text:
    James COKER and Kay Coker, Plaintiffs-Appellants, v. Rusty MORRIS, et al., Defendants-Appellees.
    No. 37,688-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Weems, Schimpf, Gilsoul, Haines & Car-mouche, by Kenneth P. Haines and Brian D. Landry, for Appellants, James and Kay Coker.
    Cook, Yancey, King & Galloway, by Lee H. Ayres and Scott L. Zimmer, for Appel-lee, Donald Ray Taylor, II.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell, by Joseph S. Wood-ley, for Appellees, Rusty and Sissy Morris.
    Ronald J. Miciotto, Shreveport, for Ap-pellee, Kim Morris Taylor Mays.
    Before GASKINS, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   I,GASKINS, J.

The plaintiffs, James and Kay Coker, appeal from a trial court judgment which granted an exception of prescription filed by Donald Ray Taylor, II, one of the defendants. We reverse and remand.

FACTS

On September 4, 2000, a fire destroyed the plaintiffs’ mobile home, barn and fields in Logansport, DeSoto Parish. On March 21, 2001, the plaintiffs filed suit against their neighbors, Rusty and Sissy Morris and their insurer, ABC Insurance Company, asserting that “unknown children” visiting the Morris property started the fire. Also named as defendants were “John and Mary Doe,” the parents of the unknown children, and their insurer, XYZ Insurance Company.

On September 4, 2001, the plaintiffs filed a first supplemental and amending petition, in which they substituted Kim Morris Taylor Mays (the Morrises’ daughter) and Donald Ray Taylor, II, for “John and Mary Doe.” The plaintiffs gave an address for serving Kim in Shreveport, but requested a hold on service for Donald. Kim was served on September 17, 2001.

The record shows that domiciliary service was made on Donald on July 3, 2002. On September 13, 2002, Donald filed a motion to dismiss without prejudice. He asserted that under La. C.C.P. art. 1201(C), service should have been requested within 90 days of the filing of a supplemental or amended petition. He contended that the plaintiffs did not send a letter to |¡>the DeSoto Parish Clerk of Court requesting service on him until June 28, 2002, more than 240 days after filing the supplemental and amending petition. He sought dismissal under La. C.C.P. art. 1672(C) due to the plaintiffs’ failure to timely request service.

In their opposition to the motion to dismiss, the plaintiffs contended that they learned during the June 2001 depositions of the Morris couple that Kim Mays and Donald Taylor were the parents of Nicholas Taylor, one of the children on the Morris property on the day of the fire. (Due to earlier responses to interrogatories, the plaintiffs believed that the parents of Nicholas Taylor were Kim and Lane Mays.) The Morrises provided an address for Kim only. After the Morrises’ attorney provided Donald’s address on June 27, 2002, the plaintiffs requested service on him the next day.

A hearing was held on the motion to dismiss on October 14, 2002. Donald testified that he lived in Mansfield and owned a liquor store. He stated that his name appeared in the parish conveyance and mortgage records; that he had licenses (business, liquor, and video poker) which were public record; that he paid property taxes; and that he was a registered voter. He admitted that he and his former wife, Kim Morris, were the parents of Joseph Nicholas Taylor, who was bom in May 1987. They have joint | ¡¡custody, and he pays monthly child support. He conceded that Kim and her parents knew his whereabouts.

The matter was taken under advisement. In late October 2002, the trial court issued a judgment dismissing the suit against Donald without prejudice for failure to timely request service of process as required by law.

On November 15, 2002, the plaintiffs filed a second supplemental and amending petition in which they named Donald as a defendant. He was served on November 19, 2002.

In early December 2002, Donald filed an exception of prescription based upon La. R.S. 9:5801. He asserted that the plaintiffs’ failure to exercise due diligence in ascertaining his whereabouts amounted to bad faith under the statute and that, consequently, there was no interruption and the plaintiffs’ claims against him were prescribed.

On January 8, 2003, a hearing was held on the exception of prescription. It was stipulated that Donald’s testimony would be the same as that adduced at the motion to dismiss. As to the issue of bad faith, his counsel stipulated that the plaintiffs and their counsel were not trying to defraud anyone. The court denied the plaintiffs’ motion to dismiss the exception based upon Donald’s failure to prove bad faith. Counsel for the plaintiffs, Kenneth Haines, testified as to his investigation of the case and the process by which he learned that Donald’s son was involved in the fire. |4He also testified as to his attempts to obtain Donald’s address from Kim and the Mor-rises. Haines testified that since he did not know that Donald lived in DeSoto Parish, he made no effort to check the DeSoto Parish records for his address. He further testified that he gained no advantage due to the delay in service and that he had no ill will against Donald. It was stipulated that Haines and the attorney for the Morrises agreed to not take depositions until all parties were brought into the suit and served. The matter was then taken under advisement. On January 17, 2003, the trial court signed a judgment granting the exception and dismissing the plaintiffs’ claims against Donald.

The plaintiffs appeal.

DISCUSSION

As previously quoted, La. C.C.P. art. 1201(C) mandates service on a defendant within 90 days of the filing of the petition naming him as a party. La. C.C.P. art. 1672(C) requires that an action be dismissed without prejudice when service is not requested within 90 days unless good cause is shown why it could not have been requested. According to La. R.S. 9:5801, if service was not requested timely and that failure was a result of bad faith, there is no interruption of prescription as to a defendant dismissed due to the lack of timely service.

After Donald was named as a defendant but not served timely, he filed a motion to dismiss under La. C.C.P. 1672(C), which required the plaintiffs to show good cause why service could not have been requested. The trial judge ruled that they had not shown good cause, and the matter | ¿was dismissed without prejudice against Donald. The plaintiffs then filed suit against Donald again, and he was duly served. The inquiry then became whether the previous suit interrupted prescription, which it would not have under La. R.S. 9:5801 if the plaintiffs had been in bad faith. The trial court granted Donald’s exception of prescription, and it is this ruling which we now review.

In his exception of prescription, Donald asserted that the plaintiffs “failed to exercise due diligence and put forth a good faith effort in their attempt to locate” him. He further alleged that the plaintiffs’ “failure to exercise due diligence in ascertaining the whereabouts of Mr. Taylor amounts to bad faith.”

At the hearing on the exception of prescription, Donald’s counsel stated the following:

I will stipulate for the record that I’m not suggesting that Mr. Haines tried to defraud anybody or that his clients tried to defraud anybody. I think this is really a legal argument in terms of, you know, in our view there’s no such thing as little faith or no faith. You’re either in good faith or you’re in bad faith. When he made his good faith defense last time, it didn’t carry any weight with the Court and so to me it’s a repeat of the same thing.

It is apparent that Donald equated failure to show “good cause” under La. C.C.P. art. 1672(C) with a finding of “bad faith” under La. R.S. 9:5801. However, like the court in Futrell v. Cook, 2000-2531 (La.App. 4th Cir.12/19/01), 805 So.2d 325, we find that such is not the case.

In Futrell, supra, the appellate court reversed the granting of an exception of prescription in a medical malpractice case because the record failed to support a finding of bad faith under La. R.S. 9:5801. In so ruling, 1 fithe court rejected the defendants’ argument that equated the plaintiffs’ failure to make the requisite showing of “good cause” under La. C.C.P. art. 1672(C) with a finding of “bad faith” under La. R.S. 9:5801. Instead, the court found the facts of that case only supported mistake or inadvertence. See also Johnson v. Brown, 2003-0679 (La.App. 4th Cir.6/25/03), 851 So.2d 319. Also, La. R.S. 9:5801 requires that the trial court make a factual finding of bad faith. Futrell, supra; Johnson v. Brown, supra.

La. R.S. 9:5801 does not define “bad faith.” However, the Black’s Law Dictionary provides the following definition:

The opposite of ‘good faith’, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive.

The term bad faith means more than mere bad judgment or negligence; it implies the conscious doing of a wrong for dishonest or morally questionable motives. Bond v. Broadway, 607 So.2d 865 (La.App. 2d Cir.1992), writ denied, 612 So.2d 88 (La.1993).

In Jacobs v. Louisiana Farm Bureau Insurance Companies, 2001-837 (La.App. 3d Cir.12/19/01), 815 So.2d 858, writ denied, 2002-0193 (La.3/28/02), 811 So.2d 946, that court noted that when the legislature enacted La. C.C.P. art. 1672(C) in 1997, it also enacted La. R.S. 9:5801, “which provides a safeguard against a party who might consider using the filing delays and refilings, without effecting service, as a strategy.” That sort of strategy appears to be the “sinister motive” that La. R.S. 9:5801 was meant to curtail.

[ 7A careful review of the record reveals no bad faith in the actions of the plaintiffs or their counsel. While there may have been some inadvertence in their failure to obtain Donald’s address for service at an earlier date, there is no evidence in this record indicating that the plaintiffs or their counsel acted with any “sinister motive” that could be construed as “bad faith” under La. R.S. 9:5801. Accordingly, we find that the trial court’s granting of the exception of prescription was manifestly erroneous.

CONCLUSION

The trial court judgment granting the exception of prescription in favor of Donald Ray Taylor, II, is reversed. The matter is remanded to the trial court for further proceedings.

Costs are assessed against Donald Ray. Taylor, II.

REVERSED AND REMANDED.

      . La. C.C.P. art. 1201(C) states:
      Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. [Emphasis added.]

      . La. C.C.P. art. 1672(C) provides:
      A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. [Emphasis added.]

      . This statutes provides:
      Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue. [Emphasis added.]


source: Caselaw Access Project

author: 1 ¡WILLIAMS, J.

license: Public Domain

text:
    Howard ROAN, Plaintiff-Appellant, v. APACHE CHEMICAL TRANSPORTERS, Defendant-Appellee.
    No. 37,671-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Francis C. Broussard, Monroe, for Appellant.
    Phillip M. Hendry, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   1 ¡WILLIAMS, J.

A disputed workers’ compensation claim was filed by claimant, Howard Roan, to contest the employer’s calculation of claimant’s weekly temporary total disability (TTD) benefits, to establish the correct benefit amount and to seek payment of penalties and attorney fees. The workers’ compensation judge (WCJ) found in favor of the employer, Apache Chemical Transporters (Apache) and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC), and against the claimant, finding that the TTD benefits were properly calculated by Apache and LWCC. The WCJ denied claimant’s request for penalties and attorney fees for defendant’s failure to correctly calculate TTD benefits. For the following reasons, we affirm.

FACTS

The claimant filed a disputed claim for compensation alleging that he had been injured on November 29, 2001, while he was in the course and scope of his employment with Apache. According to the claimant, he was injured approximately 14 days after he commenced his employment with Apache. The claimant stated that he slipped while working on the top of a tank and fell 10 to 15 feet to the ground, landing on his back. He alleged that his average weekly wage was in the range of $500 to $600. He further alleged that the weekly TTD benefit he was receiving was $254.23 per week, but that the amount should be the maximum rate of $400 per week. The basis of the disputed claim was that the weekly TTD benefit he was receiving during his disability was incorrectly calculated. He also sought penalties and attorney fees.

| ¡At trial, the parties stipulated that claimant had sustained a work-related accident and that he was temporarily totally disabled as a result thereof. At the conclusion of the evidence and arguments of counsel, the WCJ found that the compensation rate as calculated by the defendants was correct and denied the claimant’s request for a modification thereof. Claimant’s request for penalties and attorney fees was also denied. This appeal followed.

DISCUSSION

The claimant contends the WCJ erred in finding that the TTD calculation by the LWCC was correct. He argues that: (1) The wages paid to the claimant for work performed on November 29, 2001, should not have been excluded from the calculation of benefits; and, (2) The factor of 3.5 used as the average number of days he had worked per week was in error.

While the framework for the calculation of the weekly benefit is provided for in the Louisiana Workers’ Compensation Act, neither the statutory language nor the jurisprudence lend much certainty to the proper resolution of the question presented here. We are guided, however, by some general principles to which the courts adhere in workers’ compensation cases.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong standard, the appellate court |smust determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Freeman, supra; Stobart v. State, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, supra. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

It is well established that the workers’ compensation act is remedial in nature and that in order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993); Glascock v. Georgia-Pacific Corp., 25,677 (La.App.2d. Cir.3/30/94), 635 So.2d 474. An appellate court may overturn a judgment of a WCJ if she made a factual finding which is manifestly erroneous or if she made an error of law, in which case, her decision is owed no deference by a reviewing court. Box v. City of Baton Rouge, 2002-0198 (La.App. 1st Cir.4/2/03), 844 So.2d 405.

Temporary Total Disability Benefits

The calculation of the weekly TTD benefit due an injured employee is governed by LSA-R.S. 23:1221(l)(a), which reads, in pertinent part, as follows:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
U- • • •
For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training or experience, sixty-six and two thirds percent of wages during the period of such disability. (Emphasis added.)

To properly apply the above-quoted language, we look to the definition of “wages” as defined in LSA-R.S. 23:1021. Because the claimant was paid on a per unit or commission basis and had not worked a full twenty-six week period preceding the accident, the following pertinent language from LSA-R.S. 23:1021(10)(d) is applicable:

(10) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis ... if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

Thus, the calculation for arriving at the weekly TTD benefit in the present case can be expressed using the following formula:

2/3 x (“average weekly wage”)

with the claimant’s “average weekly wage” being calculated pursuant to the following formula:

| ¿(total earnings during period immediately preceding accident)
(total number of days worked during the same period) multiplied by
(average number of days worked per week)

The dispute that has arisen in the present case centers around two of the variables utilized by the WCJ in applying the formula for arriving at the “average weekly wage.” Specifically, claimant takes issue with the figures used for the “total earnings” and the “average number of days worked per week.”

Gross Earnings for Period Preceding Employment

The claimant argues that the WCJ erred in not including the wages he was paid for work performed on November 29, 2001, the date of the accident. He asserts that there is no statutory or jurisprudential authority for not doing so. We disagree. The legislature has provided that the “average weekly wage” for a per unit or commission employee who has not worked a twenty-six-week period preceding the accident is determined by dividing the gross earnings of the employee for the period “immediately preceding the accident” by the number of days actually worked, and then multiplying the result by the average number of days worked per week.

The exclusion of wages earned on the day of the accident is a reasonable reading of the statutory language and the construction most favorable to the claimant; it is more likely that an employee’s earnings on the date of an accident will be less than his earnings on an average day. This premise is true in the present case. Claimant’s average daily earnings | ¿for the first seven days he worked was $108.96. His earnings on the day of his injury were $97.70. Inclusion of this latter figure would only serve to lower his average daily earnings. Consequently, we find no error in the WCJ’s exclusion of claimant’s wages for November 29, 2001. This assignment of error is without merit.

Average Number of Days Worked Per Week

Claimant’s second argument with regard to the TTD benefit calculation pertains to the number (3.5) used by the WCJ as the average number of days worked per week by which the total average daily earnings amount is multiplied to arrive at the “average weekly wage.” The WCJ found that the LWCC was correct in determining that the average number of days worked per week was 3.5 on the basis that the claimant worked seven days over two one-week pay periods.

Claimant contends this finding was in error because he was not hired until halfway through the first of the two pay periods. He asserts that if the “average weekly wage” calculation was to be made on those seven days of earnings alone, then the seven days should have been divided by 1.5, which represents the one and one-half week he actually had been employed by Apache. Doing so would yield an average number of days worked of four and two thirds (4 2/3). In the alternative, the claimant proposes that because the seven days used to calculate his average daily earnings were consecutive and because a week is seven days, he should be considered to have worked an average of seven days per week.

l7Claimant argues that the WCJ erred in dividing the number of days worked (7) by two full weeks, when he was only hired midway through the first week. We disagree.

By mandating that the court determine the “average” number of days worked per week by which to multiply the “average daily earnings”; the formula seeks to establish the normal, ordinary and usual weekly compensation received by the employee for the normal, ordinary and usual work performed during a week. Because the statute neither defines a “week” nor specifies how the average number of days worked per week is to be calculated, we find that the method used by the WCJ was reasonable.

The claimant received gross earnings of $762.70 from Apache during the period immediately preceding the accident. Those earnings were paid for seven days during which the claimant worked for Apache. The gross earnings divided by the number of days worked yield an average daily wage of $108.96.

Although the claimant was hired on November 15, 2001, he worked a total of three (3) days the week beginning November 12 and ending November 18, 2001. He then worked a total of four (4) days the week beginning November 19 and ending November 25, 2001. Since he worked in each of the two (2) weeks during this period, the WCJ reasonably divided the total number of days worked (7) by 2 for an average of 3.5 days per week.

The WCJ then multiplied the claimant’s average number of days worked per week (3.5 days) by his average daily wage of $108.96 to arrive |sat an “average weekly wage” of $381.36. His weekly TTD benefit was determined by calculating sixty-six and two-thirds percent of the “average weekly wage,” or $254.23. LSA-R.S. 23:1221(l)(a). Therefore, we find no error in the calculation of claimant’s TTD benefits by the LWCC and the WCJ. This assignment of error is without merit.

Penalties and Attorney Fees

The claimant contends the WCJ erred in not awarding him penalties and attorney fees under LSA-R.S. (F), which provides, in pertinent part, as follows:

(F) Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. LSA-R.S. 23:1201(F); Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007. However, in the instant case, since we affirm the WCJ’s finding that Apache and the LWCC paid the claimant the correct 18amount of TTD benefits; there is no basis for an award of statutory penalty and attorney fees. Therefore, this assignment of error is without merit.

CONCLUSION

For the reasons set forth above, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the claimant, Howard Roan.

AFFIRMED.


author: 11 BROWN, C.J.

text:
    SUCCESSION OF Clem WRIGHT.
    No. 37,670-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Bleich & Burnett, APLC, by G. Wade Burnett, for Appellant, Sara Drayton Al-britton.
    David Rabb, Jr., for Appellee, Floyd H. Washington.
    Coyle & Green, LLC, by Michael S. Coyle, for Appellee, William S. Baldwin, Intervenor.
    Before BROWN, STEWART, and GASKINS, JJ.
   11 BROWN, C.J.

Plaintiff appeals a judgment dismissing her petition on grounds of abandonment. We affirm.

FACTS

Clem Wright died on December 16, 1989. He was alleged to be 106 years old. A judgment of possession dated March 28, 1990, placed Clem Wright’s son and sole heir, John Henry Wright, into possession of a one-half interest in a 24-acre tract of immovable property in Lincoln Parish. The tract was community property; the owner of the other half being Wright’s surviving spouse, Annie Mitchell Wright. The judgment was based on the assertion that Clem Wright had died intestate. On April 24, 1990, John Wright donated the immovable property to his son, Floyd Washington.

On January 19, 1994, plaintiff, Sarah Drayton Albritton, filed a petition against Annie Mitchell Wright and Floyd Washington to reopen the succession and to annul the donation to Washington. By this time, John Henry Wright had died. Plaintiff asserted Clem Wright was a great uncle that she took care of in his declining years. Plaintiff produced what was purported to be a last will and testament dated September 22, 1989, which conveyed to her and John Wright “equal proportions” of Clem Wright’s immovable property. On May 20, 1994, a judgment was rendered denying exceptions of no right and cause of action filed by Washington; an exception of vagueness by Annie Mitchell Wright was sustained and claims against her were dismissed. The record contains nothing thereafter until |?February 10, 2000, when Washington filed a motion to dismiss the suit on grounds of abandonment.

A contradictory hearing on the abandonment claim was set for February 28, 2000. On that date, no one appeared for plaintiff, and plaintiffs claim was dismissed with prejudice.

On April 24, 2001, plaintiff filed a motion to set aside the dismissal. Because the evidence indicated that plaintiff was not served with the rule setting the contradictory hearing, her motion for a new trial was granted. On August 6, 2001, Washington conveyed his interest in the property to William Baldwin, by a quit-claim deed for a stated consideration of $140,000. Baldwin thereafter intervened to enforce his right to the property. On September 12, 2001, Washington appeared and testified by deposition pursuant to plaintiffs request.

On September 9, 2002, a contradictory hearing on the issue of abandonment was held. The court again dismissed plaintiffs claim. On December 6, 2002, a final judgment was signed, from which plaintiff has appealed.

DISCUSSION

La. C.C.P. art. 561 provides in part:

A.(1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened.
(b) In which an administrator or executor has been appointed.
(c) In which a testament has been probated.
|s(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B.Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

An action for nullity of a judgment of possession is not such a succession proceeding as contemplated in C.C.P. art. 561A(1) and is subject to the three year abandonment rule. Succession of Knox, 579 So.2d 1164 (La.App. 2d Cir.1991). The exception in La. C.C.P. art. 561 applies to uncontested opened successions and recognizes that uncontested proceedings may remain open for years while assets are collected and managed. There is no prosecution or defense under these circumstances. Succession of Mexic, 97-1745 (La.App. 4th Cir.04/08/98), 712 So.2d 223.

Article 561 has been construed as imposing three requirements on plaintiffs. Clark v. State Farm, Mutual Automobile Insurance Co., 00-3010 (La.05/15/01), 785 So.2d 779. First, plaintiffs must take some “step” towards prosecution of their lawsuit. Id. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. See La. C.C.P. art. 1446(D)(noting “taking of a deposition shall be considered a step in the prosecution or defense of an action for the purposes Lof Article 561, notwithstanding that the deposition is not filed in the record of the proceedings”); and La. C.C.P. art. 1474(C)(4)(similarly providing for discovery materials). Second, the “step” must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the “step” must be taken within the legislatively prescribed time period. Id.

La. C.C.P. art. 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. Id. There are two well-established jurisprudential exceptions: (1) a plaintiff demonstrates that the failure to prosecute was caused by circumstances beyond the plaintiff’s control; or (2) it is shown that the defendant waived his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, 785 So.2d at 785. Only the latter, the waiver exception, is relevant to this case.

Defendant’s Informal Negotiations

At all times between May 20, 1994, and February 10, 2000, when the motion to dismiss for abandonment was filed, plaintiff was represented by counsel. However, plaintiff contends that informal settlement discussions between herself and defendant, as well as the attorneys, were sufficient to constitute a waiver of the abandonment claim.

“Extrajudicial efforts,” such as informal settlement negotiations between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment. Slark, supra, at 790; Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 10.4 p. 242 (1999). The requirement of “some formal action before the court” distinguishes such conduct.

The purpose of this “formal action” requirement has been summarized as follows:

The courts have refused to characterize matters outside the record as steps in the prosecution of the suit because: (a) of the uncertainty of accepting informal non-legal proceedings as a step preventing abandonment; or (b) of the ex parte, informal nature of the action, without formal notice to the opposing party, as being an insufficient step in the advancement of the suit.

Clark, 785 So.2d at 790, quoting DeClouet v. Kansas City Southern Railway Co., 176 So.2d 471, 476 (La.App. 3d Cir.1965).

Plaintiff relies upon the Clark case for the proposition that her action is not abandoned; however, the supreme court in Clark firmly distinguishes settlement negotiations from an unconditional tender. The court recognized that settlement negotiations have long been held insufficient to constitute a step for purposes of interrupting prescription. Id. at 790. Unlike the Clark case, in the instant matter there was nothing binding upon either plaintiff or defendant. There were only informal discussions. No unconditional tender was made by either plaintiff or defendant. The factual situation in Clark is inapplicable to the case at hand.

Furthermore, the purpose of the rule requiring a party’s action to be on the record is to ensure notice that something occurred that interrupted or ^waived the abandonment. The purpose underlying the rule is not present here. Nothing herein demonstrates a waiver.

Timing of Defendant’s Actions Constituting a Waiver

The second argument asserted by plaintiff is that even though defendant had filed a motion to dismiss for abandonment on February 10, 2000, defendant’s subsequent appearance at a deposition on September 12, 2001, which was scheduled by plaintiffs counsel, served as a waiver of his right to plead abandonment.

Unlike a plaintiff, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment. Maraist & Lemmon, supra, § 10.4 at 243; Middleton v. Middleton, 526 So.2d 859 (La.App. 2d Cir.1988).

Plaintiff argues that defendant’s appearance at a deposition scheduled by plaintiff after defendant’s motion to dismiss on grounds of abandonment was filed acts as a waiver of his right to assert that plaintiffs suit was abandoned. La. C.C.P. art. 561 does recognize that a deposition is deemed a formal step in the prosecution or defense of an action; however, the reference must be read in connection with the entirety of the article which sets forth that the action in prosecution or defense must be taken within the three year limitation.

For ah defendant knew, the deposition which was set by plaintiff was for the purpose of obtaining information regarding the abandonment issue. Defendant presumably felt secure in appearing for the deposition because the motion to dismiss the suit on grounds of abandonment had already been 17filed prior to his appearance at the deposition. Thus, a deposition notice after the three year period is not a step in the prosecution of the case, nor does such an appearance represent an intent to waive the right to assert abandonment.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s dismissal of plaintiffs, Sarah Albritton’s, case as abandoned.

Affirmed.

      . Obviously, the better procedure would have been to file for a protective order.


author: h CARAWAY, J.

text:
    Wayne M. PENDER and Andrew Ordell Milstead, Jr., Plaintiffs-Appellants, v. Mary Lee ELMORE, et al., Defendants-Appellees.
    No. 37,690-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      H. Herbert Hobgood, Monroe, for Plaintiffs-Appellants.
    Sir Clyde Lain, Monroe, for Mary Lee Elmore, Edna McCauley Thomas, Leondra D. Julks, Mariis McGee, and Terri McCau-ley.
    Tracy W. Houck, for Randy Carpenter.
    J. Michael Hart, Monroe, for Sidney Stokes and Martin Gardner.
    F. Williams Sartor, Monroe, for Capital City Insurance Co.
    Mary Alice Bryant, Monroe, for Frank Toston.
    Sam O. Henry, TV, for Willie DeBurr.

      Before WILLIAMS, GASKINS and CAlRAWAY, JJ.
   h CARAWAY, J.

This appeal stems from a timber cutting dispute involving co-owners of land, parties in the timber industry who cut or sold the timber, and the insurance company for the actual timber cutter. Two summary judgments were granted by the trial court. The first summary judgment concerned the issue of insurance coverage which the trial court found lacking. Since we find that the policy coverage extends to intentional conduct so long as the insured did not subjectively expect the resulting damages, there are material fact issues which require reversal of the summary judgment. The second summary judgment found no vicarious liability on the part of two parties who allowed the harvested timber to be sold under their contracts with the timber mills. Since those parties exercised no control over the defendant who actually cut the timber, we affirm the trial court’s grant of the second summary judgment.

Facts

Plaintiffs/Appellants, Wayne M. Pender (“Pender”) and Andrew 0. Milstead, Jr. (“Milstead”), filed suit against their co-owners and others for the alleged wrongful harvest of timber from an 80 acre tract of land in Ouachita Parish. The petition alleged that during March, 1999, defendant Willie DeBurr obtained consent for the timber sale from at least two non-resident co-owners, Mary Lee Elmore (“Elmore”) and Edna McCauley (“McCauley”). De-Burr then contacted Randy Carpenter (“Carpenter”) to cut down the timber and haul it to area mills. The plaintiffs alleged only that they owned more than an undivided 20% in the land, and that ^Carpenter’s harvest of timber from the tract without their consent violated the provisions of La. R.S. 3:4278.2(B), which requires consent from at least 80% of the co-owners of land. The petition further alleged that defendants, Sydney Stokes (“Stokes”) and Martin Gardner (“Gardner”) were vicariously liable for plaintiffs’ damages because of an employment relationship existing between them and Carpenter. Pender and Milstead prayed for treble damages for the market value of the timber and attorney’s fees under La. R.S. 3:4278.1, or alternatively, to annul the timber sale as lesionary.

By amended petition, plaintiffs added Carpenter’s general commercial liability insurer, Capital City Insurance Company, Inc. (“Capital”). Capital answered, denying that the action sued upon by plaintiffs was covered under the policy. After Stokes and Gardner asserted a third-party demand against Carpenter and Capital, Capital moved for summary judgment against the plaintiffs on the policy coverage issue. After a hearing, the trial court found no coverage under the policy and ruled in favor of Capital, dismissing plaintiffs’ original demand. The summary judgment, however, did not address Stokes and Gardner’s third-party demand against Capital.

Following the rendition of the initial summary judgment, the plaintiffs moved for a new trial for reconsideration of the coverage ruling. Additionally, Capital moved for summary judgment against Stokes and Gardner for the dismissal of their third-party demand. Stokes and Gardner, in turn, filed a motion for summary judgment against the plaintiffs, denying that they were vicariously liable for Carpenter’s cutting of the timber. The motion for new trial and the two motions for summary judgment were all |3heard together by the trial court on December 2, 2002. By that time, various other affidavits and Carpenter’s deposition were before the trial court for its determination of the policy coverage issue and the claim for vicarious liability.

Pender and Milstead’s motion for new trial included an affidavit from Carpenter dated September 18, 2002, stating that he did not intentionally cut timber on land owned by plaintiffs. Also, plaintiffs appear to have filed Carpenter’s deposition which was inserted into the record on appeal pursuant to the trial court’s order and La. C.C.P. art. 2182, authorizing the correction of an omission of a material part of the trial court record.

In his deposition, Carpenter testified that DeBurr, the timber buyer, contacted him in 1999 while he and his crew were harvesting timber on an adjacent tract. When Carpenter asked DeBurr “if the ownership was okay,” DeBurr replied affirmatively and told him that he knew all of the owners and had a contract with Elmore, which he showed Carpenter to verify ownership. Carpenter described the contract as “informal, just giving De-Burr the right to purchase and cut the timber.” The contract “listed Mary El-more giving permission to Willie DeBurr to cut the said timber on Samantha Wood Estates for the purpose of taxes or something like that.” The contract, although purportedly attached to Carpenter’s deposition as an exhibit, is not included in the record on appeal. Carpenter described the contract as in letter form and signed by Mary Lee McCauley Elmore and Edna McCauley Thomas. DeBurr also told Carpenter there were two other owners of the property, Leondra Julks and Frank To-stón.

|4Carpenter testified that “[DeBurr] purchased this timber from Mary Elmore and I was pretty much working for him cutting the timber on it.” After DeBurr contacted him, Carpenter went to the Ouachita Parish Courthouse to check the ownership of the tract, something he did customarily. He discovered that the tax assessor’s records showed that Elmore had paid the ad valorem taxes since the 1970’s, and that she was also listed as a co-owner according to records in the Clerk’s Office.

Carpenter telephoned Elmore in California in late February, 1999, to double-check DeBurr’s account of the ownership. She told Carpenter there were four owners of the property including herself, her sister Edna McCauley, Frank Toston, and “the Julks.” Carpenter testified that Elmore told him all four were giving permission for him to cut the timber. Therefore, he did not try to contact the other co-owners.

As Carpenter cut the timber, he paid the co-owners according to DeBurr’s instructions regarding the price and its division. The price for hardwood pulpwood was $10/ cord and pinewood pulpwood was $15/cord. Elmore and McCauley were paid together by checks for $3,396.85 and $6,744.05; To-ston was paid by a check for “about $1,000.00,” and a second check to “split with Julks” for $1,381.50. At his deposition, Carpenter also produced invoices showing payments to DeBurr for commissions totaling $9,577.31.

Stokes and Gardner opposed Capital’s motion for summary judgment on the coverage issue, also attaching Carpenter’s affidavit. Stokes and Gardner also filed their personal affidavits on the issue of vicarious liability |Rm which they averred that (i) they never entered into any contractual relationship with Carpenter, (ii) they never exercised any control over Carpenter’s operations, (iii) they never purchased any insurance coverage for him or financed any equipment for him, (iv) Carpenter never advised them that he did not have adequate consent to cut the timber, and (v) they neither cut any timber themselves nor directed Carpenter to do so.

In response to the plaintiffs’ motion for new trial, Capital moved to strike Carpenter’s affidavit, arguing that it was really intended to serve as evidence to support plaintiffs’ opposition to Capital’s first motion and was filed too late. Alternatively, Capital argued that although Carpenter’s affidavit stated that he did not “intentionally” cut timber on plaintiffs’ land, Carpenter did in fact intentionally cut down the trees, as “[t]hat is what loggers do,” and while he may not have known of plaintiffs’ undivided ownership in the timber, he intended to cut down the trees just the same.

After the second hearing, the trial court dismissed plaintiffs’ suit against Stokes and Gardner on summary judgment, denied plaintiffs’ motion for a new trial as to the summary judgment in favor of Capital, and ruled that Capital’s motion for summary judgment against Stokes and Gardner on the issue of coverage was moot.

It is from these judgments that plaintiffs appeal.

¡^Discussion

I.

Plaintiffs argue in their first assignment that Capital failed to establish that no reasonable interpretation of its policy would afford coverage, and that the trial court erred when it dismissed Capital from the suit. Capital cites in support of its argument the following portions of its policy of insurance issued to Randy Carpenter, d/b/a Carpenter Logging:

SECTION I-COVERAGES

COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement,

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.

b. This insurance apples to “bodily injury” and “property damage” only if:

(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;

2. Exclusions.

This insurance does not apply to:

a. Expected or Intended Injury

“Bodily injury” or “property damage” expected or intended from the standpoint of the insured.

j. Damage to Property

“Property damage” to:

(4) Personal property in the care, custody or control of the insured;

(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or

(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

SECTION V-DEFINITIONS

|712. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

15. “Property damage” means:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

A policy endorsement modifying Exclusion (2)(j) provided property damage liability coverage caused by fire damage and overcutting of timber. The endorsement defines “Overcutting of Timber” “as the accidental and unintentional crossing of a property line or cutting area delineated, described or marked by surveyor....” Additionally, we note that the policy does not specifically exclude coverage for punitive damages.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. La. C.C. art.2045; Cadwallader, supra. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art.2047; Cadwallader, supra. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms 1 «or so as to achieve an absurd conclusion. Id. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. The determination of whether a contract is clear or ambiguous in a question of law. Id.

Exclusions must be narrowly construed and any ambiguity should be construed in favor of coverage. Williams v. City of Baton Rouge, 98-1981 (La.4/13/99), 731 So.2d 240, 253. As with any exclusion in an insurance policy, the insurer bears the burden of proving that the intentional injury provision is applicable. Great American Ins. Co. v. Gaspard, 608 So.2d 981, 984 (La.1992).

Though both parties debate in brief the meaning of the defined term “occurrence” in the Capital policy and the lack of definition of the word “accident,” we find no ambiguity in the use of these familiar policy terms. In Nelson v. Want Ads of Shreveport, Inc., 31,168 (La.App.2d Cir.10/30/98), 720 So.2d 1280, 1282, this court stated:

Within the context of insurance coverage, the term accident or an equivalent reference to an act or event causing injury which was neither expected nor intended from the standpoint of the insured has been construed by the courts to include not only the insured’s negligent conduct, but also intentional conduct as long as the insured did not subjectively expect or intend the resulting injuries or damages. (Emphasis in text.)

The intentional conduct or “occurrence” which is the subject of this action is an alleged tortious conversion of timber or presumptive timber |9theft because of the asserted violation of La. R.S. 3:4278.2. We have recently held that a violation of La. R.S. 8:4278.2 can result in punitive damages under La. R.S. 3:4278.1. McConnico v. Red Oak Timber Co., 36,985 (La.App.2d Cir.5/16/03), 847 So.2d 191.

In Williams, supra, our supreme court addressed the issue of insurance coverage for the defendant/city’s “bad faith trespass” and unauthorized expropriation of the plaintiffs’ lands for a drainage project. Following a trial, the plaintiffs were awarded damages for their inverse condemnation claim and resultant tort damages for the trespass, which were affirmed by the high court. The court then addressed the issue of insurance coverage and the policy’s definition of the term “occurrence,” which similarly employed the word “accident” and also contained the intentional injury provision requiring damages “neither expected nor intended from the standpoint of the insured.” The court stated:

The purpose of the intentional injury provision is “... to prevent an insured from acting wrongfully with the security of knowing that his insurance company will ‘pay the piper’ for the damages.” Breland [v. Schilling, 550 So.2d 609 (La.1989) 1 supra at 610. “[N]ot all injuries resulting from an intentional act will be excluded, but only those injuries that were themselves intended.” Yount v. Maisano, 627 So.2d 148, 152 (La.1993) (citing Breland, supra; Great American Insurance Co., supra). “The subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur.” Yount, supra.

Id. at 253.

linThe court in Williams then proceeded to review the facts concerning the city’s intentional actions upon the plaintiffs’ property and determined that the lower courts were manifestly erroneous in holding that the intentional injury exclusion of coverage was inapplicable. Significantly, the court addressed the fact that the city’s actions had resulted in an appropriation/taking of the plaintiffs’ property which is analogous to the alleged conversion of timber in this case. The court observed:

Secondly, we consider the City/Parish’s reasonable expectation as to the scope of its insurance coverage. If the City/Parish had properly taken this property in an expropriation proceeding, or by virtue of an inverse condemnation action, it would have paid the plaintiffs just compensation for the taking and this compensation would not have been covered by insurance. Surely, the City/Parish did not believe that if it took the property wrongfully and without authority, that any damages it caused would be covered by insurance.

Williams, supra at 254.

Insurance coverage for another conversion of property was also involved in Nelson, supra, in which this court reversed the trial court’s summary judgment of no coverage. After finding, as quoted above, that the policy provisions could extend to cover intentional conduct, we also held that the “alleged misappropriation or conversion” of the plaintiffs advertising product “fits the policy definition of property damage.” In that case, as here, property damage was defined under the policy as physical injury to or the destruction of tangible property. In the context of summary judgment, this court in Nelson could find no clear exclusion in the policy | nthat precluded coverage for the conversion of the plaintiffs property so long as the insured/defendant neither expected nor intended the damaging results of his actions. In reversing the summary judgment, the court concluded that “[t]he policy definition of accident ... necessarily requires a factual determination as to the type and extent of injury or damage suffered by the plaintiff, and the state of mind of the defendants with respect to those injuries.” Id. at 1283.

Comparing the results reached in Williams and Nelson, the different verdicts on insurance coverage for the conversion-type “occurrences” resulted more from the procedural context of the two cases. Williams found no coverage under the policy for the intentional actions of the defendant after a full trial on the merits, while Nelson was unwilling to affirm a summary judgment with material fact issues regarding the defendant’s state of mind and the extent of damages to the plaintiff. We likewise find in this case that genuine issues of material fact remain regarding the extent and nature of the plaintiffs’ loss, any concomitant profit by Carpenter, and Carpenter’s state of mind. Accordingly, the trial court’s grant of summary judgment in favor of Capital is reversed.

II.

Plaintiffs next assign as error the trial court’s dismissal of defendants Stokes and Gardner, after finding that no employment relationship existed between them and Carpenter. They urge that Carpenter could only have sold the timber harvested from the tract and delivered to the timber mills by using Stokes and/or Gardner’s contract numbers. Because Stokes and I ^Gardner profited from Carpenter’s sales, they should also share whatever liability is imposed on Carpenter. Stokes and Gardner argue that Carpenter was an independent contractor and that no employment relationship existed between them and Carpenter upon which vicarious liability could be imposed.

Under the doctrine of respondeat superior, employers are responsible for the torts of their employees committed during the course and scope of employment. La. C.C. art. 2820; Arledge v. Royal-Globe Ins. Co., 401 So.2d 615 (La.App. 3 Cir.1981), (citing Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968)). In determining whether an employment relationship exists, the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages, and the power of control and dismissal. Id.; Johnson v. Maricle, 386 So.2d 677 (La.App. 3d Cir.1980); Franklin v. Haughton Timber Co., 377 So.2d 400 (La.App. 2d Cir.1980), writ denied, 380 So.2d 624 (La.1980). The most important inquiry is whether the principal retained the right to control the work. In applying this test, it is not the supervision and control which is actually exercised which is significant; the important question is whether, from the nature of the relationship, the right to do so exists. Ledent v. Guaranty Nat’l Ins. Co., 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531; Slaughter v. Georgia Casualty & Surety Co., 415 So.2d 312 (La.App. 2d Cir.1982), writ denied, 420 So.2d 979 (La.1982).

In Singleton v. Booker, 37,198 (La.App. 2 Cir.5/14/03), 847 So.2d 107, this court reversed summary judgment in favor of the alleged employer based on its relationship with the timber cutter. The timber cutter testified that he had worked for the alleged employer for 32 years, was covered by the employer’s insurance, and paid by the employer. Moreover, the timber cutter “was required to keep [him] informed of where he was cutting.” The court observed:

... [A] woodcutter can, in economic reality, be the employee of one for whom he ordinarily cuts and hauls timber, and under whose name the wood is accepted by the mills.

Id. at 110.

The record indicates that Carpenter’s decision to harvest the timber from the plaintiffs’ land was the result of his dealings with DeBurr and Mary Elmore. He was not directed in his actions by either Stokes or Gardner. The record shows that Carpenter employed his own work crew in his timber operations, owned his own equipment, and provided his own insurance. His only involvement with Stokes and Gardner resulted from their having access to the timber mills through their contractual relations with the mills. Apparently, Carpenter was allowed to deliver the harvested timber to the mills under Stokes and Gardner’s contracts and then receive payment from them after the mills had paid Stokes and Gardner. Other than this relationship, plaintiffs presented no evidence of the payment of wages 114or any other element of control exercised by Stokes and Gardner concerning Carpenter’s actions on the plaintiffs’ property.

In response to the motion for summary judgment by Stokes and Gardner, plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden demonstrating Stokes and Gardner’s right to control the work of Carpenter for this timber operation. La. C.C.P. art. 966(C)(2). The record does not reveal any such evidence of control or the existence of an employment relationship as was present in Singleton, supra. Therefore, the trial court’s grant of summary judgment in favor of Stokes and Gardner on the issue of vicarious liability is affirmed.

Conclusion

For the foregoing reasons, the summary judgment dismissing Capital from the proceedings is reversed, and the matter is remanded to the trial court. The summary judgment in favor of Stokes and Gardner is affirmed. Costs of the appeal are assessed one-half to plaintiffs, Pender and Milstead, and one-half to defendant, Capital.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . Carpenter’s affidavit and deposition were considered by the trial court in ruling on plaintiffs’ motion for new trial. That evidence was also pertinent to the identical coverage issue which remained pending after the initial summary judgment because of Stokes and Gardner's third party demand against Capital. Under these circumstances, we do not find any abuse of discretion by the trial court in considering the evidence from Carpenter for its ruling on the plaintiffs’ motion for new trial.

      . We note that it can be argued that no sale of timber occurred in this setting, but that De-Burr and Carpenter were merely acting under the control and directives of the other defendant/ co-owners of the land. The relationship between co-owners for the cutting of timber is indirectly addressed in La. C.C. art. 798, where the remedy to the co-owners who do not participate in the harvest is provided in terms of an action for an accounting and not damages in tort.

      . We reject Capital’s contention that the "real property” exclusion (2)(j)(5) governs in this case because of the immovable status of the standing timber. The harvested timber became a movable under our law and its conversion would likewise fall within the coverage for destruction of tangible property. See, La. C.C. art. 463 and its Revision Comment (d).


author: hMOORE, J.

text:
    STATE of Louisiana, Appellee, v. Richmond J. BROCK, Appellant.
    No. 37,487-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2008.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Robert W. Levy, District Attorney, John L. Sheehan, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE and TRAYLOR (Pro Tempore), JJ.
   hMOORE, J.

A jury convicted the defendant of aggravated burglary, a violation of La. R.S. 14:60 punishable by imprisonment at hard labor for not less than one nor more than thirty years, and second degree kidnapping, a violation of La. R.S. 14:44.1 punishable by imprisonment not less than two nor more than forty years, the first two of which shall be without benefit of parole, probation or suspension of sentence. Defendant received the maximum sentence of thirty and forty years for each crime to be served concurrently and without benefits during the first two years of the sentence. He now appeals alleging that the evidence was insufficient to support the convictions, and that the sentences are excessive. We affirm the convictions and sentences.

Facts

The seventy-four-year-old victim, Mrs. Faye Rockett, was awakened at her home in Lillie, Louisiana, in the early morning hours of April 9, 2000 by her dog barking and the crash of her back bedroom door being broken down. She went into the living room of her home, which was illuminated by a 60-watt lamp as well as light from an above-the-sink fluorescent light, where she encountered a man she later identified at trial as the defendant, Richmond Brock, a/k/a “Millie.” The defendant grabbed Mrs. Rockett, put his hands over her face and twisted her head as though he were trying to break her neck. He demanded money while struggling with the victim. She directed him to her purse. During this time, Mrs. Rockett saw another man enter the room who was later identified as Antonio Johnson.

ls>The defendant twisted the victim’s wedding ring and dinner ring from her hands and took $120 from her billfold. He forced Mrs. Rockett out of the house and into the back seat of her own car. He got into the back seat with her while Johnson drove. About ten minutes later, Johnson pulled the vehicle over to the side of a gravel road, and the defendant pulled Mrs. Rockett out of the car, struck her in the head with a metal flashlight and pushed her into the roadside ditch. The defendant and his accomplice drove off in the vehicle. The vehicle was subsequently found in El Dorado, Arkansas.

Mrs. Rockett got out of the ditch and walked three miles in the near-freezing temperature until she came to a house and cried for help. The residents of the home assisted her and contacted the Union Parish Sheriffs Office. Mrs. Rockett spent two days in the hospital receiving treatment for her injuries.

After an investigation, the defendant was arrested and charged with aggravated burglary and second degree kidnapping. Near midnight on the night the offense was committed, the defendant and Antonio Johnson went to defendant’s parent’s home, which was located approximately one mile from the victim’s home. The defendant had previously been to the victim’s home, having delivered firewood to Mrs. Rockett one month prior to the crime, although Mrs. Rockett did not make this connection until after criminal proceedings against the defendant had begun. At trial, Mrs. Rockett and Antonio Johnson identified the defendant as the assailant and perpetrator of the burglary and kidnapping. Although the defendant claimed |ahe was misidentified by Mrs. Rockett and Johnson was lying, the jury returned a verdict of guilty to both charges.

The court sentenced the defendant to the maximum sentence of thirty years for the aggravated burglary conviction and forty years for the second degree kidnapping conviction, the first two years of the sentence. The sentences were to be served concurrently. This appeal followed.

Discussion

Defendant’s first assignment of error alleges that the evidence was insufficient to support the convictions against him for aggravated burglary and second degree kidnapping. Specifically, he contends that he was not involved in this crime and that this is a ease of misidentifi-cation.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 4 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such eases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s | .^conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.), writ denied, 566 So.2d 983 (La.1990).

In this case, defendant does not contend that the elements of the crimes have not been proven. Rather, he argues that he is not the person who committed the crime. Defendant contends that the inconsistencies in Mrs. Rockett’s statements, her description of the perpetrator, and the lack of credibility of Antonio Johnson’s testimony render the state’s evidence that he committed the crimes against the victim insufficient to support the convictions. Since the insufficient evidence claim is that the defendant was misidentified as the perpetrator of these crimes, the question is whether the state negated any reasonable probability of misidentification. Jackson, supra and Powell, supra,

To support his claim, defendant argues that Mrs. Rockett made inconsistent statements identifying her attacker, first stating he was a white male, and later stating that he was a light-skinned African-American male. Left in the ditch by the perpetrators, Mrs. Rockett walked three miles to a residence and obtained assistance from the residents therein. One of the residents, Carol Phillips, made a 911 emergency call to the Union Parish Sheriffs Office and reported to the dispatcher that Mrs. Rockett had been beaten by a white male and black male at her residence, and the two men had taken her 1999 Malibu automobile. Later that day, Mrs. Rockett was interviewed by detective Todd Gilbert, the principal investigative officer in the case. Detective Gilbert stated in his report and at trial that Mrs. Rockett | fisaid that her assailant could have been a light-skinned African-American male. At trial, Mrs. Rockett admitted that she initially stated that her attacker was a white male, but explained that she was “traumatized” by the event, and, in the light of her living room, the defendant looked very light-skinned.

At trial, Mrs. Rockett described the assailant as a light-skinned African-American male and pointed at the defendant, who is an African-American, as her attacker. She testified that the defendant had sold her firewood one month prior to the assault, but during the assault, she did not recognize him as the same person who had sold her firewood. Mrs. Rockett did not identify the defendant as her attacker until she saw him in an orange prison suit and handcuffs at the preliminary examination.

Defendant also argues that Mrs. Rockett gave inconsistent statements regarding her attempts to bite the perpetrator’s finger and whether or not she bled from any injury sustained at her home. Mrs. Rock-ett initially reported that she bit the assailant’s finger hard enough to draw blood. However, no such marks of injury were found on the defendant when he was arrested after the crime. At trial, however, Mrs. Rockett testified that she tried to bite the assailant in the car to try to escape, but could not bite him hard enough to make him let her go.

Mrs. Rockett also initially stated that she was not bleeding while she was in her home during the crime. Johnson testified, however, that Mrs. Rockett’s face was bleeding when he came in the house. At trial, contrary to her earlier statements, Mrs. Rockett stated that, in retrospect, her nose |7must have been bleeding in the house due to the rough treatment from the defendant.

Additionally, defendant argues that the testimony of Antonio Johnson, who pleaded guilty to second degree kidnapping and aggravated burglary in exchange for his testimony and a seven-year sentence, is simply not believable. Johnson initially denied any involvement in the incident and even denied that he was Antonio Johnson. When he was subsequently linked to the crime, he claimed he played no part in the crime, and that a white male named “Ron” was one of the offenders. Johnson ultimately admitted his complicity in the crimes and gave details of his involvement in the allocution of his plea of guilty and in his testimony at trial. However, defendant also points out some contradictions between Antonio Johnson’s version and Mrs. Rockett’s version of the crime. For example, Johnson stated that he did not come into the house until the defendant yelled for him to come into the house. He said that when he came in the house, the defendant had Mrs. Rockett on the floor and blood was on her face. Mrs. Rockett, however, denied that the defendant yelled anything, and she denied that she was ever on the floor. As previously stated, she also initially denied that she was bleeding while in the house, but later recanted those statements.

No fingerprints or DNA evidence linked to the defendant was found in the house or in or on Mrs. Rockett’s ear. There was no physical evidence linking the defendant to the crime.

On the other hand, both the defendant and Antonio Johnson testified |Rthat Ernest Lee Meadows took them to the defendant’s father’s house around midnight on the night of the crime. The defendant claims they separated shortly thereafter, and he walked back to Ernest Meadows’ house and stayed there until approximately 3:30 a.m., at which time he left and went to “Robertafs] house,” a place to “hang out and do drugs.” There he met and joined Antonio Johnson and the alleged white male “Ron” in Mrs. Rockett’s vehicle. Defendant admitted that he went to Mose Turner’s house with Johnson and the white male, but thereafter went to Meadows’ house around 5:30 a.m. or near daybreak.

We conclude that the record supports the conclusion that the state negated any reasonable probability of misidentification in order to carry its burden of proof. See State v. Powell, supra. Mrs. Rockett positively and unequivocally identified the defendant in court as the perpetrator. She had the opportunity to view the defendant during the crime in the available light in her home. Her testimony alone is sufficient to support the defendant’s conviction. See State v. Davis, supra; State v. Miller, supra. Furthermore, Mrs. Rockett’s account of the crime and the identity of the defendant was corroborated by the testimony of his co-defendant, Johnson, although there was some conflicting testimony regarding minor factual matters in this case. Resolution of these contradictions depends on the credibility of the witnesses and concern the weight of the evidence, not the sufficiency. See State v. Allen, supra. Additionally, we observe that the testimony of Mose Turner corroborated Johnson’s testimony that he and “Millie” attempted to sell the stolen rings to him. This court accords great deference to a jury’s 1 ^decision to accept or reject the testimony of witnesses in whole or in part. See State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508. Accordingly, we conclude that the evidence was sufficient to support the convictions. This assignment is therefore without merit.

In his second assignment of error, defendant argues that the sentences imposed are harsh and excessive. The defendant takes issue with the trial court’s statement, while setting forth the factual basis, that the victim was left “for dead.” The defendant contends that there was no evidence of that fact in the record. He concludes that the sentences are unsupported by the record and the case should be remanded for re-sentencing.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal linrecord, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.), writ denied, 521 So.2d 1143 (La.1988).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993).

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

In this instance, the trial court first reviewed the factual basis for the offense. Noting that there was a significant amount of blood on her face due to being struck in the face and head, the court remarked that she was left on the side of the road for dead. We find no error in this remark. Indeed, Mrs. Rockett’s description of the defendant twisting her head, choking and “working on her face” indicated that the vicious attack was intended to cause great physical harm to her and perhaps death.

The sentencing court also took into account the considerations required under La.C.Cr.P. art. 894.1, specifically finding that the defendant posed a risk as a repeat offender and was in need of correctional treatment most effectively provided by incarceration. He noted that the PSI indicated that the defendant had two prior felonies and a number of other charges. The defendant had a poor record on probation.

The court made findings concerning the aggravating circumstances, including a finding that the defendant’s conduct was particularly cruel to Mrs. Rockett. The defendant should have known that Mrs. Rockett was particularly vulnerable due to her age. He used actual violence on the victim. Finally, the court noted that this was the defendant’s third felony, and he had a substantial criminal record as noted in the PSI.

The court found no mitigating circumstances applicable in this case.

Considering these factors, the court imposed the maximum sentences in this case: thirty years for the aggravated burglary and forty years for the second degree kidnapping conviction, the first two of which will be without | ^benefit. The court ordered the sentences to be served concurrently.

Thus, the record clearly shows an adequate, and accurate, factual basis for the sentences imposed in compliance with La. C.Cr.P. art. 894.1, and this record supports the trial court’s imposition of maximum sentences for the defendant’s convictions of aggravated burglary and second degree kidnapping, as these crimes were indeed the most serious violation of the offenses by the worst type of offender. State v. Grissom, supra; State v. Walker, supra. When the crimes and the defendant’s punishments are viewed in light of the harm done to society by violent crimes against the elderly, the defendant’s sentences do not shock our sense of justice. State v. Hogan, supra; State v. Bradford, supra.

Accordingly, we find that the sentences imposed are appropriate in this instance.

Conclusion

For these reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. John Curtis BELL, Appellant.
    No. 37,675-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2003.
    Sam Henry, IV, for Appellant.
    Robert W. Levy, District Attorney, Laurie L. Whitten, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS, and MOORE, JJ.
   11 BROWN, C.J.

Defendant, John Curtis Bell, was charged with DWI (third offense) following a traffic stop of the vehicle he was allegedly driving on November 25, 1999. At the time of his arrest, La.R.S. 14:98 provided that the penalty for DWI (third offense) was imprisonment for not less than one year nor more than five years, a mandatory fine of $2,000 and a requirement that at least six months of the sentence be served without benefit. A jury found defendant guilty as charged.

On April 25, 2002, the trial court imposed the mandatory fine and sentenced defendant to three years at hard labor in accordance with La.R.S. 14:98 as it read at the time of the offense. The court, however, suspended the hard labor sentence on the condition that defendant serve nine months in the parish jail, six months of which were to be served without benefit. Defendant filed a motion for reconsideration, urging that his sentence was illegal in that it should have been imposed under La.R.S. 14:98 as amended (effective August 15, 2001) rather than as it read at the time of his arrest. The motion for reconsideration was denied by the trial court. Defendant perfected the instant appeal.

_[¿Discussion

Sufficiency

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992).

To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that he was under the influence of alcohol or drugs. La. R.S. 14:98; State v. Withers, 36,001 (La.App.2d Cir.06/12/02), 821 So.2d 556; State v. Holley, 32,156 (La.App.2d Cir.08/18/99), 742 So.2d 636; State v. Iles, 96-256 (La.App. 3d Cir.11/06/96), 684 So.2d 38.

As noted above, defendant admitted his intoxication, so the only sufficiency issue before this court is whether a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, supra, in the light most favorable to the state, could reasonably conclude that the prosecutor proved [¡¡beyond a reasonable doubt that defendant was the driver/operator of the vehicle. Summary of Trial Testimony

Lincoln Parish Sheriffs Deputy Stephen Williams testified that on November 25, 1999, he was on routine patrol in the eastern part of the parish. As Dy. Williams entered a curve on Beacon Light Road, a gray sports utility vehicle swerved toward the officer’s lane, forcing him onto the shoulder of the road to avoid a collision. Dy. Williams turned his patrol car around and began pursuit. He lost sight of the SUV momentarily when it went over a hill, but he got to within 200 feet of the vehicle as it slowed to turn into the driveway of the Leisure Living Trailer Park.

As the deputy pulled into the mobile home park behind the SUV, two men were getting out of the vehicle walking towards one of the trailers. The area was lit and the deputy could see the driver, who was at the left front of the STJV, and the passenger, who was at the right front of the vehicle. The two men continued toward the mobile home. Dy. Williams, not knowing the name of either man, asked the driver to step back from the porch they had both reached. Defendant, who had a beer in his hand, stumbled while getting off the porch and dropped his beer into the flower bed.

When asked to produce his driver’s license, defendant told the deputy that he didn’t have one and turned to go back to the trailer. Dy. Williams stated that he had to physically restrain defendant to get him to talk to him. Defendant, who was very belligerent, told the deputy to “go f— yourself.” Defendant smelled strongly of beer, was unruly and uncooperative and |4slurred his speech. Clearly defendant was under the influence. Defendant refused field sobriety tests and initially denied driving the Blazer. However, after being taken to the detention center, defendant admitted that he had been driving and that he was intoxicated.

On cross-examination, Dy. Williams conceded that his arrest report did not contain defendant’s admission that he had been the driver. Dy. Williams testified that he watched the Blazer pull into the driveway and had seen defendant getting out of the vehicle from the driver’s side. Defendant admitted to the deputy that the SUV was his.

Jason Carter testified that he was with defendant on the night of November 24, 1999 (and into the morning hours of November 25th). Defendant picked Carter up earlier that evening and drove his Chevy Blazer to a bar in Arcadia where they met up with some friends. They drank for four or five hours until midnight when the bar closed. Carter claimed that he drove the Blazer from the bar and was driving the SUV when they met the patrol car on the highway. According to Carter, the deputy arrived so late behind the Blazer that after Carter drove it into the trailer park driveway, he was sitting on the porch swing and defendant was standing at the trailer door with his keys in hand when the deputy pulled up.

On cross-examination, Carter admitted that he told Deputy Williams that defendant had been driving when they went to the mobile home, but he claimed that this version wasn’t accurate. Instead, what he meant was that defendant had driven them to the bar five or six hours earlier. Carter admitted that he had told ADA Strider “yesterday” that defendant had been Ifidriving, but that he only said that because “they were telling me they were gonna arrest me” and charge him with DWI. Carter also conceded that at the time of defendant’s arrest, he hadn’t told the police he was driving. According to Carter, he didn’t know at the time what they were charging defendant with.

Defendant testified that he and Jason Carter had met friends at the bar in Arcadia on the night before Thanksgiving. He drank beer from 7:30 or 8:00 until just before midnight. Jason was driving defendant’s Blazer when they left the bar; defendant was “fairly drunk” at the time and didn’t want to drive because he had two prior DWI convictions.

Defendant related that he was at the porch door trying to open it when the deputy pulled into the driveway. Defendant did not hear Dy. Williams ask to speak with the driver of the SUV. Instead, he walked over to the deputy to find out what the problem was. He admitted to getting loud with the officer because of frustration over the fact that he finally let someone else drive and he was still going to be the one arrested. According to defendant, he “can’t win for losing.” Defendant also denied admitting at the detention center that he had been driving that night.

Deputy Williams testified on rebuttal that there was no way that the two men could have gotten onto the porch of the trailer and been sitting down before he pulled up in the driveway. He was adamant that they were walking toward the porch when he called out that he needed to speak to the driver. Dy. Williams reiterated that defendant admitted, at the detention center, that he had been driving the vehicle just before the traffic stop.

|fiThe evidence, viewed in the light most favorable to the state, consists of Deputy Williams’ observation of defendant getting out of the driver’s side of the Blazer, defendant’s admission to the officer that he was the driver and Carter’s inability to keep the story straight. Defendant admitted that he had two prior DWI convictions and he conceded that he was very drunk at the time of the incident. The jury was in the best position to determine the credibility of the witnesses. Looking at the testimony in accordance with the dictates of Jackson v. Virginia, supra, the jury could have found the essential elements of the charged offense proven beyond a reasonable doubt. This assignment of error lacks merit.

Testimony of ADA Strider

Defendant’s second assignment of error is that the trial court erred in allowing assistant district attorney Cliff Strider to both act as an advocate for the state and testify on behalf of the prosecution. Defendant did not make a contemporaneous objection to Strider’s testimony and has not cited any authority in support of this assignment of error.

The jurisprudence holds that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, supra; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989),7 writ denied, 558 So.2d 581 (La.1990). This assignment of error is not properly before the court and is without merit.

Error in Sentencing

Defendant argues that the trial court should have imposed sentence in accordance with the reduced range provided by the legislature via an amendment to La. R.S. 14:98 which was enacted after defendant committed the instant offense. We agree.

In accordance with the ruling of the supreme court in State v. Mayeux, 01-3195 (La.06/21/02), 820 So.2d 526, we vacate defendant’s sentence and remand the matter for resentencing. Although defendant committed the instant offense prior to the enactment of 2001 La. Acts 1163, the act became effective on August 15, 2001, prior to the imposition of sentence. Therefore, under State v. Mayeux, supra, the amended sentencing provisions are to be applied in this case. State v. Self, 36,887 (La.App.2d Cir.04/09/03), 842 So.2d 1240; State v. Eppinette, 36,825 (La.App.2d Cir.02/11/03), 838 So.2d 189; State v. Nelson, 36,266 (La.App.2d Cir.08/14/02), 823 So.2d 1112.

Conclusion

For the reasons set forth above, defendant’s conviction is affirmed. His sentence is hereby vacated and the matter is remanded to the trial court for resentencing under La. R.S. 14:98(D) as amended by the legislature in 2001.

      . Late on the night of November 25, 1999, defendant and Jason Carter were in a vehicle owned by defendant, driving from a bar in Arcadia to defendant's home in Choudrant. Lincoln Parish Deputy Stephen Williams stopped the car for a traffic violation, improper lane usage, and subsequently arrested defendant for driving under suspension and DWI. At trial, defendant admitted that he had two prior DWI convictions and that he was legally intoxicated at the time of his arrest. The only issue was whether defendant had been driving the car the night of his arrest.

      . Strider testified to rebut Carter's claim that he was threatened on the day before trial with arrest for perjury and DWI when he asserted that he had been driving the Blazer on November 25, 1999, and to rebut Carter’s contention that he did not say that defendant was driving the SUV just prior to the stop. Strider related the conversation he had with Carter, including Carter’s admission that he was lying when he said that it was he who had been driving the Blazer. Strider vehemently denied threatening Carter.