text:
    STATE of Louisiana v. Dameon J. ENCLADE.
    No. 03-KA-353.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Kenneth Bordelon, Assistant District Attorneys, Gretna, LA, Counsel for State of Louisiana, Plaintiff/Appellee.

      Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, Counsel for Dameon J. Enclade, Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD, and EMILE R. ST. PIERRE, Pro Tempore.
   _JjEMILE R. ST. PIERRE, Judge Pro Tempore.

On February 9, 2001, Defendant, Da-meon J. Enclade, was charged with possession with the intent to distribute MDMA in violation of LSA-R.S. 40:966(A). Defendant was arraigned on March 21, 2001 and entered a plea of not guilty. On April 19, 2001, Defendant filed pre-trial motions, including a Motion to Suppress Confession, Identification and Evidence. On November 29, 2001, the trial court heard and denied the motion.

On January 15, 2003, Defendant withdrew his prior plea of not guilty and entered a stipulated plea of guilty as charged, pursuant to the provisions of State v. Crosby, 338 So.2d 584 (La.1976). The trial judge sentenced the defendant to five years of imprisonment at hard labor, suspended and ordered him to serve five years of active probation with special conditions. The court also imposed fees, fines and all costs. On January 16, 2003, defendant filed a timely written motion for a Crosby appeal, which was granted by the trial judge on January 21, 2001.

FACTS

On February 4, 2001, shortly after midnight, Officer Jeff Adams of the Kenner Police Department Patrol Division was driving in the 600 block of Vintage Street in Kenner in his marked patrol unit. Officer Adams observed a vehicle proceeding down the same street in the opposite direction pull into the parking lot of the Chateau Supermarket and park in a dark alley alongside the building. Due to a series of burglaries of small businesses in Kenner, Officer Adams became suspicious and decided to investigate. After calling for back-up assistance, Officer Adams pulled his patrol unit into the alley behind the Defendant’s vehicle, turned on his spotlight, and approached the vehicle. As the officer approached, he noticed Defendant, the driver and lone occupant in the vehicle, digging at his feet near the vehicle’s floorboard. At that point, the officer bécame concerned that Defendant had a gun and was attempting to hide it. The officer knocked on the window of the vehicle and asked Defendant for the vehicle’s paperwork and inquired as to why he was at that location. According to Officer Adams, Defendant, who was stuttering and appeared to be very nervous, removed papers from the glove box, console, and between the seats and placed them on the ground near Officer Adams’s feet.

Officer Adams testified that, as a safety precaution, he asked the Defendant if he would consent to have his hands cuffed in front of him before exiting the vehicle, to which Defendant agreed. After being handcuffed, the Defendant stepped out of the vehicle. Officer Adams testified that the Defendant was not under arrest at that time and was free to leave.

Officer Jill Farrell testified that she arrived in response to Officer Adams’s previous call for backup assistance and observed Defendant standing at the rear of his vehicle. Officer Adams asked her to watch the subject while he checked the vehicle for a weapon. According to Officer Farrell, Defendant was fidgety. Unable to find a weapon in the vehicle, Officer Adams returned and asked ^Defendant if he had a gun to which Defendant gave a negative response. Officer Adams conducted a pat down for weapons and found none. Thereafter, Officer Farrell suggested that Defendant may be hiding something in his shoe. According to Officer Farrell, upon hearing this Defendant asked the officers if they wanted “to check” his shoes. Officer Farrell responded that she would like to do so. When Defendant removed his shoe, Officer Farrell noticed Defendant step on something on the ground. Upon closer examination, Officer Farrell observed a small blue plastic bag on the ground which she suspected contained illegal narcotics. The two officers secured Defendant and ordered him to remove his other shoe, wherein they found approximately fifty small blue bags, some of which contained colored tablets marked with various designs. Defendant was subsequently detained and placed in the rear of the patrol unit.

Narcotics Detective William Sandino of the Kenner Police Department testified that he was called to the scene at the 600 block of Vintage. Detective Sandino tested the tablets which proved positive for methamphetamines. According to Detective Sandino, Defendant indicated that he wished to speak to him. After being advised of his constitutional rights by Detective Sandino, Defendant informed the detective that he had purchased the drugs from a man in Mississippi for $18-$19 per tablet and was going to sell them for $20 to 25 per tablet. The confession was overheard by Officer Farrell. Thereafter, Defendant was transported to the police lockup for booking. A search of his person during the booking process revealed he was in possession of $840 in cash.

At the suppression hearing, Defendant testified and refuted the officers’ testimony. He explained that the money in his possession at the time of his arrest was money paid to him for performing his job as an alarm installer. He indicated that, on the night of his arrest, he did not agree to be handcuffed; rather, he asked why he was being handcuffed and got no response. According to Defendant, his |4hands were cuffed behind his back and not in front as the officers had indicated. Defendant also testified that he was told to remove his shoes, and when he was unable to do so, Officer Farrell helped in their removal. He testified the scene was well lit on that night. He also stated that he was pulled over for a broken taillight on his vehicle but he was not given a traffic ticket and he did not know why he was arrested.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in refusing to grant his motion to suppress evidence and confession because the evidence implicating him was obtained as the result of an illegal stop and arrest. The State responds that the evidence and confession were properly found to be admissible because they were the result of a legal investigatory stop based upon reasonable suspicion of criminal activity and that Defendant was not arrested until after the contraband was lawfully discovered.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Manson, 01-159, pp. 6-7 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Warrantless searches and seizures are unreasonable per se, unless justified by one of the specific exceptions to the warrant requirement. State v. Manson, 791 So.2d at 757 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent to search is one of the clearly recognized exceptions to a warrantless search. Schneckloth v. Bustamonte, supra; State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, Wilson v. Louisiana, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985), reh’g denied, 474 U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d 567 (1985).

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving |Rthat the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. London, 01-1016 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 164, writ denied, 02-1567 (La.5/30/03), 845 So.2d 1067; State v. Jones, 99-972, p. 6 (La.App. 5 Cir. 2/29/00), 757 So.2d 110, 112, writ denied, 00-1186 (La.9/21/01), 797 So.2d 58.

In reviewing the ruling on the motion to suppress, the appellate court will look to the totality of the evidence, taking into account the inferences and deductions of a trained police officer. State v. Wilson, 00-0178, p. 3 (La.12/8/00), 775 So.2d 1051, 1053; State v. Manson, supra. The trial judge’s determination on the motion to suppress will not be disturbed on appeal unless it is clearly wrong. State v. Casey, 99-0023, p. 12 (La.1/26/00), 775 So.2d 1022, 1029, cert denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The credibility of witnesses at the suppression hearing is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Calvert, 01-826, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084.

Defendant initially argues that Officer Adams had no reasonable basis to support the stop and therefore any evidence seized pursuant to the stop was not lawfully obtained. The constitutional protections against unreasonable search and seizure also extend to brief investigatory stops that fall short of traditional arrests. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). A police officer may briefly seize a person during an investigatory stop if he has an objective reasonable suspicion, supported by specific and articulable facts, that the person is or is about to be engaged in criminal conduct or is wanted for past criminal acts. LSA-C.Cr.P. art. 215.1; State v. Graham, 01-1232, p. 7 (La.App. 5 Cir. 5/29/02), 820 So.2d 1101, 1106, writ denied, 02-1770 (La.12/19/02), 833 So.2d 329. Reasonable suspicion for an investigatory stop is something less |fithan probable cause, and rests upon the “totality of the circumstances” of each case. United States v. Arvizu, 122 S.Ct. at 750-751; State v. Thompson, 02-333, (La.4/9/03), 842 So.2d 330, 335. In evaluating the “totality of the circumstances,” evasive conduct in response to police presence is a factor that is accorded significant weight. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1050. Defendant’s presence in a known crime area, coupled with nervousness, startled behavior or suspicious actions upon the approach of a police officer is sufficient to justify an investigatory stop. State v. Hill, 01-1372, p. 8 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 83; State v. Duckett, 99-314, p. 7 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

The record indicates it was shortly after midnight when Officer Adams observed Defendant pull into a parking lot alongside the closed grocery store. Aware of a rash of burglaries of small businesses in the Kenner area, Officer Adams decided to investigate. Upon approaching Defendant’s vehicle, he observed Defendant digging at his feet or the floor board of the vehicle. Officer Adams feared Defendant had a weapon and was trying to hide something. Further raising the officer’s concern was that Defendant appeared very nervous and was stuttering when he spoke with Officer Adams concerning his reasons for being at that location.

Considering the defendant’s presence at night in an alley adjacent to a closed business in an area known for business burglaries, coupled with his palpable nervousness and furtive actions upon the approach of the officer, Officer Adams had objective reasonable suspicion, supported by specific and articulable facts necessary to engage in an investigative stop. LSA-C.Cr.P. art. 215.1; State v. Graham, supra; See State v. Pell, 584 So.2d 1186 (La.App. 2 Cir.1991). Additionally, the facts that Officer Adams was alone in a relatively poorly lit area when added to defendant’s furtive actions in digging at his feet and the vehicle’s | ^floorboard provided an objective reasonable basis for the officer to conduct a self-protective search for weapons. A reasonably prudent man in these circumstances would be warranted in the belief that his safety was in danger. See State v. Dumas, 00-862, p. 4 (La.5/4/01), 786 So.2d 80, 82.

Consequently, Officer Adams had reasonable suspicion to make an investigatory stop of Defendant. Defendant, however, alleges that, being handcuffed, it was tantamount to an “arrest,” and the resultant seizure of evidence and his confession were illegal because the arrest was made without probable cause.

It is only when the person is “actually stopped” without reasonable cause or when a stop without reasonable cause is “imminent” that the right to be left alone is violated, thereby rendering unlawful any resultant seizure. State v. Tucker, 626 So.2d 707, 710-711 (La.1993); State v. Dobard, 01-2629, p. 6 (La.6/21/02), 824 So.2d 1127, 1130. “Not every physical contact between an officer and a suspect is a seizure that constitutes an arrest.” State v. Parfait, 02-348 (La.App. 5 Cir. 10/16/02), 831 So.2d 360, 366 (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “The United States Supreme Court has recognized that the scope of the intrusion occasioned by an investigatory stop will vary to some extent with the particular facts and circumstance of the case.” State v. Parfait, 831 So.2d at 366 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).

In the recent Louisiana Supreme Court decision of State v. Adams, 01-3231, pp. 5-6 (La.1/14/03), 836 So.2d 9, 12, a female subject was handcuffed and detained by a male police officer pending the arrival of a female officer, who was to conduct a narcotics search. The Court found the actions did not constitute an arrest and discussed the implications of handcuffing a suspect during an investigatory stop:

|sWe have previously recognized that the use of handcuffs is ordinarily associated with an arrest, an extended restraint on liberty, and not with an investigatory stop, a comparatively lesser intrusion on an individual’s freedom and privacy interests. State v. Broussard, 00-3230, pp. 3-4 (La.5/24/02), 816 So.2d 1284, 1287 (“Brevity alone does not always distinguish investigatory stops from arrests, as the former may be accompanied by arrest-like features, e.g., use of drawn weapons and handcuffs, which may, but do not invariably, render the seizure a de facto arrest.”) (citing United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir.1998)). Nevertheless, particular circumstances may reasonably warrant such measures. United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994) (government must show that “the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate”) In the present case, we find that the handcuffing of respondent to maintain the status quo during a detention which lasted no more than 15 minutes until the female officer arrived constituted a reasonable response to the situation that did not turn an otherwise valid investigatory stop into a de facto arrest.

As discussed above, Officer Adams was alone at night when he approached Defendant’s vehicle. As he neared the vehicle, Officer Adams observed Defendant digging at his feet near the vehicle’s floorboard, which caused Officer Adams to be concerned that Defendant had a gun. After speaking with Defendant, Officer Adams became further concerned Defendant had a weapon after witnessing Defendant’s nervous behavior. As a safety precaution, Officer Adams asked Defendant if he would consent to having his hands cuffed. Defendant agreed. Considering the totality of the circumstances, Officer Adams was justified in his decision to handcuff Defendant as a safety precaution; those actions did not rise to the level of an arrest. See, State v. Gray, 99-47, p. 9 (La.App. 5 Cir. 6/1/99), 738 So.2d 668, 671.

Defendant also argues that the seizure of evidence and confession resulted from an illegal arrest, which was not based on probable cause and should have been suppressed. Having found that Officer' Adams made a valid investigatory stop based on reasonable suspicion rather than an arrest, Defendant’s argument fails. However, despite the existence of a valid investigatory stop and subsequent | ¡¡search of Defendant’s vehicle and person for weapons, the seizure of the narcotics in the instant case must have been supported by a warrant, probable cause, or an exception thereto. See, Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Cooper, 36,472 (La.App. 2 Cir. 10/23/02), 830 So.2d 440.

Oral consent is sufficient to constitute an exception to the warrant and probable cause requirements of the federal and state constitutions. State v. Ossey, 446 So.2d 280 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984). When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was freely and voluntarily given. State v. Williams, 98-1006, p. 19 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 72, writ denied, 99-1077 (La.9/24/99) 747 So.2d 1118. Voluntariness of consent is a question of fact which the trial judge is to determine based on the totality of the circumstances. Id. at 73. When the trial court is presented with conflicting testimony, the credibility of the witnesses is a matter within the sound discretion of the trier of fact and will not be disturbed unless clearly contradictory to the evidence. Id.

In this case, the State met its burden in proving Defendant freely and voluntarily consented to the search of his shoes. The trial court believed Officer Farrell’s testimony in this regard and the record supports that finding. Once Defendant removed his shoes, revealing the contraband, the officers had probable cause to arrest Defendant and to seize the contraband. As such, the narcotics would have been admissible against Defendant at trial.

Additionally, Defendant’s confession was also properly found to be admissible. In State v. Williams, 735 So.2d at 73-74, this Court discussed the State’s burden for the admissibility of a confession:

Before the State may introduce a confession or statement for consideration by the jury, the State must prove beyond a reasonable doubt that the statement or confession was free and voluntary and not |inmade under the influence of fear duress, intimidation, menaces, threats, inducements, and promises.... If the statement is made during a custodial interrogation, the State must prove that the declarant was advised of his constitutional rights_ Custodial interrogation means “questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way. Spontaneous and voluntary statements not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings, even where a defendant is in custody.”
Voluntariness of the statement is to be determined in a case-by-case basis.... The trial judge’s conclusions regarding the credibility and weight of the testimony relating to the voluntariness of the confession or statement will not be overturned unless they are not supported by the evidence.

(Citations omitted).

Defendant indicated he wanted to speak with Officer Sandino and the officer advised Defendant of his constitutional rights. Under these circumstances, the State met its burden of proving Defendant’s confession was made knowingly and voluntarily.

For the reasons stated, we find the trial court’s ruling, which denied the defendant’s Motion to Suppress, to be correct.

This assignment is without merit.

The record was also 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).

Upon review we note that the trial court did not indicate to defendant when the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8 began to run. Accordingly, we remand the matter to the trial court with an order to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this In Court’s opinion, and to file written proof that defendant received the notice in the record. See, State v. Landry, 02-1242 (La.App. 5 Cir. 4/29/03), 845 So.2d 1233.

Accordingly, for the reasons herein, the conviction and sentence of defendant, Da-meon J. Enclade, are affirmed and the matter remanded to the trial court for compliance with LSA-C.Cr.P. art. 930.8.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . At the time of the reservation of rights, defendant objected to the ruling on the motion to suppress but did not indicate this was the pre-trial ruling he reserved for appeal under Crosby. However, in this case the only pre-trial ruling was the ruling on the motion to suppress.


source: Caselaw Access Project

author: LWALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rueval DIXON.
    No. 03-KA-382.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Rueval Dixon, Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE R. ST. PIERRE, Pro Tempore.
   LWALTER J. ROTHSCHILD, Judge.

On January 11, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rueval Dixon, with possession of stolen things valued at over $500 in violation of LSA-R.S. 14:69, which allegedly occurred on or about January 2, 2000. Defendant was arraigned on January 14, 2000 and pled not guilty.

On February 2, 2000, defendant filed a motion to appoint sanity commission to determine competency to stand trial. On April 27, 2000, the trial court found defendant incompetent to stand trial. Defendant filed another motion to appoint sanity commission to determine competency to stand trial on May 17, 2001. On June 28, 2001, the trial court found defendant competent to stand trial.

On September 25, 2001, defendant withdrew his guilty plea and entered a plea of guilty. The trial court sentenced defendant to imprisonment at hard labor for ten years. Defendant initialed and signed a plea of guilty form. On September 27, 2001, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. On that same date, defendant admitted the allegations of the multiple bill. Defendant also initialed and signed a waiver |aof rights plea of guilty form for multiple offenders. The trial court vacated the original sentence and sentenced defendant to imprisonment at hard labor for 20 years without benefit of probation or suspension of sentence.

On September 19, 2002, defendant filed an application for post-conviction relief claiming that his guilty plea was invalid. Additionally, he claimed that he received ineffective assistance of counsel because his attorney did not file a motion for reconsideration of sentence or an appeal following his multiple offender sentence. On October 25, 2002, defendant filed an application for writ of habeas corpus and requested an evidentiary hearing seeking his right to a first appeal. On November 4, 2002, the trial court ruled on these motions. It denied defendant’s motion to set aside the guilty plea, granted defendant’s motion for out-of-time appeal, and denied defendant’s application for writ of habeas corpus as moot.

FACTS

Because defendant pled guilty, there are no facts in the record other than those contained in the bill of information, which alleges that, on or about January 2, 2000, defendant knowingly possessed stolen things, to wit: a 1996 Dodge Neon, valued at over $500, belonging to Mary Mailhes. Additionally, the Jefferson Parish Sheriffs Office Arrest Report and Probable Cause Affidavit indicates that defendant was charged with possession of a stolen vehicle, and that the offense occurred on January 2, 2000 at Transcontinental Drive and Soldier Street. The report further provides as follows:

Subject was found in possession of a stolen vehicle at above location. Subject was arrested and transported to East-bank lockup and booked. Vehicle was verified stolen through NCIC operation IJO.

DISCUSSION

Defendant argues that his 20-year enhanced sentence was constitutionally excessive. He claims that his plea was based upon the trial court’s advice that, based upon his prior record, with convictions for distribution of cocaine and | ¿aggravated battery, he was at risk for a mandatory life sentence as a third felony offender. Defendant admits that, as a third felony offender, he would have been subject to life imprisonment under the multiple offender statute as it existed at the time of the commission of the present offense. LSA-R.S. 15:529.1(A)(l)(b)(i), (ii).

However, he submits that he should have been sentenced under the amended version of the multiple offender statute as it existed at the time he was sentenced (which would have given him a sentencing range of between six and two-thirds years and 20 years) even though he acknowledges that the jurisprudence clearly holds that the amended version of the multiple offender statute only applies to crimes committed after the effective date of the amendment, June 15, 2001.

Defendant argues that, at the very least, the change in the law was a significant factor that should have been considered by the court as a basis for a Dortkey departure from the life imprisonment sentence. Defendant claims that the trial court erred in not acknowledging that a lesser sentence than life would have been appropriate, and that error caused defendant to misapprehend the gravity of the situation confronting him, undermining the validity of his decision to plead guilty to the multiple bill. He contends that life imprisonment for possession of a stolen automobile would have been outrageous, and that defendant did not receive a break by being sentenced to 20 years. Defendant also argues that it was error for him to receive a flat 20-year sentence for a non-violent possessory property crime.

On September 25, 2002, at the hearing pertaining to defendant’s guilty plea to the crime of possession of stolen things, the following exchange occurred:

MR. BORDELON [The prosecutor]:
Yes, Your Honor; he’ll be Multiple Billed as a Double Offender.
THE COURT:
Alright. What is Mr. Dixon’s criminal history?
LMR. BORDELON:
Mr. Dixon has an Aggravated Battery conviction from 1997; distribution of cocaine from 1997 and a possession of cocaine from 1999.
THE COURT:
And let me ask you; the two 1997 convictions, did they occur at the same time?
MR. BORDELON:
No, Your Honor; they’re distinct.
THE COURT:
So he’s quad-billed, but it’s a—
MR. BORDELON:
He’s a Triple-Bill.
THE COURT:
Because they don’t all hook up.
MR. BORDELON:
That’s correct.
THE COURT:
Mr. Dixon, I just asked the District Attorney to read to me your criminal history. And this tells me that you have three prior convictions. One of those convictions is for distribution of drugs, and one of those convictions is for Aggravated Battery. The Aggravated Battery is what we call in Louisiana, a “crime of violence”. Based upon those two prior convictions, you are today at risk for a sentence as a Habitual Offender, of mandatory life imprisonment; without benefit of probation, parole or suspension of sentence. That’s what your risk is. Do you understand that?
And Mr. Dixon’s sister; do you understand that?
MS. DIXON:
Yes.
THE COURT:
I (And did you have the opportunity to discuss that with your brother?
MS. DIXON:
Yes, ma'am.
THE COURT:
Okay. It’s my understanding that today however, the State is going to file a Double-Bill against you, alleging that you have one prior conviction; and because of that, my sentence will be ten years at hard labor, with credit for time served on the underlying offense. After the State files its Multiple Bill, then your sentence will become — I will issue a new sentence, which will be twenty years at hard labor, without benefit of •probation or suspension of sentence. Do you understand that?
THE DEFENDANT:
Yes, ma'am.
THE COURT:
So in the end your sentence is going to be twenty years; do you understand that?
THE DEFENDANT:
Yes, ma'am.
THE COURT:
Okay. Do you have any other questions for me, Mr. Dixon?
THE DEFENDANT:
No. But I can give you a hug and say thank you.
THE COURT:
Well Mr. Dixon, that’s very nice of you; people don’t say that very often. It is better than life; you’re right about that; significantly better than life imprisonment.
You’re twenty-five; you will spend a good portion of your life outside the prison system; that’s true. It will be a long time, but then you will get out; that’s very true ...

17Pefendant was convicted of possession of stolen things valued at over $500, a violation of LSA-R.S. 14:69. Whoever commits the crime of illegal possession of stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. LSA-R.S. 14:69B(1).

The State filed a multiple offender bill alleging defendant to be a second felony offender.

LSA-R.S. 15:529.1(A)(l)(a) provides:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction[.]

The above-cited statutes contained the same provisions at the time defendant committed the underlying offense (January 2, 2000), at the time he was sentenced as a multiple offender (September 27, 2001), and at the present time; they were not amended during this time period.

The requirements for a valid or legal habitual offender finding are- found in LSA-R.S. 15:529.1(D)(l)(a) which provides in pertinent part:

Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.

The Louisiana Supreme Court recognized in State v. Johnson, 432 So.2d 815, 817 (La.1983) that LSA-R.S. 15:529.1(D) implicitly requires the trial court to advise the defendant of his right to remain silent. See also, State v. Monroe, 00-1354 (La.App. 5 Cir. 3/28/01), 784 So.2d 29, 43, writ denied, 01-1280 (La.5/8/02), 815 So.2d 828.

IsThe record reflects that the trial court advised defendant of the allegations contained in the bill of information, the right to be tried as to the truth thereof, and the right to remain silent, and that defendant understood these rights. Therefore, we find that there was a valid admission to the multiple bill.

It is noted that the State filed a multiple bill alleging defendant to be a second felony offender, not a third felony offender, and defendant admitted to being a second felony offender and was sentenced as such. However, defendant argues that he was misled into believing that he was a third felony offender facing life imprisonment if he did not admit the allegations of the multiple bill. Since the State alleged defendant to be a second felony offender, defendant was exposed to a sentencing range of between five and 20 years. Although defendant had two prior felony convictions, he was not billed as a third felony offender and, therefore, he was not facing a mandatory life imprisonment sentence.

There are no reported Louisiana cases in which a defendant argued on appeal that a trial judge’s statements caused him to misapprehend his sentencing exposure, and that that misapprehension invalidated the multiple offender finding.

In State v. Bouie, 00-2934 (La.5/14/02), 817 So.2d 48, defendant consistently indicated he wanted to go to trial. However, the trial judge indicated to defendant several times that, if he went to trial, a jury would most likely find him guilty as charged and that he would be sentenced up to 100 years as a second felony offender, instead of the 25 years the trial judge was offering. State v. Bouie, 817 So.2d at 49. Eventually, defendant capitulated and pled guilty because the trial judge persuaded him that there was no reasonable alternative to pleading guilty. Defendant moved to withdraw his guilty plea after the State filed the multiple bill but before sentencing. The trial judge denied the motion. Id. at 53.

The Louisiana Supreme Court found that the interjection of the trial judge’s personal knowledge and opinion in the plea discussions under the circumstances of lathis case did, or probably did, have a coercive effect on defendant’s decision that a guilty plea was in his best interest. State v. Bouie, 817 So.2d at 54-55. The supreme court concluded that defendant’s guilty plea under these circumstances was not knowingly and voluntarily entered and that defendant should have been permitted to withdraw his guilty plea. Id. at 56.

In the instant case, however, the trial judge did not interject her personal knowledge or opinion regarding the plea discussions. Rather, she informed defendant correctly of his sentencing exposure in that he was facing a life imprisonment sentence if the defendant was triple-billed. The colloquy also indicates that the trial court informed defendant that the State was going to file only a double-bill, and that she planned to sentence defendant under these circumstances to an enhanced sentence of twenty years. Unlike the factual situation in Bouie, the trial court in this case did not inform defendant that he would receive a life sentence if he did not enter the guilty plea. Rather, the defendant stated that he understood that he would receive a twenty year sentence based on the filing of a double bill.

Under these circumstances, we find that there was a valid admission to the multiple bill since the trial judge was merely advising defendant of his sentencing exposure in the event the State elected to file a triple bill. It is unclear from the record the reason for the filing of a double bill. However, the transcript of the colloquy clearly shows that defendant was aware that he would receive a 20 year sentence based on the filing of a double bill. We fail to find that the trial court erred in denying defendant’s motion to withdraw his guilty plea.

With respect to the excessiveness issue, the trial judge sentenced defendant to 20 years of imprisonment as a second felony offender, the maximum sentence allowed, which defendant claims is excessive.

| inLSA-C.Cr.P. art. 881.2(A)(2) 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.” This provision applies both to agreed sentences and to agreed sentence ceilings or “caps.” State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171, 1174.

In the instant case, when the defendant withdrew his previous plea of not guilty and entered a plea of guilty as charged to the underlying offense, he signed and initialed a “waiver of constitutional rights and plea of guilty” form in conjunction with the plea. The form provides in pertinent part: “Have you been advised by your counsel that in the event the Court accepts your plea of guilty, that you will be sentenced ad [sic] follows: 10 yrs HL, credit for time served (20 yrs HL on double bill). Is this your understanding of the plea agreement?” Defendant initialed the space next to this question. Furthermore, the colloquy between the trial judge and the defendant before the plea indicates with certainty that the defendant knew that his plea of guilty would result in a sentence of ten years of imprisonment at hard labor on the underlying felony, and 20 years of imprisonment at hard labor on the double bill.

When the defendant entered an admission to the double bill, he signed and initialed a “waiver of rights — plea of guilty multiple offender — LA R.S. 15:529.1” form in conjunction with the plea. The form provides in pertinent part: “I understand that the sentencing range as a multiple offender in this case is 5 — 20 years HL and that the sentence I will receive is '20 yrs HL, credit for time served, w/o benefit probation or suspension of sentence.’ ” Defendant initialed that sentence and signed the bottom of the form along with his attorney and the trial judge. Furthermore, the colloquy between the trial judge and the defendant prior to his admission to the multiple bill clearly shows that defendant knew that his |T1 admission to the double bill would result in a sentence of 20 years at hard labor without benefit of probation or suspension of sentence.

The record reveals that the defendant’s sentence was imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Accordingly, the defendant is precluded from raising a claim of excessiveness of sentence on appeal. See, State v. Lee, 02-529 (La.App. 5 Cir. 10/29/02), 831 So.2d 395, 397.

The record was also 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.

Accordingly, for the reasons stated, the conviction and sentence of defendant, Rueval Dixon, are affirmed.

AFFIRMED.

      . State v. Dorthey, 623 So.2d 1276 (La.1993).


author: 1 ¡WALTER J. ROTHSCHILD, Judge.

text:
    VINTAGE CONTRACTING, L.L.C. and Joseph C. Canizaro v. DIXIE BUILDING MATERIAL COMPANY, INC., Maryland Casualty Company and Stiel Insurance Service of New Orleans, Inc.
    No. 03-CA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Bryan C. Reuter, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, Counsel for Vintage Contracting, L.L.C., Plaintiff/Appellant.
    William W. Hall, William W. Hall and Associates, Metairie, LA, Counsel for Joseph C. Canizaro, Plaintiff/Appellee-2nd Appellant.
    Lawrence J. Boasso, Waller & Associates, Metairie, LA, Counsel For Dixie Building Material Company, Defendant/Appellee-3rd Appellant.
    Thomas L. Gaudry, Jr., Michael D. Pey-tavin, Ken D. Brown, Windhorst, Gaudry, Ranson,- Higgins & Gremillion, L.L.C., Gretna, LA, Counsel for Maryland Casualty Company, Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD And EMILE R. ST. PIERRE, Pro Tempore.
   1 ¡WALTER J. ROTHSCHILD, Judge.

This is an appeal from a summary judgment rendered in favor of Maryland Casualty Company on the issue of insurance coverage. For the reasons stated more fully herein, we affirm.

Facts and Procedural History

In November of 2000, Joseph C. Caniza-ro contracted with Vintage Contracting, L.L.C. to construct a new residence on Northline Street in Jefferson Parish. The contract between Canizaro and Vintage required Vintage to comply with the detail specifications in the Architectural Drawings and Project Manual. In connection with this residential construction project, Vintage obtained a commercial general liability policy from Maryland Casualty Company, Inc. through Vintage’s agent, Stiel Insurance Services. The policy, numbered SCP 34591512, with a total annual premium of $1221.00, was effective from January 15, 2001 through January 15, 2002.

Vintage subsequently contracted with Dixie Building Material, Inc. to furnish concrete for the construction of the slab for the Canizaro residence. Dixie delivered the concrete on April 4, 2001. The Project Architect and Engineer Lrefused to certify the slab based on failure to comply with contract specifications. As a result, the concrete poured by Dixie, as well as the items encased therein, were removed and subsequently replaced at substantial cost to Canizaro.

Thereafter, Vintage made a demand against Dixie for losses suffered as a result of replacement of the concrete slab, and Dixie refused this demand. Vintage also made a claim against Maryland, asserting that the policy covered the losses sustained by removal and replacement of the Dixie concrete. On June 4, 2001, Maryland declined coverage under the policy.

On August 28, 2001, Canizaro and Vintage filed the present suit for damages against Dixie, Maryland Casualty and Stiel Insurance. Maryland Casualty and Stiel responded with answer and exceptions, and Dixie additionally brought reconven-tional and third party demands against Canizaro and Vintage.

On January 31, 2002, Vintage filed a motion for partial summary judgment against Maryland on the issue of coverage. Stiel filed its own motion for summary judgment on June 30, 2002 on the basis that there was no breach of duty by Stiel and thus no liability to plaintiffs as a matter of law. On September 4, 2002, Maryland also brought a motion for summary judgment on the basis that there was no coverage for the alleged incident under the subject policy.

These motions were heard at the same time in the trial court on November 15, 2002 and all matters were taken under advisement. By judgment rendered and signed on December 12, 2002, the trial court granted Maryland’s motion for summary judgment finding no coverage under the subject policy. Additionally, the trial court denied both Vintage’s motion for partial summary judgment and Stiel’s motion for summary judgment. The trial court also assigned reasons for judgment.

Thereafter, Vintage, Canizaro and Stiel sought supervisory writs from the court’s grant of Maryland’s motion for summary judgment and the denial of |Bsummary judgment in favor of Vintage and Stiel. Vintage and Canizaro subsequently brought separate devolutive appeals from the summary judgment rendered in favor of Maryland. Additionally, Dixie filed a motion to amend the judgment on the basis that in its reasons, the trial court improperly made findings of fact as to Dixie. Following denial of this motion, Dixie moved for a devolutive appeal of the trial court’s judgment.

The Law

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Araujo v. Eitmann, 99-1377 (La.App. 5th Cir.5/17/00), 762 So.2d 223, 225. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Props., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds, supra; Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Reynolds, supra, 634 So.2d at 1183. In Louisiana, insurance policies are interpreted under the rules governing contract interpretation. La. C.C. arts.2045-2057. Language in an insurance policy which is clear, expresses the intent ofj^the parties and does not violate a statute or public policy, must be enforced as written. If the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Reynolds, supra; Newby v. Jefferson Parish Sch. Bd., 99-0098 (La.App. 5th Cir.6/1/99), 738 So.2d 93; Araujo v. Eitmann, supra, 762 So.2d at 225.

The purpose of liability insurance is to afford the insured protection from damage claims. Reynolds, supra. Insurance policies should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). Any ambiguity in an insurance policy’s exclusion should be narrowly construed to afford coverage. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029. However it is also well-settled that unless a statute or public policy dictates otherwise, insurers have the right to limit liability and enforce conditions or limitations upon their insureds. Reynolds, supra, 634 So.2d at 1183. In addition, the insurer bears the burden of proving that a loss falls within a policy exclusion. Blackburn v. National Union Fire Ins. Co., 00-2668 (La.4/3/01), 784 So.2d 637, 641.

With these principles in mind, we turn to the language of the subject insurance policy to determine whether the trial court correctly found that no coverage existed for the damages claimed as a matter of law.

The Policy

The policy issued by Maryland Casualty Company to Vintage was a commercial general liability policy which contains general insuring language providing coverage for “bodily injury” or “property damage” caused by an “occurrence” that takes place in the “coverage territory” and within the policy period. The policy defines “property damage” in part as “physical injury to tangible property, including all resulting loss of use of that property.” The general ^aggregate coverage limit under the policy was $2,000,000.00. The policy also contains a “products-completed operations hazard” provision with an aggregate limit of $2,000,000.00.

Section V, No. 16 of the policy describes the “products-completed operations hazard” as:

Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times:
(a) When all of the work called for in your contract has been completed.
(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by a person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as complete.

The policy also contains a “work-product” exclusion which reads as follows:

This insurance does not apply to:
j. Damage to Property
“Property damage” to:
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
* *
Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.”
k. Damage to Your Product “Property damage” to “your product” arising out of it or any part of it.
l. Damage to Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

As stated in the definitions section of the policy, “your work” means:

a. Work or operations performed by you or on your behalf, but does not include work or operations performed by another entity which joined with you to form a partnership or joint venture not shown as a Named Insured in the Declarations, which terminated or ended prior to the effective date of this policy; and
b. Materials, parts or equipment furnished in connection with such work or operations.

The Trial Court Judgment

In rendering judgment in favor of the insurer in this case, the trial court made a factual finding that the concrete supplied by Dixie Building Materials was defective. The trial court also specifically found that based upon the above-cited work-product exclusion, the policy does not provide coverage for the defective work which resulted in the damages in this case. Relying on Reynolds v. Select Properties, supra, 634 So.2d 1180 (La.1994) and Castigliola v. Dept. of Community Dev. Programs, 538 So.2d 1139 (La.App. 5th Cir.1989), the trial lacourt found that work-product exclusions such as the one contained in the Maryland policy have been held to be valid and enforceable, thereby excluding from coverage the damage done to the property on which the insured or someone working directly on behalf of the insured was performing operations. In addition, the trial court also cited to the contract between Vintage and Canizaro whereby Vintage agreed to obtain insurance protection for claims for damages other than to the work itself. With regard to the insured’s claim that the products-completed operations hazard provision provided coverage for these damages, the trial court determined that this provision was inapplicable as it only provided coverage when the project is substantially complete, and the Canizaro residence was in its infancy stages at the time these damages were sustained.

Vintage and Canizaro’s Appeals

By their appeals, Vintage and Ca-nizaro each argue that the “work-product” exclusion in Maryland’s policy is inapplicable, ambiguous and unenforceable. Appellants further argue that the products-completed operations provisions confer coverage for the damages sustained herein, or in the alternative, are ambiguous and create an issue of material fact which is inappropriate for summary judgment. Appellants also contend that the trial court erred in relying on the construction contract between Vintage and Canizaro to determine the parties’ intent in obtaining insurance protection.

Work-product exclusions similar to the one contained in Maryland’s policy have been uniformly upheld in numerous Louisiana cases. See, Thorn v. Caskey, 32310 (La.App.2d Cir.9/2299), 745 So.2d 653; Joe Banks Drywall & Acoustics, Inc. v. Transcontinental Ins. Co., 32743 (La.App. 2 Cir. 3/1/00), 753 So.2d 980; Western World Ins. Co. v. Paradise Pools & Spas, 93-723 (La.App. 5th Cir.2/23/94), 633 So.2d 790; Rivnor Properties v. Herbert O’Donnell, Inc., 92-1103 (La.App. 5 Cir. 1/12/94), 633 So.2d 735, writ denied, 92-1293 (La.9/2/94), 643 10So.2d 147; Hallar Enterprises, Inc. v. Hartman, 583 So.2d 883 (La.App. 1st Cir.1991), Castigliola v. Department of Community Development, 538 So.2d 1139 (La.App. 5th Cir.1989). These exclusions reflect the intent of the insurance industry to avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured’s defective products and faulty workmanship. The CGL policy is not intended as a guarantee of the quality of the insured’s products and work. W.S. McKenzie & H.A. Johnson, III, Insurance Law and Practice, La. Civil Law Treatise, Vol. 15, Section 198 (2nd ed.1996).

Louisiana jurisprudence has consistently recognized that liability policies are not performance bonds. Breaux v. St. Paul Fire & Marine Ins. Co., 345 So.2d 204, 208 (La.App. 3rd Cir.1977); Thorn v. Caskey, supra, Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5th Cir.3/15/95), 653 So.2d 1215, writ denied, 95-1536 (La.9/29/95), 660 So.2d 878. Although plaintiffs rely on two Louisiana cases to support their position that the policy language in the present case is ambiguous and unenforceable, we fail to find either of those cases to be controlling herein.

In Gottsegen v. Hart Prop. Mgmt., 02-129 (La.App. 5 Cir. 5/29/02), 820 So.2d 1138, writ denied, 02-1776 (La.10/4/02), 826 So.2d 1129, this court found the language of the policy to be ambiguous where the policy stated the business of the insured was real estate management, but the insured sought coverage for damage to construction work performed and the construction work was included in a supplemental declaration of coverage in the policy. The court also found that the project had been abandoned in that case, and the products-completed operations provisions of the policy were therefore applicable. The court found the existence of a conflict between coverage that was paid for and the exclusion that states that the same hazard was excluded. However, although the policy language in that case was similar to the language in the Maryland policy, the unique factors in the Gottsegen case involving an insured operating in a capacity as property manager Hand contractor are not present under the facts of this case, and we find the holding in the Gottse-gen case to be distinguishable on that basis. Further, the work in the present case was not abandoned as it was in the Gottse-gen case.

Appellants also rely on the case of Serigne v. Wildey, 612 So.2d 155 (La.App. 5 Cir.1992), writ denied, 618 So.2d 994 (La.1993), in which this court upheld a finding of coverage where a concrete marina which was substantially complete suddenly fell into a bayou. However, we find this case to be distinguishable from the facts of the present case, where there was no sudden collapse of a building which was nearly complete.

In the present case, plaintiffs’ claims against the insurer for which coverage is asserted are for defects in the concrete poured by the insured’s subcontractor and for the subsequent damage to the items encased therein that were required to be removed and replaced along with the concrete. Plaintiffs do not allege that any damage was caused to any person or to any other property other than to the work of the insured. Under the clear terms of this policy, we find no conflict between the coverage which was negotiated and paid for and the exclusions relied upon by the insurer.

Rather, the policy in this case, specifically the exclusion contained in coverage section A(2)j(5), clearly excludes coverage for property damage to the property on which the contractor or subcontractor is performing operations if the damage arises out of those operations. In this case, the damages claimed and the relief sought by plaintiffs are all consequences of the alleged defective workmanship of work performed by or on behalf of the named insured, for which the policy provides no coverage. Further, the exclusion contained in section A(2)j(6) excludes coverage to property that must be repaired or replaced because the insured’s work was incorrectly performed on it. The definition of the insured’s work in the policy includes materials furnished in connection with work performed |1?iby the insured or someone acting on his behalf. Based on the clear provisions of this insurance contract, the trial court correctly held that Maryland’s policy did not insure Vintage against the loss sued for.

The insurance policy supplied by Maryland also includes coverage for products-completed operations hazard. This is among the standard hazards covered by a comprehensive general liability policy. See, McKenzie & Johnson, Insurance Law and Practice, 15 La. Civil Law Treatise, Section 186 (2nd ed.1996). Coverage is provided for the risk of liability arising out of products after they have left the hands of the insured. The completed operations hazard refers to the insured’s exposure to liability arising out of completed work performed away from his premises. The products liability and completed operations hazards are usually covered under the standard provisions of a general liability policy, but an insured may choose to exclude such coverage. Id.

As indicated on the declarations page of the subject policy, the insured obtained coverage for products-completed operations hazard within the general coverage section of the policy. This coverage was specifically defined in the definitions section of the policy. According to the express terms of the policy, this coverage includes property damage which arises out of the insured’s work, except “work that has not yet been completed or abandoned.” The policy also contains a specific definition of when the work will be deemed completed so as to trigger this coverage. Under the express terms of the policy, there was no coverage at the time the damages were sustained as the work called for the in Vintage’s contract was not complete nor was part of the work put to its intended use by someone other than another contractor or subcontractor working on the same project.

Although appellants contend that this provision in the policy is ambiguous, we find the terms of the policy to be clear and unequivocal. In order for this coverage to apply, the work must have been completed or abandoned, neither of l13which occurred in this case. We find no merit in appellant’s argument that the slab constitutes a separate part of the residence and was completed and put to its intended use at the time the damages were discovered. The work required under the construction contract in this case was the construction of the entire Canizaro residence, and completion of the slab does not amount to completion of the work called for in the construction contract.

Moreover, we reject appellants’ arguments that the slab was completed as it was put to its intended use by the installation of the first floor framing for this house. Vintage’s argument that defendant’s interpretation of the contract requires the contractor to complete the home knowing of the defective concrete is unpersuasive. The policy unambiguously excludes coverage for damage to property arising out of operations performed by the insured or someone working on the behalf of the insured. Policy, Section A(2)j(5). Under these circumstances, we conclude that the trial court was correct in determining that no coverage existed under the products-completed operations hazard contained in the Maryland policy.

Dixie’s Appeal

Dixie Building Material Co., Inc. has also filed a devolutive appeal from the December 12, 2002 judgment of the trial court. Vintage and Canizaro filed in this Court a motion to dismiss Dixie’s appeal, and we referred the motion to the merits. For the reasons stated herein, we now deny the motion to dismiss Dixie’s appeal.

By its appeal, Dixie contends that the trial court erred in including in its reasons for judgment a finding of fact as to the liability of Dixie which was not properly before the court. We agree with this contention.

We recognize that appeals are taken from adverse judgments, not from opinions of the court. The trial court’s written reasons, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. La. C.C.P. arts.1917, 1918; 14Western World v. Paradise Pools, 93-723 (La.App. 5 Cir. 2/23/94), 633 So.2d 790, 792.

In the present case, the trial court did not render judgment against Dixie; however, in its reasons for judgment, the trial court made factual findings adverse to Dixie, a party in this case. Although Dixie was made a defendant in this suit by the original petition filed by Vintage and Cani-zaro, Dixie was not part of the summary judgment proceedings brought by Maryland Casualty, Vintage and Stiel. Dixie was not notified of these proceedings, nor did counsel for Dixie appear at the hearing on the motions for summary judgment. Under these circumstances, the trial court was without authority to make a binding factual finding against Dixie, and any part of the trial court’s reasons for judgment in this case have no affect against Dixie in future proceedings in this matter.

Conclusion

For the reasons stated herein, the summary judgment rendered by the trial court in favor of Maryland Casualty Company is hereby affirmed. We also find no error of the trial court in denying the motion for summary judgment brought by Vintage Contracting, LLC. Further, we hold that the factual findings adverse to Dixie Building Materials, Inc. which are contained in the trial court’s reasons for judgment shall have no affect on the future proceedings in this case.

AFFIRMED.

      . On March 5, 2003, this Court denied the application for supervisory writs.


text:
    John J. CARUSO, Jr. v. CANAL INDEMNITY COMPANY a/k/a Acord.
    No. 03-CA-423.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Dennis J. Phayer, Marc Devenport, Bur-glass & Tankersley, L.L.C., Metairie, LA, for Defendant-Appellant.
    S. Michael Cashio, Brad Cashio, Kenner, LA, for Plaintiff-Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD, and EMILE R. ST. PIERRE, Pro Tempore.
   LEMILE R. ST. PIERRE, Judge Pro Tempore.

Defendant/Appellant, Canal Indemnity Insurance Co., appeals a general damage award rendered in favor of plaintiff/appel-lee, John J. Caruso, Jr. For the following reasons, we amend in part and affirm as amended.

On January 18, 2000, thirty-nine year old plaintiff, John J. Caruso, Jr., was involved in an automobile accident while parked at a convenience store in Metairie, Louisiana. The accident occurred when another driver, Pamela Reeves, backed her car into the vehicle driven by plaintiff. No police or emergency vehicles were called to the scene. Both drivers exchanged insurance information and departed the scene without need of first aid treatment.

Shortly following the accident, plaintiff began experiencing headaches along with pain and stiffness in his neck for which he sought medical treatment. Plaintiff subsequently settled all claims with Pamela Reeves and her liability insurer, State Farm Automotive Insurance Co., for the full policy limits of $10,000.00. Thereafter, suit was filed against plaintiffs underin-sured/uninsured (“UM”) provider, Canal Indemnity Insurance Co., for damages over and above the limits of the State Farm liability policy.

At trial the parties stipulated to the liability of Pamela Reeves and the $10,000.00 settlement for the full policy limits. It was also stipulated that Canal ^Indemnity Insurance Co. provided UM insurance to plaintiff with policy limits of $30,000.00. The sole issue at trial was what damages, if any, should be awarded to plaintiff in excess of the underlying liability policy limits. Plaintiff was the only witness to testify at trial and physicians’ reports and hospital records were introduced into evidence in lieu of medical expert testimony.

At the conclusion of trial, the court ruled from the bench, specifically awarding plaintiff an additional $25,000.00 in general damages, over and above the $10,000.00 previously recovered. The trial court did not issue oral or written reasons in conjunction with its judgment.

On appeal, defendant makes the following assignment of error:

In rendering his damage award, the trial judge abused his discretion by ignoring unrebutted medical evidence which thoroughly undermined, contradicted, and discredited plaintiffs purely subjective and self-serving testimony regarding the severity of his claimed injuries.

Louisiana jurisprudence makes clear that, in the absence of manifest error, the amount of damages awarded by a trial court must not be disturbed. “The assessment of quantum or the appropriate amount of damages by a trial judge or jury is a determination of fact, one entitled to great deference on review.” Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. “[R]easonable persons frequently disagree about the measure of general damages in a particular case. It is only when .the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Our review, therefore, is strictly limited to whether the amount of damages awarded by the trial judge to this particular plaintiff is reasonable given the specific circumstances of this case.

14At trial plaintiff testified that he suffered from headaches and neck problems ever since the accident. Specifically, plaintiff described ongoing problems with headaches, sharp pain and stiffness in his neck, and also a “clicking” sensation in his neck when he moved his head in certain positions. Plaintiff, a used car dealer and a commercial pilot, testified that his injuries did not cause him to miss any work and that he was still able to perform all work-related activities.

Medical records show that three days following the accident, plaintiff sought medical treatment for his injuries from Stewart E. Altman, M.D. Dr. Altman diagnosed plaintiff with post traumatic headaches and cervical musculoskeletal strain casually related to the accident. Plaintiff visited Dr. Altman’s office a total of five times from late January to July of 2000. The treatment consisted of conservative care (hot and cold packs, transcutaneous nerve stimulation, ultrasound therapy) and prescribed medication for pain.

In July, 2000, plaintiff had again been examined by Dr. Altman and plaintiff reported that he still suffered occasional migraine headaches and neck problems. The medical records show that plaintiff was discharged without further appointment to see Dr. Altman.

An MRI scan performed on plaintiffs cervical spine in August, 2000 revealed a “probable muscle spasm” and cervical scoliosis, but the cervical spine otherwise appeared unremarkable or normal.

Plaintiff also sought treatment from a neurologist, John D. Olson, M.D. Dr. Olson’s medical records indicate that plaintiff made office visits on February 13, 2001 and May 3, 2001. Plaintiff reported similar symptoms of headaches and neck pain, which Dr. Olson attributed to the accident from a year earlier. Plaintiff was prescribed medication for pain, but no other treatment is indicated from the records.

| ^Plaintiff also testified that on January 11, 2002, he went to the emergency room at Ochsner Hospital because he had been suffering with a migraine headache for an entire week. The trial record only contains a discharge sheet from the Ochsner Hospital Emergency Department indicating that plaintiff was released from the emergency room the same day with prescriptions for Naprosyn and Vicodin to relieve symptoms of pain and a recurrent cough. Plaintiff was further instructed to apply ice to his neck to relieve spasms and contact his primary physician for follow up care. There was no evidence presented that plaintiff sought follow up treatment from his primary physician soon after the emergency room visit.

In all, the records submitted into evidence show that plaintiffs medical bills associated with the accident total $1,295.00. Despite the above-discussed treatment, plaintiff testified that he continued to suffer headaches and neck pain as of the day of trial. Plaintiff stated that he was no longer taking prescription medication but relied instead on over-the-counter drugs such as “Tylenol” to relieve pain symptoms.

The defendant argues that the totality of the evidence presented at trial does not support the trial court’s findings as to the severity of plaintiffs injuries and amount of damages awarded. Specifically, defendant cites plaintiffs own testimony as proving the accident at issue to be a very minor collision. Plaintiff testified that he was wearing his seatbelt at the time of the collision and that he did not sustain any cuts, bruises, lacerations, or other outward signs of injury that required first aid or emergency care. In addition, he stated that no wrecker or tow truck was called to the scene and there was no evidence of significant property damage to either vehicle involved in the accident.

The defendant also contends that the trial court ignored medical evidence that undermined plaintiffs testimony as to the severity and duration of pain |fiassociated with the accident. Medical records submitted at trial show that nine days following the accident (on January 27, 2000), plaintiff visited his personal physician, Barry Goldman, M.D., at Ochsner Clinic. At no time during the course of the visit did plaintiff indicate that he had recently been involved in an automobile accident and sustained head and neck injures, despite being specifically asked whether he was experiencing any physical or medical problems. Plaintiff testified at trial that he did not report his injuries to Dr. Goldman because Dr. Altman was already treating him for said injuries.

The defendant further cites medical records involving a November 18, 2000 visit by plaintiff to Ochsner Clinic. Plaintiff sought treatment for a knot on his head not related to the accident. At the time, plaintiff indicated that he was feeling well, aside for the complained of knot on his head, and he again did not mention any information regarding head and neck injuries associated with the accident.

This Court’s examination of the trial record leads us to conclude that, at best, this is a case of soft tissue injuries and resultant headaches stemming from a low impact collision. The medical records indicate that plaintiff was treated conservatively for approximately sixteen months. Plaintiff testified that he continues to suffer headaches and discomfort in his neck, but there was nothing in the medical records to support the ongoing nature of his injuries. Instead, the medical records reveal an absence of any such complaints whenever he was treated by physicians other than Dr. Altman or Dr. Olson during the time period that he complains of pain. Plaintiff also readily admitted at trial that his injuries did not cause him to miss any work or prevent him from fully performing work activities.

No oral or written reasons were provided, but even under the most deferential standard of review, the amount of damages awarded cannot reasonably be reconciled with the minor nature of the collision involved and the modest injuries sustained by the plaintiff. Accordingly, we find that the trial court abused its discretion in setting the award. Therefore, we amend the award of general damages.

|7The amount of general damages rendered in this case is greatly disproportionate to awards handed down in other cases involving similar circumstances and injuries. E.g., Wilson v. State Farm Mut. Auto. Ins., Co., 01-0482 (La.App. 3 Cir. 10/3/01), 796 So.2d 869 ($12,000.00 award of general damages for plaintiff involved in rear end collision who received conservative treatment for back and neck soft tissue injuries that had not resolved by the time of trial); Ashby v. Anheuser-Busch, Inc., 98-0350 (La.App. 4 Cir. 9/23/98), 719 So.2d 601 ($9,000.00 award of general damages for plaintiff treated thirteen months for soft tissues as a result of an automobile accident); Quirk v. Board of Supervisors of LSU, 629 So.2d 1345 (La.App. 4 Cir. 1993) ($17,500.00 award of general damages for plaintiff who was treated for over one and a half years for soft tissue injuries which had not been resolved at the time of trial); Moreau v. North American Fire and Cas., 01-976 (La.App. 5 Cir. 12/26/01), 806 So.2d 809 ($10,000.00 award of general damages for plaintiff who was treated nine months for a neck soft tissue injury and headaches); Barillas v. Carrion, 96-746 (La.App. 5 Cir. 3/25/97), 692 So.2d 1217 ($11,000.00 award of general damages for plaintiff treated for nine months with soft tissue to injuries to her neck and back as well as for a scar on her lip and chin as a result of an automobile accident).

The cases cited above reflect a range of general damages far lower than the award rendered by the trial judge in this matter. The defendant urges this court to reduce the amount awarded to plaintiff from $25,000.00 to $7,500.00 over and above the $10,000.00 previously recovered from the liability carrier. Based upon Lour review of the facts of this particular case, the injuries to this particular plaintiff, and similar case law, we find the defendant’s total suggested figure of $17,500.00 to be the maximum amount of general damages the trial judge could reasonably have awarded in favor of plaintiff.

Since stipulated medical expenses were $1,295.00, this Court will recognize that amount in special damages. Thus, plaintiffs total damage recovery herein will be $18,795.00, of which $10,000.00 was previously paid by the liability carrier and $8,795.00 is to be paid by the UM carrier.

For the foregoing reasons, the judgment of the trial court regarding general damages is amended. General damages are amended in favor of plaintiff, John J. Caruso, Jr., and against his UM carrier, Canal Indemnity Company, in the amount of $8,795.00, together with legal interest therein from the date of judicial demand until paid. The remainder of the trial court’s judgment is affirmed. All costs to be borne by appellant. •

AMENDED AND AFFIRMED AS AMENDED.

      . "If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such a review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. In all instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court.” Theriot v. Allstate Insurance Company, 625 So.2d 1337, 1340 (La.1993).