author: | GARRISON, Judge Pro Tempore. It CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Jennifer Denise QUIAMBAO, Appellant.
    No. 36,587-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      Wilson Rambo, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, David O’Brian Harkins, Jr., Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   | GARRISON, Judge Pro Tempore.

The defendant, Jennifer Denise Quiam-bao, was indicted for manslaughter in the stabbing death of her former husband, Arturo “Bobby” Quiambao. She admitted the stabbing in statements to sheriffs deputies shortly after the incident. Before trial, the district court ruled that the State could introduce evidence of two prior incidents in which she stabbed or threatened to stab Bobby. The jury rejected her claim of self defense and, by a 10-2 vote, found her guilty as charged. The district court denied her motion for new trial, rejecting her claim of jury misconduct. The court sentenced her to 20 years at hard labor with credit for time served. The defendant now appeals, urging five assignments of error. We affirm.

Factual and procedural background

Late on the evening of October 15, 1999, Ouachita Parish sheriffs deputies received a dispatch to a house on Keystone Road in northern Ouachita Parish. On arrival, deputies found EMS personnel trying to aid the victim, Bobby Quiambao, who was bleeding profusely on the living room floor. Deputies spoke to Casundra Downs, who had placed the 911 call, and to Mr. and Mrs. Marler, who owned the home, and learned that the Marlers’ daughter, Jennifer Quiambao, had stabbed Bobby with a kitchen knife. Deputies found Jennifer in a bathroom and advised her of her Miranda rights. Jennifer admitted stabbing Bobby, her ex-husband, and agreed to go to the sheriffs department to make a full statement.

In her statement, which was transcribed and read to the jury at trial, Jennifer disclosed that she and Bobby had been divorced for about two | ¡¿years. Jennifer was living with her parents, the Marlers, along with her two children with Bobby and another child from a prior marriage. The day before the incident, Bobby had returned from working offshore and spent the night on the living room couch as he often did when visiting his children. Jennifer described Bobby as “OK as long as he ain’t drinking,” but on the date of the incident he started drinking around noon. When Jennifer got home from work around 7:30, Bobby was drunk, “doing stupid things” like trying to kiss on her and singing. She told him to calm down, and then left with her friend, Ms. Downs, to ride around for a while. When they returned, Bobby started yelling at Jennifer, “messing with” her, screaming at her, saying nasty things; she hit him in the face with her fist and told him to sober up. Undeterred, he continued shouting at her and followed her into the kitchen, where he hit her between her legs and called her a whore. She grabbed a butcher knife from the sink and threatened him. “Every time [we] get into a fight, I’ll threaten him like that and usually he’ll leave me alone.” This time, however, things got out of control; she did not think she had hit him until she saw blood gushing out. When he stopped breathing, she tried to give him mouth-to-mouth resuscitation.

After taking Jennifer’s statement, deputies learned that Bobby had died at North Monroe hospital. Dr. Steven Hayne, the forensic pathologist who examined the body, testified that the cause of death was a stab wound some six inches deep to the left side of the chest, resulting in massive blood loss. This was consistent with an assailant standing in front of the victim and delivering the blow with her right hand.

13Casundra Downs, who had been out riding with Jennifer before this incident, confirmed that Bobby’s screams and taunts made Jennifer angry. She admitted that Jennifer landed the first blow, slapping Bobby in the living room; however, she thought Jennifer was defending herself when she stabbed him.

By contrast, Deputy Anthony Washington, who Mirandized Jennifer and participated in both of her statements, testified that she never said that Bobby had threatened her or she was in fear of her life. Deputy Talmadge Stutts, who led the investigation, testified that Mrs. Marler and Jennifer’s 11-year-old son corroborated Jennifer’s account of the incident.

The defense introduced photos taken the day after Jennifer’s arrest, allegedly showing scratches and lacerations on her right forearm. Robert Kelly, the Richwood Chief of Police and a licensed private investigator, testified that these were defensive wounds. On cross examination, however, he admitted they could have resulted from striking someone with the right arm. Dr. Lawrence Hill, who examined Jennifer at the Ouachita Parish Correctional Center, testified that he noticed only a bruise on the inside of her right wrist. He agreed that this could “potentially” have resulted from an offensive or defensive blow, but that such injuries were normally on the outside of the arm.

Four days before trial was set to begin, the State filed a notice of intent to use other crimes evidence. At the Prieur hearing, Deputy David Coutcher testified that in October 1994 he had been called to the Marlers’ house to investigate a domestic disturbance. Jennifer admitted she chased |4Bobby around with a steak knife, accusing him of an affair with her 15-year-old niece. Jennifer was not arrested for that incident. One of Bobby’s sisters, Laura Ansardi, testified that she was there and saw it happen.

Bobby’s other two sisters, Teresa Dalli-more and Renee Girault, testified that on an occasion in May 1999, Jennifer boasted that she had stabbed Bobby in December a year and a half earlier. Ms. Dallimore testified that the wound was in the back and required a few stitches.

The district court ruled that the two prior incidents were admissible under La. C.E. art. 404 B. At trial, these witnesses reiterated their testimony from the Prieur hearing. Ms. Dallimore and Ms. Girault added that in May 1999, Jennifer had said, “If he pisses me off again, I’ll do it again. Next time I’ll do it right.” Another witness, Jennifer’s sister Dana Marler, testified that she once saw Bobby “on top of’ Jennifer, hitting her.

The case proceeded to trial in August 2001. As noted, the jury found Jennifer guilty of manslaughter by a vote of 10-2. The defense filed a motion for new trial, alleging jury misconduct; the court denied it. The court sentenced her to 20 years at hard labor with credit for time served and denied a timely motion for reconsideration. Jennifer now appeals.

Discussion: Sufficiency of the evidence

By her first assignment, Jennifer urges the evidence was insufficient to sustain the conviction of manslaughter. She concedes that she stabbed Bobby, but contends that it was in self defense. She argues that Bobby provoked the stabbing and was the instigator, leaving her no reasonable choice other than to defend herself. She also cites the testimony of Mr. | sKelly, the private investigator, to show that wounds on her right forearm could be construed as defensive. By supplemental brief, she also contends that the use of deadly force was justified as she was entitled to compel an intruder to leave her residence pursuant to La. R.S. 14:20(3) and (4).

The standard of review for a claim of sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50. This objective standard applies to all evidence, direct and circumstantial, for reasonable doubt. State v. Marcantel, supra; State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78; State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. Moreover, the reviewing court must defer to the trier of fact’s rational credibility calls, evidence weighing and inference drawing. State v. Mussall, 523 So.2d 1305 (La.1988). It is not the function of the appellate court to assess credibility or re-weigh evidence. State v. Marcantel, supra; State v. Rosiere, 488 So.2d 965 (La.1986).

In State v. Hudson, 33,357 (La.App. 2 Cir. 5/10/00), 760 So.2d 591, this court set forth the law of manslaughter:

Manslaughter is a “homicide which would be [first or second degree murder], but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l).
Self-defense is justification for a killing only if the person committing the homicide reasonably believes he is in imminent |fidanger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App. 2 Cir. 3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1 Cir.1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346. The state has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Arnold, 30,282 (La.App. 2 Cir. 1/21/98), 706 So.2d 578.
For a homicide to be justified, the offender must have had a reasonable belief he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary, under the circumstances, to save himself from the danger. La. R.S. 14:20(1); State v. Dozier, 553 So.2d 911 (La.App. 4 Cir.1989), writ denied, 558 So.2d 568 ([La.]1990).
Factors to consider in determining whether a defendant had a reasonable belief the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2 Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).
When a defendant in a homicide case claims' self-defense, the state has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Garcia, 483 So.2d 953 (La.1986); State v. Flowers, 574 So.2d 448 (La.App. 2 Cir.), writ denied, 580 So.2d 666 (La.1991).

We have closely reviewed the evidence. Bobby strongly provoked Jennifer by shouting at her and calling her offensive names. However, Jennifer inflicted the first physical blow, and in her statement she admitted striking him more than once. He provoked her further by hitting her between the legs. Jennifer brandished the knife and threatened him; according to her recorded statement, after this type of threat, he would “usually” leave her alone. By her own admission, everything “got out of control,” and she did not realize she had stabbed him until she saw gushing 17blood. Viewed in the light most favorable to the State, this conduct was the result of provocation that deprived Jennifer of her self-control and cool reflection. La. R.S. 14:31 A(l).

Moreover, there is nothing in her recorded statement to suggest that Jennifer rationally believed she was in danger of death or great bodily harm, a point noted by Dep. Washington. She indicated that confrontations like this were not uncommon, and ended harmlessly. Ms. Downs testified that Jennifer appeared to be defending herself, but she did not witness the actual stabbing. Mr. Kelly, the investigator, theorized that scratches and abrasions on Jennifer’s right forearm were defensive, but he admitted they could also have been offensive. By contrast, Dr. Hill testified that the only bruise he noted on her arm was not really consistent with a striking motion. Viewed in the light most favorable to the State, this evidence shows beyond a reasonable doubt that Jennifer did not act out of a rational belief that she was in danger of death or great bodily harm. La. R.S. 14:20(1).

Finally, Jennifer contends by supplemental brief that the homicide was justified under R.S. 14:20(3) and (4). Subsection (3) does not apply as there is no evidence that Bobby was “committing or attempting to commit a burglary or robbery” of Jennifer’s parents’ home. State v. Guillot, 470 So.2d 360 (La.App. 5 Cir.), writ denied, 476 So.2d 347 (La.1985). Subsection (4) does not apply as there is no evidence that Bobby was “attempting to make an unlawful entry into the dwelling.” He had spent the night there with the permission of Jennifer and her parents.

For these reasons, this assignment of error lacks merit.

[ sOther crimes evidence

By her second assignment Jennifer urges the district court erred in admitting evidence of other crimes under La. C.E. art. 404 B. She contends that the State offered the testimony of Bobby’s three sisters solely to show that Jennifer is a bad person, rather than to show that the stabbing death was not an accident. She concludes that their testimony was highly prejudicial and outweighed any probative value it may have had.

The State counters that evidence of other threats and attacks on the victim were relevant to show Jennifer’s motive, intent, absence of mistake or accident, and state of mind. Intent was a crucial issue, the State urges, because Jennifer was convicted of manslaughter, a specific intent crime.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person “in order to show that he acted in conformity therewith.” La. C.E. art. 404 B. However, such evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” Id. The State must prove by clear and convincing evidence that the defendant committed the other crimes. State v. Jackson, 625 So.2d 146 (La.1993). Even if the evidence is independently relevant, it may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; State v. Miller, 98-0301 (La. 9/9/98), 718 So.2d 960. A district court’s decision to admit or exclude evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326; State v. Blackwell, 30,281 (La. App. 2 Cir. 11/10/97), 701 So.2d 1389, writ denied, 97-3073 (La.2/13/98), 709 So.2d 755.

As noted, R.S. 14:31 A(1) defines manslaughter as a homicide that would be first or second degree murder but is committed in sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control and cool reflection. As with first and second degree murder, manslaughter requires proof of specific intent. State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612, and citations therein.

Jennifer does not contend that the State failed to prove by clear and convincing evidence that she threatened Bobby with a knife in late 1994, stabbed him in late 1997, and boasted that she would “do it again” and “do it right” in May 1999. The only issues are whether the evidence of these prior bad acts was relevant to prove something other than her bad character and whether its probative value outweighed its prejudicial effect.

We perceive no abuse of the district court’s discretion. Jennifer was charged with manslaughter for the stabbing death of her ex-husband; her defense was that the stabbing was either accidental or in self-defense. The evidence of her prior conduct shows clearly and convincingly her propensity to brandish a knife in situations with Bobby. This supports a finding of lack of mistake or accident. Her comments in May 1999 support a finding of motive and intent. This evidence was relevant and probative under C.E. art. 404 B. Moreover, the district court gave a limiting instruction that the defendant could not be convicted for any crime other'than the one charged |inor a responsive offense. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141; State v. Prieur, 277 So.2d 126 (La.1973).

Finally, Jennifer contends that the State did not provide timely notice under State v. Prieur, supra. However, she has not shown any prejudice arising from the State’s somewhat tardy notice, specifically that it would have altered her trial strategy. State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Free, 26,267 (La.App. 2 Cir. 9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175. Thus we find no reversible error.

Motion for new trial

By her third assignment Jennifer urges the district court erred in denying her motion for new trial. Specifically, she contends the court should have allowed the jury foreman, Thomas Foster, to testify about his complaints of jury misconduct. About six weeks after trial, defense counsel received a letter from Foster alleging, inter alia, that individual jurors were discussing the facts of the case during breaks in the trial, contrary to the court’s instructions and before they received the case for deliberation. After extensive argument, the court denied the motion for new trial.

A member of the jury is generally disqualified as a witness. La. C.E. art. 606 A. Subsection B further provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon him or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether fyextraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

The jurors’ discussion of the facts among themselves, although in violation of the trial court’s instructions, was not shown to inject into the proceedings any outside influence or extraneous prejudicial information. The district court was not plainly wrong to find that the jury foreman’s letter does not meet the exception of art. 606 B and to exclude his testimony. State v. Graham, 422 So.2d 123 (La.1982), cert. dismissed, 461 U.S. 950, 103 S.Ct. 2419, 77 L.Ed.2d 1309; State v. Horne, 28,327 (La.App. 2 Cir. 8/21/96), 679 So.2d 953, writ denied, 96-2345 (La.2/21/97), 688 So.2d 521.

The denial of a motion for new trial is not subject to appellate review except for error of law. La.C.Cr.P. art. 858; State v. Horne, supra. The decision to grant or deny a new trial rests in the sound discretion of the trial court. State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923. Generally, a motion for new trial will be denied unless the defendant establishes that she has suffered some injustice. La. C.Cr.P. art. 851; State v. Burrell, 561 So.2d 692 (La.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991); State v. Horne, supra.

At the instant hearing, the court considered the jury foreman’s letter in its entirety; despite the vigorous argument of counsel, the court found that Jennifer received a fair trial. In light of the finding that no outside influence or prejudicial extraneous information influenced the jury, we perceive no abuse of the court’s discretion. This assignment lacks merit.

| ^Excessive sentence

By her fourth and fifth assignments, Jennifer urges the district court imposed an excessive sentence of 20 years at hard labor and erred in denying her motion to reconsider sentence. She specifically contends that the court did not give adequate consideration to her first felony offender status, the hardship that imprisonment would visit upon her three young children, and the fact that Bobby instigated the situation and could have retreated at any time. She also argues that legitimate societal goals could be accomplished by a shorter sentence.

Appellate review of sentences for excessiveness is two-pronged. First the record must show that the sentencing court considered the criteria of La.C.Cr.P. art. 894.1. The court is not required to list every aggravating and mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The article does not require the court to assign any particular weight to any specific matters at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Here, the court stated that it had read the PSI as well as letters on behalf of and against Jennifer. The court listed every relevant aggravating factor: her clean felony record, but a conviction for DWI, some complaints 113of battery, and a DWI arrest after the instant offense; investigation for child neglect; history of drinking; history of attacks against this victim; use of a dangerous weapon; fact that she was the aggressor in this offense. The court then noted mitigating factors: she had attempted CPR on the victim; she had three young children. The court also reviewed sentences given to other mothers, as well as the implication of the 85% rule under La. R.S. 15:574.4 B. Because the court thoroughly considered each relevant factor, we cannot say it abused its discretion in failing to assign more weight to the mitigating factors cited in brief.

The second prong is constitutional ex-cessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion 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 deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

The penalty for manslaughter is imprisonment at hard labor for not more than 40 years. La. R.S. 14:31 B. The instant sentence of 20 years does not shock our sense of justice. See, State v. Walker, 29,877 (La.App. 2 Cir. 10/29/97), 702 So.2d 18. It is tailored to the offense and the offender, serves acceptable penal goals, and is comparable with sentences for similar offenses. See, State v. Harris, 97-0300 (La.4/14/98), 711 So.2d 266; State v. George, 33,859 (La.App. 2 Cir. 9/27/00), 768 So.2d 748, writ denied, 00-2806 (La.9/14/01), 796 So.2d 674.

These assignments lack merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For the reasons expressed, Jennifer Denise Quiambao’s conviction and sentence are affirmed.

AFFIRMED.

It CARAWAY, J.,

dissenting.

I respectfully dissent because of the trial court’s error regarding the other crimes evidence. I would reverse the conviction and remand for a new trial.

In State v. Kennedy, 2000-1554 (La.4/3/01), 803 So.2d 916, the supreme court ruled that when specific intent is not an element of the crime, evidence of other crimes or bad acts under La. C.E. art. 404(B) is inadmissible. The manslaughter in this case falls, in my opinion, under La. R.S. 14:31(A)(2), the so-called felony manslaughter or involuntary manslaughter statute. It was “a homicide committed, without any intent to cause death or great bodily harm,” while the defendant was engaged in an aggravated battery against the victim. Such aggravated battery committed under those circumstances is itself a general intent crime since it is “committed upon proof that the accused voluntarily did the act.” State v. Brumfield, 329 So.2d 181, 190 (La.1976); State v. Howard, 94-0023 (La.6/3/94), 638 So.2d 216.

The manslaughter conviction in this case does not fall under La. R.S. 14:31(A)(1), the so-called “heat of blood” manslaughter. Manslaughter under that section is “a specific intent killing.” State v. Tompkins, 403 So.2d 644 (La.1981). The state’s evidence in this case, in my opinion, was insufficient to prove a specific intent to kill or inflict great bodily harm. In any event, although the jurisprudence requires proof of specific intent for that element of such manslaughter, the defendant’s intent is affected and mitigated by “heat of blood” or “sudden passion” which causes an average person to lose his self-control. Thus, it is difficult for me to find significant 12relevance in the evidence of the prior knife incidences since no issue of similar motive or intent is present when the defendant has lost self-control.

On the other hand, the state’s evidence of these “other crimes” was clearly prejudicial. This was particularly true because the circumstances of those prior “crimes” were not fully detailed by the state. The issue of self-defense may have been present in those cases. For the charged offense, the state had the burden of proving beyond a reasonable doubt that the act was not committed in self-defense. State v. Hudson, 33,357 (La.App.2d Cir.5/10/00), 760 So.2d 591. Yet, for these “other crimes,” the state merely raised the specter of the defendant’s bad acts whether self-defense was present or not. This leaves the accused defending not just for the charged offense, but for many other incidents where the victim may have inflicted more harm than the blow to the groin which he gave the defendant in this case. In accordance with Article 403 of the Code of Evidence, “although relevant, evidence may be excluded if its probative value is substantially outweighed by the damage of unfair prejudice, confusion of the issues, or misleading the jury....”

The problem with the Kennedy ruling is that the defendant may be charged, as here, with multiple grades of crimes or with a single crime that may be proven in multiple ways. One charge may contain an element of proof requiring evidence of specific intent, while another may be only a general intent crime. Here, while the state could attempt to establish manslaughter in two manners, only felony manslaughter, a general intent crime, was established by the evidence. Thus, the “other crimes” evidence allowed by the trial court for proof of this general intent crime should be |3impermissible under Kennedy regardless of the multiple manners in which manslaughter may be proven. The prejudice was not harmless error. I would reverse the conviction and remand for new trial.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, CARAWAY, KOSTELKA, and HARRISON, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.


source: Caselaw Access Project

author: |, KOSTELKA, J.

license: Public Domain

text:
    Ginger McCRAW, Plaintiff-Appellee, v. DIME MORTGAGE COMPANY, Defendant-Appellant.
    Nos. 36,604-WCA, 36,605-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      Juge, Napolitano, Guilbeau, Ruli & Frie-man, by Lawrence B. Frieman, Metairie, Randy J. Hoth, Bradley P. Naccari, New Orleans, Colleen E. Boyle, for Appellant.
    McBride and Collier, by Robert M. Hanna, Shreveport, for Appellee.
    Before WILLIAMS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   |, KOSTELKA, J.

Dime Mortgage Company (“Dime Mortgage”) appeals that portion of the judgment of the Workers’ Compensation Judge (“WCJ”) in favor of Ginger McCraw (“McCraw”) . For the following reasons, we reverse.

Facts

Dime Mortgage hired McCraw in March, 1999 as a full-time computer sys-terns analyst. The job was completely sedentary and did not require any lifting, crawling or climbing, and McCraw was allowed to sit, stand and walk around as needed. On August 11, 1999, while on the job, McCraw slipped and fell from a curb, injuring her lower back. The claim was reported to Dime Mortgage. What followed was McCraw’s series of examinations by various physicians.

McCraw presented to the Orthopaedic Center of Monroe complaining of back pain. Although she was initially examined at the clinic by a Dr. Racca, Dr. Douglas Brown (“Dr.Brown”) was her first treating physician. He recommended McCraw have an MRI and released her from work pending the results of the MRI. Dr. Brown’s October 11,1999 report notes that McCraw was doing much better, although she disputed that finding at trial, and on that date Dr. Brown released McCraw to return to full-duty work, with a reexamination in six weeks. McCraw returned to work at Dime Mortgage, continued to see Dr. Brown with further complaints of low back pain, and was prescribed physical therapy.

UMcCraw commenced physical therapy and continued to see Dr. Brown into 2000. Notably, in January of 2000, Dr. Brown stated that McCraw was not working, but that she was capable of doing “light duty work.” On March 10, 2000, Dr. Brown discharged McCraw from his care stating that she could return to her former employment with Dime Mortgage. However, he referred her to Dr. John Ledbetter for pain management. At this point in time, Dime Mortgage, based on Dr. Brown’s fl-nal report terminated McCraw’s total temporary disability (“TTD”) benefits.

Following McCraw’s discharge by Dr. Brown, she was evaluated by her choice of neurosurgeon, Dr. Donald Smith (“Dr. Smith”), who did not believe MeCraw was a candidate for any further invasive procedure and did not restrict MeCraw from her work activities.

Next, MeCraw sought treatment from Dr. Myron Bailey (“Dr.Bailey”), another orthopedic surgeon. After his initial evaluation, Dr. Bailey recommended a lumbar MRI. In his October 19, 2000 report, Dr. Bailey then recommended some form of surgical intervention for MeCraw, although he was not convinced that surgery was the proper treatment. This same report restricted MeCraw from heavy or moderately heavy activities, with or without surgery, but did not specifically restrict her from work. In a letter dated December 7, 2000, Dr. Bailey stated it was unlikely that J^McCraw would be able to return to “her normal mean[s] of employment without surgical intervention.”

As a result of Dr. Bailey’s recommendation of surgery, Dime Mortgage sought its own physician, Dr. Carl Goodman (“Dr.Goodman”), to evaluate MeCraw. Dr. Goodman agreed with the previous diagnosis. However, he did not believe that MeCraw was a favorable candidate for surgery, and he recommended restricting MeCraw to light-duty work.

Shortly prior to the commencement of trial on September 11, 2001, Dime Mortgage took Dr. Bailey’s deposition. At that deposition, Dr. Bailey maintained his recommendation for surgery, expressing his hope that it would alleviate McCraw’s pain. Dr. Bailey was questioned regarding McCraw’s work restrictions, and he agreed she was “capable of sedentary type work that doesn’t involve repetitive standing, walking, stooping or bending, ...” When questioned about the December 7th letter in which he stated MeCraw could not return to work, he responded that she could not return because he “assumed that she was sitting most of the day.” Dr. Bailey also stated that MeCraw could perform her former job with Dime Mortgage if she was allowed to sit and stand alternatively throughout the day.

Trial of this matter was held on September 19, 2001. Upon conclusion of the trial, the WCJ, relying upon the opinions of Drs. Brown, Smith and Goodman, determined that the surgery recommended by Dr. Bailey was not reasonable and necessary medical treatment. This finding was not appealed by MeCraw. However, on the issue of TTD benefits, the |4court relied exclusively on Dr. Bailey’s December 7th letter which stated that MeCraw probably could not return to work with Dime Mortgage without surgery. The WCJ awarded MeCraw TTD benefits from December 7, 2000 through September 11, 2001, the date of Dr. Bailey’s deposition wherein he stated that MeCraw could return to her former job as long as she was allowed to sit and stand alternatively throughout the day.

This appeal ensued by Dime Mortgage as to that portion of the judgment awarding MeCraw TTD benefits, as well as penalties and attorney fees related to Dime Mortgage’s nonpayment of said benefits.

DISCUSSION

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, Inc., 96-2840 (La.07/01/97), 696 So.2d 551. Under this standard, the reviewing court may reverse only if it finds that no reasonable factual bases exist for those findings which are clearly wrong or manifestly erroneous. Payne v. Lawn Lourd Lawn Service, 35,-491 (La.App.2d Cir.12/05/01), 803 So.2d 321; Wilkerson v. Kansas City Southern Ry., 33,922 (La.App.2d Cir.11/01/00), 772 So.2d 268, writ denied, 2000-3526 (La.02/16/01), 786 So.2d 105. Here, we find that the WCJ manifestly erred.

In the instant case, the WCJ determined that McCraw was entitled to TTD benefits for the period between December 7, 2000 and September 11, 2001. In so ruling, the WCJ noted the following:

On December 7th, 2000, Dr. Bailey found it unlikely that the claimant would be able to return to her normal means of |fiemployment without surgical intervention. His findings can only be considered as a release from work, and therefore, the claimant is entitled to temporary total disability benefits beginning December 7th, 2000. Her entitlement to temporary total disability benefits terminated during the deposition testimony of Dr. Bailey. When questioned about his December 7th opinion, in his September 11th, 2001 deposition, Dr. Bailey clarified his opinion and found that the claimant would be able to perform her job duties if she was allowed to sit and stand alternatively throughout the day. (Emphasis added).

The WCJ continued, stating that at trial, Dime Mortgage had established no restrictions existed to McCraw’s job that would prevent her from sitting and standing as needed. Specifically, the WCJ stated that McCraw “did not refute this testimony, and therefore, she failed to meet her burden of proof that she is unable to perform her job duties by sitting and standing alternatively and as needed.” However, despite these findings, the WCJ went on to award McCraw TTD benefits for the period of December 7, 2001 (the date of Dr. Bailey’s letter) through September 11, 2001 (the date of Dr. Bailey’s deposition wherein he retracted his original opinion regarding McCraw’s ability to perform her job). We determine that such a finding was clearly in error and unsupported by the evidence at trial.

Considering Dr. Bailey’s September 11, 2001 retraction of his original December 7, 2000 statement regarding McCraw’s ability to perform her job with Dime Mortgage, there existed no basis for an award of TTD benefits between those dates. The WCJ specifically noted that Dr. Bailey, at his September 11th deposition, had clarified his position stated in the December 7th letter by testifying that McCraw could have returned to work if allowed to sit and stand alternatively during her workday. Dr. Bailey retracted his statement of December 7th that McCraw was unable to work, Lin essence rendering that opinion virtually nonexistent. Thus, as of December 7, 2000, there was no basis for awarding McCraw TTD benefits.

Moreover, such an award by the WCJ is not within the dictates of La. R.S. 23:1221(l)(c), which requires as follows:

[Compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (Emphasis added).

McCraw clearly was not eligible for TTD benefits in light of the fact that every doctor by whom she was treated or examined (i.e., Drs. Brown, Smith, Bailey and Goodman) opined that she was capable of performing some sort of work. McCraw offered no evidence at trial, let alone clear and convincing evidence, that she was “physically unable to engage in any employment .... ” Therefore, in light of the evidence presented at trial, any award of TTD benefits to McCraw by the WCJ was manifestly erroneous pursuant to La. R.S. 23:1221(l)(c).

Finally, Dime Mortgage also argues that the WCJ erred in assessing penalties and attorney fees for its failure to pay McCraw TTD benefits during the period of time in question. Our determination that McCraw was erroneously awarded such benefits by the WCJ clearly serves to negate the award of penalties and attorney fees against Dime Mortgage, making a discussion of that assignment of error unnecessary. Additionally, our |7decision herein pretermits consideration of the remainder of Dime Mortgage’s assignments of error.

So finding, that portion of the judgment of the Office of Workers’ Compensation awarding total temporary disability benefits, penalties and attorney fees to Ginger McCraw is reversed, with costs of the appeal assessed to her.

REVERSED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, KOSTELKA, and HARRISON, JJ.

Rehearing denied.

      . This appeal is before us as a consolidated matter, because McCraw originally filed two claims in the office of Workers’ Compensation which were consolidated during the proceedings below. Although she had two separate claims pending before the WCJ, only the issues set forth in her later Disputed Claim for Compensation are the subject of this appeal.

      . At trial, it was stipulated that Dime Mortgage voluntarily paid weekly indemnity benefits from August 11, 1999 through October 11, 1999 and from January 6, 2000 through March 10, 2000.


author: |, HARRISON, Judge Pro Tempore.

text:
    George Anthony GEKAKIS, Carol Norris Gekakis and Mary Carolyn Hatfield Templeton, Plaintiffs-Appellants, v. SOUTHERN TRACE PROPERTY OWNERS ASSOCIATION, INC., James Alex Mijalis and Angela Susan Baron Mijalis, Defendants-Appellees.
    No. 36,609-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      The Smitherman Law Firm, by W. James Hill, Donald Lee Brice, Jr., Shreveport, for Plaintiffs-Appellants.
    Roos & Frazier, by John M. Frazier, Lunn, Irion, Salley, Carlisle & Gardner, by W. Orie Hunter, III, for Defendants-Ap-pellees.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   |, HARRISON, Judge Pro Tempore.

Two of the plaintiffs, George and Carol Gekakis, appeal a judgment that rejected their claim for a preliminary injunction against all defendants and sustained an exception of no cause of action filed by two of them. For the reasons expressed, we dismiss the appeal.

Procedural background

George and Carol Gekakis, Jimmy and Angela Mijalis, and Mrs. Mary Templeton own three lots in a row on Sunrise Pointe in Southern Trace Subdivision in Shreveport. All lots are subject to a Declaration of Protective Covenants, Conditions and Building Restrictions (“Declaration”) which imposes, inter alia, a 40-foot rear setback. No home can be built less than 40 feet from the back line of the property, which (for these three lots) abuts Fairway 8 of the golf course. The Gekakis and Templeton homes have stood on their respective lots since the mid-1990s. The Mijalises began building on their lot, situated between the other two, in November 2001. The Gekakises and Mrs. Templeton noticed that the Mijalises’ foundation was “several feet over” the rear setback line. In mid-December, they notified the Mijal-ises and the Southern Trace Property Owners Association (“STPOA”), which is charged with enforcing the Declaration, of the apparent violation and demanded that construction cease.

About a year earlier, Mrs. Mijalis had contacted the chairman of the Architectural Control Committee (“Committee”), a three-member panel of the STPOA, and requested a variance. According to the Declaration, the Committee is empowered to grant variances without notice to other property | {.owners. The Committee’s chairman, Mr. Ramsey, gave informal approval in June 2001. The full Committee finally met and, on December 15, approved a variance allowing the Mij alises to build their house from 4]6 — 6 feet over the rear setback. This was filed in the Caddo Parish conveyance records on December 20.

The plaintiffs — Mr. and Mrs. Gekakis and Mrs. Templeton — filed suit for injunc-tive relief and damages on January 11, 2002. In addition to the violation of the Declaration, they alleged that they had a servitude of view under La. C.C. art. 701 which was impaired by the Mijalises’ proposed construction. They also alleged that the Committee violated their due process rights by granting a variance without proper notice to all property owners. They demanded a TRO, preliminary and permanent injunction to stop the Mijalises from building over the 40-foot setback, and to prevent the STPOA from enforcing the variance. They also prayed for “costs, expenses and reasonable damages shown in the premises.” On the showing made, the district court granted a TRO.

The Mijalises filed an exception of no cause of action, citing the variance. They prayed to dissolve the TRO and demanded damages. The preliminary injunction and the Mijalises’ claims were tried together over three days in late January 2002.

After taking the case under advisement, the district court found that the Committee acted reasonably and in good faith in granting the variance; that there was no due process violation; and that there was no servitude of view. The court therefore dissolved the TRO and denied the preliminary |3injunction. It also sustained the Mijalises’ exception of no cause of action, but deferred their claim for damages to a later hearing. The plaintiffs moved for appeal on February 13.

Less than one month later, however, the plaintiffs advised the court that they had reached a settlement with the Mijalises. A joint motion for partial dismissal dropped all plaintiffs’ claims against the Mijalises, in exchange for $11,700, and reserved all rights against the STPOA.

The Gekakises filed an appellate brief (Mrs. Templeton apparently did not pursue the appeal). By seven assignments of error, they originally asked this court to reverse the exception of no cause of action and to issue an injunction against the Mi-jalises and the STPOA. By a “Clarification of relief requested,” they now ask this court to do the following:

(1)Find that the granting of the exception of no cause of action was in error.
(2) Find that the determination that the TRO was improperly granted was in error.
(3) Find that a servitude of view existed.
(4) Find that a mandatory injunction voiding the variance granted by the STPOA should have been granted.
(5) Find that the injunction against the Mijalises should have been granted.

Discussion

The Mijalises have filed an exception of res judicata. They contend that relief items (1), (2), (4) and (5) directly challenge their right to resume building their house, but this right was expressly guaranteed in the settlement.

The STPOA has filed a motion to dismiss the appeal or, alternatively, an exception of no right of action. It argues that the real thrust of the suit|4and appeal was to enjoin construction of the Mijalises’ house; however, because of the settlement, this relief is no longer available. Thus, none of the five relief items, even if they had merit, could confer any actual relief; there is no way to restore the parties to the status quo. The STPOA concludes that a decree on these issues would be advisory, “serve no useful purpose and afford no practical relief.” Associated General Contractors Inc. v. State, 95-2105 (La.3/8/96), 669 So.2d 1185.

Both of these interrelated positions are well taken. The law is settled that when the conduct sought to be enjoined has already occurred or for other reasons cannot be prevented, the claim for injunction is moot and must be dismissed. Sobolewski v. Brown, 405 So.2d 1254 (La. App. 4 Cir.1981); Lauer v. City of Kenner, 445 So.2d 1308 (La.App. 5 Cir.1984). By virtue of the settlement, the court cannot issue any injunction, either to stop the Mijalises from building their house or to stop the STPOA from enforcing the variance it granted in favor of the Mijalises. A ruling such as the Gekakises request— that the district court should have granted a preliminary injunction, but without an order for the injunction to issue — would afford no practical relief. Rendering an advisory opinion would be an improper use of appellate jurisdiction. Associated General Contractors Inc. v. State, supra.

For these reasons, the appeal is dismissed. Sobolewski v. Brown, supra. The dismissal is without prejudice, as there is still the Gekakises’ unresolved claim for monetary damages against the STPOA. Costs of appeal are assessed to the appellants, George and Carol Gekakis.

APPEAL DISMISSED.


author: It STEWART, J.

text:
    John R. ARBUCKLE, Plaintiff-Appellee, v. Karla Gonzales ARBUCKLE, Defendant-Appellant.
    No. 36,616-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      E. Ray Kethley, Shreveport, for Appellant.
    Gary V. Evans, Mansfield, for Appellee.
    Before STEWART, KOSTELKA and DREW, JJ.
   It STEWART, J.

This appeal arises out of the trial court’s involuntary dismissal of defendant, Karla Lovell’s rule to modify custody and to set child support. Mrs. Lovell not only appeals the dismissal of her rule, but also the trial court’s assessment of all costs against her. For the reasons set forth herein, we affirm the judgment of the trial court denying the rule for modification of custody and assessing Mrs. Lovell with all costs. However, we reverse the judgment of the trial court insofar as it denies Mrs. Lovell’s request for a determination of child support, and remand the matter to the trial court for further proceedings.

FACTS

John Arbuckle and Karla Lovell (formerly Arbuckle) were married on September 18, 1987, in Logansport, Louisiana, where they resided as husband and wife until approximately March of 1999, when Mrs. Lovell moved out of the matrimonial domicile. The parties had one minor child, Krysta Dawn Arbuckle, born on June 17, 1993.

On March 18, 1999, Mr. Arbuckle filed a petition for divorce and incidental relief including a request that the parties be granted joint custody of their minor daughter, with him being designated the domiciliary parent. Mrs. Lovell responded with a reconventional demand that she be awarded sole custody of the minor child subject to visitation rights in favor of Mr. Arbuckle. Mrs. Lovell also made a request for child support.

The parties subsequently stipulated to joint custody, the exercise of which was to be governed by the oral stipulation order entered June 23, 1999, and the Joint Custody Implementation Order signed by the trial court | ¡.on August 8, 1999. According to the order, Mr. Arbuckle was appointed the child’s primary domiciliary parent, and the child was to reside primarily with him subject generally to the following custodial periods awarded to Mrs. Lovell:

1. Three weekends out of every month;

2. Mother’s Day, half of the Christmas holidays, and every other Easter and Thanksgiving holiday.

3. Thirty (30) days during the summer.

Through new counsel, Mrs. Lovell subsequently filed a motion for new trial alleging that among other things she entered into the stipulation set forth above because her former attorney had informed her that her co-habitation with her then “fiancee,” Larry Glynn Lovell, would prevent her from obtaining domiciliary parent status. The motion for new trial was denied on August 26, 2002, and no further review of that initial award of custody was made by either party.

The parties were subsequently divorced by judgment rendered on September 23, 1999. A marriage license was issued on September 27, 1999, to Ms. Lovell, and she married Mr. Lovell in Carthage, Texas on October 2, 1999. On October 25, 1999, Mrs. Lovell filed a rule to change custody alleging, among other things, that her marriage to Mr. Lovell and her establishment of a permanent residence in Logans-port justified the change. On November 8, 1999, the parties entered into a stipulated judgment whereby the joint custody was modified to designate both Mrs. Lovell and Mr. Arbuckle as co-domiciliary parents and to prohibit either parent from |,-¡moving the child’s residence from DeSoto Parish. The physical custody of the minor child was to be shared as follows:

Mrs. Lovell:
1. During the school year she would have the minor child from Sunday evening until Friday after school let out every week; and,
2. During the summer she would have the minor child every other week.
Mr. Arbuckle:
1. During the school year he would have the minor child every weekend from Friday after school let out until Sunday evening; and,
2. During the summer he would have the minor child every other week.

The parties were to alternate physical custody of the minor child for major holidays.

The consent judgment provided that “neither parent may remove the residence of the minor child from Desoto Parish, Louisiana.” There was no specific award of child support although the judgment did provide that the parties had a mutual obligation to provide support for the care and maintenance of the minor child and that each was to provide hospitalization insurance through their employer if such was available to them.

On June 6, 2000, Mrs. Lovell filed a rule to change the visitation set forth in the January 5, 2000, judgment, to establish child support, and for the issuance of an income assignment order to collect the child support. On July 11, 2000, Mr. Ar-buckle filed an answer generally denying Mrs. Lovell’s allegations and making a re-conventional demand that the court revert back to the original custody decree of March 18, 1999, wherein he was designated Lthe domiciliary parent. The court minutes reflect that these matters came for hearing on July 20, 2000, and a stipulated interim order was entered ordering the child’s return to Louisiana and ordering the child to attend the Logansport school. The order also granted Mrs. Lo-vell visitation one weekend a month which seems to imply that her primary residence was to be with her father. This record reflects that this interim order was never formalized in a judgment.

On July 2, 2001, Mrs. Lovell filed yet another Rule to Change Custody. She alleged that the parties had extra-judieially modified the effective custody award in that the minor child is primarily residing with her mother and, therefore, she should be made the primary domiciliary parent. She also requested that child support be set and that she be allowed to relocate to Carthage, Texas.

After the initial hearing, the court appointed Dr. Mark Vigen as an expert and ordered the parties to be evaluated by him. The hearing on the rule for custody was subsequently tried on February 20, 2002. At the trial, the court considered the testimony of Mrs. Lovell and Dr. Vi-gen.

Mrs. Lovell testified that sometime after the January 5, 2000, judgment was signed, she took the minor child out of her school and placed her in a Carthage school without prior authorization from the trial court or Mr. Lovell. This action led to the subsequent order of the court in July mandating the return of the child to Louisiana and to her Logansport school. Mrs. Lo-vell testified that thereafter the minor child resumed attendance at her Logans-port school, but continued to live in Carthage contrary to the trial | scourt’s order. Mrs. Lovell claimed she filed for the change because it was too tiring to have to drive the minor child 30 miles to school every day and that residing in Carthage also impacted the minor child’s ability to participate in after school activities. Mrs. Lovell never testified about having made any extra-judicial agreement with Mr. Ar-buckle regarding her maintaining the child’s residence in Carthage after the trial court ordered her return to Louisiana. Apart from the travel required to take the child to and from school, Mrs. Lovell gave no other reasons why a move to Carthage was in the best interest of the minor child other than the fact that Mrs. Lovell and Mr. Lovell owned a home there.

Dr. Vigen likewise testified that it would be in the best interest of the minor child to be enrolled in school in Carthage because of the concerns associated with having to travel 30 miles to and from school every day. Dr. Vigen enumerated the various impacts which could result, including potential tardiness at school, safety concerns, impact on social life, etc. Dr. Vigen seemed to operate from the premise that the minor child would reside in Carthage, one of the issues being litigated before the trial court. He gave no specific reasons why the best interests of the child were served by allowing Mrs. Lovell to permanently remove the child’s residence to Carthage or why Mrs. Lovell should be designated the primary domiciliary parent.

DISCUSSION

Appellant has urged three separate errors on appeal:

1. That the trial court erred in not allowing Mrs. Lovell to transfer the minor child to a school in Carthage, Texas;
|fi2. That the trial court erred in denying child support by dismissing Mrs. Lovell’s rule for same; and,
3. That the trial court erred in assessing Mrs. Lovell with all costs.

Assignment of Error Number 1:

Mrs. Lovell argues that the trial court erred in not allowing the transfer of the minor child from Logansport Elementary to Libbey Elementary in Carthage, Texas. She suggests that her burden was to show only that the move was in the best interest of the minor child. She cited cases which hold that in order to obtain a change in a visitation schedule, a parent need only show that the requested change is in the best interest of the child. See Acklin v. Acklin, 29,193 (La.App.2d Cir.2/26/97), 690 So.2d 869; Reynier v. Reynier, 545 So.2d 663 (La.App. 5th Cir. 1989); and, Mosely v. Mosely, 499 So.2d 106 (La.App. 1st Cir.1986). She also cited the evidence in the record regarding the proffered benefits of allowing the minor child to attend school in Carthage, Texas.

This assignment of error is without merit. Mrs. Lovell’s July 2, 2001, rule is clearly entitled a “Rule to Change Custody” and seeks two things in regards to custody: (1) that Mrs. Lovell be designated the domiciliary parent, an integral element of any joint custody award; and (2) that she be allowed to relocate the child’s residence to Carthage, Texas. Therefore, her assertions regarding the burden of proof applicable in an action to modify visitation are inapplicable to this case.

The party seeking modification of a stipulated custody decree has the burden of proving a change in circumstances materially affecting the welfare of the child and that the proposed change would be in the best interest of the 17child. Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196 and Miller v. Miller, 32,506 (La.App.2d Cir.6/16/99), 743 So.2d 221. The trial court is vested with vast discretion in matters of child custody and visitation, and its determination is entitled to great weight and will not be disturbed on appeal unless a clear showing of abuse of its discretion is made. Shaw v. Shaw, 30,613 (La.App.2d Cir.6/24/98), 714 So.2d 906.

The court is to consider the following factors set forth in La. R.S. 9:355.12 in determining whether to allow a parent to relocate with a minor child:

(1)The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
|s(8) Any other factors affecting the best interest of the child.

After reviewing the record in its entirety, we believe the trial court was correct in finding that neither the change in custody, nor the relocation burdens had been met. The only change of circumstances which was alleged was that Mrs. Lovell had moved to Carthage since the last award of custody and had taken the minor child with her. We believe it would be counter-intuitive to allow a parent to take an action such as relocating without court approval and in direct contravention of one of the court’s prior orders, and then allow the parent to use that very action as the basis for seeking judicial approval of their relocation and a change in custody. Furthermore, all the evidence presented at the hearing as to the detrimental effects of the current arrangement on the child’s welfare result from Mrs. Lovell’s relocation. If the child has to travel 30 miles to school thereby raising issues of the child’s safety, tardiness, and limited extracurricular schedule, these effects all result from her mother’s violation of the January 5, 2001, judgment in moving to Carthage. Mrs. Lovell presented no other evidence to satisfy her burden of showing that the “proposed” relocation was in the child’s best interest. All of Mrs. Lovell’s evidence presumed the relocation to have already taken place, and while that may defacto be the case, the trial court was not obligated to accept Mrs. Lovell’s unapproved move as a premise. Accordingly, the trial court did not err in dismissing Mrs. Lovell’s rule to change custody or to relocate.

| aAssignment of Error Number 2:

Mrs. Lovell also assigns error to the trial court’s dismissal of her request for child support to be set. While the trial court did not so specifically state, it does appear from the record that the court was dismissing the rule in its entirety thereby denying Mrs. Lovell’s request for child support.

In reviewing the record, this court notes that child support has never been set in accordance with the mandatory language of the child support guidelines. La. R.S. 9:315.1(A) and Stogner v. Stogner, 1998—3044 (La.7/7/99), 739 So.2d 762. The only reference to support is made in the January 5, 2000, judgment as follows:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that each parent has a mutual obligation of providing support for the care and maintenance of the minor child, Krysta Dawn Arbuckle, and each parent shall provide hospitalization insurance if available through their employment.

Mr. Arbuckle argues that this provided for the manner in which the parties were to provide support for the minor child. The language quoted above, however, does not provide a very solid foundation for that assertion. To the contrary, the order seems to simply be a restatement of the general obligation that parents have to support and maintain their children set forth in La. C.C. art. 227. The judgment does not set forth who is responsible for what expenses or in what proportion the parties are to share the expenses incurred for the care, maintenance and education of the minor child. Lastly, even if we were to agree with Mr. Arbuckle’s assertion that the judgment requires each party to pay the expenses of the child while she is with that | inparent and assumes those expenses would be about equal, such an approach ignores the fact that the Louisiana child support guidelines are based on an income ratio formula and not on the ratio of expenses to be borne by each party. As a stipulation on child support, the judgment would have been a deviation from the guidelines requiring that the court give oral or written reasons for the deviation. La. R.S. 9:315.1(B).

Presumably the purpose of the argument that the January 5, 2000, judgment was an initial fixing of child support is that Mrs. Lovell would then be obligated to prove a change in circumstances to warrant a modification. La. R.S. 9:311. While we have serious reservations about considering the January 5, 2000, judgment as one setting child support, we find that a decision on that issue is ultimately without effect on the appropriate outcome. As was the case in Stogner, supra, even if the judgment did set child support, the judgment was fundamentally flawed in its failure to follow the guidelines or, in the alternative, flawed in the trial court’s failure to state reasons for a deviation therefrom. Consequently, such a judgment should not be used as a basis to deny Mrs. Lovell a modification. Stogner, at 769.

Since the record is devoid of any evidence which would have allowed the trial court to conclude under the guidelines that no support was due Mrs. Lovell, we cannot find that the trial court was correct in denying her child support. We therefore reverse the trial court’s dismissal of Mrs. Lovell’s claim for child support and remand the matter to the trial court for a determination under the guidelines of the appropriate amount of child support, if any, due Mrs. Lovell.

| ^Assignment of Error Number 3:

Mrs. Lovell has also assigned error to the trial court’s assessment of all costs against her, including the costs of the evaluation performed by the court-appointed expert, Dr. Vigen. The assessment of court costs is a matter in which the trial court is given great discretion and one which should not be disturbed absent manifest error. La. C.C.P. art.1920 and Hunter v. Bossier Medical Center, 31,026 (La. App.2d Cir.9/25/98), 718 So.2d 636. The trial court is likewise afforded that discretion in assessing the costs of a custody evaluation by a court-appointed expert. La. R.S. 9:331(A).

In assigning error to this particular action of the trial court, Mrs. Lovell merely stated that “it is not equitable under the circumstances set forth above that Mrs. Lovell bear any, much less all, of these costs.” We respectfully disagree. The record indicates that Mrs. Lovell has in fact pursued her own agenda as regards to the custody of the minor child in this matter with little or no regard for the orders rendered by the trial court. This latest request to modify the custody arrangement appears to have been made with little' justification regarding the best interest of the child. On the other hand, the record indicates that it is an attempt to have the trial court approve actions she has taken in defiance of court orders (moving the child to Carthage) and to permit her to take others which she has been unable to unilaterally take on her own (changing the child’s school). Under these circumstances, we see no error in the trial court’s assessment of costs against Mrs. Lovell.

^CONCLUSION

For the foregoing reasons, we reverse the trial court’s denial of Mrs. Lovell’s rule to set child support, and we remand the matter for a proper determination of child support in accordance with the Louisiana child support guidelines. The judgment is affirmed in all other respects. Costs are assessed to Karla Gonzales Arbuckle.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: JjKOSTELKA, J.

text:
    STATE of Louisiana, Appellee, v. John McKeithen MEREDITH, Appellant.
    No. 36,483-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      David E. Stone, Counsel for Appellant.
    Richard Ieyoub, Attorney General, Terry R. Reeves, District Attorney, James E. Lewis, Assistant District Attorney, Counsel for Appellee.
    Before WILLIAMS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   JjKOSTELKA, J.

John McKeithen Meredith (“Meredith”) pled guilty to third offense driving while intoxicated, La. R.S. 14:98, reserving his right to appeal the denial of a motion to suppress in accordance with State v. Crosby, 338 So.2d 584 (La.1976). For the conviction, Meredith received a suspended sentence of three years at hard labor and was placed on five years’ probation with a special condition that he serve one year in the parish jail. We vacate the plea, reverse the conviction and sentence and remand for further proceedings consistent with this opinion.

FACTS

At approximately 2:30 a.m. on the morning of August 15, 1997, Winnfield Police Officer Manuel Espejel (“Espejel”) observed Meredith driving his pickup truck with no taillights. As Espejel prepared to stop the vehicle, Meredith made an abrupt turn into a gas station. Meredith exited the driver’s side, of his vehicle and approached Espejel who smelled the odor of alcohol on Meredith’s breath. As Meredith spoke to Espejel, Meredith leaned against his truck for support. Espejel asked him if he had been drinking and Meredith stated that he had had two or three beers. Espejel then asked Meredith for a driver’s license; Meredith possessed only an identification card. During these events, Louisiana State Trooper Michael Gilliam (“Gilliam”) exited the gas station convenience store. At that time, Espejel informed Gilliam of his suspicion that Meredith was under the influence of alcohol and requested that Gilliam perform field sobriety tests, because Espejel was not qualified to do so. Gilliam conducted the field sobriety tests which Meredith failed. Espejel | ^transported Meredith to the Winnfield City Police Department to conduct a breath test with an Intoxilyzer 5000. The result was a .134 percent blood alcohol level. On March 10, 1999, Meredith sought to suppress the test results urging that the officers failed to comply with the requirement that they observe him fifteen minutes prior to administering the breath test. After a hearing on August 24, 1999, the trial court orally denied the motion. However, on October 21, 1999, Meredith was allowed to submit further evidence on the issue of the time of observation. On June 9, 2000, the court again denied Meredith’s motion to suppress. Subsequently, on March 28, 2002, Meredith pled guilty to DWI, third offense, reserving his right to seek review of the denial of his motion to suppress.

Discussion

On appeal, Meredith solely argues that the trial court erred in denying his motion to suppress the Intoxilyzer results due to the officers’ failure to observe him fifteen minutes prior to administering the test in accordance with Louisiana Administrative Code promulgated procedures.

In order for the state to avail itself of the statutory presumption of a defendant’s intoxication arising from a chemical analysis of his blood, under La. R.S. 32:662, it must show that it has strictly complied with the promulgated procedures. State v. Rowell, 517 So.2d 799 (La.1988); State v. Gregory, 403 So.2d 1225 (La.1981); State v. Goetz, 374 So.2d 1219 (La.1979); State v. Graham, 360 So.2d 853 (La.1978). A conviction obtained through chemical test legislation, which not only destroys a defendant’s presumption of innocence but also severely restricts any | apossibility of a defendant proving his innocence, must be reversed if not accompanied by all of the safeguards designed to insure reliable chemical analysis. Graham, supra. A motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication and the burden of proving admissibility is on the state. State v. Tanner, 457 So.2d 1172 (La.1984). The burden of proving the admissibility of the chemical test results is on the state as in the case of a confession or evidence seized without a warrant. Id.

Louisiana R.S. 32:663 provides that before a chemical analysis of a person’s blood can be considered valid, it shall have been performed according to the methods approved and promulgated by the Department of Public Safety and Corrections.

Louisiana Admin. Code tit. 55, pt. I, § 513, promulgated in accordance with La. R.S. 32:663, sets forth the procedure for analysis using the Intoxilyzer 5000. Specifically, Section 513(A) provides for general observation of the subject for a period of not less than fifteen minutes prior to testing, whereby the subject shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited or taken anything by mouth.

This regulation does not require constant observation by one individual for the requisite period of time prior to testing; all that is required is general observation that the subject had neither regurgitated nor ingested anything by mouth. State v. Clark, 446 So.2d 293 (La.1984); State v. Regan, 601 So.2d 5 (La.App. 3d Cir.1992), writ denied, 610 So.2d 815 (La.1993). The purpose of the fifteen-minute observation is to attain |4accurate test results by ensuring that the subject has not consumed or eliminated any substance which could affect the blood alcohol level. Lewis v. State, DPSC, 601 So.2d 356 (La. App. 1st Cir.1992).

In this case, both Espejel’s and Gilliam’s testimony, and the documentation prepared by them, show that Meredith was first observed at approximately 2:29 a.m. At the very least, then, the officers were required to observe him until 2:44 a.m. Although the officers claim to have observed Meredith for the required time, discrepancies between their testimony and the documentation prepared by them exist. For example, both officers claimed to have observed Meredith for fifteen minutes during the initial confrontation. Yet, Espejel prepared an affidavit stating the time of arrest as 2:35 a.m. Additionally, that portion of the Uniform DWI Arrest Report (“Arrest Report”) completed by Espejel indicates the time of arrest as 2:41 a.m. Espejel explained that this time referred to Meredith’s being taken into custody after he failed the field sobriety tests. Obviously, either of these documented times contradicts the officers’ testimony that they observed Meredith for fifteen minutes from the time they first observed him until he was arrested at the scene. An even more discrepant piece of evidence is the police log which indicated that the Intoxi-lyzer 5000 was “turn[ed] on” at 2:38 a.m., three minutes prior to the arrest time noted by Espejel on the Arrest Report. Both officers testified that Gilliam turned on the Intoxilyzer 5000 after they arrived with Meredith at the police station. Nor were the officers able to offer a satisfactory reconciliation of their testimony and the contrary documentation. Espejel surmised that the time discrepancy was |sdue to the use of different watches. Gilliam could offer only that the affidavit time “might” be a misprint. Such generalized and conflicting evidence is sufficient only to raise questions rather than to prove how much time actually transpired between the officers’ initial observation of Meredith and their arrival at the police station.

More challenging is the Intoxilyzer printout which shows the test time as 2:41 a.m. Obviously, if accurate, this evidence shows that the breath test was administered three minutes from the time that the machine was turned on and only twelve minutes from the time that Meredith was first observed at the scene. In these circumstances, the state was required to present evidence of a malfunction or inaccuracy in the Intoxilyzer clock in order to carry its burden. We cannot conclude that it has adequately done so.

At the hearing, Espejel stated that after their arrival at the police station, Gilliam turned the Intoxilyzer machine on and it took another fifteen minutes for it to warm up. Gilliam “believed” that he turned the machine on and that it took fifteen minutes for it to warm up. He felt that from the time he first saw Meredith until the time he administered the test, thirty minutes had transpired. Obviously, this testimony directly conflicts with documentation showing that the machine was turned on at 2:38 a.m. and the time of the test to be 2:41 a.m. Despite their general claims to have observed Meredith for fifteen minutes after the machine was turned on, it is apparent that neither Gilliam nor Espejel even noticed the discrepancy at the time of the test. This is evident from Gilliam’s notation that the breath test was conducted at 2:41 a.m. on the Arrest Report and his failure to note any | ¿inaccuracy in the clock. Nor did either officer offer a possible explanation at the hearing for the time variances. In fact, at the hearing, Gilliam admitted that 2:41 a.m. was the time reflected on the Intoxilyzer 5000.

Gilliam’s notation on the DWI rights form was the only evidence that could be construed to support the officers’ position. This form indicated a time of 2:55 a.m. Gilliam explained that he filled in the time blank which reflected the time he read Gilliam his rights prior to administering the test. When questioned about where he got the DWI rights time, however, Gilliam was unable to say that he looked at his watch but just “knew” it was 2:55 a.m.

W.J. Bordelon, Jr. (“Bordelon”), a defense witness and employee of the Louisiana State Police Applied Technology Section who instructs officers on how to administer breath tests to DWI suspects, offered specific evidence of the accuracy of the Intoxilyzer 5000’s clock. Based upon documentation prepared after the machine was certified on July 9, 1997, and Bordelon’s personal inspection of it on November 5, 1997, Bordelon noted no relevant inaccuracy in the Intoxilyzer 5000 clock. Bordelon explained that if any inaccuracy had existed, he would have taken the machine to Baton Rouge for evaluation. Bordelon testified that when the machine is turned off, the clock operates by battery; the clock circuit has nothing to do with the analysis of the sample. Bordelon also stated that he instructs officers to note any problems with the clock on the Intoxilyzer at the time the test is given in 17order to explain any discrepancies. He explained that a minimum of fifteen minutes is required for the machine to be ready for operation.

After considering this testimony and evidence, we cannot say that it is sufficient to carry the state’s burden of proving strict compliance with the promulgated guidelines. Too many unexplained discrepancies exist between the officers’ testimony and the documentation prepared by them. The fact remains that the documentary evidence shows only twelve minutes elapsed from the time that the officers first observed Meredith at 2:29 a.m. and the Intoxilyzer printout reflecting a test time of 2:41 a.m. Yet, the state presented no clear evidence refuting the clock’s accuracy. Not only did the officers fail to note any discrepancy in the clock, but one of them relied upon it in that portion of the Arrest Report prepared by him. Direct evidence of the clock’s accuracy came from a defense witness who certified the machine as correct. Nor can we say that in these circumstances, Gilliam’s notation on the DWI rights form, i.e., that he read Meredith his rights at 2:55 a.m., is satisfactory to show that the officers observed Meredith for the required fifteen minutes. Not only was Gilliam unable to remember if he relied upon his watch for the time, but he inconsistently certified 2:41 a.m. as the correct test time on the Arrest Report. As such, his testimony both supports and contradicts the accuracy of the test. Such unresolved, inconsistent evidence is inadequate to satisfy the stringent burden required of the state in these circumstances. While we do not question the officers’ integrity in this matter, we must conclude that the precision with which they undertook their duties fell below that which is required for the admission of these test results |sinto evidence for the purpose of the presumption of Meredith’s guilt. Accordingly, insofar as Meredith’s chemical tests results were sought to be used by the state as presumptive evidence of his guilt, we find them inadmissible. See, Graham, supra; Tanner, supra. We, therefore, reverse the trial court and grant Meredith’s motion to suppress. This opinion in no way addresses whether or not the test results may be used in a trial in accordance with State v. McElroy, 553 So.2d 456 (La.1989); State v. Honeyman, 560 So.2d 825 (La.1990), i.e., as circumstantial evidence that would allow the fact-finder to draw an inference of intoxication. Because Meredith has reserved his rights and conditioned his plea of guilty under the aegis of Crosby, and we find merit in his claim, we vacate the plea and remand for further proceedings in accordance with this opinion.

GUILTY PLEA VACATED, REVERSED AND REMANDED.

      . Bordelon testified that he corrected an hour difference in the clock time on November 5, 1997, due to the time change to central standard time which had occurred shortly before his inspection.


author: | íBROWN, C.J.,

text:
    FORD NEW HOLLAND CREDIT COMPANY, Plaintiff-Appellant, v. Tony A. McMANUS, Defendant-Appellee, CTR Manufacturing, Inc., Third Party Defendant. Ford New Holland Credit Company, Plaintiff-Appellant, v. Allen L. Lang, Defendant-Appellee, Patrick-Miller Tractor Company, Inc., Third Party Defendant.
    Nos. 35,567-CA, 36,568-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      David P. Spence, Alexandria, for Appellant.
    Charles B. Bice, Winnfield, for Appel-lees, McManus and Lang.
    Cook, Yancey, King & Galloway, by Hershel E. Richard, Jr., John T. Kalm-bach, Shreveport, Douglas L. Harville, for Third Party Defendant, CTR.
    Gold, Weems, Bruser, Sues & Rundell, by Henry B. Bruser, III, George T. Hawthorne, Alexandria, for Third Party Defendant, Patrick-Miller.
    Before BROWN, PEATROSS and DREW, JJ.
   | íBROWN, C.J.,

Patrick-Miller Tractor Company, Inc., leased equipment to Troy A. McManus and Allen L. Lang, two Sabine Parish timber farmers, in August 1995. Both McManus and Lang leased a stumper from Patrick-Miller for a term of 36 and 42 months respectively. In the lease documents, Patrick-Miller assigned its interest in “all rentals and other payments paid, due or becoming due” to Ford New Holland Credit Company (hereinafter referred to as “New Holland Credit”) along with the right to collect the same, with no rights of recourse against Patrick-Miller in the event of non-payment by the lessees. As evidenced by the numerous repair invoices, the stumpers did not work as intended and McManus and Lang stopped making rental payments in late 1996. New Holland Credit filed suit against each lessee to collect the entirety of the amounts due under the leases, together with interest, attorney fees and costs.

Both McManus and Lang filed answers, alleging that the stumpers were defective, and made third party demands against Patrick-Miller and CTR Manufacturing, Inc., manufacturer/distributor of the stum-pers, for damages. Both Patrick-Miller and CTR Manufacturing have conceded that the stumpers were defective and unfit for their intended use. On February 24, 1998, New Holland Credit filed motions for summary judgment in both cases which were denied.

On April 9, 2001, the two suits were consolidated and on May 18, 2001, Mc-Manus and Lang filed motions for partial summary judgment, seeking a declaration by the court that warranty waivers in the leases were invalid and unenforceable. The trial court rendered partial summary lajudgment in favor of the lessees, Mc-Manus and Lang, holding that the waivers were invalid and that they could assert as an affirmative defense to New Holland Credit’s claims breach of the lessor’s warranty of fitness.

On October 18, 2001, New Holland Credit amended its pleadings, seeking damages from CTR Manufacturing and Patrick-Miller for economic losses sustained by New Holland Credit in the event that McManus and Lang were found to be not liable for rentals and other amounts due under the leases.

On January 28, 2002, McManus and Lang filed motions for summary judgment in their third party demands on the issue of liability against New Holland Credit, Patrick-Miller and CTR Manufacturing. On February 19, 2002, CTR Manufacturing filed exceptions of no cause of action and prescription in response to New Holland Credit’s recently asserted claim. On March 12, 2002, the trial court rendered a partial summary judgment, finding that the stumpers leased by McManus and Lang were defective and unsuitable for the purposes represented to them, ordering the leases rescinded and holding Patrick-Miller liable for the return of all lease payments made by McManus and Lang and for any other damages which they can show were suffered by them in the use and operation of the defective stumpers. The partial summary judgment further provided that McManus and Lang were entitled to judgment on their third party claims against Patrick-Miller for any amounts for which they may be cast in New Holland Credit’s suits against them. New Holland Credit has appealed from the trial court’s grant of summary judgment.

pin response to the exceptions filed by CTR Manufacturing, New Holland Credit filed a second supplemental and amending petition, alleging that its claim against CTR Manufacturing arose out of its security interest in the stumpers surrendered to it by McManus and Lang and that CTR Manufacturing was liable for any economic losses it may suffer.

On April 12, 2002, the trial court rendered judgment sustaining CTR Manufacturing’s exception of no cause of action, dismissing New Holland Credit’s claims with prejudice, and denying CTR Manufacturing’s exception of prescription as moot. New Holland Credit has appealed this judgment and CTR Manufacturing has answered the appeal.

Discussion

Warranty.

New Holland Credit first contends that the trial court erred in granting summary judgment in favor of the lessees, McManus and Lang, rescinding the lease agreements between them and Patrick-Miller. New Holland Credit’s recovery from McManus and Lang depends upon the validity of the lessee’s alleged waiver of the warranty of fitness.

Louisiana’s statutory lease warranty provisions are contained in La.C.C. art. 2695, which provides:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

This provision applies to the lease of both immovables and movables. La.R.S. 9:3309; Walnut Equipment Leasing Co., Inc. v. Moreno, 26,004 (La.App.2d Cir.09/21/94), 643 So.2d 327; Equilease Corporation v. Hill, 290 So.2d 423 (La.App. 4th Cir.1974). As noted by this court in Walnut Equipment Leasing Co., Inc., supra, the implied warranty of article 2695 arises by operation of law in every contract of lease. This warranty may be dispensed with as a condition of the contract of lease and such waivers are not against Louisiana public policy. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981); Louisiana National Leasing Corporation v. ADF Service, Inc., 377 So.2d 92 (La.1979); Walnut Equipment Leasing Co., Inc., supra. To be effective, a waiver of warranty must be: (1) written in clear and unambiguous terms; (2) contained in a written contract; and (3) brought to the attention of the lessor or explained to him. Id.

According to both McManus and Lang, their leases were warranty leases; this was confirmed to them by Douglas Patrick of Patrick-Miller, who assured them that his dealership would honor the warranty. In his deposition, Patrick stated that the stumpers were warrantied by CTR Manufacturing as well as manufacturers of the components and that Patrick-Miller made numerous repairs to both machines pursuant to the warranty.

The lease form used by Patrick-Miller is printed on the front and back of one sheet of paper. The signature of both McManus and Lang appears on the front page of their respective lease. This front sheet contains neither wording nor bold type which would call attention to the waiver of warranty clause, which appears on page two, the back of the form, and reads as follows:

FORCE MAJEURE/NO CONSEQUENTIAL DAMAGES/WARRANTIES. Lessor shall not be liable for any failure or delay in delivering the Equipment or any item thereof, or in | .¡performing any provision hereof, due to fire or other casualty, labor, difficulty, governmental restriction or any cause beyond Lessor’s reasonable control. In no event shall Lessor be liable for any loss of profits, other consequential damages or inconvenience due to any theft, damage, loss, defect or failure of the Equipment or any item thereof or the time consumed in recovering, repairing, servicing or replacing the same and there shall be no abatement or apportionment of rental during such time. In this lease there are no express or implied warranties about the Equipment, including, without limitation, warranties of merchantability, suitability or fitness for a particular purpose.

The type size of paragraph nine is the same as the rest of the lease provisions and the wording is not prominent, nor is the use of bold for part of the provision distinctly different from the remainder of the document.

In his affidavit, Douglas Patrick stated that this waiver provision was neither discussed with nor called to the attention of either lessee. To the contrary, Patrick related to McManus and Lang that the stumpers were warrantied by CTR Manufacturing and noted that if CTR failed to honor any aspect of the warranty, Patrick-Miller would stand behind the equipment. The evidence shows that Patrick-Miller did just that. Given Patrick’s verbal assurances regarding the quality of the warranty, neither lessee had any concern about any waiver provision that may have been in the pre-printed standard form lease document.

ROn the other hand, New Holland Credit introduced no evidence in opposition to lessees’ motions for summary judgment. There are no genuine issues of material fact and the failure of New Holland Credit to produce evidence of a factual dispute mandates the granting of the motion. La. C.C.P. arts. 966 and 1915. The written waiver was not effective and the lessees were entitled to rescission of their leases and release from their obligation to pay the sums due thereunder to Patrick-Miller and/or New Holland Credit.

Had the trial court found that the waiver met the three jurisprudential requirements for validity, which it did not, we nonetheless note that the lessor, Patrick-Miller, through Douglas Patrick, expressly warrantied the stumpers to the lessees, notwithstanding the lease provisions to the contrary. This affirmative, material representation certainly qualified the written waivers, rendering them unenforceable. See Harvell v. Michelli, 500 So.2d 871 (La.App. 1st Cir.1986); Tuttle v. Lowrey Chevrolet, Inc., 424 So.2d 1258 (La.App.3d Cir.1982).

The manufacturer’s exception of no cause of action.

The exception of no cause of action is a peremptory exception, intended to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. La.C.C.P. art. 927; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993); Deal v. Lexing-Powell, 36,168 (La.App.2d Cir.08/16/02), 824 So.2d 541. In deciding whether a petition states a cause of action, a court must accept the facts alleged in the petition without reference to any extraneous supporting or controverting evidence. La. C.C.P. art. 931; Montalvo v. Sondes, 93-2813 (La.05/23/94), 637 So.2d 127; Robinson v. North American Royalties, Inc., 470 So.2d 112 (La.1985); Arledge v. Hendricks, 30,588 (La.App.2d Cir.06/26/98), 715 So.2d 135, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287.

New Holland Credit’s role in the original lease transactions was that of financier. Specifically, New Holland Credit is the assignee of “all rentals and other payments paid, due or becoming due” under the subject leases, along with the right to collect the same. New Holland Credit did not have a contractual claim against CTR Manufacturing as it was not in the “chain of purchase” of the equipment and there was no privity of contract between New Holland Credit and CTR Manufacturing.

Subsequent to their default, the lessees each surrendered the stumper in their possession to New Holland Credit. Therefore, its possession of the defective equipment was not by virtue of a sale, lease or assignment of rights, but by surrender of the items which were the subject of the security transactions financed by New Holland Credit. As such, New Holland Credit has no redhibitory or breach of warranty claim against CTR Manufacturing.

We likewise fail to find that New Holland Credit’s petition has stated a claim in tort. CTR Manufacturing sold the stumpers to its distributor, Patrick-Miller. The stumpers were leased by Patrick-Miller to McManus and Lang; at the same time, in the lease agreements signed by the individual lessees, Patrick-Miller assigned the rents and other amounts due under the leases to New Holland Credit. Commercial risks, such as that assumed by New Holland Credit when it entered into “no recourse” assignments with Patrick-Miller, are best addressed by insurance, contract or other business |splanning devices rather than by recognizing a cause of action for negligent interference with a contract. While CTR Manufacturing may be held responsible to Patrick-Miller, Mc-Manus and Lang in redhibition and for breach of warranty based upon the buyer-seller/lessor-lessee relationship between the parties, it is not the de facto insurer of New Holland Credit’s business/contractual dealings with Patrick-Miller. New Holland Credit’s remedy, if any, given that the assignments were without recourse, lies against the party with whom it contracted, Patrick-Miller.

Having found that the trial court did not err in granting CTR Manufacturing’s peremptory exception of no cause of action, we do not reach CTR Manufacturing’s assignment of error related to prescription.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to New Holland Credit Company.

      . In cases upholding waiver of warranty provisions, the facts surrounding the waiver showed that the lessee or buyer either actually read the waiver language in the lease or sales agreement or the waiver in writing was so prominent and unmistakable in larger block letters in full view of the signer such that the lessee or buyer could not have missed the waiver. See Walnut Equipment Leasing Co., Inc., supra; Ross v. Premier Imports, 96-2577 (La.App. 1st Cir. 11/07/97), 704 So.2d 17, writ denied, 97-3035 (La.02/13/98), 709 So.2d 750; Keaty v. Moss Motors, Inc., 93-1452 (La.App. 3d Cir.06/01/94), 638 So.2d 684, writ denied, 94-2211 (La.11/11/94), 644 So.2d 399; Business Credit Leasing, Inc. v. Lobman, Carnahan and Batt, 93-842 (La.App. 5th Cir.03/16/94), 635 So.2d 1196.