author: |, SAUNDERS, J. | , COOKS, J.

text:
    Wilbert RIDEAU v. James R. ANDRUS, Clerk of Court.
    No. 03-0289.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 25, 2004.
    Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, for Plaintiff/Appellant: Wilbert Ri-deau.
    Terry James Manuel, Assistant District Attorney, Lake Charles, LA, for Interve-nor/Appellee: Rick Bryant.

      Ronald F. Ware, Public Defender’s Office, Lake Charles, LA, for Plaintiff/Appellant: Wilbert Rideau.
    Evelyn M. Oubre, Attorney At Law, Lake Charles, LA, for Defendant/Appellee: James R. Andrus, Clerk.
    George H. Kendall, NAACP Legal Def. & Ed Fund, Inc., New York, NY, for Plaintiff/Appellant: Wilbert Rideau.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   |, SAUNDERS, J.

Appellant, Wilbert Rideau, seeks mandamus review to enforce the September 9, 2002 allotment of his recusal motion to Judge Alcide Gray. We affirm the trial court’s denial of Mr. Rideau’s mandamus request.

FACTS

This mandamus action arises ancillary to criminal proceedings against Mr. Rideau. On September 6, 2002, Mr. Rideau filed a Motion to Recuse Judge Patricia Minaldi in the pending criminal proceedings. In that motion Mr. Rideau alleged several grounds for the trial judge’s removal.

In a hearing on September 9, 2002, Judge Minaldi asked Mr. Rideau’s counsel questions concerning the alleged grounds for recusal presented in the motion which counsel apparently refused to answer. Judge Minaldi refused to recuse herself and granted the State thirty days to file a reply to Mr. Rideau’s Motion to Recuse. She stated that she would refer the matter if and when the State filed its opposition motion.

Following the hearing the Deputy Clerk of Court signed the Motion of Allotment and arranged to have the Clerk of Court assign the recusal motion and related matters to another judge. On September 9, 2002, the Clerk of Court randomly allotted the motions and Judge Alcide J. Gray was designated as the judge to preside over the recusal hearing.

Following the allotment, and upon learning that the matter had already been referred, Judge Minaldi indicated that her referral order was contingent upon the State filing a reply to Mr. Rideau’s Motion to Recuse. After a review of the September 9, 2002 hearing transcript the Clerk of Court concluded that the September 9, 2002 allotment was premature and, therefore, not valid.

li>On September 11, 2002, Mr. Rideau filed a motion seeking to enforce the September 9, 2002 allotment designating Judge Gray as the judge for the recusal hearing. Neither Chief Judge Fred R. Godwin nor Judge Gray would authorize the filing of the motion; however, on September 12, 2002, Chief Judge Godwin filed an order denying Mr. Rideau’s motion to enforce the allotment.

On September 24, 2002, the State filed its reply to Mr. Rideau’s Motion to Recuse Judge Minaldi in district court. Upon receipt of the State’s reply, Judge Minaldi ordered a referral of the recusal motion and related motions. On September 25, 2002, the Clerk of Court once again allotted the recusal matter for assignment and it was assigned to another judge. This time the matter was assigned to Judge Kenneth Savoie.

Judge Savoie scheduled two separate hearings — one on October 8, 2002, to consider the three motions related to the re-cusal, and one on October 18, 2002, to consider the recusal motion. Mr. Rideau applied to this court for writs on the revocation of the original allotment. The lower court hearings were stayed in order to consider Mr. Rideau’s appeal of the Clerk of Court’s revocation of the original allotment. This court held that the question presented for review — whether the Clerk of Court possessed the authority to withdraw the September 9, 2002 allotment— was not properly before the court.' We held that the review of the Clerk of Court’s power must be presented as a separate mandamus action. Mr. Rideau instituted a mandamus action in the district court against the Clerk of Court, challenging his withdrawal of the original allotment. The matter was heard by Judge David Painter, who denied the mandamus request for relief and issued written reasons for his decision.

DISCUSSION

| ?The sole issue presented in this mandamus action is whether the deputy clerk of court should have recalled the assignment of the motion to recuse from Judge Gray.

Louisiana Code of Civil Procedure article 3861 provides: “Mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” In Felix v. St. Paul Fire & Marine Insurance Co., 477 So.2d 676, 682 (La.1985), the supreme court stated: “It is well settled that mandamus will lie to compel performance of prescribed duties that are purely ministerial and in which no element of discretion is left to the public officer. There must be a clear and specific legal duty which ought to and can be performed. State ex rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665 (1950); Blanchard v. Brown, 388 So.2d 865 (La.App. 1st Cir.), writ denied, 386 So.2d 919 (La.1980).”

Jurisdiction of the Clerk of Court

The jurisdiction of Clerks of Court has been thoroughly discussed by the Louisiana Supreme Court in the case of Hicks v. Hughes, 223 La. 290, 65 So.2d 603 (La.1953). In Hicks, the Clerk of Court granted an application for an order for the sale of succession property pursuant to his authority under Act 204 of 1924, of the Constitution of 1921. The court recognized that Act 204 stated that the Clerk of Court “shall also have power ... to grant orders for the sale of the succession property upon application of the administrator, tutor or curator; provided, the application be accompanied by a statement of the debts of succession.” Id. at 605.

Since the application for the sale was not accompanied by a statement of the debts of the succession, the clerk was incompetent, without power, and consequently without jurisdiction to order the sale of the property, because that was a condition upon which the jurisdiction Rof the clerk depended. For these reasons we have concluded that the order of sale signed by the clerk of court in the instant case was an absolute nullity as one granted without jurisdiction or authority, and that the sale made pursuant thereto was therefore likewise an absolute nullity.

Id. at 606.

In Kelone v. Kelone, 209 So.2d 803, 805 (La.App. 3 Cir.1968), this court held that, although Clerks and Deputy Clerks of district courts possess certain administrative power which enables them to sign certain orders, there was no authorization for the Deputy Clerk of Court to sign a temporary restraining order. Therefore, the court held that the temporary restraining order signed by the Deputy Clerk of Court did not bear any legal efficacy.

We note that the manner in which the appellant framed the issue on appeal somewhat misstates the actual issue. The Clerk of Court did not actually recall a valid assignment, as the appellant indicates. Judge Minaldi had not yet directed the Clerk of Court to assign the case for allotment. As Judge Minaldi had not yet referred the matter, the allotment of another judge to hear the recusal motion was premature. The Clerk of Court lacked the authority to carry out the allotment, and, therefore, the original allotment was null and void.

It is the position of the Clerk of Court and the State that the assignment of the recusal matter to Judge Gray was, therefore, a complete nullity, void of any authority. We agree. For the reasons stated below, we find that the initial allotment was, as argued by the State and Mr. An-drus, a nullity and without legal effect. The allotment did not need to be recalled, as it never legally existed. Therefore, there was no error in the Clerk of Court performing a new allotment on September 24, 2002, after Judge Minaldi ordered the referral of the recusal matter to another judge for consideration.

| eMotion to Recuse

The Louisiana Code of Criminal Procedure provides the grounds and procedure for recusal of judges in criminal matters. Articles 674 and 675 provide in pertinent part:

Art. 674. Procedure for recusation of trial judge
A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.
Art. 675. Selection of judge ad hoc to try motion to recuse
B. In a court having more than two judges, the motion to recuse shall be referred to another judge of the court through a random process as provided by the rules of court.

Mr. Rideau alleges that once the motion to recuse was filed, Judge Minaldi’s only possible courses of action were to recuse herself or refer the matter to another judge in the court. Mr. Rideau argues that she lacked the ability to condition the referral of the recusal matter on the filing of a reply by the State. Mr. Rideau’s position, however, fails to recognize that the trial judge has the ability to review the allegations for sufficiency before deciding to recuse or refer. In State v. Bennett, 341 So.2d 847, 858-59 (La.1976), the supreme court discussed the procedure where a motion to recuse has been filed as follows:

C.Cr.P. 674 provides that ‘if a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc ... ’ (Emphasis added). Therefore, the judge to whom the motion relates must answer the threshold question of whether the motion states valid grounds and need not refer the motion to another judge if the motion presents mere conclusions of the defendant. State v. Collins, 288 So.2d 602 (La.1974).

It is well settled in Louisiana law that, on a motion to recuse, the trial judge | fievaluates the motion to determine if sufficient grounds for recusal have been stated. As the citations above illustrate, it is within the trial judge’s discretion to refuse to refer or recuse where she finds there are insufficient grounds for recusal stated in the motion. Judge Minaldi was within her purview to request all necessary information to assist her in determining whether the matter needed to be referred.

Defense counsel points to statements made in the hearing by Judge Minaldi wherein she indicates that she will be referring the motion to another judge. We find those statements are were made by Judge Minaldi under the assumption that the State would file a motion to oppose the recusal. “They will — that judge, I assume, that’s — I’m assuming you’re going to file your written opposition.” The implication in this statement is that, were the State to support the Motion to Recuse and a clear and valid ground for her recusal were presented, then Judge Minaldi would possibly recuse herself; however, if the State opposed she would refer. That appears to be the reasoning behind withholding her decision until the State’s motion was filed. Judge Minaldi indicated that, without further clarification by the defense counsel, she could not recuse herself.

The trial transcript clearly shows that Judge Minaldi had reservations as to the sufficiency of the allegations raised by Mr. Rideau in his motion to recuse. It additionally shows that Mr. Rideau’s attorneys were reluctant to answer Judge Minaldi’s questions in her attempts to clarify what the specific grounds for recusal were. Judge Minaldi made it clear that she would not recuse herself based on the allegations presented in the motion without further clarification of the arguments. She then granted the State thirty days to issue a reply to Mr. Rideau’s motion. We find no error in Judge Minaldi allowing the State thirty days to file its reply to the 17motion prior to her rendering her decision to refer the recusal matter to another judge. It is clear that Judge Minaldi was unconvinced that there were valid grounds for recusal stated in the Motion filed by Mr. Rideau. Therefore, she committed no error in allowing the State to file then-motion before she referred the recusal matter to another judge.

Judge Painter noted in his reasons for judgment that under La.Code Crim.P. art. 674, the process of allotment is initiated when the judge who is the subject of a motion refers it for hearing. Judge Painter held that it was clear from the hearing transcript that Judge Minaldi did not intend that the recusal motion be referred to another judge until the District Attorney’s Office had an opportunity to respond to Mr. Rideau’s motion. For the reasons stated above, we affirm the judgment of the trial court.

AFFIRMED.

COOKS, J., Dissents and Assigns Written Reasons.

| , COOKS, J.

Dissenting:

I have read the entire transcript of the hearing on the motion to recuse and Judge Godwin’s Per Curiam. Although I do not question Judge Godwin’s recitation of the events leading up and following the allotment of this matter to Judge Alcide Gray, his decision to call the District Attorney and to speak with him concerning the allotment ex parte and then to act on the District Attorney’s representation by contacting Judge Minaldi without providing any opportunity for the defense to participate in the exchanges creates an appearance of impropriety which we “all” have an ethical obligation to avoid.

Even more troubling is Judge Minaldi’s “after the fact” expression of her alleged “prior intent” to await a written response from the District Attorney’s office before deciding whether to recuse herself or refer the matter to another judge for hearing. The transcript which memorialized her “intent” at the time the matter was heard and before Judge Alcide Gray was allotted the case, contain “plain words” which leave no doubt that she intended at that time to refer the matter to another judge and her own minute clerk, who worked with her daily, was not mistaken in understanding what she meant. Judge Minaldi said:

1J am not in a position to recuse myself because I have been unable to get sufficient clarification of some of what I think are the major and most important allegations in this motion. So, without being able to get clarification, I decline to recuse myself. You know, Obviously • anybody can put anything they want to in this motion, whether it’s true or not, but I have to look at the fact that whether or not it could potentially establish grounds for recusal; and although I, without hesitation, say that there are things that are in this motion that are untrue and inaccurate, because they might establish grounds for recusal, even though I do not see that without the. clarification that I have asked for, I will refer it out to another judge, and judge will make all the decisions regarding the conduct of the Motion to Recuse. That is not my bailiwick at this point. They will — that judge, I assume, that’s — I’m assuming you’re going to file your written opposition. That judge will decide whether the State proceeds to represent itself or if some other entity comes in, and I’m making absolutely no pronouncement on whether I think that is appropriate or not, Mr. Kimball, and that Judge will determine whether discovery is appropriate in a case like this.

(Emphasis added).

Judge Minaldi’s intent to “refer it [the motion] out to another judge” is clear. And, the record clearly indicates she assumed the State was “going to file ... written opposition,” and that matter as well would be decided by another judge together with the defense’s pending motion to recuse the District Attorney.

The record convinces me that the matter was properly allotted to Judge Alcide Gray and the Clerk was without legal authority to revoke the allotment based on his “after the fact” interpretation of Judge Minaldi’s intent.


source: Caselaw Access Project

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

license: Public Domain

text:
    Davy P. LABORDE, Jr. and Lisa Marie Laborde v. Quentin D. DASTUGUE, Penny Matherne Dastugue, Jack Lehman Sternberg, Glynis Elizabeth Schmolke d/b/a S.H. Bremen Company, Tommy Crane and Tommy Crane, Inc.
    No. 2003-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.
    Rehearing Denied March 16, 2004.

      Davy P. Laborde, Law Firm of Davy P. Laborde, New Orleans, LA, for Plaintiffs/Appellants, Davy P. Laborde, Jr. and Lisa Marie Laborde.
    Lura Lisa Wall, The Wall Law Firm, River Ridge, LA, for Defendants/Appel-lees, Tommy Crane, Inc. and St. Paul Fire and Marine Insurance Company.
    Richard P. Richter, Christopher C. Cho-cheles, Terri B. Loughlin, Sher Garner Cahill Richter Klein Mcalister & Hilbert, L.L.C., New Orleans, LA, for Defendants/Appellees, Quentin D. Dastugue and Penny Matherne Dastugue.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.)
   JjLEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by the plaintiffs from the trial court’s granting of summary judgments in favor of certain defendants stemming from a real estate transaction.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Tommy Crane, a real estate agent, listed for sale property located at 425 Central Avenue in Jefferson Parish, Louisiana. The property was owned by Quentin D. Dastugue and his wife, Penny Matherne Dastugue. It was leased to Jack Stern-berg, and his wife, Glyniss Schmolke Sternberg, who were tenants in the property at the time it was listed. The Stern-bergs had made a written offer to purchase the property, which the Dastugues accepted. The Sternbergs, however, were unable to obtain financing, and they were unable to purchase the property at that time.

Approximately four months later, Mr. Laborde contacted Mr. Crane after receiving a sales brochure describing the property. The Labordes submitted to the Da-stugues, through Mr. Crane, a written agreement containing a ninety-day option to purchase the property. After some negotiation, an option agreement, which gave the Labordes the exclusive right to purchase the property within ninety days, was | ¡,,signed by the Dastugues and the La-bordes. The option contained a provision giving the Labordes the right to sell, assign, or transfer to a third party their rights under the option, and it also contained a provision prohibiting the Da-stugues from taking any “steps to unduly delay, deny, thwart, or unreasonably interfere with the Purchaser’s [the Labordes’] exercise of the Option.” When they signed the option, the Labordes paid to the Dastugues, through Mr. Crane, a non-refundable deposit in the amount of $1,000.

The option provided that “[w]ithin 10 days following the execution of this Agreement, Purchaser shall inspect the Property and if Purchaser elects to proceed with the Option Agreement, Purchaser shall pay the $20,000 balance of the Option payment.” Although the Labordes did have an inspection of the property made by a professional home inspector, they paid the balance of the option payment before the inspection began.

After the Labordes had paid the entire amount of the option payment, they received a written report of the results of the inspection of the property. The report disclosed that although the sales brochure given to the Labordes by Mr. Crane stated that the property was located on an acre and a half lot with 4,400 square feet of living area in “excellent condition”, the property actually was located on a lot measuring only three-fourths of an acre, the living space was 1,000 square feet less than was stated in the brochure, and there were major concerns about the condition of the roof and certain other aspects of the house. Mr. Crane explained that the discrepancy in the square footage was a result of different measuring techniques being used. The sales brochure also contained the following disclaimer:

The information supplied herein while not guaranteed is from sources we believe reliable. It is subject to errors, omissions .... The Real Estate board contract allows ajjbuyer a 10 day inspection period to verify all information contained herein and we highly recommend all buyers to do so. To avoid reliance on information tuhich could be erroneous, it is highly recommended that any purchaser provide for an inspection period in the purchase agreement to allow for verification of all information contained herein. (Emphasis added.)

Mr. Laborde is an attorney, and he advised Mr. Crane that his exercise of the option was dependent upon a favorable result in a case that was on appeal. He told Mr. Crane that if the final outcome in the case were favorable, he and his wife would purchase the property. If not, they would assign their rights under the option agreement to a third party.

A few weeks after the option agreement was executed, Mr. Laborde advised Mr. Crane that because he was concerned about the results of the inspection of the property and because the lawsuit on appeal had not yet been resolved, he intended to assign his rights under the option so that he could recoup the money that he had paid to the Dastugues. Mr. Crane told Mr. Laborde that the Stern-bergs remained interested in purchasing the property and suggested that Mr. La-borde contact them. Mr. Crane received no compensation for putting the parties in contact with each other, and he contends that he did this solely as a courtesy to the Labordes.

Mr. Sternberg advised Mr. Laborde that he was obtaining the financing necessary to purchase the property and that he and his wife wanted to purchase the Labordes’ rights under the option. Although the La-bordes contend that Mr. Sternberg and Mr. Crane repeatedly assured them that the Sternbergs’ financing was approved, that they were going to purchase the property, and that they would purchase the Labordes’ option, a formal sale of the option was never consummated. In fact, the Labordes claim that the Dastugues, acting through Mr. Crane, assured them that if the Sternbergs did not purchase the option from the | ¿Labordes, the Dastugues would evict the Sternbergs from the property. Nine days after the option expired, however, Mrs. Sternberg purchased the property from the Dastugues.

The Labordes brought the instant suit against the Dastugues, the Sternbergs, Mr. Crane, and Mr. Crane’s company, Tommy Crane, Inc., alleging that these parties conspired to misrepresent material facts regarding the size, condition, and value of the property for the purpose of gaining unjust enrichment. The Labordes also alleged that the parties were liable for tortious interference with a contract and for breach of contract.

The original petition was amended twice. The first amendment to the petition supplemented the original petition by asking not only for damages but' also for the rescission of the sale of the property to the Sternbergs and the reinstatement of the option. The second amendment to the petition added St. Paul Fire and Marine Insurance Company, the insurer for Mr. Crane and his company, as a defendant.

Mr. Crane, Tommy Crane, Inc., and St. Paul Insurance Company filed a motion for summary judgment. The Dastugues also filed a motion for summary judgment. Both motions were heard, and summary judgment was granted in favor of Mr. Crane, Tommy Crane, Inc., St. Paul Insurance Company, and the Dastugues. The Labordes’ claims against these defendants were dismissed with prejudice. The La-bordes are now appealing the granting of the summary judgments and the dismissal of the parties from this case with prejudice.

^DISCUSSION

Standard of Review

In Independent Fire Insurance. Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action....” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Id. at p. 7 and at 230-31.

See also Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

Assignments of Error

The Labordes have made four assignments of error on appeal. These assignments of error allege that the trial court erred in finding that there was no genuine issue of material fact in connection with the following claims by the Labordes:

I. that they were fraudulently induced to execute the option agreement by the fraudulent misrepresentations made by the Dastugues and Mr. Crane regarding the property;
| JL that the Dastugues and Mr. Crane were unjustly enriched at the La-bordes’ expense;
III. that Mr. Crane tortiously interfered with the option agreement and that the Dastugues breached the option agreement; and
IV. that Mr. Crane failed to disclose his status as a dual agent and that he breached the statutory duties of a listing agent.

The Labordes also include in their assignments of error the failure of the trial court to find that the Dastugues and Mr. Crane conspired against them with respect to the foregoing acts and omissions.

I.

Fraudulent Misrepresentation and Fraudulent Inducement to Contract

In Shelton v. Standard/700 Associates, 2001-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64, the Louisiana Supreme Court discussed the requirements needed to prove fraud in connection with a contract as follows:

In sum, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

The Supreme Court in Shelton, citing La. C.C. art.1954, also stated that fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill unless a “relation of confidence has reasonably induced a party to rely on the other’s assertions or representations.” Id.

|7The Labordes complain that they were fraudulently induced to purchase the option, because the information in the sales brochure was inaccurate. Specifically, they allege that the sales brochure misrepresented the size and condition of the property. The sales brochure, however, contained an express disclaimer regarding the representations made in the brochure and recommended that all potential purchasers of the property perform their own inspection to verify the information in the brochure.

Additionally, the option agreement contained a provision that required the La-bordes to inspect the property. The option agreement provided for a ten-day inspection period during which the La-bordes could thoroughly inspect the property prior to making the $20,000 payment for the option. The option agreement gave the Labordes the right to withdraw from the option if they were not satisfied with the results of the inspection. Rather than waiting until after they received the results of the inspection, however, the Labordes paid the $20,000 option payment. Therefore, they cannot now claim that they were fraudulently induced to purchase the option. Additionally, the Labordes toured the property prior to making the $20,000 payment, and they were aware of the size and general condition of the property at that time.

We find that one of the three basic elements required to prove an action for fraud, i.e., the intention to obtain an unjust advantage or to cause damage or inconvenience, was missing in the instant case with respect to the misrepresentations regarding the size and condition of the property. There is no evidence that the Dastugues or Mr. Crane intended to obtain an unjust advantage over, or to cause damage or inconvenience to, the Labordes. In fact, there are |sexpress disclaimers regarding the representations, and the option agreement obligated the Labordes to inspect the property prior to paying the option price.

The Labordes also contend that they were fraudulently induced to execute the option agreement by Mr. Crane’s misrepresentation that the property was covered by a termite contract when it was not. Again, we find that there was no intent by Mr. Crane to defraud the Labordes when he advised them that the property was covered by a termite contract. Additionally, even if we were to find that Mr. Crane intentionally misrepresented the status of the property with respect to the termite contract, the misrepresentation did not sufficiently influence the Labordes’ consent to the option agreement, because the agreement had already been executed and the option price had been paid at the time the misstatement regarding the termite contract was made. Therefore, one of the required elements set forth in the Shelton case for proving fraud is absent. We find that there was no fraud on the part of Mr. Crane or the Dastugues in connection with the execution of the option.

Finally, we note that the veracity of the information that the Labordes claim was misrepresented could have been ascertained by them “without difficulty, inconvenience, or special skill”. La. C.C. art. 1954. The Labordes could have waited until they had the results of the property inspection regarding the condition and size of the property before paying the option price, and they, in fact, did ascertain by a simple telephone call to the relevant pest control company that the termite contract for the property had not been renewed. Therefore, even if we were to find that the Labordes were fraudulently induced to execute the option agreement, which we do not, the provisions of La. C.C. art.1954 would not permit us to vitiate the agreement.

JíJI.

Unjust Enrichment

In Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, the Louisiana Supreme Court listed as follows the requirements for a finding of unjust enrichment:

The five requirements for a showing of unjust enrichment, or actio de in rem verso, are: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of justification or cause for the enrichment and impoverishment, and (5) there must be no other remedy at law available to plaintiff.

648 So.2d at 897.

In this case the Labordes and the Da-stugues executed an option agreement pursuant to which the parties agreed that for a ninety-day period the Labordes had the exclusive right to purchase the property and the Dastugues had the obligation to sell the property to no one but the La-bordes or their successors in interest. The consideration for the Dastugues’ agreement not to sell the property to anyone other than the Labordes for ninety days was the $21,000 paid by the Labordes to purchase the option. The option gave the Labordes the right to sell, assign, or otherwise transfer the option that they had purchased, and the Dastugues were prohibited from interfering with the La-bordes’ exercise of their option.

? facts show that the Dastugues did not sell the property to any party during the option period, and the Da-stugues did not interfere with the La-bordes’ exercise of their option. Neither the Dastugues nor the Labordes were enriched or impoverished. There was a bargained for exchange, and each side received something of value for the consideration they gave. The Labordes had the right to hpbuy the property at any time during the option period at the price stipulated in the option agreement, and they also had the right to assign their interest in the option agreement. They paid $21,000 for those rights. Similarly, the Dastugues gave up their right to sell the property to any other party, even if the terms offered were more beneficial to the Dastugues than the terms under the option agreement, and they received $21,000 in compensation for relinquishing their right to sell the property to a third party for ninety days. There was no enrichment, and there was no impoverishment, because each party received something of value for the consideration the party gave. Without an enrichment and an impoverishment, there is no unjust enrichment. Id.

III.

Tortious Interference with Contract and Breach of Contract

The Labordes further claim that the execution of an agreement to purchase and sell the property by the Dastugues and the Sternbergs during the option period constituted a breach of the option agreement. A party cannot be in breach of a contract, however, if the party performs all of the obligations required of the party under the contract.

The Dastugues were obligated not to sell the property during the option period to any party other than the Labordes or their successors in interest. Further, had the Labordes tendered the purchase price specified in the option agreement to the Dastugues at any time during the option period, the Dastugues would have been required to transfer marketable title to the Labordes. The Labordes, however, chose not to exercise their option. The Dastugues did not sell the property during the option period, and the Labordes have offered no evidence that the Dastugues lnwould not have sold the property to them with marketable title had they exercised their option.

The Dastugues were also obligated not to interfere with the rights of the La-bordes under the option agreement. The Labordes argue that this obligation required them to be notified of any potential purchasers of the property who contacted Mr. Crane. The Labordes further argue that the Dastugues were obligated to take the property off the market during the option period. There was nothing, however, in the option agreement whereby the Dastugues agreed to apprise the Labordes of any potential purchasers, and there was nothing in the option agreement that required the Dastugues to remove the property from the market during the option period. Mr. Laborde is an attorney, he originally drafted the option agreement, and he could have chosen to restrict the marketing of the property during the option period and to require the Dastugues to notify him of potential purchasers, but he did not do so.

We find that the Dastugues did not breach any of their obligations under the option agreement, and they did not interfere with the Labordes’ ability to exercise their option. We also find that the agreement to purchase and sell the property that the Dastugues and the Sternbergs executed during the option period did not interfere with the Labordes’ right to exercise their option, because there was a provision in the agreement that specifically made it subject to the Labordes’ rights under the option agreement.

The Labordes further complain that the Dastugues, acting through Mr. Crane, promised that if the Sternbergs did not purchase the option from the La-bordes, the Dastugues would immediately evict the Sternbergs. The Labordes had the right at any time during the option period to transfer their rights under the |1goption agreement to a third party. They did not do this. Instead, they attempted to sell their option only to the Sternbergs, but the parties could not reach an agreement on the terms of the transfer, so no contract for the purchase and sale of the option was ever confected.

Under the terms of the option agreement, the Dastugues were in no way obligated to locate an assignee or purchaser of the Labordes’ option in the event that the Labordes chose not to exercise the option themselves or were unable to do so. There is also no evidence that the Da-stugues received any consideration for their promise to evict the Sternbergs if they did not purchase the Labordes’ option. In fact, the Dastug-ues had executed an agreement with the Sternbergs to sell them the property if the option expired and the Labordes had not purchased the property. The Labordes did not exercise their option, and they did not purchase the property. Therefore, if the Dastugues refused to sell their property to the Stern-bergs, the Dastugues would have been in breach of the agreement to sell between them and the Sternbergs.

Based on the foregoing, we do not find that the Dastugues breached the option agreement. In fact, they fulfilled all of their obligations under the agreement.

IV.

Duties of a Listing Agent

The Labordes claim that Mr. Crane is liable to them for damages, because he breached the obligations imposed upon him by statute. Specifically, they claim that Mr. Crane violated his obligation to reveal “the terms of your negotiations with the tenant, including, but not limited to, any and all offers, counter-offers or agreed-upon purchase price(s).” The La-bordes claim damages, because the terms and | ^conditions of the agreement to purchase and sell between the Dastugues and the Sternbergs were not disclosed to them. The Labordes cite paragraphs 11-16, 18, 21, 22, and 27 of La. R.S. 37:1455(A) as authority for their claims.

La. R.S. 9:3891(10) defines a “dual agency” in a real estate transaction to mean “an agency relationship in which a licensee is working with both buyer and seller or both landlord and tenant in the same transaction.” The dual agency about which the Labordes complain was the dual agency between the Dastugues and the Sternbergs. Mr. Crane was clearly not required by statute to disclose to the La-bordes “the terms of your negotiations with the tenant, including, but not limited to, any and all offers, counter-offers or agreed-upon purchase price(s),” because La. R.S. 9:3897(B)(3) specifically prohibits a licensed real estate agent from disclosing to clients when the agent is acting as a dual agent, “[t]he price the buyer or tenant is willing to pay without the permission of the buyer or tenant.” Because the statute prohibits disclosure of the price to a party to a dual agency, we think it is clear that Mr. Crane was under no obligation to make a disclosure to the Labordes, who were not parties to the contract between the Dastugues and the Sternbergs.

Conspiracy Theory

Although the brief is somewhat unclear regarding the basis for the conspiracy allegations, it appears that the allegations are based on the failed negotiations with the Sternbergs regarding their purchase of the option from the Labordes. As discussed above, the Labordes have presented no evidence of a binding contract between the Labordes and the Sternbergs for the purchase of the l14option. Additionally, no evidence was presented to show that the Labordes were damaged by the fact that Mr. Crane may not have disclosed to the Labordes that he was a dual agent for the Dastugues and the Sternbergs.

It appears that the Labordes have misconstrued the obligations of the Dastugues under the option agreement. The right of the Labordes to assign the option to a third party in no way obligated the Da-stugues, Mr. Crane, or anyone else to locate a buyer for the option if the Labordes could not or did not want to exercise it. The Labordes seem to believe that the Dastugues were in some way obligated not to sell the property to the Sternbergs after the option period expired, because they did not purchase the option. We find no basis for this belief.

CONCLUSION

We find that the judgments of the trial court were correct. They are hereby affirmed.

AFFIRMED.

      . The Sternbergs were not parties to the motions for summary judgment that were- filed, and the Labordes’ claims against them have not been dismissed.

      . La. R.S. 37:1455 describes the situations in which a licensed real estate agent can be disciplined by the Louisiana Real Estate Commission.


author: | t GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Robert Lee WILLIS, Appellant.
    No. 38,002-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Robert Lee Willis, Pro Se, Appellant.
    G. Paul Marx, Louisiana Appellate Project, Eric Johnson, Barksdale Afb, LA, Counsel for Appellant.
    J. Schuyler Marvin, District Attorney, L. Charles Minifield, Sherb Sentell, III, John M. Lawrence, Assistant District Attorneys, Counsel for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   | t GASKINS, J.

The defendant, Robert Lee Willis, was charged with attempted second degree murder. He pled guilty pursuant to a plea bargain in which the parties and the court agreed the sentence to be imposed would be no less than 15 years and no more than 25 years without benefits. The court imposed a sentence of 20 years at hard labor without benefits and denied a motion for reconsideration of sentence. We affirm.

The defendant’s court-appointed appellate attorney filed a brief and motion in this court stating that he had conscientiously and thoroughly reviewed the trial court record and found no nonfrivolous issues to raise on appeal, nor any trial court ruling which arguably would support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed attorney’s brief provided a detailed, reviewable assessment of whether the appeal was worth pursuing. State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

In accordance with Anders, Mouton and Benjamin, supra, appellate defense counsel also notified the defendant of his right to file a pro se brief and sought to withdraw from the case. We held the motion to withdraw in abeyance and advised the defendant of his right to file an appellate brief within 30 days of our September 29, 2003 order deferring a ruling on counsel’s motion to withdraw. The defendant did not respond to this notice.

12ffe have examined all the pleadings filed in the district court, the court proceedings, the bill of indictment, and all transcripts contained in the record. The defendant was properly charged by bill of indictment which was signed by the grand jury foreperson and an assistant district attorney. The defendant was present in court and represented by counsel at all important stages of the proceedings. A review of the trial court transcripts reveals there was a factual basis for the guilty plea, that the defendant was properly advised of his rights and that he agreed to a sentence range of 15 to 25 years at hard labor without benefits. Since the sentence imposed is within that range, it cannot be appealed as excessive. La. C. Cr. P. art. 881.2(A)(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Rice, 26,478 (La.App.2d Cir.12/7/94), 648 So.2d 426, writ denied, 95-0431 (La.6/16/95), 655 So.2d 340. The sentence imposed is lawful.

Even if we were to review the constitutionality of the defendant’s sentence, we find it is commensurate with this crime of violence. The sentence neither shocks the sense of justice nor does it constitute a purposeless and needless infliction of pain and suffering. The statutory range for the offense of conviction is not less than 10 years nor more than 50 years at hard labor without benefits. La. R.S. 14:30.1 and 14:27. The defendant received great benefit from his plea bargain. The trial court noted in its reasons for sentence that the defendant had actually used violence and a dangerous weapon in the commission of the instant offense in which the defendant had attempted to murder his paramour’s husband by slitting his throat and inflicting numerous stab wounds.

| oOur review disclosed no nonfrivolous issues and no rulings which arguably support an appeal. We also examined the record for errors patent. Finding none, we affirm the defendant’s conviction and sentence. Appellate counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED; MOTION TO WITHDRAW GRANTED.


author: It CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Jeffery Michael MILLER, Appellant.
    No. 37,472-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.
    Rehearing Denied April 1, 2004.

      Hersy Jones, Jr., Shreveport, for Appellant.
    Jeffery Michael Miller, Pro Se.
    Paul J. Carmouche, Edward M. Bros-sette, Laura Wingate, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   It CARAWAY, J.

Following a shooting that occurred in his apartment, the defendant was charged with second degree murder of an acquaintance. He was tried and convicted by a jury and sentenced to the mandatory punishment of life in prison without benefits. The defendant now appeals challenging the sufficiency of the evidence. The defendant’s conviction and sentence are affirmed.

Facts

In the evening hours of December 23, 2000, the defendant, Jeffery Michael Miller (“Miller”), was in his apartment “hanging out” with Quin Moody, “Little James” and “Dray.” The men were watching a movie when the victim, Warren “Hank” Hewitt (“Hewitt”) arrived and joined them. Miller and Hewitt went to high school together. Carrying a wine bottle, Hewitt sat down on the couch next to Miller and was noticeably intoxicated. He was loud and obnoxious during the movie. Later, Dray and Little James left the apartment and did not return.

Moody was the only eyewitness who testified at trial about the confrontation that led to Hewitt’s death. Hewitt and Miller began a friendly session of “trash talking,” boasting about who was better than the other. During that time, Miller’s next door neighbor, Kendra Dickson, called. Miller told her that he would be over later because he was getting ready to “slap box this dude” and started laughing.

| gHewitt and Miller were large men, both approximately 250 pounds. While slap boxing, the victim swung and fell. He got back up and became a little more aggressive. Hewitt then hit Miller with a closed fist in Miller’s face. Miller told the victim to stop and at that point he pinned Hewitt down and asked him if he meant to fight for real. Heudtt told the defendant to get up off him, and Moody also told both men to “cut it out.”

Miller then got up off the victim and went to the kitchen to retrieve his gun. He emerged from the kitchen pointing the gun but the victim was steadily coming towards him. Hewitt was unarmed. The two exchanged words. Wh'en they were approximately eight feet apart, Miller shot the victim and he fell to the floor.

Miller then went to his next-door neighbor’s apartment and told her to call 911 because he had just shot and killed “this guy.” While Dickson was on the phone with police, Miller went back to his apartment. Dickson and Moody, who had left Miller’s apartment and returned to his own apartment next door, then heard several gunshots. Miller returned a second time to Dickson’s apartment with his arms extended and told her to take the gun from him. Dickson took the gun from Miller. She and Miller went back over to his apartment where Dickson observed the dead body of Hewitt. Miller then walked over to the body and began beating the body in the face with his fists and shouting at Hewitt. Dickson calmed Miller down and when law enforcement arrived Miller told them that he and Hewitt were slap boxing and Hewitt gave him a closed fist lick in his face. He admitted retrieving his gun out of the kitchen and, shortly thereafter, shooting the victim.

|sThe coroner testified that the toxicology screen revealed a “very large amount” of alcohol in the victim’s body, “even a fatal amount.” However, this did not cause the victim’s death, since some persons can tolerate much higher levels of alcohol than others. Nevertheless, its effect on the victim would have impaired his ability to act. Moody confirmed that Hewitt’s speech was slurred throughout his visit in the apartment. The coroner testified that the first gunshot wound entered the victim’s jaw and passed downward through his neck into his left lung. That wound alone would have resulted in death but would not have caused immediate death. On the other hand, eight other wounds resulted from bullets traveling upward through the victim’s body. Apparently, these bullets were fired during the second shooting incident, as the body lay on the floor.

After trial, the jury found Miller guilty of second degree murder. He was sentenced to the mandatory punishment of life in prison without the benefit of probation, parole, or suspension of sentence. Miller now appeals his conviction and sentence.

Discussion

Miller raises three assignments of error that all relate to the sufficiency of the evidence. He argues that the trial court erred in including the aggressor doctrine, La. R.S. 14:21, in the jury charge and in denying his motions for post-judgment verdict of acquittal and new trial. Miller further asserts that the evidence shows that Hewitt was the aggressor so that the state did not prove that the homicide was not perpetrated in self-defense. Alternatively, he | ¿argues that the killing occurred in the heat of passion and the conviction should be reduced to manslaughter.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. Specific intent is a fact issue to be determined by the trier of fact. State v. Jasper, 28,187 (La.App.2d Cir.6/26/96), 677 So.2d 553, 559, unit denied, 96-1897 (La.2/21/97), 688 So.2d 521 (internal citations omitted).

A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing, is necessary to save himself from that danger. La. R.S. 14:20(1). A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he ^withdraws from the conflict in good faith and in such .a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.. La. R.S. 14:21.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State in re D.P.B., 2002-1742 (La.5/20/03), 846 So.2d 753; State v. Gaddis, 36,661 (La.App.2d Cir.3/14/03), 839 So.2d 1258.

La.C.Cr.P. art. 821 provides that a motion for post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

La.C.Cr.P. art. 851(1) provides that the court shall grant a motion for new trial whenever the verdict is contrary to the law and the evidence, i.e. that the evidence was insufficient to sustain the conviction. A motion for new trial presents only the issue of the weight of the evidence. Under this article the trial judge has wide discretion to determine the weight of the evidence. The refusal to grant such a motion is not subject to appellate review, except for error of law. State v. Mitchell, 26,070 (La.App.2d Cir.6/22/94), 639 So.2d 391, writ denied, 94-1981 (La.12/16/94), 648 So.2d 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Robinson, 624 So.2d 1260 (La.App. 2d Cir.1993), writ denied, 93-2899 (La.2/11/94), 634 So.2d 372; State v. Thom as, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficieney-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App.7 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Momentarily leaving aside the second shooting incident, the evidence showed beyond a reasonable doubt that Miller’s fúst fatal shot was not in self-defense. Miller was as large a man as the victim and had been employed as a bouncer at a night club. Miller was sober and the victim was not. Although Hewitt had been loud and boisterous at the apartment throughout the evening, he was not threatening to Miller or the others. Moody testified that the two friends’ confrontation “started off as a little friendly slap box.” After Hewitt fell down during the boxing match, he may have deliberately hit Miller with his fist. Yet, Miller was able to take the fight to Hewitt, pin him down and warn him that the blow with his fist had gone too far. Regardless of the nature of the men’s confrontation at that point, Miller could not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm. Miller’s friend Moody was present to discourage the fight and help control the drunken Hewitt. Miller was able to withdraw from the fight and exit the room without Hewitt stopping or further hitting him. This is compelling evidence that self-defensive action was not required. Nevertheless, Miller then injected a deadly weapon into the fray, and from that act, the jury could reasonably conclude that Miller had assumed the role of aggressor. The ruling of the trial court charging the jury with the ^aggressor doctrine provision was therefore correct, and Miller, as the aggressor, could not claim self-defense.

Neither did the evidence show that Miller’s demeanor at the time of the first shot was one of a frantic person or a person who acted in the heat of passion. The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. The existence of “sudden passion” and “heat of blood” are not elements of the crime of manslaughter, but rather are factors in the nature of a defense which may reduce the grade of homicide. Provocation is a question of fact to be determined by the trier of fact. Thus, the issue presented by this argument is whether or not a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by the defendant by a preponderance of the evidence. State v. Lombard, 486 So.2d 106 (La.1986); State v. Miller, 36,003 (La.App.2d Cir.7/25/02), 824 So.2d 1208, 1215, writ denied, 02-2480 (La.6/27/03), 847 So.2d 1253.

Well before the shooting, the initial pain of the victim’s punch to Miller’s face was passed. Miller had pinned the victim, stopping his outburst and demonstrating control. Any heat of passion caused by the punch to the face clearly ended and was always insufficient to deprive Miller of self-control and cool reflection. Nevertheless, in a non-frantic action, Miller went to the kitchen and returned with the gun that led to the killing. From this 13view of the evidence the jury could have found that the mitigating factors for manslaughter were not established by the defendant.

Next, Miller argues that the trial court erred in denying his pretrial motion in limine. In the motion, Miller asserted that the evidence of the second set of shots was irrelevant given the fatal nature of the first shot.- He further argues that the evidence should be excluded because the state failed to present evidence at the hearing that the second set of shots were a substantial factor in the death of the victim.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. La. C.E. art. 403. The trial court has been given great discretion in determining whether evidence is relevant, and absent a clear abuse of discretion, rulings on relevancy of evidence should not be disturbed on appeal. State v. Legrand, 02-1462 (La.12/3/03), 864 So.2d 89.

Evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404 B(l). Res gestae events constituting other crimes evidence are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required |10between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729, cert denied, — U.S. --, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). Res gestae evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its momentum and cohesiveness, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. Id.

In this case, the second set of shots formed an integral part of the act that is the subject of the present charge. Without it, the state would not be able to present a cohesive and complete picture of what happened. The proof of the lolling of the victim required an explanation of the multiple gunshot wounds. To discuss the cause of death without explaining the source of the other wounds might raise the specter that a second assailant was involved. The presentation of the evidence of the second shooting, therefore, was clearly relevant for the presentation of the state’s case. This assignment is therefore without merit.

Decree

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Slap boxing consists of testing one’s reflexes to see if you can slap the other opponent before he blocks the slap.

      . The coroner's report shows that the victim’s blood alcohol level was 0.452%.


author: I,BROWN, C.J.

text:
    Charles BLUE, Cory Brown and Bryce Thompson, Plaintiffs-Appellees v. DONNIE BAINES CARTEMPS USA, State Farm Insurance Company and National Union, Defendants-Appellants.
    No. 38,279-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Hubley, Marcotte & Rhodes by Lydia M. Rhodes, Shreveport, for Appellants.
    Joel L. Pearce, Shreveport, for Appel-lees.
    Before BROWN, STEWART, and LOLLEY, JJ.
   I,BROWN, C.J.

This case arises out of a two car accident that occurred in Shreveport, Louisiana, on April 28, 1999. One vehicle was being driven by plaintiff, Charles Blue, the other by defendant, Donnie Baines. The Baines vehicle was a rental car. Blue and his passengers, Cory Brown and Bryce Thompson, filed this action in city court against Baines and his insurer, State Farm Mutual Automobile Insurance Company, seeking personal injury damages. Finding Baines solely at fault, the trial court awarded Blue general damages in the amount of $5,775 and special damages in the amount of $1,770. Thompson was awarded general damages of $5,775 and special damages of $1,330. Cory Brown was a “no show” and was dismissed from the suit prior to trial. Defendants have appealed. We reverse in part and affirm in part.

Discussion

Fault

Allocation of fault is a factual finding which an appellate court does not disturb unless, upon articulated analysis, that finding is demonstrated to be clearly wrong. The reviewing court must assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Slagel v. Roberson, 37,791 (La.App.2d Cir.11/18/03), 858 So.2d 1288; Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.08/19/98), 716 So.2d 511.

The accident occurred in the southbound lanes of North Market Street just past the point where Martin Luther King Drive intersects with North Market. North Market Street is a divided, four-lane highway. The ^testimony in this case involves conflicting versions of which vehicle crossed over into the other lane.

Charles Blue testified that the accident occurred after he had pulled out of the Brookshires’ parking lot onto North Market Street. As Blue turned left onto North Market in the inside lane, he was behind Baines, who was in the outside lane. Blue claims that Baines moved over into Blue’s lane, and the cars collided.

Blue testified that following the collision, both vehicles pulled over and Baines jumped out of his car with a 24 oz. beer can in his hand. After tossing the beer can, Baines ran to the Fina Station. Baines was in the gas station for 20-30 minutes; that’s where he was when the police officers arrived at the scene. Because Baines and his car smelled of alcohol, the police arrested him for D.W.I. There is no evidence in the record, however, that Baines was charged with or convicted of D.W.I.

On the other side, Donnie Baines testified that the accident occurred after he made a right turn at the light at the intersection of Martin Luther King Drive and North Market Street. As he was driving in the outside southbound lane on North Market, he was hit by the Blue vehicle. Baines explained the odor of alcohol by stating that a passenger had spilled beer on the floorboard of his car. After stating several times that he had not been drinking the night of the accident, he then testified that his blood alcohol content was “one point something.” When this discrepancy was pointed out to him, Baines again denied alcohol consumption, stating simply that he |3can’t explain the breathalyzer results, he just knows he had not been drinking.

Based upon the obvious contradictions in Baines’ testimony, the trial court chose to credit the testimony of Blue as to how the accident occurred. In light of the above conflicting testimony, we cannot say that the trial court committed manifest error in doing so.

Applicability of No Pay/No Play Provision

La. R.S. 32:866(A)(1) limits the recovery of the owner or operator of a motor vehicle involved in an accident as follows:

There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

La. R.S. 32:1(44) defines an “operator” as “every person other than a chauffeur, who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle.”

The following facts are uncontra-dicted. Charles Blue did not have a valid driver’s license at the time of the accident. In fact, the record shows that Blue has never had a driver’s license, but has been issued numerous traffic citations. The registered owner of the vehicle he was driving was his grandmother, who had liability coverage on her automobile; however, Blue was specifically excluded from coverage. Blue has no vehicle of his own and no insurance coverage. Applying these facts to the above statute, we find that at the time of the accident, Blue was an operator of a motor vehicle | involved in an accident who failed to own or maintain compulsory motor vehicle liability security. He also knew that he was excluded from coverage purchased by his grandmother.

Under the clear terms of La. R.S. 32:866, Blue is precluded from recovery of personal injury damages in this case. For this court to conclude otherwise would allow someone like Blue to put ownership in another person’s name and obtain less expensive insurance. This would run counter to the legislative purpose embodied in the no pay/no play provision, which is to discourage the operation of uninsured vehicles. As noted by the court in Progressive Security Insurance Co. v. Foster, 97-2985 (La.04/23/98), 711 So.2d 675, 679, “if a motorist fails to pay for liability coverage to protect others, he cannot ‘pla/ in the legal system, at least to the collection of his first $10,000 [in] damages.” For this reason, Blue’s damage award will be reversed and set aside.

Damages — Bryce Thompson

Finally, defendants urge that the trial court’s award of general damages of $5,575 and medical expenses of $1,330 to Bryce Thompson, a passenger in Blue’s vehicle, is excessive.

General damages cannot be fixed with pecuniary exactitude. Severity and duration of the injury are factors to be considered in assessing quantum for pain and suffering. Stegall v. State Farm Mutual Automobile Insurance Co., 29,986 (La.App.2d Cir.10/29/97), 702 So.2d 66. There is no mechanical rule for determining general damages; the facts and circumstances of each case control. Simmons v. King, 36,537 (La.App.2d Cir.12/11/02), 833 So.2d 1148.

A plaintiff may recover past medical expenses that he incurs as a result of an injury due to the fault of another. To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Bruce v. State Farm Insurance Co., 37,704 (La.App.2d Cir.10/29/03), 859 So.2d 296; Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.04/26/02), 814 So.2d 558.

Bryce Thompson testified that before the accident, he had no medical conditions or problems. After the accident, he had pain in his neck and lower back. He sought treatment from a chiropractor, Dr. John Thompson. Dr. Thompson testified that Bryce came to his office on April 30, 1999, two days post-accident. His complaints were neck pain and stiffness, mid and low back pain and muscle spasms. Bryce also noted right shoulder, upper arm and elbow pain, as well as headaches, blurred vision, ringing in his ears and lightheadedness.

Based upon Bryce’s subjective complaints and Dr. Thompson’s objective findings, the diagnosis was cervical strain/ sprain, thoracic strain/sprain, lumbar strain/sprain, migraine headaches, shoulder arthraligia, and malaise/fatigue related to the accident. Bryce was treated by Dr. Thompson for approximately two and a half months, from April 30 to July 21, 1999.

| fiUnder the facts and circumstances of this case, we cannot say that the trial court’s general damage award in the amount of $5,575 is excessive. We likewise find that Bryce Thompson demonstrated, through the testimony of Dr. John Thompson, that more probably than not, the medical treatment was necessitated by the accident.

Conclusion

For the reasons set forth above, the trial court’s award of general and special damages to plaintiff, Charles Blue, is reversed and set aside. In all other respects, the judgment of the trial court is affirmed.

REVERSED IN PART and AFFIRMED IN PART.


author: hAMY, Judge.

text:
    Johnny JENKINS v. ROY O. MARTIN LUMBER, INC.
    No. 03-1435.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Rehearing Denied April 7, 2004.

      John F. Wilkes, III, Borne & Wilkes, L.L.P., Lafayette,-LA, for Defendant/Appellant, Roy O. Martin Lumber, Inc.
    Russell L. Sylvester, Brittain & Sylvester, LLP, Natchitoches, LA, for Plaintiff/Appellee, Johnny Jenkins.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   hAMY, Judge.

The claimant seeks workers’ compensation benefits associated with what he contends is a progression of a previous work-related injury. The workers’ compensation judge found in favor of the employee, awarding benefits, penalties,- and attorney’s fees. The defendant’s affirmative defense under La.R.S. 23:1208 was denied. The employer appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to stipulations entered into between the parties, the claimant, Johnny Jenkins, originally sustained a compensa-ble work-related injury while in the course and scope of his employment with the employer, Martco. Due to this injury, which occurred in July 1996, the claimant underwent two procedures, a lumbar fusion at the L5-S1 level in July 1997, and a micro-diskectomy at the L3-4 level in September 2000. According to the claimant’s testimony, he returned to work at Martco in December 2001, assigned to a light-duty position in the employer’s guard and scale houses. He asserted that, during this time, he continued to have back pain, but was able to perform his job duties.

The instant matter arose when, according to the claimant, he awoke on Saturday, June 15, 2002, with severe back pain. He testified that, earlier, he had stopped wearing a prescribed brace due to increasing back pain, that the back pain had lessened for a while, and that the pain suddenly accelerated when he awoke on June 15th. At trial, he denied any physical activities prior to the onset of pain, other than his work at Martco.

The claimant was scheduled to return to work on Monday, June 17th. However, he telephoned Martco’s occupational nurse, Colleen VanMol, and informed her that |2he would be unable to report to work on that date due to the pain. Ms. VanMol testified that the claimant related the onset of pain to having mowed his lawn. The claimant denies having made this statement or having mowed his lawn since the initial discovery of the original herniation. This difference in the version of events is at issue.

On June 18th, the claimant reported to Dr. Lawrence Drerup, who noted claimant “developed sudden onset of severe mechanical low back pain approximately one month ago.” The notation further indicates “[the claimant] is unaware of any traumatic event, physical exertion or postural change that resulted in onset of symptoms.” Dr. Drerup recommended that the claimant “undergo diagnostic and therapeutic facet block at L4-5 left.” According to the claimant, when he inquired of the employer as to whether the injection would be provided, he was informed that it would not be provided.

Terry Garrett, assigned to insurance matters at Martco, confirmed at trial that he denied the medical treatment. Mr. Garrett referenced the alleged inconsistencies between the nurse’s indication that the pain was caused by a lawn mowing incident and the physician’s note, which did not contain any information regarding lawn mowing. He also pointed to a notation on the report regarding the onset of pain one month earlier.

Neither was the procedure approved when the claimant reported again to Dr. Drerup in August 2002. The physician noted the insurance dispute and stated: “I have again suggested Mr. Jenkins undergo diagnostic and therapeutic facet L4-5, left. Mr. Jenkins’ present symptoms are a direct progression of his previous lumbar fusion |oL5-Sl. Mr. Jenkins is not capable of returning to gainful employment until completion of the above diagnostic and therapeutic intervention.”

The claimant filed the disputed claim for compensation in September 2002, noting that in addition to his claim for compensation benefits, he would be seeking penalties and attorney’s fees. The employer filed an answer, asserting a defense under La.R.S. 23:1208. Following a hearing, the workers’ compensation judge found in favor of the claimant, awarding temporary total disability benefits from June 18, 2002, medical expenses related to the compensi-ble condition, $2,000 in penalties for the failure to pay indemnity benefits, $2,000 in penalties for failure to provide medical expenses, and $7,000 in attorney’s fees. The workers’ compensation judge denied the employer’s La.R.S. 23:1208 claim.

The employer assigns the following as error:

I. The trial court erred in granting claimant’s motion to compel and ordering employer to produce materials before the claimant’s deposition had been taken.
II. The trial court erred in failing to find that the claimant violated La.R.S. 23:1208, by his inconsistent statements to the employer and to his doctor prior to his 1008 disputed claim and thereafter in his 1008 disputed claim and under oath at trial.
III. The trial court erred in finding that the claimant had a work related accident within the course and scope of his employment, and that employer was liable for all reasonable and necessary expenses.
IV. The trial court erred in finding that claimant is entitled to TTD benefits, as opposed to SEB benefits.
V. The trial court erred in failing to find that the claim was reasonably controverted and assessed employer with penalties and attorney’s fees.
VI. The trial court erred in assessing all costs of court to employer.

14Discussion

Motion to Compel

In its first assignment of error, Martco explains that it attempted to take the claimant’s deposition prior to its disclosure of whether it had possession of any recording of conversations between the claimant and Martco employees. It contends that the trial court erred in granting a motion to compel filed by the plaintiff, seeking access to any such records prior to the taking of the deposition.

The employer contends that the trial court’s ruling was contrary to the Louisiana Supreme Court’s decision in Wolford v. JoEllen Smith Psych. Hosp., 96-2460 (La.5/20/97), 693 So.2d 1164. In Wolford, the Louisiana Supreme Court concluded that, absent special circumstances, an employer was entitled to depose a plaintiff prior to disclosure of surveillance videotape. However, in Wolford, the fact of the videotape’s existence had been disclosed to the plaintiff, it was the actual release of the videotape which was at issue. The supreme court observed that its ruling was a “narrow one addressing the timing of the production of surveillance videotape during the course of pretrial discovery.” Id. at 1166.

Our review of the employer’s argument indicates that it was contesting the production of information as to whether any recording existed. In light of Wolford’s narrow focus, we find no merit in the employer’s assertion that the case required the exchange of information regarding the presence of any recordings prior to the claimant’s deposition.

| ¡yForfeiture of Benefits under La.R.S. 2S:1208

The employer next argues that the trial court erred in denying its claim of forfeiture under La.R.S. 23:1208. The employer contends that the claimant made false statements in the reporting of his accident. It notes that its occupational nurse testified that the claimant first related the condition to having mowed his lawn. It further points out that the claimant denies having made this statement and also did not report as such to the doctor. Furthermore, it notes that Dr. Drerup’s report from June 18th, indicates that the onset of pain was one month earlier. These inconsistencies, the employer contends, warrant imposition of the La.R.S. 23:1208 forfeiture.

La.R.S. 23:1208 provides, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

A trial court’s determination as to the existence of false statements made for the purpose of obtaining benefits is not to be reversed on appeal absent manifest error. Murphy v. Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157.

| Jn ruling on the issue, the workers’ compensation judge acknowledged the lawn mowing statement allegedly made to Ms. VanMol, but discredited that statement, explaining:

It’s this Court’s conclusion that Ms. VanMol’s documentation of mowing the lawn was a false remembrance on her part as to the conversation she had with Mr. Jenkins. Mr. Jenkins has corroborated in the testimony of that of his brother and the stipulated testimony of his father that he didn’t mow the lawn.

This statement indicates a clear credibility determination made by the workers’ compensation judge, one that is supported by the record. As noted by the trial court, the claimant’s denial that he initially related the testimony to having mowed the lawn was corroborated by statements from the claimant’s brother, who testified that the claimant was unable to do so. Both testified that the claimant did not, in fact, even own a working lawn mower. Finally, it was stipulated to that, if called to testify, the claimant’s father’s testimony would be in conformity with that of the claimant’s brother.

Furthermore, the employer questions Dr. Drerup’s June 18th notation that the claimant described the onset of pain as having occurred “approximately one month ago.” The employer contends that the claimant’s other reports of the pain having increased only a few days before the appointment are statements requiring forfeiture under La.R.S. 23:1208. When questioned as to the physician’s notation, the claimant related it to a prior visit to Dr. Drerup, in April 2002, after he began to suffer pain as the result of a brace he was required to wear after his initial injury and surgeries. He explained that after he stopped wearing the brace he began feeling better and that the pain suddenly accelerated on the Saturday before he was to return to work.

|7We note that the employer has cited in its brief a number of what it contends to be inconsistencies in the claimant’s reporting of the accident in general, including those discussed above. We have reviewed the entirety of the record and the exhibits included and find that, as a whole, the workers’ compensation judge’s findings that any misstatements are insufficient to qualify as those requiring forfeiture under La.R.S. 23:1208 is supported. This assignment lacks merit.

Existence of Work-Related Accident

In its next assignment of error, the employer contends that the record does not support a finding that the injury complained of stemmed from a work-related accident. The requirement that an injury arise from a work-related accident is, of course, a requirement under La.R.S. 23:1031. While framed as a question as to the occurrence of a work-related accident, much of the employer’s argument in brief returns, again, to its concern over credibility issues. These have been discussed above. With regard to the question of whether the injury complained of is related to a work-related injury, Dr. Drerup’s report from the claimant’s August 21, 2002 report provides, in part:

I have again suggested Mr. Jenkins undergo diagnostic and therapeutic facet L4-5, left. Mr. Jenkins’ present symptoms are a direct progression of his previous lumbar fusion L5-S1.

(Emphasis added.)

As stated above, the parties stipulated that the L5-S1 lumbar fusion was work-related. Dr. Drerup’s note fully supports the determination that the claimant’s injuries were work-related. This assignment lacks merit.

| s Classification of Benefits

In its next assignment of error, the employer contests the determination that the claimant is entitled to TTD benefits. In its brief to this court, the employer asserts that:

There is no testimony from any doctor that Johnny Jenkins is incapable of working. Mr. Jenkins worked at the scale house and gave his job description at Tr. pages 173, 174. Claimant’s subjective belief alone is not enough to establish his inability to work. He earned more than his pre-injury wage at the scale house job.

(Emphasis omitted).

A June 18, 2002 “Work Status/ Release Form” from Dr. Drerup’s office indicates that the claimant was temporarily unable to return to work. Furthermore, Dr. Drerup’s August 21, 2002 report indicates that: “Mr. Jenkins is not capable of returning to gainful employment until completion of the above diagnostic and therapeutic intervention.” The claimant also testified that he felt that he was unable to return to work. The presence of this evidence supports the workers’ compensation judge’s determination that the claimant is entitled to TTD benefits.

Penalties and Attorney’s Fees

The employer also asserts that the award of penalties and attorney’s fees was in error. It contends that the matter was reasonably controverted given what it contends were inconsistent statements from the claimant.

La.R.S. 23:1201 provides for the imposition of penalties and attorney’s fees in the event workers’ compensation benefits are not provided. La.R.S. 23:1201(F)(2) indicates, however, that the penalties and attorney’s fees “shall not apply if the claim is reasonably controverted.” On review, a workers’ compensation judge’s 19determination as to whether penalties and attorney’s fees are appropriate is subject to the manifest error standard of review. See Brady v. Northland Frozen Food, 96-442 (La.App. 3 Cir. 10/9/96), 688 So.2d 1139.

In awarding penalties and attorney’s fees, the workers’ compensation judge observed that, according to the testimony of Mr. Garrett, benefits were denied, in part, because there was no indication that the injury was work related. The workers’ compensation judge continued, however, noting that an aggravation of a pre-exist-ing work-related injury is compensable, and that:

Mr. Garrett never contacted Dr. Drer-up to ascertain from Dr. Drerup whether or not there was any aggravation to the previous work injury. In fact, Mr. Garrett had in his possession a report from Dr. Drerup dated August 21st of 2002 that indicated that Mr. Jenkins’ current condition was a direct progression of his work-related injury from 1996. Mr. Garrett testified he simply didn’t believe Dr. Drerup’s opinion. The employer obtained no other contrary medical opinion.

Our review of the record confirms this absolute failure to investigate, even after information indicating that the injury was an aggravation of the previous work-related injury. Therefore, we find this assignment to be without merit.

Assignment of Costs

As we have left the workers’ compensation judge’s ruling undisturbed, we do not address the employer’s contention that the assignment of costs should be reversed.

ImDECREE

For the foregoing reasons, the ruling of the Office of Workers’ Compensation is affirmed. All costs of this proceeding are assessed against the employer, Martco Limited Partnership.

AFFIRMED.

      . There is no indication that the employer sought review of the interlocutory ruling through a writ application as would be appropriate. As other appealable issues are raised, however, we review the matter. See Succession of Holliday, 576 So.2d 1155 (La.App. 3 Cir.), writ denied, 581 So.2d 708 (La.1991).

      . We note that the claimant has not filed an appeal or answer seeking additional attorney’s fees for work performed on appeal.