author: I .PATRICIA RIVET MURRAY, Judge.

text:
    Neomi JOSEPH v. CITY OF NEW ORLEANS.
    No. 2002-CA-1996.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2003.

      John B. Perry, Slidell, LA, for Plaintiff/Appellee.
    Charles L. Rice, City Attorney, Albert A. Thibodeaux, Chief Deputy of Litigation, John E. Smith, Deputy City Attorney, Frank B. Hayne, III, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   I .PATRICIA RIVET MURRAY, Judge.

This is a personal injury suit arising out of a trip and fall on a sidewalk. The trial court found in favor of the plaintiff, Neomi Joseph, and against the defendant, the City of New Orleans, and awarded $50,000 in general damages and $1,319 in special damages. From that judgment the City appeals. Answering the appeal, Ms. Joseph seeks an increase in quantum. For the reasons that follow, we affirm the trial court’s findings on liability and quantum, but reverse the trial court’s finding that Ms. Joseph was free from fault.

FACTS

On December 14,1999, Ms. Joseph, aged seventy-four, tripped and fell on an uneven portion of the sidewalk in the 2600 block of Napoleon Avenue in the City of New Orleans. At the spot where she fell, there was a mis-union of two concrete sidewalk slabs, creating a step-up of between 3.5 to 3.9 inches on the street side of the sidewalk. This condition was apparently caused by the roots of an adjacent tree. At the time of the accident, Ms. Joseph was en route to an appointment with her cancer doctor, Dr. Victor Tedesco, whose office is located at 2633 Napoleon Avenue. In the past, a family member had taken Ms. Joseph to the doctor’s office; the family members had always dropped her off in the circular |2drive located in front of the doctor’s office. On the day of the accident, however, she rode the bus to the doctor’s office; the bus dropped her off across the street from the office nearby an adjacent hospital. As a result, that day she had to cross Napoleon Avenue to get to the doctor’s office. After she crossed the street and began walking on the sidewalk towards the office, she tripped and fell on the uneven sidewalk. Shortly thereafter, she was treated at the emergency room of the nearby hospital. She was diagnosed as having sustained a fractured right humerus, which is the top bone in the arm, running from the shoulder to the elbow. Subsequently, she intermittently was treated for her injury by Dr. J. Lee Moss. This suit followed against the City and the Sewerage and Water Board.

At trial, the parties stipulated that the City owned the sidewalk where Ms. Joseph fell and that no other entity had responsibility for the upkeep, maintenance, or repair of the sidewalk. As a result of this stipulation, the Sewerage and Water Board was dismissed. The parties also stipulated that Ms. Jackson’s special damages from Memorial Medical Center emergency room and Southern Orthopaedic Specialists (Dr. Moss) totaled $1,319. The evidence presented at the bench trial included testimony by Ms. Joseph; Ms. Joseph’s son, Reverend Lawrence Brown; several engineering experts; and a city employee. Several photographs of the sidewalk were also introduced into evidence.

Finding in Ms. Joseph’s favor, the trial court determined that the sidewalk was defective, that the City had knowledge of the defect, and that the City’s negligence in failing to correct the defect within a reasonable time was the cause of Ms. Joseph’s injuries.

On appeal, the City assigns four errors by the trial court:

ls(l) The trial court erred in failing to find that the sole and proximate cause of plaintiffs accident was her looking at the building to which she was going and failing to pay any attention at all to the sidewalk on which she was walking;
(2) The trial court erred in failing to rule that because the sidewalk obstruction was clearly visible to plaintiff and easy for her to step means that it did not constitute an actionable legal “defect”;
(3) The trial court erred in ruling that the City had advance constructive notice of the sidewalk condition at issue, simply because that condition had been present for a long period of time — despite the fact that thousands of pedestrians had walked across that location without known incident either actual or constructive, before plaintiffs accident; and despite the presence of thousands of other instances of similar sidewalk conditions throughout the City, the discovery and repair of which would be exceedingly expensive; and
(4) The judgment below, even if proper in holding the City of New Orleans liable, was erroneous in failing to attribute major contributory negligence to plaintiff.

Ms. Joseph answered the City’s appeal seeking an increase in quantum from $50,000 to $75,000 in general damages.

DISCUSSION

To prevail on a claim against a public entity, such as the City, based on either negligence or strict liability, a plaintiff must establish the following elements: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect and failure to take corrective action within a reasonable time; and (4) causation. See Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991); La. R.S. 9:2800. The first element is satisfied by the parties’ stipulation that the City owned and had custody of the sidewalk where Ms. Joseph was injured. The last element is not at issue since the City did not assign as error the trial court’s finding of causation, and the record supports the trial court’s ^finding that Ms. Joseph’s shoulder injury was caused by the accident. The issues before us thus can be narrowed to whether the trial court properly found the defect in the sidewalk presented an unreasonable risk of harm, and whether the City had notice of the defect and failed to take corrective action within a reasonable time. We separately address those two issues.

UNREASONABLE RISK OF HARM

The manifest error standard of review applies to the trial court’s finding of whether a defect creates an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365. Articulating the reason for applying the manifest error standard to this determination, the Louisiana Supreme Court stated in Reed:

Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard.

Reed, 97-1174, p. 4, 708 So.2d at 364-65.

In evaluating whether a defect in a sidewalk creates an unreasonable risk of harm a risk-utility balancing test must be employed; to wit, “the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair.” Reed, 97-1174 at p. 5, 708 So.2d at 365. Stated otherwise, “[t]he trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others.” Id.; Boyle v. Board of Supervisors, Louisiana State University, 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083.

1 ¡^Stressing that municipalities are not liable for every defect or irregularity in sidewalks that cause injury, the court in Reed noted:

It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

97-1174 at p. 2, 708 So.2d at 368.

In the instant case, the trial court applied the balancing test and determined that the particular defect in the sidewalk was defective under the particular facts of this case, reasoning:

[Ms. Joseph’s] engineering expert, Mr. Jim Gilbert testified that the 3#' — 3.9" depression where Mrs. Joseph tripped was grossly defective due to the fact that industry standards set the acceptable variance in height as]4" in a 10' of walking surface; whereas, as reflected in the measurements shown in [the pictures Ms. Joseph introduced], this area had a 3.5" to 3.9" variance in a &h' of walking surface, well below acceptable engineering standards. Both Mr. John R. Huerkamp, Sewerage and Water Board’s engineer and Mr. Marvin Thompson, defendant’s expert engineer, concurred that this condition was hazardous, and presented a defect that should have been repaired.

The trial court further found that the there was a reasonable factual basis for finding the depression in the sidewalk where Ms. West fell was “well below industry standards in variance of depths.” The trial court still further found that there was a great likelihood of harm given that the condition existed in front of an office that would be frequented on a daily basis by patients. Hence, the court held the variance in depth of the sidewalk was unreasonably dangerous and created an unreasonable risk of harm.

Although the City acknowledges that the sidewalk was abnormal, it argues that the trial court erred in finding it created an unreasonable risk of harm given |fithat Ms. Joseph’s failure to see what she should have seen caused the accident. In support, the City cites Alexander v. City of Baton Rouge, 98-1293 (La.App. 1 Cir. 6/25/99), 739 So.2d 262, for the proposition that an open and obvious sidewalk defect, such as the one in this case, does not present a condition creating an unreasonable risk of harm. We And this argument unpersuasive. The open and obvious nature of the sidewalk defect on which Ms. Joseph tripped and fell does not relieve the City from liability.

Explaining the “open and obvious” defense, a commentator states:

Pre-1996, a court might have refused to apply strict liability because the risk at issue was “open and obvious.” The same rule applies in negligence cases. While the “open and obvious” argument suggests a disguised application of contributory negligence or assumption of the risk, when the risk is open and obvious to everyone, the probability of injury is low and the risk may be outweighed by the thing’s utility. Consequently, when the risk is open and obvious, the thing may not be unreasonably dangerous, or, after the amendments, the defendant may not have failed to exercise reasonable care.

Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 14-3 (1996). Simply stated, the open and obvious nature of the defect is merely another factor to be weighed in the risk-utility balance.

Although we acknowledge the holdings in Boyle and Reed that not every crack in a sidewalk results in liability, we cannot say that the trial court was manifestly erroneous in finding the sidewalk defect at issue in this case, which is over three inches in size, created an unreasonable risk of harm. More precisely, we conclude that the obvious deteriorating condition of the sidewalk was at least a contributing cause of Ms. Joseph’s trip and fall. See Hammons v. City of Tallulah, 30,091, p. 6 (La.App. 2 Cir. 12/10/97), 705 So.2d 276, 281.

First, the photographs of the sidewalk in the record reflect its obvious state of disrepair. Second, all the experts agreed that the sidewalk was defective. Jack |7Huerkemp, Chief of Operations for the Sewerage and Water Board, testified that he would have corrected this defective sidewalk. James G. Gilbert, a civil engineer, testified that this three point five to three point nine inch rise in the sidewalk created a “tripping hazard,” which he defined as “a sidewalk that’s uneven enough that we think it would cause a potential fall.” Finally, Marvin Thompson, a civil engineer employed by the City’s Department of Public Works, testified that this is a defective condition in the sidewalk.

Third, Mr. Thompson in addressing the issue of cost of repairs testified regarding the City’s procedures:

Q Okay. Now, you said that even if in another case there was a property owner who had to fix the defect but did not do it, then the City would not do it either, even if they knew of the defect; is that correct?
A. The City does not have resources to respond to all these defects, so therefore, we do not fix.
Q. Even if they have actual notice of the defect?
A. Yes. The City could fix the defect and charge the property owner if the funds are available. For many years the funds have not been available to pursue that avenue.

Implicitly referenced in Mr. Thompson’s testimony is the statutory right of a municipality set forth in La. R.S. 33:792 and 793 to require the repair of damaged sidewalks by the owner of the land abutting upon such sidewalk, or, in lieu thereof, to repair the sidewalk at such owner’s expense. See Hammons, 30,091 at pp. 5-6, 705 So.2d at 281 (noting the significance of these provisions in finding liability on the part of the municipality for a defective sidewalk).

Given this evidence, as stated above, we cannot find the trial court committed manifest error in determining the defect in this sidewalk presented an unreasonable risk of harm.

[«ACTUAL OR CONSTRUCTIVE NOTICE

The next issue is whether the trial court correctly found the City had notice of the defect. On this issue, the trial court stated in its reasons for judgment that Mr. Gilbert, Ms. Joseph’s engineering expert, testified that this dangerous condition existed for a substantial period of time before the accident and estimated that period to be about five to ten years before the accident. Mr. Gilbert based his opinion on the condition of the sidewalk crack, which was shown in a photograph to be significantly weathered. The trial court further noted that Mr. Gilbert compared photographs taken by Ms. Joseph’s son, Rev. Brown, in January 2000 with photographs taken by Mr. Huerkamp, the Sewerage and Water Board’s engineer, in April 2001. The comparison showed that the condition remained virtually unchanged over that almost two-year period. The court thus found these photographs persuasive in establishing the City had constructive notice. Finally, the court reasoned that based on the expert witnesses’ testimony and the photographs introduced at trial, the uneven portion of the sidewalk existed for such a lengthy period of time that the City had constructive notice of the defect before the accident and failed to take appropriate steps to correct the defect.

The City stresses the testimony of its employee regarding the lack of any prior accidents at this location as establishing the lack of any actual notice. The City also stresses the experts’ testimony that there are countless similar defects throughout the City. The City contends that the mere fact that this condition existed for a number of years is insufficient to create knowledge by the City of its presence.

Constructive notice is defined by La. R.S. 9:2800 to mean “the existence of facts which infer actual knowledge.” La. R.S. 9:2800(C). Constructive notice can |9be found to exist when “the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.” Maldonado v. Louisiana Superdome Comm’n, 95-2490, p. 7 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1092. The trial court found such to be the case here. The conclusion that the City had constructive notice of the defective sidewalk condition was a factual finding governed by the manifest error standard of review. 95-2490 at p. 9, 687 So.2d at 1093. We find no manifest error in the trial court’s conclusion that the City had constructive notice. As discussed above, the record amply supports that finding.

COMPARATIVE FAULT

The City’s final assignment of error is that the trial court erred in failing to find that Ms. Joseph’s own negligence was the major cause of her injuries. Particularly, the City argues that Mrs. Joseph’s failure to watch where she was walking was the primary cause of the accident. The City stresses that the accident occurred on a clear day and that there were no distractions.

Whether comparative fault applies in a given case is a factual determination governed by the manifest error standard of review; hence, “[o]nly if the apportionment of fault is found to be clearly wrong can an appellate court adjust percentages.” Maldonado, 95-2490 at p. 10, 687 So.2d at 1093 (citing Clement v. Frey, 95-1119, pp. 7-8 (La.1/16/96), 666 So.2d 607, 610-11). In comparing fault, we apply the oft-cited list of factors enunciated in Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985); to wit: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the | ^conduct; (4) whether the capacities of the actors were superior or inferior; (5) whether any extenuating circumstances required to actor to proceed without proper thought, and (6) the relationship between the actor’s conduct and the harm to the plaintiff.

Applying those principles to the evidence presented in this case, we find the trial court’s failure to find Ms. Joseph comparatively negligent was manifestly erroneous. The trial court found that “Mrs. Joseph was paying careful attention to where she was going, looking directly at the office building and did not notice the depression reflected in the photograph ... until she had tripped and fell [sic].” As the City correctly contends, the principle that a pedestrian has a duty to see what he or she should have seen applies. Although Ms. Joseph testified that she was unaware of the uneven sidewalk until she tripped and fell, the defective condition was an obvious defect, as reflected in the photographs in the record, that she had a duty to see. While the City was in a superior position to remedy the defective condition, no evidence was presented that there were any extenuating circumstances, such as distractions in the area or a need for haste, that prevented Ms. Joseph from seeing what she should have seen.

Both the City’s failure to repair the sidewalk within a reasonable period and Ms. Joseph’s failure to see what she should have seen were contributing causes of her injuries. Indeed, as indicated above, our finding that the obviously dilapidated condition of the sidewalk presented an unreasonable risk of harm also establishes some comparative fault on Ms. Joseph’s part.

Nevertheless, the City’s conduct was significantly greater. The City was in a superior position to address the longstanding defective condition of the sidewalk. That defective condition created a significant risk of harm, especially for an elderly InPerson. The location of that defective condition in the front of a medical office building and across the street from a hospital is also an important factor in determining the significance of the risk. The City’s failure to remedy that defect created a risk to all those using the public sidewalk, and its superior position results in its fault being greater.

Applying the Watson factors, we find that the lowest percentage of fault a reasonable fact finder should have allocated to Ms. Joseph under these circumstances was thirty percent. See Jones v. Peyton Place, Inc., 95-0574, pp. 9-11 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763 (allocating 30% comparative fault for plaintiffs failure to see “open and obvious” defect he should have seen).

QUANTUM

The City does not raise quantum as an issue on appeal. Answering the City’s appeal, Ms. Joseph seeks an increase in general damages from the $50,000 the trial court awarded to $75,000. In reviewing a general damage award, the first inquiry is “whether the particular effects of the particular injuries to the particular plaintiff are such that there has been an abuse of the ‘much discretion’ vested in the judge or jury.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 14.14 (1999). The standard of review for abuse of discretion in awarding general damages is “difficult to express and is necessarily non-specific.” Cone v. National Emergency Services, Inc., 99-0934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089. The seminal case on that standard is Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), in which the court articulated it as follows: “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” 623 So.2d at 1261. This is not such a rare case.

|TJn reviewing the trial court’s award of general damages in this case, we note, as the trial court stated, that the injury Ms. Joseph sustained to her right shoulder continued to be an ongoing problem. Both Ms. Joseph and her son, Rev. Brown, testified that her injury presented ongoing problems in taking care of her husband and in handling her own personal needs. The record thus supports the trial court’s award of $50,000 in general damages. Applying the Youn standard, we find the trial court’s general damage award in this case is not an abuse of discretion. We thus find it unnecessary to resort to a review of damage awards made in other cases. Ms. Joseph’s argument that this amount is inadequate unpersuasive.

DECREE

For the foregoing reasons, we reverse the trial court judgment insofar as it found no fault on Ms. Joseph’s part, reduce the trial court’s award of damages by the thirty percent fault we assign to Ms. Joseph, and in all other respects affirm the judgment of the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: | MAMES F. McKAY III, Judge. 11 JONES, J.,

license: Public Domain

text:
    William Wesley ALDEN, M.D. v. Barbara Ferguson LORNING d/b/a BLF Enterprises.
    Nos. 2002-CA-1668, 2002-CA-2007.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2003.
    Gregory P. Nichols, Law Office of Gregory P. Nichols, New Orleans, LA, for Plaintiff/Appellant.
    Robert M. Rosenberg, Polack, Rosenberg & Endom, LLP, New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   | MAMES F. McKAY III, Judge.

In these consolidated actions, the plaintiff, Wes Alden, M.D., appeals the trial court’s maintaining of the defendant’s, Barbara Ferguson Lorning, exceptions of no right of action and no cause of action as well as the trial court’s granting of a partial summary judgment on the defendant’s reconventional demand seeking damages. We affirm the trial court’s maintaining of the defendant’s exception of no right of action, we reverse the trial court’s maintaining of the defendant’s exception of no right of action, and we dismiss the appeal of the trial court’s granting of the defendant’s motion for partial summary judgment under La. C.C.P. art. 1915 B(l).

FACTS AND PROCEDURAL HISTORY

On February 17, 1998, Lorning and Alden executed a standard form lease for an immovable property located at 7238 General Haig Street in New Orleans. The original term of the lease was from February 23, 1998 through February 23, 1999 for and in consideration of, inter alia, a monthly rent of $1,550.00 payable in advance on the first day of each month. The lease contains the following clause:

I ¡AUTOMATIC RENEWAL — If Lessee or Lessor, desires that this lease terminate at the expiration of its term, he must give to the other written notice at least 30 days prior to that date. Failure of either party to give this required notice will automatically renew this lease on a month to month basis. If this automatically renews on a month to month basis then if Lessee or Lessor desires that this lease terminate he must give to the other written notice of the termination at least 30 days prior to the last calendar day of the month in which the lease is to terminate. If this lease automatically renews on a month to month basis then all terms and conditions of this lease remain in effect.

On March 21, 2000, Lorning sent a letter to Alden terminating the Lease effective April 30, 2000. On April 3, 2000, Lorning extended the termination date to May 15, 2000 in order to accommodate Alden by giving him an extra two weeks. This was confirmed by a further writing dated April 11, 2000. On or about March 28, 2000, Alden sent to Lorning a signed proposed residential lease which among other things proposed to extend the lease through the last day of January 2001. He also tendered a check for ten months rent. Lorn-ing did not agree to the terms and conditions of the proposed lease and never signed it; she also returned the check to Alden. In the meanwhile however, Lorn-ing had a family crisis and Alden was not required to vacate the premises by May 15, 2000.

On August 4, 2000, Lorning wrote to Alden and informed him of her decision to terminate the lease effective January 31, 2001. On October 10, 2000, Lorning wrote Alden reminding him of the date to vacate and inquiring whether Alden could vacate sooner. On November 30, 2000, Lorning again wrote Alden reminding him of the January 31, 2001 termination date. Another letter was sent on January 9, 2001. On January 26, 2001, Alden wrote a letter to Lorning in which he referenced her January 9, 2001 letter and also makes mention of an “agreement” |3that would allow him to stay in the house for an additional year with six months advance notice of termination.

On February 1, 2001, Lorning commenced her attempts to evict Alden by giving Alden a five-day notice to vacate and deliver the premises located at 7233 General Haig Street to her. On February 8, 2001, Lorning filed a rule for possession of the premises in First City Court, noting that she planned to move back into her house. On February 14, 2001, Alden filed an answer to the rule for possession and an exception of lis pendens; in these documents, Alden generally denied the allegations made by Lorning in the petition. A hearing on the rule for possession was held on February 15, 2001. At that hearing all parties acknowledged that the trial judge in Civil District Court had denied Alden’s request for a preliminary injunction in CDC no.2001-2267 on February 14, 2001 (this will be discussed in more detail below). Based on the denial of Alden’s request for a preliminary injunction, the trial court denied the exception of lis pendens and proceeded to hear the rule for possession. Following the hearing on the rule for possession the trial court signed a judgment in favor of Lorning making the rule absolute and ordering Alden to vacate the premises by February 19, 2001. This was affirmed by this Court.

Alden filed a petition to obtain injunctive relief and a declaratory judgment that an April 29, 2000 oral agreement was valid and enforceable, and that he was entitled to retain possession of the property through the last day of October of 2001. In response to Alden’s petition, Lorning filed peremptory exceptions of no right of action and no cause of action as well as an answer and a reconventional Ldemand in which she sought damages for attorney’s fees, emotional distress and mental anguish as well as punitive damages. Subsequently, Lorning filed a motion for partial summary judgment on her reconventional demand. On August 24, 2001, the trial court maintained Lorning’s exceptions of no cause of action and no right of action and dismissed Alden’s principal demand. On May 13, 2002, the trial court granted Lorning’s motion for partial summary judgment. It is from these judgments that Alden now appeals.

DISCUSSION

There are two issues in this appeal: 1) whether the trial court erred when it maintained the Lorning’s exceptions of no cause of action and no right of action; and 2) whether the trial court erred in granting partial summary judgment on liability for Lorning’s claim of damages for abuse of process, emotional distress, mental anguish and punitive damages.

On August 24, 2001, when the trial court maintained Lorning’s exceptions of no cause of action and no right of action it recognized that a lessee has no legal basis to file a possessory action against his lessor. Civil Code article 3437 states: “The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.” Civil Code article 3438 provides: “A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself.” According to Civil Code article 3440, a possessory action is not available to a lessee against his lessor. Therefore, the rights and obligations as between them are governed by the lease. Trinidad Petroleum Co. v. Pioneer Natural Gas Co., 381 So.2d 808 (La.1980). As this Court observed, “[t]he proper proceeding to determine the appellant’s right to remain on the appellee’s property was the eviction proceeding which the appellee |Kinitiated by serving him with the notice to vacate on February 1, 2001.” Lorning v. Alden, 2001-1126 (La.App. 4 Cir. 2/13/02), 809 So.2d 526, writ denied, 2002-1031 (La.6/7/02), 818 So.2d 772. Accordingly, we find no error in the trial court’s maintaining Lorning’s exceptions of no cause of action.

We, however, do not agree with the trial court’s maintaining of the defendant’s exception of no right of action. As explained by the Louisiana Supreme Court in Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972), the exception of no right of action raises two possible questions: (1) whether the plaintiff belongs to the particular class in whose favor the law extends the remedy, and (2) whether the plaintiff has the right to invoke the remedy which the law extends only conditionally. See also Foltmer v. James, 2001-1510 (La.App. 4 Cir. 9/12/01), 799 So.2d 545. Accordingly, the exception of no right of action addresses whether the plaintiff has an interest in the matter at issue. Alden has such an interest in this case. Therefore, the trial court erred in maintaining the defendant’s exception of no right of action.

The trial court failed to certify the May 13, 2002 judgment granting the defendant’s motion for partial summary judgment as final and appealable and that no just reason for the delay of the appeal existed. Louisiana Code of Civil Procedure article 1915 B(l) states:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in the original demand, reconventional demand, cross-claim, third party claim or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

| ¿Therefore, the trial court’s granting of the defendant’s motion for partial summary judgment is not presently appeal-able. Accordingly, we dismiss, without prejudice, the plaintiffs appeal of the May 13, 2002 judgment, deferring the determination of the merits thereof until such time as the trial court ultimately determines the damages due or appropriately certifies the judgment as final, appealable, and for which no just reason for the delay of the appeal exists.

CONCLUSION

For the foregoing reasons, we affirm the trial court maintaining of the defendant’s exception of no cause of action on the principal demand, we reverse the trial court’s maintaining of the defendant’s exception of no right of action on the principal demand and we dismiss the appeal of the trial court’s granting of the defendant’s motion for partial summary judgment on the reconventional demand as a nonap-pealable judgment under La. C.C.P. art. 1915 B(l).

AFFIRMED IN PART; REVERSED IN PART; AND DISMISSED IN PART.

JONES, J., concurs.

11 JONES, J.,

concurs.

I agree with the majority that the judgment maintaining the defendant’s exception of no cause of action on the principal demand should be affirmed, and I agree that the district court’s judgment maintaining the defendant’s exception of no right of action on the principal demand should be reversed. Nevertheless, I write separately to emphasize that I agree with the determination to dismiss the appeal as it relates to the granting of defendant’s motion for partial summary judgment in this case.

On the reconventional demand, the Supreme Court has far too often reversed the circuits directing us to consider non-ap-pealable judgments under La. C.C.P. art. 1915(B)(1) under our supervisory jurisdiction, rather than dismiss in this manner. Review under our supervisory jurisdiction is a much better utilization of judicial resources, and brings the matter to an end, rather than remanding to the district court to be re-filed in the Court of Appeal at a later date.

However, in the matter sub judice, the Appellant delayed more than thirty days prior to taking his appeal. Thus, a writ application would have been untimely. For this reason alone, I agree that the appeal of this interlocutory judgment should be dismissed.

      . The defendant filed a request for judicial notice with this Court asking this Court to take judicial notice of certain facts not in the record. This request was denied. We can only take judicial notice of those things in the record or that are allowed by Louisiana Code of Evidence articles 201 and 202.

      . This was done in spite of the fact that the property was now rented on a month to month basis.

      . Lorning v. Alden, 2001-1126 (La.App. 4 Cir. 2/13/02), 809 So.2d 526, writ denied, 2002-1031 (La.6/7/02), 818 So.2d 772.


author: 11 Judge MAX N. TOBIAS, JR.

text:
    STATE of Louisiana v. Trenell HARRIS.
    No. 2002-KA-2099.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Ike Spears, Spears & Spears, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS, Jr.).
   11 Judge MAX N. TOBIAS, JR.

The defendant, Trenell Harris (“Harris”), was charged by bill of information on 12 March 2002 with aggravated battery, a violation of La. R.S. 14:34. Harris pleaded not guilty at her 22 March 2002 arraignment. On 17 April 2002, a six-person jury found Harris guilty of second-degree battery. On 1 May 2002, Harris was sentenced to two years at hard labor with credit for time served. On 10 May 2002, Harris filed a motion to reconsider the sentence, which was denied, and a motion for appeal, which was granted.

STATEMENT OF FACTS

The victim, Sheena Palmer, testified that on 2 January 2002, she was employed as a shift manager at Church’s Fried Chicken located at 7100 Downman Road. She stated that on that day Elvetta Raines and Harris were also working. Harris was also employed as a shift manager, but she was not the shift manager on duty at the time of the incident. According to Ms. Palmer, Harris was assigned to work the drive-through window for the day. A customer pulled up to the window, and Ms. Palmer asked Harris if she was working for the day. Harris responded by telling Ms. Palmer that she should take the customer’s order, because she was not going to catch a cold for anyone.

I pMs. Palmer testified that she then called the store manager to inform her of the situation. Ms. Palmer informed Harris that the store manager had instructed her to send her, Harris, home. Ms. Palmer further testified that she continued to talk on the telephone when Harris walked over to the fryer, removed some of the hot grease with a pot, threw the hot grease on her, jumped over the counter, and ran out of the store. Ms. Palmer put down the telephone and ran after Harris. Upon entering the store again Ms. Palmer telephoned the police, but before the police arrived she had a friend drive her to the hospital.

After being treated at Charity Hospital for third degree burns on her left arm, left side, back and neck, Ms. Palmer went to the Seventh District police station to report the incident. After giving her statement, a female officer photographed Ms. Palmer’s injuries, with the bandages in place. Ms. Palmer also had her injuries photographed later that same day without the bandages.

Ms. Palmer testified that her injuries required two surgical procedures. In the first procedure, old skin was removed; in the second procedure, skin was grafted from her leg to cover her injuries.

Elvetta Raines testified that Harris and Ms. Palmer had an argument over who was going to work the drive-through window as she worked the front counter. Ms. Raines further testified that Ms. Palmer informed Harris that if she did not want to work she could go home. According to Ms. Raines, the two began to argue as she walked over to the lobby area of the restaurant. When Ms. Raines returned to the work area, she saw Harris initiate a pushing match. Ms. Raines testified that Harris then retrieved a pot, removed hot grease from the fryer, threw it on Ms. Palmer, and ran out of the store. Ms. Raines further testified that Ms. Palmer ran out of the store after Harris, then returned to the store to call the police.

|aMs. Raines called her brother and asked him to drive Ms. Palmer to the hospital. Ms. Raines testified that later in the day she received a telephone call from a police officer asking for her version of the events of the incident.

Officer Tindell Murdock, of the New Orleans Police Department, testified that he responded to a call of an aggravated battery at Church’s Fried Chicken. Because Ms. Palmer had already left the restaurant, Officer Murdock met Ms. Palmer at the Seventh District police station. Once at the station Officer Murdock took Ms. Palmer’s statement. The statement recounted by the officer corroborated the version of the events given by Ms. Palmer in her testimony. Officer Murdock stated that he had a female officer photograph Ms. Palmer’s injuries.

Officer Murdock further testified that Harris also went to the Seventh District station to give her version of the events. Harris’s version of the events conflicted with Ms. Palmer’s. Officer Murdock testified that Harris alleged Ms. Palmer threw hot oil on her first and she responded by doing the same. Because the two versions of the story conflicted, Officer Murdock telephoned Ms. Raines to ask her version of the events. Ms. Raines corroborated Ms. Palmer’s version of the story. Officer Murdock advised Harris of her rights, placed her under arrest, and transported her to Central Lockup.

Jerry Bennette, an assistant manager at Church’s Fried Chicken on Downman Road, testified that on 2 January 2002, he was off duty and at home when he received a phone call about the incident between Ms. Palmer and Harris. When Mr. Ben-nette arrived at the store, he asked Ms. Palmer what happened, and she responded, “Look at me. What do you think happened?” Mr. Bennette then asked the cook what happened, and he said he was not in the store at the time because he had gone to McDonald’s.

|4Mr. Bennette testified that he then closed the restaurant for a few hours to conduct an investigation. He said he observed grease on the back wall and side wall of the restaurant. He also observed grease in the parking lot, on Harris’s vehicle and on Harris’s jacket when she returned to the store. Mr. Bennette stated that he questioned the three employees in the store at the time of the incident, and Ms. Raines would not provide any information because she did not want to get involved.

Harris testified that she and Ms. Palmer were working together on 2 January 2002. She stated that as the shift began that morning Ms. Raines asked about the work assignments for the day, and Harris responded by saying she did not want to work the drive-through window because she had a cold. According to Harris, for most of the shift she worked the front counter. At some point during the shift Mr. Bennette called and asked Harris to recount the money in the store safe because Ms. Palmer found it was short of cash. After the call, a customer came to the drive-through window, and Ms. Palmer asked Harris to take the order. Harris told Ms. Palmer she had to take the order herself. Ms. Palmer then telephoned the store manager, and as she waited for the manager to answer the call, they continued to argue. Harris alleges Ms. Palmer put down the telephone receiver and approached her pointing her finger in her face. Harris further alleges that Ms. Palmer then walked over to the fryer, retrieved hot grease, and threw it on her. Harris alleges she responded in self-defense by pouring hot grease on Ms. Palmer. According to Harris, Ms. Palmer then chased her out of the store with more hot grease, and as she entered her vehicle Ms. Palmer poured the grease on her vehicle.

Harris testified that she then drove to her sister’s home to call the police. Harris further testified that because the 911 operators sent the officer to the wrong | ^address, she went to the Seventh District police station to report the incident. At the police station Harris gave a statement to Officer Murdock.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

Harris complains that the evidence was insufficient to support a conviction of second degree battery and that the State failed to negate self-defense.

' When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986); State v. Heck, 560 So.2d 611 (La.App. 4 Cir.1990), writ denied, 566 So.2d 395 (La.1990). The reviewing court must consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could not disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991).

In a second degree battery conviction the State is required to prove the offender committed a battery without the consent of the victim and that the perpetrator intentionally inflicted serious bodily injury. La. R.S. 14:34.1. The offense requires proof of a specific intent to inflict “serious bodily harm.” State v. Welch, 615 So.2d 300, 302 (La.1993)(citing State v. Fuller, 414 So.2d 306 (La.1982)). “Serious bodily injury” is defined as injury which involves | ^“unconsciousness, extreme physical pain or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” La. R.S. 14:34.1. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Therefore, the elements of second degree battery are: (1) the intentional use of force or violence upon the person of another, (2) without the consent of the victim, (3) when the offender has the specific intent to inflict serious bodily injury. State v. Legendre, 522 So.2d 1249, 1251 (La.App. 4 Cir. 1988).

The term “extreme physical pain” as used in the statute refers to “a condition which most people of common intelligence can understand; it is considered subjective in nature and susceptible to interpretation.” Legendre, 522 So.2d at 1250 (quoting State v. Thompson, 399 So.2d 1161, 1168 (La.1981)).

La. R.S. 14:34.1 provides in part:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.

In the instant case, viewing the evidence in the light most favorable to prosecution, the jury heard how Harris retrieved hot grease from a fryer and threw it on Ms. Palmer, causing third degree burns. Therefore, the evidence was sufficient to support Harris’s conviction.

Harris further complains that the State failed to negate self-defense. The Fifth Circuit in State v. Barnes, 98-436, p. 14 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1104, citing State v. Freeman, 427 So.2d 1161 (La.1983) found:

|7[I]n the non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary. Thus, since the subjective inquiry is required, it is the defendant who would be in a better position to know those subjective facts. In fairness to the state this court believes that it would be placing an onerous burden on the state to disprove subjective influences on the defendant as it relates to self-defense or defense of another espe-daily since the defendant has these facts at his disposal to produce to the court. [Citations omitted.]

This court may not over turn the jury’s evaluation of the credibility of Harris in her assertion of facts supporting her claim of self-defense. The jury in the instant case heard the testimony of Harris and Ms. Palmer, and obviously found Ms. Palmer to be more credible. State v. Mussall, supra. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Harris complains that the trial court erred in failing to instruct the jury that they had the right to disbelieve all or part of a witness’s testimony if the jury felt the witness lied on the stand.

La.C.Cr.P. art. 841 provides in part:

An irregularity of error cannot be availed of after verdict unless it was objected to at the time of occurrence.

Harris argues the inconsistencies in Ms. Palmer’s direct and cross examination testimony show she lied on the witness stand, and if the judge had instructed the jury to disbelieve all or part of a witness’s testimony, it could have made the difference between conviction and acquittal. However, defense counsel was present during the trial judge’s instructions to the jury and failed to object to Lthem at the time they were given. Therefore, Harris has failed to preserve this error for appellate review. La.C.Cr.P. art. 841. This assignment of error is without merit

ASSIGNMENT OF ERROR NUMBER 3

Harris complains that the sentence imposed by the trial court was excessive for a first time felony offender.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his or her case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the 19absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982).

La. R.S. 14:34.1 provides in part:

Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both

In State v. Abercrumbia, 412 So.2d 1027 (1982), the Supreme Court found the sentence of three years for a first time felony offender convicted of second degree battery to be excessive. The crime involved an altercation over money at a game of craps, when the defendant attacked the victim with a board, causing head, neck and arm injuries, together with a cut. The Court took into consideration that the crime was committed by a defendant with a steady work history, and no prior offenses. Additionally, the Court found there was no factual basis that there would be “undue risk” that the defendant would commit another crime if his sentence was suspended or that the defendant would be a poor probation risk.

In the instant case, Harris is a first time offender with no prior criminal record. She was gainfully employed at the time of the incident. Harris engaged in a pushing match with the victim. The victim, a woman co-employee, was on the telephone with the store manager about what to do, and the store manager advised the victim to tell Harris to go home. Harris took hot grease from a fryer, threw it on the victim, and fled the store. The victim suffered third degree burns on her left arm, side, back, and neck, which required skin grafts in an attempt to cure her. During the trial, the jury and therefore the trial judge observed the resulting scars to the victim. A reasonable person could expect and should know that hot grease from a fryer can cause severe, disabling injuries and permanent scarring of the |invictim. Hot oil might even cause death from infections related to the burn. The injury was to a co-worker. We, find, therefore, that Abercrumbia is distinguishable and that a sentence of two years, which is 40% of the maximum sentence of five years, for a first-time felony offender under the facts of this case does not constitute an abuse of discretion of the trial judge. The record reflects that the trial court considered sentencing guidelines and noted the particular circumstances of this case and this defendant. The sentence does not reflect the needless and purposeful imposition of pain, and the sentence is not grossly out of proportion to the severity of the crime. The sentence is not too severe in light of this defendant and the circumstances of her case. The defendant has shown no special circumstances to establish that the punishment is excessive in her case.

We therefore find no merit to this assignment.

CONCLUSION

Accordingly, Harris’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: J^LEON A. CANNIZZARO, JR., Judge. JjPER CURIAM

text:
    STATE of Louisiana v. Silvio DEUTOR.
    No. 2002-KA-1869.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.
    Opinion Denying Rehearing April 30, 2003.

      Harry F. Connick, District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

On an application for post conviction relief, the trial court granted the defendant, Silvio Deutor, a new appeal. Thus, this matter is before this Court for the second time.

The defendant was charged by bill of information on November 10, 1993, with two counts of attempted first-degree murder, violations of La. R.S. 14:27(30). Count one involved the attempted murder of Ashley Annunciation and count two involved the attempted murder of Anita Annunciation. At his arraignment, the defendant pled not guilty: Following a two day trial on August 9th and 10th of 1995, the jury found him not guilty as to count one regarding Ashley Annunciation and guilty as to count two of the lesser charge of attempted second degree murder concerning Anita Annunciation. In reading the jury’s verdict, however, the trial court stated, “as to count one” the verdict was “guilty of attempted second degree murder. And they have in parenthesis, regarding Anita, closed parenthesis.” The trial court continued, “as to count two,” the jury rendered a verdict of “not guilty, regarding again, and this is in parenthesis, Ashley.” Following a hearing pursuant to the habitual offender law, the defendant was adjudicated a third felony offender and sentenced to forty years at hard labor | awithout the benefit of parole, probation or suspension of sentence. Subsequently, the defendant appealed his conviction and sentence.

In the first appeal, this Court, in an unpublished opinion affirming the defendant’s conviction and sentence, erroneously stated that the defendant was found guilty of attempted “first” degree murder on the count involving Ashley Annunciation (count one) and acquitted on the count involving Anita Annunciation (count two). See State v. Deutor, 98-1114 (La.App. 4 Cir. 2/2/00) 761 So.2d 820, writ den. 787 So.2d 1007 (La.3/23/01). As previously stated, however, the jury verdict sheet indicates that the defendant was acquitted on the count involving Ashley Annunciation. Also the minute entry reveals that the jury convicted the defendant on count one for attempted second degree murder and acquitted him as to count two. Due to misconstruing the jury’s verdict, the trial court erroneously sentenced the defendant on count one instead of count two.

On March 4, 2002, the trial court granted the defendant’s pro se application for post conviction relief and appointed counsel to assist him. Furthermore, the trial court amended the minute entry of August 10, 1995, to reflect that the defendant was convicted on count two of the bill of information, which relates to Anita Annunciation, and not count one, which relates to Ashley Annunciation. Since the defendant’s appeal to this Court was premised incorrectly on the assumption that the defendant was convicted on count one, the trial court ordered that the defendant be granted a new appeal based upon the correct identification of count two as the basis of the conviction. The defendant now urges this appeal.

I ¿STATEMENT OF FACTS

During the early morning hours of September 27, 1993, Silvio Deutor, the defendant herein, entered the bedroom of his apartment located at 10204 Plainfield Street where his “common law” wife, Anita, and her four year old daughter, Ashley, were sleeping. He woke Anita and asked her to go outside with him. She refused and he began raising his voice. Ashley was awakened by the disturbance.

The two adults then went into the living room and argued. Anita returned to the bedroom, packed a suitcase, and she and Ashley went outside. Anita planned to call a taxicab to take them to her grandmother’s house. The defendant came outside and told them to come back into the house. When they went inside, the defendant resumed the argument. Anita, fearing the defendant, took Ashley into the bathroom, locking the door behind them. The defendant, in a rage, kicked the door open and then brandished a gun. He pushed them both onto the bed. He then pointed the gun at Ashley and shot her. Thereafter, the defendant repeatedly shot Anita, striking her six times. He stopped only after emptying his gun of its bullets. Despite this Anita was able to leave the apartment in an effort to find help. She called 911 from a pay phone and then returned to the apartment out of concern for Ashley whom she found lying lifelessly in the bedroom.

After New Orleans Police Officer Harry Parker was dispatched to the scene, he observed the two victims being transported by ambulance. The defendant was standing outside the apartment, which appeared to have been ransacked. The defendant told Officer Parker that someone had burglarized his residence. Officer Parker later learned, as a result of Anita informing medical personnel at the hospital, that the defendant was responsible for the shooting. Officer Parker then arrested the defendant. A search of the apartment s exterior produced a .38 caliber ]Kgun. A background check revealed that the defendant had prior convictions for possession of cocaine and for being a convicted felon in possession of a firearm.

ERRORS PATENT

In the defendant’s first appeal, this Court erred in finding no errors patent. A second review of the record for errors patent reveals one. The defendant was sentenced immediately after the trial court’s denial of his motion for a new trial. La.C.Cr.P. art. 878 mandates a twenty-four hour delay between the denial of such motions and the imposition of sentence, unless the defendant waives such delay. In this case, defense counsel acquiesced in the immediate imposition of sentence, thereby waiving the twenty-four hour waiting period. State v. Banks, 2000-0525 (La.App. 4 Cir. 10/17/01), 800 So.2d 28, writ den. 2001-3103 (La.9/30/02), 825 So.2d 1189.

ASSIGNMENTS OF ERROR

The defendant raises three assignments of error in his second appeal. In deference to the trial judge who granted this appeal, this Court will consider the defendant’s first and second assignments of error, which were not raised in the earlier appeal. His third assignment of error, regarding the trial court’s failure to grant a mistrial based on the inadmissibility of other crimes evidence, was raised in the first appeal. Having found no merit to the claim in the earlier appeal, this Court will not reconsider that issue.

|BIn the first assignment of error, the defendant argues that the trial court violated La.C.Cr.P. art. 831(4) and imper-missibly excluded him from the hearing to determine six-year old Ashley Annunciation’s competency to testify at trial.

The defendant is mistaken as to his exclusion from the competency hearing. The record clearly indicates that the defendant was present for the hearing. On page 65 of volume 4 of the record, the trial judge noted:

... This is for the record. The defendant is objecting to the fact that the witness is present now. And, for the record, we are in open court in this matter now. However, the jury has been removed. The defendant is, in fact, present in open court. The witness is also, of course, with us now. And she’s on the witness stand ... [Emphasis added.]

This assignment is without merit.

The defendant argues in his second assignment of error that the district court erred in finding six-year old Ashley Annunciation competent to testify.

La. C.E. art. 601 provides: “Every person of proper understanding is competent to be a witness except as otherwise provided by legislation.” Understanding, not age, is the test of whether any person shall be sworn as a witness. State v. Linson, 94-0061 (La.App. 1 Cir. 4/7/95), 654 So.2d 440; State v. Troulliet, 94-183 (La.App. 5 Cir. 9/14/94), 643 So.2d 1267. A key determination to be made is whether the witness is able to understand the difference between truth and falsehoods. State v. Troulliet, supra. Determination that a child is |7competent to testify as a witness is based not only on the child’s answers to questions testing his understanding but also in the child’s overall demeanor. State v. Bennett, 591 So.2d 1193 (La.App. 1 Cir.1991).

The trial court is vested with wide discretion in determining the competency of child witnesses. Its ruling as to competency is entitled to great weight on appeal, and will not be disturbed absent manifest abuse of discretion. State v. Foy, 439 So.2d 433 (La.1983); State v. Troulliet, supra.

Before allowing Ashley Annunciation to testify, the trial judge questioned the child out of the jury’s presence. Ashley correctly stated her age, date of birth, grade in school, school attended, and her teacher’s name. At the judge’s request, she correctly spelled and wrote her name. Although she hesitated, and denied knowing the difference between the truth and a lie, she ably remonstrated the judge when he purposely misidentified the color of her dress, telling him that if he said her pink dress was blue, “It would be a lie.” A child’s sometimes hesitant or unresponsive answers do not necessarily indicate incompetency. Instead, they may be part of an overall demeanor in the unfamiliar courtroom experience, which favorably reflects testimony only as to what is clear to the child. State v. Foy, supra. See also State v. Sharp, 338 So.2d 654 (La.1976), in which the defendant asserted that the murder victim’s eight-year-old son was not competent to testify. The Supreme Court stated that, reviewing the child’s testimony in its entirety, it was clear that the child had sufficient understanding to be a witness. Although the witness had stated that he did not know what an oath was or what would happen if he told a lie, “it was evident that he was simply unfamiliar with the courtroom experience.” Id. at 661.

|sIn this case, a review of Ashley’s testimony, as a whole, demonstrates that she had sufficient understanding to be deemed a competent witness. Although she had difficulty with abstract questions about telling the truth and lying, the victim was able to understand more specific questions applying those concepts. Additionally, the courtroom experience was apparently somewhat stressful for this young child, as reflected by her fear and inability to look at the defendant when requested to do so by the prosecutor. The trial judge, who had the benefit of observing the child’s demeanor, did not abuse his discretion by concluding that Ashley Annunciation was a competent witness. This assignment is without merit.

Accordingly, for the above reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

JjPER CURIAM

The defendant’s application for rehearing is denied.

In the application, the defendant asserts three assignments of error that were not raised in his two appeals. The first assignment, asserting a claim for ineffective assistance of counsel for failing to object to the erroneous jury instruction on attempted murder, may be addressed in an application for post conviction relief. The second claim regarding the unconstitutionality of the ten-year cleansing period under the habitual offender law is without merit. Finally, the third claim regarding the trial court’s error in misconstruing the jury’s verdict, which resulted in an error in sentencing, was raised in his earlier application for post conviction relief and was the basis for the granting of this new appeal. The errors raised in his second appeal were found to be without merit.

      . Count three of the bill of information charged the defendant with being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1. The case proceeded to trial on counts one and two of the bill of information only.

      . The jury's handwritten verdict sheets, which are in the record, do not contain the words "counl one” or "count two.” In handing the verdict sheets over to the trial judge, the two sheets apparently were transposed. Thus, the trial judge read the guilty verdict as to the attempted second degree murder of Anita Annunciation as count one and the not guilty verdict as to the attempted first degree murder of Ashley Annunciation as count two.

      . La.C.Cr.P. art. 831 provides in part:
      A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:

      (4) At all times during the trial when the court is determining and ruling on the admissibility of evidence.