author: | MOAN BERNARD ARMSTRONG, Chief Judge. I,MURRAY, J.

text:
    Diane BREAUX, Wife of and Joseph Breaux v. AVONDALE INDUSTRIES, INC.
    No. 2004-C-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 14, 2004.
    Writ Denied July 20, 2004.
    Scott R. Bickford, Christopher H. Sherwood, Tiffany Gautier Chase, Spencer Doody, Jeffrey Gewirtz, Martzell & Bick-ford, New Orleans, LA, for Plaintiffs/Rela-tors.
    Gary A. Lee, Richard M. Peries, A. Ann Cates, Patricia C. Penton, Lee, Futrell & Peries, L.L.P., New Orleans, LA, for Respondents, Peter Territo and Northrop Grumman Ship Systems, Inc., f/k/a Avon-dale Industries, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge JAMES F. McKAY III).
   | MOAN BERNARD ARMSTRONG, Chief Judge.

We grant the relators’ writ application in order to review the judgment of the trial court granting the respondents’ motion for partial summary judgment.

In 2001, the relators settled their claims against certain defendants in Texas litigation brought for the same injuries that are the subject of the instant Louisiana lawsuit. It is argued that those defendants are solidarily liable with respondents for the relators’ damages. In the Texas settlement, the relators did not reserve their rights against other solidary obli-gors.

The respondents suggest that the Supreme Court’s holding in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) requires application of the law in effect at the time of the tortious acts complained of, Mr. Breaux’s exposure to asbestos in the 1960s, to the Texas judgment recognizing the release.

Prior to January 1, 1985, Louisiana law required settling parties who wished to pursue non-settling solidary obligors to include in their releases language reserving their rights against such obligors. See, Former LSA-C.C. art. 2203. Acts 1984, No. 331, § 1 vacated that article and enacted LSA-C.C. art. 1803. Official Revision Comment (e) to LSA-C.C. 1803 notes the abrogation of the rule of LSAjC.C.2 2203 (1970), according to which an obligee who remits a debt in favor of one solidary obligor without expressly having reserved his right against the others releases the solidary obligation. At the time the rela-tors confected the release in Texas, Louisiana law no longer required that this reservation of rights be included in the release to protect a settling plaintiffs right to pursue his or her claims against non-settling solidary obligors.

The critical distinction between the instant case and Cole is that Cole involved interpretation of tort laws. The issue before us involves contract law. Because the release at issue in this case is a contract, it is governed, absent an express provision in it to the contrary, by the law in effect at the time the release was executed. Laws existing at the time a contract is entered into are incorporated into and form a part of the contract as though expressly written. Green v. New Orleans Saints, 2000-0795 p. 6 (La.11/15/2000), 781 So.2d 1199, 1203, citing Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 294 (La.1986). Since the release contains no such provision, the law in effect in 2001 controls the effect of the 2001 contract.

While the trial court’s partial summary judgment is a reasonable extension of the Cole holding, an expansive reading of Cole approved on similar facts by the Court of Appeal, First Circuit in Hebert v. Anco, 2000-1929 (La.App. 1 Cir. 7/31/02), 835 So.2d 483, we are guided to a different result by two relevant decisions of the Louisiana Supreme Court.

In Waits v. American Optical Corp., 1998-0455 (La.9/8/99), 740 So.2d 1262, the court rejected an extension of Cole to wrongful death actions. The court | ¡¡noted that Cole should not be read so expansively as to require all long-latency occupational lung diseases to be governed by all laws in effect on the date the victim was exposed to the disease causing agent. Walls at page 10, 740 So.2d at 1270. The facts of each individual case will dictate the law to be applied. Because Walls was a wrongful death claim, rather than a direct tort claim like Cole, the court held that since the wrongful death claim arose only after decedent’s death, the controlling event was not exposure to asbestos, but rather the decedent’s death, applying the law in effect at the time of death. Thus, the court held that a 1976 amendment to LSA-R.S. 23:1032 establishing executive officer immunity should be applied prospectively to the surviving plaintiffs’ wrongful death action that arose when the decedent died, after the amendment’s effective date. Significantly, the court held that the decision in Cole turned on unique language in the LCFL not present in the amendment to LSA~R.S.23:1032.

Similarly, in Landry v. Avondale Industries, 03-3432, 03-3434 and 03-3435 (La.7/2/04), 877 So.2d 970, a wrongful death action commenced after decedent’s demise in 2002 from mesothelioma allegedly contracted as a result of asbestos exposure from 1959 to 1974, the Supreme Court declined to accept an expansive reading of Cole in the context of the Louisiana Comparative Fault Law (LCFL). The court applied the LCFL, enacted by Act 431 of 1979 and effective August 1, 1980, to the claim, since the cause of action arose in 2002 upon decedent’s demise.

In the instant case, like both Walls and Landry, the relevant statute did not contain the unique language of the LCFL. Just as it was clear in Walls and Landry that the event most relevant to the wrongful death action was the decedent’s death and not his initial exposure to asbestos, so also it is clear that the event most relevant to the release was the execution of the release itself. Because the release [4is a contract, separate and apart from the underlying damages that formed the consideration for the contract, we are guided by the nature of the release as a contract, deriving its validity and consequences from the law in effect at the time of its confection, and by the Supreme Court’s expressed reluctance to read its Cole decision in an expansive manner in reaching our decision.

For the foregoing reasons, we grant the relators’ writ application and reverse the trial court’s judgment of July 2, 2004 granting the relators’ motion for partial summary judgment, and remand to the trial court for further proceedings consistent with this writ disposition.

WRIT GRANTED; PARTIAL SUMMARY JUDGMENT REVERSED; REMANDED TO TRIAL COURT.

MURRAY, J., concurs and assigns reasons.

I,MURRAY, J.

Concurs and Assigns Reasons.

I agree with the result reached by the majority on the basis that the release is a contract and, as such, is governed by the law in effect at the time of its execution. However, I do not accept the majority’s suggestion that Walls v. American Optical Corp., supra, and Landry v. Avondale Industries, supra, provide additional authority for reaching the same result. Accordingly, I respectfully concur in the granting of the writ application and the reversal of the partial summary judgment.

      . Such a reservation of rights is not required by Texas law.

      . A similar view is expressed in the dissent in Hebert v. Anco Insulation, Inc., infra. That “no reservation of rights was required in the settlement documents.”


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Calvin DONALDSON.
    No. 2004-KA-0366.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 14, 2004.
    Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

The defendant, Calvin Donaldson, was re-sentenced after having served twenty years in prison, and he is now appealing the sentence he received when he was re-sentenced. We find no error in the re-sentencing. Therefore, we affirm the sentence being appealed.

STATEMENT OF THE CASE

Mr. Donaldson was convicted of armed robbery almost twenty-two years ago. The State then charged him under the Habitual Offender Law, La. R.S. 15:529.1, and he was sentenced as a second offender to serve one hundred ninety-eight years at hard labor. His conviction and sentence were affirmed on appeal. State v. Donaldson, 439 So.2d 1138 (La.App. 4 Cir.1983).

Mr. Donaldson subsequently applied for post conviction relief, and the Louisiana Supreme Court set aside his sentence and remanded the case for re-sentencing, because the sentencing record did not show adequate compliance with La.C.Cr.P. art. 894.1, which establishes certain sentencing guidelines. Almost eleven years after his original conviction, Mr. Donaldson was re-sentenced as a second offender under the Habitual Offender Law to serve sixty-six years at hard labor without the benefit of parole.

|?Mr. Donaldson then applied to this Court for supervisory writs alleging that the sixty-six year sentence was an illegal sentence. This Court vacated that sentence on the grounds that the trial court judge’s statement at the re-sentencing hearing indicated that he considered the sixty-six year sentence to be the minimum sentence that Mr. Donaldson could be given as a second offender. State v. Donaldson, unpubl., 94-0332 (La.App. 4 Cir. 5/5/94).

Approximately two months later, Mr. Donaldson was once again re-sentenced to sixty-six years at hard labor without the benefit of parole, probation, or suspension of sentence. Three years later this Court granted Mr. Donaldson an out-of-time appeal. This Court found that Mr. Donaldson had pled guilty to being a second offender without having been apprised of his constitutional rights in connection with his adjudication under the Habitual Offender Law. Thus Mr. Donaldson’s sixty-six year sentence as well as his conviction under the Habitual Offender Law as a second offender were vacated. His original armed robbery conviction was undisturbed by this Court, so the matter was remanded for sentencing on the armed robbery conviction. State v. Donaldson, 98-1015 (La.App. 4 Cir. 1/6/99), 726 So.2d 1003.

After his out-of-time appeal to this Court, a writ of certiorari was filed with the Louisiana Supreme Court. The Supreme Court granted the writ in part and denied the writ in part. State v. Donaldson, 99-0369 (La.9/3/99), 740 So.2d 103. In a per curiam decision, the Supreme Court reversed the judgment of this Court vacating Mr. Donaldson’s conviction as a second offender under the Habitual Offender Law. The Supreme Court stated as follows:

Even assuming that the court of appeal had the authority to reopen the matter of respondent’s sentence years after the finality of his conviction, cf., State v. Fischer, 98-|04683 (La.9/18/98), 725 So.2d 485, the Fourth Circuit expressly limited its grant of an out-of-time appeal in this case to the re-sentencing conducted on June 29, 1994. The record of the original multiple offender proceedings first considered on appeal in State v. Donaldson, 439 So.2d 1138 (La.App. 4th Cir. 1983), was therefore not properly before the court of appeal on this occasion. In all other respects the judgment of the Fourth Circuit remanding this case to the district court for sentencing before another judge is affirmed in accord with our previous order in State ex rel. Donaldson v. Whitley, 605 So.2d 1078 (La.1992). The district court shall resen-tence respondent in compliance with the guidelines now provided by La.C.Cr.P. art. 894.1, as amended by 1995 La. Acts 942.

740 So.2d at 104.

After the Supreme Court rendered this decision, Mr. Donaldson was re-sentenced by the district court to serve thirty-three years at hard labor without the benefit of parole, probation, or suspension of sentence as a second offender under the Habitual Offender Law in accordance with the Supreme Court’s mandate. Almost two years after the trial court re-sentenced him, Mr. Donaldson filed an application for supervisory writs with this Court seeking another out-of-time appeal. In his application for an out-of-time appeal, Mr. Donaldson alleged that the attorney who represented him at his most recent sentencing hearing had agreed to file an appeal from the sentencing decision but had not done so. In his writ application, Mr. Donaldson asked this Court to grant him an out-of-time appeal of his thirty-three year sentence, and this Court did so. The out-of-time appeal of Mr. Donaldson’s thirty-three year sentence is now before this Court.

DISCUSSION

Assignment of Error No. 1: Where Calvin Donaldson’s multiple bill sentence relies on an admission to his multiple offender status taken without proper inquiry by the original court, the sentence is illegal. The district court erred in denying his Motion to Withdraw or Vacate the multiple offender conviction.

|4Mr. Donaldson contends that his thirty-three year sentence as a second offender under the Habitual Offender Law is illegal, because his original guilty plea to being a second offender was not voluntarily entered. In his original appeal to this Court, however, he did not raise this issue. He did, however, raise this issue in an assignment of error in his first out-of-time appeal, and he has raised it again in the instant out-of-time appeal in this assignment of error.

La.C.Cr.P. art. 930.8(A) provides in relevant part as follows:

A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final ... unless any of the following apply:
(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.
(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.

Mr. Donaldson was most recently sentenced on September 29, 2000. On August 8, 2002, this Court granted his writ for the purpose of granting him an out-of time appeal. Therefore, his application for post-conviction relief was filed within two years after his judgment of conviction and sentence became final as required by article 980.8. Although the judgment of conviction had become final years ago, the two-year prescriptive period for an application for post-conviction relief had not yet run when Mr. Donaldson applied for the instant out-of-time appeal, because his sentence was not final until after September 29, 2000. | ¡¡Therefore, it would appear that Mr. Donaldson is entitled to raise the issue addressed in his first assignment of error. That is not the case, however.

This Court is bound by the decision in State v. Donaldson, 99-0369 (La.9/3/99), 740 So.2d 103. Under the rationale of that decision, Mr. Donaldson’s original adjudication under the Habitual Offender Law is not now before this Court, and we cannot consider it. In his most recent application for post conviction relief, Mr. Donaldson only requested an out-of-time appeal of his most recent sentence. His application did not raise the issue of the illegality of his conviction as a second offender, although, as was the case in the earlier out-of-time appeal to this Court, Mr. Donaldson did brief the issue. Even though we might want to consider the issue of the legality of Mr. Donaldson’s adjudication under the Habitual Offender Law, we cannot do so.

Additionally, in State v. Williams, 2002-1030, p. 7 (La.10/15/02), 830 So.2d 984, 988, the Louisiana Supreme Court stated that “[t]he general rule established by this Court is that issues not submitted to the trial court for decision will not be considered by the appellate court on appeal. Constitutional issues are no exception.” The failure of the trial court to apprise Mr. Donaldson of his rights in connection with his adjudication under the Habitual Offender Law was not only not raised in the trial court, it was not raised on appeal when his conviction was originally appealed. Therefore, under the Williams case, we are also precluded from considering Mr. Donaldson’s claims regarding the habitual offender conviction.

Mr. Donaldson also argues that this Court can correct an illegal sentence at any time under the provisions of La. C.Cr.P. art. 882(A), which provides that “[a]n illegal sentence may be corrected at any time by ... an appellate court on review.” | (¡We have reviewed Mr. Donaldson’s thirty-three year sentence, and we find that this sentence is clearly legal under the provisions of La. R.S. 14:64(B), the armed robbery statute, and La. R.S. 15:529.1, the Habitual Offender Law. Even if Mr. Donaldson had not been sentenced under the Habitual Offender Law, his sentence is still well within the legal limits for his armed robbery conviction.

Mr. Donaldson’s first assignment of error is without merit.

Assignment of Error No. 2: The district court erred, on remand, in imposing the sentence of thirty-three years without considering whether a departure from the statutory minimum and consideration of the sentencing guidelines, in effect in 1982, would result in a more appropriate and tailored sentence.

La.C.Cr.P. art. 881.1 provides in pertinent part as follows:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Because Mr. Donaldson failed to make either an oral or written motion for a reconsideration of his sentence, he is now precluded from raising the claim that the trial court failed to consider the sentencing guidelines in La.C.Cr.P. art. 894.1. See also State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775. There is no merit to this assignment of error.

^CONCLUSION

We find no error in the thirty-three year sentence imposed on Mr. Donaldson. The sentence is affirmed.

AFFIRMED.


author: I .GLENN B. GREMILLION, Judge.

text:
    STATE of Louisiana v. Renaldo Gerard SWEET.
    No. 2004-85.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 2004.
    Rehearing Denied Sept. 8, 2004.
    Michael Harson, District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    David Michael Smith, Asst. District Attorney, Lafayette, LA, for Plaintifi/Appel-lee, State of Louisiana.
    D. Warren Ashy, Lafayette, LA, for Defendant/Appellant, Renaldo Gerard Sweet.
    Renaldo Gerard Sweet, LaSalle Correctional Facility, Olla, LA, In Proper Person, Renaldo Gerard Sweet.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   I .GLENN B. GREMILLION, Judge.

In this case, the defendant, Renaldo Gerard Sweet, was convicted of the crime of armed robbery, in violation of La.R.S. 14:64, and was sentenced to thirty years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served. Defendant now appeals his conviction and sentence. For the following reasons, we affirm.

WEIGHT AND SUFFICIENCY OF EVIDENCE

Defendant contends that the verdict is contrary to the law because the evidence was insufficient to convict him of armed robbery. He also claims that the trial court erred by giving improper weight to his alibi witnesses’ testimony and the identification by the victim.

In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

Defendant was convicted of armed robbery in violation of La.R.S. 14:64. Louisiana Revised Statute 14:64 provides: “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” Thus, the State had to prove beyond a reasonable doubt that Defendant was armed with a dangerous weapon when he took the victim’s car from the victim’s 12immediate control.

At trial, Randy Girouard testified that on February 10, 2002, he attended Mardi Gras festivities in St. Martinville and drank two half-pint bottles of Mad Dog/20-20. He later went home and “slept it off’ before going out in Lafayette later that night. At about 10:45 p.m.,. he drove his car to the Mardi Gras festivities in Lafayette. Girouard testified that he was not intoxicated at the time. While looking for a parking spot, he saw a few guys he knew in the Hollywood Barber Shop parking lot. He testified that he noticed an unknown man, wearing a gray hooded sweatshirt, moving from one small crowd of people to another. He stated that he was flagged down by an acquaintance so he parked his car and left it running with the parking lights on. Girouard testified that he got out of his car and walked up to the group of about four guys. He said he greeted his friend, but soon realized that something was wrong. He said he looked back and saw the man in the hooded sweatshirt getting into his car. Girouard. testified that he ran to his car and grabbed the driver’s side door as the man was closing it. He said he was about four feet from him when Defendant pointed a gun in his face and told him to “back the f — k up.” Gir-ouard stated that he moved in front of the car and asked anyone with a cellular phone to call the police. He testified that he could have stopped Defendant if he had not had the gun.

Girouard identified Defendant in open court. He said he got a good look at his hooded face while he was in his car. Gir-ouard testified that he was clearly able to see the man’s facial features again as he drove off, removed his hood, and looked back at him.

IsWhile Girouard was trying to borrow a cellular phone to report the robbery, a man from the crowd told him that the person who stole his car was Renaldo Sweet. The man told him that he had been talking to Sweet when Girouard was on Surrey Street, then Sweet walked over to the group of guys Girouard had stopped to talk with. The man also told him that Sweet had gone to Acadiana High School. The man did not want to give Girouard his name or get involved. Girouard testified that he did not try to find the man later nor did he ask his friends for his identity.

Girouard met with the police at his house and gave them a description of the robber. Girouard testified that he later looked in a 1997 Acadiana High School yearbook and found a picture of Renaldo Sweet. He identified the photograph as the same man who took his car. Girouard later identified Defendant in a photographic lineup presented to him by the Lafayette Police Department. Girouard said he immediately identified photograph number three as the man who robbed him.

On cross examination, Girouard stated that the Simcoe strip is very crowded during Mardi Gras and that there are several clubs in the area. He denied knowing that the area is the highest crime area in Lafayette. He testified that he left his car running because he did not think anyone would take it, he knew a few of the people in that parking lot, and he did not venture far from his car. Girouard admitted he was far enough away from his car for someone to get into it without him realizing it.

Regarding his identification of Defendant, Girouard stated that he saw him clearly from a few feet away, but he did not notice any identifying marks, tattoos, or scars on Defendant’s face. However, Defendant has two tattoos on his neck, which 14he had at the time of this incident. He has a blood red tattoo dripping “blood” in the middle of his throat and a tattoo reading “Raw” on the left side of his neck.

Lafayette Police Detective Brian Racca testified that when he interviewed him, Girouard had already developed Defendant as the suspect from information he acquired at the scene and from a high school yearbook. He testified that because the identity of the robber was supplied by Girouard, he did not obtain a detailed description. Eleven days later, Detective Racca showed Girouard a photographic lineup. He testified that he did not suggest to Girouard that the individual involved was pictured in the lineup. He stated that he only showed Girouard the one photographic lineup and did not show him any other lineups minus Defendant’s photograph. Girouard positively identified Defendant as the robber.

Girouard’s vehicle was later recovered in Vermilion Parish, where it had been stripped and burned. Defendant was arrested based on a warrant Detective Racca prepared for carjacking. He stated that the crime of carjacking was chosen based on the information Girouard supplied to the police. Detective Racca stated that after Defendant was arrested, he denied any involvement in the robbery.

Kendrick S. Boudreaux, a lifelong friend of Defendant, testified that he drove Defendant to Baton Rouge on Saturday, February 9, 2002, the day before the incident in question. He claimed that Defendant was going to visit his daughter and her mother, Nikki. Boudreaux said he could not remember Nikki’s address or neighborhood, and explained that Defendant had given him directions over the phone. He testified that he dropped Defendant at Nikki’s house late Saturday night and then drove to his girlfriend’s house in Duson. Boudreaux stated he picked up Defendant |Bat Nikki’s house in Baton Rouge late Monday night, February 11th, at approximately 1:00 a.m. He testified that Defendant did not return to Lafayette before Monday because Defendant called him from Nikki’s house on Monday afternoon and because he had no other ride home.

Boudreaux also stated that he learned a few weeks after Defendant was arrested that someone had accused him of a crime. However, he stated that he did not talk to Defendant until a few days before trial, even though Defendant had been in jail about one year. Boudreaux explained that he had previously talked to Defendant’s lawyer after he learned from Defendant’s mother the date of the suspected crime. Boudreaux admitted he has a 1999 conviction of accessory to armed robbery, but stated that he has served his time and is not on probation or parole.

Diondra Laday, another long-time friend of Defendant, testified that she was living with Defendant’s mother at the time of the incident because she was dating his brother. She stated that she had a phone conversation with Defendant at 11:30 p.m. on the night in question, February 10th. La-day testified that she remembered the date because it was one day before her birthday, February 11th. She said that she remembered asking Defendant what he was going to bring her from Baton Rouge for her birthday the next day. She stated that when Defendant called, the caller ID box attached to her phone showed Baton Rouge and displayed a number beginning with the area code 225. However, she could not remember the complete phone number.

On cross examination, Laday testified that she talked to Defendant’s mother about a week after he was arrested and learned that she might be a witness in the case because she had talked to Defendant on February 10th. She stated that she I r,did not notify the police about this information, but instead told Defendant’s mother, who then told his lawyer.

Elements of Armed Robbery

Defendant argues that the evidence at trial was insufficient to convict him of armed robbery. Without conceding that he was involved in the crime, Defendant contends that the evidence, when viewed in the light most favorable to the State, could have sustained a conviction for nothing more than the offense of carjacking. La. R.S. 14:64.2 states, in pertinent part:

Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32:1(40), belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.

Defendant argues that armed robbery requires a taking from the immediate control of another and that the facts establish that Girouard was not in control of his car while he was standing several feet away from it. He contends that if Girouard had the immediate control of his car, no one could have gotten into it without his knowledge. Defendant claims that the evidence supports only a charge of carjacking, as the robber had already taken control of Girouard’s car and was in the process of driving off when he revealed the gun.

In State v. Jones, 36,553 (La.App. 2 Cir. 1/9/03), 840 So.2d 7, writ denied, 03-956 (La.10/3/03), 855 So.2d 309, the second circuit resolved a similar issue. In Jones, the victim was delivering newspapers to coin operated boxes when he pulled up next to a box, left his engine running, and stepped a few feet away while carrying the papers to the box. An armed robber appeared and hit the victim in the head several times with a gun during a brief struggle. A second man appeared and |7knocked the victim down. The two men then got into the van and drove away. The defendant argued that the victim’s van was not in his immediate control as required by the armed robbery statute. The court found the evidence was sufficient to prove armed robbery even though the victim was not occupying his van at the time it was taken.

The Louisiana Supreme Court in State v. Cooks, 97-0999, p. 28 (La.9/9/98), 720 So.2d 637, 652, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999), has stated:

This court has stated the immediate control requirement of the armed robbery statute is satisfied when property taken is within the presence of the owner. State v. Refuge, 300 So.2d 489 (La.1974). This court has further noted that armed robbery may occur where property taken is not in actual contact with the victim. State v. Verret, 174 La. 1059, 142 So. 688 (1932); State v. Boelyn, 432 So.2d 260, 261-262 (La.1983).

In the instant case, although Girouard testified at trial that he had walked away from his car, he also stated that once he realized his car was being taken, he returned to it, grabbed the open door, and tried to prevent Defendant from driving away. It was at this point that Defendant aimed the gun at Girouard. Given these facts, the trial court could have found that the State proved the elements of armed robbery beyond a reasonable doubt.

Faulty Identification

Defendant also argues that the trial court erred in relying on Girouard’s tainted and inexact identification of him as the armed robber. He claims that Girouard had drunk two bottles of liquor that day, his name was suggested to Girouard, and that even though Girouard allegedly got a good look at him, he never lssaw any tattoos.

Defendant cites State v. Ourso, 502 So.2d 246 (La.App. 3 Cir.), writ denied, 505 So.2d 1138 (La.1987), for the holding that where the identity of the perpetrator is the key issue at trial, the state has the burden of negating all reasonable probability of misidentification. He claims that, in the instant case, there is a high probability of misidentification because Girouard did not see the obvious tattoos on his neck. However, Girourad’s testimony indicated that Defendant had a hood pulled over his head during the robbery, but that he removed the hood and looked back at him as he drove away. Moreover, there is no evidence that would show that the tattoos were clearly visible at night considering the type of garment worn by Defendant.

Although Defendant did not file a motion to suppress the identification, he complains that the identification was tainted and relies on the five-factor test for determining the admissibility of a suggestive pretrial identification. In State v. Broadway, 96-2659 (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), the supreme court stated:

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.

19In the instant case, Girouard testified that he was able to see Defendant’s face when he grabbed his car door and Defendant pointed a gun at him from inside the car. He testified that he was focused on Defendant and on preventing him from driving away with his car. Girouard stated that he was positive that Defendant was the man who took his car. He also positively identified Defendant in a photographic lineup eleven days after the robbery.

On the other hand, Defendant contends that Girouard’s identification was suspect because he was drunk, it was dark, and he was at a Mardi Gras parade at the time of the robbery. He further argues that Gir-ouard did not see the obvious tattoos on his neck. Despite this fact, the trial court determined that Girouard’s testimony was credible and we will not second-guess the trial court’s credibility determinations.

Weight of Alibi Testimony

Defendant argues that the trial court failed to adequately consider the testimony of his alibi witnesses, Boudreaux and La-day. He claims that the witnesses established that he was in Baton Rouge when the armed robbery occurred in Lafayette on Sunday, February 10th. Thus, he contends that the witnesses’ testimony, along with Girouard’s questionable identification, established reasonable doubt as to his identification.

With regard to witness testimony, we have said:

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 452 So.2d 234 (La.App. 1 Cir.1984), writ not considered, 456 So.2d 161 (La.1984), reconsideration not considered, 458 So.2d 471 (La.1984). The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand[,] 429 So.2d 1385 (La.1982). Thus, in the absence |1nof internal contradictions or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion. State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992).

State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir.1993), writ denied, 93-2774 (La.1/13/94), 631 So.2d 1163.

A review of the record reveals that the trial court chose to believe Girouard’s testimony over that of Defendant’s alibi witnesses. It is the role of the factfinder to weigh the credibility of witnesses and this court should not second-guess those credibility determinations beyond the sufficiency evaluations under the Jackson standard of review. Accordingly, we cannot say that the trial court abused its discretion. When viewing this evidence in the light most favorable to the State, we find that the evidence presented at trial was sufficient to support Defendant’s conviction of armed robbery. Therefore, these assignments of error are without merit.

EXCESSIVE SENTENCE

In his final assignment of error, Defendant contends that his sentence of thirty years at hard labor without benefit of probation, parole, or suspension of sentence is excessive. Although he neither objected to the length of his sentence at his sentencing hearing nor filed a motion to reconsider sentence as required by La. Code Crim.P. art. 881, we shall review Defendant’s sentence for constitutional ex-cessiveness pursuant to our decision in State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-0029 (La.10/14/02), 827 So.2d 420.

Defendant was convicted of armed robbery and sentenced to serve thirty years at hard labor for armed robbery. He could have been sentenced to a term of imprisonment from ten to ninety-nine years without benefit of parole, probation, or _[iJsuspension of sentence. La.R.S. 14:64. In sentencing Defendant, the trial court made the following comments:

Well, this has been a hard decision for me, and I had a lot of information to look at to decide what would happen to you. I’ve reviewed the guidelines for the crime of armed robbery, and I had decided at first to give you more time than this, but in an effort to let you get out at least when you are a fairly young man, I’m going to sentence you to thirty (30) years.
The Defendant alleges that this sentence is excessive.
The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La. 1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993).

State v. Wilturner, 03-719, p. 5 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, 746.

Although the trial court did not specifically mention Defendant’s pre-sentence investigation report, we note that the twenty-three-year-old Defendant is a second felony offender. In State v. Valrie, 99-226 (La.App. 3 Cir. 10/13/99), 749 So.2d 11, writ denied, 99-3236 (La.4/20/00), 760 So.2d 343, we upheld a thirty-year sentence for armed robbery for a second-felony defendant. Based on the Defendant’s status as a second felony offender and this court’s ruling in Valrie, we cannot say that h ¡.the trial court abused its discretion in imposing his sentence nor can we say that the sentence makes no measurable contribution to acceptable penal goals. Accordingly, Defendant’s sentence is not excessive and this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: L SAUNDERS, Judge.

text:
    THE CARMOUCHE LAW FIRM, APLC v. Scott J. PIAS.
    No. CA 2004-130.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 2004.
    Rehearing Denied Sept. 8, 2004.

      William Joseph Mize, Robichaux, Mize & Wadsack, and Gerald Joseph Casey, Lake Charles, LA, for Plaintiff/Appellee William Joseph Mize, John Frederick Wadsack and John F. Robichaux.
    Gerald Joseph Casey, Lake Charles, LA, for Plaintiff/Appellee David Ross Frohn and Terry Thibodeaux.
    Kathleen Kay, Lake Charles, LA, for Defendant/Appellant Scott James Pias.
    Leslie Qvale Knox, Lake Charles, LA, for Plaintiff/Appellee The Carmouche Law Firm, APLC.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   L SAUNDERS, Judge.

Plaintiffs and defendant appeal the judgment of the trial court awarding Scott Pias $38,234.50, for termination without cause by The Carmouche Law Firm (“TCLF”) and payment for work performed for the firm from October 1, 1996 to December 6, 1996, and awarding TCLF $6,102.02 based on the calculation found in a Shareholders Agreement addressing the redemption of shares upon a shareholder’s termination. TCLF also appeals the trial court’s decision to appoint a liquidator to facilitate the dissolution of TCLF. For the reasons stated below we affirm in part, reverse in part, and remand.

FACTS

The TCLF, is a professional law corporation formed in April of 1990. As of January of 1996, the shareholders/directors of the firm were Joseph A. Dela-field, David, R Frohn, W. Joseph Mize, Scott J. Pias, John F. Robichaux, Terry Thibodeaux, and John F Wadsaek. On February 14, 1996, all shareholders of the firm signed a Shareholders Agreement, effective as of October 1, 1995, which forms the basis for this suit. Additionally, all shareholders also signed an Employment Agreement, also effective October 1, 1995.

In the Spring of 1996, Delafield and Pias accepted representation of Crane Ceaux. During the course of that litigation, Dela-field and Pias were cited for contempt by the presiding judge. Marty Stroud was retained to represent Delafield and Pias in this contempt proceeding, with an agreement among all shareholders of TCLF that the firm would pay all legal bills for his representation of Delafield and Pias in the contempt proceeding.

In late September 1996, during the pen-dency of the contempt proceeding, Dela-field and Pias traveled to Chicago to attend the National Bond Lawyers | ¡Association annual meeting. While at this conference, the attorney for the Fourteenth Judicial District Court presented a letter for Delafield and Pias to sign. The letter was not presented during this trial, and the actual contents of it are the subject of much dispute. It is alleged by Pias that it contained an admission of guilt as to the contempt charge, and a formal apology. Pias and Delafield were contacted in Chicago by Mize to discuss the letter, its contents, and whether they would agree to sign. Believing the letter contained an admission of guilt, Pias and Delafield both refused to sign the letter.

The actual chain of events following the phone conversations between Mize and Pias and Mize and Delafield are intensely contested. Pias and Delafield both allege that they were told they must sign the letter or the firm would refuse to pay Stroud’s attorney fees on their behalf and they would be asked to leave the firm. Frohn, Mize, Robichaux, Thibodeaux, and Wadsaek deny that there was ever any mention of termination during this discussion, or after Pias and Delafield returned from the conference. Pias and Delafield eventually resolved the contempt issue by signing a different letter of apology, and Stroud’s legal fees were eventually paid by the firm. Pias remained at TCLF wrapping up his files until December 6, 1996. The firm continued the practice of law until January of 1998, at which time Dela-field tendered his resignation and the remaining members split and formed two new law firms, Frohn & Thibodeaux and Robichaux, Mize & Wadsaek. Delafield, Frohn & Thibodeaux, and Robichaux, Mize & Wadsaek all continued to occupy the physical space which had been leased by TCLF.

Following Pias’ departure, Robichaux wrote a letter to Pias advising him that, based upon the withdrawal formula contained within the Shareholders Agreement, | aPias owed the firm $49,552.87, payable in thirty-six ■ monthly installments. The Shareholders Agreement, signed by all shareholder/directors of the firm on February 14, 1996, contains the following provision for redemption of shares upon a shareholder’s termination:

1.1 Withdrawal. Should a shareholder’s employment with the Corporation terminate for any reason other than the shareholder’s permanent disability or retirement (both as described below) or death, the Corporation shall redeem the entirety of its common stock held by that shareholder for a redemption price equal to that shareholder’s proportionate share (determined by dividing the number of shares of stock of the Corporation outstanding on such date) of the outstanding stock of the corporation (Capital Percentage) as of the beginning of the fiscal year in which that shareholder’s termination of employment is effective, times eighty percent (80%) of the invoiced and unpaid fee and expense accounts receivable of Corporation, that are 120 or less days old and reasonably determined by the Corporation to be collectible, as of the effective date of withdrawal; plus the shareholder’s capital percentage times a sum equal to six (6) times the average monthly net earnings of the Corporation for the twelve (12) consecutive calendar months immediately preceding the calendar month of the effective date of withdrawal; less the shareholder’s capital percentage times the total outstanding indebtedness of the Corporation on the following obligations: [1] First National Bank Long Term Loan; [2] First National Bank Line of Credit Loan; [3] Building Space Lease with Premier Bank; [4] Notes payable to shareholders; and [5] accounts payable.

In June of 1999, following Pias’ refusal to pay, TCLF filed a Petition for Money Judgment. Pias filed an exception claiming non-joinder of indispensable parties, seeking to have the other shareholders/directors joined as parties to the lawsuit. The trial court sustained the objection and ordered that Robichaux, Mize, Frohn, Thi-bodeaux, and Wadsack be made parties to the lawsuit. In June of 2001 Pias filed an Answer to Plaintiffs Petition for Money Judgment and First Supplemental and Amending Petition and Reconventional Demand. In his reconventional demand Pias sought damages specified under his employment contract for termination without cause. In addition, Pias requested the appointment of a | ¿liquidator pursuant to La.R.S. 12:143. Trial on the merits was held May 12 and 13, 2003.

The trial court issued Written Reasons for Judgment on June 6, 2003. The court held that Pias owed TCLF $6,102.02 under the terms of the Shareholders Agreement. The court also held that Pias was terminated by TCLF without cause and awarded him $25,546.50 under the terms of his Employment Agreement, and $12,688.00 for work he performed for the firm between October 1, 1996, and December 6, 1996. Finally, the trial court appointed a liquidator as requested by Pias to force the dissolution of TCLF, which the trial court found was no longer operational. On August 28, 2003, the trial court entered a money judgment in favor of Pias in the amount of $31,264.76 and appointed Leslie Knox as the liquidator of the TCLF.

MOTIONS OF NO RIGHT/CAUSE OF ACTION

As a preliminary matter, all parties filed exceptions in this appeal. Pias filed a Peremptory Exception of No Right of Action against the individual shareholders/directors of TCLF. He alleges that they have no right to appeal a judgment in favor of or against TCLF. He urges they cannot seek redress through appeal on behalf of the corporation as requested in their answers. In support of this contention Pias cites the first circuit case of Dawson Engineers, Inc. v. Lemel Iron Works, Inc., 307 So.2d 771 (La.App. 1 Cir. 1975), claiming that the situation in the present matter is “factually identical” to the Dawson case.

Dawson is clearly distinguishable from the present matter. In that case Dawson Engineers, Inc. filed suit against Lemel Ironworks, Inc. for damages arising from Lemel’s alleged refusal to permit Dawson Engineers to recover a plate roll machine | ¡¡left on Lemel’s premises. Following a trial on the merits, judgment was rendered in favor of Lemel, dismissing Dawson Engineers’ demands. Following the judgment, William J. Dawson, individually, moved for, and was granted, a suspensive appeal. No appeal was taken by Dawson Engineers, Inc. The first circuit held, on its own motion, that there was a lack of valid appeal and a consequent lack of jurisdiction. The court stated: “It is basic that a suit can be brought only by one having a real interest in the subject matter thereof. [La.Code Civ.P. art. 681]. Appeals may be taken only by parties to the suit, their legal representatives, or by third persons who could have intervened in the trial court. [La.Code Civ.P. arts.2082, 2086].” Id. at 772.

The key distinction between the Dawson case and the present matter is that Mr. Dawson was never a party to the suit, and therefore, lacked standing to appeal the trial court’s judgment. In the instant case, Pias sought to join the individual shareholders as indispensable parties in this suit against him. He succeeded, and the trial court granted his request with respect to all individual shareholders except Delafield. Louisiana law is clear in its interpretation of La.Code Civ.P. art. 2082. Any party to a suit may appeal the judgment of the trial court. Pias joined the individual shareholders, and cannot now attempt to un-ring that bell and deny them, as parties to the suit, the ability to appeal the trial court’s judgment. Accordingly, Pias’ motion is denied.

The individual shareholders, as appel-lees and cross-appellants, filed Peremptory Exceptions of No Right of Action, No Cause of Action, Res Judicata, and Prescription. They claim that Pias has no right of action to seek the involuntary dissolution of TCLF and is not one of the persons authorized to request the | r,appointment of a liquidator pursuant to La.R.S. 12:143(B). Additionally, they argue that Pias has failed to state a cause of action which would allow him to seek a money judgment against the individual shareholders for the debts of the corporation. Furthermore, if any such cause of action was stated, it would be barred by preemption as set forth in La.R.S. 12:92(D), and regardless, is res judicata as a result of an express release of such shareholders by Pias.

For the reasons we state below, we reverse the appointment of a liquidator to handle the dissolution of TCLF, and we affirm the judgment of the trial court denying Pias’ requests for money judgment against the individual shareholders of TCLF. As Pias’ request for money judgment against the individual shareholders is denied on other grounds, we will not address the issue of res judicata by an earlier express release of the shareholders by Pias.

ASSIGNMENTS OF ERROR

Pias presents the following assignments of error for our review: did the trial court err in finding that TCLF could bring suit to enforce the Shareholders Agreement when it was not a party to the agreement; did the trial court err by allowing Plaintiffs Exhibit No. 2 into evidence and allowing Wadsack to testify as to its contents; and finally, did the trial court err in refusing to find the shareholders/directors of TCLF personally liable for the debt of the firm following the unlawful distribution of assets to themselves, which distribution renders the corporation insolvent.

The individual plaintiffs have not presented a single brief, but have grouped themselves and submitted a total of three briefs between them: a brief has been filed by Frohn, another has been filed by Thibodeaux, and one brief has been filed on behalf of Mize, Robichaux, and Wad-sack collectively. Although the plaintiffs have ^presented a total of three separate briefs, the arguments within them are substantially similar and they raise essentially the same issues on appeal. For organizational simplicity we have consolidated their arguments and present them as issues raised by the plaintiffs/appellees collectively-

The plaintiffs present the following assignments of error: did the trial court err in making the factual determination that Pias was terminated, in light of the fact that the legal requirements for such termination had not been established; did the trial court fail to properly interpret the Shareholders Agreement by altering the withdrawal formula and limiting Pias’ lease obligation to the time period specified for early termination within the firm’s business space lease with Premier Bank as well finding that TCLF had a duty to mitigate its damages in this situation; and finally, did the trial court err in appointing a liquidator at Pias’ request to force the dissolution of TCLF.

LAW AND ARGUMENT

Pias’ Assignments of Error

Assignment of Error # 1

In his first assignment of error, Pias claims that the trial court erred in ruling that TCLF had standing to bring suit against him to enforce the Shareholders Agreement when the firm was not a party to that agreement. Pias claims that TCLF was not a signatory to the written contract, and therefore, it cannot be bound. The plaintiffs counter that, pursuant to La.R.S. 12:809, a professional law corporation is bound by the terms of a shareholder agreement signed by all the voting shareholders. The trial court agreed with the plaintiffs, stating in its reasons for judgment:

It is the contention that THE CAR-MOUCHE LAW FIRM is not the proper party to bring the action since it did not sign the Shareholder Agreement. The Employment Agreement and the Shareholder Agreement are intertwined. THE CARMOUCHE LAW FIRM is | .¡specifically mentioned and referred to a number of times as a corporation throughout the document. All parties to THE CARMOUCHE LAW FIRM signed the document as well as the individual Employment Agreement. Therefore, the Court finds no merit that THE CARMOUCHE LAW FIRM has no standing to bring this action.

We agree that there is no merit to this assignment by Pias, and we affirm this ruling by the trial court.

Assignment of Error # 2

In his second assignment of error Pias claims that the trial court clearly erred in granting any weight to Wadsack’s testimony as to the calculation of the debt Pias allegedly owes to the firm, as well as in admitting plaintiffs exhibit number 2 into evidence, a letter to Pias accompanied by the summary of the amount he allegedly owes the firm pursuant to the withdrawal calculation contained in the Shareholders Agreement. Pias argues that it was error for the trial court to admit that summary as an accurate reflection of the values to use in the withdrawal calculation. He argues that, pursuant to the Louisiana Code of Evidence, the contents of otherwise admissible evidence may be admitted in the form of a chart, summary, or calculation only where the evidence supporting the summary is made available for examination. La.Code Evid. art. 1006. Furthermore, Pias draws our attention to author’s note four of the La.Code Evid. art. 1006, which states that there are four foundational requirements which must be satisfied prior to the admission of such a summary. Those requirements are: (1) the underlying materials must be so voluminous that they cannot be conveniently examined in court, (2) it must be demonstrated that the underlying materials which are summarized are otherwise admissible into evidence, (3) advance notice and opportunity to examine the underlying evidence must be given to the opposing side, and (4) the summary must be authenticated.

| gPias contends that the underlying materials used in preparing the document and providing the values used in the redemption equation were never made available for his examination, despite repeated requests both before and during the trial. Pias claims that Wadsack, who was the sole source of testimony supporting the document and who performed the calculation of the redemption equation, relied heavily on hearsay evidence in preparation of the summary. Therefore, Pias alleges that the document itself is hearsay not subject to any exception.

Pias urges that the insufficiency of the evidence used to support this summary was made abundantly clear during trial. No documentation was provided to support the underlying first variable of the equation, the shareholder’s capital percentage, or the value used as the average monthly net earnings, notes payable to shareholders, or accounts payable. Furthermore, Wadsack was unable to provide even basic information to support his values used, such as where, or from whom, he obtained these figures. Most striking, it was shown at trial that the figures presented in court testimony were different than the figures actually used in the calculation. Pias argues that the trial court erred in awarding any sum to TCLF under the terms of the contract as there was no competent evidence upon which it could base that award.

In our review of the trial record, and the testimony at trial, it is clear that the summary admitted as Plaintiffs Exhibit No. 2 suffers from a great many inadequacies and inconsistencies. An excerpt from the cross examination of Wadsack during trial reads as follows:

Q. Can you tell me how you arrived at the figure that you inserted into your spreadsheets?
A. Which are you talking about, the figure 43,786.35? Is that the figure that you’re talking about?
hoQ. I’m talking about the figure that’s next to the average monthly net earnings.
A. And that number is 43,786.35.
Q. Yes. Bow’d you arrive at that number?
A. I cannot tell you.
Q. You can’t tell us?
A. Other than reading what’s in the Shareholder’s Agreement.
Q. Well, how do we know what numbers you relied on to arrive at that figure?
A. That was the number that was provided to me at the time the calculation was run.
Q. But you can’t tell me how — so you yourself did not calculate that?
A. I did not calculate that number and I do not have—
Q. Any you don’t have the person who calculated the number?
A. I’m sorry, I—
Q. Whoever did calculate that number I’m assuming isn’t here today?
A. No.
Q. So you can’t testify as to what documents they relied upon to arrive at that number?
A. No.
Q. Nor can you tell me about what methodology they used to get there?
A. That’s correct.
Q. Okay. The next number you have on here is the First National Bank loan. Where did you get that number from?
A. It was off one of those sheets that was provided to you yesterday. I’ve [sic] believe it’s sheet number four.
Q. Do you have anything from the bank that verifies the figure on there?
In A. Asking me personally?
Q. Yes.
A. No, I do not.
Q. Did you personally consult with the bank to verify the accuracy of that figure on December 6th?
A. No, I did not. Or at any other time.

The responses contained in this line of questioning are representative of the responses given by Wadsack upon questioning about the value used to represent the First National Bank Credit Line. Additionally, the value used for shareholder notes on the spreadsheet, $20,656.58, is different than the value for that figure which appears on the documents presented by the firm to support its calculation of the withdrawal equation, $14,982.56. On the stand Wadsack acknowledged this clear discrepancy. A similar discrepancy was shown during trial between the value for accounts payable found on the spreadsheet used to run the equation, $47,801.28, and the documentation provided at trial to support the information used to run the spreadsheet, $43,759.42.

We agree that the spreadsheet was not valid evidence, and does not stand for what it purports. Furthermore, these are not inconsistencies that can be resolved without additional documentation from TCLF indicating the accurate value to be used for the variables in the withdrawal equation contained in the Shareholders Agreement. Accordingly, we find that any calculation of Pias’ financial obligation to the firm based upon the information contained in this summary is inherently faulty and, therefore, inadmissible. We remand the matter of the accurate calculation of the withdrawal equation contained within the Shareholders Agreement to the trial court for recalculation following presentation of an adequately supported figured for use Lain that calculation.

Assignment of Error # 3

In his final assignment of error, Pias claims the trial court erred in failing to find personal liability on the part of the individual defendants in reconvention. The trial court did not address Pias’ claims against the individual defendants in recon-vention in its reasons for judgment, or in the judgment itself. He notes that, when a trial court fails to address a claim placed before it, that claim is presumed to have been rejected by the trial court for purposes of appeal. Big “D” Dirt Services, Inc. v. Westwood, Inc., 94-1234 (La.App. 3 Cir. 3/1/95), 653 So.2d 604.

Pias argues that Frohn, Thibodeaux, Ro-bichaux, Mize, and Wadsack entered into an agreement on March 19, 1998, whereby they agreed to “wind up the affairs” of the corporation, and they transferred one-fifth of the cash collected by the firm for time and expenses owed to it through January 1, 1998, to each of them. The agreement indicates that the consideration for this disbursement was that they had not been paid their salaries for a number of months, and the five signatories had assumed five-sixths of the short term debt of the firm, and five-sevenths of the long term debt of the firm. Pias claims that, according to this agreement, these five individuals received cash from the firm totaling $402,053.73. Pias alleges that the sole purpose of this agreement was to dissolve the Corporation, stripping it of assets and rendering the firm worth virtually nothing.

Pias relies heavily on the case of Lopez v. TDI Services, Inc., 93-619 (La.App. 3 Cir. 2/2/94), 631 So.2d 679, writ denied 94-864 (La.6/3/94), 637 So.2d 501. He notes that, in Lopez, this court found that the officers and directors of a corporation owe a fiduciary duty to the corporations creditors, and are under an obligation to see 1 iathat the creditors are paid. We found the shareholder/director in that case personally liable to a creditor of the corporation for a debt owed. .The creditor in Lopez was a former employee, and the debt was in the form of unpaid wages, penalties, and attorney fees. Pias argues that, just as is the case here, the shareholder/director had entered into a transaction with the corporation to repay a debt allegedly owed to him, with the effect of stripping the corporation of cash with which to pay the debt owed to the plaintiff. Pias argues that we found that this transaction by the defendant constituted a breach of his fiduciary duty as an officer and director of the corporation to the plaintiff who was a creditor. Pias urges that this same analysis applies in the instant matter, and the individual shareholder/directors of the firm should be held personally liable for the firm’s debt to him.

The plaintiffs argue that Lopez is factually distinguishable from the present mat- • ter, and the holding in that case does not apply in this situation. They contend that any evidence presented at the trial court level to support a request to hold the plaintiffs personally liable for any debts of the firm is completely lacking and would not justify piercing the corporate veil in this matter.

As a general rule, corporations in Louisiana are distinct legal entities separate from the individuals comprising them. As a result, shareholders are not liable for the debts of the corporation except in very limited circumstances. Louisiana Revised Statute 12:93 provides in pertinent part:

B. A shareholder of a corporation organized after January 1, 1929, shall not be liable personally for any debt or liability of the corporation.
D. Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the [14amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.

We find the plaintiffs are correct in their assertion that Lopez is factually distinguishable from the present matter. The events which led to our finding of personal liability for the corporation’s debts in that case do not correspond with the actions of the plaintiffs in the present matter. In Lopez we held:

The evidence clearly shows that Thomas DesOrmeaux has incorporated at least six different companies in less than ten years. Each new company was clearly formed in order to escape the liabilities and creditors of its predecessor. The business of each company exclusively involved the DesOrmeaux patented technology for waste disposal, the license for use for which was granted and withdrawn at the whim of the patentholders. The sole patentholder since June 1988 has been Thomas DesOrmeaux. There is no evidence that any of the companies was ever legally dissolved; they simply stopped doing business. Each successor corporation used the personnel and equipment of its predecessor. The operational management of each corporation remained in the hands of Thomas De-sOrmeaux.
Thermal Dynamics, Inc. and TDI Services, Inc. were grossly undercapitalized. The only capital contributed by the shareholders was $1 per share, for 1000 shares. All other financing for these companies, running to millions of dollars, came from outside investors, creditors who have, for the most part, not •been fully repaid.
We see no policy reason not to hold Thomas DesOrmeaux personally liable for the judgment owed to Lopez by Thermal Dynamics. The purpose of limited liability, to encourage investments in high risk businesses by enabling investors who use the corporate form to make capital contributions while insulating their personal wealth from the business risks, is not served in this case. Thomas DesOrmeaux essentially risked nothing; his creditors risked all. The only asset of value to these corporations, the patent rights valued at $125,000,000, always remained in the ownership and control of the DesOrmeauxes and, since June 1988, of Thomas DesOrmeaux.

Lopez, 631 So.2d at 686.

The situation described above, which justified piercing the corporate veil in the Lopez case, does not exist here. We have not been provided with any conclusive |1sevidence that the distribution of cash to the shareholders which resulted from the 1998 Shareholder Agreement was an illegal transaction or was conducted for the specific purpose of avoiding the debt obligations of the corporation, which would justify piercing the corporate veil under La.R.S. 12:93(D). There was evidence presented at trial that it was a regular occurrence for the shareholders to have to temporarily do without their monthly draws due to cash flow issues within the firm. Furthermore, there was no evidence presented by Pias to contradict the plaintiffs’ contention that they had not been receiving their salaries for several months. Without more, we do not find adequate circumstances to justify piercing the corporation veil in this matter and impose liability on the individual shareholders/directors of the Carmouche Firm.

Plaintiffs’/Appellees’ Assignments of Error

Assignment of Error # 1

In their first assignment of error the plaintiffs note that the trial court’s interpretation of the Employment Agreement turns on its determination that Pias was fired. They allege that, on Friday December 6,1996, Pias informed the firm’s corporate secretary that he quit the firm. Up until that day, they claim that there had been no discussions among the directors to fire Pias. They insist that there had been no meeting and vote to terminate Pias, and no action to terminate him was taken by any director. The plaintiffs argue that only the self-serving testimony of Pias himself contradicts their position.

The plaintiffs also argue that there is no legal basis for concluding that Pias was terminated. They state that La.R.S. 12:224 requires a vote for the termination of a director of a corporation. They insist that there was no evidence presented | ^indicating the required meeting of shareholders and subsequent vote for termination of Pias and Delafield ever occurred. They further argue that this is not a case of apparent authority, as that doctrine cannot apply to someone with knowledge who cannot show a reasonable reliance on the apparent scope of an agent’s authority. They insist that Pias, as an attorney, knew and understood his relationship to the rest of the directors and knew that Mize did not have the authority to fire him without the required vote by the firm’s shareholders.

The plaintiffs also claim that the trial court mistakenly determined that Delafield was offered a continuing relationship with the firm while Pias was not, and that the trial court erroneously treated the rent sharing agreement with Delafield as being contemporaneous with Pias’ departure. In addition, another basis for the trial court’s determination that Pias was fired is the assertion that Pias did not receive any new assignments of files during the two months prior to his departure. They claim that there was no testimony regarding the issue of how a director in the firm receives business, whether it is assigned or the director is expected to generate business.

The Employment Agreement signed by all of the shareholders of TCLF, including Pias, provides the following provisions for a shareholder’s termination of employment with the firm:

8. Termination of Employment. Employer may terminated this Agreement without cause at any time (except during a period when Employee is totally disabled) upon thirty (30) days written notice to the Employee, and Employer shall only be obligated to continue to pay Employee a pro rata portion of Employee’s Annual Salary (based on the number of months employed during the fiscal year) due him under this Agreement through the date of termination, plus thirty-five (35%) percent of Employee’s Annual Salary for the immediately preceding fiscal year of Employer, payable over (6) equal monthly installments, which shall be in lieu of any claims Employee may have with respect to accounts generated by Employee while an employee hereunder. If Employee is terminated with cause, then he is not entitled to any 1 ^compensation beyond his compensation through day of termination.
Following any notice of termination of employment hereunder, whether given by Employer of Employee, Employee shall fully cooperate with Employer in all matters relating to the winding up of his pending work on behalf of the Employer and the orderly transfer of such work to the other professional employees of Employer.

The question of whether Pias was, in fact, fired by the firm, is one of fact and will not be set aside on appeal absent manifest error by the trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Furthermore, where findings are based on evaluations of credibility of witnesses, the manifest error/clearly wrong standard of review requires great deference for the factfin-der’s conclusions. Id. In our review of the record we find no such manifest error in the determination of the trial court that Pias was fired by the firm.

In particular, we note that it seems clear that the trial court was persuaded by the testimony of Delafield, called as a witness by TCLF and not Pias. Delafield supported Pias’ position that they were told they would be terminated if they refused to sign the letter of apology, and that he felt that he had been fired. Despite this impression by Delafield, he stated that he refused to leave the firm unless he was physically removed by the other shareholders, and eventually his standing in the firm was clarified.

In its reasons for judgment, the trial court stated:

Delafield who testified as a witness called by CARMOUCHE and was probably the only disinterested witness to testify, testified that he thought he was terminated in September of 1996 but that he refused to leave the firm and stayed on and rented space from the firm until he finally left in 1998. On December 6,1996 PIAS notified the firm that he was leaving. Apparently, they did not offer him the same deal as Dela-field to stay and rent space from them.
|1sPIAS and Delafield, they were certainly made to feel “unwelcome” in the firm by the action of the shareholders subsequent to the September “incident”. PIAS handled no new files and only helped resolve existing files for the firm. He worked from October 1st to December 6th during the new fiscal year for the firm. PIAS was not offered a rental space in the building.
The court believes that PIAS was terminated, Delafield who was in the same boat felt like he was terminated in September 1996. The firm treated PIAS like he was not longer a member of the firm because he was not assigned to any of the new files during the period after October 1, 1996. Although he continued to work on the firms files, he was not treated as a member of the firm.

There is no reference -within the Employment Agreement that a meeting and vote of the shareholders would be required to terminate employment. Following being told by the managing partner that they were going to be “out of the firm” if they refused to sign the letter, it was reasonable for Pias and Delafield to believe that they had been fired. Therefore, we similarly find no error on the part of the trial court in its determination that Pias’ termination was without cause, entitling him to the recovery outlined in the Employment Agreement quoted above. We affirm the ruling of the trial court that Pias was terminated, and that he was terminated without cause. Therefore we affirm the decision of the trial court that Pias is entitled to a payment of $25,546.50, representing thirty-five percent of his salary from the immediately preceding fiscal year.

Assignment of Error # 2

In their next assignment of error, the plaintiffs argue that the intent of the parties as expressed in the 1996 Shareholders Agreement is clear. They argue that the agreement required that any parting attorney is responsible for certain obligations of the firm, including the lease obligation. The plaintiffs insist that the uncontroverted |iqevidence presented at trial was that the total outstanding indebtedness of the corporation for the Premier Bank lease at the time of Pias’ departure was $426,862.00.

The plaintiffs argue that the 1996 Shareholders Agreement did not specifically require that the firm exercise any early termination clause in the lease for the benefit of a departing director. They claim that, as a result of TCLF’s prior experience of having to carry the lease and debt burden of the form after the departure of lawyers, their primary concern in establishing their current lease with Premier Bank was to prevent the possibility of another similar situation. The plaintiffs insist that the relevant clause in the Shareholders Agreement is clear and unambiguous and the trial court should not have looked beyond the four corners of the document to determine the meaning of the provision. Cashio v. Shoriak, 481 So.2d 1013 (La.1986). They contend that the phrase “total outstanding indebtedness” of the corporation on the business space lease found in the withdrawal formula is not subject to further interpretation or dispute.

Pias contends that the plaintiffs’ argument incorrectly assumes that there is only one definition of “total outstanding debt of the corporation on the ... [b]usiness space lease.” Pias counters that the total outstanding debt of the firm with respect to the lease would be how much it would owe on the date of the director’s termination. He insists that amount would be the amount prescribed by the early termination clause in the lease, the most the corporation was obligated to pay under the Premier Bank lease on the date of Pias’ departure, found by the trial court to be $85,408.80.

The business space lease entered into by TCLF with Premier Bank contains the following provision for early termination of the lease:

|an12.1 Early termination. Provided that no Event of Default is then in existence, Tenant, upon giving Landlord 90 days’ prior written notice, shall have the right to terminate this Lease in its entirety and to vacate the Leased Premises upon payment by Tenant to Landlord of a termination penalty equal to the sum of two month’s Base Rental plus the then existing Unamortized Amount.

The extent of the obligation to pay out the Building Space Lease with Premier Bank is not defined to specifically include the full five year term of the lease. We find it is clear that the intent of the shareholders in negotiating this current lease and drafting the 1996 Shareholders Agreement was to prevent the possibility of their being legally obligated to continue rental payments on a lease space they can no longer afford. However, this eventuality was effectively eliminated though the negotiation of their lease with Premier Bank, which contained the early termination clause. The only remaining obligation from which they needed to protect themselves via the 1996 Shareholders Agreement was the fulfillment of the remaining financial obligation in the event they must exercise the early termination clause of their business space lease. Any further protection was offered by the lease itself.

We agree with the trial court that the only mandatory obligation on the lease that the firm could be held accountable for in the event of an inability to continue paying on their lease is early termination clause contained in the lease agreement. This provision within the lease provides the Corporation with its desired protection for the risk of having to fulfill a long term and overly burdensome financial obligation. The only protection required by the subsequent shareholder’s agreement is coverage for payments sufficient to satisfy the early termination conditions within the lease. The firms decision to stay in the business space despite the loss of a portion of the funds supporting rent payments is not one that Pias is required to financially support.

12i This is particularly true in these circumstances, where Pias repeatedly offered to remain in the office space and continue to pay on his portion of the lease obligation and the shareholders refused any attempt to reduce the financial burden they were apparently so concerned about. That they chose to deny this very reasonable request from Pias, a request which was later granted to Delafield, indicates to us that they were not overly burdened by the financial impact of Pias’ termination. Where the term of the equation is not specifically defined to include the full remaining term of the lease, and the early termination clause exists within the lease agreement, we refuse to extend Pias’ financial obligation over the entire remaining term of the lease. We affirm the ruling of the trial court holding that Pias’ only obligation for the as to the building space lease is to fulfill the financial obligation that would be incurred upon the firm if it enacted the early termination clause of the lease agreement at the time of his termination.

Assignment of Error # S

In their final assignment of error, the plaintiffs claim the trial court erred in appointing a liquidator to force dissolution of TCLF at Pias’ request. The plaintiffs argues that the statute regarding the involuntary liquidation of a professional law corporation is clear, and Pias does not fit within any of the categories of individuals entitled to bring such an action. Louisiana Revised Statute 12:143 states in pertinent part

B. An involuntary proceeding for dissolution may be instituted against a corporation by either:
(1) A shareholder or shareholders, severally or jointly, who have been registered owners, for a period of not less than six months, of not less than twenty per cent of the entire outstanding shares of the corporation; or
(2) A majority of the corporation’s directors; or
(3) A creditor whose claim has been reduced to judgment, on | gawhich execution has been issued and returned “nulla bona”; or
(4) A receiver appointed under R.S. 12:151 to take charge of the corporation’s property.

The plaintiffs contend that the statute is clear. Pias does not hold, and has never held, at least twenty percent of the entire outstanding shares of the corporation and he is not a receiver appointed to take charge of the corporation’s property. Furthermore, even if Pias is deemed to be a creditor under the terms of the statute, it must first be established that the corporation is actually insolvent before a creditor can force liquidation of the corporation. They stress that Louisiana courts have consistently held that the involuntary liquidation of a corporation is reluctantly applied and the grounds for such a liquidation are limited and specific. LaFleur v. Guilbeau, 617 So.2d 1362 (La.App. 3 Cir. 1993). They insist that Pias is not authorized to bring an action to dissolve the corporation or request the appointment of a liquidator.

We find the trial court abused its discretion in appointing a liquidator at the request of Pias. The plaintiffs are correct in their assertion that Pias does not meet any of the criteria of an individual authorized to bring an action to force liquidation of the corporation under La.R.S. 12:143. Pri- or to instituting such an action Pias must be in possession of a judgment, and he must attempt to execute that judgment and have it returned nulla bona to establish that the corporation is, in fact, insolvent. That has not yet been established in this case. A forced liquidation of the corporation in this matter is premature. The ruling of the trial court appointing a liquidator is reversed.

DECREE

The judgment of the trial court holding that TCLF has standing to bring suit 12ato enforce the terms of the Shareholders Agreement is affirmed, as is its refusal to find the shareholders personally liable for the debts of the firm following the distribution of assets in the January 1998 agreement. The trial court abused its discretion in admitting Plaintiffs Exhibit No. 2 into evidence, as there was no foundation laid that the figures used to calculate the withdrawal equation contained in the 1996 Shareholders Agreement were correct. The matter of the values to be used in calculation of the withdrawal equation is remanded to the trial court and values consistent with this opinion as to appropriate lease obligation shall be used in the withdrawal formula calculation to determine Pias’ financial obligation to TCLF. We affirm the trial court’s conclusion that Pias was terminated without cause and that he is entitled to thirty-five percent of he salary during the fiscal year immediately preceding his date of withdrawal from the firm, or $25,546.50, as well as $12,688.00 in unpaid wages for work he performed for the firm between October 1, 1996 and December 6, 1996. Finally, we reverse the trial court’s ruling appointing a liquidator as requested by Pias. All costs of this appeal are cast against TCLF.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: |,WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Calvin PRESTON.
    No. 04-KA-269.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Frank Brindisi, Assistant District Attorneys, Gretna, LA.
    Maurice L. Tyler, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |,WALTER J. ROTHSCHILD, Judge.

This is defendant’s second appeal before this Court. Defendant, Calvin Preston, was charged by bill of information with possession of cocaine between 200 and 400 grams, a violation of LSA-R.S. 40:967(F)(1)(b). Defendant initially pled not guilty. On December 12, 2002, the trial judge held a hearing on defendant’s motion to suppress and took the matter under advisement. On January 16, 2003, the trial judge denied the motion. Defendant subsequently entered a guilty plea reserving the right to appeal the trial judge’s denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). The trial judge imposed a sentence of ten years at hard labor and a $100,000 fine. Defendant filed a motion for appeal, which was granted.

On appeal, this Court vacated defendant’s plea and sentence because of a reversible patent error. State v. Preston, 03-540 (La.App. 5 Cir. 10/28/03), 857 So.2d 42. In particular, this Court discovered that the record reflected that defendant pled guilty to possession with the intent to distribute 200 to 400 grams |sof cocaine, which is not a responsive crime to the original charge of possession of cocaine between 200 and 400 grams. Because the trial judge lacked the authority to accept the defendant’s guilty plea, the plea and sentence were vacated and the matter was remanded for further proceedings. Id.

On December 15, 2003, defendant pled guilty to possession of cocaine between 200 and 400 grams under State v. Crosby, supra, again reserving his right to review of the ruling on his suppression motion. The trial judge imposed a sentence of ten years at hard labor and a $100,000 fine. Defendant made an oral motion for appeal, followed by a written motion which the trial judge granted.

FACTS

At the suppression hearing held on December 12, 2002, which was before defendant’s first guilty plea, Deputy Shenandoah Jones of the Jefferson Parish Sheriffs Office testified to the facts surrounding the recovery of the cocaine. Deputy Jones testified that, on October 9, 2002 at approximately 3:00 p.m., defendant was driving a car directly in front of the officer’s car and was traveling southbound on Edenborn. Defendant made a left turn into an apartment complex without activating his turn signal. Deputy Jones initialed a traffic stop, approached defendant’s car, explained the reason for the stop, and requested the defendant’s driver’s license, registration and proof of insurance. Defendant provided a valid Louisiana driver’s license, and a temporary license tag, but his proof of insurance was expired. Defendant stated that he had not received the new insurance card yet. Deputy Jones offered to telephone the insurance company to verify this information so that defendant’s vehicle would not have to be towed.

Deputy Jones ran a criminal history check on defendant, which revealed that he had one felony arrest and eight misdemeanor arrests with no convictions on any 14of the charges. Deputy Jones then telephoned the insurance company, at which point, defendant knocked on the officer’s vehicle window and asked if he could bring a bag inside the apartment complex. Deputy Jones told defendant the stop would be over shortly, to step back to his car, and not to move anything from the car until after the stop. Defendant returned to the car, knelt on the driver’s seat and leaned into the back seat. Deputy Jones terminated the telephone call with the insurance company and approached the vehicle to determine what defendant was doing. Through the car’s rear window, Deputy Jones saw defendant shoving a gray plastic bag underneath the passenger’s seat. Concerned for his safety, Deputy Jones asked the defendant to exit the vehicle and asked defendant if there were any drugs or weapons in the vehicle. Defendant replied negatively. Deputy Jones also patted down the defendant and found no weapons. Deputy Jones asked defendant if he could look inside the vehicle for his “safety” and defendant replied “okay.” Deputy Jones asked the question again, just to ensure that defendant had answered affirmatively. Defendant then replied “yes.” There was nothing under the driver’s side seat, but there was a bag under the passenger’s seat that contained a clear plastic bag with white rock-like substances inside.

On cross-examination, Deputy Jones acknowledged that he had filled out many consent to search forms during his eight years as a police officer. However, he acknowledged that he did not ask defendant to sign a consent form.

Defendant testified that he did not give Deputy Jones permission to search his car. Defendant initially denied that he had approached Deputy Jones’ vehicle to ask if he could bring a bag inside the complex. However, defendant then said he did not recall whether he had approached Deputy Jones’ vehicle at any time during the stop.

I ¿DISCUSSION

By this assignment, defendant contends that the trial judge erred in denying his motion to suppress the evidence. He specifically argues that the length of the detention constituted an unlawful seizure. Further, defendant contends the trial judge erred in believing Deputy Jones over defendant regarding the consent to search the vehicle. The State responds that the trial court properly denied the motion to suppress.

Initially, it is noted that the defendant advances the same argument as he urged in his first appeal. Although this Court stated in the first appeal that it had reviewed the trial court’s ruling on the motion to suppress and found no error, the merits of the defendant’s claim was not discussed. Rather, the Court vacated the plea and sentence because of a reversible error patent. State v. Preston, 03-540, p. 2. We will now discuss the merits of the defendant’s claim.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). As a general rule, the decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); accord, State v. Waters, 00-356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056. The standard is an objective one that does not take into account the subjective beliefs or expectations of the police officer. State v. Waters, citing, Whren, 517 U.S. at 813, 116 S.Ct. at 1774. Further, an officer has the right to conduct a routine license and | ¿registration check. State v. Lopez, 00-0562, p. 3 (La.10/30/00), 772 So.2d 90, 92-93.

LSA-R.S. 32:104 provides that a person who intends to make a right or left turn that will take his vehicle from the highway it is then traveling shall signal the intention to turn continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning. Thus, Deputy Jones was authorized to effect a traffic stop because the defendant failed to give the appropriate signal of his intention to make a left turn into the parking lot.

Defendant concedes that Deputy Jones was authorized to verify his insurance information. However, defendant contends that Deputy Jones had no justification for extending the duration of the traffic stop. LSA-C.Cr.P. art. 215.1(D) provides as follows regarding the duration of a traffic stop:

D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

In United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985), the United States Supreme Court recognized that an investigatory stop that continues indefinitely will at some point no longer be justified as an investigatory stop. In determining whether a detention is too lengthy to be considered as an investigatory stop, it is appropriate to examine whether or not the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly. United States v. Sharpe, 105 S.Ct. at 1575; See also, State v. Miller, 00-1657 (La.10/26/01), 798 So.2d 947, 951.

[7In Miller, supra, the Louisiana Supreme Court held that the length of the defendant’s detention, 53 minutes from the initial, routine traffic stop until the canine alerted on defendant’s trunk, did not convert the encounter into a de facto arrest. The Miller court reasoned that defendant’s nervous behavior and “unlikely explanation” for an overnight trip in a car which the officer discovered had been rented by a person who had a prior arrest for a possession of a substantial amount of marijuana, led to a reasonable “shift in the trooper’s focus.” Id. at 950. The officer radioed for the first available canine unit, and the canine officer, who was at home when he received the call, arrived on the scene within 34 minutes later. The Miller court stated that, although the length of the stop was nearly an hour at that point, its duration was reasonably correlated with the escalating level of suspicion as the officers pursued a means of investigation likely to confirm or dispel the trooper’s suspicions without unnecessary delay. Id.

Although the record does not indicate the amount of time that transpired after the initial traffic stop, nothing in the record reflects that the duration of the stop was such that a de facto arrest occurred. Here, Deputy Jones was essentially doing the defendant a favor by telephoning his insurance company. Instead of telephoning the insurance company, Deputy Jones could have had the car impounded. . See, LSA-R.S. 32:863.1(C)(1)(a), authorizing impoundment of an automobile when the operator fails to produce documentation of the statutorily required liability insurance. It was while on the telephone to the insurance company that Deputy Jones noticed defendant leaning over the seat of his car. Thereafter, Deputy Jones terminated the telephone call, walked to defendant’s vehicle, and observed defendant shoving a plastic bag under the seat. After Deputy Jones patted down the defendant, the encounter was then extended by the defendant’s consent to search the car. The officer did not need any degree of treasonable suspicion, to ask for, and receive, consent to search the car. See, State v. Strange, 04-273 (La.5/14/04), 876 So.2d 39.

However, defendant contends that the trial judge erred in believing Deputy Jones’ testimony over his own testimony regarding consent. One of the exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Enclade, 03-353, p. 4 (La. App. 5 Cir. 9/16/03), 858 So.2d 8, 13. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Enclade, 858 So.2d at 15. Oral consent is sufficient and written consent is not required. State v. Ossey, 446 So.2d 280, 287, fn. 6 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984). See also, State v. Enclade, supra. Voluntariness of consent is a question of fact which the trial judge is to determine based on the totality of the circumstances. State v. Enclade, 858 So.2d at 15.

Although defendant testified that he did not give Deputy Jones consent to search his vehicle, the trial court apparently found the testimony of Deputy Jones to be more credible than that of defendant. When the trial court is presented with conflicting testimony, the credibility of the witnesses is a matter within the sound discretion of the trier of fact and will not be disturbed unless clearly contradictory to the evidence. State v. Enclade, supra. Nothing in the record indicates that the trial judge’s decision was clearly contradictory to the evidence.

Finally, defendant contends that the search was invalid because Deputy Jones lacked authority to conduct a “protective sweep” of his automobile. However, the evidence was recovered pursuant to a consent search, not a “protective sweep.”

This assignment is without merit.

|9ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). One error was discovered which requires corrective action:

The commitment and the transcript conflict in several respects. First, the commitment reflects that defendant pled guilty to possession of cocaine over 28 grams, while the transcript indicates defendant pled guilty to possession of 200 to 400 grams of cocaine. Additionally, the commitment reflects that the sentence was to be served concurrently with the sentence in case number 02-5931, while the transcript does not. Further, the commitment reflects that the trial judge ordered defendant to pay court costs, $150 to the “I Can” Drug Treatment Program, $100 Commissioner Fee, $20 Juror Fee, and a $2 Crime Stoppers Fee “plus other applicable fees,” while the transcript does not. It is noted that the waiver of rights form indicates defendant was to pay court costs, but is silent regarding these other fees.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we will remand the matter to allow the trial judge to correct the commitment to conform with the transcript. In all other respects, defendant’s conviction and sentence are affirmed.

AFFIRMED; CASE REMANDED.

      . Although the commitment indicates that defendant pled guilty to possession of more than 28 grams of cocaine, the transcript and the waiver of rights form both indicate defendant pled guilty to possession cocaine between 200 to 400.