author: 11 BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. John H. FREEMAN, Appellant.
    No. 37,312-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 16, 2003.
    James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    John H. Freeman, Pro Se.

      Jerry L. Jones, District Attorney, Madeleine Slaughter, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART, and PEATROSS, JJ.
   11 BROWN, C.J.

Defendant, John H. Freeman, was convicted of the second degree murder of Telvis Tippit and sentenced to life imprisonment without benefit. On appeal, defendant’s only assignment of error pertains to the denial of his motion to quash the indictment for failure to timely prosecute. We affirm defendant’s conviction and sentence.

Brief Procedural Synopsis

Tippit was killed on June 13, 1999 . Prosecution was instituted when defendant was indicted for second degree murder on July 30, 1999. Trial was set and continued several times, three at defendant’s request.

On December 18, 2000, a superseding indictment was filed. On May 31, 2001, defendant waived formal arraignment on the superseding indictment and entered a plea of not guilty. On December 19, 2001, defendant filed a motion to quash the indictment urging, that two years had lapsed since the first indictment was filed on July 30, 1999, and the state had failed to bring him to trial. On January 7, 2002, a supplemental motion to quash was filed by defendant in which he reiterated that two years had | ^passed since the filing of the original indictment and alleged that one year had passed since the filing of the second/superseding indictment without his being brought to trial.

The trial court denied the motion to quash, and writs were taken to this court, which stated, “[0]n the showing made, the exercise of our supervisory jurisdiction is not warranted.” Trial commenced on June 17, 2002. A guilty verdict was returned on June 21, 2002.

Discussion

A motion to quash is the proper procedural vehicle for a defendant to allege that the time limitation for the commencement of trial has expired. La. C. Cr. P. Art. 532(7); State v. Morris, 99-3235 (La.02/18/00), 755 So.2d 205. The responsibility of proving timely prosecution rests with the state. State v. Oliver, 34,292 (La.App.2d Cir.05/09/01), 786 So.2d 317. La. C. Cr. P. art. 578 provides that no trial shall be commenced for a non-capital felony case after two years from the date of institution of the prosecution.

The phrase “institution of prosecution” is defined as “the finding of an indictment ... which is designed to serve as the basis of a trial.” La. C. Cr. P. Art. 934(7); State v. Oliver, supra; State v. Pratt, 32,302 (La.App.2d Cir.09/22/99), 748 So.2d 25.

The state is permitted to dismiss an indictment and institute new proceedings if it shows the dismissal was not for the purpose of avoiding the time limitation for commencement of trial as established by Article 578. State v. Wells, 459 So.2d 648 (La.App. 4th Cir.1984).

| ^Defendant contends that the superseding indictment should not have been filed because the original indictment had not been dismissed and, on its face, the superseding indictment did not show that it was filed for a purpose other than avoiding the time limitations of La. C. Cr. P. art. 578. The state, however, asserts that it filed the superseding indictment for the legitimate purpose of correcting a possible illegal indictment and not in an attempt to circumvent the time limitations.

Defendant’s argument regarding the state’s motivation for filing the superseding indictment was raised for the first time in this court. Having reviewed the record, which does not include the transcript of the argument on the motion to quash (inasmuch as that portion was not designated by defendant), we find no support for defendant’s argument. At the time the superseding indictment was filed, the state still had seven months (from December 17, 2000 to July 29, 2001) in which to try defendant under the original indictment. Furthermore, the state set forth a valid reason for the superseding indictment: to correct possible errors in the grand jury foreman selection process. During the pendency of the original indictment, the Ouachita Parish method of selecting grand jury forepersons was found defective. See State v. Divers, 34,748 (La. App.2d Cir.06/22/01), 793 So.2d 308, writ denied, 01-2544 (La.08/30/02), 823 So.2d 937.

The superseding indictment served as the basis of defendant’s trial. When it was filed in December 2000, the first indictment was implicitly dismissed. See State v. Anderson, 537 So.2d 1373, 1374-75 (Fla. 1989) | ¿(the filing of an amended bill of information purporting to be a complete restatement of the charges supersedes and vitiates an earlier bill of information). The filing of the superseding indictment was not for the purpose of circumventing the time limitation to commence the trial. Thus, the time limit started running anew. Trial was begun on June 17, 2002, clearly within the applicable two-year time constraints. We find no error in the trial court’s ruling denying defendant’s motion to quash.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . On June 13, 1999, police officers in Monroe, Louisiana, were dispatched to defendant’s residential area in response to gunshots heard. The officers were directed to defendant's backyard where they found the body of a black man (subsequently identified as Telvis Tippit) in the back of a pickup truck belonging to defendant. A neighbor testified that moments before the gunshots were heard, he had telephoned defendant to tell him that someone was in defendant’s backyard "messing with his dogs.” Defendant had two pit bulls and several pit bull puppies in pens in his backyard. A gun was found in defendant’s backyard. A shirtless defendant was found in his residence. Defendant was taken to police headquarters for questioning, and defendant’s home was searched. Clothing, including a shirt with damp blood, was found. The blood was later determined to be that of the victim. The pickup truck was locked, and defendant had the only set of keys. A towel with the victim's blood was found in the cab of the truck.

      . We assume for sake of argument that nothing interrupted or suspended the running of the time limit.

      . We also note that the filing of the motion to quash suspended the running of this time and triggered a one-year deadline following the denial of writs by this court on June 13, 2002.


source: Caselaw Access Project

author: |, PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Reggie EASON, Appellant.
    No. 37,303-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 16, 2003.

      Louisiana Appellate Project, by Kenota Pulliam Johnson, Indigent Defender Board, by Jack W. Slaid, Minden, for Appellant.
    Schuyler Marvin, District Attorney, Jason T. Brown, Andrew C. Jacobs, Louis Charles Minifield, C. Sherburne Sentell, III, Assistant District Attorney, for Appel-lee.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   |, PEATROSS, J.

Defendant, Reggie Eason, was charged with two counts of distribution of cocaine, in violation of La. R.S. 40:967, and one count of conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and 14:26. Subsequently, Defendant agreed to plead guilty to one count of distribution of cocaine and to the count of conspiracy to distribute cocaine in exchange for the State’s agreement not to charge Defendant as an habitual offender, to dismiss the remaining distribution charge and to recommend to the trial court that the sentences for each count run concurrently. After Defendant’s guilty plea, the trial court sentenced him to serve terms of ten years at hard labor for each count. The trial court ordered the sentences to run concurrent, but consecutive to any other sentence, with the first two years to be served without benefit of probation, parole or suspension of sentence. Defendant was not given credit for time served. Defendant moved for reconsideration of his sentence, but this motion was denied. Defendant appeals his sentence as excessive. For the reasons stated herein, we amend the sentences of Defendant and, as amended, affirm.

FACTS

On April 24 and 25, 2002, Defendant sold crack cocaine to a Minden Police Department confidential informant. These transactions were recorded with audio and video surveillance equipment by Detective Daniel Weaver of the Minden Police Department. Defendant was arrested at the Webster Parish Jail on May 17, 2002, by Officer Ron Payton of the Minden | ¡Police Department, and a bill of information charging him with the previously stated crimes was filed thereafter.

Initially, Defendant pled not guilty to the instant charges. On July 29, 2002, however, Defendant and the State entered into a plea agreement wherein Defendant pled guilty to one count of distribution of cocaine and to the count of conspiracy to distribute cocaine. The district attorney agreed to dismiss the remaining distribution charge and advised the trial court that he had no objection to the sentences for the two counts running concurrently with each other. Shortly before his guilty plea to the instant charges, Defendant was sentenced to two and one-half years at hard labor on an unrelated attempted possession of cocaine charge. The district attorney advised the trial court that he had no objection to the sentence on the unrelated charge also running concurrently with the sentences on the two instant charges.

There was no agreement between the State and Defendant as to the total length of the sentences, except that sentencing would be subject to a presentence investigation report (“PSP’). The trial court reserved the right to review Defendant’s PSI before making a determination as to whether the sentences would run concurrent to the unrelated sentence for attempted possession of cocaine. On September 27, 2002, the trial court sentenced Defendant. In reviewing Defendant’s PSI, the trial judge noted for the record Defendant’s extensive criminal record. The trial judge sentenced Defendant to ten years at hard labor on each count, with two years to be | aserved without benefit of probation, parole or suspension of sentence. Further, the trial judge ordered that the two sentences were to run concurrent with each other, but were to run consecutive to the unrelated sentence for attempted possession of cocaine. Defendant was not given credit for time served. Defendant filed a motion to reconsider his sentences, alleging that, while the sentences were within the statutory limits, he had not agreed to serve the unrelated attempted possession of cocaine sentence consecutive to the sentences received in the instant case.

At the hearing on the motion to reconsider, the trial judge stated that he had reserved the right on whether or not to order the two sentences to run concurrent with the third unrelated sentence until after a review of the PSI. The trial judge found that his order was appropriate and denied Defendant’s motion to reconsider the sentence. Defendant now appeals, raising the following assignments of error (verbatim):

1. The trial court erred in imposing excessive sentences;
2. The trial court failed to particularize the sentences, thus the sentences violates the guidelines of La. C. Cr. P. art. 894.1;
3. The trial court erred in denying Mr. Eason’s motion to reconsider sentence; and
4. The trial court failed to articulate particular justification for imposing consecutive sentences rather than concurrent sentences.

DISCUSSION

Defendant’s Sentences

In this appeal, Defendant argues his assignments of error jointly, asserting that the arguments are interrelated. Defendant contends that his sentences are excessive, but he did not assert the excessive sentence Largument in his motion to reconsider his sentence filed with the trial court. Accordingly, he is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. McEachern, 624 So.2d 43 (La.App. 2d Cir.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. It is the goal of La. C.Cr.P. art. 894.1 to provide a factual basis for the sentence imposed, thus providing a record that will allow for a reasoned review of the sentence. State v. Lanclos, 419 So.2d 475 (La.1982). The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Scott, 36,763 (La.App.2d Cir.1/29/03), 836 So.2d 1180.

The second prong used to determine if a defendant’s sentence is excessive is to examine whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of 15proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. Id. Past records of drug offenses should weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. Absent a showing of manifest abuse of the trial court’s discretion in sentencing a defendant, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Defendant also argues that the trial court was in error by ordering the two sentences to be served consecutive to the unrelated sentence of two and one-half years for attempted possession of cocaine. All factors in the case Dare to be considered in choosing whether to impose consecutive or concurrent sentences. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

Prior to imposing sentence in the case sub judice, the trial judge considered the PSI, which provided detailed information concerning Defendant who, at the time of sentencing, was 30 years old. The trial judge noted Defendant’s extensive criminal history, in that he was at least a second- or third-felony offender and he had numerous misdemeanor convictions. Defendant was convicted in 1994 for attempted possession of cocaine, in which he received a suspended two-year sentence, and was placed on active probation. That probation was later revoked and Defendant served time on the conviction. In 1996 Defendant pled guilty to simple robbery and received a two-year hard labor sentence. He was released on parole in January 1997. In 2002, Defendant also pled guilty to the unrelated attempted possession of cocaine charge, making his current convictions his fourth- and fifth-felony convictions. The trial judge found that Defendant was not a good candidate for a suspended sentence and probation, was in need of custodial treatment and that he was likely to |7commit another offense. The record further indicates that, with Defendant’s guilty plea, the trial judge agreed to consider making the two sentences concurrent with the other unrelated sentence, but reserved ruling on that request until after reviewing Defendant’s PSI. After reviewing the PSI, the trial judge ruled that he would not make the sentences concurrent with the other unrelated sentence. The trial judge carefully analyzed and gave the proper consideration to the sentencing factors in La. C.Cr.P. art. 894.1. We agree with the trial judge’s conclusions and findings.

On this record, we do not find constitutional error. Defendant received a substantial benefit through his plea bargain. The sentence received on the distribution charge was one-third of the maximum sentence of 30 years and two-thirds of the maximum sentence of 15 years on the conspiracy to distribute charge. The plea agreement also markedly reduced his exposure to possible life imprisonment as an habitual offender. Defendant has multiple prior convictions for drug offenses and has failed in attempts to complete probation and parole. The sentences imposed are lawful. Considering Defendant’s criminal record, we find that the sentences imposed are neither grossly disproportionate to the severity of the offense, nor are they shocking to our sense of justice. Moreover, the trial judge properly addressed the factors in this case and determined that Defendant should serve the unrelated sentence consecutive to the instant sentences. The trial judge was well within his discretion to make this ruling. There is no showing of an abuse of the trial judge’s discretion in the imposition of |sthese sentence, which are not constitutionally excessive. Defendant’s assignments of error are without merit.

Error Patent Review

On our own motion, we notice that the trial court minutes and sentencing transcript do not show that Defendant was given credit for time served. Failure to give credit for time served, which is mandated by La.C.Cr.P. art. 880, is error patent and may be corrected by an appellate court under La.C.Cr.P. art. 882, without remanding to the trial court for resentenc-ing. State v. Sweet, 575 So.2d 937 (La.App. 2d Cir.1991); State v. Trahan, 520 So.2d 789 (La.App. 3d Cir.1987), writ denied, 532 So.2d 172 (La.1988). When Defendant pled guilty in this case, he was incarcerated on the unrelated attempted possession of cocaine charge. Since Defendant is entitled to credit for time served under La.C.Cr.P. art. 880, we amend his sentences to credit him for time served, if the time he served before the imposition of the present sentences was not credited against the unrelated sentence he received for attempted possession of cocaine.

CONCLUSION

For the foregoing reasons, the sentences imposed on Defendant Reggie Eason are amended, and, as amended, affirmed.

SENTENCES AMENDED, AND, AS AMENDED, AFFIRMED.

      . Defendant was in the Webster Parish Jail on an unrelated charge. Defendant was also on parole at the time of his arrest.


author: | ¶ PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Walto HENDRICKS, Appellant.
    No. 37,045-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 16, 2003.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    Robert W. Levy, District Attorney, John L. Sheehan, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS & MOORE, JJ.
   | ¶ PEATROSS, J.

Defendant, Walto Hendricks, was convicted by a jury of aggravated flight from a police officer and was sentenced to serve two years at hard labor. Defendant appeals, assigning as error the trial judge’s ruling allowing the State to introduce certain tangible evidence during rebuttal. For the reasons stated herein, we affirm.

FACTS

On November 20, 2001, in Farmerville, Louisiana, Sergeant Chris Wingfield of the Union Parish Sheriffs Department received a “crime stopper” call informing him that Defendant was selling crack cocaine from his car and that there was a black male passenger also in the car. The car was described as a green Honda Accord with a sun roof. Sgt. Wingfield and other members of the sheriffs department began to patrol the Farmerville area looking for the vehicle.

Sgts. Peyton McKinnie and Keith Black-man observed the vehicle preparing to make a left turn at the traffic light at the intersection of La. Hwy. 2 and Martin Luther King Drive (“MLK Dr.”). Sgt. McKinnie, who was driving the police vehicle, motioned for Defendant to turn in front of the patrol car. When Defendant made the turn, Sgt. McKinnie turned behind Defendant’s vehicle and activated his emergency lights. Defendant did not pull over; rather, he accelerated his vehicle and a chase ensued. Sgt. McKinnie then turned on the siren and pursued Defendant, who was traveling at a high rate of speed, estimated to be 80 miles per hour at one point. During the chase, Defendant ran a stop sign at an intersection, | ¡¡traveled in the opposite lane to pass another vehicle while on MLK Dr., turned east on Oaklawn Drive and traveled a short distance before leaving the roadway and driving across a dirt portion of the intersection at Shelton Drive. Defendant continued a short distance on Shelton Drive before he suddenly stopped the car, exited the vehicle and began to run. Sgt. McKinnie exited his vehicle and began to chase Defendant, but was unable to apprehend him. The passenger in Defendant’s vehicle, Stacey Jones, was detained for questioning and released.

While the vehicle chase was in progress, there were several pedestrians, some of them small children, along the roadway.

Defendant’s vehicle was impounded and a vehicle inventory was performed which revealed no narcotics. Defendant was later arrested on November 27, 2001. As previously stated, Defendant was found guilty as charged by a jury and was subsequently sentenced to serve two years at hard labor. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in allowing the state to use previously undisclosed tangible physical evidence in rebuttal despite repeated discovery requests from the defendant prior to trial.

La. R.S. 14:108.1(C) states, in pertinent part:

Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop, under the circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by |3an emergency light and a siren on a vehicle marked as a police vehicle.

During trial, Defendant offered testimony from two witnesses who stated that they did not hear a siren during the chase of Defendant. In the rebuttal portion of the State’s case, the district attorney introduced a tape recording of a radio transmission which contains the sound of a siren in the background as the pursuing officers radioed back and forth to the dispatcher during the chase of Defendant. Defense counsel argues that the existence of this tape was never disclosed by the State during discovery and that the State’s failure to disclose this evidence prior to trial resulted in the defense calling witnesses who did not remember hearing a siren. Defendant argues that, had he known of the existence of the tape, he may have chosen not to put on evidence regarding the sounding of the siren and a different verdict may have been returned by the jury. Defendant further submits that the tape was discoverable and should have been disclosed prior to trial. According to Defendant, because the tape was not disclosed during discovery, the trial court’s admission of the tape in the State’s rebuttal was erroneous and warrants reversal of Defendant’s conviction.

The State notes that it never intended to use the taped recording of radio transmissions between Sgt. McKinnie and a Union Sheriffs Department dispatcher during its case in chief. The State further points out|4that it presented three witnesses during its case in chief who testified that Sgt. McKinnie activated the siren on his vehicle when the chase began. According to the State, the introduction of the audio tape was designed solely to discredit and rebut the testimony of defense witnesses who testified that they did not remember hearing a siren during the chase.

Generally, the discovery rules of the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151, citing State v. Selvage, 93-1435 (La.App. 1st Cir.10/7/94), 644 So.2d 745, writ denied, 94-2744 (La.3/10/95), 650 So.2d 1174. Regarding documents and tangible objects, La.C.Cr.P. art. 718 provides, in pertinent part, that, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which are intended for use by the state as evidence at the trial.

Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. Such evidence may be used to strengthen the state’s original case. The determination of whether evidence is rebuttal evidence and hence admissible is an issue | Bwhich is addressed to the sound discretion of the trial court judge. State v. Huizar, 414 So.2d 741 (La.1982); State v. Gantt, 616 So.2d 1300 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1302 (La.1993), citing State v. Widenhouse, 582 So.2d 1374 (La.App. 2d Cir. 1991), writ denied, 586 So.2d 567 (La.1991), cert. denied, 503 U.S. 910, 112 S.Ct. 1274, 117 L.Ed.2d 500 (1992). A trial court’s ruling on the admissibility of rebuttal evidence will not be disturbed except in extreme cases such as when the evidence was kept back deliberately for the purpose of deceiving and obtaining an undue advantage. State v. Williams, 445 So.2d 1171 (La.1984).

To obtain a conviction on the charge of aggravated flight from an officer, the state must prove that (1) the defendant intentionally refused to stop his vehicle, (2) human life was endangered by the failure of the defendant to stop his vehicle, and (3) the defendant knew that he had been given a visual and audible signal to stop by a police officer driving a marked unit, La. R.S. 14:108(C), together with 2 of the 4 acts listed in La. R.S. 14:108.1(D) which show human endangerment, to wit:

(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic.

The first two elements of the offense are not at issue in this appeal; rather, it is the third element, i.e., that Defendant knew that he had been given a visual and audible signal to stop by a police officer in a marked unit, |Bthat provides the basis of Defendant’s arguments. The State sought to prove this third element, during its case in chief, through the testimony of Officers McKinnie, Wingfield and Blackman. All three of these witnesses attested to the fact that the siren on the police vehicle was activated during the chase of Defendant.

Thereafter, in Defendant’s case in chief, Ladonna Cook (Defendant’s sister), Tyjuan Hendricks (Defendant’s nephew) and Stacey Jones (passenger in Defendant’s vehicle during the chase), each testified that they did not recall hearing a siren during the chase. Since the defense presented this new evidence, the State was entitled to present rebuttal evidence on this element of the offense. State v. Williams, supra. The audio tape of the radio transmissions on which the sound of the siren is audible was introduced, over defense counsel’s objection, to rebut the three defense witnesses’ testimony. The record does not support Defendant’s contention that the State purposely withheld the existence of the tape from Defendant to obtain an advantage. We find no error in the trial court’s admission of this rebuttal evidence.

In addition, as previously mentioned, La. C.Cr.P. art. 718 provides, upon the defendant’s motion, for the disclosure of documents and tangible objects in the state’s possession, custody or control which it intends to use as evidence at trial. Since the State did not intend to introduce the tape at trial, and, in fact, only introduced it to rebut Defendant’s evidence, we find |7that the State was not required to disclose the recording of the radio transmission in response to Defendant’s pre-trial discovery motions.

CONCLUSION

For the foregoing reasons, Defendant Walto Hendricks’ conviction and sentence are affirmed.

AFFIRMED.

      . During argument on Defendant’s objection to the admission of the tape, the district attorney stated that he did not intentionally mislead defense counsel or the trial court regarding the existence or contents of the tape. In fact, the district attorney informed the trial court that he listened to the tape for the first time during Defendant’s case, after the three witnesses for Defendant had testified that they did not hear a siren during the chase.


author: I,WILLIAMS, J.

text:
    John MOSLEY, Sr., Plaintiff-Appellant, v. PENNZOIL QUAKER STATE, (formerly known as Westland Oil Company), Defendant-Appellee.
    No. 37,199-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 23, 2003.

      S.P. Davis, for Appellant.
    Franklin H. Spruiell, Jr., for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   I,WILLIAMS, J.

In this workers’ compensation case, the claimant, John Mosley, Sr. (“Mosley”), appeals from a judgment in favor of the defendant, Pennzoil Quaker State Company (“Pennzoil”), denying his request for a second surgery as recommended by his treating physician. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On or about April 10, 1995, the claimant, John Mosley, Sr., injured his lower back while loading and unloading cases of oil during his employment as a forklift operator for Pennzoil. In June 1995, Mosley was examined by Dr. Carl Goodman, an orthopedic surgeon, who concluded that Mosley had a herniated disc at L4-5 and required surgery. In July 1995, Mosley began treatment with Dr. David Cava-naugh, a neurosurgeon. Dr. Cavanaugh attempted conservative treatment of Mosley until February 4, 1998, when he performed lower-back surgery. Mosley’s surgery consisted of a micro-surgical bilateral laminotomy and diskectomy at the L4-5 and L5-S1 discs. These procedures involved the complete removal of the disc material at both disc levels. After the surgery, Dr. Cavanaugh released Mosley from work until August 1,1999.

In October 1998, a post-surgical MRI was conducted. According to Dr. Cava-naugh, Mosley was recovering satisfactorily and there was no evidence of disc herniation or stenosis at L4 or L5. In August 1999, Mosley returned to work, in the position of inspector/packer, with various work restrictions in accordance with Dr. Cava-naugh’s orders. Pennzoil | accommodated Mosley’s physical condition as requested by Dr. Cavanaugh by eliminating certain functions of Mosley’s position. Complaining of continuous and persistent pain, Mosley did not perform the required work and subsequently sought treatment from another physician, Dr. Pierce Nunley, an orthopedic surgeon. In December 2000, Dr. Nunley ordered another MRI of Mosley’s lower back. Based upon this MRI, Dr. Nunley concluded that Mosley was suffering from a recurrent disc herniation at L4-5 and recommended that Mosley undergo a decompression and spinal-fusion surgery. In response to the recommendation, Pennzoil had Mosley re-examined by Dr. Goodman, who found no evidence of a recurrent herniation, but noted that the MRI showed the existence of scar tissue from the previous surgery.

Because of the conflicting interpretations of the MRIs, Pennzoil filed a formal request for Mosley to submit to an independent medical examination (“IME”), pursuant to LSA-R.S. 23:1123 and 1317.1. The workers’ compensation judge (“WCJ”) appointed Dr. Robert E. Holladay, IV, also an orthopedic surgeon, to perform the IME. In December 2001, Dr. Holladay examined Mosley. He opined that Mosley had not suffered a recurrent disc herniation and refused to recommend surgery.

Subsequently, the WCJ conducted a hearing to determine whether Mosley should be allowed to undergo the decompression and fusion surgery, at Pennzoil’s expense, as recommended by his treating physician. After ordering briefs and taking this matter under advisement, the WCJ denied the claimant’s request for decompression and fusion surgery and |3dismissed his claim. Mosley appeals.

DISCUSSION

Mosley contends the WCJ erred in denying his request for a second surgery for a recurrent herniated disc as recommended by Dr. Nunley, his treating physician. He argues the judge improperly gave greater weight to the opinions of Drs. Goodman and Holladay than to the opinion of his treating physician.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551; Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Banks, supra; Freeman, supra; Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Banks, supra; Stobart, supra. Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, supra.

As a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient |4oniy once or twice. McDonald v. New Orleans Private Patrol, 569 So.2d 106 (La.App. 4th Cir. 1990). However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986 (La.App. 4th Cir.1990).

Mosley contends the trial court was required to give Dr. Nunley’s testimony and opinion more weight than the opinion of Drs. Goodman and Holladay. As support for this contention, he cites McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App.2d Cir.3/30/94), 634 So.2d 927. We do not find that McCartney stands for the proposition that the treating physician’s opinion must prevail over that of other medical experts in every case. The factfinder is not precluded from making determinations regarding the credibility of witnesses and respect should be given to those conclusions. After weighing and evaluating the medical testimony, the trier of fact may accept or reject the opinion expressed by the medical expert. The factfinder should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. Id. Further, the treating physician’s testimony must be weighed in light of other credible evidence. Latiolais v. Jernigan Bros., Inc., 520 So.2d 1126 (La.App. 3d Cir.1987).

An IME’s medical conclusions should be given significant weight because the IME is an objective party. Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3d Cir.7/24/96), 677 So.2d 1132. Nevertheless, the opinion of the IME is not conclusive and the WCJ must evaluate all of the ^evidence presented in making a decision as to a claimant’s medical condition. Brasseaux v. Abbeville General Hosp., 97-1062 (La.App. 3d Cir.3/18/98), 710 So.2d 340, reversed in part on other grounds, 98-1066 (La.6/5/98), 720 So.2d 673. “[T]he significant weight [given to the testimony of a court-appointed expert] can be less or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors.” Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4th Cir. 1985), writ denied, 478 So.2d 910 (La.1985) (emphasis added).

At the hearing, the medical evidence was presented through the deposition testimony and medical records of the respective physicians. Dr. Nunley had treated Mosley since November 29, 2000. Dr. Nunley is an orthopedic surgeon who specializes in spinal disorders and fusion surgeries and has been in the practice less than ten years. Dr. Nunley diagnosed Mosley with a possible recurrent disc herniation after reviewing Mosley’s previous MRI conducted on October 16, 1998; however, after reviewing the new MRI conducted on December 19, 2000, Dr. Nunley opined that Mosley had definitely sustained a recurrent disc herniation as a result of the April 1995 accident. Dr. Nunley testified that he informed Mosley that he had two options with regard to his back injury, either live with the pain or undergo a decompression and spinal-fusion surgery. Dr. Nunley concluded that Mosley was a reliable and credible patient and Mosley’s subjective symptoms were verified by the objective findings.

Un support of its position, Pennzoil submitted the deposition testimony of Drs. Cavanaugh, Goodman and Holladay. Dr. Cavanaugh was Mosley’s treating physician for at least four years. Dr. Goodman was the orthopedic specialist who examined Mosley in 1995 and concluded that Mosley needed lumbar surgery because he had suffered a disc herniation at L4-5. Dr. Holladay was the IME appointed by the WCJ. Drs. Goodman and Holladay opined that Mosley had not suffered a recurrent disc herniation and was not a good candidate for a second back surgery.

Mosley contends there is no comparison of the medical evaluation and treatment performed by Dr. Nunley to the evaluations by Drs. Goodman and Holladay. He asserts that it is impossible for Drs. Goodman and Holladay to possess the quality and quantity of factual medical observation, testing, evaluation and personal knowledge of his condition as that possessed by his treating physician. Mosley also alleges that Dr. Goodman has performed only a small number of spinal fusion surgeries.

According to Dr. Goodman’s deposition testimony, he is a board-certified orthopedic surgeon, who has practiced in the Shreveport area for thirty-four years. He testified that in 1998, he completed a spine fellowship,- and he presently has limited his orthopedic practice to problems and disorders of the spine, including spinal surgery. As previously stated, Dr. Goodman was the first specialist to examine Mosley after his injury. He recommended that Mosley undergo the first lumbar surgery. Unlike Dr. Nunley, Dr. Goodman testified that he examined Mosley and reviewed MRIs of Mosley’s back, both pre-surgery and post-surgery. Based upon his |7review of both MRIs, Dr. Goodman determined that there was no evidence of a recurrent disc herniation, but only scar tissue. According to Dr. Goodman, during the course of the physical examination, Mosley would indicate that he was incapable of moving. Mosley complained of numbness in both of his legs and pain when the doctor lightly touched his lower back. Dr. Goodman stated that there was simply no medical explanation for the complaints Mosley expressed during the physical examination. He further testified that he did not know of any related medical condition that would cause a patient to jump when lightly touched on the skin of the back or that would cause both of the patient’s legs to “go numb from the hip down.” He opined that Mosley was exaggerating his pain and symptoms.

Dr. Holladay reached the same conclusion with regard to Mosley’s exaggeration of his pain and symptoms. Dr. Holladay performed various non-physiological tests to determine whether Mosley was suffering psychological stress or whether an “illness behavior” was influencing his medical situation. After completing numerous tests, Dr. Holladay determined that Mosley was not a good surgical candidate, even if he had suffered a recurrent disc herniation. Dr. Holladay summarized his conclusions regarding Mosley’s “illness behavior” as follows:

Q: And ultimately, in terms of the analysis, did you reach an opinion as to whether or not Mr. Mosley was a viable candidate for additional lumbar surgery?
A: Based on my review and examination, review of the records and looking at the X-rays, I did not feel that he was a good surgical candidate.
Q: Can you tell us in kind of a summary fashion why you came to that conclusion?
|SA: Well, a combination of the history and the records that I received — apparently this proposal for surgery was made by Dr. Nunley — and from my review of the records of the evaluation he had had at that point, the treatments that he had had, the things that had been tried which had all failed to give him any relief whatsoever, and then based upon my physical examination and my findings from that physical examination, I didn’t feel that he was a candidate for surgery. There were no objective neurological — abnormal neurological findings. There were really no objective orthopedic findings. There was a display of a large amount of non-physiologic responses which are anatomically not possible to elicit some of the responses that were obtained, and there is no way to explain that except on an emotional basis. From a physiological basis related to his spine there would be no connection.
Based on that, any surgical procedure in my opinion would fail miserably, and in fact, I think he would be much worse off than what he is now if he had an operation.
Q: All right. Let me ask you specifically about the non-physiologic signs that you referenced in your previous answer, and I believe those are referenced at the bottom of page six of your particular report. Could you tell us what you did and why you performed these tests or procedures on Mr. Mosley?
A: And in specific, the things that were done: Mr. Mosley was sitting on a stool, and my purely putting my hands on his shoulders and putting some downward pressure causes low back pain ... I wasn’t putting a lot of pressure. Just a little mild pressure, and it showed that it elicits complaints of back pain and tingling in his feet. There’s no way that can cause tingling in the feet, me just putting a little pressure on his shoulders. Having him stand up with his hands at his side and then for me just holding his pelvis, just rotating his pelvis about 45 degrees, his pelvis and his shoulders rotating together — there’s no movement of the lower back — that response or movement of that caused a response of back pain and numbness and tingling in his legs and his feet. Again, there’s no way that anatomically you can elicit or stretch anything or pull anything that would make him have back pain or leg pain.
Testing him for numbness with a sharp pinwheel, he had numbness from his knees all the way down to his feet in kind of like a stocking or a long-leg stocking from the knee down the feet. To have complete numbness all around the leg would involve three or four different nerve roots that come out of the back. That just doesn’t happen unless you’re paralyzed, basically. And so the finding of stocking anesthesia is another lflone of the Waddell signs ...
I put my hand on his breastbone and my hand on the back of his ribcage, and just me pushing the ribcage front to back — I wasn’t even touching his lower back, just his mid-back — that causes a response of numbness and tingling in both of his feet. There’s no way anatomically that can occur.
So all those signs to me showed extreme exaggeration of the symptoms that he was complaining of, and there’s not a physical or physiological basis that you could explain that kind of response.
Q: So from a medical standpoint, and specifically an orthopedic surgical standpoint, there is no explanation for those responses based on the procedures that you did ... ?
A: I would say he has an emotional component which could explain those complaints.

Based upon their interpretations of the MRIs and their physical examination of Mosley, Drs. Holladay and Goodman expressed reservations that Mosley was not a good candidate for a second surgery and was exaggerating his complaints. On the other hand, Dr. Nunley had no reservations and interpreted the MRIs and Mosley’s physical symptoms differently. Therefore, there existed two different and separate views of the evidence in this regard and the WCJ chose to accept the opinions of Drs. Holladay and Goodman over the opinion of Dr. Nunley. Although, the WCJ may accord greater weight to the treating physician’s opinion, his or her opinion is not irrebuttable or conclusive. Here, the defendant successfully rebutted Dr. Nunley’s opinion by presenting the testimony of Drs. Goodman, Holladay and Cavanaugh. We also note that Dr. Cava-naugh was Mosley’s treating physician for four years. After viewing a post-surgery MRI, Dr. Cavanaugh determined that there was no evidence of a re-current | iodise herniation. Further, because Dr. Holladay was a court-appointed expert, his testimony should be accorded great weight as the “objective” physician. Thus, Dr. Nunley’s status as the “treating physician” is counterbalanced by the credible testimony of the other qualified medical experts. Based on the evidence presented in this case, we find the WCJ did not abuse her discretion in refusing to give Dr. Nunley’s opinion greater weight than the opinion testimony of the other physicians who examined Mosley. Consequently, we conclude that the WCJ did not err in denying Mosley’s request for a second lumbar surgery. This argument is without merit.

CONCLUSION

For the reasons expressed, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the claimant, John Mosley, Sr.

AFFIRMED.

      . The record reflects that the defendant/employer was formerly known as Westland Oil Company. In this opinion, we will refer to the defendant as Pennzoil.


author: I,WILLIAMS, Judge.

text:
    Tommy G. MARTIN and Brenda R. Wilson Martin, Plaintiff-Appellee, v. John W. BRISTER, Jr., Defendant-Appellant.
    No. 37,011-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 23, 2003.

      Charles W. Seaman, Natchitoches, for Appellant.
    Bobby L. Culpepper, Jonesboro, for Ap-pellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ. •
   I,WILLIAMS, Judge.

The defendant, John Brister, Jr., appeals a judgment in favor of the plaintiffs, Tommy Martin and Brenda Martin. The trial court found that pursuant to a verbal contract of sale, the plaintiffs had paid $6,000 to purchase a strip of land measuring 40 feet by 200 feet. The court adjudicated title to the property to the plaintiffs, awarded defendant $850 owed by plaintiffs and dismissed all other claims. For the following reasons, we affirm.

FACTS

On January 3, 1997, John Brister, Jr., conveyed to Tommy Martin and his wife, Brenda Martin, a two-acre tract of land, which measured 208.71 feet by 417.40 feet, located along Highway 167 in Winn Parish, Louisiana. The parties executed a “Credit Sale” instrument and deed for the consideration of $75,600 and the seller acknowledged receipt of a $5,600 down payment with a promissory note and mortgage for the balance of $70,000. At the time, the parties did not realize that the property was incorrectly described in the credit sale instrument.

Shortly after the sale, the Martins approached Brister about purchasing an additional 40-foot strip of land adjacent to the tract previously conveyed for use as a driveway. According to the Martins, Bris-ter agreed to sell the strip for $6,000 and to sign a deed correcting the original property description and including the additional 40 feet. Although Brister does not dispute that he agreed to sell an additional 40 feet to the Martins, he denies that there was consent as to the purchase price. There was no written agreement regarding the sale of the 40-foot strip of land.

| ¡..Subsequently, the Martins borrowed funds from T.J. Kervin to pay the balance owed to Brister. On February 6, 1997, they gave Kervin a mortgage on the land bought from Brister as security for the loan. Kervin then delivered a check for the necessary funds to the Daniel Frazier Trust Account. The following day, the Frazier Trust issued a check to Brister in the amount of $76,466.67 as full payment of the Martins’ promissory note. According to the Martins, the amount of the check included $70,000 for the balance due on the note, $6,000 for the additional 40-foot lot and $466.67 for one month’s interest. Brister accepted the payment, but did not deliver the cancelled promissory note and mortgage to the Martins.

Approximately one year later, in February 1998, the Martins’ attorney prepared a “Correction Credit Deed” to correct and amend the original property description and to include the additional 40-foot strip of land. Brister refused to sign this correction deed and sent the Martins’ attorney an alternative revised deed, which corrected the original instrument, but did not add the 40-foot lot to the property description.

Subsequently, the plaintiffs, Tommy and Brenda Martin, filed a petition for damages against the defendant, John Brister, Jr., for his failure to execute an act of correction of the credit deed and to cancel the note and mortgage. The plaintiffs requested that the credit deed property description be corrected and amended and that defendant be ordered to convey to them the 40-foot strip of land adjacent to the property originally described. The defendant filed an answer and reconventional demand seeking damages for lost video poker revenue, property damage and payment for a motor boat.

13At trial, the parties gave conflicting testimony regarding the circumstances of their transaction. The plaintiffs introduced into evidence the credit sale deed, the checks paid to defendant and the correspondence sent to him by their attorney. In its reasons for judgment, the trial court found that the parties had formed a verbal contract for the sale of the strip of land measuring 40 feet by 200 feet adjacent to the property originally conveyed for the price of $6,000 and that possession of the lot had been transferred to plaintiffs for the construction of a driveway. The court rendered judgment adjudicating title to the 40-foot strip of land to plaintiffs, awarding defendant $850 for the value of a motor boat and dismissing all other claims. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in finding that there was an enforceable verbal contract between the parties. Defendant argues that the evidence failed to establish a sale because the parties did not agree on the thing to be sold or the price.

Generally, a transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated under oath. LSA-C.C. art. 1839. The term actual delivery means that the immovable which is the object of the verbal sale has in fact been transferred or placed into the possession of the buyer. A determination of whether actual delivery of an immovable has been made depends on the | circumstances of each individual case. Duhon v. Dugas, 407 So.2d 1334 (La.App. 3rd Cir.1981). A sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price and the consent of the parties are requirements for the perfection of a sale. LSA-C.C. art. 2439.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State DOTD, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, defendant argues in his brief that the parties did not agree on the thing to be transferred because he agreed to sell a 40-foot lot, but the plaintiffs’ petition and their attorney’s correspondence refer to a 48-foot strip of land. However, at trial the plaintiffs and defendant all testified that they had discussed the sale of a strip of land measuring 40 feet by 200 feet adjacent to the tract previously conveyed. Thus, the testimony demonstrated that the parties had agreed on the thing which was the object of the sale.

The defendant also contends that the parties did not agree on the sale price of the 40-foot strip of land. The evidence shows that the January 1997 promissory note stated a balance due of $70,000 and that in February 1997, defendant appeared at the office of Daniel Frazier to collect a check in the amount of $76,466.67 as payment of the note. The plaintiffs testified that lsthe amount of $6,466.67 above the balance owed reflected the $6,000 price of the 40-foot lot and one month’s interest. Defendant testified that this amount represented a pre-payment penalty. However, the promissory note did not provide for the assessment of such a penalty. Additionally, in May 1997, the Louisiana Department of Transportation and Development issued a permit for construction of a driveway to Tommy Martin as owner of the land and defendant signed a statement that he did not object to extending the driveway. Defendant’s acceptance of the $6,000 payment in excess of the amount due under the 1997 note and his acquiescence in plaintiffs’ exercise of ownership over the 40-foot strip of land at issue support a finding that the parties had agreed to the price for the thing sold. Thus, defendant’s arguments are not supported by the record.

At trial, the defendant testified as follows:

It is on the side of the forty feet. But, his forty feet is (sic) built up. You see I sold Tommy forty feet. I said, yeah, Tommy I will sell you the forty feet. There is no question about that in my mind. I sold him forty feet. He just never did pay me for it. That is the reason we are here today.

The above quoted testimony shows that defendant acknowledged under oath that he had made a verbal sale of the 40-foot strip of land to the plaintiffs. Witness testimony that the plaintiffs had built a driveway across the 40-foot lot supports the trial court’s determination that the property was placed into the possession of the plaintiffs. Based upon the evidence presented, we conclude that the requirements of Article 1839 were satisfied by the actual delivery of the property to the plaintiffs and the defendant’s recognition of the transfer under oath. Consequently, we cannot say the trial | ficourt was clearly wrong in finding that the verbal sale of the 40-foot lot was valid. The assignment of error lacks merit.

Reasons for Judgment

The defendant contends the trial court erred in stating that plaintiffs were not seeking a correction deed, but reformation of a contract. An appeal is the exercise of a party’s right to have a judgment of a trial court reviewed by an appellate court. LSA-C.C.P. art.2082. An appeal lies from the judgment itself, not from the reasons for judgment. Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35.

Here, defendant has assigned as error a statement which is not part of the signed judgment, but is contained in the court’s written reasons for judgment. Consequently, the trial court’s characterization of the plaintiffs’ action is not an issue on appeal. We would note that the plaintiffs sought a court ordered correction and amendment of the property description in the parties’ original written instrument to reflect the subsequent purchase of the 40-foot lot. Thus, the court’s statement that plaintiffs sought reformation of a contract appears accurate. The assignment of error is without merit.

Judgment

The defendant contends the trial court erred in rendering judgment adjudicating title of the disputed property to the plaintiffs. All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected. LSA-C.C.P. art.2089. The tract of land affected should be described with reference to landmarks such as roads, benchmarks, or other monuments which can be located or a survey _jjCommencing at some established point. Gandy v. Deese, 29,032 (La.App.2d Cir.1/22/97), 688 So.2d 620; Copellar v. Yount, 344 So.2d 1114 (La.App. 3rd Cir. 1977).

In the present case, the judgment recognizing plaintiffs as the owners of the disputed tract includes a description of the immovable property with reference to a U.S. highway right-of-way as a landmark. Consequently, we conclude that the judgment describes with adequate particularity the affected immovable property. The assignment of error lacks merit.

Reconventional Demand

The defendant contends the trial court erred in dismissing his claim for the cost of buying and spreading dirt to raise the elevation of his lot. Defendant argues that he suffered property damage due to runoff resulting from plaintiffs’ act of increasing the elevation of their lot.

A landowner is responsible for discharges that deprive his neighbor of the right to enjoy his property. LSA-C.C. art. 667. To recover under Article 667, a party must prove that operations on his neighbor’s land have become a nuisance causing him to suffer damage. Arnold v. Town of Ball, 94-972 (La.App. 3rd Cir.2/1/95), 651 So.2d 313.

In the present case, defendant testified that rain runoff from the plaintiffs’ land had caused erosion damage and he introduced into evidence an exhibit showing the cost of buying and applying dirt to raise his lot’s elevation. However, defendant did not present any evidence regarding the type or extent of the alleged damage caused to his land by the runoff from the plaintiffs’ lot. Based upon this record, we cannot say the trial court was |sclearly wrong in finding that defendant failed to produce sufficient evidence to establish that he was deprived of the use of his property by the activity of the plaintiffs. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, John Brister, Jr.

AFFIRMED.


author: JjMOORE, J.

text:
    AMERICAN ZURICH INSURANCE COMPANY, et al., Plaintiffs-Appellants, v. David L. JOHNSON dba David Johnson Drywall, et al., Defendants-Appellees.
    No. 37,567-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 30, 2003.

      Storms & Storms, by Tyler Graham Storms, Ruston, for Appellants.
    Hudson, Potts & Bernstein, by Robert M. Baldwin, Mark J. Neal, Monroe, for Appellees.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   JjMOORE, J.

Lincoln Builders Inc. and its workers’ compensation carrier, American Zurich Insurance Company (collectively “Lincoln”), appeal a summary judgment in favor of the defendant, Fidelity Security Insurance Company (“Fidelity”). For the reasons expressed, we affirm.

Procedural Background

As the general contractor on a job in Bastrop, Louisiana, Lincoln contracted with David Johnson, d/b/a David Johnson Drywall, to do Sheetrock work. In February 1998, Johnson obtained a certificate of insurance from James Fortner, d/b/a Premier Consulting, an insurance agent in Monroe. The certificate stated, inter alia, that Johnson had workers’ compensation coverage through Fidelity.

In April 1998, an employee of Johnson’s was injured on the job. According to Lincoln’s petition, Johnson’s “policy of insurance was never in force and for this reason Johnson was not covered.” As principal employer, Lincoln was called upon to pay the employee’s medical and indemnity benefits pursuant to La. R.S. 23:1032 A.

In April 1999, Lincoln filed this suit seeking reimbursement of the $21,927.18 it had paid in compensation benefits. It named as defendants Johnson, from whom indemnity was due under R.S. 23:1061; Fortner, for collecting a premium and issuing a certificate but failing to obtain the insurance; and Fidelity, for allowing its agent, Fortner, to list its name on the certificate to Lincoln’s detriment.

Fortner initially denied liability, but later Lincoln took his deposition and he admitted that his office had erroneously issued the certificate. He ^explained that due to a lack of communication, his secretary had listed Johnson as an employee of another company, Dixie Roofing, for whom Fortner had secured compensation coverage from Fidelity. In point of fact, Dixie' Roofing was the only customer for whom Fortner had ever obtained a Fidelity policy, and Fidelity was no longer writing new compensation policies in Louisiana. Fort-ner added that he never transacted any business with Fidelity, but had secured the Dixie Roofing policy through Fidelity’s third-party administrator, SIS. Nevertheless, Fortner’s secretary typed a certificate designating Fidelity as Johnson’s compensation carrier. Fortner could not recall if Johnson made a down payment at the time, but admitted there was never any coverage with Fidelity. Fortner made an affidavit admitting he was responsible for Lincoln’s loss, and signed a promissory note for $31,651.88 in its favor. Lincoln entered a judgment for this amount, reserving all rights against Johnson and Fidelity.

Johnson also filed an answer denying liability, but Lincoln appears to have taken no further steps against him.

Fidelity filed a motion for summary judgment, urging that by Lincoln’s own petition, “the policy of insurance was never in force,” and thus Fidelity could not be liable on a policy. Fidelity also argued that based on Fortner’s deposition and affidavits from officers of Fidelity and SIS, Fortner was not an agent of Fidelity and there was no privity of contract between the two. Without agency or privity, Fidelity argued, Fortner could not bind Fidelity. It concluded that a putative insurer is not liable when an independent agent fails to procure requested insurance. Roger v. Dufrene, 602 So.2d 323 (La.App. 4 Cir. 1992), rev’d on other grounds, 613 So.2d 947 (La.1993); Ray v. Mid South Underwriters, 526 So.2d 1297 (La.App. 3 Cir. 1988).

Lincoln opposed the motion, urging that Fortner had the putative mandate or apparent authority to bind Fidelity, which held him out as its mandatary. Lincoln also asserted that Fortner could have been confused as being an agent of Fidelity, “as he labored under that belief.” Lincoln further contended that it “actually and reasonably relied to its detriment on the certificate of insurance issued by Fidelity’s agent,” and that Fidelity “shares the blame” with Fortner for entrusting him with the management of one of its policies (for Dixie Roofing). Finally, Lincoln pled inadequate discovery and that the question of apparent authority is too fact-intensive to warrant disposition by summary judgment.

After a hearing, the district court granted Fidelity’s motion, adopting as its own reasons for judgment those set forth in Fidelity’s memorandum in support of its motion for summary judgment. Lincoln has appealed, advancing five assignments of error.

Discussion

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed |4actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. After the burden has shifted, the plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of its claim. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.6/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

One who causes a third person to believe that another person is his manda-tary is bound to the third person who in good faith contracts with the putative man-datary. La. C.C. art. 3021. For the doctrine of apparent | ^authority to apply, the principal must make some kind of manifestation to an innocent third party, and then the third party must reasonably rely on the purported authority of the agent as a result of the principal’s manifestations. Boulos v. Morrison, 503 So.2d 1 (La.1987); Kobuszewski v. Scriber, 518 So.2d 524 (La.App. 2 Cir.1987). In the absence of contact between the putative principal and the third party, there is no manifestation and, a fortiori, no apparent authority. Id.

Insurance agents are persons employed by the insurer to solicit risks and effect insurance. Insurance brokers solicit insurance from the public under no employment from any special company, placing the insurance with any company selected by the insured or by the broker himself. In general, the distinction between them is that absent special circumstances, the broker is the agent of the insured in procuring the policy of insurance and does not represent the insurer. Tassin v. Golden Rule Ins. Co., 94 0362 (La.App. 1 Cir. 12/22/94), 649 So.2d 1050; Karam v. St. Paul Fire & Marine Ins. Co., 265 So.2d 821 (La.App. 3 Cir.1972), aff'd, 281 So.2d 728, 72 A.L.R.3d 697 (1973). The acts of the agent of the insured are not imputable to the insurer. Id.

By its second and third assignments of error, Lincoln urges the district court erred in finding that, no matter what the facts reveal, Fortner could not bind Fidelity and Fidelity could not be liable for negligently entrusting Fortner with the writing of its policies. The argument is largely the same as that rejected by the district court, but Lincoln stresses that the business relationship between Fortner and Fidelity has not been fully | (¡developed; that Lincoln reasonably relied to its detriment on a certificate issued by Fidelity’s agent, Fortner; that issuing certificates fell within Fortner’s actual authority; and that Fortner’s agency relationship continued even after Fidelity decided to stop writing new policies in Louisiana.

The decisive legal precept is that putative mandate or apparent authority cannot exist without a manifestation by the putative principal (here, Fidelity) to the third party (Lincoln). In response to the motion for summary judgment, Lincoln has not shown that it ever received any form of manifestation, written or otherwise, from Fidelity. As a matter of law, this deficiency is fatal to the claim of liability based on putative mandate. Boulos v. Morrison, supra; Kobuszewski v. Scriber, supra.

The summary judgment evidence also undercuts the factual assertions that Fort-ner’s actions were authorized under his mandate from Fidelity and that his mandate continued even after Fidelity quit selling new policies in the state. The affidavits of Fidelity’s vice-president, Robert E. MeSweeney, and of SIS’s president, Phil Rearick, as well as the deposition of Fortner, all establish that Fortner never had an agency relationship with Fidelity. These documents show that Fortner represented Johnson, not Fidelity. Tassin v. Golden Rule Ins. Co., supra. They also show that there was no agency relationship to revoke. Lincoln offers nothing but speculation that these witnesses’ perception of the relationship between Fortner and Fidelity is wrong. Speculation will not defeat a properly supported motion for summary judgment. Babin v. Winn-Dixie La., supra. These assignments of 17error lack merit.

The same considerations also resolve Lincoln’s first assignment of error, which urges that summary judgment was improper because of lack of adequate discovery. In support, Lincoln offers the affidavit of its own benefits coordinator, Debra Heard, saying that the industry standard is for the general contractor to obtain a certificate of insurance showing that the subcontractor is covered, and that Lincoln obtained such a certificate on behalf of Johnson. However, the certificate was issued by Fortner’s office and signed by Fortner. The basis of putative mandate is a representation by Fidelity, not Fort-ner, to Lincoln. Communications from Fidelity to Lincoln would be, presumably, in Lincoln’s possession, but Lincoln has produced none to oppose the motion for summary judgment. Instead, Lincoln proposes additional discovery to probe the relationship between Fidelity and Fortner, but this would produce no evidence of representations to Lincoln. This assignment lacks merit.

By its final two assignments of error, Lincoln urges that summary judgment is inappropriate because the issue of apparent authority is fact-intensive and hinges on questions of motive, intent or knowledge. Mandate is never presumed; it must be clearly established. The burden of proving putative mandate is on the party seeking to bind the principal. McManus v. Southern United Fire Ins., 00-1456 (La.App. 3 Cir. 3/21/01), 801 So.2d 392. While questions of motive, intent or knowledge will ordinarily preclude a summary judgment, the summary judgment evidence offered in this case is uniform in showing that Fortner was not Fidelity’s agent, and that Fortner lacked the authority to bind Fidelity on behalf of Johnson. On such a showing, summary judgment is proper. Id. These assignments of error lack merit.

On the instant record, we find that no genuine issues of material fact remain and that Fidelity is entitled to judgment as a matter of law.

Conclusion

For the reasons expressed, the summary judgment in favor of Fidelity Security Insurance Company is affirmed. Costs are assessed to the appellants, Lincoln Builders and American Zurich Insurance Company.

AFFIRMED.

      . At oral argument, Lincoln’s counsel suggested that by virtue of its settlement with Fort-ner, Lincoln was subrogated to Fortner’s position, ergo representations made by Fidelity to Fortner would serve as representations to Lincoln. We have reviewed the "judgment with reservation of rights,” as well as Fort-ner's “affidavit/stipulation” and promissory note; none of these documents provides for subrogation. Even if they did, Lincoln offered no authority for the novel proposition that it could recover more from Fidelity than Former could; such a result appears to be prohibited by La. C.C. art. 1830.