author: | .DOUCET, Judge.

text:
    John MARIEN and Marilyn Marien, Individually and on behalf of Joshua Paul Marien, Justin André Marien, and Jacob Charles Marien, v. GENERAL INSURANCE COMPANY OF AMERICA, Barham Bros., Inc. and Robert L. Adams.
    No. 02-545.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 15, 2003.

      Roy S. Halcomb, Jr., Alexandria, LA, Attorney for the Plaintiffs/Appellees John and Marilyn Marien.
    Vance E. Ellefson, New Orleans, LA, Attorney for the Defendants/Appellants Barham Brothers, Inc. and General Insurance Company of America.
    John Hoychick, Jr., Rayville, LA, Attorney for the Defendant/Appellee Robert L. Adams.
    Jeffery A. Riggs, Alexandria, LA, Attorney for the Third Party Defendant/Appel-lee Earl Cherry.
    Court composed of NED E. DOUCET, Jr., Chief Judge, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   | .DOUCET, Judge.

This appeal arises out of a plane crash near Alexandria, Louisiana.

The trial court correctly summarized the underlying facts as follows:

John Marien, the plaintiff, was seriously injured in a plane crash that occurred near Alexandria, Louisiana on November 24,1997. The plaintiff works for the Federal Bureau of Prisons as a landscape foreman. He is also a farmer and pilot who was attempting to fly his own plane to spray his fields for agricultural purposes. At the time of the accident, Mr. Marien had flown a number of airplanes and had approximately 275 to 280 hours of flying time. Mr. Marien had to get 10 hours flying time in the Ag-Cat for his insurance to cover him in his own plane. Mr. Marien testified that he went to Rayville, Louisiana and flew an Ag-Cat for three hours. The Ag-Cat involved in this case is owned by the defendant, Barham Brothers, Inc. The plaintiff paid the defendant, Mr. Edwards Barham, $250.00 an hour for flying time in Rayville and assumes that Barham paid the instructor, Mr. Guillot.
The plaintiff was subsequently attempting to get more hours in the Ag-Cat when the crash occurred. Mr. Earl Cherry, who operated the Summerville Airport, near Alexandria, was asked by the defendant, Mr. Barham, if he would fly the Ag-Cat for him. Mr. Cherry, an experienced pilot with over 20,000 hours, was to take student pilots up in the plane so they could obtain experience flying the Ag-Cat airplane. Barham would be paid $250.00 an hour for the plane and instructor and the instructor would be paid by Barham the sum of $250.00 to $300.00 per day. All of the instructors that flew for Mr. Barham had to be placed on Mr. Barham’s policy of insurance with the defendant, General Insurance Company of America. Both Mr. Barham and Mr. Cherry testified that they wanted to make certain that Mr. Cherry was listed on the policy. Mr. Barham would not allow Mr. Cherry to fly the plane until he was listed on the policy. Mr. Cherry was added to the policy on November 24, 1997, the day of the accident. Mr. Marien, who had known Mr. Cherry for a long time, was the first student to fly under this arrangement.
According to the testimony, Mr. Bar-ham and Mr. Guillot, on the day of the accident, flew two planes from Rayville to Summerville Airport where they met with the plaintiff, John Marien, and Mr. Earl Cherry. After a brief visit and a walk around of the Ag-Cat, Barham and Guillot got in one of the planes and returned to Rayville leaving the Ag-Cat with Marien and Cherry. After Mr. Barham left, Mr. Cherry fueled the Ag-Cat.
Mr. Cherry was in the front cockpit and the plaintiff, John Marien, was in the back cockpit of the Ag-Cat. Marien taxied the plane out onto the [2runway. It was a beautiful day with little wind. Marien and Cherry both testified that the plane functioned properly during the moments prior to and upon take off. However, both men testified that shortly after take off the nose of the plane came up quickly. Pilots describe the condition as nose high attitude. Cherry told Marien to get the nose of the plane down. Marien testified that he was trying to get the nose down by pushing forward on the stick but that the stick would not go forward and appeared to be jammed. Mr. Cherry also attempted to push the stick forward and also found the control jammed. Mr. Cherry testified that the plane reached a maximum altitude of approximately 150 feet. The plane would appear to stall out due to the nose high attitude. Mr. Cherry testified that the plane would gain altitude then subsequently lose altitude. The plane ultimately struck a large tree and came to rest on its right side.

Mr. Marien asserts that he sustained injuries to his back and left leg as a result of the accident. He and his family filed this suit naming as defendants Barham Bros., Inc., General Insurance Company of America (GIC), and Robert L. Adams, who inspected the plane. GIC and Barham Bros, filed a third party demand against Earl Cherry. GIC denied coverage of Cherry and Adams and refused to provide a defense on their behalf. Cherry and Adams filed demands against Barham Bros, and GIC.

After a trial on the merits, the trial judge found that the crash was caused by a malfunction or defect in the controls of the aircraft. He found that Cherry and Adams were insured under Barham Bros.’ policy of insurance with GIC and that GIC owed them a defense as a result. He rendered judgment in their favor against GIC in the amount of $22,500.00 each. However, he found no fault on the part of Cherry or Adams. The court rendered judgment against Barham Bros, and GIC, jointly and in solido, and in favor of the Mariens. He awarded damages as follows: “[I]n favor of plaintiff, JOHN MARIEN, in the full sum of $194,047.78, in favor of plaintiff, MARILYN MARIEN, in the full sum of $12,500.00, and in favor of plaintiffs, JOSHUA MARIEN, JUSTIN MAR-IEN and JACOB MARIEN, in the full sum of | a$2,500.00 each.... ” The court limited the liability of GIC to its $100,000.00 policy limits plus legal interest.

GIC and Barham Bros, appeal the trial court’s judgment against them. The Mar-iens appeal the finding that GIC’s coverage limit is $100,000.00 and re-asserting claims against Cherry and Adams in the alternative. Cherry and Adams have answered the appeals asking for penalties and attorney’s fees for failure to provide a defense.

CAUSE OF THE ACCIDENT

GIC and Barham Bros, first contest the trial court’s finding that the crash was caused by a malfunction of or defect in the aircraft. In brief, these Defendants assert that:

The court made no finding of negligence. The evidence showed that the aircraft controls operated properly both before and after the plaintiffs flew the aircraft into a tree. There was no impediment found to the operation of the controls. The District Court held that, despite the lack of evidence of a defect, that is a flaw or fault or condition of relative permanence existing or inherent in the aircraft as one of its qualities, the owner of the aircraft was strictly liable for damages allegedly suffered by the pilot, John Marien.

The Defendants assert that the trial court erred in finding Barham liable without proof of a defect. However, the trial court found that a defect existed. In its reasons for judgment the trial court stated that it accepted as fact that the control stick jammed causing the accident. The court then found that Barham Bros., as lessor of the aircraft, was strictly liable for the defective condition of the aircraft.

The Defendants further assert that the trial court erred in finding that the Plaintiffs did not have to prove the cause of the defect. However, it is undisputed that Marien leased the aircraft from Bar-ham Bros. Therefore, the trial court correctly applied La. Civ. Code art. 2695, which states that:

]4The 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.” Walnut Equip. Leasing Co., Inc. v. Moreno, 26,004 (La.App. 2 Cir. 9/21/94); 643 So.2d 327, 331. A defect, for purposes of Art. 2695, has been defined as “a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” Martinez v. Coleman, 00-1827, p. 7 (La.App. 5 Cir. 4/24/01); 786 So.2d 170, 173. To recover under Art. 2695, it is not necessary to prove the cause of the defect. A lessee must prove only the existence of the defect. Freeman v. Julia Place Ltd. Partners, 95-0243 (La.App. 4 Cir. 10/26/95); 663 So.2d 515, writ denied, 95-2808 (La.1/26/96); 666 So.2d 680.

In order for a lessee to recover damages from the lessor under this article due to an alleged vice or defect in the leased premises, the lessee must prove by a preponderance of the evidence that a defect existed in the premises and that the defect caused the damages. Green v. Hodges Stock Yard, Inc., 552 So.2d 435 (La.App. 4th Cir.1989).
Proof by direct or circumstantial evidence is sufficient to constitute a preponderance if, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Green v. Hodges Stock Yard, Inc., 552 So.2d at 439. Causation may be proved by circumstantial evidence, and that evidence need not negate all possible other causes, but it must exclude other reasonable hypotheses with a fair amount of certainty. Buxton v. Allstate Insurance Company, 434 So.2d 605 (La.App. 3rd Cir.1983).

Home Ins. Co. of Illinois v. National Tea Co., 577 So.2d 65, 77 (La.App. 1 Cir.1990), aff'd in pt; rev’d in pt. on other grounds, 588 So.2d 361 (La.10/21/91).

1 fjThe Defendants do not contest the trial court’s summary of testimony concerning the accident, which, having reviewed the record, we find to be correct and adopt as our own:

Mr. Cherry was in the front cockpit and the plaintiff, John Marien, was in the back cockpit of the Ag-Cat. Marien taxied the plane out onto the runway. It was a beautiful day with little wind. Marien and Cherry both testified that the plane functioned properly during the moments prior to and upon take off. However, both men testified that shortly after take off the nose of the plane came up quickly. Pilots describe the condition as a nose high attitude. Cherry told Marien to get the nose of the plane down. Marien testified that he was trying to get the nose down by pushing forward on the stick but that the stick would not go forward and appeared to be jammed. Mr. Cherry also attempted to push the stick forward and also found the control jammed. Mr. Cherry testified that the plane reached a maximum altitude of approximately 150 feet. The plane would appear to stall out due to the nose high attitude. Mr. Cherry testified that the plane would gain altitude then subsequently lose altitude. The plane ultimately struck a large tree and came to rest on its right side.
The accident was investigated the following day by Mr. Gillespie, a representative of the Federal Aviation Administration. Mr. Gillespie testified by deposition that he removed the left side panel of the airplane and looked into the insides of the plane. He testified that he found a battery box lid that was loose in the compartment. He further testified that he found small indentions (sic) on the battery box lid which he said were unusual.... Additionally he testified to finding rub marks on the elevator control push tube on the forward end of the control tube which is closest to the pilot’s control stick.... The numerous screws that held the battery box lid in place were not found. The plaintiff contends that the battery box lid, which admittedly was loose inside the plane, somehow jammed the controls of the plane preventing the stick from operating properly. However, the defendant contends that the control stick did not function properly because the gust lock was on the stick. The gust lock attaches to the control stick and firmly holds it in place. The lock is painted red and made of iron. When it is attached the lock is clearly visible and the stick will not move at all to the front, back or either side. The Court went to view the plane and tried to move the stick with the lock attached and with the lock off. The feel of the stick with the lock attached is distinctive, and this Court doesn’t believe that anyone could taxi this plane holding the control stick and not know the gust lock was engaged. In order to get around this problem, Mr. Clark, the defendant’s expert testified that he believes that the gust lock was intentionally put on after the plane was taxied onto the runway. While this would explain why the controls functioned normally as the plane |fitaxied to the runway for the take off, it would assume that the plaintiff intentionally attempted to take off in a plane with a locked control stick. The Court doesn’t accept this version of the facts.
Mr. Adams performed an annual inspection of the plane in October 1997, shortly prior to the accident. During the course of the inspection Mr. Adams' admitted that he removed the battery box cover but he testified that he replace the cover on the battery and even put additional screws in the lid to replace those screws that were missing at the time of the inspection. The evidence at the trial indicates that a new battery was purchased for the plane and put in the plane sometime after the annual inspection. Mr. Adams was named as a defendant in this matter and the plaintiff contended that he failed to replace the battery lid cover. The evidence adduced at the trial failed to establish the negligence of Mr. Adams.
There is no question but that shortly after takeoff the control stick jammed and both Marien and Cherry testified that they could not push the stick forward. This evidence is uncontradicted and Mr. Cherry made a statement to this effect immediately after the accident. The Court accepts the fact that the control stick jammed.

Given the testimony adduced at trial, the circumstantial evidence is sufficient to show that it is more probable than not that a defect in the plane existed and caused the accident. Therefore, we find no error in the determination of the trial court in this regard.

DUTY TO DEFEND

Barham Bros, and GIC next assert' that the trial court erred in finding that they had a duty to provide a defense for Cherry and Adams.

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. The insurer’s duty to defend suits brought against its insureds is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend the suit, regardless of 17the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence.

Scottsdale Ins. Co. v. Those Certain Underwriters Subscribing to Policy No. LPK 0762 at Lloyd’s of London, 02-190, p. 4 (La.App. 5 Cir. 6/26/02); 822 So.2d 805, 807-08 (footnote omitted), quoting Houghtaling v. Richardson, 01-208 (La.App. 5th Cir.10/17/01); 800 So.2d 1012.

Therefore, we may consider only the language of the policy and the allegations of the petition in determining whether GIC had a duty to defend Adams and Cherry. We may not consider any of the other evidence which GIC feels to be pertinent to the claims.

1. Duty to Defend Adams.

The GIC insurance policy defines insured as follows:

The unqualified word “Insured,” wherever used in the policy with respect to Coverages A, B, C and D, includes not only the Named Insured, but also any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is by or with the permission of the Named Insured. The insurance with respect to any person or organization other than the Named Insured does not apply to:
a. any person or organization, for hire or reward, engaged in the instruction, evaluation, examination, or certification of any pilot or prospective pilot; or
b. any person or organization, or any agent or employee thereof, other than agents or employees of the Named Insured, engaged in commercial aviation operations, either in whole or in part, including but not limited to, the manufacture, sale, repair or service of any aircraft, aircraft engines or other aircraft accessories or components, commercial flying service, aerial applicating service, airport, hangar, pilot training service, air charter or cargo service, scheduled airline or aircraft salvage service.
|sThe unqualified word “Insured,” wherever used in the policy with respect to Coverages A, B D, and E, does not include any officer, director, partner or employee with respect to injury or death of another officer, director, partner or employee of the same employer injured in the course of the duties of employment.

With regard to Adams, the Plaintiffs’ original and amended petitions allege that:

6.
In October of 1997, BARHAM BROS., INC. conducted or commissioned the conduct of the FAA annual inspection for the “Ag-Cat.”
7.
The annual inspection was performed by ROBERT L. ADAMS.
8.
While conducting the inspection, ROBERT L. ADAMS was acting as a servant or employee of BARHAM BROS., INC. for purposes of Louisiana Civil Code Article 2320.
9.
BARHAM BROS., INC. is responsible for the acts and omissions of ROBERT L. ADAMS during the time that he was performing the annual inspection upon the “Ag-Cat.”
15.
The post-accident investigation did reveal evidence that the battery box cover located in the fuselage of the aircraft under the pilot’s seat had not been properly secured to the battery box. The battery box cover became dislodged during flight and jammed in the mechanical linkage between the pilot’s “stick” and the push/pull rods for the aircraft’s elevator control surfaces. The loss of aerodynamic control and resulting crash were a result of the jammed control linkage.
16.
The failure to secure the battery box cover was caused wholly or in part by the fault and/or negligence of ROBERT L. ADAMS for failing to properly inspect his own work after performing the annual inspection, failing to follow the appropriate checklist and procedures, Rand failing to take other steps which would have prevented the control failure.
18(b)
After the crash, the “AgCat” was inspected by the National Transportation Safety Board. The inspection showed that the battery cover was loose inside the fuselage and that there were markings on the battery cover and the elevator control rod which indicated that the crash was caused by the loose battery cover that jammed the elevator control rod and this restricted the movement of the elevator control system. The battery cover is held in place by 8 or more attachment bolts. When the “Ag-Cat” was inspected immediately following the crash, all of the attachment bolts were missing. As is obvious, the attachment bolts were not in place and the battery cover was loose when the “AgCat” was delivered to Mr. Marien.
■18(c)
The “AgCat” underwent an annual inspection which was completed only a few days before the crash. Shortly before the annual inspection was begun, Mr. Barham purchased and installed new batteries in the “AgCat”. In order to replace the batteries, Mr. Barham had to remove the battery cover. Mr. Bar-ham also participated in and was present during the annual inspection. The battery cover should have been checked during the annual inspection. As the owner and lessor of the “AgCat,” Bar-ham Brothers, Inc. had a duty to provide Mr. Marien with an airworthy airplane free of defects. This duty was delegated to Mr. Barham who was responsible for inspecting the “AgCat” for defects, such as the loose battery cover, before delivering the “AgCat” to Mr. Marien.
18(d)
As concluded by the National Transportation Safety Board, the most probable cause of the crash was the loose battery cover that jammed the elevator control rod and restricted movement of the elevator control system. The most logical explanation for the battery cover being loose is that Mr. Barham did not secure the cover after installing new batteries and that neither he nor Mr. Adams thought it was necessary to actually physically remove the cover and check the batteries during or following the annual inspection because the batteries were new and had just been lininstalled. This makes Mr. Barham and Mr. Adams both personally liable along with Bar-ham Brothers, Inc.

Given the language of the policy, and assuming all the allegations of the petition as to Adams to be true, we cannot say that the policy unambiguously excludes coverage. Therefore, we find no error in the trial court’s conclusion Adams is owed a defense.

2. Duty to Defend Cherry.

With regard to Cherry, the “Pilot Standards Endorsement” to the GIC policy states that:

Coverage provided by the policy shall not apply while the aircraft is in flight unless the pilot in command (and second in command, if required below) of the aircraft maintains a valid pilot’s certificate and ratings (category, class and type) appropriate for the aircraft as required by the Federal Aviation Administration and is either a person named below who meets any additional qualifications set forth below, or any other person meeting all of any qualifications set forth below. No other person may fly the aircraft.
1. AS RESPECTS PLEASURE AND BUSINESS FLIGHTS AND RENTAL TO OTHERS:
ANY PILOT MAINTAINING A PRIVATE OR MORE ADVANCED PILOT CERTIFICATE WHO HAS DEMONSTRATED TO EDWARDS BARHAM, JIMMIE LLOYD GUILLOTTE, LOWELL HINCHEE, OR ROBERT MCCURDY THE PILOTING SKILL REQUIRED FOR THE AIRCRAFT BEING FLOWN AND WHO HAS FLOWN A MINIMUM TOTAL PILOT IN COMMAND TIME OF 100 HOURS INCLUDING AT LEAST 25 HOURS IN AIRCRAFT WITH CONVENTIONAL (TAIL-WHEEL) LANDING GEAR AND 10 HOURS IN THE MAKE AND MODEL BEING FLOWN.
2. AS RESPECTS FLIGHT INSTRUCTION TO OTHERS:
NAMED PILOTS ONLY: EDWARDS BARHAM, JIMMIE LLOYD GUIL-LOTTE, LOWELL HINCHEE, ROBERT MCCURDY OR EARL CHERRY.
3. WITH RESPECT TO N2LU:
hi NAMED PILOTS ONLY: EDWARDS BARHAM, JIMMIE LLOYD GUILLOTTE, LOWELL HINCHEE, ROBERT MCCURDY OR EARL CHERRY.
4. ROBERT ADAMS BUT ONLY AS RESPECTS DELIVERY OR MAINTENANCE FLIGHTS.

GIC and Barham Bros, brought Cherry into this suit via a third party demand, making the following allegations:

(HI)
Made Third Party Defendant is Earl L. Cherry, a person of the age of majority and a resident of the State of Louisiana.
(IV)
Assuming the position of third party plaintiffs, General Insurance Company of America and Barham Brothers, Inc., aver that they are not liable for, did not cause, and did not contribute in any way to the injuries complained of by John Marien. Third party plaintiffs aver that the injuries complained of, if any there were, resulted solely from the fault, acts, omissions and negligence of Earl Cherry, made third party defendant herein.
(V)
At all pertinent times, the aircraft in question was in the care, custody and control of John Marien and third party defendant Earl L. Cherry. Mr. Marien has alleged that he was a student pilot and that Earl L. Cherry was a Certified Flight Instructor who undertook to train Mr. Marien in the operation of the aircraft in question.
(VI)
At all pertinent times, third party defendant, Earl L. Cherry, was responsible for the care and well being of student pilot Marien and the aircraft. The injuries complained of, if any there were, resulted solely from error, acts and omissions on the part of Earl L. Cherry, who as Senior Pilot and Certified Flight Instructor, was charged with the duty of operating the aircraft in question in a safe manner and supervising and maintaining responsibility for the well being of John Marien, the student pilot.

In light of the fact that Cherry is specifically named as a covered pilot in the GIC policy and given the allegations made against him, we cannot say that the policy | ^unambiguously excludes coverage for the alleged actions and/or inactions. Therefore, the trial court correctly found that GIC owes Cherry a defense in this matter.

ARBITRARY AND CAPRICIOUS

Both Adams and Cherry assert that the trial court erred in failing to order GIC to pay penalties and attorney’s fees for arbitrary and capricious failure to provide them with a defense to the claims against them.

Under La.R.S. 22:658(B)(1), an insurer’s refusal to defend an insured as required under the terms of a policy subjects the insurer to a penalty of ten percent of the legal fees and costs incurred by the insured in defending the suit if that refusal is arbitrary, capricious, or without probable cause. See Parks Equipment Co. v. Travelers Ins. Co., 293 F.Supp. 1206 (E.D.La.1968). This section is penal in nature and is strictly construed. The burden is on the claimant to prove arbitrariness and capriciousness or lack of probable cause. Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir. 1981), writ denied, 409 So.2d 615 (La.1981).

Sanders v. Wysocki, 92-1190, p. 8 (La.App. 4 Cir. 1/27/94); 631 So.2d 1330, 1335, writ denied, 94-0506 (La.4/22/94); 637 So.2d 156.

Considering the record before us, we cannot say that Adams and Cherry have carried their burden of showing that GIC acted arbitrarily and without probable cause. Therefore, we find no error in the trial court’s denial of penalties and attorney’s fees.

QUANTUM OF DAMAGES

GIC and Barham Bros, further assert that the trial court erred in making excessive damage awards to the Plaintiffs. The trial court awarded John Marien $194,047.78 for the damages he sustained in the accident. The court further made awards for loss of consortium to John Mar-ien’s wife, Marilyn, in the amount of $12,500.00, and to his three minor children, Joshua, Justin and Jacob, in the amount of $2,500.00 each. The court limited the liability of GIC to policy limits of $100,000.00, “plus legal interest from date of judicial demand and legal interest on |13the amounts awarded in excess of its policy limits from date of Judgment until payment of that part of the judgment that does not exceed its policy limits.”

The trial court in its reasons for judgment explained its award to John Marien as follows:

John Marien was seriously injured in this accident. The plane hit the tree and then fell from 75 to 100 feet to the ground. The gas line ruptured and gasoline poured into the cockpit. He was trapped in the plane for a period of time prior to Mr. Cherry rescuing him. Mr. Marien testified that as he hobbled from the wreck he could hear the blood sploshing in his boot. This testimony was confirmed by Mr. Cherry. A piece of the propellor lacerated Mr. Marien’s right lower leg. Pictures of the right leg are attached to the deposition of Dr. Jyoti Ganji taken on October 11, 2000. Mr. Marien testified that he was in severe pain, the worst pain he ever had, and he had surgery that night at Cabrini Hospital. He had a total of five surgical procedures. He was on crutches for two months, wore a splint for two months and used a cane for about a month. He testified that he was off work for four months and that he returned to work on March 23 or 24 of 1998. He actually returned to work on March 23, 1998. Dr. Ganji released him sometime in May. Mr. Marien has bad scarring and still has problems from the plane crash.
Dr. Ganji testified in his deposition that Marien had a problem with necrotic or dead tissue that had to be removed. Dr. Ganji also testified that Marien had a nondisplaced hairline fracture of the pelvis. This condition did not require surgery and it subsequently improved. Dr. Ganji subsequently performed skin grafts in the area of the wound. Dr. Ganji testified that Marien also “had a real bad sprain of the C spine.” dep. p 10
Dr. Ganji further testified:
“Q. Now after you examined Mr. Marien, what was your diagnosis?
A. We call this a plane crash, total body injury with major injuries involving the right lower extremity and to rule out any major injuries to the pelvic area because of the suspected fracture of the pelvic bone.
Q. And what treatment did you recommend?
A. Because it’s a very grossly open wound with some devitalized plus some loss of tissue, we need[ed] to operate him as quickly to remove any bad tissue, remove any foreign body because it happened in | uthe fields, that’s why he was taken to the operating room as quickly.” dep. p 10
Dr. Ganji testified:
Q. And can you described for us how the crushing and cutting type injury Mr. Marien sustained causes the kind of ongoing symptoms and problems that he has? How is that, why is that happening? What is it about this injury that causes that?
A. Number one is loss of tissue; number two is the healing by the body from the crush injury, replaced by the scar. There’s no other way to replace it. And scar is tougher than natural tissues. And that restricts the movement of the muscles, tendon, in turn, movement of the joints. And all these are sequelae from those two main injuries he had.
Q. Am I correct that not only does the scarring and the internal scar tissue restrict movement of the muscles, it can also compromise the blood flow and nerves in that area of the injury?
A. They can trap the nerves and blood vessels too, yes.
Q. And that could be contributing to the kind of complaints he has?
A. Partly, yes.
Q. Okay. And what are some of the kinds of activities that you would expect to aggravate and cause symptoms in Mr. Marien’s right leg.
A. Anything that involves the stretching of those muscle groups as we have, all we knew, all we saw were the lateral group but it was crush injury, there is no way to know how many muscle groups were involved, so anything that puts the stretch on those muscle groups, he’ll have pain and restriction of motion.
Q. Would you expect an activity such as say prolonged standing to aggravate and cause symptoms in his leg?
A. Yes.
Q. Would you expect an activity such as climbing in connection with stairs or ladders or getting up to and off of heavy equipment, would those be the kind of activities that would aggravate and cause symptoms?'
A. Positively.
11SQ. And then walking over uneven ground?
A. Yes.
Q. Running?
A. Heavy lifting or carrying heavy loads that required use of both legs?
Q. Exposing the leg to constant jarring or vibration such as might happen if a person had to operate heavy equipment, would that be the kind of thing that would cause aggravation of symptoms in that leg?
A. Yes, sir.
Q And would you agree that Mr. Marien should try and avoid these types of activities that would aggravate and cause symptoms in his leg?
A. He might be trying to avoid, yes.
Q. And given the history in this case are you satisfied that the injuries that you treated Mr. Marien for were caused by this airplane crash that he gave you a history of?
A. Yes, sir.
Q. While under your care, did you find Mr. Marien to be what you considered a cooperative patient?
A. He was very good.
Q. And did you feel like that he was at all times honest and sincere with respect to his problems?
A. He is, yes.
The Court finds that John Marien is entitled to the sum of $75,000.00 in general damages for physical pain and suffering past, present and future. Mr. Marien is entitled to the sum of $35,000.00 for mental pain and suffering past, present and future. He is entitled to the sum of $25,000.00 for disability and loss of earning capacity. He is entitled to $12,000.00 for scarring and disfigurement. He is entitled to medical specials in the amount of $30,047.78 and loss wages in the amount of $17,000.00.

|1fiThe trial court’s reasons accurately reflect the evidence of record. In light of those facts, the award to John Marien appears to be within the discretion of the trial court. Therefore, we will not disturb the award on appeal.

Damages awarded by a jury are to be reviewed in the light most favorable to the prevailing party. O’Riley v. City of Shreveport, 30,107 (La.App.2d Cir.01/23/98), 706 So.2d 213. The discretion vested in the trier of fact is great, such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Reasonable persons frequently disagree about the measure of general damages; therefore, it is only when the award is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id.

LeBlanc v. Barry, 00-709, p. 8 (La.App. 3 Cir. 3/1/01); 790 So.2d 75-81, writ denied, 01-1275 (La.6/15/01); 793 So.2d 1251, quoting Stroud v. Golson, 32-044, p. 5 (La.App. 2 Cir. 6/16/99); 741 So.2d 182, 185, writ denied, 99-2108 (La.10/29/99); 744 So.2d 1286.

With regard to loss of consortium, the jurisprudence establishes that:

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of financial support, (6) loss of aid and assistance, and (7) loss of fidelity. Bell v. USAA Cas. Ins. Co., 30,172 (La.App.2d Cir.1/21/98), 707 So.2d 102, 110, writs denied, 98-0712, 98-0766 (La.5/8/98), 718 So.2d 433, 434; Finley v. Bass, 478 So.2d 608 (La.App. 2d Cir.1985). A loss of consortium award is a fact-specific determination, to be decided case-by-case and is disturbed only if there is a clear showing of an abuse of discretion. Rudd v. Atlas Processing Refinery, 26,048 (La.App.2d Cir.9/21/94), 644 So.2d 402, 411, writ denied, 94-2605 (La.12/16/94), 648 So.2d 392; Johnson v. Wal-Mart Stores, Inc., 616 So.2d 817 (La.App. 2d Cir.1993).

Quinn v. Wal-Mart Stores, Inc., 34,280, pp. 10-11 (La.App. 2 Cir. 12/6/00); 774 So.2d 1098, 1101-02, writ denied, 01-0026 (La.3/9/01); 786 So.2d 735.

117The evidence adduced at trial established that Mr. Marien’s family suffered losses appropriately recompensed by the award of damages for loss of consortium. The record supports the conclusion that Marien’s family activities were severely curtailed and that his family suffered a loss of society, companionship and aid and assistance. Therefore, we find no abuse of discretion in the trial court’s awards damages for loss of consortium.

POLICY LIMITS

The Mariens assert that the trial court erred in finding that policy limits of $100,000.00 apply to the accident. The Plaintiffs argue that the appropriate policy limit to be applied to this matter is $500,000.00.

In its reasons for judgment the trial court correctly noted that:

The insurance policy in this case provides for a limit of liability of $500,000.00 for each occurrence. The policy further provides a passenger bodily injury with a limit of $100,000.00 for each person. The plaintiff argues that there is a distinction between a pilot and a passenger and the distinction means that the limitation on coverage is $500,000.00 for a pilot instead of $100,000.00. The policy defines passenger to include pilot in Section 13 of the policy. That section provides as follows:
13. “ ‘Passenger’ means any persons, including pilots or other crew members, while in or boarding the aircraft for the purpose of riding or flying therein, or while alighting from the aircraft after a ride, flight or attempted flight therein.”
The Court finds that the $100,000.00 limitation in the policy pertains to the injuries in this case.

We agree. The language of the policy is clear and unambiguous. “When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given.” Robinson v. Heard, 01-1697, p. 4 (La.2/26/02); 809 So.2d 943, 945. As a result, the trial court’s finding in this regard is affirmed.

^CONCLUSION

For these reasons, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are assessed 70% to the Defendants. The remaining 30% of the costs are to be paid 10% by Cherry, 10% by Adams and 10% by the Mariens.

AFFIRMED.


source: Caselaw Access Project

author: J^CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Lisa Minor BROWN v. DYNACARE.
    No. 02-CA-531.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Daniel E. Becnel, III, Law Offices of Daniel E. Becnel, Jr., LaPlace, LA, Counsel for plaintiff-appellant.
    Larry G. Canada, Richard E. King, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, Counsel for defendant-appellee.
    Panel composed of Judges JAMES L. CANNELLA, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^CLARENCE E. McMANUS, Judge.

Claimant appeals the dismissal of her workers’ compensation claim. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant, Lisa Minor Brown, was employed by Dynacare as a phlebotomist. On September 22, 1999, she was injured in a motor vehicle accident while in the course and scope of her employment. She began treating with her two primary care physicians and a chiropractor for neck and lower back injuries. She returned to work in October 1999 but stopped working by May 2000. Claimant underwent an MRI then a lumbar fusion in late 2000, performed by Dr. John Jackson. Claimant continued to complain of severe pain and sought the assistance of a pain management specialist, Dr. David Rosenfeld.

Despite her inability to find relief, her benefits were terminated in August 2001. Claimant filed a disputed claim for compensation contending that she was permanently disabled as she continued to suffer from pain, tingling and numbness below her waist. Dynacare and its insurer, CNA, answered the disputed claim denying claimant was temporarily or permanently disabled as a result of this accident and that she was able to return to work. Defendants asserted La. R.S. |a23:1208 and 23:1208.1 as affirmative defenses relying on video surveillance of claimant performing certain movements she denied being able to do.

On March 13, 2002, a trial on the disputed claim was held before Worker’s Compensation Judge Robert Varnado. At trial, claimant testified that she was being treated by Dr. Rosenfeld and that Dr. Jackson released her based on his conclusion that her fusion surgery was successful. Claimant’s husband testified that she was no longer able to do many of the things she did prior to the accident. Claimant submitted many medical records and bills in support of her contention.

The worker’s compensation judge made the following findings of fact. Claimant reached maximum medical improvement on August 27, 2001. Dr. Jackson reviewed recent x-rays and determined there was no neurological basis for claimant’s subjective complaints of continued pain. Dr. Rosen-feld released her to modified employment on August 15, 2001. About the same time, claimant’s treating psychiatrist, Dr. Glen Ruffin, opined that claimant was maximizing her disability. Dr. Rennie Culver, a psychiatrist who performed an IME of claimant, stated in his October 2001 report that claimant’s psychiatric problems were not caused by the work-related injury. In his opinion, she was able to perform all tasks required of her as a phlebotomist. The WCJ found claimant’s employer offered her employment in August 2001 that was consistent with her physical restrictions. The WCJ further concluded that claimant’s subjective complaints of pain were not supported by adequate lay or medical evidence and that she failed to meet her burden of proof that her pain was substantial enough to make her return to employment impossible.

As to defendant’s allegations that claimant has acted fraudulently in contravention of La. R.S. 23:1208, the WCJ found that her actions were not fraudulent even though the evidence called her credibility into question. He noted that the video surveillance alone was “unremarkable” in light of claimant’s | condition as expressed to her doctors. The WCJ concluded that further medical treatment beyond what was previously authorized was not warranted based on the judge’s observation that claimant was embellishing her complaints.

Based on these findings, the WCJ denied claimant’s request for additional indemnity and medical benefits. Claimant lodged this appeal.

DISCUSSION

On appeal, the claimant argues that the WCJ erred in failing to find that she had met her burden of proving entitlement to medical benefits and compensation and that Dr. Rosenfeld released her to her previous employment. The workers’ compensation judge’s factual findings are subject to the manifest error standard of appellate review. Edwards v. Sawyer Indus. Plastics, Inc., 99-2676 (La.6/30/00), 765 So.2d 328. We will set aside the hearing officer’s factual finding only if the record demonstrates that there was no reasonable basis for this factual finding and that this finding is clearly wrong. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.

The claimant contends that although Dr. Rosenfeld signed a letter releasing her to restricted duty in August 2001, she continued to treat with him, and Dynacare’s case manager made no efforts to follow up with him to determine her status. Defendants argue that the claimant should have returned to work when Dr. Rosenfeld released her to restricted duty. They note that Dr. Jackson concluded that there was no neurological basis for claimant’s subjective complaints of continued pain. Also, Dr. Ruffin, claimant’s treating psychiatrist, reported in August 2001 that she was maximizing her disability. Further, Dr. Cul-ver’s October 2001 report indicates claimant’s psychiatric problems were not the result of the work-related injury and that she could perform the tasks of a phlebo-tomist.

To qualify for temporary or permanent total disability benefits, a claimant must prove by clear and convincing evidence that she is unable to engage in any | Remployment. La. R.S. 23:1221(2)(c). In this case, the WCJ found that claimant was not totally disabled and that she was able to return to restricted work activity as of August 2001. This finding is supported by the record. Claimant’s testimony that she cannot perform any work was not corroborated by the expert testimony. Considering the evidence in this case, it was reasonable for the WCJ to conclude that the plaintiff had not met her burden of proving she was entitled to further medical benefits and compensation and that she was offered a job with Dynaeare consistent with the restrictions imposed by her doctors.

The claimant further contends that the trial court erred in failing to award penalties and attorneys’ fees, pursuant to LSA-R.S. 23:1201. The claimant argues that Dynaeare relied solely on Dr. Rosen-feld’s August 15, 2001 letter in deciding to terminate her benefits. Having reviewed the record, we cannot say defendants behaved in an arbitrary and capricious manner in light of the WCJ’s determination that the claimant had reached maximum medical improvement in August 2001 and that she was not entitled to further benefits. Thus, there is no basis for finding Dynaeare arbitrary and capricious for failing to pay additional benefits and compensation to claimant.

In an answer to the appeal, the defendants assert that the trial judge erred in failing to find the claimant in violation of LSA-R.S. 23:1208, thereby allowing Dynaeare to recover restitution damages and payments made after the termination of benefits on August 17, 2001. Under Section 1208, a party who willfully makes a false statement or representation for the purpose of obtaining benefits will have the benefits forfeited and may be subjected to criminal penalties. In his reasons for judgment, the trial judge found that “although the claimant’s actions in this case do not rise to the level of being fraudulent per R.S. 23:1208, the overall evidence illustrates the claimant’s credibility is called into question.” Our review of the | ¿record indicates that the WCJ found that claimant did not make fraudulent statements in order to obtain benefits and we find no manifest error in that ruling.

CONCLUSION

In summary, we conclude the factual findings of the hearing officer are not clearly wrong. Accordingly, the judgment of the WCJ is affirmed.

AFFIRMED.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    SIZELER HAMMOND SQUARE LIMITED PARTNERSHIP v. GULF STATES THEATRES, INC., n/k/a Hammond Theatres, Inc. and Hammond Theatres, L.L.C.
    No. 02-CA-759.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Writ Denied March 21, 2003.
    Robert A. Kutcher, Nicole S. Tygier, Patricia D. Tunmer, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, LLP, Metair-ie, LA, for Sizeler Hammond Square Limited Partnership, Plaintiff/Appellant.
    Rodney C. Cashe, Deshea S. Richardson, Cashe, Lewis, Moody, & Coudrain, Hammond, LA, for Gulf States Theatres, Inc., n/k/a Hammond Theatres, Inc. and Hammond Theatres, L.L.C.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

Plaintiff, Sizeler Hammond Square Limited Partnership (hereinafter “Sizeler”), appeals from a summary judgment rendered in favor of defendants, Gulf States Theatres, Inc., n/k/a Hammond Theatres, Inc. (hereinafter “Gulf States”) and Hammond Theatres, L.L.C. For the reasons stated more fully herein, we affirm in part and reverse in part the trial court’s judgment. The case will also be remanded for further proceedings.

Facts and Procedural History

This action arises out of a dispute concerning the terms of a lease agreement covering a portion of the Hammond Square Shopping Center executed for the operation of a motion picture theatre. A written act of lease dated April 27, 1976 was executed between Hammond Properties, Inc. and others as landlords and Gulf International Cinema Corporation, a predecessor to United Artists Theatre Circuit, Inc., as tenant. Sizeler later assumed all of the landlords’ right, title and interest in the lease. In 1992, defendant Gulf States assumed all of the tenant’s obligations under the lease. At the time of the transfer, T. George Solomon, Jr. was the president of Gulf States.

IsThe lease was for an initial term of fifteen years. Prior to Gulf States’ acquisition of the lease, the parties agreed to amend the lease to change the termination date to February 28, 1993. The lease also contained an option to renew for two five-year periods, provided that the tenant notified the landlord of such intention one year prior to the expiration of the lease term. United Artists timely exercised the first option to extend the initial terms of the lease for five years, or until February 28,1998.

By letter dated September 9, 1997, Gulf States requested that it be permitted to extend the lease for a second five-year term, or until February 28, 2003 . Sizeler did not respond to this request prior to the expiration of the lease term. By letter dated April 28, 1998, Sizeler responded to the request and confirmed that the parties would extend the term of the lease until February 28, 2003. Gulf States continued to operate the theater referred to in the lease agreement. On April 9, 1999, Gulf States notified Sizeler in writing that it would cancel the lease effective June 1, 1999. Gulf States vacated the leased premises on May 13, 1999, and defendant Hammond Theatres, LLC opened a new 10-screen theatre adjacent to the leased premises on May 16,1999.

On May 26, 1999, Sizeler instituted this suit for declaratory judgment seeking a declaration that Gulf States Theatres, Inc., n/k/a Hammond Theatres, Inc. and Hammond Theaters, LLC were affiliates for purposes of the lease agreement. Plaintiff alleged in this petition that the lease prohibits the tenant or an affiliate of the tenant from operating a movie theatre within 3 miles of the leased premises, Land that defendants breached the radius restriction clause of the lease by opening the new theater. Plaintiff also averred that defendant breached the continuous operations clause of the lease agreement by closing the theater in the shopping center prior to the expiration of the lease. Following the trial court’s denial of its exception of venue, defendants answered plaintiffs petition asserting that the exercise of the second option to renew was not timely sent, and thus defendants were occupying the leased premises on a month to month basis after the lease expired on February 28, 1998. Defendants asserted that this agreement was properly terminated, and that plaintiffs claims of violations of the lease agreement were without merit.

Sizeler subsequently amended its petition to add a claim for breach of contract and for damages for intentional interference with the lease contract. Plaintiff added as defendant T. George Solomon, Jr., the president of Gulf States, further alleging that defendants Gulf States and Hammond Theaters conspired against Siz-eler to breach the lease agreement. By a second supplemental and amending petition, plaintiff asserted claims of unfair trade practices and certain constitutional violations by defendants.

On April 6, 2001, Sizeler filed a Motion for Partial Summary Judgment seeking a determination that Gulf States and Hammond Theatres were affiliates, and that Gulf States breached the lease agreement by violating the radius restriction and continuous operations clauses in the agreement. Gulf States and Hammond The-atres filed an opposition, disputing the claim that they were affiliates, and further asserting that the lease agreement expired on February 28, 1998 because the exercise of the second 5-year renewal option was not timely implemented nor was it accepted by Sizeler during the term of the lease.

The trial court heard oral arguments on this matter on July 16, 2001 and the court rendered judgment in favor of Sizeler. A written judgment was rendered onJ^July 23, 2001, granting Sizeler’s motion for partial summary judgment and finding that Gulf States and Hammond Theatres were affiliates by virtue of their common ownership; that Gulf States violated the terms of the lease by relocating its movie theater; and that Gulf States was hable for ah past due and accrued rents under the lease and all damages to Sizeler resulting from the breach.

On July 27, 2001, defendants filed a rehearing on the basis that the trial court had failed to rule on whether the term of the lease had been timely extended or, alternatively, reconducted. Defendants argued that since Gulf States did not timely tender its request for renewal of the lease, and Sizeler did not accept that request until after the lease term had expired, the lease had been reconducted on a month-to-month basis. Therefore, they argued that Gulf States gave proper notice that it was vacating the premises, and did not breach the lease by discontinuing operation of the theatre.

On August 2, 2001, defendants filed a Motion for Partial Summary Judgment seeking a ruling that the lease term had not been extended by the parties beyond the termination date of February 28, 1998, and that the lease was reconducted on a month-to-month basis. Defendants argued that there was no issue of fact as to the breach of contract claims asserted by plaintiff. Defendants further sought dismissal of all tort claims asserted by Sizeler, on the basis that there was no intention to violate the lease as defendants believed the lease had been reconducted on a month-to-month basis.

Sizeler opposed this motion on the grounds that the lease had been extended by the exercise of the option to renew and further that summary judgment on the tort claims was premature as discovery was not yet complete. Thereafter, defendants filed a supplement to the summary judgment motion attaching the affidavit of George Solomon on behalf of Gulf States and another by his father, T.G. Solomon, on behalf of Hammond Theatres, LLC. The affiants stated that | fithey did not conspire to cause Gulf States to breach the lease, and that the conduct of Gulf States in terminating the lease and vacating the premises was based on the good faith belief that the lease had been reconducted to a month-to-month agreement.

The trial court granted the motion for rehearing on the basis that the court had not yet heard the issue of any possible reconduction, and that that issue must be decided before defendants could be found in violation of the lease. The trial court held a hearing on the reconduction issue on March 13, 2002. On March 18, 2002, the court rendered judgment granting defendants’ motion for partial summary judgment and, upon rehearing, denying plaintiffs motion for partial summary judgment. The trial court further designated the judgment as final for the purposes of this appeal.

In its reasons for judgment, the trial court held that the lease was not renewed, but had been reconducted on a month-to-month basis. The trial court also dismissed all of Sizeler’s contract and tort claims.

Sizeler now appeals from this judgment, arguing that the trial court erred in reversing itself on rehearing and in granting defendants’ motion for partial summary judgment dismissing both the contract and tort claims.

Law and Discussion

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., 639 So.2d 730, 750 (La.1994); Moody v. United Nat’l Ins. Co., 98-287 (La.App. 5 Cir. 9/29/98), 743 So.2d 680, writ denied, 98-2713 (La.12/18/98), 734 So.2d 639.

An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to | judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

The rules governing summary judgments are found in La.C.C.P. art. 966 and 967. A motion for summary judgment shall only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art 966(B).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

It is well settled in our law that legal reconduction is a continuation of the lease under the same conditions of the old lease except the term. The new term is month to month. La.C.C.Arts. 2685 and 2689; 210 Baronne Street Ltd. v. Pisano, 526 So.2d 345 (La.App. 4th Cir.1988). Recon-duction is presumed where the “tenant ... should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor. ...” La.C.C.Art. 2689

However, the presumption of reconduction is inoperative in the face of a clear intention of the parties to the contrary. Kogos v. Lemann, 285 So.2d 548 (La.App. 4th Cir.1973), writ denied, 288 So.2d 648 (La.1974); Divincenti v. Redondo, 486 So.2d 959 (La.App. 1st Cir.1986); Talambas v. Louisiana State Bd. of Education., 401 So.2d 1051 (La.App. 3rd Cir.1981).

The duration and the conditions of leases are generally regulated by contract, or by mutual consent. La.Civ.Code art. 2684. The parties must abide by the agreement as fixed at the time of the lease. La.Civ.Code art. 2686. When the lessee provides written notice of his intention to renew, but that notice is untimely, jsrenewal of the lease under an option to renew is not valid. Hidalgo Motors, Inc. v. Opelousas Courtesy Motors, Inc., 576 So.2d 1086 (La.App. 3 Cir.1991). See also, Southern Ventures Corp. v. Texaco, Inc., 372 So.2d 1228 (La.1979), where the supreme court found that a lease agreement, which converted to a month to month lease after the expiration of the initial lease period, was not renewed where notice of the lessee’s election to exercise the renewal option did not comply with the lease provision requiring such notice no later than sixty days prior to the expiration of the initial term.

In the present case, the lease agreement provided that the duration of the lease was for fifteen years or until February 28, 1993. The lease also contained an option to renew for two five-year periods, provided that the tenant “... shall give Landlord notice by registered mail of its intention to exercise such right and privilege not less than 12 months prior to the commencement of each option.” Defendants’ predecessor exercised the first option to extend the initial terms of the lease for five years, or until February 28, 1998. The second option to renew should have been given to Sizeler no later than February 28,1997.

There is no dispute that Gulf States failed to give the landlord notice of its intention to renew the lease until September 9, 1997, less than twelve months prior to the expiration of the term as required by the lease. The record indicates that Sizeler failed to indicate its acquiescence to this offer during the duration of the lease agreement, but sent a letter dated April 28, 1998 confirming the exercise of the option to renew.

Sizeler contends that the September 9, 1997 letter offering to renew the agreement constituted an exercise of the option to renew which had the effect of extending the duration of the lease for an additional five years, or until February 28, 2003. However, by the clear terms of the agreement, the parties stated that the lease was to expire on February 28, 1998 unless the tenant exercised the option to |nrenew at least 12 months prior to the expiration date. Gulf States failed to comply with this provision of the lease. The letter sent by Gulf States on September 9, 1997 was insufficient to renew the lease as the deadline to renew had passed. As the tenant did not timely renew the lease, the lease expired on its own terms and began the following day as a month to month lease. Heirs of Boudreaux v. Payne, 00-292 (La.App. 3 Cir. 12/6/00), 773 So.2d 894, 897 writ denied, 00-3528 (La.2/16/01), 786 So.2d 102.

Sizeler contends that no formal acceptance of the tenant’s offer to renew was necessary to extend the terms of the lease. In support of this position, Sizeler relies on a provision of the lease agreement which allows the landlord to waive the untimeliness of the exercise of the option. That provision provides as follows:

[T]he failure of Landlord to insist in any one or more instance upon a strict performance of any covenant of this lease or to exercise any option or right herein contained shall not be construed as a waiver or relinquishment for the future of such covenant, right or option, but the same shall remain in full force and effect, unless the contrary is expressed in writing by the Landlord ...

In Southern Ventures Corp. v. Texaco, Inc., supra, a case relied on by the trial court, the exercise of the option to renew was untimely sent by the tenant and the landlord did not respond to this request. The lease agreement in that case did not allow the landlord to waive an untimely exercise of a renewal, and the court held the lease had therefore terminated. Although the lease agreement in the record before us contains a provision allowing a waiver of an untimely request to renew and the landlord in this case attempted to allow the renewal, the attempted waiver failed to operate as a renewal of the lease as it was not given prior to the expiration of the agreement.

In fact, on the date the lease was set to expire, Sizeler had not yet notified Gulf States that it had received and approved of its request to renew the lease. |inFurther, at the time Gulf States requested a renewal, it no longer had right or privilege to automatically renew the lease according to the clear terms of the lease agreement. Absent a waiver, Sizeler retained the right to insist on strict performance of the lease terms. Thus, as of the expiration date of the lease agreement on February 28, 1998, there was no clear agreement between the parties as to whether the lease would be renewed, and without a valid exercise of the option to renew, the lease agreement terminated on this date.

Our review of the facts of this case shows that Gulf States’ September 9, 1997 letter amounted to an offer to renew which was not accepted by Sizeler during the term of the lease. Sizeler did not notify the tenant of its acceptance of its offer to renew until two months after the expiration date of the lease. Thus, at the time Sizeler confirmed Gulf States’ request to renew the lease, the lease agreement had already expired by its own terms.

Notably, the record shows that prior to its approval of the tenant’s request to renew the lease, Sizeler proposed an amendment to the lease which it forwarded to Gulf States. It is reasonable to conclude from the fact that Sizeler was attempting to negotiate an amendment to the lease that there had been no automatic extension of the terms of the lease. Rather, by its letter of April 28, 1998, Sizeler extended an offer to Gulf States to extend the lease in lieu of any amendment thereto, and there is no factual indication that this offer was accepted by Gulf States.

Sizeler also contends that the lease agreement provides that the parties specifically opted out of provisions of reconduction. The agreement provides as follows:

HOLDING OVER
That this lease and the tenancy hereby created shall cease and determine at the end of the original terms hereof or any extension or renewal thereof (if any) whichever shall last occur, without the necessity of any notice from either Landlord or Tenant to terminate the |nsame, and Tenant hereby waives notice to remove and agrees that Landlord shall be entitled to the benefit of all provisions of law respecting the summary recovery of possession of premises from a Tenant holding over to the same extent as if statutory notice were given.

Sizeler contends that based on these provisions, the trial court erred in concluding that the lease had been reconducted. We disagree. The cited provisions relieve the landlord of the necessity of complying with the provisions of La. C.C. art. 2686 governing notice of termination. Nothing in this provision states that the parties opted out of reconduction. Although the lease agreement contained no specific provisions regarding reconduction of the lease, the facts of this case indicate that the tenant remained in the leased premises after the expiration of the fixed duration of the lease.' Thus, reconduction is established by law as provided for in La. C.C. art. 2689, and the lease is presumed to have continued on a month to month basis.

Under the circumstances presented herein, we conclude that Gulf States established that their option to renew was not timely exercised. In response, Sizeler failed to offer sufficient proof that the untimeliness of the exercise of the option was waived and that the lease was renewed beyond the duration specified in the agreement. As the exercise of the option was not properly given, the lease expired by its own terms. Any effort by the landlord to enforce this option beyond the expiration of the agreement was without effect. As Gulf States remained in the leased premises beyond the expiration of the lease agreement, the lease was reconduct-ed pursuant to Louisiana law. The record further shows that Gulf States gave Sizeler timely notice that it desired to terminate the monthly lease agreement.

Thus, based on our conclusion that defendants properly terminated the recon-duction of the lease, we find no remaining issues of fact as to whether there has been a breach of the lease agreement. Our review of the record indicates that Sizeler has failed to present sufficient proof that factual issues exist as to whether I ^defendants breached the contractual agreement by discontinuing operation of the theatre and opening a new theatre.

With regard to Sizeler’s claims of intentional interference with the contract of lease and its claims of unfair trade practices and constitutional violations, we find issues of fact as to these claims that preclude summary judgment in this case. As to the tort claims, although defendants submitted affidavits stating their intentions in terminating the lease agreement, these affidavits are merely conclusory and fail to provide facts to support their claim. Further, summary judgment is rarely appropriate to resolve issues such as intent or motive. National Gypsum Co. v. Ace Wholesale, 96-215 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, writ denied, 96-3055 (La.2/7/97), 688 So.2d 502. As to Sizeler’s other claims, defendants failed to submit supporting documentation with their summary judgment which would show that they are entitled to judgment as a matter of law.

Additionally, the record indicates that discovery on these claims was ongoing and that the trial court failed to rule on plaintiffs motion to compel based on the ruling on the issue of reconduction. However, Sizeler’s tort claims as well as its trade practices claim and claim of constitutional violations are not extinguished by the trial court’s ruling that the lease agreement was reconducted rather than renewed. Sizeler is entitled to conduct discovery in this matter to ascertain contested issues of fact. We therefore conclude that the trial court erred in granting summary judgment as to these claims, and that portion of the summary judgment dismissing Sizeler’s claims against defendants is reversed. Based on this ruling, the case must be remanded to the trial court for further proceedings.

Conclusion

Accordingly, for the reasons assigned herein, we affirm the judgment of the trial court granting partial summary judgment in favor of defendants dismissing plaintiffs claims of breach of contract against them. However, we reverse that h ¡¡portion of the judgment which dismisses plaintiffs tort claims asserted in its first supplemental petition and it claims of unfair trade practices and constitutional violations asserted in its second supplemental petition. The case is further remanded to the trial court for further proceedings consistent herewith. Each party is to bear all its own costs of this appeal.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

GOTHARD, J., dissents with reasons.

hGOTHARD, J., dissents with reasons.

I dissent with the majority opinion insofar as it finds that the lease between the parties was not renewed for an additional term.

Parties are free to contract for any object that is lawful, possible, and determined or determinable. La. C.C. art 1971. A contract may be modified or dissolved through mutual consent or by law. LSA-C.C. art. 1983; DÁntonio v. Simone, 94-798, (La.App. 5 Cir.3/15/95), 653 So.2d 678; River Oaks, Inc. v. Blue Cross of Louisiana, 595 So.2d 785 (La.App. 5 Cir. 1992), writ denied 598 So.2d 361 (La.1992). Modification of a contract can be presumed by silence, inaction or implication. River Oaks, Inc., supra.

I believe that the lessee’s action in requesting the extension, and the lessor’s assertion that the lease had been extended, albeit after the time provided, evinces the intent of the parties to extend the lease for another five years.

I further believe the trial court’s reliance on Southern Ventures Corp. v. Texaco, Inc., 372 So.2d 1228 (La.1979) to be misplaced. In that case, the original lease itself provided that any alteration concerning the tenancy of lessee after expiration or termination of the lease had to be in writing. The lessee gave untimely notice, and the lessor did nothing more than collect the rent. After stating that the mere collection of rents did not evince an intent to renew the lease, the court found that lessee had “failed to show that there was a renewal of the lease for - five years by either implied or express consent.” In this matter, after the lessee | agave notice of intent to renew, not only did the lessor continue to collect the rent, it also informed lessee that the lease was renewed for the additional five-year period.

I therefore respectfully dissent from that portion of the majority opinion that affirms the grant of partial summary judgment, in favor of defendants, dismissing plaintiffs claims of breach of contract against said defendants.

      . The letter from. George Solomon to Marc Dusang at Sizeler stated as follows:
      Due to an oversight in the Hammond Square Theatre lease the notice to exercise our option under section five (5), paragraph (e) was missed.
      We would like to extend the lease for the second five (5) year option period under the same terms and conditions as set forth in paragraph (e).

      . The letter to George Solomon from Marc Dusang stated in part as follows:
      In a discussion recently with Tom Davidson, he told me that you indicated to him that you were not going to sign the proposed lease amendment agreement which accompanied our March 13 letter to you. Accordingly, we understand and confirm that you will simply continue to occupy the premises under the existing lease through the expiration of the extended term ending February 28, 2003, by virtue of your exercise of the second five year option per your letter of September 9, 1997.


author: _[¿THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Dorothy M. SANDERS.
    No. 02-KA-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, 24th Judicial District Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    James A. Williams, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   _[¿THOMAS F. DALEY, Judge.

STATEMENT OF THE CASE

On March 1, 1999, defendant was charged with the January 21, 1999 unauthorized use of an access device, with the intent to defraud, in violation of LSA-R.S. 14:70.4 She was arraigned on March 8, 1999 and entered a not guilty plea. Discovery motions were filed on May 21, 1999 and discovery was satisfied on July 13, 1999. Motions to suppress evidence, confession, and identification were also filed on May 21, 1999 and set for hearing June 28, 1999; but the hearing was continued several times at defendant’s request. There is no indication in the record that these motions were ever heard.

On the date set for trial, December 15, 1999, defendant advised the court of her desire to withdraw her prior plea of not guilty and enter a plea of guilty to the charge of unauthorized use of an access device, with the intent to defraud. LSA-_jR.S.14:70.4.3 On December 15,1999, defendant executed a Waiver of Constitutional Rights form, wherein she agreed to plead guilty and receive a sentence of two years imprisonment, at hard labor. Defendant did not lodge an objection to the sentencing provision in the Waiver of Constitutional Rights form nor did she object at the time the judge instructed the defendant that she would receive this sentence if her plea was accepted. During the hearing on the guilty plea conducted on December 15, 1999, the trial judge questioned the defendant regarding her waiver of Constitutional Rights (including the three core rights) and thereafter accepted the defendant’s guilty plea as knowing and voluntary.

On January 4, 2000, without objection, the trial judge advised the defendant that she would receive a two-year sentence of imprisonment at hard labor with credit for time served, as stated in the Waiver of Constitutional Rights form and as agreed to by all parties. The Court also recommended defendant for Blue Walters Drug Treatment. The Court advised the defendant that this sentence would be vacated and a five-year sentence would be imposed (by agreement with the State) if a multiple bill was filed and the defendant agreed to the allegations of the multiple bill. Defense counsel voiced no opposition at this time.

Thereafter, also on January 4, 2000, the State filed a multiple bill, wherein the defendant was alleged to be a fourth-felony offender. LSA-14:95.1. The defendant initially denied the allegations of the multiple bill

On January 7, 2000, at the hearing on the multiple bill, defense counsel advised the court that defendant had decided to admit to the allegations of the multiple bill. The court questioned the defendant regarding her admission to the allegations of the multiple bill and her Waiver of Rights, and thereafter, accepted her admission as knowing and voluntary. Prior to sentencing defendant on the multiple bill, the trial judge instructed the defendant as follows:

| ¿THE COURT:
All right, and I’ll reserve — Ms. Sanders, I’ll reserve your rights, whether it’s Crosby or not or its progeny, if for some reason this statute is later found to be unconstitutional by the Supreme Court or by any court of competent jurisdiction, I will allow Mr. Williams (defense counsel) to refile for consideration, if that is done, and vacate this; do you understand?

The court vacated the two-year sentence and imposed a sentence of five years, at hard labor, with credit for time served, as all parties had previously agreed. The court again recommended defendant for Blue Walters Drug treatment. No objection was lodged at the time of the sentencing on the multiple bill.

On June 28, 2001, defendant filed a “Motion to Correct an Illegal Sentence.” In the motion, defendant requested that she be “re-sentenced,” because the underlying offense, to which she pled guilty and upon which she was multiple billed, was now a misdemeanor.

A hearing was held on August 29, 2001. At the hearing on the motion, defendant argued that she should receive the amero-lative effect of the new legislation that amended the penalty provision of LSA-R.S. 14:70.4. (i.e., La. Acts 1999, Act 947). She specifically noted that the multiple bill was filed after the enactment of the amendment and the amendment made the present offense a misdemeanor and not a felony. On the basis of the reservation of rights expressed by the sentencing judge before the original sentence was imposed, the defendant asked the court to set aside her (negotiated) guilty plea and the multiple bill. She reasoned that the multiple bill sentence was illegal because her conviction for access fraud under $100.00 was now considered a misdemeanor and her sentence on that conviction could not be enhanced under a multiple bill. She also alleged that the original guilty plea should be set aside because the change in the law, of | ¡¡which she was unaware at the time of her plea, made the offense a misdemeanor, and not a felony.

The State argued that the law in effect at the time of the commission of the offense in 1999 controlled. The State further argued that the amendment of LSA-R.S.14:70.4 did not provide for retroactive application. Additionally, the State noted that the reservation of rights previously expressed by the trial judge had limited application and was inapplicable to this situation. In conclusion, the State argued that there was no illegal sentence and the guilty plea to the underlying offense used in the multiple bill was legal.

The trial judge denied the “Motion to Correct Illegal Sentence” without reasons, and the defendant objected to the ruling and orally moved for an appeal. A written Motion for Appeal was filed September 6, 2001 and granted by the trial judge the same day.

DISCUSSION

On appeal, defendant alleges that her guilty plea should have been set aside because she was erroneously advised that she was pleading guilty to a felony, and she was later advised that an amendment to the statute under which she was charged, made the offense a misdemeanor. On that basis, defendant further argues her maximum sentencing exposure should have been six months and not two years.

The State replies that the trial court correctly denied defendant’s motion, upholding the agreed upon sentence and guilty plea. The offense with which defendant was charged, fraudulent use of an access device (in an amount less than $100.00) was committed on January 21, 1999. She pleaded guilty to this offense on December 15, 1999. She was sentence to the agreed upon sentence of two years | imprisonment at hard labor on January 4, 2000. On that date, the State filed a multiple bill, which alleged defendant was a fourth-felony offender.

At the time of the commission of this offense, LSA-R.S. 14:70.4, read, in pertinent part, as follows:

LSA-R. S.14:70.4. Access Device Fraud.
A. No person shall without authorization and with the intent to defraud transfer an access device to another person.
B. No person shall without authorization and with the intent to defraud possess an access device to another person.
C. No pérson shall without authorization and with the intent to defraud use, possess, or transfer an access device to another person.
D. ...
E. Whoever violates any provision of this Section shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than two years, or both.
F. In addition to any other penalty imposed under this Section, the court may, in its discretion, order restitution as a part of the sentence.

(Emphasis Added).

Effective July 9,1999, the Louisiana legislature amended LSA-R.S. 14:70.4, by 1999 La. Acts 947. Although the substantive provisions of the statute remained essentially unchanged, the penalty provision of the statute was changed to provide graduations of the offense based upon the amount of money misappropriated. Under the amended penalty provisions, a misappropriate in the amount of less than one hundred dollars, as in the current case, would involve a sentence of up to six months imprisonment and/or fine of up to $500.00. LSA-R.S.14:70.4 (E)(3).

The amendment to this statute occurred after the commission of the present offense, but before the defendant’s guilty plea and before the filing of the multiple offender bill.

17Pefendant first argues that the amendment to LSA-R.S.14:70.4 is determinative of her proceedings because the statute went into effect before her guilty plea and multiple bill admission and sentence. The State argues that the law in effect at the time of the commission of the offense controls. This principle was recently reaffirmed by the Louisiana Supreme Court in State v. Sugasti, 01-3407 (La.6/21/02) 820 So.2d 518.

In Sugasti, the defendant was convicted of possession of heroin and given a suspended sentence. The State objected to the sentence as illegally lenient and appealed to this Court. The State argued that, under the law in effect at the time of the offense (LSA-R.S.40:966(C), prior to its amendment by 2001 La. Acts 403), defendant was not entitled to a suspended sentence. Defendant alleged that, since the law became effective prior to his sentencing, its ameliorative effects should apply to him.

In rejecting defendant’s argument, in Sugasti, the Louisiana Supreme Court found that the amendment to the statute did not apply to defendant’s case and reasoned as follows:

This court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. The mere
fact that a statute may subsequently be amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.
Policy reason mitigate against holding that the amendment ... applies to anyone sentenced after ... (its effective date), regardless of when the offense was committed. To do so would encourage defendants to continually delay prosecution in hope that the legislature would enact more lenient sentences. Additionally, it would be grossly unfair to two different defendants who commit the same crime on the same day to be sentenced under different penalties should one defendant successfully delay punishment until after the benefits of a reduced penalty go into effect.

State v. Sugasti at pp. 7, 11-12, 820 So.2d at 520.

| ^Although Sugasti involved an original sentence and not a multiple offender sentence, it appears the reasoning of Sugasti would also control the application of the present amendment to defendant’s multiple offender adjudication and sentence. This Court has previously applied this same rationale to complaints regarding multiple offender sentences. State v. Ventress, 01-1165, p. 8-14, (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 381-383, citing, State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208.

Defendant next argues that her (negotiated) guilty plea and multiple offender adjudication and sentence were not knowingly and intelligently made because she had not been advised that the law had changed and the offense with which she was charged was no longer a felony.

As previously discussed, this change in the law did not apply to defendant’s case because the commission of the offense by this defendant occurred prior to the amendment to LSA-R.S.14:70.1.

In the present case, the defendant admitted culpability to access device fraud in exchange for a two-year sentence. The sentence was legal within the language of LSA-R.S. 14:70.4(E), as that statute existed at the time of defendant’s offense. Defendant received the agreed upon sentence.

Additionally, since the defendant’s charged offense was a felony at the time of its commission (and not a misdemeanor), the multiple bill adjudication was also legal.

Accordingly, the contention that defendant’s conviction and multiple offender adjudication and sentence should be set aside because they resulted from involuntary guilty plea is unfounded.

Following this reasoning, we affirm the conviction and sentence.

AFFIRMED.

      . Defendant was charged under LSA-R.S. 14:70.4, prior to its amendment by La. Acts 1999, Act 947.

      . When the defendant proceeds to trial without raising any issue that he had an outstanding Motion to Suppress, the right to have the motion heard is waived. See: State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, 676.

      .The Waiver form provided the following stipulation: "2 yrs. DOC with multiple bill to be filed by the State which could increase the sentence.”

      . Although the language of the motion sought as relief that defendant be “re-sentenced,” defendant never sought this relief at the hearing on the motion. At the motion hearing defendant sought to have the guilty plea and multiple offender adjudication set aside.

      . See probable cause affidavit. (R., pp. 17-20).


author: |,JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Vincent T. STEWART.
    No. 02-KA-593.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Prentice L. White, Baton Rouge, LA,, for Appellant, Vincent T. Stewart.
    Paul D. Connick, Jr., District Attorney Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Kia M. Habisreitinger, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |,JAMES L. CANNELLA, Judge.

Defendant, Vincent T. Stewart, appeals from his guilty plea convictions of two counts of possession of cocaine and his sentences, on count one to seven years imprisonment at hard labor as a habitual offender and on count two to five years imprisonment at hard labor, to run consecutively. For the reasons which follow, we dismiss the appeal and remand the case to the district court for a hearing on the Defendant’s outstanding Motion to Withdraw Guilty Plea.

On June 10, 1999, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with two counts of possession with the intent to distribute cocaine, which allegedly occurred on April 11 and 23, 1999, in violation of La. R.S. 40:967(A). Defendant was arraigned on June 25, 1999 and pled not guilty to both counts. On February 15, 2001, the State amended counts one and two to simple possession of cocaine, in violation of La. R.S. 40:967(C). On that same date, Defendant withdrew his pleas of not guilty and pled guilty to the amended charges. As part of the plea agreement, the Defendant was to be sentenced to five years imprisonment at hard labor on each count, to run concurrently, and the State waived its right to multiple bill the Defendant. The 1 ^Defendant requested that he be given a continuance on sentencing in order to get his affairs in order. The trial judge agreed to defer sentencing and informed the Defendant that the promised sentence was contingent upon him appearing for sentencing on March 19, 2001.

The trial judge addressed the Defendant as follows:

If for some — any reason you don’t show up on that day, then we’ll sentence you to a different — your sentence will be different; you understand that?
And that you could receive the maximum sentence and the State may, in fact, recharge you, charge you differently in this case; do you understand that?
I just want you to be aware because this is the plea that you’ve negotiated but it’s all hinged upon you showing up when you’re supposed to show up for your sentencing; do you understand that?

The Defendant answered affirmatively to the court’s questions.

The Defendant also initialed and signed a “waiver of constitutional rights and plea of guilty” form, indicating that he had agreed to a sentence of five years imprisonment at hard labor on each count to run concurrently and no multiple bill. On March 19, 2001, the Defendant failed to appear for sentencing. At the request of the State, the trial court ordered that an attachment be issued for the Defendant. On March 23, 2001, the State filed a multiple offender bill of information charging him as a second felony offender. On January 7, 2002, the Defendant appeared in court. The trial judge informed the Defendant that, since he did not appear for sentencing as required, he would not sentence him in accord with the original agreement. The trial court subsequently sentenced the Defendant to imprisonment at hard labor for five years on each count, with the sentences to run consecutively.

On that same date, the Defendant orally objected to the excessiveness of the sentences and denied the allegations of the multiple bill of information. On January 17, 2002, at the commencement of the hearing on the multiple bill, defense | ¿counsel objected to the State’s right to bring the multiple offender proceedings against the Defendant. She argued that, according to the plea agreement, the State had waived its right to bring the multiple offender proceedings. She wanted the plea agreement enforced. The trial court ruled against the Defendant, finding that the sentence after the plea was contingent on the Defendant being present for sentencing. The trial court found that since the Defendant did not keep his part of the bargain, neither the trial court nor the State were obligated to keep their part of the bargain.

Following this ruling by the trial court, the Defendant, reserving his right to raise this issue on appeal, admitted the allegations of the multiple bill of information and initialed and signed a waiver of rights— plea of guilty multiple offender — La. R.S. 15:529.1 form. The trial court then vacated the sentence on count one and sentenced the Defendant to imprisonment at hard labor for seven years, to run consecutively with the five-year sentence on count two. The trial court also ordered the sentences to run concurrently with any sentence defendant would have to serve for violating his parole. On January 24, 2002, the Defendant filed a motion for appeal. The Defendant filed a pro se motion to reconsider sentence on February 1, 2002. On March 1, 2002, defendant filed a motion to withdraw guilty plea. The trial court denied the Defendant’s motion to reconsider sentence and granted his appeal on March 12, 2002. On April 8, 2002, the Defendant filed a pro se motion for the trial court to rule on his outstanding motions. There was no ruling on that motion.

On appeal, the Defendant assigns two errors. In his first assignment of error, the Defendant argues that the trial court erred in not sentencing him according to the original plea agreement. In his second assignment of error, the Defendant Largues that the imposed sentence, totaling 12 years for two counts of simple possession of cocaine, is excessive.

In reviewing the record, we found that it does not reflect a ruling on the Defendant’s March 1, 2001 motion to withdraw his guilty plea. In that motion, the Defendant claims that his guilty pleas were entered upon a promise that was not kept by the trial court or the district attorney. Thus, he argues that, since the guilty pleas were entered based on either an unkept promise or misleading information, he should be allowed to withdraw his pleas or the agreement upon which they were entered should be enforced.

We find that a ruling on the Defendant’s assignments of error at this time would be pre-mature, since a request to withdraw the pleas is still pending before the district court. Further, we find that the record is inadequate for full review of the issue by this court.

La.C.Cr.P. art. 559 provides that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” Additionally, it has been held that a defendant’s plea of guilty can be withdrawn after sentencing, where it is found that it was not freely and voluntarily entered, for example, if based on an unkept plea bargain. State v. Walker, 94-340 (La.App. 5th Cir.10/25/94), 645 So.2d 766.

In State ex rel. Talbert v. State of Louisiana, 00-0596 (La.3/31/00), 758 So.2d 806, the Supreme Court considered the writ application of relator, who represented that the district court failed to act timely on a motion to withdraw guilty plea. The Supreme Court issued the following ruling:

If relator’s representation is correct, the district court is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file, and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.

|fiIn the instant case, the Defendant filed a motion to withdraw his guilty plea. The record does not indicate that there has been a ruling on that motion. On appeal, the Defendant raises issues involving the validity of the guilty plea. We cannot address these issues on the record before us. Rather, we find that the issue should be handled in an evidentiary hearing on the Defendant’s motion to withdraw guilty plea. At that hearing, the intent of all parties can be explored, a determination can be made as to whether the guilty pleas were entered based on a misunderstanding of the agreement, and a record can be made from which we can review the Defendant’s claims if necessary. We reserve to the Defendant, the right to appeal in the event of an adverse ruling and to re-assert the assignments of error raised herein.

Accordingly, for the foregoing reasons, we dismiss the appeal, deferring consideration of the Defendant’s assignments of error asserted herein, and remand the case to the trial court for a an evidentiary hearing and ruling on the outstanding motion to withdraw guilty plea, reserving to the Defendant the right to re-lodge his appeal.

DISMISSED AND REMANDED.

      . The record does not reflect a ruling on the motion to withdraw guilty plea. See discussion below.

      . The only outstanding motion appears to be the motion to withdraw guilty plea.