source: Caselaw Access Project

author: [,MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Paul S. HAMBY v. CRESCENT FORD TRUCK SALES, INC. d/b/a Crescent City Ford.
    No. 02-CA-803.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Jeffry L. Sanford, Baton Rouge, LA, Dave Motter, Metairie, LA, for Appellant.
    Joseph M. Messina, Lynn C. Gilreath, New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   [,MARION F. EDWARDS, Judge.

Paul S. Hamby (Hamby) appeals a verdict and subsequent judgment of the trial court dismissing his action against Crescent Ford Truck Sales Inc. (Crescent) and Harco National Insurance Company (Har-co). For the following reasons, we affirm.

On June 16, 1996, Hamby was driving a Ford truck owned by his employer, Paradise Pools & Spas Inc. As he approached a traffic light on West Esplanade Avenue, he attempted to apply his brakes. Hamby alleged that the brakes failed and that he was forced to run off the roadway in order to avoid striking another vehicle. As a result of the accident, Hamby alleged that he suffered serious injury to his back.

The matter proceeded to trial before a jury over a period of three days. After presentation of all of the evidence, the jury returned a verdict in favor of Crescent and Harco, finding that Crescent was not negligent. This verdict was made the judgment of the trial court.

|sOn appeal, Hamby urges that the trial court erred in admitting two pieces of evidence. The first document to which Ham-by objected was an accident report, titled “Employers Report of Occupational Injury or Disease.” The second was a Request For Authorization for MRI.

In the MRI request form, dated July 19, 1996, there are boxes containing the designations “automobile related,” “work related,” and “other.” On the document admitted into evidence, the “no” box is checked in the “automobile related” column and the “yes” box is marked in the “work related” column. Mr. Hamby urges that he did not fill out this form. The employer’s injury report form shows that Hamby injured his lower back on June 24,1996, while at work shoveling mud and clay. Again, Mr. Ham-by did not complete this report.

Hamby urges that the documents were extremely prejudicial and had the effect of impeaching his testimony at trial. He asserts that had the forms not been admitted, the trial would have resulted in a different outcome.

The record reflects that Hamby and Crescent each filed a Motion in Limine, and that following a hearing prior to trial, the court rendered judgment, denying Hamby’s Motion to exclude the above documents.

Hamby appealed the final judgment adopting the jury verdict. The jury interrogatories in the record indicate that the only question reached by the jury was whether or not Crescent was negligent in connection with the accident, to which the jury responded in the negative. Hamby does not appeal this negligence determination of the jury, but only the admission of the above evidence and its alleged impact on the verdict.

The Employer’s Report of Occupational Injury or Disease was inadmissible under La. C.E. 803(6), which provides that records kept in the course of regularly conducted business activity are an exception to the hearsay rule. Under that rule:

|4A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

In the present case, the employee of Paradise Pools who testified regarding the report admitted that she did not know where she had obtained the information contained in it, but did know it was not Mr. Hamby. Defendants thus failed to prove someone with knowledge made the report. Further, we find that this accident report does not constitute the kind of record contemplated by the rule. The court abused its discretion in permitting its admission at trial.

Additionally the MRI request form was inadmissible. The exception under C.E. art. 803(4) states:

Statements for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.

Official comments to the law state that the declarant need not be the patient for this paragraph to apply. However, there must be sufficient indications from the circumstances that the declarant possessed firsthand knowledge of that of which he spoke. Dr. Rogers, Mr. Hamby’s treating physician, testified that he did not know the origin of the statement and did not attribute it to Mr. Hamby. No evidence was |sadmitted to prove who filled out the document, and from whom the information was obtained. We find the MRI request form was also inadmissible.

However, admission of the documents was harmless error for the following reasons.

The duty-risk analysis is employed on a case by case basis. Plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of the harm was within the scope of the protection afforded by the duty breached.... Generally, the outset determination in the duty-risk analysis is cause-in-fact. The inquiry to be made is whether the accident would have occurred but for the defendant’s alleged substandard conduct

The record reflects that the documents in question concern the genesis of the injuries suffered by Hamby. The Employer’s Report and the Request for Authorization, while (apparently) affecting Hamby’s credibility, have no impact on the threshold issue of negligence. By finding that Crescent was not negligent, the jury apparently determined that no conduct on the part of Crescent contributed to Hamby’s injury, i.e., Crescent’s conduct was not a cause-in-fact of the accident. The jury thus did not reach the question of damages.

Because the finding of liability is not challenged on appeal, we do not reach the element of damages and the impact of the documents on that portion of Hamby’s case. Put another way, admission of the documents had no bearing on the causal relationship of Crescent with the accident. Considering the foregoing, wé find no manifest error and we affirm the judgment of the trial court. Costs are taxed to appellant Mr. Hamby.

AFFIRMED.

CANNELLA, J., CONCURS IN THE RESULT.

      . Daye v. General Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654, 659, citations omitted.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    Kim MICELI v. Barbara Olivard Riso, Wife of/and Salvadore RISO, and State Farm Insurance Company.
    No. 02-CA-810.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.
    Writ Denied May 2, 2003.

      Christopher T. Grace, Jr., Metairie, LA, for Plaintiff-Appellant, Kim Miceli.
    Warren G. Deagano, Jr., New Orleans, LA, for Defendants-Appellees, Barbara Olivard Riso, Wife of/and Salvadore Riso.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

This is a suit by a son against his mother and stepfather, seeking recovery of $200,000 in currency belonging to him that he was storing in their safe. The son appeals the trial court’s rejection of his claims. We affirm.

On May 10, 1996 Kim Miceli filed suit against Barbara Olivard Riso, wife of/and Salvadore “Sam” Riso. In his petition he alleged that since approximately 1985 he had left certain valuables with the defendants for safekeeping in their Metairie home. The valuables included a large amount of U.S. currency. In September 1995, the plaintiff discovered that most of the currency was missing. According to the plaintiff, he had $210,000, but he found only $10,000 in his bank bag in' the defendants’ safe. None of the defendants’ money kept in the safe was missing, nor was anything else in their house missing.

The plaintiff alleged that the defendants were acting as depositaries of his property and, as such, they were obligated to preserve his property and to return it | Hto him on demand. He asserted that the defendants failed to use due diligence in preserving the deposit placed with them for safekeeping. He alleged they were negligent in preserving his property, failed to take proper safeguards to prevent access to the safe by third parties, and failed to use reasonable means to safeguard his property. He stated that his requests to the defendants for return of the missing $200,000.00 have been refused.

Alternatively, the plaintiff alleged that defendant Barbara Riso intentionally removed his cash from her safe and converted it to her own use, using it for the benefit of the community of acquets and gains between her and her husband. The plaintiff alleged that the defendants and their insurer were liable to him for loss of his property, loss of use of his property, and for mental anguish and emotional distress he suffered over the loss of his property.

The defendants denied they either stole or conspired to steal from the plaintiff. They admitted that he had asked to put money in their safe, but alleged they did not see the amount he put in or whether it was all money. They asserted that he had a key to the house and access to the safe. They stated that Mrs. Riso paged the plaintiff one day and that he came over, went into the safe, and claimed to her that $200,000 was in the safe.

According to the defendants’ answer, on the occasion the plaintiff allegedly discovered there was money missing, Mrs. Riso had gone into the safe and noticed that the bag in which he allegedly kept money looked empty, whereupon she called the plaintiff and asked him to come over to look at the contents. They alleged he immediately claimed that she had taken his money. Regarding the plaintiffs claim that they are liable as depositaries, the defendants pleaded lack of consideration as an affirmative defense.

I/The defendants then assumed the position of plaintiffs in reconvention, seeking recovery of their attorneys’ fees and costs for defending in these proceedings. They asserted that the plaintiff maliciously made slanderous accusations against them, causing them great mental and emotional distress. They sought damages for embarrassment, humiliation, and loss of reputation due to the malicious and slanderous remarks and actions by the plaintiff, as well as damages for the intentional infliction of emotional distress due to the plaintiffs continuous threats and assaults.

The case underwent two days of trial without a jury and the court took it under advisement. Subsequently the court rendered judgment in favor of the defendants and against the plaintiff, dismissing his claims with prejudice. In addition, the judgment dismissed the defendants’ recon-ventional demand. In written reasons for judgment, the court stated, in pertinent part:

The Court finds Mr. Miceli to be a credible witness and believes that his money was stolen. The Court further believes that it is a possibility that Ms. Riso played a part in the disappearance of the money. However, Mr. Miceli has the burden of proving by a preponderance of the evidence that Ms. Riso took the money. A mere possibility that Ms. Riso was involved in the disappearance of the money is not sufficient.

The plaintiffs motion for new trial was denied. In denying the motion for new trial, the trial court stated:

There was little, if any, direct proof of anything or direct evidence of anything.
There was a lot of circumstantial-type evidence, a lot of innuendo and so on. I believe that Mr. Miceli had some money in there. Whether it was exactly $200,000, you know, I don’t know, but I thought he was a credible witness.
But, beyond that, we’re faced with a situation where a number of people had been in the house. We had workmen who were in the house. We had other 1 Rindividuals who had been in the house. The sister of the plaintiff had been in the house.
There was no proof that the money had been taken by Mrs. Riso.

Miceli has appealed. The Risos did not appeal the dismissal of their reconventional demand.

On appeal the plaintiff contends the district court erred in finding he did not meet his burden of proving by a preponderance of the evidence that Mrs. Riso took the money, because the burden of proof rests on Mrs. Riso to exonerate herself from liability by proving as an affirmative defense that she acted as a prudent administrator in safeguarding the deposited property.

FACTS

At trial the parties’ testimony tracked the factual allegations in their pleadings. Kim Miceli testified he first began keeping currency in the safe at his parents’ home between 1982 and 1984. The money was in bundles of $10,000, in $50 and $100 denominations, all the bundles stacked together with rubber bands around the entire stack. He kept the stack inside a cloth bank bag, which was placed inside a large manila envelope.

He began keeping a log of his withdrawals from the cash cache in 1990, at his mother’s suggestion. The last entry on the log shows a balance of $210,000 on March 26, 1992. He testified he did not remove any money from the safe again until September 1995.

The plaintiff testified he had once had a key to his mother’s house, but he returned the key to her in 1988 or 1989. He said he had no key to her house in 1995. He also said he did not know where the combination to the safe was kept, nor did he ever open the safe, nor did he ever see anyone but his mother open the safe.

Uln July 1995, while the plaintiff was shopping at Home Depot with Mr. Riso, Mrs. Riso paged the plaintiff. When he phoned her in response to the page, she told him, “Your money looks funny in the safe.” He and Mr. Riso left immediately and drove to the Risos’ home. When they arrived the plaintiff took out the money and took the stack apart. He did not count the contents of each bundle, but all the bundles were there. He told the defendants that it looked like it was all there.

On September 18, 1995 the plaintiff was at work when his mother called and asked if he had taken any of his money out of her safe. He told her no and she said, “The bag looks funny.” He didn’t think anything of it because of what had happened in July, but he told her to go check the bag. Shortly afterward she came back and told him, “Your money is gone, your money is gone.”

He immediately drove to her house. When he arrived she told him there was still $10,000 left in the bag. She told him, “Oh, the maid must have took the money,” and began telling him stories about the maid. She also said, “They must know you’re good with money, because they left you $10,000. You can turn that $10,000 back into $200,000.” She also told him, “I think I can get your money back. I don’t know about all of it, but Mama thinks she can get some of your money back.”

The plaintiff began to suspect his mother had taken the money. He noted that both his sister and his mother had thousands of dollars of currency in the safe, as well as jewelry, but none of their money or jewelry was missing. When his sister arrived he asked her to check and see if her money was still there; she did and said it was all there. He and Mr. Riso went outside and the plaintiff told Mr. Riso he thought his mother took the money.

The plaintiff checked the house on the day of the incident, but found nothing to indicate anyone could have broken into the house. He hired a private 17investigator, who questioned everyone who had access to the Risos’ home during that period. Everyone was fingerprinted and the safe and the bank bag also were dusted for prints.

The plaintiff denied the defense’s accusation that he took his own money.

The plaintiff stated he did not keep a list of his transactions with the money in the safe until he started making withdrawals. He made deposits to his bag in the safe from 10 to 100 times before he started withdrawing money from it. He said his mother saw him deposit money in there, but he never asked her to initial when he made a deposit, because regardless of how she treated him she was still his mother.

The plaintiff admitted that he did not call the police about the missing money and denied that his parents and his sister wanted to call the police.

The plaintiffs half-sister, Lisa Hunt, testified that in September 1995 she had a key to her mother’s house and also had the combination for the safe. She kept some papers and several thousand dollars in currency in the safe. She had never opened the safe herself and had to get her mother to open it; although she once tried to open it, she was unable to do so. Hunt had never seen anyone except her mother open it. Her mother left a sheet of paper containing the combination at her house so Hunt could have access to it.

Hunt testified she had seen no evidence of her mother taking any money from her brother. She had seen nothing in her parents’ house or other purchases to make her think they had a large sum of money. According to Hunt, she and her parents wanted to call the police about the missing money, but her brother refused to do so.

Latonya Joseph, who worked as a housekeeper for the defendants in 1995, testified she was not aware the defendants had a safe in the den closet and she did |snot know where the combination for the safe was. She was aware there was an investigation about some missing money and she cooperated with it. As far as she knew, she was never accused of taking any money-

Barbara Riso, when asked whether her son had a large sum of money in the safe in her den closet, testified, “I saw a package.” She said she never asked him how much money was in the package and she never saw him count the money. She did not recall paging her son in July 1995 while he was shopping at Home Depot. She “very vaguely” recalled her husband and her son coming to her home in response to a call from her about the bag in the safe looking funny. She said she had “never, ever seen any money... .Package. Package.” She denied ever discussing with her son how much money was in the bag.

She testified she has opened the safe for the plaintiff many times, but denied ever seeing him put money in it or seeing him open the safe himself. She admitted she had not seen anyone other than herself open the safe successfully.

She recalled calling the plaintiff at his shop on the morning of September 18, 1995 regarding the purchase of some certificates of deposit. She had gone into the safe because her husband was going to the bank that morning. She noticed the bag-looked flat.

When she told her son, he started “hollering and screaming,” which she claimed made her so nervous she was unable to recall what else was said. She testified that when she noticed it was flat, she took it out of the safe and shook it on the floor. A $10,000 pack fell out. She knew how much it was because there was a band around it that had “$10,000” written on it. She left it there in front of the safe and went immediately to the phone and called her son.

Mrs. Riso denied she told her son, “The bag looks funny” and stated that she told him, “The bag looks flat.” She denied that he then told her to see how much | nmoney was in the bag and denied telling him over the phone, “There’s only $10,000 left,” because he hung up the phone. She said the plaintiff came over immediately, looked in the bag himself, and told her there was $200,000 missing. She denied that he had told her two months previously that there was $210,000 in the bag.

She was unable to recall how much money she had in the safe at that time. She estimated her daughter had approximately $11,000 in the safe, which she knew it was “just stuck in an envelope, exposed.”

Mrs. Riso testified she had $8,000 to $10,000 worth of jewelry in the house, but it was not in the safe. Her money and jewelry, as well as Hunt’s money, were still in the safe and house after the plaintiffs money was taken.

She thought that her son had a key to her house in September 1995. She was sure he had the combination to the safe, because she gave it to him long ago.

On cross examination she admitted that during her deposition she had invoked the Fifth Amendment repeatedly, but stated it was on advice of her lawyer. She said that she did not understand what it meant at the time. She admitted that at the time of trial she was aware of what invoking the Fifth Amendment privilege means, but reiterated she did not know it at the time of her deposition.

She did not recall telling her son that maybe the person who took the money left $10,000 in the bag because they knew he was smart about money and could take it and turn it into $200,000. Asked about her alleged statement to the plaintiff that “Mama can get back some of your money,” she says what she told him was that she would give him “Lancelot,” a rental property that she and her husband owned located on Lancelot Street. She meant he could draw rent from it. She testified that if she said “Mama can get back some of your money,” that was pertained to the property on Lancelot Street.

ImMrs. Riso testified that she and her husband wanted the police to be called, but her son did not want the police called. She denied taking any money or belongings of her son out of the safe.

Salvadore “Sam” Riso testified he never opened the safe in question because he had another safe in the house in which he kept papers and some cash. He thought both his son and his daughter had keys to the house. The maid did not have a key and he had no reason to suspect her of stealing anything. He said he was never around when the plaintiff or Hunt went into the safe. He himself tried to open it once, but was unable to get it open.

He described the incident at Home Depot his wife paged the plaintiff while they were shopping. As they drove back home, the plaintiff told him he had $210,000 in the safe. Mr. Riso never saw the money himself, but was going by what the plaintiff told him.

Mr. Riso said when they got home the plaintiff went to the safe in the closet. Mr. Riso denied seeing the plaintiff counting money, but said the plaintiff came out and told him his money was there.

Mr. Riso testified it did not look like anyone had broken into the house. He stated that no one has ever admitted to him taking the money. Mr. Riso denied that he ever took any money or anything belonging to his son. He also stated that, to his knowledge, neither did his wife.

According to Mr. Riso, they all wanted to call the police, but the plaintiff didn’t want the police called. He wanted to get a private investigator.

Jeffrey Deris testified he was the private investigator hired by Kim Miceli to investigate the money missing from the Risos’ safe. The plaintiff originally did not indicate any suspicions he had regarding the culprit.

InDeris met the plaintiff at the residence on September 20 and they conducted a crime scene investigation. Deris hired the Jefferson Parish Sheriffs Office crime lab technician, Merril Boling, to assist in the investigation.

Deris testified they found no signs of forced entry or signs of ransacking or searching by burglars. Mrs. Riso opened the safe for them; inside it he saw numerous papers, some cash, some diamonds, and some other items. There was $19,000 that belonged to Mrs. Riso; $11,000 that belonged to her daughter, Lisa; and $10,000 in a Whitney bag that belonged to Mr. Miceli.

Deris took some items from the safe to be fingerprinted by Boling and also the sheet of paper that had the combination to the safe. He interviewed Kim Miceli; Barbara Riso; Sam Riso; Lisa Hunt; Lisa’s daughter, Jennifer Hunt; several construction workers; and Latonya Henderson, the maid.

Deris said his interview with the plaintiff involved the plaintiff discussing the investigation from start to finish and how long ago he put money in the safe. He showed Deris a log of money he kept in safe.

Deris testified that in his initial contact on September 20, 1995, Mrs. Riso handed Boling a white piece of paper containing a combination to the safe. She stated several times, “I can’t believe Nookie took the money.” On September 25 he again interviewed Mrs. Riso and asked her several questions. He asked what was contained in the safe and she went over it, mentioning various items, important papers, and specific amounts of money. She told him that all of her currency and jewelry were still present after the incident of September 18th. She did an inventory and none of her belongings or her daughter’s cash was missing.

| ^Regarding the safe combination, Deris noted that in the first interview he asked who had the combination. She stated that she, her husband, and her daughter, Lisa, all have it. Later she indicated that her maid also had the combination to the safe briefly, but subsequently she stated that the maid never had the combination to the safe. She stated that the combination was in her purse and that half the tíme it was hanging out, with the sheet of paper partially protruding.

According to Deris, Mrs. Riso showed great hostility toward her son, making statements that she wanted to punch him in the face and claw his face, that she hated him; that throughout their life, they had many conflicts and they could not get along.

She told him she was present in the residence when there was construction going on and that the workers did' not have access to that area. She also said she knew everybody that was inside the residence.

On October 26, 1995 Deris spoke to Mrs. Riso a third time. She then indicated she had lied to him and changed her story again. She said she did not have the combination to the safe in her purse, but that she had left the combination on top of some shoeboxes next to the safe in the closet, where it had remained for three months. She indicated the reason she lied was because she thought her son would be angry with her for being so careless.

Deris said that Mrs. Riso indicated he should look at her family members for suspects.

Deris admitted that he had not fingerprinted the plaintiffs log sheet of deposits and withdrawals from the currency stash because it was in the plaintiffs possession and the plaintiff did not want to turn it over to Deris. Deris admitted that, had he been investigating the scene for the police, he would not have allowed the plaintiff to keep the log paper.

hoDeris admitted he did not mention in his report the information about the plaintiffs former access to the house via key. He also admitted that he did not take the plaintiffs fingerprints for comparison to any of the evidence, nor did he question the plaintiffs statement that he did not know the combination to the safe because Mr. Riso had said his daughter had a key to the house, but did not indicate that anyone else had a key.

Merril Boling, commander of the latent fingerprint division of the Jefferson Parish Sheriffs Office, testified that at Deris’ request he processed the Riso residence for fingerprints. He also conducted a general investigation of the scene, but saw no sign of forced entry on the house or on either of the safes in the house.

Boling noted that he was surprised when he arrived to find nothing out of place, nothing torn off the walls, nothing ransacked, which he said is very unusual for burglary crime scene. Inside the safe everything was well-wrapped, but he was told there was a considerable sum of money in different stacks and jewelry still in the safe. He saw some of the jewelry and removed some of the money so it could be process for the possibility of fingerprints, as well as the money bands from some of the money to process also.

He also had two slides of prints lifted from the face of the safe, but there were no useable prints. The only identifiable prints were from the paper with the safe combination on it, which were Mrs. Riso’s prints. They found no useable prints on the outside of the safe.

He testified that, even with gloves, he would expect to find smeared prints on the safe because of the physical activity a robber would have had to do to punch the safe, mechanically force it open, or try to get the safe off the ground. He said people commonly leave prints when they take something that is not theirs.

| uAnnie Parker, a former housekeeper for the Risos, testified that while she was working for them, she saw the plaintiff come into the house when the defendants were not there. She said, that when the plaintiff came to the house to pick up his mail, he entered through the front door. Parker assumed the door was locked, because Mrs. Riso would tell her before she left that she was going to lock the front door and that Parker should exit by the side door.

There was testimony regarding a loan of $15,000 that the plaintiff had made to the defendants some years earlier for a new car. Mrs. Riso admitted that when her husband gave her the money to give to the plaintiff to repay the loan, she didn’t give it directly to him, but just placed it on a shelf in the safe. She admitted she allowed her husband to believe that she had given it directly to the plaintiff.

ANALYSIS

As noted above, the trial court concluded that the plaintiff was a credible witness and that his money was stolen. The court believed there was a possibility that Mrs. Riso “played a part in the disappearance of the money,” but found that the plaintiff failed to carry his burden of proving by a preponderance of the evidence that she took it. That is a factual finding, based on credibility determinations, and we discern no manifest error that would justify our reversing it on that ground. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

As plaintiff points out, the court failed to address the defendants’ liability as depositaries. The trial court’s silence on this issue is an implied rejection of this theory of recovery.

A deposit is an act by which a person receives the property of another, binding himself to preserve it and return it in kind. La.C.C. art. 2926. A voluntary deposit takes place by the mutual consent of the person making the deposit and the person receiving it. La.C.C. art. 2932.

Consent is implied when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it. La.C.C. art. 2933. “However, for the delivery of the object to another to constitute a deposit, there must also be mutual intent, expressed or implied, ... that by the act of accepting it the person who receives it has bound himself to safeguard it. Article 2926.” Coe Oil Service, Inc. v. Hair, 283 So.2d 734, 738 (La.1973).

The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. La.C.C. art. 2937. Although the depositary may not have intended to assume the obligations imposed by law on a depositary, it is the intent to establish the relationship that is determinative. Harper v. Brown & Root, Inc., 391 So.2d 1170, 1173 n. 5 (La.1980).

Once the depositor establishes the existence of a deposit and the loss of the property while deposited, it is presumed that the loss resulted from the depositary’s lack of care, and the depositary has the burden to exonerate himself from fault. Harper, 391 So.2d at 1173. A depositary is not an insurer of the property, however, and is not required to guard against every conceivable unlawful act that may be committed against the deposit. Wong v. East Baton Rouge Parish Sheriffs Office, 522 So.2d 1134, 1138 (La.App. 1 Cir.1988), writ denied, 523 So.2d 863 (La.1988).

We conclude that plaintiff failed to prove that there was a contract of deposit, because the evidence does not prove that defendants, by allowing plaintiff to place his package of money in their safe, intended to bind themselves to safeguard it. See Coe, supra. Further, even if there was a contract of deposit, plaintiff did not prove that defendants were negligent, for they used the same care toward his property as toward their own.

lifiWe distinguish Aetna Life and Casualty v. O’Brien, 440 So.2d 966, 969 (La.App. 3 Cir.1983), cited by plaintiff. In that case the depositary left the object of the deposit, a briefcase, in his car and it was stolen. Here, however, plaintiff placed his own bag in defendants’ safe and there is no showing that defendants ever touched his bag, except on the occasion when he asked his mother to look inside the bag.

Accordingly, we find no error in the trial court’s determination that plaintiff failed to prove his case by a preponderance of the evidence.

Finally, we note that the defendants reassert in their brief their recon-ventional demand for damages against the plaintiff. However, the defendants neither appealed the trial court’s dismissal of their claim, nor did they answer the appeal. Accordingly, we cannot consider their claim and we have omitted discussion of the evidence they presented regarding their damages.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

      . Plaintiff also sued defendants homeowners insurance carrier, State Farm Fire and Casualty Company (misnamed as State Farm Insurance Company in the petition). State Farm raised a coverage defense and sought dismissal by motion for summary judgment. Miceli voluntarily dismissed State Farm from the case, reserving his rights against the remaining parties.

      . Nookie was a nickname for the housekeeper.

      . La.C.C.P. art. 2133 requires that an appellee seeking relief from the judgment file an answer to the appeal. "A brief submitted by appellee does not satisfy the article requirements as it is neither an answer nor an appeal... .Consequently, as appellee failed to file an answer or perfect an appeal, we are precluded from addressing the issues raised solely in appellee’s brief.” Arrow Fence Company, Inc. v. DeFrancesch, 466 So.2d 631, 633 (La.App. 5 Cir.1985), writ denied 468 So.2d 575 (La.1985).


author: J^CLARENCE E. McMANUS, Judge.

text:
    Linda Kleinschmidt SCHMIDT v. Michael G. SCHMIDT.
    No. 02-CA-885.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.
    Jeffrey A. Jones, Mandeville, LA, for plaintiff-appellee.
    Debra M. Kesler, Metairie, LA, for defendant-appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court abused its discretion in finding that a Catholic School education is in the best interest of the minor child and assessing a percentage of private school tuition expenses to defendant as part of his child support obligation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Linda Kleinschmidt Schmidt, and defendant, Michael Schmidt, were married in September 1996. Their only child, Eva Ann Schmidt, was born on December 17, 1996. The couple was divorced on March 23, 2001. The parties agreed to joint custody of Eva with Mrs. Schmidt to be the domiciliary parent and Mr. Schmidt to have reasonable visitation. They agreed that Mr. Schmidt would pay $546.00 a month in child support plus 59% of net child care expenses, 59% of her health care expenses and 59% of any uncovered extraordinary medical or dental expenses. In October 2001, Mrs. Schmidt filed a motion to amend child support and for arrearages and contempt. Mrs. Schmidt prayed for an amendment of child support as Eva would be attending St. Ann, a new school, for pre-kindergarten because they relocated to a home close to that school. Mr. Schmidt | sobjected to the change of schooling proposed by Mrs. Schmidt in favor of sending Eva to Alice Birney, a public school.

Mrs. Schmidt pointed out that Mr. Schmidt’s monthly share of the tuition would be $218.50. She requested the court amend the judgment to have Mr. Schmidt pay 59% of any net childcare expenses, tuition or any other necessary education expenses. Mrs. Schmidt also requested that the $218.50 be made exec-utory, that Mr. Schmidt be held in contempt for his failure to pay that amount and that he pay court costs and attorney fees.

After a hearing, the trial judge, Judge Greg Guidry, granted Mrs. Schmidt’s motion to amend ordering Mr. Schmidt to pay 59% of Eva’s Catholic school tuition including registration and the building use fee for the 2002-2003 school year and future school years in addition to his present support obligation of $546.00 per month. The trial court also ordered him to pay 59% of child care expenses and 59% of Eva’s health care expenses until further ordered. Mr. Schmidt was ordered to pay an additional $287.79 a month from April 2002 through July 2002, to include school expenses, before and after care, summer camp and health insurance for Eva through August 2002. Additionally, the trial court ordered Mr. Schmidt to pay an additional $247.65 a month beginning in August 2002, for twelve months to cover school expenses, before and after care, summer camp and health insurance for Eva through August 2003. Mrs. Schmidt was ordered to provide an accounting to Mr. Schmidt every six months detailing all expenses paid on behalf of Eva for medical care, before and after care showing any credit or amount owed by Mr. Schmidt with tuition and other school information to be provided once a year in July. The trial judge granted Mrs. Schmidt’s motion to make child support and insurance reimbursement executory. Mr. Schmidt was found to owe Mrs. Schmidt the executory amount of $2,075.96 (insurance for he and Eva), and was ordered to pay $305.00 in court costs. Mrs. Schmidt’s request for |4attorney fees and that Mr. Schmidt pay any share of church donations on Eva’s behalf were denied.

Mr. Schmidt now appeals this ruling.

DISCUSSION

Mr. Schmidt contends that the trial court abused its discretion in finding that Catholic school attendance is in the best interest of his daughter and in adding private school tuition to his child support obligation. In this case, Mrs. Schmidt was named the domiciliary parent of the couple’s minor child, Eva. La.R.S.9:335(B)(3) provides:

(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

The burden of proving decisions are in fact not in the best interest of the child is placed on the non-domieiliary parent who opposes the decision. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. A trial court’s determination in a child custody case will not be disturbed unless there is a clear abuse of discretion. An appellate court is required to extend great weight to the factual conclusions of trial courts which are based on reasonable evaluations of credibility and reasonable inferences of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In this case, while Mr. and Mrs. Schmidt were still married, Mrs. Schmidt began looking at Catholic schools for Eva to attend pre-kindergarten. Mr. Schmidt knew that Mrs. Schmidt always planned to send Eva to a private school. Prior to divorce Eva was attending Wee Friends, a private preschool, costing $385 a month. After the couple separated, Mrs. Schmidt was named as Eva’s domiciliary parent. Mrs. Schmidt and Eva moved into a home in the St. Ann School district. Mrs. Schmidt placed Eva in St. Ann because it was close to their residence, Eva’s | ¡^cousins attend St. Ann, and she felt the school would best meet Eva’s social and educational needs. Although Mr. Schmidt himself received a Catholic school education, he objects to one for Eva based on his dissatisfaction with the Catholic church.

Our review of the record demonstrates that Mr. Schmidt has not met his burden of proving that Eva’s attendance of St. Ann is not in her best interest. He did not show whether his choice of school was better or at least equal to St. Ann. Regarding the trial court’s award of private school tuition expenses to Mrs. Schmidt, we note private school tuition is a special or extraordinary expense that may be added into the computation of the total child support obligation upon compliance with La. R.S. 9:315.6(1). This statute provides:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Any expenses for attending a special or private elementary or secondary school to meet the needs of the child.

A trial court’s child support order will not be reversed except for abuse of discretion. Hogan v. Hogan, 549 So.2d 267, 271 (La.1989). Based on the evidence before us, we do not find that the trial court abused its discretion in light of the testimony of both parties. Mrs. Schmidt was steadfast in her commitment to Eva’s private school education offering to monetarily sacrifice for Eva’s educational benefit. Mr. Schmidt expressed some concern that he might loose his job and become unable to pay his share of the tuition. Should Mr. Schmidt loose his job, then the trial court can revisit the child support and private school tuition issues, not before. Thus, the trial court’s ruling is amply supported by the evidence and justifies the addition of this special expense to Mr. Schmidt’s support obligation.

CONCLUSION

Based on the foregoing reasons, the judgment of the trial court is affirmed. The parties are to bear there own costs of this appeal.

AFFIRMED.


author: | WALTER J. ROTHSCHILD, Judge.

text:
    Rosalie STERLING v. Andrew BERTHELOT.
    No. 02-CA-921.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Carolyn Patrick, LaPlace, LA, for Rosalie Sterling, Plaintiff/Appellee.
    Sidney W. Degan, III, Joel N. Terre-bonne, Degan, Blanchard & Nash, New Orleans, LA, for Andrew Berthelot, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY And WALTER J. ROTHSCHILD.
   | WALTER J. ROTHSCHILD, Judge.

Plaintiff, Rosalie Sterling, is the owner of a certain portion of land located between Jack Street and Nutmeg Street in LaPlace, Louisiana. In 1957, a home was built on this property facing Jack Street, and a carport was later added to the house on the Nutmeg Street side of the property. Defendant, Andrew Berthelot, acquired the adjoining property on the Nutmeg Street side in 1995. In October of 2000, Berthelot caused a fence to be erected between plaintiffs property and Nutmeg Street, resulting in plaintiffs inability to access Nutmeg Street from her home.

Plaintiff brought this possessory action against Berthelot seeking recognition of her uninterrupted possession of a certain strip of land located between her carport and Nutmeg Street. She further sought injunctive relief preventing Berthelot from continuing to block access to her property from Nutmeg Street, and she prayed for damages she sustained as a result of the erection of the fence. Alternatively, plaintiff sought ownership of the disputed property under the doctrine of acquisitive prescription or recognition of an apparent servitude of use over the land between her property and Nutmeg Street.

| (¡Defendant, Andrew Berthelot, answered this suit admitting ownership of the disputed tract of land, and further stating that he constructed the fence lawfully on his own property without encroachment on plaintiffs property. Thereafter, defendant brought a motion for summary judgment on the basis that Nutmeg Street was completely enclosed by the property he owns, and that as plaintiffs property does not border Nutmeg Street, she had no legal right of access thereto. The trial court entered a partial summary judgment in defendant’s favor finding that plaintiff failed to acquire a servitude of use by acquisitive prescription, but that issues of fact remained as to plaintiffs claim of ownership of the property by acquisitive prescription.

The matter proceeded to a bench trial on February 25, 2002. The trial court entered judgment in favor of plaintiff on March 25, 2002, recognizing plaintiff as the owner of the property in dispute and recognizing and maintaining her right to possession. The court further ordered defendant to remove the fence from the property, and also awarded plaintiff damages in the amount of $3,000.00.

Defendant now suspensively appeals from this judgment on the basis of several assignments of error. For the reasons stated more fully herein, we affirm the trial court’s judgment.

In its reasons for judgment, the trial court determined that plaintiffs lawsuit constituted both an action for acquisitive prescription and a possessory action. In ruling in favor of plaintiff in this matter, the trial court stated as follows:

The court finds that Mrs. Sterling has met her burden of proof as to each element in both actions. She enjoyed peaceable, uninterrupted, corporeal possession of the property for more than thirty years prior to both the disturbance in law (recordation of the sale of the property to Mr. Berthelot) and disturbance in fact (erection of the fence by Mr. Berthelot). Despite defendant’s contentions | otherwise, Mr. and Mrs. Sterling obviously exhibited an intent to possess when they constructed their home, and particularly, their carport, with access only by way of the disputed property.

Defendant contends on appeal that the trial judge was manifestly erroneous in ruling that plaintiff established possession of the claimed property and in ruling that plaintiff acquired title to the property by acquisitive prescription by way of intermittent use and access. Defendant also contends that the trial judge was manifestly erroneous in disregarding the expert testimony introduced at trial, and in awarding damages to plaintiff where the fence was constructed wholly within the boundary lines of his property.

La. C.C.P. art. 3658 provides the requisites for maintaining a possessory action:

(1) The possessor must prove that she had possession of the immovable property or real right therein at the time the disturbance occurred;
(2) She must prove she had possession quietly and without interruption for more than a year immediately prior to the disturbance;
(3) The disturbance must be one in fact or law; and
(4) The possessory action must be instituted within one year of the disturbance.

Possession is defined as the detention or enjoyment of a corporeal thing, movable or immovable, than one holds or exercises by himself or by another who keeps or exercises it in his name. La. C.C. art. 3421. Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it. La. C.C. art. 3422. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425.

| ¡¡Defendant contends that plaintiff failed to meet her burden of proving corporeal possession because plaintiff failed to introduce evidence of the alleged boundaries of the property she seeks to possess as in the case of Wagley v. Cross, 347 So.2d 859 (La.App. 3 Cir.1977). Specifically, defendant contends that plaintiff failed to fence the disputed property or otherwise mark the property to give notice to the public of the extent of possession.

Plaintiff admitted at trial that the area between her carport and Nutmeg Street that she used as a driveway was not paved or fenced in any way. She testified that while her husband was alive, he maintained the lawn in the area by mowing it and using it as their front yard. She also stated that she and her husband drove over the area regularly with their vehicles, and that she used the property in this way until defendant built his fence blocking access to Nutmeg Street.

The evidence at trial also indicates that plaintiffs home was built with the only door facing Nutmeg Street. Although the house faced Jack Street, there was no access into the house from that street. Further, when the Sterlings built a carport onto the house, use of the carport required access to Nutmeg Street and could not be entered from Jack Street. The photographs introduced by plaintiff at trial of the subject property are compelling evidence that vehicular access to the house and adjoining carport was completely dependent on access to Nutmeg Street.

Further, the record indicates that the property in question is located in a semi-rural area of LaPlace. The area is mostly undeveloped, and the majority of the property in that area remains unfenced. Thus, the absence of a fence does not preclude a finding of possession of the property.

Under the circumstances presented here, we conclude that the record supports the trial court’s factual determinations that plaintiff exercised possession the disputed strip of land by using it as a driveway and the only means of vehicular | ^access to and from her property. Absent manifest error, we find no basis to disturb the factual findings of the trial court which were well within her discretion.

Defendant next contends that that the trial court erred in disregarding the testimony of Joseph Ruello, a surveyor who was accepted as an expert at trial. Ruello testified that in 1986, he conducted a survey of the disputed property prior to its sale to Berthelot, and that he failed to note on the survey any improvements to or encroachments on the property at that time. Defendant argues that this testimony was entitled to great weight, as it was the only testimony offered at trial on the issue.

However, the testimony of Mr. Ruello was not inconsistent with the trial court’s factual findings that Mrs. Sterling and her husband possessed the property as a driveway during the time they lived in the house. Although Mr. Ruello testified that he did not note any improvements to the property, Mrs. Sterling admitted at trial that the driveway had not been improved by paving or shells, nor had the area been enclosed by a fence. Mr. Ruello testified that he would not necessarily have noted as an improvement a piece of land that someone used as a driveway. Nevertheless, the evidence presented at trial clearly supports the trial court’s finding that the disputed strip of land was used regularly and consistently by the Sterlings as the only means of access to their home. We find no manifest error in the trial court’s consideration of the testimony of Mr. Ruel-lo.

Defendant also contends that the trial court was manifestly erroneous in determining that plaintiff acquired ownership of the disputed property by acquisitive prescription where plaintiffs use and access to the property were intermittent. However, the record fails to support defendant’s argument that use of the property was intermittent. Mrs. Sterling and her niece, Ms. Batiste, testified that the family used the strip of land daily as their driveway and the only means of access to the house.

170wnership and other real rights in im-movables may be acquired by the prescription of thirty years without the need of just title or possession in good faith. La. C.C. art. 3486. As we previously stated, the record amply supports the trial court’s factual determination that plaintiff possessed the disputed portion of land by using it as a driveway on a daily basis where the area provided the only means of vehicular access to the house. Testimony at trial revealed that plaintiff and her husband maintained this possession from the time their house was built in 1957, and we find no manifest error in the trial court’s determination that plaintiff met her burden of proving she acquired the strip of land by the prescription of thirty years.

Finally, defendant contends that the trial court erred in awarding damages in this case where the fence was constructed completely within the boundaries of defendant’s property. In its reasons for judgment, the trial court stated:

As to damages, had this been a matter of a fence that did not really interfere with the use of the property, the court would find no damages due. However, Mr. Berthelot had to have known that the erection of his fence prevented the elderly Mrs. Sterling from accessing her driveway because this fact was obvious from the photographs submitted. The court finds that Mrs. Sterling is entitled to damages for the erection of the fence which seriously interfered with the enjoyment of her property for seventeen months.

We have carefully reviewed the record in this matter, including the testimony and evidence presented at trial. Mrs. Sterling testified that the access to her property from Nutmeg Street was the only entrance to her home she ever had until the construction of the fence. The photographs of the property that were submitted into evidence show that the fence was placed only a few feet from the rear of plaintiffs home and completely obstructed Mrs. Sterling’s use of her carport. It is apparent from the photographs that the strip of land was being used as a driveway to gain access to the carport where the only door into the home was |Ralso located. Under the circumstances presented here, we find no manifest error of the trial court in awarding plaintiff damages for the inconvenience she sustained as a result of construction of the fence.

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Andrew Berthelot is to bear all costs of this appeal.

AFFIRMED.

      . The trial court also converted plaintiff's action for a possessory action to a petitory action based on defendant's admission in his answer that he held the title to the property. However, defendant filed a motion for new trial from this finding. The trial court granted the motion for new trial and vacated that portion of the summary judgment which converted the case to a petitory action.


author: I .MARION F. EDWARDS, Judge.

text:
    Lydia GILTON, Susan Johnson and Cheryl Washington v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, St. James Nursery, Inc., and Patrick G. Waguespack.
    Nos. 02-CA-931, 02-CA-932.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Lewis 0. Unglesby, Robert M. Marion-neaux, Jr., Baton Rouge, Louisiana, and Allen J. Miles, Plaquemine, Louisiana, for Appellant.
    Matthew W. Pryor, Timothy E. Pujol Gonzales, Louisiana, for Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   I .MARION F. EDWARDS, Judge.

Plaintiffs/Appellants appeal the trial court’s ruling that granted defendant’s Motion for Summary Judgment on the issue of liability in an automobile accident. For the following reasons, the judgment of the trial court is reversed.

FACTS AND PROCEDURAL HISTORY

On the morning of October 30, 2000, defendant, Patrick Waguespack (“Wagues-pack”), was in the process of crossing the Veterans Memorial Bridge, which spans the Mississippi River between Vacherie and Gramercy, Louisiana. At that particular time, visibility was extremely low, due to a combination of fog and smoke from a swamp fire in close proximity. While crossing the bridge, Waguespack’s truck, which was used for his business, St. James Nursery, struck another vehicle that had come to a stop ahead of | ¡Jum. After the accident, Waguespack and the occupants of the other car then exited their vehicles and proceeded to walk down the bridge.

Plaintiffs/Appellants, Lydia Gilton, Susan Johnson and Cheryl Washington (“plaintiffs”) were en route to LaPlace via the Veterans Memorial Bridge on the morning of October 30, 2000. While crossing the bridge, Gilton, the driver of plaintiffs’ car, collided with Waguespack’s parked vehicle.

Plaintiffs filed suit against Waguespack, his business, St. James Nursery, and his insurer, State Farm Mutual Automobile Insurance Company (“defendants”) in the Twenty-Third Judicial District Court for the Parish of St. James. Defendants subsequently filed a Motion for Summary Judgment on the issue of negligence. After a hearing on April 1, 2002, the trial court granted the defendants’ Motion for Summary Judgment. Plaintiffs timely filed this appeal.

LAW AND ARGUMENT

In their sole assignment of error, plaintiffs assert that the trial court committed reversible error when it granted defendants’ Motion for Summary Judgment, arguing that there are still genuine issues of material fact regarding whether Wagues-pack was negligent in causing the collision.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of Inlaw. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

At the hearing on the Motion for Summary Judgment, the defendants presented the trial court with two theories of why Gilton was solely negligent for the collision. First, defendants relied upon LSA-R.S. 32:81, which states, in relevant part:

A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

Second, defendants cited to Campbell v. American Home Assurance Company, a Louisiana Supreme Court case, which stands for the proposition that:

“... [W]hen visibility is impaired by smoke, fog, or other unfavorable atmospheric conditions, a motorist must exercise care in the operation of his vehicle commensurate with the danger created by the conditions. He must reduce his speed and maintain a close lookout. As an extreme measure, when visibility is destroyed or greatly obscured, he must stop his vehicle until conditions permit him to resume travel in reasonable safety.” [Emphasis added].

^Defendants rely upon Campbell in two respects. First they assert that, pursuant to Campbell, Gilton should not have been traveling at such a high rate of speed across the Veterans Bridge in such conditions, and, at most, should have stoppéd her own vehicle long before encountering the Waguespack’s parked truck. Defendants further use Campbell to argue that Waguespack was justified in leaving his vehicle parked where it was after the accident, since visibility was obscured to such a great degree.

There is no dispute regarding the poor visibility on the Veterans Bridge on the morning of October 30, 2000. Plaintiff, Lydia Gilton, testified in her own deposition that after reaching the top of the Veterans Bridge, the fog was so thick that it was difficult to see the hood of her car. Gilton further testified that in response to the fog she slowed her car down to approximately 30 miles per hour, acknowledging that her speed still should have been slower. In his deposition, Trooper Matthew Sinanan testified that even four miles an hour would have been too fast to travel through the smog bank.

Plaintiffs argue that LSA-R.S. 32:81 is inapplicable to the facts of the present case, asserting that the statute only applies to vehicles that are traveling, not vehicles that are in a stopped or parked position. Plaintiffs further suggest that Campbell is likewise inapplicable, instead arguing that the measure of their negligence is not the issue at this point in the case. Instead, plaintiffs claim that the trial court should have considered LSA-R.S. 32:141, which states, in pertinent part:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be |Kleft for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.
D. In the event of a motor vehicle accident, if the driver is not prevented by injury and the vehicle is not disabled by the accident, or the accident has not resulted in serious injury or death of any person, the driver shall remove the vehicle from the travel lane of the highway to the nearest safe shoulder. Compliance with the provisions of this Subsection shall in no way be interpreted as a violation of requirements to remain at the scene of an accident as provided for in the Highway Regulatory Act or by R.S. 32:414. [Emphasis added].

Plaintiffs argue that Waguespack did not satisfy the requirements of LSA-R.S. 32:141. In particular, plaintiffs argue that Waguespack failed to provide any kind of warning to motorists that his vehicle was stopped in the middle of the roadway.

Defendants claim, however, citing the case of Kounter v. Carleton, that Waguespack acted reasonably under the circumstances, and that jurisprudence does not require a person to put himself in peril to satisfy the written tenets of LSA-R.S. 32:141. Specifically, defendants argue that, because of the visibility conditions, it would not have been either safe or practical for Waguespack to flag traffic, and that even had he placed his hazard lights on, as required by the statute, they would not have been seen by Gilton.

|fiIn Kounter, the defendant’s vehicle stalled on a bridge outside of the lane of traffic. She pulled her vehicle as far to the right as she could and activated her emergency flashers. After unsuccessfully trying to flag down passing motorists, the defendant then left the car to summon the police. Plaintiffs vehicle ran into the defendant’s vehicle, and he sued defendant for negligence under the theory that she was negligent in leaving her car unattended without taking the necessary precautions of warning approaching traffic, pursuant to LSA-R.S. 32:141. In affirming the trial court’s finding that the defendant was not negligent in causing the accident, the Third Circuit noted:

In the present case, defendant could not avoid stopping on the bridge. She stopped as far to the right as possible in the right lane and activated her emergency flasher lights. After trying to flag someone to stop and help her, she went down the bridge and had someone call the police. Before the police arrived, the accident occurred.

We find Kounter to be distinguishable from the present case. Specifically, we note that, although the fact is conceded by counsel for defendant, the record does not indicate whether Waguespack activated “the appropriate signal lights” following the first accident, as required by LSA-R.S. 32:141. The record is further devoid of evidence regarding whether or not it would have been practical or possible for Waguespack to move his vehicle off of the roadway to the nearest safe shoulder, as the defendant in Kounter had done.

|7After a review of the record, we find that there are genuine issues of material fact regarding whether Waguespack’s actions preceding the second collision involving plaintiffs did, in fact, violate La. R.S. 32:141. Accordingly, the judgment of the trial court is reversed.

REVERSED.

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir.12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . 260 La. 1047, 258 So.2d 81 (La.1972).

      . 510 So.2d 1370 (La.App. 3rd Cir.1987).

      . Id. at 1374. The court further noted their previous opinion of Toten v. General Motors Corp., 479 So.2d 957 (La.App. 3 Cir.1985), in which they ruled that under the set of circumstances, if defendant had stayed upon the bridge and attempted to divert traffic around the stalled vehicle she would have placed herself in physical peril.


author: | ¡.JAMES L. CANNELLA, Judge.

text:
    ORION REFINING CORPORATION v. SHAW CONSTRUCTORS, INC. The Shaw Group, et al. v. Orion Refining Corporation.
    Nos. 02-CA-981, 02-CA-982.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Thomas P. Anzelmo, Donna Bramlett Wood, Kyle P. Kirsch, Campbell, McCra-nie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, Joel T. Chaisson, Chaisson & Chaisson, Destrehan, LA, for Appellant.
    Danny G. Shaw, Gerardo R. Barrios, Michael F. Weiner, Mark W. Frilot, Mandeville, William W. Hall, Metairie, Leon C. Vial, III, Hahnville, LA, for Ap-pellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | ¡.JAMES L. CANNELLA, Judge.

In a contract dispute, the Plaintiff, Orion Refining Corporation (Orion), appeals from a partial summary judgment in favor of the Defendant, Shaw Constructors, Inc. (Shaw). We reverse and remand.

In 1998, Orion contracted with Shaw to provide administrative and construction services as part of a $900,000,000 capital improvement project for an oil refinery owned by Orion in Norco, Louisiana. Subsequently, a dispute arose over the Construction Services Contract (CSC). In July of 2000, Orion filed suit alleging that Shaw breached the contract. Among other allegations of breach, Orion asserts that Shaw overbilled it by including a hidden profit in the base used to calculate the stipulated percentages for non-direct labor costs. Pursuant to the contract terms, Orion requested an audit. The petition claims that Shaw refused to provide Orion with complete access to the records.

On October 17, 2000, Shaw filed a suit against Orion for breach of two fabrication contracts. The cases were consolidated in January of 2001.

As discovery progressed, disputes arose regarding the requests for production of documents served on each party by the other. In September of 2001, |3a hearing on a Motion to Compel discovery that had been filed by Orion was held. After the hearing, the trial judge rendered a judgment that included an order for Orion to file an amended petition by October of 2001 to state its claims with more specificity and for Shaw to comply with Orion’s requests for documents.

On October 19, 2001, Shaw filed a Motion for Partial Summary Judgment, contending that Orion is not entitled to discovery of Shaw’s “non-direct” labor costs calculated from the fixed percentages that were stipulated in the contract and which were applied to the direct labor costs. Shaw contended that, based on the provisions of the contract, Orion is only entitled to an audit of direct costs incurred after the date of the contract, October 1, 1998. Shaw also filed a motion for the trial judge to withdraw his order permitting Orion to file the amended petition.

A hearing on both matters was held on March 25, 2002. On May 15, 2002, the trial judge granted the partial summary judgment and denied Orion leave to file the amended petition, reversing his prior order. The trial judge concluded that the “non-direct costs associated with the CSC as per the fee calculation formulated under the CSC cannot form the basis of Orion’s alleged breach of warranty claim, but that Orion can audit the direct costs as set forth in the contract.” On June 21, 2002, the trial judge certified the partial summary judgment as appealable.

The issue on appeal is whether Orion is entitled to discover anything related to the non-direct costs for labor that was applied to the direct labor costs. Orion claims that it needs to audit those costs in order to determine whether Shaw charged Orion a hidden profit for non-direct costs, in violation of Attachment III, Paragraph 1(a). Orion asserts that it is entitled to audit the costs pursuant to Attachment I, Paragraph 13(b) of the contract because they are reimbursable items. [ 4Orion supports this argument by referring to the Shaw Prospectus and an affidavit. Alternatively, it contends that the trial judge erred in denying the motion for new trial on the partial summary judgment because a letter produced by Shaw after the judgment conflicts with the Affidavit of Richard Gill, Shaw’s senior vice-president in charge of Construction and International Operations. Orion notes that this supports its position that the motion for summary judgment was premature since discovery has not been completed.

THE CONTRACT PROVISIONS

The CSC is a cost-plus contract comprised of the contract “Form of Agreement” and three attachments. Attachment I sets out the general conditions, Attachment II provides the special conditions, and Attachment III relates to “Quantities, Pricing and Data.” On the first page of the contract, number 2 states:

2. COMPENSATION: As consideration for the CONTRACTOR’S services hereunder the OWNER shall pay CONTRACTOR on a reimbursable basis compensation in accordance with the rates set forth in Attachment III and with the applicable payment provisions of this contract ...

The contractor’s fee is provided in the special conditions attachment, number 12. Under this provision, Orion agrees to pay Shaw $5,000,000 and “any reimbursable amounts provided for under this Agreement.” In addition, the contract provides that, if the “reimbursable cost for the Work and the fee set forth in the immediately preceding paragraph” exceed $132,-000,00 Shaw would receive further compensation.

Number 4 of Attachment I provides the order of precedence of the contract documents in resolving conflicts, discrepancies, errors or omissions. This order applies to “All Contract Documents.” The order of precedence is the Contract Form of Agreement, Attachment II-Speeial Conditions, Attachment I-General Conditions, and Attachment Ill-Quantities, Pricing and Data.

The audit provision at issue here is in Attachment I, number 13(b). It states:

ls(b) CONTRACTOR shall permit ... authorized representatives of OWNER to review CONTRACTOR’S accounting and cost control systems and inspect books, records, accounts and other documents ... above as necessary to audit and verify the completeness and accuracy of REIMBURSEABLE COSTS contained in invoices submitted by CONTRACTOR, or for any other reasonable purpose. [Emphasis added]

The warranty provision in dispute is in Attachment III. The pertinent parts state:

The terms and conditions set forth herein specify the basis for compensating Contractor for labor services, equipment changes, and other activities which the Contractor may provide to Owner in the performance of this Contract. It is understood and agreed that the Contractor may not charge Owner for any costs not specifically provided for hereinafter without Owner’s prior approval:
1. Labor Payroll Cost
a. For services rendered, owner shall reimburse contractor all direct salaries and wages in accordance with the non-exempt base wage rates, and per the exempt personnel classifications and base wages schedule. In addition, owner shall pay to contractor a fee for benefits, indirect costs and overhead, etc. calculated at 41.763% for non-exempt employees, and 50.763% for exempt employees, multiplied by the wages paid. CONTRACTOR represents and warrants that the basis for the fee percentages above does not include a profit component. [Emphasis added]

We find that the audit is authorized for two reasons. First, paragraph 1, cited above, seems to separate reimbursable costs from set fees. However, the first page of the Contract Form, Number 2 does not differentiate a “fee” from “costs.” When there is a conflict, the contract form takes precedence. See, Attachment I, Number 4. Under those provisions, we find that the non-direct costs are subject to audit. Second, Attachment I, Number 13(b), does not limit the audit to reimbursable costs. Orion is entitled to an audit for any reasonable purpose and the discovery of information necessary to the pursuit of a legal claim is a reasonable purpose.

Shaw argues that the discovery of the non-direct costs should not be allowed because it is not relevant. Shaw asserts that the parties stipulated to the percentages and Orion cannot object to the allocation of those percentages. It | fiargues that even if an audit showed a profit was made from those percentages, Orion cannot complain because it did not agree not to profit from the allocation of the non-direct costs. Shaw agrees that Orion can audit the basis for the percentages because it did agree to calculate that basis without a profit component.

La.C.C.P. art. 1422 states that “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

We agree that the warranty only relates to the basis used to calculate the percentages. Information about those non-direct labor costs and the allocation of those fees may be ultimately inadmissible at trial for that reason, although we make no determination either way at this point. Here, the narrow issue is whether the information is discoverable. On the showing made, we cannot say that it is not relevant. Nor can we find that it will not lead to admissible evidence of Orion’s claims. Thus, Orion is entitled to discovery (audit) of the information. For these reasons, we reverse the ruling which grants the partial summary judgment. We also grant the writ for the same reasons. See: Orion Refining Corporation v. Shaw Constructors, Inc. c/w The Shaw Group, et al v. Orion Refining Corporation, Writ No. 02-C-637.

Accordingly, the partial summary judgment is hereby reversed. The case is remanded for further proceedings. Costs of the appeal are to be paid by Shaw.

REVERSED AND REMANDED.

      . We are not bound by the certification of a non-appealable judgment granted under La. C.C.P. art.1915 (see: Berman v. De Chazal, 98-81 (La.App. 5th Cir.5/27/98), 717 So.2d 658). We accepted the certification in this case, although we are reluctant to rule on contractual issues piecemeal, because the consolidated cases involve complicated contracts, and a resolution of this issue is judicially economical. We note that Orion filed both an appeal and a writ application (02-C-637). The writ was stayed and its resolution was referred to the merits of the appeal.

      . We note that the judgment fails to recognize Orion's right to audit the basis used to calculate the percentages. Had we agreed with the decision relative to the non-direct costs issue, we would have amended the judgment to reflect that right.


text:
    STATE of Louisiana v. Terry SMITH.
    Nos. 02-KA-451, 02-KA-1001.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Anthony G. Falterman, District Attorney, 23rd Judicial District Court, Donald D.Candell, Assistant District Attorney, Gonzales, LA, for state.
    Margaret S. Sollars, Thibodaux, LA, for defendant-appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On February 25, 1997, the District Attorney for St. James Parish filed a bill of information charging the defendant, Terry Smith, with committing two counts of LSA-R.S. 14:89.1(A)(6), aggravated crime against nature, by engaging in unnatural carnal copulation with E.C., a child under the age of seventeen, when the defendant was at least three years older than the victim. On the same day, but in a separate bill of information, the St. James District Attorney charged the defendant with committing two counts of sexual battery upon E.C., when the victim had not yet attained the age of fifteen and was at least three years younger than the defendant. The bills of information alleged that the defendant committed the crimes of sexual battery and aggravated crime against nature between May 31, 1996 and January 3, 1997. During this time, the defendant was a thirty-three-year-old police officer and E.C. was a twelve-year-old girl. E.C. became pregnant and a paternity test established with a 99 percent certainty that the defendant was the father of the child.

The defendant originally pled not guilty to all of these charges at arraignment. However, on November 4, 1997, the defendant withdrew his former pleas of not guilty, executed a waiver of rights form, and pled guilty as charged to |sall counts. The trial judge advised the defendant of his constitutional rights, accepted the guilty plea and ordered a pre-sentence investigation to be conducted.

On February 2, 1998, the trial judge sentenced the defendant to eight years at hard labor without benefit of probation, parole or suspension of sentence on each count of sexual battery to be served concurrently with each other. For the two counts of aggravated crime against nature, the defendant received sentences of twelve years at hard labor without benefit of probation, parole or suspension of sentence to be served concurrently with each other, but consecutively with the sexual battery sentences. After a hearing on the defendant’s application for post-conviction relief, the trial judge granted defendant’s request for an out-of-time appeal.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that he was incorrectly sentenced to an unusually harsh and excessive sentence. He argues that his aggregate sentence of twenty years at hard labor without benefit of probation, parole, or suspension of sentence is excessive because the trial judge imposed consecutive sentences. Specifically, the defendant asserts that he should have received concurrent sentences under LSA-C.Cr.P. art. 883 because all of the offenses were part of one continuous act. Further, defendant argues that the trial court did not provide sufficient justification for imposing consecutive sentences in his case.

First, we note that the record does not reflect that the defendant made or filed a motion to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217, (La.4/20/00), 760 So.2d 342. The defendant’s chief complaint in this assignment is that the trial judge did not | ¿provide justification for consecutive sentences that were presumed to be concurrent. This Court has recognized that “[t]he issue of the excessiveness of a consecutive sentence is not included in a bare constitutional review.” State v. Christoff, 00-1823 (La.App. 5 Cir. 5/30/01), 788 So.2d 660, 666; State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, 240, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414, 2002 La. LEXIS 3002; State v. Hester, supra.

However, this Court, in both Hester and Badeaux reviewed the defendant’s argument regarding his consecutive sentences even in the absence of a properly filed motion to reconsider sentence. Therefore, we will review defendant’s arguments regarding the alleged excessiveness of his consecutive sentences.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176.

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

The defendant pled guilty to two counts of sexual battery and two counts of aggravated crime against nature. For each sexual battery count, the defendant was exposed to a possible imprisonment, with or without hard labor, for not more than | sten years without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:43.1(C). For each count of aggravated crime against nature, defendant was subject to possible imprisonment of not less than three nor more than fifteen years without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:89.1(13).

Before sentencing, the trial judge provided extensive reasons for his decision. The trial judge noted that a pre-sentence investigation was ordered and the report had been filed into the record. The judge stated that he had read and considered two letters from the defendant, as well as letters in support of the defendant from his mother, his wife, his sister, two friends, and the defendant’s pastor. The judge further stated that he had considered a letter from the victim as well. Thereafter, the court stated as follows:

The Court believes there is an undue risk that during a period of suspended sentence of probation the defendant would commit another crime. He is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that a lesser sentence to be imposed herein than the sentence to be imposed herein would deprecate the seriousness of defendant’s offense.
The Court also noted the defendant’s multiple first offender status. In arriving at the sentence the Court considered all factors mentioned in Code of Criminal Procedure Article 894.1, in addition to positive (a)(1), (2), and (3) findings under Subparagraph (b). Particular mention should be made that: (1) the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim. (2) The offender knew that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth. (4) The offender used his position and status to facilitate the commission of the offense. (6) The defendant used threats of actual — of an actual violence in commission of the offense. (8) The offense resulted in significant, permanent injury to the victim.

The trial judge then sentenced the defendant to eight years at hard labor without benefit of probation, parole or suspension of sentence on each count of sexual battery to be served concurrently with each other, and twelve years at hard labor without benefits for the two counts of aggravated crime against nature, to be 1 (¡served concurrently with each other, but consecutively with the sexual battery sentences.

While the defendant contends that the record does not indicate that he threatened the victim, the record reflects otherwise. According to the St. James Parish police report that is attached to the pre-sentence investigation report, E.C. began living with her uncle, the defendant, and his wife, in January of 1996, when E.C.’s mother was arrested and incarcerated. The police report reflects that E.C. told the officers that the defendant started “sexually abusing her by touching her breasts, having vaginal and anal intercourse with her.” According to the police report, E.C. told Child Protection that the defendant also put his mouth on her “private.” E.C. related that the defendant told her not to tell anyone about these incidents, or he would ensure that her mother never got out of jail.

The defendant also contends that the court failed to consider the defendant’s service as a police officer as a mitigating factor. However, as the foregoing reflects, the defendant exploited his position as a police officer to continue sexually abusing E.C. It is noted E.C. had just turned twelve years old in January of 1996, four months before the abuse began in May of 1996.

The Probation and Parole officer who compiled the pre-sentence investigation report believed that the defendant’s status as a police officer made the offenses more egregious. The officer observed that the defendant-had taken an oath to uphold the law, but had violated the law by robbing E.C. of her innocence, inflicting a permanent emotional scar upon her, and leaving E.C. with a child that E.C. surrendered for adoption. As such, the officer recommended concurrent sentences between eight and ten years for the sexual battery counts. As for the counts of aggravated crime against nature, the officer recommended concurrent sentences between ten and twelve years to run consecutively with the sexual battery sentences.

|7The defendant’s sentences are in line with similarly situated offenders. In State v. Morgan, 97-997 (La.App. 3 Cir. 2/4/98), 706 So.2d 1084, the court held that two concurrent maximum terms of imprisonment were not excessive for a defendant who pled guilty to two counts of sexual battery. These offenses arose out of the defendant’s touching a twelve-year-old girl’s breasts and genitals while he supervised the child at his apartment. A similar incident occurred upon an eleven-year-old child at defendant’s'apartment.

In State v. Vanderhoff, 415 So.2d 190. (La.1982), the Louisiana Supreme Court held that a ten-year sentence for a defendant who committed aggravated crime against nature upon a neighbor’s nine-year-old daughter was not excessive. In that case, the thirty-one-year-old defendant coerced the child to “play house” with him by telling the child he would make her father pay for some damage she had done when jumping on defendant’s automobile. The defendant led the child into his bedroom and removed his clothes. While lying naked in bed, the defendant “ejaculated” into the child’s mouth. Id. at 192, 196.

The Louisiana Supreme Court has stated that the question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. The record in this case reflects that -the defendant sexually abused E.C. over a period of several months until she ultimately became pregnant with his child. The offenses that defendant committed are crimes of violence. See LSA-R.S. 14:2(13)(i) and (cc). Under the circumstances, we do not find that the trial judge abused his sentencing discretion when imposing the length of defendant’s sentences.

Defendant further argues that the trial court incorrectly ordered the sentences for the two counts of aggravated crime against nature to run consecutively with the |ssentences for the two counts of sexual battery. LSA-C.Cr.P. art. 883 provides for concurrent and consecutive sentences as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. State v. Johnson, 97-867 (La.App. 5 Cir. 4/15/98), 711 So.2d 848, writ denied, 98-1293 (La.10/9/98), 726 So.2d 20. Referring to Article 883, the Louisiana Supreme Court stated that, “[ajlthough Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, ... a trial judge retains discretion to impose consecutive penalties on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community.” State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.

In this case, defendant’s convictions for aggravated crime against nature and sexual battery were alleged to have occurred within the same time frame. Thus, it appears there was a “presumption” of concurrent sentences under Article 883 for defendant’s convictions of sexual battery and aggravated crime against nature convictions. The trial judge, however, exercised the sentencing discretion afforded him by that article and imposed consecutive sentences on these offenses.

The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, 1167; State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 815. We find that the trial judge did not abuse his Indiscretion by imposing consecutive sentences in this case. Therefore, we affirm the defendant’s sentence as imposed by the trial court.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). One matter is presented for review.

Defendant was sentenced on February 2, 1998 at which time the trial court advised him he had three years to seek post-conviction relief. The three-year time period was correct at the time defendant was sentenced. However, LSA-C.Cr.P. art. 930.8 was amended to shorten the prescriptive period to two years, effective August 15, 1999. This amendment has been held to be retroactive. State v. Boles, 99-662 (La.App. 5 Cir. 11/10/99), 750 So.2d 1059, 1062. In Boles, this Court determined that a defendant who was informed of the previous three-year prescriptive period for post-conviction relief should be informed of the new two-year prescriptive period. Therefore, we remand this case to the trial court and instruct the court to send written notice of the shortened prescriptive period to defendant within ten days of the rendering of this Court’s opinion, then to file written proof in the record that defendant received the notice.

In accordance with the above, we affirm the defendant’s sentence and remand the case to the trial court with instructions to correct the error patent as explained above.

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: | WILLIAM H. BYRNES III, Chief Judge.

text:
    Joseph A. MAZOUE v. AVONDALE INDUSTRIES, INC., (Formerly Avondale Shipyards, Inc.), and its Executive Officers, Edward Hartzman, John Chantrey, Edward Blanchard, Henry Zach Carter, Peter Territo, James O’Donnell, Branton Insulations, Inc., Eagle, Inc., et al.
    No. 2002-CA-1569.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.
    Writ Denied April 25, 2003.
    M. Reggie Simmons, Gretchen D. Le-ahy, Franklinton, LA, for Plaintiff/Appellant.
    Scott R. Bricklford, Regina O. Matthews, Martzell & Bickford, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   | WILLIAM H. BYRNES III, Chief Judge.

Prior to his death, Joseph A. Mazoue instituted a tort action against those he felt were responsible for his asbestosis and mesothelioma. Not long after instituting the action, he died intestate. He was survived by one child, Jeanne Mazoue Marsh. Ms. Marsh was substituted as the legal successor of the decedent and in August of 2001, several years after the death of the decedent she settled the case.

Mr. Mazoue had another child, Gloria Mazoue Leahy, who predeceased him. She was survived by two children, William Edward Leahy, II, and Pamela Carol Leahy Salvaggio, grandchildren of the decedent. Prior to the funding of the settlement, the grandchildren sought to intervene, asserting that the settlement proceeds are assets of the decedent’s succession and that as the children and heirs of their late mother, Gloria, they are proper party plaintiffs to prosecute their late grandfather’s action. Ms. Salvaggio qualified in St. Charles Parish as the ad-ministratrix of the decedent’s estate, and in that additional capacity sought to intervene to protect the action as a succession asset.

The trial court rejected the claims of the grandchildren in both their individual and representative capacities based on a literal reading of La. C.C. art. | ¡>2315.1 A(l). Grandchildren are not among the categories in favor of whom the legislature has created a survival action and the succession representative referred to in La. C.C. art. 2315.1 B may only act “in the absence of any class of beneficiary” described in the preceding paragraph of the 2315.1.

The grandchildren appeal in both their individual and representative capacities. Their strongest argument is that La. C.C. art. 3506(8) defines children as follows:

Children. — Under this name are included those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line. [Emphasis added.]

Appellants claim their right under La. C.C. art. 3506(8) as “descendants ... in the direct line.” This same argument was rejected by the Supreme Court in Hunt v. New Orleans Ry. & Light Co., 140 La. 524,73 So. 667, (La.1916). Although the language and numbering of the applicable code articles have changed somewhat in the years since Hunt was handed down, those changes are immaterial to the issue now before this Court. This Court fails to see why brothers and sisters of a decedent should be afforded a right of action where grandchildren would not, but the Supreme Court was aware of that when Hunt was decided. In this regard, we find that Hunt is still good law.

Similarly, in Dufrene v. Avondale Indus. Inc., 2001-1474 (La.App. 4 Cir. 8/22/01), 795 So.2d 456, writ denied 2001-2613 (La.10/26/01),799 So.2d 1156, this Court held the right to continue a tort action instituted prior to the tort victim’s death belongs to article 2315.1 beneficiaries, not to the tort victim’s heirs under succession law:

|¡j[G]randchildren may not be considered to “step into the shoes” of their deceased parents for purposes of La. C.C. art. 2315.1 because the article must be narrowly and strictly construed. See Day v. Day, 563 So.2d 441 (La.App. 1 Cir.1990).

Id., p. 6, 795 So.2d at 459.

The grandchildren rely on dicta in Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), but as this court explained in Dufrene:

However, the trial court’s decision ignores a pivotal fact in Nathan — i.e., that no La. C.C. art. 2315.1 beneficiaries existed because the decedent was not survived by any spouse, children, parents, or siblings.

Id., p. 5, 795 So.2d at 459.

Therefore, Nathan has no bearing on the outcome of the instant case.

Accordingly, while, as a matter of policy, this Court may feel that the appellants have the stronger case, as a matter of law, which law we are bound to follow, the appellee must prevail. Therefore, on the merits of the appellants’ main claim we find in favor of the appellee.

As we have decided that the appel-lee, Ms. Marsh, as the decedent’s sole surviving child, is the only party in whose favor La. C.C. art. 2315.1 establishes a right of action, we do not reach appellees’ arguments concerning the entitlement of appellee’s attorney to the fees he charged. Appellants have no right to attack the contingent fee paid by the appellee to her counsel.

Appellants raise questions of equal protection and due process. The appellee contends that the appellants did not raise these constitutional issues in a timely manner. Regardless of appellants’ timeliness, we find no merit in their constitutional arguments. We find no constitutional defect in the legislature’s affording a remedy to the class of surviving children that does not include the | ¿children of predeceased children. The fact that this Court might have created a different classification does not mean that it is an unreasonable classification. Additionally, the legislature is not required to follow succession law concerning the devolution of the claim of a personal injury upon his death. In fact, the legislature has never followed succession law in this regard, although nothing could be easier were it the intention of the legislature to do so. Such an action becomes a succession asset only in default of the existence all other designated categories of claimants. And even this default provision is of fairly recent origin. Act No. 211, § 2 of 1986.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.