foregoing, we find that the state met its burden of proving that Hebert did not act in self-defense as to either of the victims.

As requested by defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The following matters are noted:

The trial judge imposed Hebert’s manslaughter sentence (count 1) without benefit of suspension of sentence. However, LSA-R.S. 14:31 does not require such a restriction. Hebert’s sentence is, therefore, illegal. LSA-C.Cr.P. art. 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” It is within this Court’s authority to amend defendant’s sentence to remove the restriction on suspension of sentence. We therefore amend the instant sentence to delete the words “without suspension of sentence.”

We further remand for correction of the minutes and commitment in this case to show that Hebert was found guilty by a jury. The commitment currently reflects that Hebert was found guilty by a judge.

Accordingly, for the foregoing reasons, the defendant’s conviction is affirmed, we amend defendant’s sentence, and we further remand to the trial court to correct error patent on the face of the record.

AFFIRMED, AMENDED, AND REMANDED.

      . No written motions are found in the record.

      . No written motion is found in the record.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The parties stipulated that, if chemist Daniel Waguespack were called as a witness, he would be accepted as an expert in the testing and identification of controlled dangerous substances, and that he would testify that the three rock-like objects recovered at the scene' tested positive for cocaine.

      . The parties entered into a stipulation that on January 9, 2002, defendant contacted narcotics agent Jason Renton about working for him as a confidential informant; that on two occasions, defendant provided Renton with information regarding individuals other than Robert Hughes; and that defendant was paid for that information. The parties further stipulated that defendant spoke with Renton on January 25, 2002 about providing information regarding Hughes that would lead to a search warrant. (R., p. 518).

        . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 676, 61 L.Ed.2d 560 (1979); State v. Brown, 02-1922, p. 8 (La.5/20/03), 846 So.2d 715, 721.

      . State v. Favorite, 03-425, p. 5 (La.App. 5 Cir. 11/25/03), 862 So.2d 208, 212, writ denied, 03-3529 (La.4/23/04), 870 So.2d 298.

      . State v. Garcia, 483 So.2d 953, 956 (La.1986); State v. Favorite, 03-425 at p. 6, 862 So.2d at 212; State v. Johnson, 01-1362, p. 7 (La.App. 5 Cir. 5/29/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32.

      . State v. Favorite, supra.

      . State v. Johnson, 01-1362 at p. 8, 820 So.2d at 608; State v. Sprinkle, 01-137, p. 16 (La.App. 5 Cir. 10/17/01), 801 So.2d 1131, 1141, writ denied, 01-3062 (La. 10/25/02), 827 So.2d 1174, cert. denied, 537 U.S. 1235, 123 S.Ct. 1358, 155 L.Ed.2d 200 (2003).

      . State v. Legrand, 02-1462, p. 8 (La.12/3/02), 864 So.2d 89, 96 (quoting State v. Mussall, 523 So.2d 1305, 1310 (La.1988)).

      . 312 So.2d 337 (La.1975);

      . 556 So.2d 175 (La.App. 5 Cir. 1990).

      . State v. Andino, 01-820, pp. 4-5 (La.App. 5 Cir. 1/15/02), 807 So.2d 944, 946.