author: | KOSTELKA, Judge Pro Tempore.

text:
    SUCCESSION OF Ronald R. PLUMMER.
    No. 37,243-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    John J. Mooney, Jr., Felix J. Bruyn-inckx, III, Monroe, for Appellants, Carl Plummer, Sherryl Plummer, Donald Plum-mer, Doris Plummer.
    Mary Alice Bryant, Monroe, for Appel-lees, Cynthia M. Thomas, Cheronda Thomas Minor.
    Before BROWN, PEATROSS and KOSTELKA (Pro Tempore), JJ.
   | KOSTELKA, Judge Pro Tempore.

In this disputed succession case, the brothers and sisters of the decedent, Ronald R. Plummer, appeal the judgment of the trial court holding that the document presented for probate is not a valid olo-graphic will. We affirm.

FACTS

In 1999, Ronald R. Plummer (“Mr. Plummer”) attempted to create an inter vivos trust for the management and distribution of his assets using a printed form with the caption “Revocable One-Party Living Trust” (hereinafter “Exhibit J — 1”). In one section of the trust instrument entitled “Schedule of Beneficiaries and Distributive Shares,” handwritten instructions designate the beneficiaries and direct the management and division of the trust property upon his death. Mr. Plummer was divorced with no children from the marriage. He named his brothers and sisters, Carl Plummer, Donald Plummer, Sheryl Plummer and Doris Plummer (“the appellants”), all of whom live in Adams County, Mississippi, as beneficiaries to the trust. The document is dated June 25, 1999 and signed “Ronald R. Plummer.” Mr. Plummer died on April 9, 2000 without having completed the inter vivos trust.

Besides his brothers and sisters, Mr. Plummer was survived by his ten-year-old daughter, Cheronda Leshay Thomas. On September 4, 2001, Cheronda’s mother, Cynthia Thomas (“Thomas”), filed a petition on behalf of her daughter to open the succession of Mr. Plummer and to have Mr. Plummer’s succession declared intestate. In response, the appellants filed a “Petition to Probate Olographic Testament” on January 28, 2002 alleging | ¡.that Mr. Plummer had a Last Will and Testament. The alleged will consisted of two unusually numbered pages, K105-3 and K105-3-1, annexed to the petition. The “will” was, in fact, the “Schedule of Beneficiaries and Distributive Shares” (hereinafter “Exhibit A”) from the inter vivos trust instrument.

After an evidentiary hearing and argument on May 10, 2002 and a second oral argument on August 1, 2002, the court issued its Ruling on September 4, 2002, holding that the document was not a valid olographic will. The court specifically found that the testamentary intent of the document was not “unmistakable,” and that the signature to the document had not been proven authentic.

The appellants filed a suspensive appeal. Prior to lodging the record, the court reporter notified the clerk of the trial court that an “accurate and efficient” transcript of the May 10, 2002 testimony could not be obtained from the tapes due to a malfunction in the recording equipment at the time of recordation. The trial court issued an order on November 20, 2002 to each counsel of record to submit a summary of the testimony of each witness no later than December 15, 2002. The court further ordered the parties to submit these summaries to the court’s chambers and not to file them into the record absent an order from the court. Subsequently, on December 13, 2002, the Summary of Testimony submitted to the court by the appellants was filed in the record. This document contains a summary |aof the testimony of all the witnesses who testified at the May 10, 2002 hearing.

DISCUSSION

The appellants argue that the trial court erred when it concluded that Exhibit A did not constitute a valid olographic will and that Mr. Plummer therefore died intestate. Specifically, they contend the trial court erred in its findings that Exhibit A did not set forth testamentary intent and that the burden of proof had not been met with respect to proving Mr. Plummer’s signature.

Appellants initially maintain that reversal is required because this Court is unable to conduct a proper review of the testimonial record, inasmuch as a complete transcript of the testimony is unavailable. They further contend that the missing testimony establishes testamentary intent.

When notified of the court reporter’s inability to provide a transcript of the testimony, the trial court ordered the parties to summarize the testimony of all trial witnesses for both sides. The record contains the appellants’ summarized version of the testimony, and the appellants filed no motion to remand the case for the purpose of retaking testimony. Cf. Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3rd Cir.1974).

La. C.C.P. art. 2161 states that an appeal shall not be dismissed because the trial record is missing or incomplete no matter who is responsible. The court may remand the case for retrial or correction of the Rrecord. Id. However, a record on appeal that is incomplete may be corrected even after the record is transmitted to the appellate court by the stipulation of the parties or by the trial or appellate court. La. C.C.P. art. 2132. If the testimony of the witnesses has not been transcribed, the appellant must request the other parties to join with him in a written and signed narrative of the facts, and if an agreement cannot be reached regarding the narrative, the judge shall make a written narrative of the facts, which shall be conclusive. La. C.C.P. art. 2131.

The trial judge in this instance did not follow the procedure set out in La. C.C.P. art. 2131. The judge should have required the parties to stipulate to a narrative of the facts of the case, and, if an agreement as to those facts could not be reached, the trial judge, as the fact-finder, should have set forth a narrative of the facts. In this instance, the trial court requested both parties to provide a “summary of the testimony” of this case. The appellants provided a narrative of the trial testimony that was filed in the record. Thomas submitted with her brief a narrative of the trial testimony.

Despite this error, we do not consider remand necessary in this instance. An appellate court has the discretion to defer the question as to whether the necessary documents are in the record, to be decided on the merits, and then dismiss the appeal, if the record is insufficient. Succession of Wintz, 111 La. 40, 35 So. 377 (La.1902).

The trial court’s conclusion that testamentary intent was lacking in Exhibit A was not based upon testimony of the witnesses, but on the language of the document itself. It is well settled that parol evidence cannot 15be used to establish testamentary intent. Succession of Faggard, 152 So.2d 627 (La.App. 2d Cir.1963).

Thus, under these circumstances, we conclude that no prejudice resulted from the loss of the recorded testimony for purposes of establishing testamentary intent. Although the trial court did not follow exactly the procedure for creating a narrative of the facts as specified by La. C.C.P. art. 2131, we conclude that the record is sufficient to determine the dispositive issues in this case, namely, the validity of the olographic will. Creech v. Creech, 29,-499 (La.App.2d Cir.05/07/97), 694 So.2d 589; Simmons v. Yelverton, 513 So.2d 504 (La.App. 2d Cir.1987).

There are two essential requirements for a valid will: the act must be in valid form and the clauses it contains, or the manner in which it is made must clearly establish that it is a disposition of last will. Hendry v. Succession of Helms, 557 So.2d 427 (La.App. 3d Cir.02/07/90), writ denied, 560 So.2d 8 (La.1990).

Formal Requisites of an Olographic Testament

An olographic testament is that which is entirely written, dated, and signed by the testator. The olographic testament is subject to no other form. La. C.C. art. 1575. The olographic testament must be proved by two credible witnesses testifying that the handwriting on the instrument is that of the testator. La. C.C.P. art. 2883. Succession of Calhoun, 28,233 (La.App.2d Cir.04/03/96), 674 So.2d 989. The jurisprudence interpreting La. |fiC.C.P. art. 2883 has held that the phrase “credible witness” includes individuals who are familiar with the testator’s handwriting, as well as handwriting experts. In re Succession of Jones, 356 So.2d 80, 82 (La.App. 1st Cir. 1978), writ denied, 357 So.2d 1168 (La. 1978). Thus, proof that an alleged olo-graphic will was entirely written, dated and signed in the testator’s handwriting is not limited to handwriting experts. A credible individual familiar with decedent’s handwriting is competent to serve as a credible witness pursuant to La. C.C.P. art. 2833. Succession of Lirette, 5 So.2d 197 (La.App. 1st Cir.1941).

The courts, over the years, have lessened the formalities of olographic wills, i.e., using slash dates instead of writing out the date, Succession of Boyd, 306 So.2d 687 (La.1975); writing the will in part pencil, part ink, Succession of Smart, 214 La. 63, 36 So.2d 639 (1948); and, in Oroszy v. Burkard, 158 So.2d 405 (La.App. 3d Cir.1963), the court held that an olographic will does not, in its entirety, have to all be written on the same date. Nevertheless, the basic formal requisites have remained in place, i.e., a valid olographic testament must be written, dated and signed in the handwriting of the testator.

In this case, the trial court concluded that Exhibit A does not survive as an olographic will because the “testamentary intent is not unmistakable,” citing Succession of Burke, 365 So.2d 858 (La.App. 4th Cir.1978). In Burke, supra, the court held that the trial court did not err in finding a valid will, where the testamentary intent was unmistakable in the words that the decedent wrote using a printed will form in which he filled in the blanks in |7his own handwriting, and the essential formalities of an olographic will were present.

Appellants argue that Succession of Burke, supra requires the court to disregard the printed form words in the document in construing the will. If the printed language is ignored, appellants argue, the type of printed form document used has no significance for purposes of testamentary intent, and hence the case sub judice is not distinguishable from Succession of Burke. Therefore, if there is testamentary intent present in confecting the document and such intent is demonstrated by the language written by the testator, they argue the document survives as a will.

While it is true that some cases have disregarded printed matter on a document submitted for probate as an olographic will and have upheld its validity, we conclude that the facts of those cases, which we briefly summarize below, are distinguishable from the instant case.

In Succession of Roth, 31 La. Ann. 315, 1879 WL 7097 (La.1879), the valid olo-graphic will was written on a blank page of an account book.

In Jones v. Kyle, 168 La. 728, 123 So. 306 (La.1929), the will was made on one of the letterheads of the testator used in his mercantile business. At the top was printed “J. W. Jones, General Merchandise.” Below this was printed a date line “Dunn, La.,_191_” Although the testator filled in the blanks on the date, he wrote in the entire date elsewhere in the document in his own handwriting.

lsIn Succession of Heinemann, 172 La. 1057, 136 So. 51(La.1931), the will was written on the letterhead of the New Orleans Baseball & Amusement Company, and the place where it was written, namely, “New Orleans, La.,” was in print, but all of the rest of it was indisputably in the handwriting of the testator. The court upheld the olographic will.

In In re Succession of Jones, supra, the original olographic will bore the date “Nov. 15, 1972.” The testator’s lawyer made a copy of the will, but only part of the date appeared on the copy. The attorney who held the copy, added the date “Nov. 15, 1972” at the same place where the date appeared on the original in his own handwriting. Nevertheless, the court upheld the validity of the copy for probate when the original was destroyed since the date on the original in the hand of the testator was proven.

By way of contrast, some cases have reached a different result when printed matter not in the handwriting of the testator was present in the document.

In Succession of Robertson, 21 So. 586 (La.1897), the court held that an olographic will was invalid where it was written on a printed heading, with the figures “189,” of the year in print. The testator supplied only the last digit to the date, which, when the printed matter is ignored, rendered the date nonexistent. Interestingly, the court noted that the printed words “New Orleans” on the letterhead gave rise to no issue in the case because the place where an olographic will is written is of no importance. The will was invalid because the date was not written by the testator.

|9In Succession of Angele, 546 So.2d 262 (La.App. 1st Cir.1989), writ denied, 550 So.2d 656 (La.1989), the court declared that a will typewritten and signed by the testator was not valid, rejecting the argument that the term “written” was broad enough to include “typewritten” wills.

In In re Succession of Aycock, 02-0701 (La.05/24/02), 819 So.2d 290 (La.2002), the supreme court reversed a Third Circuit ruling that upheld an olographic will written entirely in the hand of the testator, except it was dated by a notary. Finding that the will was invalid as to form, the court stated that the testament must be written, signed and dated in the handwriting of the testator.

It is clear from these cases that the presence of extraneous printed material such as a personal or business letterhead will not defeat the formal requisites of an olographic will provided that the testament itself is entirely written, dated and signed in the handwriting of the testator. Thus, our courts have ignored those printed words whose presence on the document is incidental. An exception has evolved with respect to partially printed dates. In those cases that have upheld the will in spite of the fact that a portion of the date was printed, the rule is that the handwritten portion of the date must be sufficient to be certain of the date when the printed numbers are ignored. Succession of Hein-emann, supra. In other words, the ignored numerals are not essential to a determination of the date.

| min this instance, however, the complete inter vivos trust instrument filled out by Mr. Plummer consists of several pages of printed words that are an essential part of the trust instrument. Exhibit A, the Schedule of Beneficiaries and Distributive Shares, consisting of pages K105-3 and K105-3-1, is inseparable from Exhibit J-l, consisting of pages K105-1A thorough D and K105-2, and all pages are essential to the confection of the trust document. Exhibit A was no doubt intended by Mr. Plummer to be part of the overall trust document. Unlike the cases using mere stationery or letterhead upon which a testament was written, we cannot ignore the printed words on the trust document because they are inextricably tied to and form an integral part of the entire document, thus negating the formal requirement that the will be entirely written in the hand of the testator. We, therefore, hold that the trial court correctly concluded that the document did not constitute a valid olographic will.

We distinguish the facts of the instant case from Succession of Burke, supra. The testator in that case clearly intended to create a will, albeit another type of will, using a statutory will form. In this instance, the testator was attempting to set up an inter vivos trust.

Those cases in our jurisprudence, with the possible exception of Succession of Burke, where a court has ignored words printed on a document in reaching the conclusion that the requirements of a valid olographic will have been met involved printed words not intended to be a part of the testament.

hi Testamentary Intent

The trial court recognized that Exhibit A was actually a part of the main document entitled a “Revocable One-Party Living Trust,” Exhibit J-l. This is plainly evidenced by the page numbering style connecting the two documents. The trial court concluded that when Exhibit A is taken into account with Exhibit J-l and Succession of Burke, supra, it cannot be said that the testamentary intent is unmistakable. We interpret the court to mean that when the trust instrument is considered as a whole, testamentary intent is lacking. The trial court distinguished the facts of Succession of Burke, supra, in which the decedent used a printed statutory will form instead of a “Revocable One-Party Living Trust” form as used in the case sub judice. The trial court concluded that the nature of the printed form casts doubt as to the testamentary intent of the document. We agree.

In Succession of Patterson, 188 La. 635, 177 So. 692, 694 (1937), our supreme court quoted approvingly from 28 Ruling Case Law, § 3, p. 59 as follows:

In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament. Article 1712. But ... Furthermore, the animus tes-tandi must exist when the instrument is executed or acknowledged, and the intent must apply to the particular instrument produced as a will. A paper is not established as a man’s will merely by proving that he intended to make a disposition of his property similar to or even identically the same as that contained in the paper. It must satisfactorily appear that he intended the very paper to be his will.... (Emphasis ours)

Here, the document submitted for probate contains no actual bequests. Virtually all expressions or words by Mr. Plum-mer regarding the Indisposition of his property involve directions for the management of the trust property by his brothers and sisters. He names them as the beneficiaries and to act on his behalf after he has died. He directs them to sell the home, but does not bequeath them the proceeds of the sale. He directs them to divide the contents of the home among themselves, to use the $10,000 life insurance policy for his funeral, and if the costs exceed the policy, then to use money from his checking/savings account. He directs them to take the remainder of the money and put it in a savings account along with the money from the sale of the home. He directs them to roll over the interest into the account. He grants the beneficiaries the power to manage his debts and whatever other finances he leaves upon his death. He then grants them “full usage of the money” in the account “to solve what problems they encounter.” Even with regard to his truck, he instructs his brothers and sisters to decide who will receive it. Finally, Mr. Plummer states that his daughter, Cheronda, will receive his retirement pension from the City of Monroe. It is not clear if this is a bequest.

Even if we were to conclude that the document is in valid form, being entirely written, dated and signed by the decedent, the document fails as a valid will because it lacks the necessary animus testandi. Despite the fact that the document contains expressions which reflect Mr. Plummer’s intention to direct the division of his property upon his death, there are few words, if any, signifying bequests. Accordingly, we conclude that the trial court was correct in concluding that the document did not evidence testamentary intent.

113Signature of the Testator

The trial court concluded that the legal proof required to authenticate Mr. Plum-mer’s signature had not been met. Because we have determined that the document presented for probate fails as an olographic testament both in form and substance, it is unnecessary to decide this issue.

CONCLUSION

Accordingly, the trial court did not err in concluding that the document presented for probate did not constitute a valid olo-graphic will. The judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Thomas included a summarized version of the testimony of the May 10, 2002 hearing and an unstamped copy of a letter to the trial judge with her brief. Because the brief and attachments were untimely filed, neither will be considered by this Court.

      . For reasons not stated in this record, the inter vivos trust was not established by Mr. Plummer. The other permissible form of trust in Louisiana, the testamentary trust, may be created only in one of the forms prescribed by the laws regulating donations mortis causa. La. R.S. 9:1751. Thus, the pivotal question in this case is whether Exhibit A meets the requirements of a donation mortis causa — a will.

      . Succession of Burke has not been cited as authority by this or any other appellate court in this state. The case is mentioned in the reporter’s comments to La. C.C. art. 1575.

      . Extrinsic evidence has been allowed to make certain an ambiguous date, but not to establish a nonexistent date. See, In re Succession of Aycock, supra.


source: Caselaw Access Project

author: | .BROWN, C.J.

license: Public Domain

text:
    Susan Carol Keenan McCONNICO, Plaintiff-Appellant, v. RED OAK TIMBER COMPANY, et al., Defendants-Appellees.
    No. 36,985-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2003.

      Booth, Lockard, Politz, Lesage, Hayter & Odom by Mark W. Odom, Shreveport, for Appellant.
    Bodenheimer, Jones, Szwak, et al by James P. Bodenheimer, Shreveport, for Appellee, Red Oak Timber Co.
    Bethard & Bethard by James G. Be-thard, Coushatta, R. Cody Mayo, Jr., Shreveport, for Appellee, Mrs. Ben T. Johnston, Jr.
    Before BROWN, CARAWAY, and DREW, JJ.
   | .BROWN, C.J.

In this timber trespass case, plaintiff, Susan Carol Keenan McConnico, appeals the amount of her damage and attorney fee award. Defendant, Red Oak Timber Company (“Red Oak”), answered, appealing the judgment against it under La.R.S. 3:4278.1, the “timber piracy” statute, and the denial of its indemnity claim against defendant, Mrs. Ben T. Johnston a/k/a Joel Doell Johnston, a co-owner of the land. We amend the judgment, and, as amended, affirm.

Facts

This case involves two tracts of land consisting of approximately 30 acres in rural Caddo Parish. Red Oak’s agent, Ron Parault, identified Mrs. Johnston as the owner of some land in Caddo Parish, but not the particular 20 and 10 acre tracts involved herein, by reviewing the tax rolls of the Caddo Parish Assessor. Parault contacted Mrs. Johnston, who told him of the 30 acres at issue and gave him the tax notices for those tracts. Each year Mrs. Johnston received tax notices and paid the taxes for this property. Red Oak’s representative asked Mrs. Johnston what the designation “et al” meant on the tax notices; she responded that her children had inherited their father’s interest at the time of his death.

Mrs. Johnston had never met and did not know Mrs. McConnico. Mrs. McCon-nico was, in fact, an undivided one-half owner of the property, and her interest was readily diseernable from the conveyance records. The [¡.trial court concluded that Red Oak made no effort to search the public records to ascertain the true owners of the property.

On February 9,1996, Mrs. Johnston sold al the timber on the two tracts to Red Oak for $4,000. The timber deed contract Mrs. Johnston signed with Red Oak guaranteed title to the timber and promised to indemnify Red Oak for any damages arising out of the cutting or removing of the timber so long as Red Oak was acting in good faith. Red Oak was given 15 months to harvest the timber. Red Oak harvested the timber in May of 1996.

In May of 1999, some three years after the timber had been cut, Mrs. McConnico received a call from a local realtor about purchasing her interest in the property. The realtor informed Mrs. McConnico that the property had been “clear cut” some years before. Mrs. McConnico, who was 76 years old and in bad health, asked her son to inspect the property, which he did, and this lawsuit followed.

The trial court concluded that for purposes of La.R.S. 3:4278.1, Red Oak acted in good faith although it should have known that Mrs. McConnico owned half the timber. Accordingly, pursuant to Section C of the statute, Red Oak was held liable to Mrs. McConnico for one-half of three times the fair market value ($3,429.41) of the timber harvested, or $5,144.11. The court also concluded that the filing of the lawsuit constituted a demand for payment under La.R.S. 3:4278.1(D). Red Oak’s failure to pay Mrs. McConnico within 30 days of demand made them liable for attorney fees in the amount of $2,523.98.

hThe court also concluded that Mrs. Johnston was unaware that Mrs. McConni-co was a co-owner of the property and was, therefore, in good faith when she contracted with Red Oak. The court required her to return only one-half of the $4,000 sale price to Red Oak.

Discussion

Liability Under La.R.S. 3:4.278.1

Red Oak alleges that the trial court erred when it applied La.R.S. 3:4278.1 to this case because it cut and removed the timber from the property in question “in accordance with specific terms of a legal contract or agreement” with Mrs. Johnston. The relevant portions of the statute provide the following:

§ 4278.1. Trees, cutting without consent; penalty
A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with speciñc terms of a legal contract or agreement. (Emphasis added).

The last phrase of La.R.S. 3:4278.1(A), “or in accordance with specific terms of a legal contract or agreement,” provides an escape from the imposition of treble damages. This paragraph is poorly drafted. It is not ambiguous, but rather contains patently bad grammar. This is illustrated by reading the highlighted operative language.

It shall be unlawful for any person to cut, ... any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with speciñc terms of a legal contract or agreement. (Emphasis added).

|4The meaning and intent of a law are determined by considering the law in its entirety and all other laws on the same subject matter; its interpretation should be consistent with its express terms and with the obvious intent of the legislature in enacting it. Stogner v. Stogner, 98-3044 (La.07/07/99), 739 So.2d 762. It is presumed that the intention of the legislative branch is to achieve a consistent body of law. In re Succession of Boyter, 99-0761 (La.01/07/00), 756 So.2d 1122; Stogner, supra.

The statute expressly states that it is unlawful to cut and remove timber without the consent of “the owner or legal possessor.” Thus, to give meaning to the final phrase, we must refer back to “the owner or legal possessor,” that is:

It shall be unlawful to cut ... trees ... on the land of another without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement [with the owner or legal possessor].

La.R.S. 3:4278.1 must be read in pari materia with its companion statute, La. R.S. 3:4278.2. R.S. 3:4278.2 provides that a co-owner of land may sell his or her undivided interest in the timber; however, the buyer cannot remove the timber without the consent of at least 80% of the ownership interest in the land. La.R.S. 3:4278.2(A) and (B). Failure to comply with the provisions of the statute constitutes prima facie evidence of intent to commit theft by the buyer. La.R.S. 3:4278.2(E). Accordingly, reference to “the owner or legal possessor” in La.R.S. 3:4278.1 must be construed to mean “at least 80% of the ownership interest in the land.”

lBWe hold that La.R.S. 3:4278.1(A) allows a timber buyer to escape the imposition of treble damages if the buyer cuts and removes timber with “the consent of’ or at “the direction of’ or with “a legal contract or agreement” with “the owner or legal possessor,” where “the owner” is defined, in co-ownership situations, as at least 80 percent of the ownership interest in the land.

La.R.S. 3:4278.1(0 further provides:
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees. (Emphasis added).

In general, a third party dealing with immovable property is charged with knowledge and notice of the existence and contents of a recorded instrument affecting the property. Ignorance of such is culpable. Powell v. Dorris, 35,510 (La.App.2d Cir.04/05/02), 814 So.2d 763; Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1st Cir.05/19/99), 740 So.2d 173. Thus, Red Oak is charged with knowledge of Mrs. McConnico’s half ownership interest.

In this instance, Red Oak obtained the consent of only Mrs. Johnston, who, along with her children, represented ownership of only one-half of the land. Therefore, Red Oak’s actions of cutting and removing the timber from the land without the consent of Mrs. McConnico, the owner of the other half, constituted a violation of La. R.S. 3:4278.1(A) and (C) and Red Oak is therefore liable for treble damages.

Red Oak’s reliance on the specific terms of a legal contract with less than 80% of the ownership does not exempt it from liability under La.R.S. 3:4278.1.

The Award of Attorney Fees under La. R.S. 8:4.278.1(D)

Red Oak next contends that the trial court erred in concluding that the plaintiff is entitled to attorney fees under Section D of La.R.S. 3:4278.1. That portion of the statute provides:

If a good faith violator of Section A fails to make payment under the requirements of this section within thirty days after notification and demand by the owner or legal possessor, the violator shall be responsible for the reasonable attorney’s fees of the owner or legal possessor.

|?The trial court found that the filing of the petition constituted notification and demand for purposes of the statute. Red Oak contends that the trial court erred, and it is not liable for attorney fees, because plaintiff never sent it a demand letter, and the petition does not allege that Red Oak was a good faith violator, but that its violation was willful and intentional.

The statute does not provide any formal requisites for notification and demand. We find no cases which hold that the fifing of a petition does not constitute a demand. For this reason, we believe the legislature intended to allow trial courts to decide this issue on a case-by-case basis. We note that Red Oak does not claim that it did not have notice of plaintiffs demand prior to the fifing of the petition. Rather, it focuses solely on the argument that it did not receive a demand letter and alternatively, that the petition, if considered a demand, did not allege that Red Oak was in good faith but rather acted willfully and intentionally. Such a rigid interpretation would surely thwart the purpose of the statute. Accordingly, we find no error in the trial court’s reasoning.

Damages

We turn now to plaintiffs appeal. Mrs. McConnico contends that the trial court erred in determining the “fair market value” of the timber under La.R.S. 3:4278.1. The trial court stated that the “best evidence of the fair market value of the timber” is “what it (the timber) sold for on the date it was cut,” but then awarded an amount based upon the net profit Red Oak earned from the harvested timber. Based upon the testimony of the 1president of Red Oak, the trial court determined that Red Oak made a net profit of $3,429.41.

The trial court used the net profit figure as the “fair market value” of the timber. Because Mrs. McConnico owned an undivided one-half interest in the property, the court awarded Mrs. McConnico one-half of three times the “fair market value” Qk x 3 x $3,429.41). Obviously, the trial court was confused. Red Oak paid Mrs. Johnston $4,000 for the trees, and according to its president, made a profit of $3,429.41 over the purchase price and other expenses. The trial court set the market value at $3,429.41, which is less than the $4,000 received by Mrs. Johnston. Red Oak’s agent, Mr. Parault, who bought the timber from Mrs. Johnston, testified that he had a price range for the purchase and that Mrs. Johnston took the first offer of $4,000. He was unsure of his highest limit but felt it would not have been greater than $10,000. The trial court’s determination that the fair market value was less than the lowest offer was clearly wrong. Under the trial court’s reasoning, Mrs. Johnston’s fair market share was $2,000 while Mrs. McConnico’s was only $1,714.50. The “net profit” analysis used by the trial court was legally incorrect, and we now review the case de novo. Scobee v. Brame, 98-564 (La.App. 3d Cir.10/28/98), 721 So.2d 977, unit denied, 98-2952 (La.01/29/99), 736 So.2d 833.

Prior to 1974, the measure of damages for the unlawful cutting of timber was as follows: if the trespass was reckless and willful, the trespasser 19was deemed guilty of moral bad faith and hable for the “converted” value as opposed to “stumpage” of the timber without allowance or deduction for costs and expenses. Where the trespasser believed himself to be owner of the timber but should have known otherwise, either from information available to him or other ascertainable facts which would have placed a reasonably prudent man on notice, he was held to be in legal bad faith and the actual expenses incurred by him in converting the timber to lumber were deducted in assessing damages. In cases where the trespasser was in good faith (believed the timber belonged to him and had no valid reasons to suppose otherwise) he was held hable only for stumpage value. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 (1951). Stumpage value was defined as the value of timber when first cut. Fontenot v. Bailey, 2 La.App. 568, 1925 WL 3711 (1st Cir.1925).

The obvious implication from this layered damage assessment was that the most culpable defendant, i.e., the willful and intentional trespasser (one in moral bad faith), was taxed with the greatest measure of damages, whereas the least culpable trespasser, i.e., the defendant in good faith with no valid reason to suppose the timber did not belong to him, was taxed with the lowest measure of damages, namely the stumpage value of the timber.

The enactment of the treble damages statute (formerly R.S. 3:4278.1) in 1974 manifested “an intent by the legislature to impose a |1(lsevere penalty (treble damages) upon those who disregard the property rights of timber owners.” See Smith v. Myrick, 412 So.2d 677 (La.App. 2d Cir.1982). In each version of the statute, the legislature has retained and codified the categories of trespasser culpability, i.e., moral bad faith, legal bad faith (good faith but should have known), and good faith. However, the basis of damages for each category of culpability is a single measure, the “fair market value.” Hence, in the current version of the statute: Section B penalizes the willful and intentional trespasser (moral bad faith) with damages equal to three times the fair market value of the trees cut, plus attorney fees; Section C penalizes the good faith trespasser who should have known his actions were without the consent of the owner (legal bad faith) with damages equal to three times the fair market value of the trees cut, but without attorney fees unless notice is given and disregarded. Finally, the good faith trespasser (who has no reason to suppose the timber does not belong to him) is not liable for treble damages under the statute. He is hable only for the fair market value. See, e.g., Morgan v. Fuller, 441 So.2d 290 (La.App. 2d Cir.1983), writs denied, 443 So.2d 596, 599 (La.1983), superseded by statute as stated in Saucier v. Bunkie Wood Products Co., 99-1072 (La.App. 3d Cir.12/15/99), 759 So.2d 794.

Although the legislature retained the jurisprudential degrees of culpability in a trespass case, it replaced the former measure of damages for the moral bad faith trespasser and the legal bad faith trespasser, i.e., the converted value of the timber with “fair market value.” In Cook v. Mixon, 29,491 (La.App.2d Cir.08/22/97), 700 So.2d 1264, writ denied, 97-2443 In (La.01/09/98), 705 So.2d 1101, this court stated that “[i]n the context of lesion and other settings, fair market value is consistently defined as the amount a willing and informed buyer would pay a willing and informed seller for a particular piece of property, with neither being under any compulsion to buy or sell.” This court finds that “fair market value” refers to the amount a purchaser would pay for standing timber to be cut and removed.

In this instance, plaintiff and defendant presented expert testimony as to the value and volume of timber harvested from the 30 acres. Although both experts examined the same 30 acres and looked at the same stumps, the disparity between the volume of the timber harvested in plaintiffs estimate and defendant’s estimate is great. Plaintiffs expert valued the timber at $46,436.80, while defendant’s expert valued the timber at only $7,966.80. The disparity was primarily with respect to the estimated volumes of pine sawtimber and pine pulpwood. Plaintiffs expert estimated ten times more pine sawtimber, (91,330 bd. ft. at $400/mbf), than defendant’s expert, (9,254 bd. ft. at $375/mbf), and three times more pine pulpwood than defendant’s expert. Interestingly, each expert’s estimated volumes of hardwood sawtimber and pulpwood were almost identical. Prior to its offer to Mrs. Johnston, Red Oak’s agent, Hamp Bryan, cruised the timber and estimated twice as much pine sawtim-ber than did Red Oak’s expert (18,596 bd. ft. to 9,254 bd. ft).

| i?Red Oak actually received $21,909.67 for the timber at the mill. Plaintiffs expert commented on other tickets reflecting that Red Oak also sold timber during this time period without designating what particular tract it came from.

Each expert visited the site four to five years after the cut and counted each stump. Plaintiff’s expert valued the trees cut at $1,547.89 per acre, while defendant’s expert valued them at $265.56 per acre. The great difference is difficult to reconcile. We note that Mr. Bryan cruised the property before it was cut and described the timber as “scrappy.” We believe that $500 per acre or $15,000 appropriately represents the fair market value.

Section C of La.R.S. 8:4278.1 states that the good faith trespasser who should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut.

Based upon this figure, Mrs. McConni-co’s damages are one-half of three times the fair market value, which is (/6)(3)($15,-000) = $22,500. Therefore, the judgment of the trial court is amended, increasing the damage award to $22,500.

|iaAttorney Fees

In addition to treble damages, the timber piracy statute provides for additional recovery for the reasonable costs of litigation. We have found that under the statute Mrs. McConnico is entitled to an attorney’s fee award. Plaintiff was awarded $2,528.98 in attorney fees. We cannot say that the trial court was clearly wrong or manifestly in error. We will increase the attorney fee award for this appeal, however, by $1,000 and award a total of $3,523.98.

Warranty

Red Oak alleges that the trial court erred when it did not require Mrs. Johnston to indemnify it for breach of warranty of title. The contract provides:

(6) Seller warrants that Seller is unaware of any reason or restriction that would inhibit Buyer from cutting and/or removing the timber described herein.... Seller also hereby indemnifies and hold buyer harmless with regard to any fines, penalties and damages that Buyer may be liable for as a result of cutting and/or removing said timber if Buyer was acting in good faith, ...

Red Oak also argues that La.C.C. art. 2500 provides it with a warranty against eviction. A buyer who avails himself of the warranty against eviction may recover from the seller the price he paid, the value of any fruits he had to return to the third person who evicted him, and also other damages sustained because of the eviction. La.C.C. art. 2603. We note that the warranty against eviction is implied in every sale unless modified by the agreement. La.C.C. art. 2503.

1 uUnder La.R.S. 3:4278.2, a co-owner can sell her -undivided interest in the timber; however, the buyer cannot remove the timber until he gets the consent of 80% of the ownership. By using language guaranteeing against “any outstanding heirs (co-owners) not listed as sellers,” Red Oak’s warranty appears to be an attempt to avoid non-compliance with the 80% rule. We further note that Red Oak was aware of Mrs. Johnston’s children’s interest, yet did not seek their consent to the timber deed.

The testimony indicates that Mrs. Johnston was unaware that she, along with her children, were not the sole owners of the property. On the other hand, Red Oak should have known because of the public record, that one-half of the timber belonged to Mrs. McConnico. Red Oak cannot exculpate itself from its own negligence and constructive knowledge by relying on the warranty provision in the contract. Further, there is nothing that indicates that Red Oak proceeded upon the assumption that if Mrs. Johnston’s title failed, it would be reimbursed for its expenses in cutting someone else’s timber. See Martel v. Hunt, 195 La. 701, 197 So. 402 (1940), a case involving an oil and gas lease and the court’s limitation upon the warranty based upon the parties’ consent and expectations.

We affirm the trial court’s ruling that Mrs. Johnston must return $2,000 to Red Oak on the basis of her accounting obligation under La.C.C. art. 798 but reject Red Oak’s warranty claim.

Conclusion

For the reasons stated herein above, we amend and increase the damages awarded by the trial court to $22,500, and the attorney fees 11 Rawarded are increased to $3,523.98. In all other respects the judgment is affirmed at Red Oak’s costs.

AMENDED, and AS AMENDED, AFFIRMED.

      . Mrs. McConnico testified that it "was his (Mr. Ben T. Johnston's) father who had sold it (the half interest in the property) to my dad...." Actually, her father obtained an undivided half interest from Frank Soloman in 1957. She also said that Mr. Ben T. Johnston contacted her once about "you're either going to have to buy me out or I'll buy you out,” but "we never did get together."

      . The First Circuit recently held that the procedures in La.R.S. 3:4278.2 for selling co-owned timber without prior notice that the timber is being cruised and offered for sale until after 80 percent of the co-owners have confected a buy-sell agreement violated a non-consenting co-owner’s right to procedural due process, rendering the statute unconstitutional. See Allain v. Martco Partnership, 01-0614 (La.App. 1st Cir.04/17/02), 828 So.2d 587. The writ application has been docketed as an appeal. Allain v. Martco Partnership, 02-1796 (La.10/04/02), 826 So.2d 1132. We note our disagreement with the First Circuit.
      Our opinion relies heavily on the strong public policy reflected in La.R.S. 3:4278.2 which describes Red Oak’s failure to identify and consult all co-owners as presumptive timber theft. The statute thus alters any implication of Civil Code Article 798 suggesting that a single co-owner may produce a fruit or product of the immovable and owe only an accounting to her co-owner. Red Oak may not argue that it contracted with an owner of the property under Section A of La.R.S. 3:4278.1 because "owner” must be understood in light of the 80% rule of La.R.S. 3:4278.2 and not Article 798. The co-owner’s dominion over the timber prior to the passage of La.R.S. 3:4278.2 was not absolute but subject to the rights of the other co-owners under Articles 798 and 803. Moreover, the procedural operation of the 80% rule can always be trumped by the 20% minority by their superi- or right to invoke a partition where the disputed value of their property will be judicially protected. Thus, the statute does not appear unconstitutional to this court. In any event, the strong legislative policy of the statute is now followed in our ruling in this case.

      . As previously stated, Mrs. Johnston was required to return $2,000 to Red Oak.

      . The timber industry has undergone changes since these jurisprudential rules were established. In the early industry, the timber cutter was frequently the saw mill operator, who converted the timber into lumber, and therefore into something more valuable, that is, lumber. Thus, the stumpage value was distinguishable from the converted value. The timber industry, however, like most industries in this country, has become specialized. The timber buyers and cutters generally do not mill the timber, but sell it to the mills. Complete access to mills is available for all tracts of land.

      . Hardwood has less value than pine.

      . We caution that using the amount the trespasser reportedly received for the stolen timber does not necessarily reflect fair market value. Suppose, for example, as argued by Justice Hawthorne in his dissent in Terry v. T.S. Butler, 240 La. 398, 123 So.2d 865 (1960), that the timber was virgin merchantable timber of a size suitable for lumber (and commanding the highest price), but the trespasser cut the stolen timber and sold it as firewood at the fair market value of firewood. In this case, however, the evidence does not support such a conclusion.


author: b GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Cedric HOLLOWAY, Appellant.
    No. 37,021-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2003.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Edward M. Brossette, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   b GASKINS, J.

The defendant, Cedric Holloway, was tried before a jury on a charge of possession of cocaine. He was convicted of attempted possession of cocaine, adjudicated a habitual offender, and sentenced to 20 years at hard labor, without benefit of probation, parole or suspension of sentence. The defendant’s conviction and adjudication as a habitual offender are affirmed; his sentence is affirmed as amended.

FACTS

At about 9 p.m. on January 14, 2000, members of the Shreveport Police Department’s Street Level Interdiction Unit (“SLIU”) conducted a sweep of the 900 block of Pickett Street. This action was in response to citizens’ complaints about drug activity in the area. The SLIU did not have information about specific individuals.

First, Agents Jerry O’Glee and Jerry Silva were dropped off by another agent and took up positions in an alleyway behind a row of houses. Their purpose was to cover any exits or routes of escape of individuals that would run from the police once they knew that the police were in the area. Next, Agents Derrick Brown and Jason Brook entered the area in a semi-marked police vehicle. This was the “wing” car, going in with the purpose of having people run from it, towards the waiting officers.

When the defendant and another man saw the car with Agents Brown and Brook, they immediately went into the alley between two houses, out of the sight of the agents in the car. From their places in the alleyway, Agents LO’Glee and Silva observed the defendant and the other male, running or walking around the back of a house towards them. The two men were about six feet apart. When the defendant was approximately 15 to 20 yards from Agents Silva and O’Glee, Agent Silva turned around to check the rear to make sure no one was coming at the officers from behind. Agent O’Glee continued to watch the defendant. At that point, Agent O’Glee saw the defendant toss a plastic baggie towards the back corner of one of the houses. Agents O’Glee and Silva then made their presence known and detained the men.

When Agents Brown and Brook joined them, Agent O’Glee told Agent Brown about the defendant tossing something. Agent Brown went to the area indicated by O’Glee to search for the item thrown down by the defendant. The ground was moist from beer and urine, and the area was Uttered with empty beer bottles and empty plastic narcotics baggies. Although the lighting was not good, the agents testified that it was Ut weU enough to see without a flashüght, except for the immediate area directly underneath the house. At the corner brick post of one house, Agent Brown found a baggie containing two rocks that appeared to be crack cocaine. The baggie was relatively clean, indicating to Agent Brown that it had been on the ground only a short time. The defendant was placed under arrest, advised of his Miranda rights, and escorted to the police car. The other male was searched; since nothing illegal was found on him, he was allowed to leave.

| .¡After the defendant was placed in the police car, Agents Brown and Brook interviewed him. Agent Brown testified that the defendant made a post-Miranda statement, saying that he wanted to see if he could get help from the officers. Agent Brown told the defendant that if the defendant told him what he knew, “I’ll see what I can do for you.” At that point, the defendant stated that he had purchased the cocaine earher that day from a residence on East 64th Street in Shreveport. The agents asked the defendant to show them the residence to determine if the information was vahd. The defendant then recanted his statement and stated that he didn’t want to help. The interview was terminated, and the defendant was taken to the city jail.

The defendant was originaly charged by bill of information with possession of cocaine with the intent to distribute. In an amended bill of information, he was charged with second offense possession of a Schedule II, controlled dangerous substance, in violation of La. R.S. 40:967(C) and 40:982. FinaUy, in another amended biU of information, he was charged with possession of cocaine.

The defendant filed a multitude of pro se motions. They included a “motion to quash/dismiss,” four “motionfs] to suppress evidence,” two “motion[s] to quash the arrest” and a “motion for criminal records and pending charges of all state’s witnesses.” Most of these motions argued that the pohce actions in the sweep that had resulted in the defendant’s arrest were illegal.

On December 7, 2000, an evidentiary hearing was held on the defendant’s pro se motions. The defendant, instead of his counsel, cross-examined,! the state’s witnesses, and argued the motions to the judge. Other than to state that the defendant had no witnesses and that he had shared the discovery received from the state with the defendant, the defendant’s counsel remained silent during the hearing. The defendant’s motions were denied.

On January 8, 2001, a free and voluntary hearing was held at the state’s request regarding the defendant’s postarrest statement to Agents Brown and Brook. At this hearing, the defendant’s counsel cross-examined the witnesses and argued the matter to the trial court. Agent Brown testified on behalf of the state. He stated that after the defendant had been arrested for possession of cocaine, he told Agents Brown and Brook that he had bought the cocaine from a house on East 64th Street. He also testified that the defendant was not under any fear, duress or intimidation at the time of the interview. The trial court found the defendant’s postarrest statement to be free and voluntary.

On January 9, 2001, the defendant was tried before a jury, which found him guilty of the responsive verdict of attempted possession of cocaine. On January 12, 2001, the defendant filed motions for new trial and for postverdict judgment of acquittal.

On January 16, 2001, the state filed a habitual offender bill of information, alleging the defendant to be a fourth felony offender. The defendant pled not guilty.

| ¡/The defendant filed additional pro se motions. These included a “motion for mistrial,” and four motions to quash the habitual offender bill.

On February 21, 2002, the trial court held a multiple offender hearing. The defendant was present, represented by new appointed counsel. First, the trial court considered and denied the defendant’s motions. The state called Sgt. Owen McDonnell of the Caddo Parish Sheriffs Office, who was accepted as an expert in fingerprint comparison and analysis. Sgt. McDonnell fingerprinted the defendant prior to testifying. He testified that the fingerprints on the bills of information from previous convictions were the same as the defendant’s fingerprints. The trial court took the matter under advisement.

On April 16, 2002, the trial court adjudicated the defendant to be a fourth felony offender. In the same hearing, the defendant was sentenced to a hard labor sentence of 20 years, without benefit of probation, parole or suspension of sentence, with credit for time served. The defendant was also ordered to pay all costs, and in lieu thereof to serve 10 days in the parish jail. This sentence, in lieu of costs, was to run concurrent with the hard labor sentence.

On April 18, 2002, the defendant filed a motion to reconsider the sentence, which was denied by the trial court. On May 13, 2002, the | ^defendant filed a pro se notice of intent to appeal. On May 14, 2002, the defendant’s trial counsel filed a motion for out-of-time appeal, which was granted by the trial court.

SUFFICIENCY OF EVIDENCE FOR ATTEMPTED COCAINE POSSESSION

In this assignment of error, the defendant argues that the evidence presented by the state was insufficient to support his conviction for attempted possession of cocaine. In particular, he points to the poor lighting and the presence of another person when the item was allegedly discarded by the defendant.

In pertinent part, La. R.S. 40:967(C) provides:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.
La. R.S. 14:27(A) provides:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

When issues of both sufficiency of the evidence and trial errors are raised on appeal, the reviewing court should first address the sufficiency of the evidence claim. State v. Hearold, 603 So.2d 731 (La.1992); State v. Sharp, 35,714 (La.App.2d Cir.2/27/02), 810 So.2d 1179.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a suffieiency-ofjeyidenee7 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. State v. Sharp, supra.

The Jackson standard is applicable in eases 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. Sharp, supra; State v. Mackens, 35,350 (La.App.2d Cir.12/28/01), 803 So.2d 454, writ denied, 2002-0413 (La.1/24/03), 836 So.2d 37.

When circumstantial evidence forms the basis for conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when viewing the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Mackens, supra. This is not a separate test from Jackson v. \ ¿Virginia. State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488.

The state proved, beyond a reasonable doubt, that the defendant had the specific intent to possess cocaine, and that the defendant did an act tending directly toward possessing cocaine. La. R.S. 14:27 and La. R.S. 40:967(C). The state adduced eyewitness testimony that the defendant threw down a baggie that was determined to contain cocaine. Additionally, the defendant admitted to the arresting officers that the cocaine was his. The defendant put on evidence as to the littered nature of the area in which the baggie was found. But the testifying officers explained that the baggie found was relatively clean and not muddy compared to everything else in that immediate area. The officers also testified that the lighting was adequate for observing the defendant’s actions and that the person with the defendant did not throw the object in question.

Viewing the evidence in the light most favorable to the prosecution, any rational jury could have concluded that the state established the essential elements of the crime of attempted possession of cocaine beyond a reasonable doubt.

This assignment is without merit.

MOTION TO SUPPRESS

The defendant argues the trial court should have suppressed the defendant’s postarrest statement as involuntary, that his arrest was illegal, and that all evidence resulting from that illegal arrest should have been quashed.

IftAt the outset, we note the unusual procedural posture pertaining to this assignment of error. The only motions to suppress were pro se filings by the defendant, not his defense counsel. The defendant’s pro se motions to suppress argued that his arrest was illegal and consequently the evidence flowing from that arrest should be excluded. At the hearing on the motions to suppress, the defendant’s statement to the police was mentioned in passing. The issue of the voluntariness of the defendant’s statement to the police was raised at a free and voluntary hearing initiated by the state and held the day before the trial. Since the defendant made no assignment of error as to the trial court’s ruling at the free and voluntary hearing, the state argues that this court should deem the issue of the admissibility of his statement to the police as waived. However, out of an abundance of caution and in the interest of justice, we will treat the issue as properly raised and consider it.

Statement to police

The defendant contends that his statement was involuntary because it was made in response to inducements by the officers.

In determining whether a ruling on a motion to suppress is correct, an appellate court is not limited to evidence adduced at the hearing on the motion but also may consider pertinent evidence given at trial. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993). At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977);1(1 State v. Rogers, 476 So.2d 942 (La.App. 2d Cir.1985). Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(D). The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Walker, 28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

A confession obtained by direct or implied promises, however slight, or by the exertion of any improper influence must be considered involuntary and inadmissible. State v. Morvant, 384 So.2d 765 (La.1980). A remark by the police telling the defendant that the officer will “help” or “do what he can or things will go easier” will not negate the voluntary nature of the confession. State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000 1427 (La.5/11/01), 791 So.2d 1288; State v. English, 582 So.2d 1358 (La.App. 2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991). Further, informing a defendant that the district attorney will be advised of any cooperation is insufficient to overcome the free and voluntary nature of a confession. State v. Vernon, 385 So.2d 200 (La.1980); State v. Jackson, 523 So.2d 251 (La.App. 2d Cir.1988), writ denied, 530 So.2d 565 (La.1988).

The admissibility of a confession is in the first instance a question for the trial judge. His conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless not supported by the evidence. The ^appellate court places great weight upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra.

A review of the record shows that the defendant was properly advised of his Miranda rights when he was arrested. After he was placed in the police car, the defendant sought assistance from Agents Brown and Brook. Agent Brown indicated that he would see what he could do for the defendant if he told them what he knew. The defendant then informed them where he purchased the cocaine. Like the trial court, we find that the officer’s remark did not negate the voluntary nature of the defendant’s admission. We distinguish the facts of this case from a situation like that presented in State v. Hankerson, 604 So.2d 1330 (La.App. 1st Cir.1992), where the police actually made a promise to áeek reduction in a sentence in return for the defendant’s statement.

Illegal arrest

The defendant also contends that the trial court erred because it failed to grant his pro se motions to suppress and hold that his detention and arrest were illegal.

The Fourth Amendment of the United States Constitution and Article 1, Section 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. The police may not, therefore, make a warrantless arrest of a citizen without probable cause that the citizen has |^engaged in criminal conduct. State v. Tucker, 626 So.2d 707 (La.1993), opinion reaffirmed and reinstated on rehearing by 626 So.2d 720 (La.1993); State v. Dobard, 2001-2629 (La.6/21/02), 824 So.2d 1127. Additionally, while the police may briefly detain and interrogate an individual in a public place, they may make such an investigatory stop only if it is based upon reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal activity. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Tucker, 626 So.2d at 710; Dobard, 824 So.2d at 1129-1130.

In order to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. Consequently, property abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a subsequent prosecution. If, however, property is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference, then the property may be lawfully seized and used in a resulting prosecution. Tucker, 626 So.2d at 710; Dobard, 824 So.2d at 1130.

Even when an actual stop has not been effectuated, the Louisiana constitution still mandates a finding that an individual has been seized if an actual stop is “imminent.” An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712.

|13In the present case, the record indicates that the SLIU conducted an operation in the 900 block of Pickett Street, targeting the area-not the defendant. Agents O’Glee and Silva went into the area first. Next, Agents Brown and Brook drove down the street in a vehicle easily identifiable as a police car. The record does not indicate that Agents Brown and Brook chased the defendant. Agent Brown testified that as they drove down the street, they saw the defendant and another male walk to the back of a house. The defendant had walked out of sight before Agent Brown got out of his vehicle.

Agent O’Glee testified that as the defendant rounded the corner of the house, he saw the defendant toss away a clear plastic baggie. Agent O’Glee further testified that in his experience, it appeared very likely to him that the defendant was disposing of drugs. It was at that point that the police had a reasonable suspicion to detain the defendant and the other person for possible criminal activity. Once Agent Brown found the baggie containing suspected cocaine, the officers had probable cause to arrest the defendant.

As in Tucker, supra, the evidence does not show that the defendant was subject to an imminent stop before he tossed away the cocaine. It is clear that when Agents Brown and Brook drove down the street, they did not see the defendant engaged in any criminal activity.. Instead, the defendant walked to the back of the house as the police car was driving down the street. Nothing in this action by the police forced or required the defendant to move to the back of the house. Also, the record does not show that there would have been an imminent stop of the defendant by either li4Agent O’Glee or Silva before the defendant abandoned the cocaine in Agent O’Glee’s view.

This assignment of error is without merit.

HABITUAL OFFENDER ADJUDICATION

The defendant contends that the evidence was insufficient to sustain his adjudication as a habitual offender. In particular, he asserts that the state’s introduction of only the minute entries in his prior convictions faded to prove that he was advised of his Boykin rights in those cases.

In its habitual offender bill of information, the state listed four felony convictions occurring between 1990 and 1997. At the subsequent adjudication hearing, the state introduced certified copies of the minutes of the guilty pleas and the fingerprinted bills of information on three of those prior convictions. The state then had the defendant fingerprinted at the hearing, and through the testimony of a fingerprint expert, established that the defendant was the defendant in these previous convictions:

(1) On 11/30/90, the defendant pled guilty to public intimidation, and was sentenced to time served in # 150,487 in the First Judicial District Court;
(2) On 3/13/95, the defendant pled guilty to possession of Schedule II CDS and was sentenced to two years at hard labor with credit for time served in # 172,500 in the First Judicial District Court; the original charge was possession of Schedule II CDS (cocaine) with intent to distribute;
(3) On 3/18/97, the defendant pled guilty to possession of Schedule II CDS (cocaine) and was sentenced to five years at hard labor with credit for time served in # 182,647 in the First Judicial District Court.

The minutes entries of these cases state that the defendant - was informed of his constitutional rights as per Boykin v. Alabama.

|15To obtain a multiple offender conviction, the state is required to establish both the prior felony convictions and that the defendant is the same person convicted of the offenses. Various methods are available to prove that the defendant on trial is the same person convicted of each prior felony offense, such as the testimony of witnesses, expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race and date of birth. State v. Jackson, 31,433 (La.App.2d Cir.1/20/99), 726 So.2d 1061, unit denied, 99-2250 (La.12/17/99), 751 So.2d 876. The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. State v. Curtis, 338 So.2d 662 (La.1976); State v. Jackson, supra.

If the defendant denies the allegations of the bill of information, the burden is on the state to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the state meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the state. The state will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his | fright to confront his accusers. If the state introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the state to determine whether the state has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. State v. Shelton, 621 So.2d 769 (La.1993); State v. Robinson, 34,383 (La. App.2d Cir.2/28/01), 780 So.2d 1213, writ denied, 2001-1313 (La.3/28/02), 812 So.2d 642.

The trial court determined that the state carried its burden and presented sufficient information to show that the defendant was the man convicted of the prior felonies. The record in this case shows that the defendant was represented by counsel at each of the pleas. The minutes of each of the guilty pleas shows that the defendant was advised of his Boykin rights prior to the plea. The defendant chose to rest on the state’s ability or inability to prove its case and offered no affirmative statement or documents to contradict the reasonable inferences from the evidence. We find that the trial court was not clearly wrong in its factual decision and thus, these convictions are valid for habitual offender purposes.

This assignment is without merit.

EXCESSIVE SENTENCE

In three assignments of error, the defendant complains of his sentence. As previously noted, the trial court imposed a sentence of 20 years at hard labor, which was the minimum mandatory sentence for him l17under the habitual offender law. Because the defendant raised only the issue of excessiveness in his motion to reconsider, our review as to his sentence is limited to whether the sentence imposed is constitutionally excessive. La.C.Cr.P. art. 881.1.

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. State v. Johnson, supra. To do so, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson, 709 So.2d at 676. Additionally, in determining whether the defendant has met his burden, the trial judge must consider that the goals of the habitual offender law are to deter and punish recidivism. Johnson, 709 So.2d at 676-677. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the habitual offender law should occur only in rare instances. Johnson, 709 So.2d at 677.

JjgLa. R.S. 15:529.1 A(l)(c)(i), as it read on the date of the defendant’s offense, subjected the defendant to a sentence of “a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life_” La. R.S. 40:967(0(2) provides a sentence for possession of cocaine of not more than five years. The attempt statute, La. R.S. 14:27(D)(3), provides that the sentence “shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” Accordingly, the minimum sentence the defendant could receive, as a fourth felony offender, was the 20-year sentence imposed by the trial court.

The defendant has failed to clearly and convincingly show that he is exceptional and that the court should have departed from the statutory minimum sentence. Accordingly, the imposed minimum sentence is presumed to be constitutional.

These assignments of error lack merit.

PAROLE ELIGIBILITY

The trial court sentenced the defendant to 20 years at hard labor, without benefit of probation, parole or suspension of sentence. The defendant and the state agree that the trial court erred in imposing sentence without benefit of parole. La. R.S. 15:529.1(G) provides that sentences imposed under the habitual offender provisions are to be imposed “without benefit of probation or suspension of sentence.” As such, it was not within the trial court’s authority to impose the sentence without benefit of parole, |1fland the sentence is not legally correct. See State v. Miller, 96-2040 (La.App. 1st Cir.11/7/97), 703 So.2d 698, writ denied, 98-0039 (La.5/15/98), 719 So.2d 459.

Accordingly, we amend the defendant’s sentence to remove the restriction on parole eligibility.

CONCLUSION

The defendant’s conviction for attempted possession of cocaine and his adjudication as a fourth offender are affirmed. His sentence is amended to allow parole eligibility.

CONVICTION AND ADJUDICATION AFFIRMED; SENTENCED AFFIRMED AS AMENDED.

      . This officer’s name is spelled a variety of ways throughout the record, including "Og-ley” and "Oglee.” However, the agent signed an exhibit “O'Glee” and we consequently utilize that spelling.

      . In various testimony, the defendant’s movement was referred to as running, walking, a fast walk, or a brisk jog.

      . In June 2001, the defendant filed a pro se application for a writ of mandamus with this court, seeking to require the trial court to rule on a motion for trial and suppression transcripts and to enforce an order requiring production of documents. We denied the writ application. State v. Holloway, 35,422 (La.App.2d Cir.7/3/01). In October 2001, another pro se writ application to this court was not considered due to failure to comply with the URCA. State v. Holloway, 35,766 (La.App.2d Cir. 10/22/01).

      . This counsel sought to withdraw on the basis that the defendant had lodged a complaint against him with the state bar association; the motion was denied.

      . Although no evidence of the advisement of Miranda rights was adduced at the free and voluntary hearing, Agent Brown testified at trial that he advised the defendant of his rights after he was placed under arrest and before he was escorted to the police car. As previously noted, we may consider evidence presented at trial. State v. Daniels, supra. (We also note that Agent Brown testified at the suppression hearing that the defendant was advised of his rights.)

      . We note that in one of his assignments of error, the defendant argued that the trial court erred because there was no meaningful discussion of La.C.Cr.P. art. 894.1 factors during the sentencing. Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C.Cr.P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714; State v. Owens, 32,642 (La.App.2d Cir. 10/27/99), 743 So.2d 890, writ denied, 2000-0438 (La.9/29/00), 769 So.2d 553.


author: I,CARAWAY, J. hBROWN, C.J.,

text:
    Sallie S. WOOD, Plaintiff-Appellant, v. FLEXCARE & INSURANCE SYSTEMS, INC., Defendant-Appellee.
    No. 37,118-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2003.
    Crawford & Anzelmo, by Brian E. Crawford, Jefferson B. Joyce, for Appellant.
    Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, III, Karen L. Hayes, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   I,CARAWAY, J.

The defendant’s delay in payment of a health insurance claim caused the filing of this suit. Although, before trial, the defendant paid the claim, plaintiff continued to seek the statutory attorney’s fee penalty for defendant’s prior refusal to pay. The trial court determined that the defendant’s defense against payment was reasonable and declined an award of attorney’s fees. Plaintiff appeals, and finding no error in the trial court’s ruling, we affirm.

Facts

St. Francis Medical Center, Inc. formerly employed Sallie S. Wood and furnished medical benefits coverage under its “Flex-Care Medical Plan” or “MedFlex” employee benefits cafeteria plan. The plan booklet identified the following as an excluded service, which is the source of the controversy in this case:

No benefits under the FlexCare Plans shall be provided for any of the foEow-ing:
(aa) Breast reduction of less than 500 grams per breast.

Wood consulted Dr. Timothy Mickel, a plastic surgeon, concerning breast reduction surgery. After a pre-certification process for the operation, the benefits estimate under St. Francis’ plan would provide coverage for $3,840 of the $5,300 surgical fee for the procedure. The estimate also stated the following:

• annual [$500.00] deductible had been satisfied.
• in order for this procedure to be covered, a minimum of 500 grams of tissue wiE have to be removed from each breast.
!?• this estimate serves as a verification of coverage as of this date and not a guarantee of payment. AE claims are subject to eligibiEty at the time service is rendered.

On October 3, 2000, Wood underwent büateral breast reduction surgery and abdominal liposuction. In addition to the plastic surgeon’s $5,300 fee for the breast surgery, other fees charged in connection with the in-patient surgery included $1,500 plastic surgeon’s fee for Eposuction, $1,566 for anesthesia services, and $14,881 for hospital charges.

Two months after the surgery, the administrator of St. Francis’ FlexCare plan informed Wood that the medical expenses were ineligible for consideration because the post-operative pathology reports disclosed that Dr. Mickel had only removed 381 grams of breast tissue from the right breast and 454 grams of breast tissue from the left breast. In response, Wood filed this action aEeging that St. Francis’ denial of her claim was arbitrary and capricious and constituted bad faith. Wood prayed for penalties and attorney’s fees under La. R.S. 22:657(A).

FoEowing removal of the suit to federal court and a subsequent remand, St. Francis answered the suit. St. Francis argued that Wood was not entitled to benefits because when less than 500 grams of tissue was removed from each breast, the procedure fell within a clearly defined plan exclusion. St. Francis moved for summary judgment in the trial court. When its motion was denied, it sought a supervisory writ of review from this court. This court then denied St. Francis’ request, noting that the pre-certification process for the operation might provide a basis for plaintiffs recovery.

| oBefore trial, St. Francis voluntarEy paid $6,604.80, the amount the plan would have paid if Wood’s surgery was covered. Also, at the time of trial, Wood apparently waived her claim to statutory penalties. Accordingly, the only issue for trial was whether or not Wood was entitled to attorney’s fees. In written reasons, the trial court denied Wood’s claim for attorney’s fees and dismissed the suit. It is from this judgment that Wood appeals.

Discussion

Wood argues that the trial court erred when it denied her claim for attorney’s fees under La. R.S. 22:657(A), which provides as follows:

A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court....

(Emphasis added.) Appellant also argues that FlexCare’s exclusion of benefits for breast reduction surgery within the 500-gram parameter constitutes an unreasonable limitation on a physician’s judgment as to the medical necessity for such a procedure and is therefore against public policy.

| ¿Testifying on behalf of Wood, Dr. Mickel reported that Wood suffered from chronic neck, back and shoulder pain. The breast reduction surgery therefore served a medically necessary purpose. Dr. Mick-el also testified that the 500-gram requirement, which is a typical exclusion in health plans, is arbitrary and not based upon rational medical reasoning.

While we need not decide whether this provision of the health insurance policy is against public policy, a review of our law on that subject is instructive for a determination of whether St. Francis was unreasonable in seeking to enforce its contract. Our Civil Code provides that “persons may not by their juridical acts derogate from laws enacted for the protection of the public interest.” La. C.C. art. 11. Specifically dealing with conventional obligations, Article 1968 provides:

The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.

In Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1976), the court determined that a forfeiture provision in an employee retirement plan was against public policy. The employee lost his job because of an economic downturn and would have lost certain retirement benefits as well because of the forfeiture provision. While the court could not find any direct expression of legislative will concerning the retirement contract, it found a violation of public policy as reflected in the prohibition against wage forfeitures in our employment law. The court’s process therefore, for determining public policy, was to look to the legislature for a direct statute or for statutory provisions in closely related settings.

|Jn this case, Wood cites no statute where the legislature has shown a policy toward the regulation of health insurance contracts in a manner which would prevent this minimum 500-gram requirement in the contract. Wood offers no jurisprudence reflecting the recognition of public policy against such contract. Therefore, under the statutory test for the attorney’s fee claim at issue, there is nothing that would put a reasonable and prudent businessman on guard that this FlexCare plan exclusion is against public policy.

St. Francis’ opposition to the payment of Wood’s claim rested on a clear contractual provision. The pre-certification procedure gave further notice to Wood that the exclusion might be applicable. Wood did not assert that she was misled. Therefore, St. Francis’ attempt to enforce compliance with the parties’ contract was reasonable under the circumstances of this case, and the trial court’s finding of no violation under the statute for the award of attorney’s fees is affirmed.

Costs of appeal are assessed to appellant.

AFFIRMED.

hBROWN, C.J.,

dissenting,

When the trial court denied defendant’s summary judgment motion, defendant applied for a supervisory writ of review to this court. On February 14, 2002, this court denied the writ application and stated, “If the physician was in good faith in making his estimation of the amount to be removed, the insurance should cover it.” On July 15, 2002, on the date trial was to begin, defendant finally paid the amount provided for in the plan. I question the majority’s use of the phrase “voluntarily paid.” However, the treating physician was clearly in good faith and defendant had neither just nor reasonable grounds not to pay within 30 days from the date of its writ denial.

I respectfully dissent.