author: It COOKS, Judge.

text:
    Bouakhay SIRIPANYO v. ALLSTATE INDEMNITY COMPANY, et al.
    No. 03-559.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      John B. Lambremont, Sr., Baton Rouge, LA, for Plaintiff-Appellant, Bouakhay Siri-panyo.
    C. Thomas Bienvenu, Julius W. Grubbs, Jr., Haik, Minvielle & Brubbs, New Iberia, LA, for Defendanb-Appellee, David Mortuary, Inc., d/b/a David Funeral Home.
    Robin L. Jones, Stephen J. Oats, Oats & Hudson, Lafayette, LA, for Defendant-Ap-pellee, Michael Neustrom, Sheriff of Lafayette Parish.
    Court composed of NED E. DOUCET, C.J., SYLVIA R. COOKS and MICHAEL G. SULLIVAN, Judges.
   It COOKS, Judge.

Plaintiff, Bouakhay Siripanyo, appeals the trial court’s judgment granting summary judgment in favor of the defendants. For the following reasons, we find summary judgment was’ inappropriate in this matter, and remand for trial on the merits.

FACTS'

On Sunday, March 19, 2000, a funeral service was scheduled for 2:00 p.m. at David Funeral Home in New Iberia, Louisiana. After completion of the funeral service, the body was to be delivered to a crematory in Lafayette Parish. Arrangements had been made by Mike Collado, the funeral director, for a police escort from Iberia Parish through St. Martin Parish into Lafayette Parish, where the crematory was located.

The funeral service began and ended ahead of schedule, resulting in an earlier departure to the crematory. According to Collado, he called the Lafayette Parish Sheriffs Office and told them he was running ahead of schedule. This testimony is disputed by Lafayette Parish Sheriffs Office logs, which indicate Collado did not call the sheriffs office until he was about to enter Lafayette Parish.

Collado led the procession, which totaled over forty vehicles. Upon leaving the funeral home, the procession was accompanied by a New Iberia City Police vehicle and an Iberia Parish Sheriffs Office vehicle' as escorts. When the procession reached the St. Martin Parish line, a St. Martin’s Parish Sheriffs Office vehicle was waiting and the Iberia Parish Sheriffs vehicle withdrew.

Upon approaching the Lafayette Parish line, Collado noticed there was no police escort waiting. The St. Martin Parish Sheriffs Office vehicle withdrew at the Lafayette Parish line. Collado testified he again called the Lafayette Parish Sheriffs | ¡¡.Office to inquire about the escort, which call the sheriffs office logs document as occurring at 2:41 p.m. According to Colla-do, he then reduced his speed from thirty-five (35) to forty (40) miles per hour down to twenty-five (25) to thirty (30) miles per hour. This testimony was disputed by two other witnesses who testified the procession was traveling forty (40) to fifty (50) miles per hour.

After Collado’s call to the Lafayette Parish Sheriffs Office, Deputy George Crow-der was dispatched to escort the procession and immediately proceeded towards the parish line area. Deputy Crowder testified it took him approximately ten minutes to get to the parish line. He saw the procession coming onto U.S. Highway 90, but since -he was traveling in the opposite direction he had to proceed past the overpass and turn around. While this was occurring, the funeral procession was beginning to cross the intersection of U.S. 90 and St. Nazaire Road. U.S. 90 is a four lane highway, and at the intersection with St. Nazaire Road there are two left turn lanes on the inside of the two westbound lanes (the funeral procession was traveling west on U.S. 90).

The procession, led by Collado, began passing through the intersection on a green light. At this time, Bill Gonsoulin was driving north on St. Nazaire Road approaching U.S. 90. He slowed as he approached the intersection because the light was red. When the light turned green, Gonsoulin increased his speed to cross U.S. 90. He crossed the eastbound lanes of U.S. 90 and then the two left turn lanes, where there were cars waiting. As he proceeded across the westbound lanes, his vehicle collided with a car driven by Bouakhay Siripanyo, who was part of the funeral procession. Gonsoulin was unharmed, but Siripanyo suffered injuries as a result of the accident. Immediately after the accident occurred, Deputy Crowder arrived at the scene. The police logs showed the accident occurred at 2:46 p.m.

laSiripanyo was the sixth vehicle in the funeral procession. Siripanyo stated he crossed the intersection on a yellow light and increased his speed to do so. He testified he did not see Gonsoulin’s vehicle prior to impact. According to Siripanyo, he had his headlights activated as part of the funeral procession. Joey Landry, who was stopped in one of the turning lanes on U.S. 90, stated he saw Siripanyo in his rear view mirror approach the intersection and cross through on a red light. Gonsou-lin testified he saw nothing which indicated a funeral procession, i.e., no flashing lights, no hearse and no vehicles in a steady, unbroken line. However, Collado and Deputy Crowder both testified that the procession was long and well organized, with the participants following closely together and with the headlights of their vehicles on.

Siripanyo eventually sued Gonsoulin and his insurer, Allstate Indemnity Company, alleging negligence on the part of Gonsou-lin. He also sued David Mortuary, Inc., d/b/a David Funeral Home, contending it was negligent in failing to provide a police escort, in failing to notify the Lafayette Parish Sheriffs Office in a timely fashion that they needed a police escort, and/or in failing to advise the funeral procession participants that the procession would be unescorted during part of the route. Siri-panyo also named Michael Neustrom, Sheriff of Lafayette Parish, as a defendant, alleging he was negligent-in failing to provide a police escort and/or failing to advise the funeral procession participants that the procession would be unescorted during part of the route. Each defendant filed Motions for Summary Judgment seeking dismissal of Siripanyo’s claims. After a hearing on the motions, the trial court rendered judgment granting each defendant’s motion, issuing the following written reasons for judgment:

It is not disputed that the funeral procession was unescorted upon | ¿entering Lafayette Parish, however, there is no authority for the proposition that a funeral home has a duty to provide a police escort for a funeral procession. Likewise there is no authority for imposing such a duty on law enforcement agencies. Further, the. Court finds that any fact issues about why the funeral procession was unescorted are not material issues. Funeral participants must obey the regular traffic laws. The fact that funeral processions often usurp the right of way, and most persons stop for such processions out of respect or when instructed by officers posted at the intersections cannot be held to establish a legal right .of way. Deshotel v. Southern Farm Bureau Casualty Ins. Co., 224 So.2d 191, 194 (La. App. 3 Cir.1969). To allow participants in a procession to drive through intersections in wanton disregard of the traffic signals set up to control passage through the intersections would' be to give such persons rights which are not even afforded to operators of emergency vehicles. Funderburk v. Rayfield, 274 So.2d 777, 780 (La.App. 3 Cir.1973).
The Court concludes that there is no genuine issue of material fact in regard to the sole cause in fact of the accident being the negligence of the' Plaintiff in increasing his speed at the intersection and proceeding against a red light. The motions for summary judgment filed by Allstate Indemnity Company, David’s Mortuary, Inc., and Sheriff Neustrom are granted and Plaintiffs petition will be dismissed.

Siripanyo has appealed the trial court’s judgment, contending it erred in granting any of the summary judgments.

ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So .2d 342 (La.1991). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is now favored and shall be construed to accomplish these ends. La.Code Civ.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is material when its existence or nonexistence is essential to the plaintiffs cause of action. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730; Davis v. M & E Food Mart, Inc. No. 2, 02-585 (La.App. 3 Cir. 10/30/02), 829 So.2d 1194. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the summary judgment motion and in favor of trial on the merits. Id.

In determining whether liability exists in a tort case, Louisiana has adopted a duty-risk analysis. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the duty was breached by defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Berry v. State, Through Dep’t of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412.

I. Summary Judgment in Favor of David Funeral Home.

The trial court stated in its written reasons for judgment that “there is no authority for the proposition that a funeral home has a duty to provide a police escort for a funeral procession.” David Funeral Home cites Richard v. Swiber, 98-1515 (La.App. 1 Cir. 9/24/99), 760 So.2d 355, as “clearly stat[ing]” that there is no duty on the part of the funeral home to warn or instruct the participants in a procession. We find both these assertions to be incorrect.

The Richard case did not state there was no duty on the part of a funeral home to warn or instruct procession participants. The court in Richard specifically held that the funeral home’s “failure to advise the participants tó be careful was not a substantial factor in causing this accident,” not that there could be no duty to warn or instruct. However, we find that any alleged failure to warn or instruct in the present case would likewise not be a substantial factor in causing this accident. A great number of drivers in the procession, including iripanyo were Laotian and did not |fispeak English. With such an inability to communicate with many of the participants, it is not reasonable to assume any warning given by Collado would have had any causative effect on the accident.

The trial court’s statement that “no authority” exists for finding a funeral home may have a duty to provide a police escort for a funeral procession is also in error. In Pickett v. Jacob Schoen & Son, Inc., 488 So.2d 1257, 1259 (La.App. 4 Cir.1986), the fourth circuit stated it “cannot say as a matter of law that a funeral director has no duty to those who participate in a funeral procession arranged by him to prevent the risks encompassed by the facts of this case.” In Pickett, the plaintiff claimed there was a breach of duty in the funeral director failing to suggest, offer, or provide an escort for the funeral procession down a major thoroughfare and in failing to advise the participants of the proper rules of the road for an unescorted procession. The trial court granted the funeral home’s motion for summary judgment which asserted it owed no such duty as alleged by plaintiff. The fourth circuit reversed, stating “we cannot say as a matter of law that a funeral director has no duty to those who participate in a funeral procession arranged by him to prevent the risks encompassed by the facts of this case.” Id. at 1259.

David Funeral Home again points to the case of Richard, 760 So.2d 355, as support for its proposition that a funeral home does not have a duty to provide for a police escort. In Richard, a funeral procession participant ran a stop sign and was struck by a vehicle which did not have a stop sign at the intersection. The procession was led by a police escort that was arranged by the funeral home. The procession participant filed suit against the funeral home, the police, and the other driver. All of the defendants filed motions for summary judgment. The trial court found there were factual matters in dispute relative to the negligence of the police, the driver and |7the funeral home, and denied all motions for summary judgment. The funeral home appealed.

The first circuit reversed the trial court’s judgment and entered summary judgment in favor of the funeral home. The Richard court discussed the opinion in Pickett, but found it was “not helpful” for two reasons. It noted that when Pickett was decided, summary judgment was not favored as it is now. Secondly, it observed the Pickett court was concerned with a possible breach of duty for not providing an escort on a major highway, whereas in the present case the funeral home had arranged for a police escort. Richard did not hold a funeral home cannot have a duty to provide for the safe passage of a funeral procession, but instead, held the funeral home was not liable because its actions were not a cause-in-fact of the accident.

We find the trial court erred in concluding there is “no authority for the proposition that a funeral home has a duty to provide a police escort for a funeral procession” and in granting summary judgment on that basis. Further, the factual dispute as to whether Collado called the Lafayette Parish Sheriffs Office upon the early departure from the funeral home is both disputed and material, thus precluding the trial court’s grant of summary judgment for the funeral home.

II. Summary Judgment in Favor of Sheriff Neustrom.

Siripanyo contends the trial court erred in granting summary judgment to Sheriff Neustrom on the grounds it had no duty to the participants of the funeral procession when the sheriffs office assumed the responsibility of escorting the funeral procession and did not arrive timely.

Siripanyo argues LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978), imposes a duty on police officers to do what is necessary to ensure a funeral procession safely passes through intersections. In LeJeune a police officer, who was | ^providing an escort to a funeral procession, failed to secure an intersection, which led to an accident between a driver in the funeral procession and a driver on a favored road. The LeJeune court found the officer at fault for his failure to protect the intersection. LeJeune, however, is factually distinguishable from the present case in at least one notable respect. It involved a situation where a police officer had assumed the duty to provide safe passage and was unable to do so. All parties acknowledge Deputy Crowder did not arrive on the scene until after the accident had occurred, and thus did not begin to conduct traffic.

As David Funeral Home points out, there is no specific statutory duty for a police officer to provide escorts for funeral processions, but LeJeune does establish that if a police department agrees to provide its services as an escort it must do so in a non-negligent fashion. Assuming Col-lado made arrangements with the Lafayette Parish Sheriffs Office for an escort days before the funeral (and there is testimony that he did so), upon its agreement to provide that escort a duty was created. The trial court’s conclusion that “any factual issues about why the funeral procession was unescorted ... were not material” was based on its erroneous finding that there is no authority to hold that the Lafayette Parish Sheriffs Office had a duty to provide an escort in this case. Therefore, the trial court erred in granting Sheriff Neustrom’s motion for summary judgment.

III. Summary Judgment in Favor of Allstate/Bill Gonsoulin.

Siripanyo argues there are numerous questions of fact which exist regarding Gonsoulin’s fault. The trial court held the sole cause of the accident was the action of Siripanyo in running the red light. We find there is no genuine question of fact that Siripanyo entered in to the intersection on a red light. Two independent witnesses, Joey Landiy and Kapkeo Khieamdavanh (who was driving the vehicle 13behind Siripanyo in the funeral procession), testified as such. Thus, Gonsoulin was the favored driver.

However, in LeJeune, 365 So.2d 471, the supreme court found the negligence of both favored and unfavored drivers can be proximate causes of accidents involving funeral processions. This court in Deshotel v. Southern Farm Bureau Cas. Ins. Co., 224 So.2d 191, 194, stated the following:

If the motorist who has the favorable traffic light sees or should see that the other driver is going to violate his right-of-way, and thereafter the favored driver has a reasonable opportunity to avoid the accident and fails to do so, then the negligence of the latter in failing to take evasive action when he had an opportunity to do so is a proximate cause of the accident. Denton v. Fontenot, La.App. 3rd Cir.1968, 216 So.2d 310; Smith v. Borchers, 1962, 243 La. 746, 146 So.2d 793; Vico Insurance Co. v. New Orleans Public Service, Inc., La.App.4th Cir.1965, 177 So.2d 425; McDaniel v. Grain Dealers Mutual Insurance Co., La.App. 1st Cir.1966, 182 So.2d 561; Martin v. Slocum, La.App. 2nd Cir. 1962, 147 So.2d 454.

The law is clear that Gonsoulin is not automatically absolved from fault simply because he was the favored driver. See also Funderburk v. Rayfield, 274 So.2d 777 (La.App. 3 Cir.1973). Our review of the evidence reveals there are numerous questions of material fact concerning whether Gonsoulin had a “reasonable opportunity to avoid the accident.” There was contradictory testimony over whether it was evident that Siripanyo was part of a funeral procession. Joey Landry stated he saw nothing to indicate that Siripanyo’s vehicle was part of a funeral procession, although he could not state specifically whether his vehicle’s headlights were activated. Deputy Crowder and Collado both testified the funeral procession was well organized, with the vehicles following closely together with their headlights on. Khieamdavanh also testified that several vehicles were stopped in the northbound lane of St. Nazaire road to allow the funeral procession to pass under the red light and Gonsoulin passed those vehicle before the accident occurred. Landry and Gon-soulin ] mdispute this account. Landry also testified he believed Gonsoulin may have been unable to avoid the accident because he could not see Siripanyo’s car because vehicles were-’ present in the U.S. 90 turning lanes.

These questions of fact enter into whether Siripanyo has a cause of action against Gonsoulin. Therefore, they are material facts, and their presence precludes the granting of summary judgment in favor of Gonsoulin and Allstate.

DECREE

For the foregoing reasons, the trial court’s grant of the motions for summary judgment in favor of David Mortuary, Inc., Sheriff Michael Neustrom and Allstate Indemnity Company are reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed equally against David Mortuary, Inc., Sheriff Michael Neustrom and Allstate Indemnity Company.

REVERSED AND REMANDED.

      . We note Siripanyo is Laotian and his questions and answers were translated into English.


source: Caselaw Access Project

author: hWOODARD, Judge.

license: Public Domain

text:
    Harriett Ardala YATES, et al. v. STATE of Louisiana DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 03-771.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      John Layne Hammons, Nelson, Ham-mons & Self, Shreveport, LA, for Plaintiffs/Appellants, Harriett Ardala Yates Wayne Edward Yates.
    Charles S. Norris, Jr., Attorney at Law, Vidalia, LA, for Plaintiffs/Appellants, Kathrin Yates Nielson, Dawayna Yates Sanders, Wayne Edward Yates, Jr., Mary Elizabeth Yates.
    Richard P. Ieyoub, Attorney General, Edward M. Campbell, Special Assistant Attorney General, Natchitoches, LA, James Earl Calhoun, State of Louisiana, Division of Risk Litigation, Alexandria, LA, for Defendant/Appellee State of Louisiana Department of Transportation & Development.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   hWOODARD, Judge.

Mrs. Yates and her family appeal a judgment, relieving DOTD of liability for injuries she received in a car accident on Louisiana Highway 478. We affirm the trial court’s judgment entered in accordance with the jury verdict, and vacate the judgment of directed verdicts on July 25, 2002.

*****

This action arises from a single-car accident on March 10,1998 on Louisiana Highway 478 (Water Well Road) in Natchitoch-es Parish. Mrs. Harriet Ardala Yates was driving when her vehicle left the roadway and crashed into a tree, injuring her. She contends that she lost control because of the highway’s defects. Accordingly, she and her family filed suit against the State of Louisiana, through the Department of Transportation and Development (DOTD). A jury heard the case.

After the parties presented all their evidence, the trial court granted a directed verdict on her claims for past medical expenses of $324,506.22 and past and future lost income of $370,738.00. However, the jury found that DOTD was not liable. Specifically, it found that the highway did not contain defects which posed an unreasonable risk of harm. The trial court denied the Plaintiffs’ subsequent motion for a judgment notwithstanding the verdict (JNOV) or a new trial.

Mrs. Yates and her family appeal the jury’s determination and the trial court’s denial of a JNOV or a new trial. They, also, assign error to the trial court’s decision that DOTD did not waive its “remedial action defense” when it failed to object to one of the Plaintiffs’ exhibits.which referenced DOTD’s subsequent patching and resurfacing of the roadway. Furthermore, Mrs. Yates asserts that since DOTD did not appeal the directed verdict, it is a final judgment which she can execute, regardless of the jury’s verdict of no liability.

Thus, we must examine the record and decide if it reveals a reasonable basis for the jury’s determination; determine whether DOTD waived its right to exclude evidence of subsequent remedial measures; and address the effects of the judgment, granting the directed verdicts.

j * * * *

STANDARD OF REVIEW

To prove DOTD’s liability, Mrs. Yates had the burden of proving, by a preponderance of evidence, the following' four elements: 1) DOTD had custody of the highway; 2) the highway was defective because it had a condition which created an unreasonable risk of harm; 3) DOTD had actual or constructive notice of the defect and failed to take corrective measures; and 4) the defective highway was a cause-in-fact of Mrs. Yates’ injuries.

There is no dispute that DOTD had custody of Highway 478. Thus, the first question for the jury concerned whether it was defective. The jury answered, “No” to: “Do you find that Louisiana Highway 478 contained a defect which created an unreasonable risk of harm to Harriet Yates on March 10,1998?”

Since a negative finding on any one of the elements precludes liability, an affirmation of the jury’s determination on this issue would pretermit any analysis of the last two elements. Thus, initially, we review the jury’s conclusion that Mrs. Yates did not prove, by a preponderance of the evidence, that the highway had defects that created an unreasonable risk of harm to her. This inquiry requires the factfinder to “balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair.” We must defer to the factfinder’s - conclusion on this issue unless it is manifestly erroneous.

Defective Highway

Lay Testimony

Mrs. Yates’ husband and two of her daughters went to the accident site a few days after it happened and took some photographs. Mr. Yates testified that ruts and potholes pervaded the roadway and that it was rough and uneven. He said that there |swas, virtually, no shoulder at the point where Mrs. Yates left the road, and he described the gully or ditch that ran alongside the roadway. Both daughters, also, testified that there were potholes in the road and that the asphalt was broken or “chewed up.”

Additionally, Mrs. Yates testified:

[The road] was really rutted out. It was like you know what happens when the log trucks get on the road and they just wallow (sic) a road out you know.... Now I don’t know, I, I hit the pothole, I don’t know if uh, I just went a little too far over and my tire went off the road and there was nothing there to help me, you know, and it was awfully rough and awfully rutted.... There was not a shoulder, not paved or otherwise. On the area where I went off it was just non existent.

Expert Testimony

Mr. Mark Tooke, a professional land surveyor, prepared a plat based on the accident report, photographs, and a visit to the site a couple of years after the accident, which both the Plaintiffs’ and Defendants’ experts used in their investigations. All of the experts saw the pictures Mr. Yates took days after the accident and viewed the police accident report. The Plaintiffs introduced two experts’ testimonies, Dr. Olin K. Dart, an expert in highway design and maintenance and Mr. A.J. McPhate, an expert in mechanical engineering and accident reconstruction. Dr. Dart testified:

Well the road has these defects in it in terms of it’s uh, uh, surface irregularities in the irregularities in her lane of travel. There was presence of potholes and these kind of uh, and the steep slope that, that is next to the pavement that if she engaged her wheel into one of these irregularities such that it pulled her to the right that could have got her on that steep slope from which she couldn’t recover .... Appears to be some significant base problems in terms of like that its rutting out and displacing material .... that whole area through there has a quite a bit of distress. The pavement slopes excessively towards the ditch in that point, and there is again the distortion, unevenness of the surface.

Similarly, Mr. McPhate testified that there was lane rutting and wheel depressions, although he saw no significant potholes. He surmised that Mrs. Yates must have encountered some defect in the roadway because of the sharp angle that her car left the roadway.

14DOTD introduced its own expert’s testimony. Dr. John Mounce, an expert in civil engineering, accident reconstruction, and highway design and maintenance, visited the accident site on April 4, 2001 and August 15, 2001. He testified:

I do feel like that while this, this roadway is not the best roadway that we have out there, it [sic] the classification of the roadway, the volume on the roadway; it does not in my opinion or at least with any information or evidence which I can point to should not have posed any unreasonable hazard to any motorist driving down that road either by a pavement defect, potholes, or ruts, or depressions or by any fixed objects existing in a required clear zone adjacent to the roadway such as the tree which Ms. Yates impacted.

Further, Dr. Mounce, specifically, referenced specific research, studies, and 'guidelines used in determining whether potholes, rut depressions, and other discontinuities in roadways were unreasonably dangerous. He noted that “unreasonably dangerous” is a relative term and the standards take into account factors such as the age of the road and the type of road, for example, interstate highway versus a rural collector road. He saw no defect on this roadway that he deemed to be unreasonably dangerous. Ultimately, he concluded:

[F]rom what you can see in these photos and, and based on what I know about . these surface discontinuities, there’s nothing here that, should have caused loss of control. That they should at reasonable speeds been [sic] something that could have been traveled over without any [sic] it inducing any vibration, severe vibration or requiring any steering corrections.

The jury was adequately instructed of its responsibility and its discretion concerning weighing expert testimony:

You should consider each expert opinion received into evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely.

The jury viewed for themselves Mr. Yates’ photographs of a portion of the roadway near the accident site. They heard the testimonies of Mrs. Yates and her | Kfamily. They listened to the experts’ testimonies and concluded that the road did not present any unreasonably dangerous defects.

We find a reasonable basis in the record for the jury’s determination. Credibility is a question best left to the jury. Finding no manifest error, we will not disturb its decision.

Given our conclusion that the jury’s verdict is not manifestly erroneous, likewise, we find no error in the trial court’s denial of Plaintiffs’ motion for JNOV or, alternatively, a new trial.

Spoliation/Remedial Measures

Louisiana Code of Evidence Article 407 provides:

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

Plaintiffs’ expert land surveyor prepared, and Plaintiffs introduced in' evidence, a plat which referenced the condition of the roadway at the accident site when he visited it on March 20, 2000, which was after DOTD had resurfaced the roadway. DOTD did not object, and, both, Plaintiffs’ and Defendants’ experts referred to it. However, in closing argument, Plaintiffs’ counsel attempted to use this exhibit to refer to DOTD’s repair and resurfacing of the roadway after the accident. The court agreed with defense counsel that this was inappropriate, as it implied that DOTD was liable, and prohibited counsel from making any further similar references. However, Plaintiffs assert that, by failing to object to the exhibit, DOTD waived its right to exclude evidence of subsequent remedial measures.

We find no merit to this argument because, before the trial bégan, counsel and the court had a dialogue, concerning the admissibility of any evidence of DOTD’s subsequent remedial measures. Although the discussion, specifically, concerned the | (¡admissibility; not of the plat, but of photographs taken of the accident site after the road had been patched and resurfaced, the court’s reasoning applied to both. In that discussion, it suggested that the photographs could be admitted for the experts to use them in their testimonies as long as they were not suggesting that the remedial measures proved DOTD’s culpability:

The Court: Well it does certainly seem that if there were photographs that were taken by experts who uh, for either side that were taken later on, the State may come in and make repairs and I can’t keep those photographs from being used. They just can’t use them to make the point that remediation .., So if they’re not introduced for the purpose of proving negligence then they’re admissible ... I could see someone who’s an expert who went out and took their own pictures and when they testify they need to refer to their oum pictures. I could see relevance to that.
Defense Counsel: Then I assume my motion is, well I don’t know, that has not, we have not arrived at that point. The reason I raised the objection was because of what happened during the voir dire process.
The Court: Right.
Defense Counsel: And I remember that I did ask the Court does that mean that the Court will subsequently rule that these things, are admissible and it’s my feeling that the Court will make such a ruling.
The Court: I will make rulings as the issues come up.

(Emphasis added.) However, Plaintiffs never attempted to introduce these particular photographs in evidence. Therefore, the trial court never ruled on their admissibility. Likewise, they made no attempt to use the plat exhibit as evidence of remedial measures during testimony. Not until Plaintiffs’ closing argument did they assert that DOTD had waived its right to have subsequent remedial measures evidence excluded by not objecting to the plat’s introduction into evidence, and attempt to use it to show that DOTD made some repairs to the road after the accident. Thus, we agree with the trial court’s response to Plaintiffs when it refused to allow this reference:

Well, but you know in the pictures that you ended up not introducing into evidence at all, which I had never ruled that were not admissible, you just chose not to introduce them that showed the repair work on it, the reason that, that you perceived that I might have a problem" with some it is because it showed repair work and then for some 17reason you, you chose not to pursue that.... And I think that the, that the State probably felt that the issue was resolved and that no discussion of the repair ■work was going to be made and that’s certainly the way that I felt and when I heard you saying it then I was surprised about it.... I don’t think I’m gonna let you go around through the back door and do what you couldn’t do with the photographs.

Additionally, in Plaintiffs’ motion for a new trial, as well as in their brief to this court, they argue that DOTD’s resurfacing so soon after the collision, effectively, acted as an intentional act which purposely concealed the true nature of the roadway, thus, constituting “spoliation.” However, they did not attempt to argue spoliation in the trial court. In fact, they conceded that photographs of the road after repairs could not be introduced to show DOTD’s negligence or to prove that the road was defective before the repairs. Furthermore, they proffered no evidence on spoliation. Instead, they assert that DOTD’s action, so soon after the accident, is sufficient for us to infer that it was intentional. We cannot agree.

The only evidence in the record of any repairs consists of DOTD’s daily logs, which note that, on March 13, 1998, DOTD repaired some potholes around the accident site, and on March 26, it patched some potholes along the same area. However, the records, also, indicate that DOTD had been doing similar repair work in this area, continuously, over a three-month period before Mrs. Yates’ accident. Furthermore, Plaintiffs proffered no testimony describing or interpreting DOTD’s records. Without testimony or other interpretive aids, we have no way of knowing the extent of the repairs DOTD performed on any given date.

Directed Verdicts Judgment

At the close of the evidence, Plaintiffs moved for directed verdicts on general damages, comparative, fault, loss of income, and past medical expenses. Concerning the latter two issues, they likened the circumstances in the instant case to those in Bijou v. Alton Ochsner Medical Foundation because in both cases, there was a statutory limit on the quantum of damages that could be assessed against the defendants. In Bijou, the statutory limit was in the Medical Malpractice Act. In the ^instant case, there is a statutory limit, because the State of Louisiana is the Defendant. However, Bijou is distinguished from the case at bar because its defendants had already admitted liability when the plaintiff moved for summary judgment on the damages issue. In the instant case, the jury had not, yet, determined liability. Thus, Bijou is not applicable.

The trial court in the instant case denied the motions concerning general damages and comparative fault but granted the directed verdicts on loss of income and past medical expenses because the parties had stipulated to past medical expenses, and DOTD presented no evidence to contradict Plaintiffs’ expert’s testimony concerning Mrs. Yates’ loss of income. However, subsequently, the jury determined DOTD had no liability for Mrs. Yates’ injuries and, thus, impliedly no obligation to pay any of her damages.

Notwithstanding, the Plaintiffs argue that the judgment on these two issues is, now, final and exigible. They correctly point out that there is no resolutory condition in the judgment. However, to enforce the judgment, absent a finding of liability, would be an absurdity and patently unjust.

It is apparent from the record that the parties’ intentions were to relieve the jury of having to make futile calculations of damages. In other words, as long as the quantum exceeded the statutory limit, the Plaintiff would receive the same amount (the statutory limit) regardless of how much more the jury awarded. The record reveals that the trial court’s intention was, only, to find that the quantum of Mrs. Yates’ damages, undisputably, surpassed the statutory cap.

Thus, in the interests of justice, wé vacate the trial court’s judgment on the directed verdicts.

CONCLUSION

Finding no manifest error in the jury’s determination, we affirm its finding, as well as the trial court’s denial of a JNOV or new trial. Furthermore, we find no error in the trial court’s decisions, concerning remedial measures evidence. Thus, we affirm its July 26, 2002 judgment which is in accord with the jury’s verdict. Lastly, we | flVacate its July 25, 2002 “Judgment on Motion for Directed Verdict.” We assign costs of this appeal to Plaintiffs/Appellants.

AFFIRMED IN PART; JUDGMENT OF JULY 25, 2002 VACATED.

      . Petre v. State ex rel. Dep’t of Transp. & Dev., 01-876 (La.4/3/02), 817 So.2d 1107.

      . See Id.

      . Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365.

      . Id.

      . Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84.

      . 95-3074 (La.9/5/96), 679 So.2d 893.

      . La.R.S. 13:5106(B)(1).

      .La.Code Civ.P. art. 2164.


author: J^LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Jamie K. SWILLEY, Appellant.
    No. 37,840 KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2003.

      Louisiana Appellate Project by Bertha M. Hillman, for Appellant.
    Don Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   J^LOLLEY, J.

Jamie K. Swilley (“Swilley”) pled guilty to possession of methamphetamine and received a sentence of three years at hard labor. La. R.S. 40:967. After the denial of a timely motion to reconsider sentence, Swilley appeals her sentence as constitutionally excessive. For the following reasons, we affirm.

Facts

In August 2002, Swilley was taken to the DeSoto Parish Sheriffs Office by a concerned family member, whose vehicle she had been using, after she admitted that she had been using methamphetamine. At that office, Swilley said she had metham-phetamines in the vehicle. A consent search of the vehicle disclosed two plastic bags containing approximately 11 grams of methamphetamine. A consent search of the residence where Swilley was living disclosed gram scales, 21 empty zip lock baggies identical to those found in the vehicle, several syringes, snorting straws, a crack pipe and a spoon with powder residue.

Swilley was initially charged with one count of possession of methamphetamine with intent to distribute, a violation of La. R.S. 40:967 punishable by imprisonment at hard labor for not less than two nor more than thirty years without benefits. She agreed to plead guilty to a charge of simple possession, a lesser violation of La. R.S. 40:967 punishable by no more than five years at hard labor plus an optional fine of no more than five thousand dollars. The trial court sentenced Swilley to serve three years at hard labor and denied a timely motion for reconsideration of sentence. This appeal by Swilley ensued.

|2Discussion

On appeal, Swilley argues that her sentence is excessive, the trial court did not adequately articulate its reasons for the sentence and the court did not give adequate consideration to certain matters in mitigation. Specifically, Swilley states that she was “only” 24 at the time of sentencing, she had a five-year-old daughter, and she had an ongoing drug problem; For the following reasons, we determine that this assignment of error is without merit.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. -894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Gay, 36,357 (La.App.2d Cir.10/23/02), 830 So.2d 356, citing, State v. Smith, 433 So.2d 688 (La.1983). The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and ’needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in-light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe the conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a reviewing court may not set aside a sentence. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Here, prior to imposing sentence, the trial court reviewed a PSI report. Swilley’s medical records indicated she had a long-term problem with drug abuse. Swilley had successfully completed a drug court program arising from an incident in 1999; however, she admitted to having relapsed. The trial court stated it had considered the sentencing guidelines and found Swilley was in need of treatment. Additionally, Swilley has one five-yearjold4 daughter who lives with the child’s father and stepmother as a result of Swilley’s drug problems.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.09/26/97), 701 So.2d 979. The record clearly demonstrates the trial court was aware of the mitigating matters urged by the defense prior to imposing the sentence.

Nor do we find constitutional error in Swilley’s sentence. She was of adult age when she committed the instant offense. The plea bargain reduced her sentencing exposure substantially on the major drug charge and obtained the dismissal of a drug-related charge as well as other charges from a non-related case. The PSI report informed the trial court of Swilley’s social history, her education and her work record. Furthermore, the PSI indicates that Swilley had prior arrests involving Schedule II CDS and drug paraphernalia.

The sentence imposed on Swilley is in the middle of the range which was available to the trial court by statute and, therefore, is lawful. Considering Swilley’s record and the totality of the circumstances of this case, we find the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion in the imposition of this sentence which is not constitutionally excessive, and this | ¡¡assignment of error has no merit. Moreover, the trial court did not err in denying Swilley’s motion for reconsideration of sentence.

Conclusion

For the foregoing reasons, Jamie K Swilley’s conviction and sentence are hereby affirmed.

AFFIRMED.


author: I,EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Vincent T. STEWART.
    No. 03-KA-976.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.
    Rehearing Denied Jan. 21, 2004.

      Paul D. Connick, Jr., District. Attorney, Terry M. Boudreaux, Andrea F. Long, Kia M. Habisreitinger, Assistant District Attorneys, Gretn'a, LA, for Plaintiff-Appel-lee.
    Prentice L. White, Appellate Counsel, Baton Rouge, LA, for Defendant-Appellant.
    Vincent T. Stewart, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I,EDWARD A. DUFRESNE, JR., Chief Judge.

On June 10, 1999, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A). At the arraignment, defendant pled not guilty. On February 15, 2001, the -state amended the bill of information to reflect that defendant would be charged with two counts of simple possession of cocaine, in violation of LSA-R.S. 40:967(C). On that same date, defendant withdrew his pleas of not guilty and, after being advised of his rights, pled guilty to the amended charges.

As part of the plea agreement, defendant was to be sentenced to five years imprisonment at hard labor on each count, to run concurrently, and the state waived its right-to multiple bill defendant. At this time, defendant requested that he be given a continuance on sentencing to get his-affairs in order. The trial judge agreed to defer sentencing and specifically informed defendant that the promised sentence was contingent upon him appearing for the sentencing hearing on March 19, 2001. In' response to questions by the trial judge, defendant indicated that he understood the consequences of failing to appear. On March 19, 2001, defendant failed to appear for |3sentencing. At the request of the state, the trial court ordered that an attachment be issued for defendant.

On March 23, 2001, the state filed a multiple offender bill of information charging defendant as a second felony offender. On January 7, 2002, defendant appeared in court. The trial judge informed defendant that since he did not appear as required, he would not sentence him in accord with the original plea agreement. The trial court subsequently sentenced defendant to imprisonment at hard labor for five years on each count, with the sentences to run consecutively. On that same date, defendant orally objected to the excessiveness of the sentences and denied the allegations of the multiple bill of information. On January 17, 2002, at the commencement of the habitual offender hearing, defense counsel objected to the state’s right to bring the multiple offender proceedings since the plea agreement stated that defendant would not be multiple billed. The trial court ruled against defendant, finding that the state could bring the multiple offender proceedings.

Following this ruling, defendant reserved his right to raise this issue on appeal, and thereafter admitted the allegations of the multiple bill. The trial court vacated the sentence on count one and sentenced defendant to imprisonment at hard labor for seven years, to run consecutively with the five year sentence on count two.-The trial court also ordered the sentences to run concurrently with any sentence defendant would have to serve for violating his parole. Defendant thereafter appealed, asserting that the trial court erred in not sentencing him according to the- original plea agreement, and further that the sentence imposed was excessive.

In his initial appeal, this court found that there was no ruling on a motion to withdraw guilty plea which had been filed by defendant on March 1, 2001. In |4determining that a ruling on defendant’s assignments of error would be premature, this court, stated, in part, as follows:

On appeal, the Defendant raises issues involving the validity of the guilty plea. We cannot address these issues on the record before us. Rather, we find that the issue should be handled in an evidentiary hearing on the Defendant’s motion to withdraw guilty plea. At that hearing, the intent of all parties can be explored, a determination can be made as to whether the guilty pleas were entered based on a misunderstanding of the agreement, and a record can be made from which we can review the Defendant’s claims if necessary. We reserve to the Defendant, the right to appeal in the event of an adverse ruling and to re-assert the assignments of error raised herein.
Accordingly, for the foregoing reasons, we dismiss the appeal, deferring consideration of the Defendant’s assignments of error asserted herein, and remand the case to the trial court for an evidentiary hearing and ruling on the outstanding motion to withdraw guilty plea, reserving to the Defendant the right to re-lodge his appeal.
State v. Stewart, 02-593 (La.App. 5 Cir. 12/11/02), 836 So.2d [268], 271.

On January 21, 2003, a hearing was held on defendant’s motion to withdraw guilty plea as mandated by this court. At that hearing, defense counsel stated in pertinent part:

Judge, while it’s our understanding that we have the right to have an evi-dentiary hearing in this matter, Mr. Stewart understands that he would have the right to take the stand and testify in his own behalf. Other than that, I don’t see any other potential witnesses which we could call for the hearing; however, I would like to make an argument on his behalf at his direction.

Defense counsel and the prosecutor thereafter presented arguments to the court. After considering these arguments, the court denied defendant’s motion to withdraw guilty plea, noting that defendant clearly understood the consequences of his failure to appear for sentencing. Defendant now appeals.

VALIDITY OF GUILTY PLEA

On appeal, defendant asserts that the trial court erred in failing to conduct an evidentiary hearing prior to denying the motion to withdraw the guilty plea, that the trial court violated the terms of his plea agreement with the state, and further that he is entitled to specific performance of the plea agreement.

[sWe first note that defense counsel failed to brief the issue regarding the trial judge’s failure to conduct an evidentiary hearing. Pursuant to Uniform Rules— Courts of Appeal, Rule 2-12.4, this issue can be deemed abandoned.

Moreover, even if defendant had properly preserved this issue, there is no merit to his argument. The record reflects that defendant understood he had the right to an evidentiary hearing, that he had the right to take the stand and testify, but that he instead chose to have his counsel make an argument on his behalf. Defendant was clearly given the opportunity to put on evidence but chose not to do so. As such, defendant waived the opportunity for an evidentiary hearing.

Defendant also argues that the trial court committed reversible error by denying his motion to withdraw guilty plea

LSA-C.Cr.P. art. 559(A) gives the district court judge the discretion to permit a withdrawal of a guilty plea at any time prior to sentencing. Once a defendant has been sentenced, a guilty plea may not be withdrawn unless the plea is found to be constitutionally infirm. State v. Bell, 00-1084 (La.App. 5 Cir. 2/28/01), 781 So.2d 843, 847, writ denied, 01-776 (La.4/26/02), 813 So.2d 1098. Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily. State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 633.

A defendant may not withdraw a guilty plea because the sentence to be imposed is heavier than anticipated. It is not unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition, the sentence is not to his liking. State v. Guzman, 95-444 (La.App. 5 Cir. 11/15/95), 665 So.2d 512, 517. However, a plea is considered' constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that 1 fibargain is not kept. If such is the case, either defendant must be allowed to withdraw from the plea or the bargain must be enforced. State v. Bell, 781 So.2d at 847.

In the present case, on February 15, 2001, defendant withdrew his pleas of not guilty and pled guilty to two counts of possession of cocaine. The record shows that, during the colloquy, the trial court advised defendant of his constitutional rights as set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Specifically, defendant was informed of his right .against self-incrimination, and his rights to a jury trial and to confront his accusers. Defendant stated that he understood those rights, and wished to waive them.

The trial judge alsp informed of the possible sentence which could be imposed and of the sentence which would be imposed pursuant to the plea agreement. Specifically, the judge informed defendant that pursuant to the plea agreement, defendant would be sentenced to five years at hard labor on each count and the state would not file a multiple bill. The court then addressed defendant’s request for a continuance of sentencing so that he could get his affairs in order. The court agreed to continue the sentencing but specifically warned defendant of the consequences of his failure to appear as follows:

Court: I want you to understand one thing, your attorney has indicated to ' me in pre-trial conference that you would like tó have two or three weeks to wrap up your affairs before sentencing; is that correct?
Stewart: Yes, sir.
Court: And what that means is we’ll accept your guilty plea today, but we won’t sentence you today. We’ll schedule your sentencing in approximately three, weeks; do you understand that?
Stewart: Yes, sir.
Court: And what I want you to know is that this is the sentence I will impose if you show up on that day. If for some — any reason you don’t show up on that day, then we’ll sentence you to a different — your sentence will be different; you understand that?
|7Stewart: Yes, sir.
Court: And that you could receive the maximum sentence and the State may, in fact, recharge you, charge you differently in this case, do you understand that?
Prosecutor: The State reserves the right to file a multiple bill, Your Hon- or, which would enhance his sentence.
Court: I just want you to be aware because this is the plea you’ve negotiated but it’s all hinged upon you showing up when you’re supposed to show up for your sentencing; do you understand that?
Stewart: Yes, sir.

After determining that defendant understood the consequences of his guilty plea as well as the consequences of his failure to appear for sentencing, the trial judge accepted defendant’s guilty plea as knowingly, intelligently, freely, and voluntarily made. Despite these warnings by the trial judge, defendant failed to appear for sentencing and was thereafter sentenced to more time than was originally agreed to. The state also filed a multiple bill which resulted in. defendant receiving an enhanced sentence on one of the counts. Defendant thereafter filed a motion to withdraw guilty plea which was denied. He now challenges that ruling. Defendant contends that the trial court violated the terms of his plea agreement by sentencing him to more time than what was stated in the agreement and by allowing the state to multiple bill him. Defendant contends that he should either be allowed to withdraw the plea or that he should be sentenced according to the original plea agreement. We find no merit to these arguments.

In the instant case, the transcript of the plea colloquy clearly shows that defendant was informed of his rights and the consequences of his plea, and that the plea was entered into knowingly and voluntarily. The record does not show that defendant was misled by either the trial court or his attorney, and there is no indication that his guilty plea was in any way coerced. Additionally, it appears that | Sdefendant’s guilty plea was unconditional. The only conditional part of the agreement was defendant’s sentence which depended upon defendant appearing on the designated date for sentencing. Defendant failed to appear. He should not now be allowed to withdraw his guilty plea when the trial court specifically warned defendant of the result that would follow. In the present case, . there was no breach of the plea, agreement by either the state or the trial judge. Rather, it was defendant’s actions which dictated the sentence imposed. For these reasons, we find that the trial judge did not err in denying defendant’s motion to withdraw the guilty plea.

Defendant also argues that the trial court erred by not sentencing him in accordance with the original plea agreement. This argument is likewise without merit as defendant was sentenced in accordance with the terms of the plea agreement as executed in open court. In response to questioning by the trial judge, defendant acknowledged that there were two possible sentences depending on whether he appeared for sentencing. Defendant chose not to appear and thereafter received the greater sentence.

Based on the foregoing discussion, we find no merit to the defendant’s arguments pertaining to the validity of the guilty plea.

EXCESSIVE SENTENCE

On appeal, defendant also argues that his twelve year multiple offender sentence is constitutionally excessive, because the crimes he committed were non-violent offenses, and his drug problem should have warranted a lesser sentence with a possibility of supervisory probation following his release. Defendant further argues that the trial judge failed to state for the record the factual basis for the considerations that led to his decision to impose defendant’s sentence as mandated by LSA-C,Cr.P. art. 894.1.

| cjLSA-C.Cr.P. art. 881.2(A) provides that, “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” In the present case, defendant’s twelve year sentence was imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Therefore, defendant is precluded from raising a claim of excessiveness on appeal. State v. Stevenson, 00-1296 (La. App, 5 Cir. 1/30/01), 778 So.2d 1165, 1166; State v. Andino, 01-820 (La.App. 5 Cir. 1/15/02), 807 So.2d 944, 945.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues in his pro se brief that his trial counsel was ineffective for failing to obtain a hearing and a ruling on his motion to suppress evidence. He contends that the evidence should have been suppressed, because the officers lacked reasonable suspicion to stop defendant and seize the drugs.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. However, it is well settled that when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095.

In the instant case, we find that the record is not sufficient to conduct a review of defendant’s claim for ineffective assistance of counsel. Although | indefendant attached a copy of the police report to a motion which he filed in this court, the police report had not been introduced in the district court. This court has no authority to receive or review evidence not contained in the trial court record. State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/02), 782 So.2d 1078, 1087. Accordingly, we find that the issue of ineffective assistance would be more properly addressed in proceedings for post-conviction relief.

ERROR 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). The review reveals no errors patent in this case.

For the reasons set forth herein, we hereby affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: | t SAUNDERS, J.

text:
    Dinh HO v. STATE FARM MUTUAL AUTO INSURANCE CO.
    No. 03-0480.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 2003.

      David Benoit, Attorney at Law, Breaux Bridge, LA, for Plaintiff/Appellee, Dinh Ho.
    M. Katherine P. Martin, Attorney at Law, Lafayette, LA, for Defendant/Appellant, State Farm Mutual Auto Ins. Co.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   | t SAUNDERS, J.

The issues on appeal to this court arise from the alleged theft in Breaux Bridge, St. Martin Parish, Louisiana, of a 1997 Infíniti 130 owned by Mr. Dinh Ho. The Infíniti was insured by State Farm Mutual Automobile Insurance Company, hereinafter “State Farm.”

FACTS

On or about May 4, 2001, Mr. Dinh Ho called the Breaux Bridge City Police Department alleging that his 1997 Infíniti 130 had been stolen. Sergeant Todd Anslum was dispatched to take the initial report. Sergeant Anslum noticed broken glass where Mr. Ho indicated that his vehicle had been parked. Mr. Ho informed Sergeant Anslum that the vehicle had been locked. Mr. Ho did not inform Sergeant Anslum that there was, allegedly, another key to the vehicle. The other key was allegedly attached to the underside of the vehicle inside a magnetic key box. Sergeant Anslum duly reported the automobile as stolen.

■ On May 9, 2001, Sergeant Terry Guidry of the St. Martin Parish Sheriffs Department was notified that a damaged and abandoned 1997 Infíniti 130 had been found west of Henderson, Louisiana, along the Atchafalaya Basin levee. Sergeant Guidry went to the scene and inspected and photographed the vehicle at the recovery site. The vehicle was identified as belonging to Mr. Ho. Sergeant Guidry did not find a key nor did he find a magnetic key box at the 'recovery site. However, Sergeant Guidry did notice, and his photographs reflect, that a bird’s nest had been constructed in the speedometer cluster of the vehicle.

On May 10, 2001, Steve Allemond, an appraiser and estimator for State Farm, with more than fifteen years experience, inspected the Infíniti. The presence of the bird’s nest suggested to Mr. Allemond that the Infíniti had been abandoned for longer h.than the five or six days that the vehicle had been reported missing and that additional investigation of this .incident was warranted. After further investigation, State Farm denied Mr. Ho’s claim. Mr. Ho then filed suit against State Farm to recover payment under his policy of insurance.

PROCEDURE

On June 4, 2001, in. his Affidavit of Partial Vehicle Theft/Vandalism, Mr. Ho providentially recalled that at the time the vehicle was allegedly stolen, two keys for the vehicle existed. One key was in Mr. Ho’s possession, both before and after the alleged theft, and the other key was in a magnetic key box attached to the underside of the vehicle and had been in place underneath ■ the vehicle for at least one year.

Trial of this matter occurred September 6, 2002, before Judge Charles L. Porter of the Sixteenth Judicial District. On November 5, 2002, the trial court provided its Written Reasons for Judgment. The trial court found that State Farm had failed to offer any proof showing that Mr. Ho knowingly or intentionally made material misrepresentations with the intent to deceive and defraud State Farm with respect to the reporting of the Infíniti being stolen on or about May 4, 2001. Consequently, the trial court ruled in favor of Mr. Ho and awarded him $8,994.31 plus legal interest from the date ,of the judicial demand and all costs of court. The final judgment was signed January 6, 2003. On February 3, 2003, State Farm timely filed a Motion and Order for Suspensive Appeal.

ASSIGNMENTS OF ERROR

State Farm advances four assignments of error.

1) The trial court erred in failing to require the insured to prove by a preponderance of the evidence that his claim qualified for coverage under the terms of the State Farm policy prior to shifting the burden of proof to State Farm to Improve an intentional material misrepresentation by the insured.
2) The trial court committed manifest error because there is no reasonable factual basis in the record to support a conclusion that Mr. Ho’s vehicle was stolen or that any damage to Mr. Ho’s vehicle was covered under the State Farm policy as an “accidental” loss or “theft.”
3) The trial court committed manifest error in failing to recognize that Mr. Ho made false statements with the intent to deceive State Farm in connection with the claim asserted under his policy so as to nullify any coverage afforded under the State Farm policy.
4) The trial court committed manifest error in awarding the actual cash value of the vehicle without reducing that amount by the insurance deductible or the salvage value of the vehicle where the undisputed evidence established that Mr. Ho retained, repaired and continued to use the vehicle after the loss.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong.. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Absent “manifest error” or unless it is “clearly wrong,” the jury or trial court’s findings of fact may not be disturbed on appeal. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La. 1990). If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 1112. However, when appellate courts find that a reversible error of law or manifest error of material fact was made in the lower court, appellate courts are required to redetermine the facts de novo from the entire record and render a judgment on thé |4merits. McLean v. Hunter, 495 So.2d 1298 (La.1986); Otto v. State Farm Mut. Auto. Ins. Co., 455 So.2d 1175 (La.1984); Ragas v. Argonaut S.W. Ins. Co., 388 So.2d 707 (La.1980).

ASSIGNMENT OF ERROR NUMBER ONE:

State Farm’s first assignment of error concerns the trial court’s failure to require the insured to prove that his claim of theft qualified for coverage under the terms of the State Farm policy prior to shifting the burden of proof onto State Farm to prove an intentional material misrepresentation by the insured. We agree with the contentions of State Farm and reverse the trial court.

The trial court’s determination that a theft occurred is a finding of fact that is subject to the manifest error standard of review. Tabchouri v. Progressive Ins. Co., 00-0134 (La.App. 3 Cir. 12/6/00), 775 So.2d 1127. Furthermore, Louisiana law requires plaintiff to prove its claim to the satisfaction of the court, and places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. Clark v. Clarendon Ins. Co., 02-1314 (La.App. 3 Cir. 3/26/03), 841 So.2d 1039; Bourque v. Audubon Ins. Co., 97-0522 (La. App. 3 Cir. 11/19/97), 704 So.2d 808, unit granted in part on other grounds, 97-3142 (La.2/20/98), 709 So.2d 766; Mercadel v. Tran, 92-0798 (La.App. 4 Cir. 3/29/94), 635 So.2d 438; Pierce v. Aetna Life and Cas. Ins. Co., 572 So.2d 221 (La.App. 1 Cir. 1990); C.L. Morris, Inc. v. Southern Am. Ins. Co., 550 So.2d 828 (La.App. 2 Cir. 1989); Ceasar v. Great Falls Ins. Co., 371 So.2d 1286 (La.App. 3 Cir.1979); Collins v. New Orleans Pub. Serv. Inc., 234 So.2d 270 (La.App. 4 Cir.1970). The plaintiff needs to prove by a preponderance of the evidence the cause of the loss; mere suspicion or speculation as to the cause of the loss is not enough. King Fin. Co. of La. Inc. v. Fireman’s Fund Ins. Co., 159 So.2d 708 (La.App. 4 Cir.), writ granted, 247 La. 113, 170 So.2d 111 (1964). Evidence that a loss or injury has occurred is not enough to afford coverage under a policy of insurance where the evidence merely shows the occurrence of a loss or injury. Id. “Mere disappearance is not sufficient evidence of theft.” Id. at 709.

The trial court found that State Farm failed to offer any proof that Mr. Ho knowingly or intentionally made misrepresentations with the intent to deceive and defraud with respect to the reporting of the Infiniti being stolen on or about May 4, 2001, and consequently found State Farm liable under the policy. To reach this conclusion, the trial court had to consider all of the evidence presented by both parties. However, after - a careful review of the record, we find that the trial court failed to require the Plaintiff to meet the initial burden of proving that the loss was occasioned through an occurrence that fell within the coverage provided by Mr. Ho’s policy of insurance with State Farm. Consequently, the trial court prematurely shifted the burden of proof onto State Farm. The relevant portions of the insurance contract are outlined below.

Section IV — Physical Damage Coverages
Loss-means, when used in this section, each direct and accidental loss of or damage to:
1. your car,
2. its equipment which is common to the use of your car as a vehicle;
3. clothes and luggage insured; and
4. a detachable living quarters attached or removed from your car for storage. Detachable living quarters include its body and items securely fixed in place as a permanent part of the body. You must have told us about the living quarters before the loss and paid any | f,extra premium needed.
Comprehensive — Coverage D ■
1. Loss to your' car. We will pay for loss to your car EXCEPT LOSS BY COLLISION but only for the ' amount of each loss in excess of the deductible amount, if any.
Breakage of glass, or loss caused by missiles, falling objects, fire, theft, larceny, explosion, earthquake, windstorm, hail, flood, malicious mischief or vandalism, riot or civil commotion, is payable under this coverage.

The insurance policy in question requires the Plaintiff to prove by a preponderance of the evidence that there was a direct and accidental loss of or damage to the car caused by theft. The mere fact that Mr. Ho’s Infiniti disappeared and was vandalized does not automatically indicate that his car was stolen, thus imposing liability on State Farm. In fact, the record shows the only evidence relied upon by the trial court to establish State Farm’s liability was that Mr. Ho provided evidence that he was the owner of the Infiniti 130, Mr. Ho had an insurance policy with State Farm, and Mr. Ho reported that his Infiniti had been stolen. Mr. Ho did not provide any evidence to the trial court, other than his assertions of theft, to prove that his car had been stolen. Although in some circumstances, such as where the vehicle is never recovered and unavailable for examination, this showing may be sufficient, in this case the weight of the evidence clearly favors a decision contrary to the findings of the trial court.

State Farm provided to the trial court uncontested evidence refuting Mr. Ho’s claims of theft. Mr. Steve Allemond of State Farm,- who was accepted by the trial court as an expert in auto mechanics, noted that the steering column of the Infiniti, although tampered with, was still in its locked position and that the ignition cylinder had not been defeated. These facts led Mr. Allemond, in his expert opinion, to [¡^conclude that the minimal damage to the steering column would not have allowed anyone to drive the car without the key specifically designed for Mr. Ho’s Infiniti.

After State Farm’s expert had determined that the only way the Infiniti could have been driven was through the use of one of the Infiniti’s own keys, State Farm employed the services of North Eastern Technical Services, hereinafter “NETS,” to conduct a further investigation and forensic analysis of the Infiniti. Douglas Delaney of NETS, accepted as an expert in the field of forensic analysis by the trial court, agreed with the findings of Mr. Allemond concerning the steering column and the impossibility of driving the vehicle without the key specifically designed for Mr. Ho’s Infiniti. NETS also conducted a forensic examination of the ignition lock assembly and performed a microscopic analysis of the ignition lock mechanism. Richard Pacheco of NETS, accepted by the trial court as an expert in forensic analysis and auto theft, and Mr. Delaney both concluded that Mr. Ho’s Infiniti had been driven with a key designed specifically for Mr. Ho’s In-finiti.

In investigating Mr. Ho’s claims that he kept a spare key to the Infiniti in a magnetic key box located underneath the car, NETS performed two examinations. The first examination was a visual inspection, looking underneath the car in the area indicated by Mr. Ho as the area where he placed the magnetic key box, for an area where dirt or dust had not adhered to the underside of the vehicle because of the presence of a magnetic key box. This examination yielded no evidence that a magnetic key box had been attached to the Infiniti.

NETS also examined the Infiniti for any residual magnetic signatures. As explained by NETS, the magnet from a key box would transfer its magnetism to the metallic structure of the Infiniti where the key box was attached and leave a magnetic 1 ssignature that could be detected. Mr. Pacheco testified that even if the key box had remained on the vehicle for only a few days the residual magnetism would remain and be detectable for up to one year. Mr. Pacheco further testified that had the key box been in place for one year, as claimed by Mr. Ho, the residual magnetism would remain and be detectable for as long as three years later. NETS found no residual magnetic signature or any other evidence indicating that a magnetic key box had ever been attached to Mr. Ho’s Infiniti 130.

This court is aware that when an insurer seeks to limit or relieve its liability under a policy, the burden of proving the essential facts necessary to relieve or limit the liability rests upon the insurer. Ledet v. Nat’l Car Rental Sys. Inc., 96-1270 (La. App. 3 Cir. 6/4/97), 694 So.2d 1236; Ralston v. Conn. Gen. Life Ins. Co., 617 So.2d 1379 (La.App. 3 Cir.), reversed on other grounds, 625 So.2d 156 (La.1993); Paret v. La. Health Serv. & Indem. Co., 366 So.2d 634 (La.App. 3 Cir.1978), writ denied, 369 So.2d 139 (La.1979). However, this fact does not relieve the insured of the initial burden of proving that his loss is occasioned by an event covered under the policy.

CONCLUSION

The Plaintiff in this case needed to prove, by a preponderance of the evidence, that his car had been damaged as a result of theft. The evidence presented by Mr. Ho in this case fell far short of meeting this standard. The uncontradicted evidence presented by State Farm, on the other hand, far outweighed the uncorroborated, self-serving claims of Mr. Ho. Accordingly, we find Mr. Ho’s assertion of theft to be without merit and hold State Farm not liable for this claim. Because we hold that Mr. Ho’s claim- is not covered under Mr. Ho’s policy of insurance with State Farm, we find it unnecessary to address State Farm’s other assignments of error. All costs of [¡¡this appeal are assessed to Mr. Dinh Ho.

REVERSE,


author: IRVING, J.,

text:
    Michael POOLE, a/k/a Michael Pool, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01725-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.
    William E. Goodwin, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Michael Poole was found guilty by a Pike County jury of the sale of marijuana. Following his conviction and sentence, Poole filed a motion for a new trial or, in the alternative, for a JNOV. He later filed an amended motion for a new trial or in thp alternative for a JNOV. The trial court denied the post-trial motions, and this appeal ensued. In this appeal, Poole argues that he is entitled to be set free or at least granted a new trial because the State reneged on a deal and engaged in improper conduct.

¶ 2. We find no evidence that Poole accepted the deal or that the State engaged in improper conduct; therefore, we affirm the judgment of the trial court in all particulars.

FACTS

¶ 3. The Mississippi Bureau of Narcotics (MBN) enlisted the service of Bobby May, an informant who had criminal charges pending against him, to aide in a buy-bust. In a buy-bust, immediately after the purchase of contraband is made by an informant or, undercover agent, MBN agents move in and arrest the seller. In the present case, May agreed to attempt to purchase approximately two pounds of marijuana from Poole.

¶ 4. Before the purchase, May came to the MBN’s McComb office where agents searched his body, and his vehicle. After the search, May was equipped with a body transmitter, as well as a digital recorder, and supplied with buy money. The serial numbers on the money were photocopied for later identification. A wire repeater was placed inside May’s vehicle to amplify the signal of the body transmitter. May then left the MBN’s offices to meet Poole. He was closely followed by MBN agents.

¶ 5. May purchased two pounds of marijuana from Poole for $1600. After the transaction was completed, MBN agents confronted Poole. Poole was placed in handcuffs, and taken to the MBN’s district office in McComb, Mississippi. There, he signed a Miranda waiver, and the MBN agents began to question him about his involvement in the marijuana trade. The MBN expressed interest in learning the identity of Poole’s supplier. After Poole was processed, he was allowed to leave. At that time, it was the understanding of the MBN agents that he would cooperate with their investigation of marijuana trafficking in the area. Poole never completed any drug transactions for the MBN and was subsequently arrested and taken into custody.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Poole asserts a' single assignment of error within his brief. He alleges that the State, acting through the MBN, unilaterally imposed a duty upon him that he go to work for it as an unpaid, undercover, unprotected agent and confidential informant. He further alleges that the MBN patiently sought-to coerce him into service, holding the threat of legal sanction and imprisonment over his head. Thus, he claims the State subjected him to unconstitutional involuntary servitude or peonage in violation of the Thirteenth Amendment to the United States Constitution and the Anti-peonage Act of 1867. In effect, Poole argues that he had no other choice but to agree to work as a confidential informant for the MBN.

¶ 7. The Mississippi Supreme Court spoke on this issue in Boyington v. State, 389 So.2d 485 (Miss.1980). In Boyington, the defendant argued that his employment as an undercover agent, after his arrest, violated his Thirteenth Amendment rights and 42 U.S.C. § 1994 (1974), the anti-peonage statute. Id. at 488. The supreme court found that the defendant freely and voluntarily entered into the arrangement with the MBN. Id. Therefore, we analyze the merits of Poole’s contention by looking to see if the record supports his assertion that he was compelled to work in the service of the MBN against his will.

¶ 8. Poole admits that he voluntarily agreed to become a confidential informant. However, he asks this Court to disregard this agreement and find that the elements of peonage exist. Peonage is “defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness.” Clyatt v. United States, 197 U.S. 207, 215, 25 S.Ct. 429, 49 L.Ed. 726 (1905). Poole contends that the State subjected him to unlawful and illegal peonage by force or by intimidation and that the State also imposed on him a dangerous duty of being a confidential informant. Poole explains that the State made his service as a confidential informant compulsory by subjecting him to the constant fear of criminal prosecution if he did not do the MBN’s bidding, and by causing him to believe that his work and service as a confidential informant were necessary to avoid criminal prosecution.

¶ 9. We are perplexed by Poole’s argument since he never actually performed any act as a confidential informant. Moreover, Poole does not inform us of the terms and conditions of his agreement with the State, and we found no such agreement in the record. The only evidence which does exist regarding the agreement is that Poole would act as a confidential informant and that he would not make any contact with May. However, the record is replete with evidence that Poole never served as a confidential informant. The MBN learned that Poole violated the prohibition against contacting May and terminated the agreement.

¶ 10. We find no merit in Poole’s claim of involuntary servitude and peonage. What we do find is that Poole agreed to become a confidential informant, or at least the MBN agents thought he did, and thereafter violated the one known term of the agreement, resulting in the agreement’s termination without Poole’s ever performing any service. Therefore, we affirm Poole’s conviction and sentence.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF UNLAWFUL SALE OF MORE THAN ONE OUNCE OF MARIJUANA AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS TO BE SERVED ON POST-RELEASE SUPERVISION AND FINE IN THE AMOUNT OF $10,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: GRIFFIS, J.,

text:
    Nettie C. KING, Appellant, v. Eldridge C. KING, Appellee.
    No. 2002-CA-01114-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.

      Nettie C. King, Appellant, pro se.
    Omar D. Craig, Oxford, attorneys for appellant.
    Preston Ray Garrett, Oxford, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. In King v. King, 760 So.2d 830, 837 (Miss.Ct.App.2000), this Court reversed and remanded this case for findings on the fair market value of the property, for an assessment of the wife’s non-economic contributions, and to reconsider the division of the marital estate according to such findings. On remand, the- chancellor followed the dictates of this Court and awarded Nettie King one-third of the marital estate and $1,700 in unpaid alimony. Nettie appeals this judgment and asserts that the chancellor failed to equitably divide the marital estate. We find no error and affirm.

FACTS

¶ 2. E.C. and Nettie King were married on October 22, 1973, and finally separated on February 5, 1995. E.C. filed a complaint for divorce on the grounds of desertion, habitual cruel and inhuman treatment, and irreconcilable differences. Nettie answered, denying that E.C. was entitled to a divorce and requested a partition in kind or by sale of the couple’s jointly owned real property.

¶ 3. E.C. was awarded a divorce on the ground of desertion. The chancellor set aside a warranty deed that purported to convey a one-half interest in E. C.’s real property to Nettie. The chancellor found that E. C.’s signature on the deed was forged. Nettie was awarded $100 per month in periodic alimony, and each party was allowed to keep the personal property already in his or her possession.

¶4. Nettie appealed the chancellor’s original decision on two grounds. First, she asserted that the chancellor erred by setting aside the deed conveying her one-half interest in E. C.’s property. This Court affirmed the chancellor on this issue. Id. at 835. Second, she appealed the chancellor’s division of marital assets. This Court agreed that the property the parties lived on should be included in the marital estate; however, we reversed and remanded directing the chancellor to make specific findings as to the fair market value of the property, the value of Nettie’s non-economic contributions, and review the distribution of the property in light of those findings. Id. at 837.

¶ 5. On remand, the chancellor was presented with an appraisal of the marital property. The appraisal determined that the house was uninhabitable, the trailer was salvageable, and the fair market value of the property with improvements was $28,000.

¶ 6. Next, the chancellor considered Nettie’s non-economic contributions. The chancellor concluded that “Mrs. King kept the home fires burning and performed the essential tasks of keeping the home together. For seven years, before her husband retired, she prepared three meals a day.” The chancellor found that both Nettie and E.C. had made substantial contributions to the marriage either directly or indirectly. The chancellor further held that the “contributions of one who stays at home and works are just as valuable as one who goes out and works.”

¶ 7. The chancellor then awarded Nettie one-third of the marital estate, totaling $9,300. He also awarded her $1,700 in unpaid alimony.

¶ 8. Nettie appeals the chancellor’s decision and contends that the chancellor erred in awarding her only one-third of the marital estate.

STANDARD OF REVIEW

¶ 9. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS

¶ 10. The question in this appeal is again whether the chancellor erred in equitably dividing the marital estate. Nettie argues that the chancellor erred in awarding her one-third of the marital estate. She asserts that the only way the estate can be equitably divided is for it to be divided equally. Nettie cites numerous cases where courts have divided assets of the marital estate equally between the parties. However, Nettie cites no authority that requires the chancellor to equally divide the marital assets. In Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994), the Mississippi Supreme Court introduced the concept of equitable division of marital property and specifically held that equitable division does not mean equal division. See also Love v. Love, 687 So.2d 1229, 1232 (Miss.1997); Trovato v. Trovato, 649 So.2d 815, 818 (Miss.1995); Pierce v. Pierce, 648 So.2d 523, 526 (Miss.1994).

¶ 11. On remand, the chancellor properly followed the instructions of this court. He obtained a current appraisal of the fair market value of the property and considered domestic contributions. The award by the chancellor on remand amounted to almost forty percent of the marital estate. We also note that Nettie was awarded a car and was allowed to keep the personal property she took from the home. This far exceeds one-third of the marital estate.

¶ 12. Based upon the chancellor’s findings of fact and application of those facts to the relevant law, we find substantial evidence to support the division of the Kings’s marital estate. Finding no manifest error or abuse of discretion, we affirm.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


text:
    Rocky Sheldon McCARDLE, Appellant, v. Mary Sylvest McCARDLE, Appellee.
    No. 2002-CA-00608-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.

      Renee M. Porter, for Appellant.
    Robert R. Marshall, Hattiesburg,' for Appellee.
    Before KING, P.J., IRVING and , . GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. In 1999, Rocky and Mary McCardle agreed to an irreconcilable differences divorce and consented to the division of their marital assets by the chancellor, pursuant to Mississippi Code Annotated Section 93-5-2. The chancellor entered a judgment that awarded Mary $24,000 for her share of the equity in the marital home, monthly alimony of $350 until Mary received funds representing her share of the marital residence, $26,000 from Rocky’s retirement account, and ordered Rocky to maintain Mary’s medical insurance to the maximum extent allowed by COBRA.

¶ 2. Rocky then tiled a motion to reconsider -claiming that the amount he was ordered to pay was excessive and would cause him financial hardship. Rocky claimed he would’have to sell the home in order to meet his obligations. He also-asserted that compliance with the court’s order would leave him without the necessary funds to support the couple’s minor child. The chancellor denied Rocky’s motion for reconsideration.

¶ 3. Two months later, Mary filed a petition for contempt and enforcement of the chancellor’s judgment. Mary asserted that Rocky had failed to pay the monthly alimony or maintain medical insurance, and she asked for an award of attorney’s fees. Rocky admitted he had not complied with the terms of the court’s order. However, Rocky argued that he was unable to comply with the judgment because he had been injured and was living on workers’ compensation benefits. Rocky claimed this was a material change in circumstances that warranted a modification.

¶ 4. At the hearing, Rocky testified about his injury and the reduction in his income. His income had been reduced to $1,500 a month. Rocky also testified that he had $16,000 in savings and $35,000 in his IRA account. Rocky admitted that he did in fact have the ability to pay what he owed under the judgment.

¶ 5. The chancellor entered a judgment against Rocky awarding Mary unpaid alimony in the amount of $3,150, unpaid insurance (COBRA)' premiums in the amount of $6,732, and attorney’s fees in the amount of $750. The chancellor also ordered Mary to pay Rocky child support in the amount of $100 a month, which was a departure from the statutory guidelines.

¶ 6. Rocky appealed, asserting the chancellor erred in refusing to grant him a modification of the alimony and insurance award. He claimed the chancellor erred by finding him in contempt, despite the proof that he was unable to comply with the court’s judgment. Rocky also asserted that the chancellor erred in failing to follow the statutory guidelines in awarding child support.

¶ 7. Shortly following the filing of his brief, Rocky was killed in an automobile accident. Thus, the issues we must consider on appeal have changed. We examine the following issues: whether the chancellor erred in awarding the judgment against Rocky for unpaid alimony and the unpaid insurance premiums, and can Mary collect these amounts against Rocky’s estate. As Mary is now the child’s only parent, we find the issue of child support to be moot.

STANDARD OF REVIEW

¶8. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS

I. Whether the chancellor erred in finding Rocky in contempt and awarding Mary a judgment for unpaid alimony and insurance premiums.

¶ 9. Parties cannot “without sanction of the Court, decide when or how [they] will comply with court judgments.” Smith v. Smith, 545 So.2d 725, 727 (Miss. 1989). All orders, judgments and decrees commanding the payment of alimony, attorney’s fees and expenses of litigation, temporary alimony, child support payments, as well as orders including child custody and visitation rights may all be enforced by an action for contempt against the offending party. See Brown v. Gillespie, 465 So.2d 1046, 1048 (Miss.1985).

¶ 10. Civil contempt is the “willful” refusal of the party to comply with the order, rather than the inability, which is the focus of contempt proceedings in divorce and alimony cases. Newell v. Hinton, 556 So.2d 1037, 1039 (Miss.1990). The party subjected to alimony and support payments must live economically and make the ordered payments. Sappington v. Sappington, 245 Miss. 260, 265, 147 So.2d 494, 496 (1962). A failure to do so is punishable by contempt. Id

¶ 11. The case for contempt in based on prima facie evidence of failure to comply. Newell, 556 So.2d at 1039. A party may, however, exonerate the contempt citation on proven grounds of inability to pay. Id. The evidence must be particular and not cast in general terms alone. Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977). A failure to show the inability to comply with the court order will cause a party to fail in his defense against a contempt citation. Id.

¶ 12. Rocky worked from the time of the divorce until March of 2000. During his employment, Rocky did not make the required alimony payments. In March of 2000, a judgment was entered against Rocky to pay Mary $7,000 in past due alimony. Rocky paid $3,500 of this amount. Mary petitioned the court to enter a judgment against Rocky to enforce payment of the balance.

¶ 13. Rocky only paid three months of Mary’s insurance premiums. Mary petitioned the court for an award of $6,732, which was the total amount of the insurance premiums Rocky failed to pay.

¶ 14. Rocky’s defense was inability to pay. Rocky testified that he could not make these payments because he was injured, living on workers’ compensation benefits and unable to work. On cross-examination, however, Rocky admitted that he had $16,000 in savings and $35,000 in his IRA account. Rocky also testified that he had the ability to pay Mary but offered no reason why he could not pay.

¶ 15. The evidence indicated that Rocky simply chose not to pay the court ordered alimony and insurance premiums. Rocky’s own testimony refuted his defense of inability to pay. Therefore, we find no error in the chancellor’s finding of contempt and affirm' the judgments entered against Rocky.

II. Whether the judgments against Rocky for unpaid alimony and insurance premiums can be collected against Rocky’s estate.

¶ 16. Under Mississippi law, periodic alimony becomes fixed and vested on the date in which the payment is due and unpaid. Lewis v. Lewis, 586 So.2d 740, 742 (Miss.1991); Bowe v. Bowe, 557 So.2d 793, 795 (Miss.1990); Rubisoff v. Rubisoff, 242 Miss. 225, 235, 133 So.2d 534, 537 (1961). More importantly, a court can not give relief from civil liability for any payments that have already accrued. Id.; Rainwater v. Rainwater, 236 Miss. 412, 420-21, 110 So.2d 608, 611 (1959). Thus, past due and unpaid domestic obligations may be collected as charges against the estate of the deceased spouse. Creekmore v. Creekmore, 651 So.2d 513, 515 (Miss. 1995).

¶ 17. Thus, we find that Mary may collect the judgments entered against Rocky for contempt from his estate. However, the estate is not liable for any alimony or insurance payments which have yet to become due, as such obligations terminated upon Rocky’s death. See Smith v. Smith, 349 So.2d 529, 531 (Miss.1977) (All unperfected or not yet matured obligations for the payment of alimony will terminate automatically upon the death of the spouse liable for such alimony and may not be collected from the estate of the deceased spouse).

III. Whether the chancellor erred in not following the statutory guidelines for child support.

¶ 18. Upon the death of either parent, the survivor is entitled to the custody of the children born to that marriage. Miss.Code Ann. § 93-13-1 (Rev.1994). Since Mary will now have custody of the child, she will be solely responsible for his support. Therefore, the issue of child support is moot.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED CONSISTENT WITH THIS OPINION. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.