author: LOLLEY, J.

text:
    Thomas “Jackie” FREEMAN, Plaintiff-Appellant, v. Douglas Barry TEAGUE, Defendant-Appellee.
    No. 37,932-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Rhymes & Lucas by J. Michael Rhymes, Monroe, for Appellant.

      Onebane Law Firm by Frank H. Spru-iell, Jr., Shreveport, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

Thomas “Jackie” Freeman (“Freeman”) appeals the grant of summary judgment by the 4th Judicial District Court for the Parish of Ouachita, Louisiana, in favor of Douglas Barry Teague (“Teague”). The ruling was based at least in part on the “Aggressor Doctrine.” For the following reasons, we reverse and remand.

Facts

This case involves an incident of extreme “road rage.” In January 1999, Freeman was driving his truck south of West Monroe, Louisiana, on State Highway 34. A vehicle driven by Teague passed Freeman’s vehicle in a manner that Freeman allegedly thought was dangerous. Freeman then accelerated to overtake Teague. Freeman chased Teague at speeds well in excess of the speed limit, and he continued the chase after Teague turned off of Highway 34 onto Highway 557. After catching up with Teague’s vehicle, Freeman pulled his truck into the left-hand lane of Highway 557 to a position where the front wheels of his truck were even with the rear wheels of Teague’s vehicle. Shortly thereafter, Teague, an off-duty police officer, turned on the police lights of his vehicle and stopped. Freeman then stopped his vehicle a few car lengths behind Teague who exited his car, drew his pistol, and approached Freeman’s vehicle, allegedly screaming and cursing Freeman and placing’ his pistol only a few inches from Freeman’s face during the incident. He ordered Freeman to get out of his truck and to walk to the front of Teague’s vehicle. Teague demanded Freeman’s license and used his cellular phone to request a criminal background check on Freeman to determine if there were any outstanding warrants. L Subsequently, Teague, who was outside his jurisdictional limits at all times during the incident, allowed Freeman to leave the scene.

In December 1999, Freeman filed suit against Teague seeking damages for emotional distress. Teague then filed a motion for summary judgment in February 2003, accepting for purposes of the summary judgment motion the version of events related by Freeman in Freeman’s discovery deposition. In opposition to the motion for summary judgment, Freeman not only submitted his deposition, but also the affidavit of Woody Rimes (“Rimes”) and the deposition of Det. David Harris (“Det.Har-ris”) of the Ouachita Parish Sheriffs Department.

Rimes stated in his affidavit that he had carefully read a copy of a statement he gave to Det. Harris on February 9, 1999, and that the facts contained in the statement, a copy of which was attached to Rimes’ affidavit, were true and correct. The statement indicated that on the night of the incident, Rimes observed two vehicles near his residence. A police car was parked directly in front of Rimes’ mailbox, and a Ford truck was parked a short distance behind the police ear. Rimes stated he could hear one of the two individuals screaming and using extremely vulgar language and that the individual who was screaming sounded as if he “had lost his composure or he had lost all control.” The screaming continued for a short time, and then one of the individuals proceeded toward the Ford truck while the other stood at the police car repeatedly screaming vulgarities at the other, who got into the truck and drove away.

Det. Harris’ deposition related circumstances occurring after the incident. On February 5, 1999, Det. Harris executed an affidavit in support of an arrest warrant for Teague based upon the incident. Det. Harris’ affidavit asserted that Teague committed several criminal offenses via the incident, including false imprisonment and aggravated assault. According to Teague, although criminal charges were brought against him, they were subsequently dropped.

When the motion for summary judgment came for hearing, the motion was argued and the record was held open in order to receive a deposition and an affidavit. Teague had argued in support of the motion that Freeman was the “aggressor” in the initiation of the altercation, that Freeman had ample time and opportunity to avoid or otherwise disengage his chase of Teague’s vehicle, and that under the “Aggressor Doctrine” Freeman was precluded from recovering any monetary damages from Teague. Subsequently, the trial court issued its Ruling and Judgment, finding that Freeman “was the aggressor in this cause:” The court further found that the actions taken by Teague, “when taken as a whole,” were not actionable; consequently, the court granted summary judgment in favor of Teague. This appeal by Freeman ensued.

Discussion

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 So.2d 459. Although summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor- of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. See S.G. v. City of Monroe, 37,103 (La.App.2d Cir.04/11/03), 843 So.2d 657. In. determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Hanover American Insurance Co. v. Trippe Manufacturing Co., 37,060 (La.App.2d Cir.04/09/03), 843 So.2d 571.

Ordinarily, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment. Powers v. Tony’s Auto Repair, Inc., 98-1626 (La.App. 4th Cir.04/28/99), 733 So.2d 1215, writ denied, 99-1552 (La.07/02/99), 747 So.2d 28. This principle extends to questions of comparative fault as well. However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment. See Rance v. Harrison Co., Inc., 31,503 (La.App.2d Cir.01/20/99), 737 So.2d 806, writ denied, 99-0778 (La.04/30/99), 743 So.2d 206.

In the instant case, the court appeared to rely, at least to some extent, on the “Aggressor Doctrine” in granting summary judgment. However, in Landry v. Bellanger, 2002-1443 (La.05/20/03), 851 So.2d 943, the Louisiana Supreme Court held that the “Aggressor Doctrine” no longer has a place in Louisiana tort law. Under the “Aggressor Doctrine,”, tort recovery was precluded where the plaintiff acted in such a way as to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating used excessive force to repel the aggressor. See Slayton v. McDonald, 29,257 (La.App.2d Cir.02/26/97), 690 So.2d 914. However, in Landry, supra, the court stated that applying the “Aggressor Doctrine” to bar a plaintiffs recovery would reintroduce some vestige of contributory negligence law to our tort system and would ignore the plain language of La. C.C. art. 2323(A) that directs a court to allocate a proportion of fault to every party contributing to an injury.

Nevertheless, the Landry court held that self-defense was still a full, valid defense to battery, and the court exonerated the defendant because the court found he acted in self-defense. The court stated that self-defense, unlike the “Aggressor Doctrine,” is a true defense that operates as a privilege to committing an intentional tort. However, the court noted that for the privilege to apply, the plaintiffs conduct must go beyond mere provocation. There must be an actual or reasonably apparent threat to the claimant’s safety, and the force employed cannot be excessive in degree or kind.

Teague acknowledges that under Landry, supra, the “Aggressor Doctrine” is no longer valid in Louisiana. Teague also acknowledges that the district court’s grant of summary judgment was at least partially predicated on the “Aggressor Doctrine.” However, Teague argues that under our de novo review we must determine whether his response to Freeman’s conduct constituted self-defense which would serve as a complete defense. While we agree with Teague’s analysis up to this point, we cannot agree that summary judgment was appropriate on the issue of self-defense. As with questions of comparative fault, the applicability of self-defense is a fact-intensive inquiry based on the appropriateness, vel non, of the conduct presented in light of the totality of the circumstances. To affirm the grant of summary judgment on the issue of self-defense would require us to conclude that reasonable triers of fact could not differ either with respect to the presence of an actual or reasonably apparent threat to Teague’s safety or with respect to the absence of any excessive force, in degree or kind, on Teague’s part. On the record before us, we simply cannot say that this requirement is met, especially with regard to the latter element. Accordingly, we must reverse the summary judgment.

ConClusion

For the reasons set forth above, the judgment of the trial court is hereby reversed, and the ease is remanded for further proceedings. Costs of the appeal are assessed to Douglas Barry Teague.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: I! PEATROSS, J.

license: Public Domain

text:
    John R. WALLACE, Sr., Plaintiff-Appellee, v. FIRST ASSURANCE LIFE OF AMERICA, et al., Defendant-Appellant.
    No. 37,865-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Blanchard, Walker, O’Quin & Roberts by Paul M. Adkins, Shreveport, for First Assurance Life of America and Interstate Dodge, Inc.
    Hugh Cameron Murray, Monroe, for Interstate Dodge Incorporated.
    Travis M. Holley, Bastrop, for Appellee, John R. Wallace, Sr.
    McGlinchey Stafford, PLLC, by Kayla Dye May, New Orleans, for Chase Manhattan Bank.
    Before BROWN, PEATROSS & DREW, JJ.
   I! PEATROSS, J.

Defendant, First Assurance Life of America (“First Assurance”), appeals the judgment of the trial court denying its motion for summary judgment and granting Plaintiffs, John R. Wallace, Sr., motion for summary judgment and awarding him $9,437.85 plus legal interest as the amount due under the credit disability insurance policy issued by First Assurance to Mr. Wallace. For the reasons stated herein, we affirm the judgment of the trial court.

FACTS

On June 24, 1996, Mr. Wallace purchased a new Dodge Ram pickup truck from Interstate Dodge, Inc. (“Interstate Dodge”) in Monroe, Louisiana. Mr. Wallace financed $24,803.30 at a rate of interest of 11.25 percent through a retail installment contract with Interstate Dodge. The contract was subsequently assigned to Chase Manhattan Bank, Inc. (“Chase Manhattan”). The financing agreement was for a term of 60 months obligating Mr. Wallace to make 59 monthly payments each in the amount of $429.85 starting on July 24, 1996, and a 60th “balloon payment” on June 24, 2001, in the amount of $9,437.85. The agreement called for Mr. Wallace to make payments totaling $34,799. The amount financed included premiums for life and disability credit insurance, although the amount of the premium charged in the contract is unreadable due to the poor quality of the exhibits submitted by the parties.

It is clear, however, that, in conjunction with the financing agreement, Mr. Wallace also purchased a credit life and disability insurance policy to pay the financed debt in the event of his death or disability. According to Mr. Wallace’s deposition, the applications for financing and insurance were handled by the same employee of Interstate Dodge. The policy was issued by First Assurance. The credit life portion of the policy designates the “Initial Amount of Insurance” to be $34,799, the total liability incurred by Mr. Wallace under the financing agreement. The policy further provides that the amount of insurance provided under the policy would decrease each month in an amount equal to the initial amount of the insurance ($34,-799) divided by the total number of months in the term of the policy (60).

The disability portion of the policy obligates First Assurance to pay the “Monthly Disability Benefit” reflected on the certificate of insurance, or $429.85, if and when the insured becomes totally disabled. The benefits are for the duration of the insured’s disability, but are not to exceed the aggregate amount of the “Initial Amount of Insurance” and are not to be paid beyond the term of the policy.

Approximately six months later, First Assurance issued a correction endorsement in which it purported to clarify the coverage afforded under its policy. Specifically, the endorsement amended the “initial amount of insurance” under the credit life portion of the policy to be $25,361.15 for a term of fifty-nine (59) months. This change reflects an attempt to alter the credit life portion of the coverage by reducing the debt insured from the entire amount due under the terms of the financing agreement to the amount due minus the balloon payment. The credit disability coverage under the policy is restated in the correction endorsement as providing a “monthly disability benefit” of $429.85 which is unchanged from the coverage afforded under the initial certifícate. First Assurance concedes, however, that, for the purposes of the parties’ cross motions for summary judgment and this appeal, the original certificate of insurance governs the relationship between the parties.

On or about April 27, 2000, Mr. Wallace became totally disabled. His disability from April 27, 2000, through the remainder of the.term of the disability insurance policy is not disputed. After receiving proof of the disability, First Assurance began to pay the monthly disability benefit to Chase Manhattan, Interstate Dodge’s assignee of the retail installment contract. When First Assurance did not make the final balloon payment on the note, Mr. Wallace filed the instant action seeking payment of the balloon amount under the credit disability insurance portion of the policy. Also named as defendants in the action were Interstate Dodge, as agent of First Assurance, and Chase Manhattan Bank, the irrevocable beneficiary under the policy.

On April 1, 2002, First Assurance and Interstate Dodge filed a motion seeking summary judgment alleging that the provisions of the contract of insurance are unambiguous and clearly do not provide for the payment by First Assurance of the balloon amount due by Mr. Wallace to Chase Manhattan Bank. On April 17, 2002, Mr. Wallace filed an opposition to Defendants’ motion for summary judgment and a cross motion for summary judgment. Mr. Wallace alleged that the unilateral attempt by First Assurance to modify the term of the credit life coverage to 59 months should be deemed void and, in any event, ineffective as to the term of the credit disability coverage. Mr. Wallace further argued that, because the retail installment contract provided for the 60th payment to be a balloon amount, First Assurance was obligated to make payment of the balloon amount.

The motions were argued before the trial court on April 23, 2002, after which the trial judge took the matters under advisement. On May 21, 2002, the trial judge issued oral reasons for judgment finding that the original contract of insurance was for the full term of the loan and covered the balloon payment. The trial judge further found that the subsequent attempt by the insurer to modify the term of the insurance policy was merely an attempt to avoid making payment on the balloon amount. Accordingly, the trial judge denied First Assurance’s motion for summary judgment and granted summary judgment in favor of Mr. Wallace and awarded him the sum of $9,437.85 plus legal interest from the date of judicial demand. -A judgment to this effect was signed by the trial court on July 15, 2002. An appeal was taken by First Assurance on July 24, 2002, but dismissed by this Court after the record was lodged because the judgment appealed was interlocutory and not certified as a final judgment. The parties subsequently filed a joint motion seeking certification, which was granted by the trial court in written reasons for judgment signed on April 21, 2003. A new motion for appeal was filed by First Assurance on April 29, 2003, and an order granting the appeal was signed on May 2, 2003.

\ DISCUSSION

First Assurance assigns as error the trial court’s granting of summary judgment in favor of Mr. Wallace and denying its own motion for summary judgment on the basis that the clear and unambiguous provisions in the contract of insurance do not extend coverage for payment of the balloon amount.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, 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). Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Gaylord Chemical Corporation v. ProPump, Inc., 98-2867 (La.App. 1st Cir.2/18/00), 753 So.2d 349.

An insurance policy is a contract and it constitutes the law between the parties. Carney v. American Fire & Indemnity Co., 371 So.2d 815 (La.1979). It should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377 (La.1993). If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Pareti v. Sentry Indemnity Co., 536 So.2d 417 (La.1988). The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. La. C.C. art. 2047; Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759. When the words of a contract are clear and explicit and lead to no absurd consequences, the court must enforce the contract as written and may make no further interpretation in search of the parties’ intent. La. C.C. art. 2046.

An insurance contract is to be construed as a whole, and one portion thereof should not be construed separately at the expense of disregarding another. Bossier Plaza Associates v. National Union Fire Insurance Company of Pittsburgh, 35,741 (La.App.2d Cir.4/3/02), 813 So.2d 1114; Benton Casing Service, Inc. v. Avemco Ins. Co., 379 So.2d 225 (La.1979). If there is an ambiguity in a policy, then that ambiguity should be construed in favor of the insured and against the insurer. Bossier Plaza Associates v. National Union Fire Insurance Company of Pittsburgh, supra; Yagel v. Sanders, 36,101 (La.App.2d Cir.7/17/02), 823 So.2d 448, writ denied, 02-2211 (La.11/8/02), 828 So.2d 1121; Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953). Courts have no authority, however, to alter the terms of policies under the guise of contractual interpretation when the policy provisions are couched in unambiguous language. Bossier Plaza Associates v. National Union Fire Insurance Company of Pittsburgh, supra; Pareti v. Sentry Indem. Co., supra; Monteleone v. American Emp. Ins. Co., 239 La. 773, 120 So.2d 70 (1960); Edwards v. Life & Cas. Ins. Co. of Tenn., 210 La. 1024, 29 So.2d 50 (1946). Whether a contract is clear or ambiguous is a question of law. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., supra.

In making our de novo review, we must first look to the intent of the parties as reflected in the wording of the policy to determine the extent of the coverage afforded. As a credit insurance policy, the contract is intended to insure the satisfaction of a debt, in whole or in part, in the event the debtor becomes unable to satisfy same. In the case sub judice, Mr. Wallace purchased credit insurance to satisfy the debt in the event of his death or disability with the policy to be 'in effect for a term of 60 months, the same term applicable to repayment of the debt under the retail installment agreement. In purchasing the credit life insurance, the policy provides that Mr. Wallace was insured for the “Initial Amount of Insurance” of $34,799, the total amount due under the financing agreement.

The disability provisions of the insurance policy are located in the section entitled “Monthly Disability Benefits,” which set forth the coverage afforded in the event Mr. Wallace becomes totally disabled. Specifically, the subsection entitled “Benefit Determination” provides as follows:

Benefits will be paid for the actual number of consecutive days of covered Total Disability. The number of consecutive days of the Total Disability will be calculated from the first date of treatment by, or consultation with, a physician or practitioner on or after the date the covered Insured ceases work or employment. The amount of the daily benefit will be l/30th of the Monthly Benefit stated in the Schedule of Benefits of this certificate. In no event shall benefits paid exceed in the aggregate the Initial Amount of Insurance stated in the Schedule of Benefits of this certificate. Benefits will not pay past the day the insurance expires or terminates. The amount of disability insurance does not include any delinquent, deferred or extended payment(s) or any other subsequent loan agreement modifications, payments or unearned interest. (Emphasis added.)’

The “Monthly Benefit” designated on the “Schedule of Benefits” portion of the certificate is $429.85. While the policy makes no specific reference to the 60th payment being a balloon payment, it is clear from the limits of the liability portion of the policy that Mr. Wallace was seeking credit insurance for the total debt due. While First Assurance asserts that the “Initial Amount of Insurance” is only applicable to the credit life portion of the policy and not the credit disability portion, the contract itself is not unequivocal in that regard.

First, the disability benefit provisions quoted above make reference to the “Initial Amount of Insurance” referred to in the “Schedule of Benefits,” which suggests that said amount was applicable to the disability portion of the policy. Further, nothing in the policy explicitly provides that the “Initial Amount of Insurance” on the “Schedule of Benefits” is only applicable to the credit life coverage being purchased. Finally, First Assurance’s argument that Mr. Wallace was only insured for a term of 60 months at the rate of $429.85 asks us to assume that he insured himself in the event of his inability to pay this debt because of disability for $9,008 less than if he became unable to pay the debt because of his death.

It is well settled that the laws of conventional contract apply to insurance policies and that the interpretation of a contract is the determination of the common intent of the parties, Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). While we see no public policy which would prevent the parties from agreeing to the contractual limitations suggested by First Assurance, we decline to attribute this paradoxical intent to the parties’ agreement in the absence of clear language to that effect. Accordingly, we find that the policy language is ambiguous as to the amount of coverage intended by the parties regarding the credit disability portion of the policy.

Where an ambiguity remains even after methods of contractual interpretation are employed, the ambiguity is to be construed against the drafter and in favor of the insured. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the contract at the time the insurance contract was entered. Breland v. Schilling, 550 So.2d 609 (La.1989). For help in ascertaining how such a purchaser would have construed the contract at the time, we look to the circumstances surrounding the application for and issuance of the coverage.

While parol evidence generally is not to be used to vary or alter the terms of a contract, it may be admitted when the provisions of a written contract are susceptible to more than one interpretation, or there is ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280. In his deposition testimony, Mr. Wallace testified about his understanding regarding the policy of insurance as follows:

Q: But your understanding and what you took this document to mean was that if you died the life insurance would pay the note off entirely?
A: Right.
Q: Or if you beéame disabled and couldn’t work anymore—
A: It would pay it off.
Q: —that it would pay off the truck?
A. Yes. >

Mr. Wallace applied for financing of his truck and the insurance on the extension of credit through the same employee of Interstate Dodge. The dealership was listed as the insurance agent on the insurance application. In preparing the retail installment contract for the financing, Interstate Dodge, through its employee, completed subsection 10 entitled “Optional Credit Insurance” by selecting the disability insurance option and indicating that said insurance would pay Mr. Wallace’s debt on the contract up to $34,799. While the contract is clear that the insurance is not being provided thereunder and that a separate application would have to be completed, the contract indicates that both Mr. Wallace and Interstate Dodge understood the insured to be seeking coverage on the full amount of the debt. Considering the entirety of the policy and the intent of the parties, we, therefore, conclude that the credit disability insurance extends coverage for the full extent of the initial insurance amount or $34,799. Accordingly, we find that the trial court properly granted summary judgment in favor of Mr. Wallace.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Plaintiff, John R. Wallace, Sr., and against Defendant, First Assurance Life of America, is affirmed. Costs of this appeal are assessed against Defendant/Appellant, First Assurance Life of America.

AFFIRMED.


author: BROWN, C.J. L CARAWAY, J.,

text:
    Cynthia SMEBY, Plaintiff-Appellee, v. John B. WILLIAMS, Jr., State Farm Insurance Company, Rodney C. Griffin, Defendants-Appellants.
    No. 37,845-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Billy J. Guin, Jr., for 1st Appellants, John Williams, Jr., E.L. Burns Co. and Reliance National Ins.
    Donald J. Anzelmo, Monroe, for 2nd Appellant, LIGA.

      Robert S. Tew, Monroe, for Plaintiff/Ap-pellee, Cynthia Smeby.
    Deal & Cook by Philip T. Deal, Monroe, for Defendants/Appellees, Rodney Griffin and State Farm Mutual.
    Cotton, Bolton, Hoychick, & Doughty, L.L.P. by David Paul Doughty, Rayville, for Defendant/Appellee, Rodney Griffin and Intervenor/Appellee, Louisiana Farm Bureau.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, C.J.

Defendants, John Williams, Jr., E.L. Burns Co., Inc., and Reliance National Insurance Company/Louisiana Insurance Guaranty Association (“LIGA”), appeal from the grant of summary judgment in favor of defendants, Rodney Griffin, State Farm Mutual Automobile Insurance Company (“State Farm”), and Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”). For the following reasons, we affirm.

Factual Background

This is an automobile accident case. The issue presented is whether the trial court erred in finding that Griffin was not at fault in causing the accident. The case was decided on summary judgment, with the facts emerging from the depositions of the parties.

On February 7, 1998, Cynthia Smeby and Rodney Griffin went on a date; the couple were in Ms. Smeby’s eight-day-old 1998 Pontiac Trans Am. They drove to the Monroe Civic Center to attend a tractor pull competition. While at the Civic Center, both Griffin and Ms. Smeby drank alcoholic beverages. The two, however, disagreed about Griffin’s consumption. Ms. Smeby said that Griffin “probably had four” unspecified drinks, while Griffin said that he had “less than two watered-down Old Charter” drinks. Additionally, Griffin said that he ate two ham sandwiches and some chips before leaving his house. The tractor pull competition lasted about three hours. Griffin claimed that he did not feel any effects from the alcohol he had consumed but that Ms. Smeby was intoxicated when they left the Civic Center.

The couple disagreed about what happened next. Ms. Smeby said that they drove to a nightclub called Trios and that Griffin drank several “Charters with a little bit of Sprite.” Griffin said that they did not go to the nightclub and that he had nothing else to drink that night. Griffin said that they went back to Ms. Smeby’s house and talked for approximately 45 minutes to 1 hour and 10 minutes.

Eventually the two got back in Ms. Sme-by’s car with Griffin driving, and they headed east on Interstate 20. Upon entering I 20, they saw a state police car “running fast” and Griffin decided to see where the police unit was going. Ms. Smeby said that Griffin “stomped it” to follow the police car. They were driving in the outside/right lane of the interstate as they approached a tractor-trailer rig. Griffin estimated the truck’s speed to be 65 m.p.h. He then pulled the Trans Am into the inside lane to pass the truck. He described the ensuing incident this way:

I had to slow down probably to his speed, 65 (miles per hour), moved over, proceeded to pass. He came over-came over a little bit and I looked over, I mean immediately went as far as I could to the left-hand side and then he came the rest — as soon as he started coming over, I let off the accelerator. We were moving backwards in a rapid pace and as far over to the left-hand side lane without getting in the grass as we could. Then he proceeded to come on over abruptly as we was moving backwards. When I looked — as we were moving backwards and as I started to look back over, he was coming over and I jerked the wheel over and he caught us right behind the front — the door on the right rear quarter panel.
He knocked us in the grass and it was a gradual downhill slope. I say gradual, pretty good slope down into a ravine. The car was out of control. Turned the wheel all the way trying to keep from going into the trees and it would not react and then the tree was there.

Griffin did not brake to avoid the accident. He said:

When I moved over and I let off the accelerator, we were going backwards in a rapid clip. He was passing us and it appeared that he saw us and was going back-you know, was not going back but wasn’t coming all the way over on us.

After running off the road, the Trans Am crashed into a tree, injuring both Ms. Sme-by and Griffin. The “phantom” tractor-trailer rig that hit Griffin did not stop.

Ms. Smeby said that Griffin was driving at about the speed limit, 70 m.p.h., at the time of the crash but that they were “moving on” and that “70 is not what his intended speed was.” She stated that at the time of the crash Griffin was accelerating to catch the state police vehicle but “didn’t get a chance” to exceed 70 m.p.h. because the truck hit the car before he could go faster. Furthermore, Ms. Smeby said that she saw nothing that Griffin could have done differently to avoid being hit by the truck.

Although neither Ms. Smeby nor Griffin saw it, another tractor-trailer rig had jackknifed on the road not far ahead of them blocking the interstate highway. The truck evidently jackknifed because the driver, Williams, fell asleep. The distance between the site of the Griffin crash and the jackknifed truck is not given in the record. Along with two other emergency responders, Louisiana State Police Trooper Christopher Towell had gone to the jackknifed accident and then responded to the Griffin accident.

In the trooper’s written report of the Griffin accident, he estimated Griffin’s speed at 70 m.p.h. because he had no indication that Griffin was going slower or faster than 70 m.p.h. and noted that he may have been going slower because of the emergency vehicles ahead. At the scene of the accident Trooper Towell performed an “HGN” test (horizontal gaze nystagmus test) on Griffin to determine whether he was intoxicated. The trooper said that the results revealed “Probably nothing,” and “If it had been anything, I would have probably wrote something on my report about it.” The trooper said that he wrote “drinking, not impaired” for Griffin. The evidence in the record does not indicate what, if any, damage was done to Ms. Smeby’s car. The excerpt from the trooper’s deposition in the record does not reflect any discussion of damage done by the phantom truck.

Procedural Background

On October 6, 1998, Ms. Smeby sued Griffin; Griffin’s liability insurer, State Farm; Williams, the driver of the jackknifed truck; Burns, Williams’ employer; and Reliance, Burns’ insurer. On February 8, 1999, Griffin brought a cross-claim against Williams. On August 10,1999, Ms. Smeby amended her petition to substitute LIGA for Reliance after learning of Reliance’s insolvency. On August 27, 1999, Farm Bureau, Ms. Smeby’s auto insurer, brought an intervention action against Williams, Burns, and Reliance.

General denial answers were filed by all defendants; however, Williams answered the original and supplemental petitions specifically pleading the comparative fault of Griffin as a defense.

On November 18, 2002, Griffin, State Farm, and Farm Bureau filed a motion for summary judgment, arguing that Griffin was not at fault for the accident. They specifically argued that Griffin’s drinking was not a legal cause of the accident, that Griffin never exceeded the speed limit, and that Griffin was not negligent. Attached to the motion were excerpts from the depositions of Ms. Smeby, Griffin, and Trooper Towell.

On January 13, 2003, LIGA/Reliance, Williams, and Burns filed an opposition, urging that there were several material facts in dispute, including the amount of alcohol Griffin had consumed and the effect it had on his driving, Griffin’s speed, other actions immediately prior to the accident, and whether Griffin’s failure to brake to avoid the collision was negligence. Ms. Smeby did not oppose the motion for summary judgment as, apparently, she had settled with Griffin and his insurer. The opponents attached excerpts from the depositions of Griffin and Ms. Smeby to their opposition. On February 19, 2003, the trial court granted summary judgment in favor of Griffin, State Farm, and Farm Bureau. The January 17, 2003, minute entry from the day summary judgment was granted states:

The Court will grant the Motion for Summary Judgment for the reasons set forth in the motion itself. The Court reviewed the opposition brief filed but under the Code of Civil Procedure Article 966, more is needed than argument. There must be something to support that argument that was made and there was nothing in the record.

This appeal filed on behalf of Williams, Burns, and Reliance/LIGA ensued.

Applicable Legal Principles

Appellate courts review summary judgments de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. Summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. King v. Career Training Specialists, Inc., 35,050 (La.App.2d Cir.09/26/01), 795 So.2d 1223.

The mover has the burden of establishing the absence of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. La. C.C.P. art. 966(C)(2). Once done, the opponent must produce factual support to avert the summary judgment. Whether a particular fact in dispute is material can be assessed only in light of the substantive law applicable to the case. Allen v. State Farm Fire and Casualty Company, 36,377 (La.App.2d Cir.09/18/02), 828 So.2d 190, writ denied, 02-2577 (La.12/19/02), 833 So.2d 343.

The party opposing summary judgment cannot rest on the mere allegations of his pleadings, but must show that he has evidence which could satisfy his evidentiary burden of proof at trial. A determination of the credibility of such evidence is not generally applicable in summary judgment proceedings. If he does not produce such evidence, then there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Johnson v. Entergy Corporation, 36,323 (La.App.2d Cir.09/20/02), 827 So.2d 1234.

Discussion

The only issue presented in the motion for summary judgment and this appeal pertains to Griffin’s negligence. Because Griffin’s negligence is the question, his conduct is subject to the duty-risk analysis. Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.03/04/98), 707 So.2d 1225. At issue is whether Griffin breached his duty to drive in accordance with the law. A motorist’s duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Williams v. City of Monroe, 27,065 (La.App.2d Cir.07/03/95), 658 So.2d 820, writs denied, 95-1998, 95-2017 (La.12/15/95), 664 So.2d 451, 452. A motorist must use such diligence and "care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman, 96-1403 (La.02/28/97), 687 So.2d 1007.

Griffin’s argument is essentially that there was nothing he could have done to avoid the accident. If a motorist has exercised ordinary care as required by law (or the highest degree of care as may be required) and has nevertheless inflicted injury on another, the accident is said to be inevitable, for which no liability attaches. Davis v. Smith, 35,117 (La.App.2d Cir. 10/2/01), 796 So.2d 765, writ denied, 01-2887 (La.01/25/02), 807 So.2d 250.

The only witnesses to the accident whose accounts of the event were considered on summary judgment were Trooper Towell, Ms. Smeby, and Griffin. Ms. Sme-by’s version of events, as evidenced by the brief excerpts from depositions attached to the motion and opposition to summary judgment, differs in several respects from Griffin’s.- The most significant difference in their accounts is in their description of Griffin’s actions immediately prior to the crash. Griffin said that he was slowing the car at the time of the crash while Ms. Smeby said that he was going 70 m.p.h. and accelerating to catch the emergency vehicle speeding ahead of them when the truck they were passing swerved over and hit them.

While we recognize that Griffin was ill-advised in pursuing the emergency vehicle, there is no evidence in the record tending to show that his actions breached his duty of care. Even accepting Ms. Smeby’s account that Griffin was traveling at the speed limit but accelerating at the time of the accident, there is no proof that this conduct was reckless or negligent under the circumstances. Specifically, no evidence suggests that Griffin was not in control of the vehicle or that passing the truck was anything but an ordinary maneuver.- Even Ms. Smeby agreed at her deposition that the crash was unavoidable.

Opponents suggest that Griffin should have braked the Trans Am when he first saw the phantom vehicle moving into his lane. Under Louisiana’s sudden emergency doctrine, a person “who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence.... ” Clark v. Natt, 32,548 (La.App.2d Cir.12/08/99), 748 So.2d 584, writ denied, 00-0084 (La.03/17/00), 756 So.2d 1142. Although the witnesses gave differing versions of Griffin’s actions, both agreed that there was nothing that Griffin could have done differently to avoid the crash.

There was no evidence presented in opposition to summary judgment to suggest that Williams’ jackknifed truck and the attendant emergency vehicles were visible from the scene of the instant accident. One theory why the phantom truck swerved into Griffin’s lane and struck Ms. Smeby’s car is that the phantom driver was trying to avoid the jackknifed truck parked across the road ahead. In the absence of evidence that Griffin should have seen this hazard, Griffin was within his rights to pass the truck that he said was going slower than the speed limit.

Finally, we find little significance in the evidence that Griffin had been drinking prior to the crash. Although the witnesses again gave differing accounts of how much alcohol Griffin had to drink before the crash, the relevant inquiry is whether his alcohol consumption impaired his driving. In light of the testimony from Trooper Towell who performed the HGN test on Griffin and found nothing worthy of inclusion in his report, the opponents have presented no evidence that Griffin was impaired at the time of the accident.

CONCLUSION

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellants, John Williams, Jr., E.L. Burns Co., Inc., and Louisiana Insurance Guaranty Association.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

L CARAWAY, J.,

dissenting.

I respectfully dissent in the opinion of the majority because of the unusual procedural posture of this case which requires dismissal of the appeal.

There are two claims left remaining in this suit. Smeby, the plaintiff, maintains a claim against appellants, Williams, Burns, and Reliance. Griffin has a cross-claim solely against Williams. The appellants raised the affirmative defense of Griffin’s joint negligence against Smeby’s claim. Similarly, Williams raised the affirmative defense of Griffin’s comparative fault against Griffin’s claim.

The motion for summary judgment in this case was initially directed at Smeby’s claim against Griffin and not at the affirmative defenses of the appellants. The rule to show cause was directed solely at the plaintiff, and the trial court’s judgment only dismissed Griffin as a defendant, reserving his cross-claim against Williams. Griffin has no claim against Burns and Reliance and could file no motion for summary judgment against them. Yet, Burns and Reliance interpose themselves as appellants seeking to reverse the judgment in favor of Griffin.

Pursuant to La. C.C.P. art. 966(E), the trial court could grant partial summary judgments in favor of Griffin and Smeby, dismissing the affirmative defenses of comparative fault and joint negligence asserted against their respective claims. Yet, Smeby neither moved for summary judgment nor has such a judgment in this appeal. The appellants broadly interpreted Griffin’s motion for summary judgment as extending to all of them and their affirmative defenses. In fact, the appellants alone, and not Smeby, presented opposition evidence to Griffin’s motion for summary judgment. They alone have appealed, although the judgment in favor of Griffin cannot extend to Burns and Reliance, who have not been sued by Griffin.

Although I agree with the majority that a partial summary judgment could have been rendered on the evidence presented to dismiss Williams’ affirmative defense, the written judgment does not so indicate. Since Williams clearly opposed and defended against the motion for summary judgment as though it was directed at his affirmative defense, I am also tempted to affirm the subject silent judgment as a partial summary judgment. Nevertheless, the same issue raised by Williams, Burns and Reliance against Smeby has not been adjudicated by judgment in Smeby’s favor, thus allowing for the possibility of inconsistent judgments on the issue of Griffin’s liability. If there is additional evidence of Griffin’s actions or inaction which raises material issues of fact, Burns and Reliance, and arguably Williams, can still raise those facts in defense of Smeby’s claim. When such a relationship between the adjudicated claims and unadjudicated claims remains, the rendition of partial summary judgment was not proper by the trial court and clearly should not be considered as a final appealable judgment. Banks v. State Farm Ins. Co., 30,868 (La.App.2d Cir.3/5/98), 708 So.2d 523. The appeal of this unspecified, uncertified judgment should be dismissed.

      . The motion for summary judgment states that the trooper found damage to Ms. Sme-by’s car, but the cited portion of the trooper's deposition is not included in the record.

      . No settlement or release appears in the record although counsel for Ms. Smeby notified this court of the settlement by letter after the record was lodged.

      . Williams, Burns, and LIGA only opposed the summary judgment motion. They did not file any motion for summary judgment on their behalf.


text:
    STATE of Louisiana, Appellee, v. Leamon POUNCY, Appellant.
    No. 37,781-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project by Peggy Sullivan, Monroe, Indigent Defender Board by Michelle M. Andrepont, for Appellant.
    Paul J. Carmouche, District Attorney, Edwin Blewer, III, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

This criminal appeal arises from the First Judicial District Court, Parish of Caddo. Leamon Pouncy (“Pouncy”) was tried by jury and convicted as charged of second degree murder, and he now appeals. For the following reasons, Pouncy’s conviction and sentence are affirmed.

Facts

The factual accounts in this case contain slight discrepancies by those who witnessed the events. However, the record indicates that in the early morning hours of September 15, 2000, Pouncy, Curtis Monroe (“Monroe”), Chevelle Hamilton (“Hamilton”), Darrell Hollingsworth (“Hollingsworth”), and Shermoin Ellis (“Ellis”) were hanging out at a neighborhood grocery store. The victim, Frederick Davis (“Davis”), drove up in his mother’s vehicle and tried to talk with Pouncy. The conversation between the two was not overheard by anyone, but during a police interview Pouncy stated that he told Davis to meet him at a house on Looney Street. Apparently, there was some animosity between the group of men and Davis, with the belief being held that Davis was involved in a neighborhood robbery and drive-by shootings targeting the members of the group.

The group of men walked around the corner to the house on Looney Street, where the previous robbery and at least one of the previous drive-by shootings occurred. Davis arrived shortly thereafter. He called for Pouncy to come to him at the edge of the driveway, but Pouncy refused and told Davis to meet him under the carport. When Pouncy approached Davis, he was confronted by the group and a fight ensued. Hamilton and Hollingsworth “jumped” Davis. According to Pouncy, both Monroe and Hamilton had guns, but he did not witness either man draw his weapon or fire his weapon. In his statement to police, Pouncy claimed that he attempted to break up the fight, but someone hit Davis with a pistol. Pouncy stated at that time Davis was being held, but he then broke loose and that was when Poun-cy shot Davis with a pistol. Pouncy claimed that Davis was still “tussling” with the other men, so he shot him again. Pouncy claimed his third shot was aimed at the ground, but conflicting statements reveal that another witness, Gabriel Davenport (“Davenport”), walked up on the scene and instructed Pouncy to shoot him again, and that was when Pouncy fired the third shot. Davis was pronounced dead on the scene. Pouncy told police that after the shooting he “broke down” his gun in four pieces and threw one piece over a bridge in Bossier City, Louisiana, another piece going toward Cross Lake in Shreveport, and the other two pieces were discarded in a body of water as he drove over the Texas Street Bridge between Shreveport and Bossier City.

After a month-long investigation, Poun-cy was arrested in Dallas, Texas, brought back to Shreveport and charged with second degree murder. After a jury trial, Pouncy was found guilty as charged and then sentenced to the mandatory term of life in prison without the benefit of parole, probation or suspension of sentence. Pouncy now appeals his conviction and sentence.

Discussion

On appeal, Pouncy argues that the evidence at trial was insufficient to support a conviction of second degree murder.

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.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.09/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.04/19/02), 813 So.2d 424. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

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.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

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.08/30/02), 827 So.2d 508. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255.

Louisiana R.S. 14:30.1(A) states, in pertinent part:

Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnaping, second degree kidnaping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

Here, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of second degree murder beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, supra; State v. Hunter, supra; State v. Smith, supra. The state presented the testimony of two witnesses to the crime, Monroe and Ellis. Although there were slight inconsistencies in their testimony, both witnesses testified that Pouncy shot Davis while there was a break or pause in the fight that was going on between Davis, Monroe, and Hollingsworth. The inconsistencies mainly revolved around who struck Davis in the head with a pistol. Monroe testified that Hamilton struck Davis with a pistol. Ellis testified that Pouncy struck Davis with a pistol. Pouncy’s taped statement gave credit to Monroe’s version of the factual account regarding who struck Davis with the pistol. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, supra. Monroe and Ellis testified that Davis repeatedly asked his attackers what was going on and specifically asked Pouncy not to shoot him again. Both Monroe and Ellis testified that Pouncy then shot Davis again and at that point Davis fell to the ground. Ellis testified that Pouncy shot Davis a third time after Davenport came up and shouted for Pouncy to “shoot” and “kill” Davis. Both witnesses testified that Davis was lying on the ground when Pouncy fired the third shot. Neither of the witnesses testified that Davis was armed.

In this instance, the testimony of Ellis and Monroe established that: (1) Davis was not a threat to Pouncy; (2) Davis was not armed; (3) Davis did not provoke Pouncy; and (4) Pouncy was the aggressor. Pouncy failed to produce any evidence during the trial to show that he was provoked into shooting Davis. The testimony along with the fact that Pouncy disassembled and discarded the murder weapon, fled the state, initially lied about being at the scene of the crime, and then fully confessed to shooting Davis (with no mention of Pouncy being in any imminent danger or being angry or upset when he committed the crime) were enough for a reasonable trier of fact to find Pouncy guilty of the crime of second degree murder. The state showed that Pouncy, if not having the intent to kill, definitely had the intent to inflict great bodily harm upon Davis. This assignment is, therefore, without merit.

For the foregoing reasons, the conviction and sentence of Leamon Pouncy are hereby affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Willie Lee DOUGLAS, II, Appellant.
    No. 37,721-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project, by Carey J. Ellis, III, Rayville, for Appellant.
    Paul J. Carmouche, District Attorney, Ross Owen, Lea Hall, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

Defendant was indicted by a grand jury for the First Degree Murder of Shacoria Remedies, a two-year-old child, in violation of La. R.S. 14:30. A unanimous jury convicted the defendant as charged, but could not reach a verdict on imposition of the death penalty. After denying defendant’s motion for post-verdict judgment of acquittal, the court imposed the mandatory sentence of life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant now appeals, alleging that the evidence is insufficient to support the conviction of first degree murder, and the conviction was obtained in violation of defendant’s constitutional right to represent himself. Finding no merit in these claims, we affirm.

FACTS

At 4:30 p.m. on March 22, 2000, the Shreveport Fire Department responded to a 911 emergency medical call from the Haystack Apartments on Fern Avenue in Shreveport, Louisiana. The defendant, Willie Lee Douglas, II, made the 911 call. He reported to the dispatcher that two-year-old Shacoria Remedies had fallen down the steps at the apartment complex and suffered a head injury. When the fire department emergency medical personnel arrived at the second floor apartment minutes after the call, Shacoria was lying on the floor. She did not respond to stimuli and her pupils were uneven, indicating to the EMS team that the child had suffered a head injury.

Shacoria was brought to LSU Medical Center Emergency Room at 4:47 p.m. with a closed head injury. She was moved to the Pediatric Intensive Care Unit where she was attended by Dr. Vidal, who subsequently reported that the child was brain dead. Shacoria died the following day at approximately 5:15 p.m.

An autopsy was performed on the child the following day by forensic pathologist Steven C. Cogswell, M.D., Chief Deputy Coroner for Caddo Parish. Dr. Cogswell testified at trial in great detail regarding both the nature and severity of the injuries revealed by the autopsy. He concluded that the type and severity of injuries suffered by Shacoria were not consistent with injuries that could be sustained by a child falling down stairs. He stated that when a child falls down stairs, even an entire flight of stairs, it does not ordinarily result in significant injuries, because such falls are actually a series of relatively short nine or ten-inch falls. Hence, the natural injuries one would expect to see from such a fall by a small child would be relatively minor. Shacoria, however, suffered severe brain injuries, including a large subdural hema-toma covering the right hemisphere of the brain, severe brain swelling, and severe abdominal injuries, including a crushed liver and broken rib. The swelling of Shaco-ria’s brain compressed those parts of her brain that control respiration and heartbeat, interfering with their functioning and ultimately resulting in her death. Dr. Cogswell testified that the injuries were consistent with someone who had been beaten to death.

Beginning with the 911 call, the defendant consistently maintained that Shacoria sustained her injuries when she fell down the outside stairs at the apartment complex as he prepared to take her and the two other young children that he was baby-sitting to the pool to swim. Defendant was asked several times by emergency workers, relatives, police and other investigators to recount the details of the accident. Although in every instance he described a series of falls down the apartment stairwell, there were variations in the details of the incident.

No one witnessed the incident described by the defendant. At trial, a neighbor testified that she was in her apartment near the base of the stairwell during the time Shacoria allegedly fell down the stairs. She testified that she did not hear or observe any event as described by the defendant.

The defense presented no witnesses or evidence during the guilt phase of the trial. The jury returned a unanimous verdict of guilty as charged of first degree murder. After deliberations during the penalty phase of the trial, the jury could not reach a verdict. The trial court declared that the jury was hopelessly deadlocked. The defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. The defendant was sentenced to serve a term of life imprisonment without benefit of probation, parole or suspension of sentence. The defendant now appeals.

DISCUSSION

Assignment of Error Number One: The State failed to present sufficient evidence to support the verdict, a conviction of first degree murder.

The defendant argues that the case against him was based on circumstantial evidence and was therefore insufficient to support his conviction. He observes that, although the state presented the testimony of 13 persons, none were eyewitnesses to the events leading to the victim’s death. The defendant notes that he never wavered from his claim that the victim sustained her injuries when she fell down a flight of stairs. He contends that the testimony of the coroner who conducted the autopsy was insufficient to support his conviction of first degree murder. The defendant asserts that this evidence did not exclude every reasonable hypothesis of innocence as required by La. R.S. 15:438.

The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Gay, 29,434 (La.App. 2 Cir. 06/18/97), 697 So.2d 642.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App. 2 Cir. 09/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. 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. 2 Cir. 08/30/02), 827 So.2d 508.

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 the 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. 2 Cir. 09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

For circumstantial evidence to sustain a conviction, upon assuming every fact to be proved that the evidence tends to prove, the evidence must exclude every reasonable hypothesis of innocence. State v. Bush, 31,710 (La.App. 2 Cir. 02/24/99), 733 So.2d 49, writ denied, 1999-1010 (La.9/3/99), 747 So.2d 536, reconsideration denied, 1999-1010 (La.10/29/99), 748 So.2d 1156. See La. R.S. 15:438.

In this case, the defendant 'was charged with the first degree murder of a two-year-old child, in violation of La. R.S. 14:30 A(5), which provides in pertinent part:

A. First degree murder is the killing of a human being:
* * *
(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve or sixty-five years of age or older.

Specific intent is a state of mind and need not be proved 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. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2 Cir.), writ denied, 544 So.2d 398 (La.1989). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. La, R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2 Cir.1993).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2 Cir.1988).

In State v. Morrison, 32,123 (La.App. 2 Cir. 07/22/99), 743 So.2d 232, writ denied, 1999-3514 (La.05/26/00), 762 So.2d 1103, this court held that the coroner’s testimony regarding the severity of a beating of victim’s head and facial wounds illustrated that the defendant had the requisite specific intent to kill or to inflict great bodily harm.

The defendant argues that his conviction was based on circumstantial evidence, and the state failed to meet its burden by excluding every reasonable hypothesis of innocence. The hypothesis of innocence in this case is defendant’s claim that the child sustained the injuries that caused her death by falling down the stairs.

The unrebutted testimony shows that the defendant was the only adult with the two-year-old victim at the time she sustained her injuries. Although the paramedics and fire department personnel who became involved in the incident and the police who investigated it testified that they were suspicious of defendant’s story, his behavior, and the variations in his story, it was the findings of Dr. Cogswell from the autopsy that provided the most compelling evidence of the offense.

At trial, Dr. Cogswell described the injuries in detail. Of the two primary groups of injuries sustained by the child, the most critical was the closed-head injury. There was a subdural hematoma, that is, a layer of blood outside the brain but inside the skull, that covered the right hemisphere of her brain. There were also other areas of bleeding at a deeper layer called the arachnoid membrane, and the brain itself was markedly swollen, and retinal hemorrhaging was present. Dr. Cogswell explained that since the skull is closed, the swelling of the brain compressed the parts of the brain at the brain stem that control heartbeat and respiration. As they became compressed, the electrical signals controlling these functions were shorted out, resulting in the death of the child.

The second group of injuries sustained by the child were in the abdominal region. Dr. Cogswell stated that Shacoria’s liver was crushed, which resulted in bleeding that extended around the liver, the gallbladder, the pancreas, and the other organs in the upper part of the abdomen. There were two very small tears in the vena cava, a large blood vessel that returns blood from the lower part of the body through the liver back into the heart. The eleventh rib, the lowest rib one can feel on the body, was broken. The diaphragm showed a series of bruises matching the rib pattern of the child.

Dr. Cogswell testified that the forces that caused the subdural hematoma, in which the brain was torn from the lining (dura mater) attached to the inner side of the skull, are consistent with shaken baby syndrome or with shaking or forcefully hitting the child’s head against something immovable. The severity of the brain injuries were much greater than those that could have been caused by a fall down the stairs. The injuries to the head, he stated, were indicative of shaken baby syndrome.

Additionally, Dr. Cogswell examined the superficial scrapes on the child for the presence of sand, a component of the concrete risers of the stairwell. He testified that the examination yielded no evidence of sand which should have been present. He noted also that there were no scrapes on the elbows, back of the hands and knees that would be expected in a fall down concrete stairs.

Dr. Cogswell described external bruises on one arm and the chest of the child that were oval in shape and about the size of fingertips. Their location, size and shape were consistent with the pattern of fingertips normally seen in cases of someone who has been shaken or grabbed forcefully-

Dr. Cogswell testified that the child’s 11th rib was broken and the liver had been crushed against the spine. He opined that the rib was broken by the child’s rib cage being compressed or flattened by blunt force. The magnitude or severity of the injury was not consistent with a fall down a stairwell. The abdominal injuries, Dr. Cogswell stated, would have also been fatal. However, the head injury trumped that injury in taking the child’s life.

In concluding his testimony, Dr. Cogs-well testified that his unequivocal expert opinion was that the victim had been beaten to death.

We observe that Dr. Cogswell’s testimony regarding the nature and severity of the victim’s injuries was sufficient to support a finding of the defendant’s specific intent to kill. State v. Morrison, supra. Although the defendant never wavered in his claim that the victim sustained her injuries from a fall down a flight of stairs, the scenario he related varied, often significantly, with each telling of the story.

Our review of the appellate record reveals that the evidence, viewed in the light most favorable to the prosecution, is sufficient for a rational trier of fact to conclude this defendant’s guilt beyond a reasonable doubt. See Jackson v. Virginia, supra; State v. Cummings, supra; State v. Hunter, supra. Although there were no eyewitnesses to the crime, there was likewise no evidence to support defendant’s version of events that caused the child’s injuries and death. The fact that defendant was the only adult with the child when she was injured, the variations in defendant’s accounts of the fall down the stairs, his unusual behavior surrounding the event, the lack of medical evidence to corroborate his account of the fall down the stairs and the compelling forensic evidence indicating that the child was brutally handled and perhaps beaten to death support the jury’s verdict. The circumstantial evidence presented at trial in this case, viewed in a light most favorable to the prosecution, is sufficient for a rational trier of fact to conclude this defendant’s guilt beyond a reasonable doubt. This court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, supra. Defendant’s assignment of error is therefore without merit.

Assignment of Error Number Two: Defendant’s conviction was obtained in violation of his constitutional right to self-representation.

On March 13, 2002, defendant filed a pro se motion to appoint new counsel, alleging that his counsel from the Indigent Defenders’ Office, David McClatchey, was incompetent, unprepared and had a conflict of interest. Defendant filed a similar pro se motion on April 2, 2002, again alleging that his counsel was incompetent and unprepared and that he would be unable to obtain a fair trial. Defendant argued in the motion that the Indigent Defender’s Office was over-burdened and could not adequately handle his case.

On June 24, 2002, the defendant filed a pro se motion to suppress evidence. The defendant addressed a letter attached to that motion to the trial court, asking that his trial be “waived” and that he be allowed to represent himself. He expressed distrust and dissatisfaction with his attorney, David McClatchey, of the Indigent Defender Board.

On the date of the hearing, June 27, 2002, Mr. McClatchey filed a motion to be relieved as counsel of record. McClat-chey’s motion was based on defendant’s pro se motion for appointment of new counsel alleging that McClatchey was incompetent, ineffective, unprepared and failed to properly investigate evidence. McClatchey asserted that he could not both represent the defendant and defend himself against the defendant’s allegations.

At a hearing held on June 27, 2002, the matter was argued before the trial court. McClatchey argued for his motion that the Indigent Defender Board be relieved as counsel, stating that in light of the complaints of defendant, he had become so perturbed that he could not be effective in this case. The court denied his motion to be relieved as counsel for the defendant.

Next, the court took up defendant’s motion to suppress, but the court’s attention was immediately turned to defendant’s attached letter in which he requested that he represent himself. Noting that the letter was not a motion, the court allowed the defendant to speak. The defendant immediately launched a verbal assault on the quality of his counsel’s representation and told the court he would not accept their representation. When he attempted to leave counsel’s table, the bailiff stopped him. When defendant then began using foul language, he was removed from the courtroom. The court denied defendant’s request to represent himself, and Mr. McClatchey objected to the ruling. The state requested a more extensive colloquy on the matter, but the court noted that the defendant had not filed a motion, but only attached a letter to his motion to suppress, in which he indicated he wanted to represent himself.

After discussion with counsel and the state, the court allowed Mr. McClatchey to make a motion on behalf of defendant to allow the defendant to represent himself. Then the court allowed the defendant to address the court, at which time he expressed his desire to represent himself based upon his belief that his counsel had done nothing in developing a defense. The court then declined to have a colloquy with the defendant about the matter.

The state sought a supervisory writ of review from this court. We granted the writ by order No. 36,600-KW, signed 6/28/02, vacated the trial court’s ruling denying the defendant’s motion to represent himself and remanded for a hearing to determine whether the defendant was competent to waive counsel and was voluntarily exercising his informed free will. See State v. Santos, 99-1897 (La.09/15/00), 770 So.2d 319. In the writ opinion we noted that “[a]n accused has the right to choose between his right to counsel and his right to self-representation.” State v. Bridgewater, 2000-1529 (La.01/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). The trial court must conduct a colloquy in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

On July 18, 2002, in accordance with our instructions, the trial court held a hearing on the matter. At the hearing, the trial court inquired whether the defendant still wished to waive counsel. The following colloquy transpired:

The Court: ... Mr. Douglas, the Court had previously denied your motion for new counsel and has also subsequently denied the defense counsels’ motion to be relieved as counsel and further the Court has denied the oral motion for the defendant to represent himself. And, Mr. Douglas, at this juncture the Court is going to ask you do you still wish to waive counsel?
The Defendant: Yes.
The Court: You want to give up being represented by a lawyer and represent yourself?
The Defendant: I would like to waive counsel and be represented by another lawyer.
The Court: Let me ask you this question. The Court has refused to relieve the ID Office from representing you and the Court observes that the lawyers for the ID have endeavored to represent you with the (sic) zeal and with what the Court believes is the appropriate representation. What is your reason for not wanting the ID Office to represent you? Is it these lawyers or is it the ID Office in general? I need to know the reasons so that I can make an informed decision about it.
The Defendant: First of all, the ID Office — the first one is the ID Office filed a motion they wanted to get off my case anyway. Secondly, the ID Office have (sic) more clients besides me and they don’t have the proper stance for a capital case that I’m on and the proper investigation. Thirdly, the evidence that has been brought up Monday when we were set for trial should have already been in the court since the last ID lawyer I had has filed that motion but all of (sic) sudden it just come (sic) out of the blue now. And I felt like the Indigent Defender Board should have had that from the start. Fourthly, I learned that the Indigent Defender Board cannot do the case that I’m on with their credibility or not (sic). I’m not saying they’re dumb, I’m just saying the credibility and knowledge that they have is (sic) not fit to my charge.
The Court: Let me ask you this question just so we can definitely resolve this issue. You previously asked the Court to relieve the ID Office and appoint new counsel and after I didn’t do that you said you wanted to represent yourself. You really don’t want to represent yourself, you really want to have lawyers represent you?
The Defendant: Yes, ma am.
The Court: So you have no intentions of waiving counsel, you just at this juncture feel as though you don’t want the ID office representing you?
The Defendant: Yes, ma'am.
The Court: And you understand that you do have a right to counsel and if you’re not able to afford counsel the Court has to appoint counsel and that’s what the Court has done in this case, appointed the ID Office, you understand that?
The Defendant: Yes, ma'am.

After giving the attorneys for both the defense and the state a chance to address the issue and the defendant’s complaints and concerns regarding the quality of representation, the trial court maintained the appointment of the ID Office as the defendant’s court-appointed counsel.

The defendant argues that he made an unequivocal request to represent himself, which was denied by the trial court. He contends that the trial court’s only inquiry should have been the defendant’s competency to waive counsel and the voluntariness in exercising his informed free will.

In State v. Santos, supra at 321, the Louisiana Supreme Court stated that “[a] trial judge confronted with an accused’s unequivocal request to represent himself need determine only whether the accused is competent to waive counsel and is ‘voluntarily exercising his informed free will.’ ” (quoting Faretta, supra). (Emphasis supplied).

In granting the state’s writ application on the matter of self-representation, we vacated the trial court’s denial of defendant’s request to represent himself and remanded to the trial court to conduct a hearing on whether the defendant was competent to waive counsel and voluntarily exercise his informed free will. This rul-mg was based upon what appeared at the time to be the defendant’s unequivocal desire to represent himself. However, the transcript of the subsequent July 18, 2002 hearing held in accordance with that order shows that the trial court determined that the defendant did not wish to represent himself. Instead, he simply wished to obtain new counsel. In fact, the defendant unequivocally retracted his previous request to represent himself. In view of this retraction, further inquiry regarding whether the defendant was competent to waive counsel was unnecessary.

On this record, it cannot be said that the defendant’s claim regarding self-representation has merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.

      . See Coroner's Report. Rp. 123-133 in record filed July 11, 2000 in response to defendant's discovery request. The written report by Dr. Cogswell does not appear to have been offered into evidence with the autopsy photographs, probably because Dr. Cogswell’s very detailed testimony covered all relevant matters covered therein.

      . Defendant and Shacoria’s mother, Gwendolyn Remedies, were living in the apartment with Anita Mathews. The other children were the children of Anita Mathews, ages two and four.

      . From the context in which the defendant used the word “waive” in this letter, it appears that the defendant was requesting a continuance within which to better prepare for trial.


author: 11 STEWART, J.

text:
    Charles DEAL, Plaintiff-Appellant, v. Carol Lexing POWELL, et al., Defendants-Appellees.
    No. 37,686-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Charles Deal, In Proper Person.
    Watson, McMillin & Harrison, by W. Michael Street, for Appellees Carol Lexing Powell and Monroe City Clerk of Court.
    Before WILLIAMS, STEWART and DREW, JJ.
   11 STEWART, J.

Following remand of this matter to the district court, Charles Deal (“Deal”) appeals the trial court’s grant of defendants’, Carol Powell, Frances Manning, and Kasey Duncan (“Defendants”), Exceptions of Prescription and No Cause of Action, and Motion in Limine. For the reasons expressed herein, we affirm.

FACTS

The pertinent facts and procedural history of this case are detailed in Deal v. Lexing-Powell, 36,168 (La.App.2d Cir.8/16/02), 824 So.2d 541. We will not be unnecessai’ily repetitive here. In Deal v. Lexing-Powell, supra, we reversed summary judgment in favor of the Defendants in their official capacity and remanded this matter to the district court. Following remand, the Defendants filed several motions which were granted by the trial court to wit: (1) Motion to Refix Exception of Prescription; (2) Exception of no Right of Action; and (3) Motion in Limine. This appeal ensued.

DISCUSSION

Exception of No Right of Action

Under La. C.C.P. art. 927, a defendant may raise the peremptory exception of no right of action. The function of the peremptory exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The no right of action exception assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885; Simmons v. Chambliss, 37,461 (La.App.2d Cir.8/20/03), 852 So.2d 1237.

In CWD Investments’ Petition for Damages, Deal claims that he did not have an ownership interest in any of the property seized pursuant to writs issued through Monroe City Court. In sustaining the Defendants’ Exception of No Right of Action, the trial court adopted the reasoning contained in their memorandum. The court found an “Affidavit of Facts” signed by Deal stating that he did not have an ownership interest in the property to be a judicial admission. A judicial admission or confession is a party’s express acknowledgment of the correctness of the fact or the act charged against him by his adversary; such a confession is designed to dispense with evidence and has the effect of withdrawing the subject matter of the confession from issue. Prine v. Prine, 34,749 (La.App.2d Cir.9/17/01), 793 So.2d 561. Consequently, by Deal’s own admission, he did not have an ownership interest in the property at issue. The trial court properly granted the Defendants’ exception of no right of action.

Exception of Prescription

We not only affirm the trial court’s finding that Deal had no right of action, we also hold that any cause of action against the Defendants for the alleged wrongful seizure of the property at issue has prescribed. Deal filed suit on March 20, 2000. In his petition, Deal alleges that the allegedly negligent actions of the defendants occurred on January 23 and 24, 1999. Although the claims are prescribed on the face of the petition, Deal argues that he did not have constructive notice of the claims until October 7, 1999, and he is entitled to the benefits of the doctrine of contra non valentem agere nulla currit praescripto.

Ordinarily, the party claiming the matter is prescribed bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, then the burden shifts to the plaintiff to show that the action has not prescribed. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502; Nolan v. Roofing Supply, Inc., 36,403 (La.App.2d Cir.11/26/02), 833 So.2d 1026.

The record shows that as early as February of 1999, Deal had Elizabeth Deal, William Deal, and Karen McGough Deal Navarro come to the Monroe City Court to inquire about information concerning the alleged wrongful conduct. Further, in an action which preceded the instant suit, Deal had prepared several pleadings in the Monroe City Court against Citgo-U-Pac It and Roger Claunch wherein he complained of “the wrongful seizure of property,” including a motion for summary judgment, which were filed March 8, 1999. Our review of those pleadings demonstrates that Deal was certainly aware of a potential cause of action more than a year prior to the March 20, 2000, filing of the instant suit.

The doctrine of contra non valentem suspends prescription where the circumstances of the case fall into one of the following categories:

1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action.
2. Where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
3. Where the debtor himself has done some act effectively to prevent the creditor from availing himself of the cause of action; and
4. Where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211.

In support of his argument that he is entitled to the protection of contra non valentem, Deal states that 1) he was unable to appear and act for himself in viewing the public records; 2) there was no action taken by the City Court on orders filed by him in underlying Monroe City Court actions; and 3) his “agents” were denied access to the suit records. We find no merit in any of these claims. First, Deal’s inability to appear was caused by his own incarceration. We note that a plaintiffs incarceration does not suspend the running of prescription. Hampton v. Kroger, 27,073 (La.App.2d Cir.6/21/95), 658 So.2d 209. Second, there is nothing in the record to support the idea that any delays in the Monroe City Court action, if they in fact occurred, should serve to suspend prescription in the instant case. Lastly, there is also nothing in the record to support his allegation that his “agents” were denied access to the records. Consequently, we find that this assignment is without merit, and we affirm the trial court’s finding that his claim has prescribed.

Motion in Limine

In his objections to the Defendants’ filing of the Exceptions of Prescription and No Right of Action, Deal filed supporting memoranda and statements which he alleged were affidavits. The trial court ruled that these statements were hearsay and not competent legal evidence under La. C.C.P. art. 931, and granted the Defendants’ Motion in Limine striking the statements offered by Deal. We find no error in this ruling. Moreover, we note that had the Motion in Limine been denied, this court would have still affirmed the Exceptions of No Right of Action and Prescription.

Denial of Oral Argument

Deal asserts that the trial court erred by allowing this matter to be submitted on the briefs only without oral argument or witness testimony. However, we find no abuse of discretion in the trial court’s decision. Rule 9.18 of the Rules for Louisiana District Court provides that “oral argument is a privilege, not a right, and is within the court’s discretion.” Accordingly, we find that this contention is without merit.

CONCLUSION

Finding no merit in the appellant’s claims, we affirm the ruling of the trial court granting the Defendants’ Exceptions of No Right of Action and Prescription, and the Motion in Limine. Costs to the appellant, Charles Deal.

AFFIRMED.