author: I «PEATROSS, J.

text:
    Randy HOOD, Plaintiff-Appellant v. Emmett A. SARTOR, Progressive Security Insurance, Fred L. Hines and Ohio Casualty Insurance, Defendants-Appellees.
    No. 38,874-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Law Office of Ronald J. Miciotto by Gary Bowers, Ronald J. Miciotto, Shreveport, for Appellant.
    Cook, Yancey, King & Galloway by Kenneth Mascagni, Shreveport, for Appellees, Emmett A. Sartor and Progressive Security Insurance Company.
    Taylor, Porter, Brooks & Phillips, L.L.P. by Margaret L. Tooke, Baton Rouge, for Appellees, Fred L. Hines and West American Insurance Co., and Reggie Roe Builders, Inc.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   I «PEATROSS, J.

This negligence action arises out of a car accident that occurred between Plaintiff Randy Hood (“Mr. Hood”), Defendant Fred Hines (“Mr. Hines”) and Defendant Emmett Sartor (“Mr. Sartor”) in November 1999. The trial court granted summary judgment in favor of Mr. Hines, his insurer, West American Insurance Company (‘West”), and Reggie Roe Builders, Inc. (“Reggie Roe”), his employer, finding no negligence on the part of Hines in causing this accident. Pursuant to that ruling, the trial court entered an amended judgment dismissing Mr. Hines, West, and Reggie Roe. Mr. Hood appeals and Defendants Mr. Sartor and his insurer, Progressive Security Insurance (“Progressive”) (all appellants referred to collectively herein as “Mr. Hood”), have adopted his brief in this appeal. For the reasons stated herein, we affirm.

FACTS

On November 15, 1999, a three-car accident occurred on Stonewall/Frierson Road in Desoto Parish, north of Mansfield, Louisiana. The precise time of the accident was not established with certainty; however, the evidence indicates that it occurred at or around 5:24 p.m. or 5:25 p.m. According to the U.S. Naval Observatory Records (“Naval Records”) introduced by Mr. Hood at the hearing on the motion for summary judgment, sunset occurred at 5:15 p.m. that day. The same Naval Records define and distinguish between sunset, civil twilight and darkness. |3In the case sub judi-ce, the record indicates that the accident occurred during civil twilight, which is the period between sunset and complete darkness, when regular outdoor activities may be conducted without the necessity of artificial illumination.

The accident at issue occurred when Mr. Sartor, age 82, was traveling west and made a left turn into the path of the oncoming vehicle driven by Mr. Hines, who was traveling east on the same road, at the same time. In an attempt to avoid a collision, Mr. Hines slammed on his brakes, causing his wheels to lock, ultimately resulting in a collision with the Sartor vehicle and the vehicle being driven by Mr. Hood, who was also traveling west immediately behind Mr. Sartor.

Both Mr. Hood and Mr. Sartor claim that some fault rests with Mr. Hines based on the fact that Mr. Hines’ headlights were not illuminated at the time of the accident. They claim that the failure of Mr. Hines to energize his headlights resulted in reduced visibility of his car, thus constituting some degree of fault on his part. By way of contrast, Mr. Hines claims that it was Mr. Sartor’s preoccupation with the Hood vehicle behind him and his failure to look before turning that was the cause of this accident. As mentioned, the record indicates that sunset had occurred minutes before the accident; however, all testimony and evidence suggests that the light was good at the time of the accident. By Mr. Hood’s own admission, he could see the car in front of him (Mr. Sartor’s yellow Volvo) from “hundreds of yards back.” Mr. Hood testified that the reason he did not see Mr. Hines’ vehicle had nothing to do with the latter’s unlit headlights, but, Lrather, was because his view of "oncoming traffic was obstructed by the knoll of a hill in front of him.

The trial court granted summary judgment in favor of Mr. Hines, West and Reggie Roe finding “no negligence on the part of Hines in causing this accident.” The trial court went on to state that Mr. Sartor’s testimony that he never saw the Hines vehicle until the moment they collided precluded Mr. Sartor from being free of negligence. The court stated that Mr. Sartor had the burden of proving that the failure of Mr. Hines to illuminate his headlights contributed to this accident and that he failed to do so. Pursuant to that ruling, as previously mentioned, the trial court entered an amended judgment dismissing West, Reggie Roe and Mr. Hines. This appeal ensued.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and ■ the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. 966(B). The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the movant may merely point out to the court that there is an absence of factual support for one or | smore elements essential to the plaintiffs claim. The burden then shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. Once the burden has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. La. C.C.P. art. 966 C(2); Racine, supra. Appellate review of the grant or denial of summary judgment is de novo. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546.

Mr. Hines’ motion for summary judgment alleged, and he asserts on appeal, that none of the material facts in this case are in dispute, He asserts that (1) the-lighting Conditions were adequate; (2) Mr. Sartor could have and should have seen the approaching vehicle driven by Mr. Hines, but did not because he was preoccupied with the vehicle behind him (driven by Mr. Hood); and (3) he, Mr. Sartor, made a sudden left turn, invoking the sudden emergency doctrine, which-Mr. Hines had no - duty to anticipate and, | ^accordingly, for which he had no liability. Conversely, Mr. Hood asserts that, had Mr. Hines energized his headlights, this accident would not -have occurred, thus giving rise to a material issue of genuine fact surrounding the latter’s negligence.

The primary issue in this appeal, therefore, centers around the lighting conditions on the Stonewall/Frierson road at the time and date of the accident as they relate to La. R.S. 32:301, which requires a person to energize his or her headlights at any time between sunset and sunrise. There is no dispute that sunset on November 15, 1999, occurred at 5:15 p.m., approximately ten minutes prior to the accident. Further, all evidence and testimony suggests that the accident occurred sometime between 5:24 to 5:26 p.m.

Mr. Hines argues that there is no genuine issue of material fact surrounding the lighting conditions at the time, as all persons involved agree that it was light enough to see clearly. After our de novo review of the evidence in this case, we agree. At the hearing on the motion for summary judgment, Mr. Hood introduced the Naval Records showing the time of sunset on November 15, 1999. The same Naval Records define and 17distinguish between sunset, civil twilight and darkness. Mr. Hood also introduced statistics taken at the same location by non-witness lay people some three years after the date of the accident. - The Naval Records produced by Mr. Hood describe civil twilight as the period of time after sunset when there is enough light in the upper atmosphere that “outdoor activities may be conducted without artificial illumination.” Complete darkness does not, occur until after the end of civil twilight. According to the Naval Records, civil twilight did not end, and therefore, complete darkness did not begin in Mansfield, Louisiana, on November 15, 1999, until 5:41 p.m., some 25 minutes after the accident.

Trooper Christopher Shaw (“Trooper Shaw”), the officer who reported to the scene of the accident, testified in his deposition that he wrote no citations for failure to use headlights because he did not realize'that the accident occurred after “official” sunset. This indicates that Trooper Shaw either believed that sunset had not yet occurred or that the lighting conditions were such that no citations were warranted, i.e., there was adequate lighting. Trooper Shaw further testified in his deposition that he returned to the scene of the accident the following day, at the same time of day, and had little trouble identifying approaching automobiles without their lights illuminated.

In addition, Mr. Sartor testified that it was only “dusk” and “getting dark.” Further, Bill Richardson (“Mr. Richardson”), Mr. Sartor’s nephew-in-law, who witnessed the accident, stated in his deposition that:

[s... it was after sunset, but not dark, and [Sartor] was not looking forward [at the road ahead]. They got closer and closer' and Mr. Sartor continued to watch the man [Hood] behind him because he was right on his bumper by then.

Mr. Richardson went on to state that “[t]he car behind [Sartor] was occupying his entire attention.” (Emphasis added.) When asked if he, Mr. Richardson, could see Mr. Hines’ car despite its unilluminat-ed lights, he stated that he could. Finally, Mr. Hood admitted in his deposition testimony that “[t]he light was good. I could see that yellow Volvo [Mr. Sartor’s car] from hundreds of yards back. The light was good.” He further testified that the reason he did not see Mr. Hines’ vehicle had nothing to do with the latter’s unlit headlights, but, rather, stated in his deposition that “[i]t was a knoll of a hill so I couldn’t see oncoming traffic.”

Despite this admission, Mr. Hood argues that the lighting was such that Mr. Hines’ failure to use his headlights at this time of day (or night) constituted negligence, thus creating a genuine issue of material fact. In support of this argument, Mr. Hood relies on Calk v. Grain Dealers Mut. Ins. Co., 508 So.2d 624 (La.App. 2d Cir.1987), and Bradley v. Tripkovich, 415 So.2d 999 (La.App. 4th Cir.1982), for the proposition that “[t]he duty of the driver to display headlights when conditions require them is imposed not only to enable him to see others in his path, but also to enable others to see his vehicle.” Mr. Hood also cites La. C.C. art. 2315, noting that, under Louisiana law, the failure to exercise reasonable care under the circumstances constitutes negligence. Mr. Hood’s reliance on Calk and Bradley, supra, is misplaced. Both cases involve vehicles being driven after dark (not during civil twilight), without headlights on, and neither | flinvolved a left-turning driver who failed to yield right-of-way. Further, both cases stand for the proposition that a driver should use his lights after dark so that he may be seen and no one will enter his path. In the case sub judice, all undisputed testimony evidences that the lighting conditions were such that no headlights were necessary — it was not yet completely dark outside. Again, this is supported by Mr. Hood’s own evidence. Considering our discussion of the lighting conditions, supra, we conclude that the failure of Mr. Hines to energize his headlights does not constitute a “failure to exercise reasonable care under the circumstances” as a matter of law.

Assuming, arguendo, that Mr. Hines had been cited with a violation of La. R.S. 32:301 for failing to use his headlights, we further conclude that this fact alone would not give rise to actionable negligence on his part. In Miller v. Keal, 29,564 (La.App.2d Cir.5/7/97), 694 So.2d 569, writ denied, 97-1751 (La.10/13/97), 703 So.2d 620, this court stated:

[although violation of a statute or ordinance constitutes negligence per se, to be actionable the negligence must also be a legal cause of the accident. [Citations omitted]. Actionable conduct is both a cause in fact of the injury and a legal cause of the harm incurred. To satisfy the cause in fact requirement, the finder of fact must determine that the injury would not have been- sustained “but for” the conduct of the party allegedly negligent. To be a legal cause of the harm, there must be a “substantial relationship” between the conduct and the harm incurred. [Citations omitted.]

In summary, the record in the present case indicates that Mr. Hines was confronted with a sudden emergency situation when Mr. Sartor unexpectedly turned left in front of him. In opposing the motion for summary judgment, Mr. Hood, therefore, had the burden to present contradictory evidence that Mr. Sartor would not have made the left turn Imhad Mr. Hines’ headlights been illuminated. Instead, all that was offered in opposition to Mr. Hines’ motion for summary judgment was the speculation that, had Mr. Hines’ lights been illuminated, Mr. Sartor might not have made the turn and the subsequent accident would have been avoided. Mr. Sartor never stated in his deposition that it was too dark to see the Hines vehicle, nor did he make any effort to contradict Mr. Richardson’s statements that he was not looking ahead when he made the left turn. In Severson v. St. Catherine of Sienna Catholic Church, 97-1026 (La.App. 5th Cir.2/11/98), 707 So.2d 1026, writ denied, 98-0653 (La.4/24/98), 717 So.2d 1178 the court ruled that summary judgment was proper in favor of an oncoming motorist when a left-turning motorist failed to present evidence of a genuine issue of material fact. In that case, the court found summary judgment proper when the undisputed facts showed that (1) the plaintiff was traveling in a favored, oncoming direction and (2) the left-turning driver stated that he did not see plaintiffs car before making his turn. Those same facts are presented without dispute in the case sub judice: Mr. Hines was traveling in the oncoming, favored direction and Mr. Sartor, by his own admission, did not see him until the moment of collision. As such, summary judgment was properly granted.

|, -i CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Fred Hines, West American Insurance Company and Reggie Roe Builders, Inc. is affirmed. Costs of appeal are assessed against Randy-Hood.

AFFIRMED.

      . Reggie Roe (Mr. Hines’ employer) was inadvertently named as a movant for summary judgment by Mr. Hines' counsel. Reggie Roe has not been named as a defendant in this lawsuit. Additionally, Ohio Casualty Insur-anee was originally named as a defendant. The petition was subsequently amended to name West, which is a member of the Ohio Casualty Insurance Companies.

      . In Whiddon v. Hutchinson, 94-2000 (La.App. 1st Cir.2/23/96), 668 So.2d 1368, writs denied, 96-0731 and 96-0775 (La.5/10/96), 672 So.2d 923, the first circuit found no liability on the part of an oncoming motorist who was confronted with a sudden emergency created by the unexpected left turn of a vehicle into his lane of traffic under circumstances factually similar to the case sub judi-ce. The Whiddon Court went on to explain the sudden emergency doctrine by stating:
      One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been the better method, unless the emergency in, which he finds himself is brought about by his own negligence.
      668 So.2d at 1375, citing Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Mr. Hines argues, inter alia, that he was the favored, oncoming driver and that he did not bring about this situation by his own negligence.

      . La. R.S. 32:301 provides, in pertinent part:
      Every vehicle upon a highway in this state shall display lighted lamps and illuminating devices ... at any of the following times:
      (1) At any time between sunset and sunrise.
      (2) When, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernable at a distance of five hundred feet ahead.
      (3) When moisture in the air or precipitation necessitates the continuous use of windshield wipers.

      . The oncoming, favored motorist in such a situation has the right to assume that a left-turning motorist will yield right-of-way. Severson, supra, citing Walker v. McCartney, 96-706 (La.App. 5th Cir.9/17/97), 700 So.2d 898. In addition, "[i]f a motorist fails to see what he should have seen, then the law charges him with having seen what he should have seen, and the court examines his subsequent conduct on the same premise that he did see what he should have seen.” Severson, supra, citing Sanchez Fernandez v. General Motors Corp., 491 So.2d 633 (La.1986).


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Brenda JENKINS, Nee Eldridge, Plaintiff-Appellee v. Frank JENKINS, Defendant-Appellant.
    No. 38,873-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Blackwell, Chambliss, Henry, Caldwell, Cagle & Camp, LLP, by Sam O. Henry, III, West Monroe, for Appellant.
    Linda K. Ewbank, for Appellee.
    Before PEATROSS, MOORE and • • LOLLEY, JJ.
   MOORE, J.

Plaintiff moved out of the matrimonial domicile and filed for a divorce, ending her 19-year marriage to defendant. She petitioned for interim , and permanent spousal support. Divorce was granted on December 12, 2002, while issues regarding a claim for past due interim support and permanent support were still pending. After trial on these issues, the court awarded the plaintiff $700 per month permanent support, but denied her motion for past due interim support. Defendant appeals the judgment awarding the plaintiff permanent support and the amount of support. Plaintiff answers the appeal, seeking an increased award and past due interim support. For the reasons that follow, we affirm. ■

FACTS

Frank Jenkins and Brenda Eldridge were married on September 16, 1983 — his fourth and her first, although two of Frank’s marriages were to the same woman. At the time Frank married Brenda, he had two sons; ages 19 and 17, and a daughter, Lindsey, age 2, from his previous marriage to Judy Bennett Jenkins. Frank had custody of Lindsey every other weekend.

The couple lived in a home in Indian Lake subdivision in West Monroe, Ouachi-ta Parish. Frank also owns a camp in East Carroll Parish bordering the Mississippi River, where he spent nearly every weekend. Frank retired some years back, but owns and manages a mobile home park consisting of roughly 95 lots which he rents monthly for approximately $150 per month and which generates approximately $12,000 per month before operating expenses are deducted. Frank testified, however, that he actually has a negative income because he borrows his living expenses ^against the mobile home park each year.

The first signs of marital discord occurred near the end of the summer of 2000 when Brenda moved out of the house on August 29. She filed for a divorce on September 20, 2000, but the couple reconciled in January, 2001 after being, separated for approximately five months. As part of their agreement to reconcile, Brenda signed a partition agreement waiving any future right to alimony and the home in exchange for $50,000, which was never paid. One year later, on March 21, 2002, Brenda moved out again and filed for divorce on April 15, 2002. She sought interim and permanent spousal support.

The court awarded Brenda interim support on November 20, 2002 in the amount of $2000 per month. Frank moved for a rehearing which was scheduled for December 12, 2002. Judgment of divorce was granted at the December 12 hearing, and subsequently the court reduced the support award to $1269 commencing on April 15, 2002.

On April 28, 2003, Brenda filed a rule for back due interim support in the amount of $2,538.00. This sum allegedly represented two missed payments of $1269 for April 15, 2002 and April 15, 2003. Defendant also requested attorney fees and costs.

Trial on all pending motions was held on October 8 and 10, 2003. The court took the matter under advisement and rendered judgment without separate written reasons on November 4, 2003. The judgment found that Brenda was without fault in the divorce and awarded her permanent periodic spousal support in the amount of $700 per month. The court | ¡¡denied all other motions.

Frank now appeals alleging that the court erred in finding that Brenda was without fault. Alternatively, Frank argues that if the court affirms the spousal support award, the award should be reduced.

Brenda answered the appeal alleging that the award is far too low. She contends the award does not consider her needs, Frank’s ability to pay, the lifestyle of the parties who were married for 19 years, and their respective earning capacities. She contends that the award should be $1780 per month, or alternatively, the same amount as the interim award of $1269.

Brenda also contends that the court erred in denying her interim spousal support arrearage amounting to $3,807, plus interest, in addition to attorney fees and costs.

DISCUSSION

The court issued a “ruling and judgment,” stating that it rendered judgment based upon consideration of the law, testimony and documentary evidence. The trial judge assigned no separate oral or written reasons for judgment detailing the factual basis for ruling that Brenda Jenkins was without fault in the dissolution of the marriage and the factual basis for awarding her $700 per month permanent alimony, while denying all other requests for relief. Had the trial court assigned clearly stated findings of fact and reasons for judgment, the reviewing court could more easily follow the trial court’s reasons for finding that Brenda was without fault, and its reasons for setting the support amount at $700 per month, and why Brenda’s | ¿motion for past interim support was denied.

Fault

By his first assignment, Frank contends the trial court erred in finding that Brenda was free from fault. Frank alleges that Brenda abandoned him in March of 2002 when she moved out of the matrimonial domicile without lawful cause and refused to return. This ■ abandonment, he argues, constitutes legal fault and precludes an award of permanent, spousal support.

Fault is a threshold issue in a claim for spousal support. Roan v. Roan, 38,383 (La.App. 2 Cir. 4/14/04),870 So.2d 626. In a proceeding for divorce or thereafter, the court may award interim periodic support.to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. La. C.C. art. 111. The burden of proof is upon the claimant. Id; Lyons v. Lyons, 33,237 (La.App. 2 Cir. 10/10/00), 768 So.2d 853, writ denied, 2000-3089 (La.1/5/01), 778 So.2d 1142.

Revision Comment (c) of 1997 to La. C.C. art. Ill notes that fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. Jones v. Jones, 35,502 (La.App. 2 Cir. 12/5/01),804 So.2d 161; Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359. Legal fault may include, among other actions, habitual intemperance or excesses, cruel treatment or outrages, and ] abandonment. Roan v. Roan, supra; Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259. A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Roan v. Roan, supra; Lyons v. Lyons, supra.

Frank contends that Brenda was totally at fault in the dissolution- of the 19-year marriage, and that> he was without fault. Brenda abandoned him when she moved out of the matrimonial domicile and refused to return.- This abandonment, he argues, caused the dissolution of the marriage.

Abandonment was a ground for separation under former La. C.C. art. 138, and still constitutes legal fault for the purpose of preclusion of a party from permanent spousal support. Roan, supra; Caldwell v. Caldwell, 95-963 (La.App. 5 Cir. 3/13/96), 672 So.2d 944, writ denied 96-1550 (La.9/27/96) 679 So.2d 1351. The elements necessary to prove abandonment as provided in the former code articles are:

1. the party has withdrawn from the common dwelling;
2. the party left without lawful cause or justification; and
3. the party has constantly refused to return to live with the other.

It is undisputed that Brenda moved out of the matrimonial domicile, and she had no plans to return. She testified as much. Frank testified that on one occasion he suggested that she return home and be a “decent wife.” On the other hand, he also admitted at trial that he once told his former |fibrother-in-law, whose wife (Brenda’s sister) had also left him, that they may find that it’s better that “the bitches are gone.” Notwithstanding this remark, if we assume that Brenda refused to return, the sole question regarding the issue of abandonment is whether Brenda had lawful cause for leaving.

Lawful Cause

Brenda alleged in her petition and testified at trial that the cause of the physical separation and divorce was Frank’s excessive drinking, which she said led to physical and verbal abuse directed at her. She testified his drinking began every afternoon around 2:00 o’ clock at the trailer park with his brother L.C., and by the time Frank came home around 5:30 or 6:00, there was a personality change. He would have an additional three or four more drinks after he came home. She said when he was drinking, Frank verbally degraded her, accused her of infidelity, called her a “fucking bitch,” and told her she could “carry her ass” if she did not like it. She testified that he pulled her hair and pinched her. On one occasion, she said he grabbed her hair and twisted her arm behind her back when she tried to walk away from him after they had been arguing about alcohol.

Brenda admitted that she sometimes drank two or three cocktails when they were at a party or holiday occasion, but denied that she drank excessively or ever became obnoxious from drinking. She said that she sometimes would go weeks without drinking, and has never drunk alcohol on a daily basis. She admitted that she received a DWI when she was a |7teenager.

Frank denied that he drank excessively or ever abused Brenda. He admitted that he drank two or three cocktails each evening during the marriage, but claimed that Brenda matched him drink for drink. Frank said that toward the end of the marriage, Brenda became very cold towards him and then left him without any reason. He says he was never physically or verbally abusive to Brenda.

Both parties tried to corroborate their testimony with testimony of friends and relatives:

Russell Fleeman, Brenda and Frank’s one-time brother-in-law married to Brenda’s sister, testified that he never saw Brenda drink in excess or act obnoxiously or rudely. Regarding Frank’s statement to him after their wives had left them, he quoted Frank as saying, “I don’t give a fuck what’s happened to the bitches.” He said that although he observed Frank in social settings, he was not measuring what Frank drank. He never observed Frank abusing Brenda.

Terry Jenkins, Frank’s daughter-in-law by marriage to Frank’s son, Vance, testified that she had never seen Brenda drink to excess or to the point that she was impaired. On the other hand, she stated that she and her husband no longer have a relationship with Frank because of his drinking. Nor do they allow Frank to have a relationship with his grandchildren. She has observed Frank drunk and using vulgar language. She does not allow her children to visit or stay with Frank because of his excessive drinking. When the couple was married, she only allowed the kids to go to the camp when Brenda was there because Brenda would not be drinking. Prior to the ^separation and divorce, she and her husband visited on holiday occasions. She admitted that her relationship with Frank, as well as Vance’s, relationship with him, was strained due to Frank’s drinking. She said Vance told her that Frank once offered to build him a house and take the kids from her if he would “divorce the bitch.”

Lisa Ginn, Brenda’s sister, testified that she has seen Brenda drink on occasions but never to excess. However, she has observed Frank drink excessively at the camp and saw him stumble and fall at the camp on Labor Day three years earlier from drunkenness. She has heard Frank verbally abuse Brenda. She said she called in January of 2002 and asked if Brenda was there. She testified that Frank responded by saying, “She’s here. I’m looking at the bitch.” She said Frank made crude comments, and recalled one such particularly gross comment he made to her pregnant daughter.

Other evidence of Frank’s behavior was introduced in the record, including the pleadings in the divorce filed by his former wife, Judy Bennett Jenkins and also an incident at the trailer park involving the police. The former divorce pleadings contained allegations against Frank of behavior similar to the allegations by Brenda, namely, that Frank accused Judy of infidelity, of pulling her hair, and using degrading and abusive language to hér. Ouachita Parish Sheriffs deputy James Hindmon testified that in August of 2002, he was called out to investigate an alleged battery committed by Frank Jenkins on a juvenile, and in which his report indicated that he, Hindmon, detected the smell of alcohol on Frank. The deputy recalled that he detected a strong smell of alcohol coming from Frank and from his brother L.C., when he interviewed each of them. He did not | flperform an intoxication test, but he observed that Frank had “glassy, watery eyes.” No arrests, however, resulted from the investigation.

Judy Bennett Jenkins was' married to Frank twice and is the mother of Lindsey. Judy testified that Frank used abusive language toward her during her marriages to Frank in the late seventies. She stated that the allegations in her divorce pleadings that Frank had accused her of infidelity were true. Although she remembered that Frank drank, she could not remember if he drank every night. Judy also testified that Brenda once called her and accused her of lying about the allegations that Frank had abused her and told her that Frank was a wonderful husband and had never done anything like that.

Lindsey Jenkins testified that her father only drank socially in the evening, and said Brenda drank with him. She said that she had seen Brenda mock her father and recalled a few incidents in which Brenda hurt her feelings when she was a child. She also said she heard Brenda speak badly about her father. Lindsey admitted that she was financially dependent on her father.

L.C. Jenkins testified that he lives in the trailer park owned by his brother. He said that normally they would not drink until after working hours at 5:00. He said that he saw Brenda consuming alcohol on the same occasions that he saw Frank drinking and never saw them together in which she was not drinking along with Frank. He testified that he never saw Frank speak or act abusively toward Brenda.

ImGlinda Jenkins, L.C.’s wife, corroborated much of L.C.’s testimony. She said that Frank and Brenda had engaged in social drinking together for as long as she had known them and had never observed Frank being abusive toward Brenda.

Ray Jenkins, another brother of Frank Jenkins said he had observed Frank and Brenda drink socially. He had never seen Frank verbally or physically abuse Brenda on the occasions that he visited their home.

• Lane Jenkins, one of Frank’s sons who also lived in the trailer park, testified that he had never seen or heard his father physically or verbally abuse Brenda. He said that alcohol consumption was only socially in the evening, and Frank and Brenda both participated. Lane also contradicted Terry Jenkins’ testimony that they did not have alcohol in their home.

Several of the above witnesses testified that Brenda spent a minimal amount of time with Frank during his hospital recuperation lasting several days.

To justify or establish lawful cause for leaving the common dwelling, the withdrawing spouse must make a showing which is substantially equivalent to a cause giving rise to grounds for separation under the former LSA-C.C. art. 138. Caldwell v. Caldwell, supra. See Prattini v. Prattini, 543 So.2d 590 (La.App. 4 Cir.1989). Habitual intemperance or excesses, cruel treatment or outrages were included among the causes serving as “fault” grounds for separation under former Article 138.

It is well-settled that it is not the quantity of alcohol but rather the extent and habitualness of intoxication that constitutes “habitual intemperance” for purposes of “fault.” Proof of intoxication on two or three Inoccasions does not establish habitual intemperance. Broderick v. Broderick, 191 La. 492, 186 So. 5 (La.1938); Williams v. Williams, 240 So.2d 795 (La.App. 2 Cir.1970), writ refused, 257 La. 279, 242 So.2d 248 (La.1971). In Broderick, Chief Justice O’Niell stated that

habitual intemperance — like ill-treatment of one of the spouses toward the other — is not a just cause for a separation from bed and board unless such habitual intemperance, or such ill treatment, is of such a nature as to render their living together insupportable. And the question whether the habitual intemperance, or ill-treatment, in any given case, is of such a nature as to render the living together of the parties to the marriage unbearable, — or ‘insupportable’ ... — is a question for the Court, and not for either of the parties to decide. Mack v. Handy, 39 La. Ann. 491, 2 So. 181. In deciding that question, in any given case, the court must consider the habits of the complaining party, and his or her conduct towards the other party to the marriage. 186 So. at 6.

Regarding acts of cruelty, it has been held that where the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as to utterly destroy the objects of matrimony, a judgment of separation may be granted on grounds of cruelty. Williams v. Williams, supra. Swartz v. Swartz, 191 So.2d 753 (La.App. 2d Cir.1966).

The trial court in this case did not state for the record the factual determinations and credibility determinations upon which it based its conclusion that Brenda was not at fault and therefore implicitly finding that she was justified in leaving the house. Nevertheless, we conclude that the trial court must have found that Brenda had just cause for moving out of the matrimonial domicile based upon Frank’s habitually excessive drinking and abusive language toward Brenda. The testimony supports a finding that | ^Brenda drank on occasion with Frank, but not to excess and not with the same resultant personality change Frank underwent when he continued to drink. Brenda apparently complained to Frank about the excessive drinking to no avail, and it is obvious he does not believe he has a drinking problem. Frank’s habitual, excessive consumption of alcohol followed by abusive language toward his wife seemed calculated to utterly destroy Brenda’s peace of mind and happiness rendering the marriage unsupportable. For this reason, we conclude that the trial court did not err in finding that Brenda was without fault in the dissolution of the marriage.

Mutual Fault

Alternatively, Frank argues that both parties were mutually at fault since Brenda drank just as much as he did. Lyons v. Lyons, supra. However, this argument is without merit. A course of conduct, such as drinking, when it is approved and consented to by both spouses, cannot constitute mutual fault. Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4 Cir.1978); Denbo v. Denbo, 345 So.2d 1257 (La.App. 1 Cir.1977).

Amount of Spousal Support

Frank argues that the permanent spousal support award is too high. Frank is 60 years old. He retired from his engineering practice at age 45 and worked as a developer building “spec” houses. In fact, Brenda handled the decorating end of these projects. He recently had two back surgeries. His sole means of support is from the trailer park he owns. He contends he is deeply in debt and he desires to send his adult daughter Lindsey, who is a nurse, to graduate school as a nurse practitioner.

lisHe contends the $700 per month award exceeds one-third of his income because his accountant said his income is in a “negative position.” He allegedly lives and supports his daughter-by borrowing money, and he contends he should not be required to borrow money for spousal support.

Brenda notes that Frank owns and lives in a large home and has a comfortable camp. She contends he makes ample money from his trailer park to generously support himself and provide living expenses for his adult daughter Lindsey and her fiancé. Since her graduation from high school, Frank has bought Lindsey three homes and has given her five automobiles since she began driving, the most recent being a brand new GMC Denali. Brenda contends that she was economically dependent on Frank during their 19-year marriage. She earns only $1248.25 per month working in a doctor’s office while her living expenses are $3,208.33. Accordingly, she argües the $700 is simply not enough,

Brenda also argues that the court erred in denying her motion for past due interim support in the amount of $3807, which comes to three payments of $1269, the court-awarded monthly interim support award. She contends that Frank never paid the first half-month of interim spousal support award based on the $1269 award, which comes to $634.50, and he never paid the final half-month for June 2003. He apparently missed two other payments according to Brenda.

Brenda also requests interest and attorney fees for the past due interim support amounts.

In this instance, it is clear that Frank owns a considerable amount of property and has a large cash flow income from his mobile home park, 1unotwithstanding his “debt” on the park. The record also supports the conclusion that Frank lavishly spends money ón his daughter Lindsey, and has supported directly and indirectly other members of his family.

Brenda has worked most of the 19 years of marriage.in support of the marriage. There is really no evidence other than Frank’s testimony that she spent money selfishly during the years of marriage.

We conclude that while the permanent spousal support award of $700 per month is very low, considering the relative earning strength of Frank and the assets involved, we cannot conclude that the trial court abused its. discretion in determining the amount of the award and, therefore, the award will not be disturbed on appeal.

Likewise, we cannot conclude, based on this record, that the trial court erred in denying Brenda’s motion for past due interim support.

Conclusion

We conclude that the judgment of the trial court is supported by the evidence contained in the record. For these reasons, the judgment is affirmed at appellant’s cost.

      . The validity of the partition agreement is not an issue in this proceeding.

      . Formerly, Article VII, § 43 of the Louisiana Constitution of 1921 required a district judge in all contested civil cases, other than jury cases, to give in writing his findings of fact and reasons for judgment. However, the Louisiana Constitution of 1974 does not contain a similar provision. La. C.C.P. art.1917 requires a court to give written reasons for judgment when requested by one of the parties in the action.

      . Brenda's version of this statement is somewhat different. She testified that Frank did not want her to return home and, in fact, told his brother-in-law that he was glad that "the bitches were gone.”

      . Frank testified that he gave Judy a “second chance.” ■


author: J^LOLLEY, J.

text:
    Gloria Annette Turner SIMMONS, Plaintiff-Appellant v. Gaylon SIMMONS, Defendant-Appellee.
    No. 38,871-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Chris L. Bowman, Jonesboro, for Appellant.
    James L. Fortson, Shreveport, Darrell R. Avery, Jonesboro, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   J^LOLLEY, J.

Gloria Annette Turner Simmons (“Turner”) appeals the judgment of the Second Judicial District Court, Parish of Jackson, State of Louisiana, in favor of her former spouse, Gaylon Simmons (“Simmons”). For the following reasons, we affirm.

Facts

Turner and Simmons were divorced by judgment rendered September 14, 2000. See, Simmons v. Simmons, 34,942 (La.App.2d Cir.08/22/01), 795 So.2d 448. The parties had considerable community property, and as a result, several agreements regarding same have been entered into by the parties. One of these was a Consent Judgment on Motion to Modify Consent Judgment rendered on January 5, 2001, and signed on February 7, 2001 (the “consent judgment”). In the consent judgment, the parties agreed’ that “[a]ll joint litigation expenses of the parties in connection with the litigation entitled Riddle v. Simmons, in the 2nd Judicial District Court, Jackson Parish, Louisiana, are to be paid one-half (]£) by each party” (the “attorney fees”). Notably, the consent judgment as well divided and distributed a $1,000,000 money fund owned by the parties. The consent judgment was not, appealed by either party.

On July 24, 2003, Simmons filed a Rule for Contempt, alleging, amongst other claims, that Turner had failed to pay her portion of the attorney fees as ordered in the consent judgment. A hearing was held on the matter, and the trial court rendered judgment. Turner was not found to be in contempt of court for not having paid the litigation expenses; however, she 12was ordered to pay her one-half of the attorney fees in the amount of $160,333.48 no later than December 31, 2003, or to then be found in contempt. It is from that judgment that this appeal ensues.

Discussion

The judgment being appealed stems from the parties’ previous consent judgment which addressed the payment of the attorney fees among other items. Turner did not appeal the consent judgment; however, she did not act as ordered in the consent judgment and pay the attorney fees as agreed to by the parties. Notably, she apparently did accept her one-half of the distributed $1,000,000.00 A.G. Edwards Moriey Fund, another action addressed by the consent judgment. ■

Following Simmons’ rule for contempt, the trial court entered a second judgment, again ordering Turner to pay her half of the attorney fees or be held in contempt of court. This judgment is the subject of the appeal before us, to which Turner raises one issue: whether the trial court erred in ordering her to pay litigation fees and expenses or be held in contempt of court. She argues that the trial court’s order that she pay the litigation expenses results in piecemeal partition of the community property, which partition she characterized as “ongoing.” Moreover, she said the nature of Simmons’ claim is one in reimbursement, which is prematuré now considering that the community has not been settled. At the hearing on Simmons’ Rule for Contempt, Turner claimed that she did not agree to pay the litigation expenses, a deal her former attorney made, nor could she afford to pay said expenses.

1initially, we note that the consent judgment ordering Turner to pay the attorney fees was a final, binding judgment. Thus, we will not consider the propriety of the trial court’s original order that Turner pay one-half of the attorney fees. Interestingly, Turner argues that such an order to pay the attorney fees amounts to piecemeal settlement of the community; however, it appears she accepted, without complaint, the disbursement of $500,000.00. out of the community prior to the final settlement of same.

Despite Turner’s claims, the rule for contempt was properly before the trial court. Turner failed to obey a lawful judgment of the trial court when she did not heed the trial court’s order and pay one-half of the attorney fees. Pursuant to La. C.C.P. art. 224(2), “... [wjilful disobedience of any lawful judgment, order, mandate, writ, or process of the court .is considered constructive contempt. In its discretion, the trial court could have found Turner in contempt of court for failing to adhere to its earlier order set forth in the consent judgment. Here, the trial court actively participated in the process and approved the consent judgment; thus, this consent judgment could be the basis for the finding of contempt on the part of Turner. Smith v. Smith, 35,378 (La.App.2d Cir.09/26/01), 796 So.2d 726. However, the trial court showed Turner patience and restraint in reiterating what was previously ordered, allowing her another chance to act, i.e., “a second bite at the apple,” and in not finding her in constructive contempt of the consent judgment. Her claim that her previous attorney entered into the consent judgment without her approval is baseless, as the consent judgment clearly states that her current attorney represented her in Rconfecting the consent judgment as well. In this case, the trial court simply gave Turner another chance to abide by the order already given (and apparently agreed to by her) or face the possibility of being found in contempt. There was no error committed.

Conclusion

For the foregoing reasons, the judgment of the trial court against Gloria Annette Turner Simmons is hereby affirmed, with all costs of this appeal assessed to her.

AFFIRMED.

      . The record does not reflect that a final settlement of the community has occurred.


author: hPEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Shaun RAINEY, Appellant.
    No. 38,869-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, and David Scott Kendrick, for Appellant.
    William R. Jones, District Attorney, Robert E. Bethard, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   hPEATROSS, J.

Defendant, Shaun Rainey, was charged with one count of simple burglary in violation of La. R.S. 14:62. A unanimous jury of six found him guilty on the lesser and included offense of unauthorized entry of a place of business. Thereafter, the State charged Defendant as a fourth-felony offender. Defendant agreed to plead guilty to the habitual offender bill in exchange for imposition of the minimum 20-year sentence. The court imposed the agreed sentence and denied a motion for reconsideration of sentence. Defendant appeals the sentence, assigning as error that the agreed sentence was excessive and that he was not properly advised of his possible exposure as a fourth-felony offender before rejecting a pretrial plea bargain and electing to proceed to trial. For the reasons stated herein, we affirm.

DISCUSSION

On May 24, 2003, Defendant and several companions broke into a Chevron station in Armistead, Red River Parish, and stole approximately $63. Two of the accomplices, including Defendant’s brother, made confessions and testified at trial that the crime was Defendant’s idea. Defendant had prior convictions: in 1995 for illegal possession of stolen property over $500; in 1997 for theft over $500; and, in 2001 for unauthorized use of a motor vehicle.

The law is well-settled that, where a specific sentence or sentence cap has been agreed to as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by La. C. Cr. P. art. 894.1. State v. Wyatt, 35,835 (La.App.2d Cir.6/12/02), 821 So.2d 569. Accordingly, because the parties agreed to the sentence imposed, the assigned error concerning excessiveness of sentence is not properly before this court.

We note that, since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714.

The law also is well-settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (1990). In the case sub judice, there was no objection to the pretrial sentencing advice Defendant’s trial counsel provided him. This assignment is without merit.

Our error patent review noted that the trial court erroneously believed Defendant was eligible for parole. To the contrary, La. R.S. 15:574.4A(1) provides that a “person convicted of a third or subsequent felony shall not be eligible for parole.” This error will be corrected automatically by operation of La. R.S. 15:301.1.

J¿¡CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Shaun Rainey, are affirmed.

AFFIRMED.


author: |,PEATROSS, J. | t CARAWAY, J.,

text:
    Mary GRAHAM, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 38,953-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Caldwell & Caldwell, by James D. Caldwell, Tallulah, for Appellant.
    Casten & Pearce, APLC, by Theodore J. Casten, Layne A. Clark, Jr., Shreveport, for Appellee.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   |,PEATROSS, J.

This appeal is from a summary judgment in favor of the defendant, the City of Shreveport (the “City”), in a case where the plaintiff, Mary Graham, sought recovery for damages she allegedly sustained when she tripped on an uneven and broken concrete sidewalk on Claiborne Avenue in Shreveport, Louisiana. For the reasons set forth herein, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

FACTS

On June 21, 2002, Ms. Graham filed suit against the City as the result of an incident allegedly occurring on June 23, 2001, at 1457 Claiborne Avenue in Shreveport, Louisiana. Ms. Graham alleged that, as she was walking on the sidewalk at that location, she tripped on uneven, broken concrete and fell, sustaining serious injuries. She alleged negligence and fault on the part of the City, including failure to properly inspect and maintain the sidewalk. She also alleged negligence and fault on the part of the Percy R. Ford Burn Foundation, Inc. (apparently located at the Claiborne Avenue address) for failure to notify the City about the sidewalk. The Percy R. Ford Burn Foundation, Inc., however, was not named as a defendant in the suit.

The City filed an answer generally denying Ms. Graham’s allegations, alleging fault on Ms. Graham’s part, alleging fault on the part of the Percy R. Ford Burn Foundation, Inc. and asserting that the City had no actual or constructive notice of the situation which allegedly caused Ms. Graham’s injuries. In October 2002, the City filed a motion for summary judgment in which it relied on the provisions of Shreveport City Ordinance Section 78-|136,j> which the City alleged placed the duty on owners of property abutting city streets to keep sidewalks in repair. The City argued that the responsibility fell to the abutting property owner, not the City, to maintain the sidewalk; and, therefore, the City was not liable for the accident. After the matter came on for hearing in December 2003, the trial judge granted summary judgment in favor of the City and assigned written reasons. In those reasons, the trial judge stated:

Notwithstanding the valiant opposition to the motion by plaintiff counsel, the Court concludes that under the facts and circumstances presented, the City of Shreveport, as a matter of law, has no duty under the circumstances presented in this case. As a result, it cannot be found liable for the plaintiffs injuries.

This appeal followed.

DISCUSSION

Section 78-136 of the Shreveport Code of Ordinances provides:

(a) All record owners of property abutting on the streets of the city shall keep the sidewalks, curbs, and banquettes adjoining their respective property in good and safe condition, in accordance with standards to be set by the city engineer.
(b) The city engineer shall develop and publish a set of standards for keeping sidewalks, curbs and banquettes in proper repair and safe condition. Such standards shall be made available to the general public..
(c) Whenever it shall become necessary to repair or rebuild a sidewalk, banquette, or curb in the city in accordance with the standards as promulgated by the city engineer, the department of public works shall forward to the record owner of the property, by mail or in person, a written demand requiring such record owner to repair or rebuild such sidewalk, banquette or curb in accordance with the plans and specifications of the city engineer, a copy of which shall accompany such demand and in the event such record owner refuses or neglects to do the work within a period of 30 days from the date of such notice, the city may repair or rebuilt such sidewalk, banquette, or curb, advancing the cost thereof, and the city shall have a special | alien and privilege on such property to secure the reimbursement of the amount paid by preference, and priority over and above any other claim, privilege, mortgage or incumbrance upon such property such lien to become effective against third parties from the date of registry in the clerk of court’s office of the parish, of an affidavit setting out the character of such work, and the costs thereof, as provided by .existing lien laws.

The source of Section 78-136 is Section 31-12 of the 1971 Shreveport Code of Ordinances. The wording of Section 78-136 is virtually identical to the wording of Section 31-12. In Randall v. Feducia, 499 So.2d 458 (La.App. 2d Cir.1986), aff'd, 507 So.2d 1237 (La.1987), Sharon Randall, who rented a residence in Shreveport, Louisiana, from Tony Feducia, slipped or fell at the junction of the residence’s walkway and the sidewalk. The sidewalk had been added after the construction of the residence, and an 18-inch drop off was created by construction of the sidewalk where it met the pre-existing walkway. Ms. Randall contended that Mr. Feducia should be held liable as an abutting property owner to the municipal property; she asserted that, under Shreveport City Ordinance, Section 31-12, Mr. Feducia, as an abutting property owner, Was under a duty to keep sidewalks, curbs and banquettes adjoining his property in a good and safe condition. This court, however, found Ms. Randall’s reliance on the Shreveport ordinance' to be misplaced, stating:

As this court pointed out through then Chief Judge Bolin in Snow v. City of Shreveport, 287 So.2d 647 (La.App. 2d Cir.1973), writ denied, 290 So.2d 332 and 290 So.2d 335 (La.1974), ordinances of 'this nature simply establish the legal relationship between the city and the adjoining property owner. They do not confer tort liability on adjoining property owners unless that property owner actually created or caused the defect involved. -Of particular import is that the Snow v. City of Shreveport decision cited with approval Toppi v. Arbour, 119 So.2d 621 (La.App. 1st Cir.1960). Toppi found that an | ordinance equally as specific as that at issue here failed to transfer a duty to maintain the sidewalk in a safe condition from the municipality to the adjoining landowner. The Snow court at page 650 determined that Toppi was authority for the proposition that , such ordinances were merely legislative recognition of the principle that a municipality may hold the adjoining property owner financially responsible for the costs of repairing the sidewalk but did not relieve the City of its primary obligation toward the public to maintain sidewalks in á safe condition.

We also stated in Randall that it is well-settled that an abutting property owner is not generally responsible for repair or maintenance of public sidewalks except where the defects in the sidewalks were caused by said owner.

The Louisiana Supreme Court granted writs in Randall and noted that, on the issue of the landowner’s liability, we had cited for authority the proposition that an abutting property owner is not generally responsible for repair or maintenance of public sidewalks, except where the defects in the sidewalk were caused by him. In affirming our decision on this point, the supreme court noted that, since the private walkway was in place when the city built the sidewalk and the manner in which the sidewalk was built created the drop off, there was no showing that Mr. Feducia was involved in creating or causing the offending defect. The supreme court, therefore, found that we had correctly concluded that Mr. Feducia did not breach a duty which he owed to the plaintiff and was not liable. Randall, supra.

We further note that the fourth circuit, when faced with statutory provisions containing very similar language to that found in the Shreveport Code of Ordinances, concluded that the statutory language did not express “a true legislative intent to shift the burden for tort liability to the adjoining | landowner.” See Kuck v. City of New Orleans, 531 So.2d 1142 (La.App. 4th Cir.1988); See also Breaux v. G.H. Leidenheimer Co., 204 So.2d 59 (La.App. 4th Cir.1967), applications denied, 251 La. 740, 206 So.2d 92 and 251 La. 743, 206 So.2d 93 (1968), cert. denied, 393 U.S. 876, 89 S.Ct. 173, 21 L.Ed.2d 148 (1968). Simply put, Randall and its progeny have established that the burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner. Further, an abutting property owner is not generally responsible for the repair or maintenance of a public sidewalk, except where the defect in the sidewalk was caused by that landowner. See Randall, supra; Schully v. Hughes, 00-2605 (La.App. 4th Cir.6/5/02), 820 So.2d 1219 (and cases cited therein).

As previously noted, summary judgment herein was granted based on the trial court’s conclusion that the city ordinance at issue placed the duty for maintaining the sidewalks on the abutting property owner and that the City, as a matter of law, had no duty under the circumstances presented in this case. For the reasons set forth in Randall, supra, and subsequent cases cited herein, we find that the trial court erred in its legal conclusion; and, thus, the trial court erred in granting summary judgment in favor of the City.

CONCLUSION

For the reasons set forth above, the trial court’s grant of summary judgment is hereby reversed, and the case is remanded to the trial court for further proceedings. Costs of appeal in the amount of $168 are cast against the City of Shreveport. La. R.S. 13:5112.

REVERSED AND REMANDED.

CARAWAY, J., concurs with written reasons.

| t CARAWAY, J.,

concurring.

I respectfully concur to specifically state the City’s legal duty which the trial court concluded had been transferred to the private lot owner. The record reflects that the City admitted ownership of a public right of use for the sidewalk which encumbers the property of the lot owner. This right of use of the political subdivision is ownership of a “public thing” under Civil Code Article 450. Ownership of a thing, public or otherwise, gives rise to the duty of garde under Civil Code Articles 2317 and 2317.1 and the special statute applicable to the City, La. R.S. 9:2800 C. The duty of garde of the sidewalk relates to the City’s right of direction and control of the sidewalk and its duty to ensure the public’s use and possession of the sidewalk. That duty was not transferred to the adjoining lot owner by the disputed ordinance. Therefore, the legal duty reflected in La. 9:2800 C and the tort analysis for public sidewalks set forth in Boyle v. Board of Sup’rs of Louisiana State Univ. and Agric. & Mechanical College, 96-1158 (La.1/14/97), 685 So.2d 1080, apply to prevent summary judgment in this case.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee v. Elliott L. HOGAN, Appellant.
    No. 38,962-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Louisiana Appellate Project by Paula Corley Marx, Lafayette, for Appellant.
    John Schuyler Marvin, District Attorney, Edward Charles Jacobs, Helene Melissa Sugar, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   JjDREW, J.

A jury found Elliott L. Hogan, 39, guilty as charged on one count of simple escape. The court denied motions for post-verdict judgment of acquittal and for new trial. Thereafter, the court adjudged defendant to be a fourth felony offender, imposed a sentence of 40 years, and denied a timely motion for reconsideration. Defendant appeals his sentence as excessive. We affirm.

Background

On March 8, 2002, defendant was a legally-confined prisoner at the Bossier Parish jail awaiting trial on a charge of aggravated rape. He escaped by climbing to the roof and then walking down a stairwell and out of the building. Authorities suspected he might try to interfere with an ex-girlfriend’s wedding; however, Hogan was not seen at the ceremony or the reception. Two days after the escape, Hogan was located at a service station near Hearne Avenue and 1-20 in Shreveport. Police officers arrested him at the scene without incident.

Hogan’s 20-year criminal history is substantial. The PSI report shows convictions for felony theft, unauthorized use of a movable — bargained down from felony auto theft, possession of stolen property— bargained down from simple burglary of an inhabited dwelling, simple burglary, possession of cocaine — -bargained down from distribution, theft, simple battery, and the instant offense.

The PSI report also shows a history of arrests with no prosecutions for three simple burglaries, theft, forgery, misdemeanor theft, auto theft, unauthorized use of a movable, possession of stolen goods, and forgery.

|2Prior to imposing sentence, the district court considered the facts of the instant offense and defendant’s criminal history including all arrests and convictions as well as the aggravated rape charge which was pending in the same court that was imposing sentence. The court found defendant’s criminal history was “extensive” and that he had a history of unsuccessful performance while on parole. The court found no justification or mitigation for the instant offense and properly noted the sentencing range was 20 years to life.

In deciding against a life sentence, the court noted that the instant offense was not a crime of violence. The prior drug conviction was not punishable by imprisonment for more than ten years. However, the court stated that a lesser sentence would deprecate the seriousness of the offense and then imposed the 40-year sentence complained of on appeal.

Discussion

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The original charge, simple escape, La. R.S. 14:110, carries a sentence of two to five years. As a result of his adjudication as a fourth felony offender, with prior convictions for felony theft, simple burglary, and possession of cocaine, defendant’s exposure was elevated to not less than 20 years and not more than life. La. R.S. 15:529.1 A(l)(c)(i). That sentence must be served without benefit of parole. La. R.S. 15:574.4 A(l).

A sentencing court is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity, State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Jones, 31,569 (La.App.2d Cir.12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40. Contrary to defendant’s contention, we do not find that the district court’s consideration of the pending rape charge impermissibly tilted the court’s judgment to the point that the result creates shock at the severity of the sentence.

Viewing defendant’s entire criminal and social histories, and considering the facts and circumstances of the case, we do not find the sentence imposed to be constitutionally excessive. Although the sentence imposed may be severe, it is far from the maximum which could have been levied upon this career criminal for whom a severe penalty is entirely appropriate. Accordingly, the sentence is AFFIRMED.

      . The PSI report shows three parole revocations due to failure to report.


text:
    STATE of Louisiana, Appellee v. Edgar C. BROOKS, Appellant.
    No. 38,963-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Louisiana Appellate Project by Christopher A. Aberle, Paula Corley Marx, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorney, for Appel-lee.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   hPEATROSS, J.

Defendant, Edgar C.' Brooks, was originally charged with seven counts of possession of a firearm by a convicted felon and one count of illegal possession of stolen things (jewelry and firearms stolen from a house in Doyline). Defendant was later charged by an amended bill of information with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1; illegal possession of stolen things in violation of La. R.S. 14:69(B)(1); and illegal possession of stolen firearms in violation of La. R.S. 14:69.1. Defendant pled guilty to these charges and received the maximum sentence on each charge, a total of twenty-two and a half years. Defendant’s guilty pleas are the subject of this appeal. For the reasons set forth herein, Defendant’s convictions and sentences are affirmed.

FACTS

On September 8, 2003, Defendant was present in open court with his court-appointed defense counsel. The State noted the original charges against Defendant for the record and submitted that it was willing to allow him to plead guilty to count one, attempted possession of á firearm by a convicted felon, as well as illegal possession of a stolen firearm and illegal possession of stolen things. The State also requested that the sentences be served concurrently with one another.

In response, defense counsel stated that Defendant faced “zero to seven and a half’ for possession of a firearm by a convicted felon “zero to ten” for illegal possession of stolen things and “one to five” for illegal possession of stolen firearms. The trial judge repeated each charge and the | ¡..accompanying sentence range as stated by defense counsel, who confirmed each was correct.

Defendant was sworn and the .trial judge questioned him regarding his age, education, understanding of the English language and sobriety. Defendant indicated that he understood the nature of the proceedings and had discussed the matter with his attorney. The trial judge then asked Defendant if the summary of the agreement given in his presence was correct, to which he replied, “Yes, sir.” The trial judge ascertained that Defendant understood that, by pleading guilty to these charges, each would be made a part of his record and could be used against him in the future to enhance or increase the charges or penalties for any subsequent charges. The trial judge also duly advised Defendant of his Boykin rights as they relate to each charge — the right to a trial by jury, right of confrontation and against self-incrimination — which Defendant indicated he understood and waived. The trial judge then addressed Defendant and recited each charge and accompanying sentence range. The trial judge asked Defendant if he understood the nature of the charges and the potential jail time which he could incur. Defendant responded that he understood after each charge. The trial judge then informed Defendant that, in accordance with the agreement, the three sentence terms would run concurrent with one another. Defendant again replied that he understood.

During the plea colloquy, the State gave a brief summary of the facts underlying the pleas, describing with particularity each individual charge, the date and parish of transgression (of the crime) and applicable statute [¡¡governing each charge. Defendant agreed that the facts were substantially correct. Defense counsel also indicated that he believed Defendant understood his rights and desired to freely and voluntarily waive those rights for the purpose of entering the plea.

The trial judge then continued, “All right, Mr. Brooks, under docket number 68,575, illegal possession of a stolen firearm, how do you plead, guilty or not guilty?” Defendant responded, “Guilty.” The trial court then stated, “Let a plea of guilty be accepted.” No objections were made by the defense. The trial court then ordered Defendant into custody to await sentencing. The clerk stated, “Mr. District Attorney, on that illegal possession of stolen firearms, seven counts — ,” to which the district attorney replied, “Yes, ma’am, we’ll dismiss counts 2 through 7 or sub-counts 2 through 7.”

At sentencing, on January 26, 2004, the trial judge reviewed the minutes from the guilty plea proceeding and stated that Defendant pled guilty to an amended bill of information charging him with attempted possession of a firearm by a convicted felon, illegal possession of stolen things and illegal, possession of a stolen firearm. The trial judge then sentenced Defendant to the maximum sentence for each charge and ordered that the sentences were to run concurrently.

The State asked for clarification regarding concurrent sentences, and the trial judge stated that the sentences were to run concurrent with each other, as set out in the plea bargain agreement, but consecutive with any |4parole or probation violation Defendant may have to serve. A motion to reconsider sentence filed on behalf of Defendant was denied. Defendant now appeals.

DISCUSSION

Assignment of Error Number One: As Brooks never tendered a plea to counts one and two, the sentences on those counts must be vacated.

Defendant argues that he only actually pled guilty to count three, illegal possession of a stolen firearm. He contends that the term “illegal possession of a stolen firearm” was used throughout the plea hearing, which was a reference only to count three. He cites La. C. Cr. P. art. 554 and argues that he never affirmatively expressed his desire to plead guilty to counts one and two.

The State argues that Defendant cannot raise this alleged error for the first time on appeal because no contemporaneous objection was made, and it is not an error patent. It contends that Defendant’s guilty plea waived all non-jurisdictional defects in the proceedings prior to entry of the guilty plea and that the plea was not constitutionally defective. We agree.

Initially, we note that La. C. Cr. P. art. 554, regarding effect of failure to plead, provides, in pertinent part, that:

A defendant shall plead when arraigned. If he stands mute, refuses to plead, or pleads evasively, a plea of not guilty shall be entered of record....

We find that La. C. Cr. P. art. 554 is inapplicable to the case sub judice. Defendant did not stand mute, refuse to plead or plead evasively.

Regarding guilty pleas generally, courts usually only review guilty pleas to ensure that they were both counseled and voluntary. State v. Gobert, 02-771 (La.App. 3d Cir.11/12/03), 865 So.2d 779. The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Garth, 622 So.2d 1189 (La.App. 2d Cir.1993). A valid guilty plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State v. Monroe, 25,825 (La.App.2d Cir.3/30/94), 635 So.2d 481.

What the accused understood is determined in terms of the entire record and not just certain “magic words” used by the trial judge. State v. Strain, 585 So.2d 540 (La.1991) (Emphasis added); State v. Munholland, 34,941 (La.App.2d Cir.10/12/01), 797 So.2d 778, writ denied, 01-3077 (La.9/13/02), 824 So.2d 1185. In Munholland, this court stated:

Everything that appears in the record concerning the predicate offense, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. [State v.] Cadiere, 99-0970 (La.App. 1st Cir.2/18/00), 754 So.2d 294; State v. Lodrigue, 97-1718 (La.App. 1st Cir.5/15/98), 712 So.2d 671. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity and seriousness of the charge. Cadiere, supra. State v. Munholland, supra, 797 So.2d at 782-782.

The defendant in a factually similar case, State v. Paoli, 01-1733 (La.App. 1st Cir.4/11/02), 818 So.2d 795, writ denied, 02-2137 (La.2/21/03), 837 So.2d 628, complained that he was given a single Boykin-ization for two separate bills of information on predicate offenses and argued that only one guilty plea was entered and it was not addressed to a specific charge. | fiLike the case sub judice, there was no contemporaneous objection made to the method of proceeding with the charges. In response to these arguments, the court in Paoli stated that “[t]he defendant’s pleas were not invalid for use ... simply because the court did not give him a separate Boykin hearing on each charge when they were entered on the same day.” Paoli, at 798.

A validly entered guilty plea, or plea of nolo contendere, waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), writ denied, 512 So.2d 438 (La.1987).

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (La.1990).

In the case sub judice, Defendant advances an argument similar to that of the defendant in Paoli, supra, i.e., that a single Boykinization- was given for multiple offenses; and, thus, only one guilty plea was entered. As previously stated, the court in Paoli concluded that the pleas were not invalid simply because the court did not give a separate Boykin hearing on each charge when they were entered on the same day. Applying the reasoning and factors considered in Paoli to the present case, the same conclusion can easily be reached.

17Pefendant herein was properly advised of his Boykin rights as they related to each offense and waived them before pleading guilty. The trial judge also properly ascertained that Defendant had the capacity to understand the proceedings and had discussed them with counsel. At the beginning of the hearing, the plea agreement for all three offenses was summarized, and Defendant agreed that the summary of the agreement was correct. The trial judge also informed Defendant of the separate sentence ranges for all three offenses prior to accepting Defendant’s plea. The trial judge determined that Defendant understood that, by pleading guilty to the three offenses, they could be used to enhance or increase charges or penalties for any future offense. The State gave a brief summary of the facts underlying the pleas to all three offenses, and Defendant agreed that the facts were substantially correct. Accordingly, although Defendant never used the magic words “I plead guilty” to each charge, it is evident that he was fully informed that he was pleading guilty to three separate charges.

Furthermore, as in Paoli, there was no contemporaneous objection to the method of proceeding with the charges. What the accused understood is determined in terms of the entire record and not just certain “magic words” used by the trial judge. State v. Strain, supra; State v. Munholland, supra (Emphasis added). In summary, the record of the plea colloquy indicates that Defendant understood that he was pleading guilty to all three offenses. Defendant’s claim that he only pled guilty to one offense is without merit.

Assignment of Error Number Two: Alternatively, the court should not have accepted Brooks’s guilty plea to possession of stolen things because the court was on notice that Brooks’s actual guilt of that crime was called into question.

1 .¡Defendant argues, in the alternative, that the trial judge must ascertain the existence of a “significant factual basis” if a defendant protests his innocence, or if “for some other reason the trial court is put on notice that there is a need for such an inquiry,” citing State v. Wagley, 36,277 (La.App.2d Cir.9/18/02), 828 So.2d 116. Defendant asserts that the trial judge was put on notice of the possibility that he may have actually been innocent of count two, possession of stolen things, La. R.S. 14:69(B)(1), which requires that the value of the stolen things be $500 or more. Defendant explains that the State originally charged him in count two of possession of stolen “firearms and jewelry.” In the amended bill of information, the State deleted reference to firearms in count two and added count three, which charged Defendant with possession of stolen firearms. At the plea hearing, however, the State recited as a factual basis for count two:

In Count 2, he did intentionally possess jewelry reported stolen from a house in Doyline, as well as firearms and other items, these items having a value of over $500.00 under circumstances which indicate he knew or had good reason to believe that the items were the subject of such offense, contrary to Louisiana Revised Statute 14:69. And in Count 3, did intentionally possess firearms which had been a subject of a robbery or theft under circumstances which indicate that the offender knew or should have known that the firearm was the subject of a robbery or theft or burglary, contrary to Louisiana Revised Statute 14:69.1.

Defendant argues that the State recited a factual basis that would have supported the original count two, but leaves ambiguous the factual basis for amended count two because it is impossible to know whether the value of the jewelry and “other items,” exclusive of the firearms, was $500 or greater. Defendant notes the maximum sentence for the offense for stolen items was only two years or six months, depending on the value of the 19stolen items. Defendant asserts that this situation should have put the trial judge on notice of the possibility that the value of the stolen things may have been less than $500, and the possibility that a lower maximum penalty was applicable. Defendant requests that this court allow him to plead anew to count two.

The State argues that Defendant’s guilty pleas were freely and voluntarily made after being made fully aware of the charges in the amended bill of information. The State notes Defendant’s own acknowledgment of all three guilty plea convictions in a letter he addressed to the trial court before sentencing. It further observes that no contemporaneous objection was made to the alleged defect in the guilty plea colloquy, nor has the defect been alleged in any written motions prior to this appeal. The State concludes that a reading of the entire guilty plea colloquy shows a factual basis for all three convictions and Defendant’s complete awareness of the charges when he pled guilty.

In State v. Wagley, supra, the defendant argued that his second degree battery plea should have been vacated because there was no factual basis on the record to show that the victim received serious bodily injury. The defendant in Wagley did not complain that the plea was involuntary on any other grounds. On appeal, this court found this claim without merit, stating:

When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for the plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. Only in that event does due process require a judicial finding of significant factual basis for the defendant’s plea. State v. Linear, 600 So.2d 113 (La.App. 2d Cir.1992); State v. Orozco, 609 So.2d 1043 (La.App. 2d Cir.1992); State v. Powell, 584 So.2d 1252 (La.App. 2d Cir.1991). See also, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Regarding the charges of second degree battery, the record discloses the following restatement of facts by the state: “[0]n or about August 31, 2000, Mr. Wagley committed a battery upon his wife ...' and beat her with his fist and caused serious injury for which she had to be treated at a hospital.” Wag-ley agreed with this statement when the court inquired of him as to whether or not that had happened and Wagley failed to make any other protestation of innocence. Accordingly, the ascertainment of a factual basis for the plea was unnecessary. Moreover, Wagley’s admission that he caused his wife “serious injury,” for which she required hospitalization, is an adequate factual basis to support the plea.

State v. Wagley, supra, cites State v. Linear, 600 So.2d 113 (La.App. 2d Cir.1992). In Linear, after the recitation of the factual basis by the state during the guilty plea proceeding, the defendant claimed self-defense and denied that he had the specific intent to kill. The court held that this placed the trial court on notice of the obligation under the due process clause to make a judicial finding of a significant factual basis for the defendant’s guilty plea to the charge of attempted second-degree murder.

Both Wagley, supra, and Linear, supra, cite North Carolina v. Alford, supra, which held that, when a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reasons the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea. See also State v. Wills, 32,073 (La.App.2d Cir.6/16/99), 740 So.2d 741; State v. Linear, supra.

We find Defendant’s reliance on State v. Wagley, supra, to be misplaced. First, the case sub judice does not involve Alford pleas because [^Defendant did not enter the pleas while protesting his innocence. As such, the trial court was not required under Alford to make a judicial finding of a significant factual basis for Defendant’s plea.

Second, the court in State v. Wagley, reiterated the holding in Alford, noting the alternative situation in which “some other reason the trial court is put on notice” would require a judicial finding of a significant factual basis for Defendant’s plea, as required by due process. Defendant’s argument that the factual basis set forth by the State for count two in this case qualifies as “some other reason the trial court is put on notice that there is a need for such an inquiry” is an illogical (and seemingly reverse), application of the holdings in Wagley and Alford.

We conclude that the factual basis recited by the State for count two during the plea was not so deficient as to put the trial court on notice of Defendant’s actual innocence. The factual basis set forth all of the elements necessary for conviction of the crime of possession of stolen things having a value over $500. Defendant agreed that the facts set forth were substantially correct. No contemporaneous objection was made. Accordingly, Defendant has failed to prove that he should be allowed to plead anew to this count.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Edgar C. Brooks, are affirmed.

AFFIRMED.

      . It is evident that the defense inadvertently omitted reference to "attempt” here.

      . It is evident that the trial court, again, inadvertently omitted reference to “attempt” in charging Defendant with possession of a firearm by a convicted felon.