author: | .THOMAS F. DALEY, Judge.

text:
    Phyllis F. WAKEFIELD & Robert F. Wakefield v. RELIANCE NATIONAL INDEMNITY COMPANY, Marmac, L.L.C. d/b/a, McDonough Marine Service and Dayla K. Walkowski.
    No. 02-CA-1173.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Scott G. Jones, Hulse & Wanek, New Orleans, LA, for Defendant/Appellant, Fidelity And Casualty Company.
    Wayne M. LeBlanc, Metairie, LA, for Plaintiffs/Second Appellants, Phyllis F. Wakefield and Robert E. Wakefield.
    Robert M. Johnston, Law Ofice of Robert M. Johnston, LLC, New Orleans, LA, for Defendant/Appellee, Liberty Mutual Insurance Company.
    Thomas D. Fazio, McCollister & MeCleary, Baton Rouge, LA, for Defendant/Appellee, Louisiana Insurance Guaranty Association.
    P.M. Donovan, Donovan & Lawler, APLC, Metairie, LA, for Defendants/Ap-pellees, Marmae, LLC d/b/a McDonough Marine Service and Dayla K. Walkowski.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | .THOMAS F. DALEY, Judge.

This suit for personal injuries arises out of an automobile accident that occurred on July 8, 2000, at the intersection of Veterans Boulevard and Transcontinental. Defendant, Dayla Walkowski (Walkowski), was operating a vehicle owned by her employer, McDonough Marine Services, Inc., a division of Marmae, LLC (McDonough), when she struck the vehicle of the plaintiffs, Phyllis and Robert Wakefield. Mrs. Wakefield, who was 75 years old at the time of the accident, sustained a serious compound wrist fracture that necessitated several surgeries.

The Wakefields filed suit against Wal-kowski, McDonough, and its automobile liability insurer, Reliance National Indemnity Company (Reliance). Plaintiffs added their own uninsured/underinsured motorist carrier, Fidelity and Casualty Company of New York (Fidelity), by way of Amended Petition. In June of 2001, the Pennsylvania authorities placed Rebanee into receivership, staying all proceedings against it. By a Second Amended Petition, the plaintiffs added RLiberty Mutual Fire Insurance Company, Walkowski’s personal automobile bability carrier and umbrella pobey carrier. Plaintiffs also filed a Third Amended Petition, adding the Louisiana Insurance Guaranty Association (LIGA) in place of Reliance.

Prior to trial, insurance coverage issues were decided in summary judgment proceedings, with the trial court ruling that Walkowski’s personal Liberty Mutual primary auto babibty did not provide coverage for this accident, but leaving the issue of the umbreba policy’s coverage for trial. Walkowski’s babibty was stipulated at trial. At the bench trial, the judge found that the “business pursuits” exclusion in the Liberty Mutual umbrella pobey applied, excluding coverage for this accident and leaving Fidelity, the plaintiffs’ UM carrier, as the applicable insurance. The trial judge awarded Mrs. Wakefield $150,000.00 in general damages and $39,537.00 in past medical expenses. He also awarded Mr. Wakefield $15,000.00 for loss of consortium.

Defendant, Fidelity, appeals the trial court’s finding that they and not Liberty Mutual Insurance Company, Ms. Walkow-ski’s personal babibty and umbrella carrier, provided coverage for this accident. Fidelity also assigns as error the trial court’s admission into evidence of a “day in the hfe” video of plaintiff, Phylbs Wake-field, arguing that it was prejudicial. They argue that the trial court’s award of $150,000.00 in general damages to Mrs. Wakefield was excessive. They also argue that no evidence supports an award to Mr. Wakefield for loss of consortium. The Wakefields also appeal, arguing that the trial court erred in assigning Mrs. Wake-field only a 29% disabibty rating, faibng to itemize the damages after they requested it, awarding inadequate damages to Mrs. Wakefield, awarding inadequate loss of consortium damages to Mr. Wakefield, and faibng to cast the tortfeasor, Dayla Wal-kowski, in judgment.

| ¡After thorough consideration of the record and appbcable law, we affirm the judgment of the trial court.

INSURANCE COVERAGE

At the time of the accident, Walkowski was driving a vehicle her employer, Mc-Donough, owned and that was regularly furnished for her use on a 24-hour basis. McDonough had in force and effect a policy of automobile babibty insurance with Rebanee National Indemnity Company. After the Wakefields filed this suit, but before the matter was tried, Reliance was placed into receivership and LIGA thereafter stood in their position. At this point, the question of insurance coverage came to the forefront. Under the LIGA law, LSA-R.S. 22:1375 et seq, Louisiana law requires any other available babibty, UM, or medical expense coverage to be exhausted before the coverage provided to the insured of an insolvent insurer under the LIGA law is triggered. In addition to the Reb-anee policy on the work-owned automobile that she was driving, Ms. Walkowski also had a personal automobile babibty policy, as well as an umbrella policy with Liberty Mutual. The Wakefields had uninsured motorist coverage of their own through Fidelity.

Liberty Mutual filed a Motion for Summary Judgment not only on the underlying automobile liability policy, but also the umbrella pobey, arguing that there was no coverage for this accident under either policy. The trial court ruled that the underlying automobile liability policy of Liberty Mutual did not apply because of the “regularly used non-owned vehicle” exclusion. As far as the Motion for Summary Judgment related to the umbrella policy’s exclusion, which was different from that of the primary policy, the court denied the motion, stating that there were questions of fact as to whether or not the “business pursuits” exclusion would apply in the instant case.

|fAt trial, the court found that Walkow-ski was in the course and scope of her employment at the time of the accident, which triggered the “business pursuits” exclusion in the umbrella policy, excluding coverage for the accident. Fidelity appeals this finding, arguing that Walkow-ski’s deposition testimony, which they argue conflicted with her trial testimony, showed that she had finished her employment-related mission at the time of the accident and was in fact on her way to get lunch.

Liberty Mutual’s umbrella policy contained an exclusion to coverage for “personal injury or property damage: b. arising out of business pursuits or business property unless the liability is covered by an underlying policy.” “Business pursuits” means any activities of a business, trade, occupation or profession except the providing of professional services. “Underlying policy” means a policy listed as an underlying policy in the Declarations. Liberty Mutual’s primary automobile liability policy is listed on the excess policy’s underlying policy schedule, and excludes coverage when the insured is using any vehicle while employed or otherwise engaged in any business.

Fidelity argues that it has long been held that, as a general rule, an accident that occurs while an employee is on his way to or from the lunch hour is not considered to have occurred within the course and scope of that person’s employment, citing Brown v. Ackel, 00-287 (La.App. 5 Cir. 07/25/00) 767 So.2d 827 and Hall v. House, Golden, Kingsmill & Riess, et al, 97-988 (La.App. 5 Cir. 5/27/98), 717 So.2d 250, writ denied 98-2195, 729 So.2d 565 (La.11/25/98).

Walkowski’s deposition testimony and her trial testimony established that the accident occurred on a Saturday. Wal-kowski had been Operations Manager at McDonough for 21 years. Her duties consisted primarily of dispatching barges, 17renting barges, and barge repairs. The company-owned automobile was furnished for her use 24 hours per day, 7 days per week. She testified that she was a salaried employee, not hourly, and was on call 24 hours per day. On this Saturday, July 8, 2000, she had gone into the office around 8:30 or 9:00 a.m. to catch up on work, but left to purchase wrapping paper at Wal-Mart on Veterans Highway for a gift for a retiring employee. Previously, Walkowski had purchased a gift for this retiring employee out of personal funds that were reimbursed to her by McDon-ough. McDonough also reimbursed her for the cost of the wrapping paper. She and other employees from the Metairie office would fly to Houston that afternoon on the company’s private aircraft to attend the retirement party. She intended to leave directly from the office for the party.

Walkowski was on her way back to the office from Wal-Mart when the accident occurred. She testified at trial that she got an hour for lunch every day, and performed this work-related errand on what she considered to be her lunch hour, though it was a Saturday. She testified that in her 21 years at McDonough, she had in the past performed similar “human resource” type duties and considered them part of her job. Fidelity argues that in her testimony, Walkowski indicated that she intended to pick up her lunch (and pay with personal funds) before returning to the office from getting the wrapping paper. It is undisputed that she had not yet purchased the lunch when the accident occurred, but was heading back in the direction of her office. At trial, she said that she had not yet determined where she would get her lunch, but it probably would have been at some fast food place between Wal-Mart and her office, which was located near Clearview and Veterans. The evidence shows that she had not deviated in her route back to the office when the accident occurred. (In fact, she did not get lunch at all after this accident occurred.)

IsWalkowski’s testimony in her deposition is not materially different from her trial testimony. In arguing this assignment, Fidelity cites more often to Walkow-ski’s trial testimony. Fidelity argues that Walkowski’s testimony, that she intended to pick up some lunch prior to returning to the office after getting the wrapping paper, takes her out of the course and scope of her employment at the time the accident occurred. The trial court found, however, that Walkowski was clearly on an employment-related mission at the time the accident occurred.

The well-settled rule of law is that an appellate court cannot reverse a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Resell v. ESCO, 549 So.2d 840 (La.1989). On appeal, the appellate court must review the record in its entirety to determine whether the trial court’s findings were clearly wrong or manifestly erroneous and whether the trial court’s conclusions were reasonable. Stobart, supra.

As noted by Fidelity in brief, most of the cases involving determination of whether an accident causing injury to an employee occurring during a time of travel took place within the course of employment have involved accidents that occurred while the employee was on his way to or from work, or on his lunch hour. As a general rule, such accidents are not considered to have occurred within the course of employment. Brown v. Ackel, supra. However, jurisprudential exceptions to that rule have developed, as we noted in Brown v. Ackel, supra:

1) If the accident happened on the employer’s premises;
2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer’s business or pursuant to his employer’s order;
3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
|94) If the employee was doing work for his employer under circumstances where the employer’s consent could be fairly implied;
5) If the employee was hurt while traveling to and from one work site to another;
6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee, also known as the threshold doctrine; and,
7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.

Each case must be decided upon the particular facts and circumstances. Walkowski’s activities fall within the second exception listed above. Fidelity concedes that getting the wrapping paper was a work-related errand, but argue that she was on her way to get lunch, something not in the course and scope of her employment. We find that though she had intended to get lunch, she had in fact not done so. Walkowski also intended to return to the office and the testimony reflects that she had not deviated in her route back to the office from Wal-Mart. She had not yet acted upon her intent to purchase lunch, but was traveling the same route she would have used to return directly to the office from the work-related errand. In the instant case, we find no manifest error in the judge’s conclusion that Walkowski was in the course and scope of her employment when this accident occurred.

Fidelity argues that the “business pursuits” exclusion in the umbrella policy has been found unenforceable, citing Marcus v. Hanover Ins. Co., 98-2040 (La.6/4/99), 740 So.2d 603. Fidelity argues that the business pursuits exclusion operates to cause the vehicle to drive in and out of coverage depending on the particular mission on which the driver is engaged. The Marcus court, however, found the business use exclusion to be contrary to the public policy stated in LSA-R.S. 32:851, et seq, when it excluded from coverage the named insured while operating his personal car. The Supreme Court noted that the statutory scheme was intended to attach financial protection to the vehicle rather than to the | moperator. In the instant case, Walkow-ski was not operating her personal car, insured under the two Liberty Mutual policies, on a business outing; she was operating her employer-owned vehicle on a business outing and was at all times covered under the Reliance liability policy. The particular public policy considerations that the Marcus court faced are not present here. The trial court did not err in distinguishing this case from Marcus and, therefore, declining to invalidate the business pursuits exclusion in the Liberty Mutual umbrella policy.

ADMISSIBILITY OF VIDEOTAPE

At trial, plaintiffs introduced into evidence, over Fidelity’s objection, a videotape entitled “A Day in the Life of Phyllis Wakefield.” Fidelity objected to the introduction of this tape on the grounds that it consisted of a running commentary by the plaintiff that was not subject to cross-examination. In addition, they argued that it was clear the plaintiff was given instructions by someone who was off camera. Fidelity also objected on the grounds that the videotape was made on April 6, 2001, more than a year before the trial, which took place in June of 2002, and, therefore, did not accurately depict the plaintiffs condition at trial.

The determination of whether videotapes are admissible is largely within the discretion of the trial court. The admissibility of a videotape is determined on a case-by-case basis depending on the individual facts and circumstances of each case. Fryson v. Dupre Transport, Inc., 2000-0858 (La.App. 4 Cir. 8/29/01), 798 So.2d 1012. The factors to be considered in order to determine admissibility of a videotape are as follows: (1) whether the videotape accurately depicts what it purports to represent, (2) whether it tends to establish a fact of the proponent’s case, and (8) whether it will aid the jury’s understanding. Id.

|nFirst, it is important to note that this was a bench trial, not a jury trial. The likelihood of prejudice is much less under these circumstances. Second, the plaintiff testified at trial and was cross examined regarding the videotape, the circumstances under which it was made, and the differences in, and improvement to, her condition by the time of trial. Plaintiffs physical therapist also testified about the plaintiffs improvement since the videotape was made, and her condition at the time of trial. Under the circumstances of this case, we find that the introduction of this tape was not so prejudicial that its admission was error. See also Reggio v. Louisiana Gas Service Co., 333 So.2d 395 (La.App. 4 Cir.1976).

DISABILITY RATING AND ITEMIZATION OF DAMAGES

The Wakefields argue that the trial court erred in its factual finding that Mrs. Wakefield suffered only a 29% percent upper body disability rating. They point out that Dr. Kaye, Mrs. Wakefield’s treating physician, sent a letter to the court, after his deposition, wherein he assigned a 41% impairment to her upper extremity and a 25% impairment to the whole person. At his deposition, which was offered in lieu of his live testimony, he estimated 20% impairment to the upper extremity, 12% to the whole person, but qualified his answer because he had not calculated the impairment, according to medical reference books, prior to his testimony. Plaintiff argues that the trial court’s finding of 29% is without foundation. She further disagrees that it was ever stipulated that her carpal tunnel symptoms were unrelated to the accident.

It does not appear that the trial court awarded damages relative to a certain impairment level. When he awarded damages, the trial judge compared the plaintiffs injuries to the plaintiff in Stephens v. Town of Jonesboro, 25,715 (La.App. 2 Cir. 8/19/94), 642 So.2d 274. The plaintiff in that case was left with a 30% impairment to the upper extremity. She was awarded $300,000.00 in general | ^damages, but also experienced additional serious injuries. The trial court also noted that it had found cases where plaintiffs suffered similar kinds of injuries as plaintiffs that had damage awards that ranged from $60,000.00 to $400,000.00. This court has also found cases in this range, and many of them do not set a numerical impairment rating. So, while plaintiffs argue the trial court’s finding of a 29% upper extremity disability rating was incorrect, it does not appear that the trial court relied exclusively on that finding to set a damage award. We do not find that any corrective action is necessary with regard to the trial court’s disability rating.

Likewise, the plaintiff assigns as error the trial court’s failure to itemize its in globo award of damages. There is no requirement that the trial court do so. In fact, several cases that the plaintiffs cites in support of her claim for inadequate damages included in globo awards.

DAMAGES

Fidelity argues that the award of $150,000.00 in general damages to Phyllis Wakefield is clearly excessive. Plaintiff argues that the same damage award is inadequate, and asks that it be increased. Each side makes the same arguments regarding Mr. Wakefield’s loss of consortium award of $15,000.00.

The accident occurred on July 8, 2000. Plaintiff was 75 at the time, and suffered a compound fracture of the wrist, necessitating four surgeries, the use of an external fixator for six weeks, and a cast after that. Pictures of her hand show that Mrs. Wakefield’s wrist is misshapen and will remain that way. Her treating physician, Dr. Jefferson Kaye, testified via deposition that she has a non-union of the bone, due to the fact that her bones were very soft. He testified in deposition that he could not relate her carpal tunnel problems to this accident. He described the surgeries he performed on Mrs. Wakefield’s hand and her follow-up treatment.

113While she was in the fixator and cast, the plaintiff engaged in occupational therapy to rehabilitate her hand. She last saw the occupational therapist in March of 2001. Jennifer Breaux, the therapist, testified that Mrs. Wakefield was a good patient who applied herself to her therapy, and that she had met her therapy goals by the time she was discharged from Breaux’s treatment. Breaux agreed, though, that Mrs. Wakefield has some residual pain and loss of function.

Mrs. Wakefield testified regarding the accident, her medical treatment, and the current condition of her hand. She said that she has trouble buttoning buttons, putting on her earrings, tying her shoes, and performing household cleaning tasks such as dusting, vacuuming, and slicing vegetables and fruit. Her testimony conflicted in part with the testimony of Jennifer Breaux, whose notes indicated that plaintiff reported being able to button buttons, tie shoes, and put in earrings. Breaux testified that the therapy goals concentrated on getting Mrs. Wakefield to be able to perform the tasks of daily living and that these goals had been met.

Mrs. Wakefield testified that she had to rely on her husband to perform many of these tasks. She also reported that she was no longer able to paint pictures, a leisure activity she had enjoyed before the accident. Her testimony, as well as her daughters’ testimonies, showed that she was a relatively prolific painter, but had only been able to paint two pictures since the accident. She also had some trouble starting the car and had to use a pliers to hold the key.

Mrs. Wakefield’s testimony also showed that she was affected by a plethora of preexisting medical conditions, including heart surgery, diabetes, thyroid dysfunction, arthritis, and prior back and knee surgery. Some of her mobility and ability to exercise had already been limited by these conditions, as well as providing a limited need for pain medication prior to the accident.

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable |upersons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, 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. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

We find that the damage award to Mrs. Wakefield was neither abusively low nor excessive. Plaintiff cites several cases that argue for an increase in the damages to $300,000.00 or $400,000.00, but our reading of these cases show that those plaintiffs suffered serious injuries to other body parts in addition to their wrist injuries, or the hand injury itself was more serious, with the loss of fingers. We find all these cases distinguishable on those bases.

The trial court cited Stephens v. Town of Jonesboro, supra, as support for its damage award. In that case, plaintiff Alberta Doyle was awarded $300,000.00 in general damages. She suffered a Colles fracture of the right wrist that resulted in a 30% impairment. In addition, she suffered a broken leg that resulted in a 50% impairment and would require a future knee replacement. Additionally, she suffered a degloving injury to her eyelid approximately half-way to her scalp that required surgery and resulted in a permanent eyelid droop. While we do not make light of Mrs. Wakefield’s injuries nor the impact they have had on her life, clearly her injuries were not as extensive as Ms. Doyles’s.

In Blitz v. Jefferson Parish Hospital Service District No. 2, 93-733 (La.App. 5 Cir. 4/14/94, 636 So.2d 1059). The 77 year old plaintiff sustained a severely commi-nuted fracture of her left wrist, as well as fractures of three ribs, and muscle and ligament damage |1sto her shoulder, back, pelvis, and knees. A panel of this court raised her in globo damage award to $160,000.00, which included $54,650.00 in special damages.

In Treadaway v. Shoney’s, Inc., 93-1688 (La.App. 4 Cir. 2/25/94), 633 So.2d 841, plaintiff sustained a severe fracture to her left wrist that required two surgeries and an external fixator. She underwent many hours of physical therapy and had to rely extensively on her husband to perform household tasks while she wore the fixator. The court of appeal approved a $62,500.00 award for pain and suffering, citing Youn, supra (her total damages were $128,874.61).

In Boddie v. State of Louisiana, 27,313 (La.App. 2 Cir 9/27/95), 661 So.2d 617, plaintiff suffered a badly broken left wrist and arm. She required surgery and an external fixator for 8-9 weeks. She contracted an infection. The fixator scarred her arm, caused her a great deal of pain, and left her arm crooked. She underwent physical therapy, but testified that she had not regained total use of her arm. Plaintiff had preexisting multiple sclerosis. The injury caused her a 14% impairment to her arm. She was awarded $95,000.00 in globo in general damages, which the court of appeal affirmed. See also Creel v. St. Charles Gaming Co., Inc., 97-994 (La.App. 3 Cir. 2/4/98), 707 So.2d 475 (serious wrist fracture, surgery, external fixator, and physical therapy, without full recovery's,000.00 in general damages).

Accordingly, we find that the trial court did not abuse its vast discretion in fashioning this damage award to Mrs. Wakefield.

Plaintiff and defendant both appeal the loss of consortium award to Mr. Wakefield. Fidelity argues that the award is excessive, given Mr. Wakefield’s scant testimony (3 pages of trial transcript), and that no award is justified. The plaintiffs argue that this award is grossly inadequate and ask that it be raised to $50,000.00.

1 ifiThe record reflects that Mr. Wakefield and his wife are both in their mid to late 70s. Mr. Wakefield has been diagnosed with the early stages of Alzheimer’s disease, but remains at home and apparently functions well at this time. He testified that he had to help his wife bathe and address her personal needs soon after the accident, and that he continues to help her around the house with the chores she would have normally done. Mrs. Wake-field testified that they have a maid every other week and do the cleaning themselves on the off weeks, an arrangement that predated the accident. Mr. Wakefield also helps Mrs. Wakefield with her earrings, buttons, and shoelaces on occasions when she needs it, the frequency of which varies depending on what she wears.

Though his testimony was scant, the record supports a finding that Mr. Wake-field has sustained a loss of services, the work that he does around the house that she used to be able to perform. The record tends to show that this is not a huge amount of work, but it is a loss nevertheless. The record also shows that Mrs. Wakefield was able to take care of herself before the accident and looked forward to being able to care for Mr. Wakefield at home as his Alzheimer’s progressed, but her ability to take care of herself is now limited and certainly her ability to take care of him eventually has been diminished as well.

Though generous, we do not find that this loss of consortium award was abusively high, nor abusively low. We affirm this award.

JUDGMENT AGAINST TORTFEASOR

The plaintiffs argue that there is no basis for not holding the tortfeasor liable when LIGA makes its appearance, and that this is mentioned for “completeness” should the coverage of LIGA be applicable to this accident.

The LIGA law, LSA-R.S. 22:1375 et seq., requires any other available liability, UM, or medical expense coverage to be exhausted before the coverage |17provided to the insured of an insolvent insurer under the LIGA law is triggered. Since this damage award does not exceed the applicable insurance coverage under Fidelity’s policy, we need not reach this issue.

Accordingly, for the reasons assigned, we affirm the trial court’s judgment.

AFFIRMED.

      . Fidelity does not appeal the trial court’s judgment that coverage is excluded under the Liberty Mutual primary automobile liability policy.

      . See Footnote 1.

      . Though this case is postured as a workers’ compensation case, the principles of law are applicable here.

      . It is only because Reliance was placed in receivership and replaced with LIGA that the coverage questions here became issues.

      . Delaune v. Medical Center of Baton Rouge, 95-1190 (La.App. 1 Cir. 10/25/96), 683 So.2d 859; Matthews v. Ferrer, 95-0266 (La.App. 4 Cir. 11/30/95), 665 So.2d 1211; Ford v. State of Louisiana Through DOTD, 99-1297 (La.App. 3 Cir. 4/12/00), 760 So.2d 478; Detraz v. Hartford Accident & Indemnity Co., 94-708 (La.App. 3 Cir. 12/17/94), 647 So.2d 576.

      . Head v. Pendleton Memorial Methodist Hospital, 95-0461 (La.App. 4 Cir. 1/31/96), 669 So.2d 504.


source: Caselaw Access Project

author: LSUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Leon SIMMONS.
    No. 03-KA-20.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Leon Simmons.
    Panel composed of Judges JAMES L. CANNELLA THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   LSUSAN M. CHEHARDY, Judge.

On June 22, 1995, the Jefferson Parish Grand Jury indicted defendant, Leon Simmons, on one count of aggravated rape, in violation of La. R.S. 14:42, and one count of aggravated crime against nature, in violation of La. R.S. 14:89.1. On September 25,1995, defendant was arraigned and pled not guilty.

After a two-day trial which commenced on April 15, 1997, the twelve-member jury found defendant guilty as charged on both counts. On July 15, 1997, after denying defendant’s Motion for Post Verdict Judgment of Acquittal, the trial judge sentenced defendant to life imprisonment for aggravated rape and 15 years for aggravated crime against nature to run concurrently. The sentences were imposed without benefit of parole, probation, or suspension of sentence.

On December 12, 1997, defendant filed an untimely Motion for New Trial, which was subsequently denied. That same day, defendant also filed a Motion for Appeal, which was granted on October 22, 1999, almost two years after the motion was filed. On October 31, 2000, this Court dismissed defendant’s appeal as untimely and remanded the ease to the district court with instructions to grant defendant an “out of time” appeal. State v. Simmons, 00-286 (La.App. 5 Cir. 10/31/00)(not designated for publication). On December 30, 2002, the trial judge granted defendant’s out-of-time appeal.

| oFacts

In May of 1995, T.S., who was five-years-old at the time, lived with her mother, her younger sister, her younger brother, her uncle and her grandmother in a house on Lincoln Avenue in Marrero, Louisiana. On the afternoon .of May 12, 1995, she, her siblings, and her mother were taking a nap in the den of their home. The defendant, who lived in a car in front of the-victim’s house, was mowing the lawn at the victim’s grandmother’s request. Before they laid down for their nap, the victim’s mother checked to see if the defendant needed a glass of water but he told her that he did not need anything.

The victim’s mother testified that, although defendant did chores for her family sometimes, he was not allowed inside of the house. At some point that afternoon, however, the defendant, known in the neighborhood as “Bubby,” knocked on the window and the victim’s younger sister, who was three-years-old at that time, let him into the house.

When the victim got up to go to the bathroom, the defendant followed her into the bathroom and removed his clothes. According to the victim, the defendant put his “thing” into her mouth and “put it down there.” She remembered that she screamed but “Bubby” told her to stop screaming. Then, defendant took her into an unoccupied bedroom, removed her underwear, laid her on the bed, and put his “thing” in her mouth and “down there.” The victim said it “hurt bad” and that he hurt her “down there” with his “thing.” T.S. said her mouth and “down there” were not wet, but dry after these incidents.

She later stated that his “thing” was his “private” and pointed to her vagina to explain “down there.” The defendant also told her not to tell anyone what had happened.

| ¿That night after dinner and the children’s baths, the victim’s mother noticed that T.S. was “picking” at her bottom and “digging at her private.” When her mother asked about her behavior, the victim told her, “Bubby did me here.” After a brief search for defendant, the victim’s mother called the police.

In response to the report, Detective Michael Carroñe of the Personal Violence Unit of the Jefferson Parish Sheriffs Office went to the victim’s house to investigate. There, the victim recounted the incident for Detective Carroñe and identified “Bubby” as the perpetrator.

After T.S. gave her statement to Detective Carroñe, she and her mother were taken to Lakeside Hospital. There, she was examined by Dr. Scott Benton, who is an expert in general pediatric medicine and child abuse. During their initial interview, T.S. identified “Bubby” as the man that raped her.

After their interview, Dr. Benton performed a physical examination, which included collecting evidence for a rape kit, taking photographs of the victim’s genital area with a specialized medical camera, conducting a dye test to reveal abrasions on her genitalia, and taking a second set of photographs of the genital area after the dye test. Dr. Benton testified that his examination of the victim revealed injuries, which are indicative of recent, blunt penetration trauma.

On May 16, 1995, Detective Carroñe took the victim and her mother to the Jefferson Parish Children’s Advocacy Center, where the victim met with Omalle Gordon, an employee of the Gretna Police Department assigned to the Children’s Advocacy Center. During a videotaped interview with Ms. Gordon, the victim again identified “Bubby” as the perpetrator. Based on the sum of the information that he had received, Detective Carroñe swore out a warrant for defendant’s arrest.

After defendant was arrested, the matter proceeded to trial. At trial, the State presented testimony from Detective Car-roñe, Omalle Gordon, Dr. Benton, and the victim’s mother. T.S.’s mother stated that on the day in question, she did |Bnot see defendant in their house nor hear T.S. scream. She also stated that after that day, the victim had nightmares, would not play, and would not talk. The jury also viewed the videotaped interview of the victim conducted at the Children’s Advocacy Center.

At trial, the defendant called several witnesses, including the victim. He also testified on his own behalf. Because of her young age and the potential emotional distress, T.S. was allowed to testify via closed circuit television. She testified that her younger sister let “Bubby,” who knocked on the window, into the house while her family was sleeping in the den. He followed her into the bathroom and removed his clothes. He told her to stop screaming when she screamed loudly. She testified that the incident happened in her “mama’s room.”

The defendant also called Darrell Manuel, who testified that he and the defendant worked from 10:00 a.m. until 4:00 p.m. cutting down a tree for Darrell’s mother on May 12, 1995. He also stated that his mother’s house was at most four blocks from T.S.’s street. Defendant used Darrell’s mother’s lawnmower to cut lawns in the neighborhood.

On cross examination, Darrell admitted that, after the incident, defendant told him, in reference to an unidentified person, that the “p was good.” When asked to clarify, Darrell stated that defendant said that the “p — y was good.” Darrell thought defendant was referring to T.S.’s mother since defendant had “just got finished cutting grass from down [T.S.’s] street.” Darrell also admitted that he could not remember the exact date that they cut down the tree.

Percy Taylor, who is presently incarcerated with defendant, also testified. He stated that they were cutting grass on May 15, 1995 from about 8:00 a.m. until 2:00 or 3:00 p.m. at an apartment complex. He also testified that they cut grass for rithree days and he thought it was Friday, Saturday, and Sunday. He also admitted, on cross examination, that he did not know the defendant’s whereabouts after 3:00 p.m. on the afternoon in question.

Finally, defendant testified on his own behalf. He admitted to an extensive criminal history with seven felony convictions and two misdemeanor convictions. He admitted that he pled guilty to those charges because “they had me right on the charges.” He stated that he did not plead guilty to the present offenses because he did not commit these offenses.

He testified that, in May of 1995, he lived in a car in front of the victim’s house. He stated that he could have stayed in the house but he didn’t because T.S.’s mother was “a no good girl.” Defendant testified that, on the date in question, he and Percy Taylor were cutting grass in the projects, “nowhere around [the] area” that T.S. lived. He further stated that, after they finished about 3:30 p.m., they went to Chateau Ames to “get high” and he did not return to his car/house that night.

He testified that he did not cut the grass at the victim’s house on the date of the alleged attack but admitted that he cut their grass the day before. Strangely though, he testified that “the day [the victim’s mother] put the charge on me is not really the day that she claimed that I messed with the little girl.”

Defendant testified that he cut the victim’s front yard on Thursday, May 11, 1995 but he stopped when it started getting dark. Then he sat smoking in his car in front of the victim’s house, when he saw Duke Thomas, known as “Monkey Man,” leave the victim’s house. Defendant testified that Duke Thomas was shaking and very nervous when he left the victim’s house. Finally, he reiterated that he did not rape the victim.

After hearing the testimony and reviewing the evidence, the jury voted unanimously that defendant was guilty of aggravated rape and voted eleven to one |7that he was guilty of aggravated crime against nature. The trial judge declared the jury’s verdict legal.

On appeal, defendant asserts two assignments of error: first, that the evidence was insufficient to support the defendant’s conviction for aggravated rape and “aggravated carnal knowledge of a juvenile”[sic] when the medical evidence was inconclusive and the lay testimony unreliable and, second, that the trial court erred by not granting a mistrial after the State failed to give proper notice of evidence it intended to use at trial and this evidence contradicted a medical report previously submitted by the same doctor.

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Mayeux, 94-105 (La.App. 5 Cir. 6/28/94), 639 So.2d 828, 834.

If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. However, if the appellate court finds that the totality of the evidence was sufficient to support the defendant’s conviction, it must then determine whether the trial court erred in admitting the questioned evidence and, if so, whether the .trial court’s error requires a reversal of the conviction or was harmless. State v. Alexis, 98-1145 (La.App. 5 Cir. 6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La.10/13/00), 770 So.2d 339. Accordingly, we will first address defendant’s argument that the evidence was insufficient to support the jury’s verdict and, if necessary, his remaining assignments of error.

Defendant specifically contends that the State failed “to prove that a crime occurred, much less that the defendant was the perpetrator. He alleges the medical | «evidence was inconclusive. He also argues that the victim’s testimony was not reliable. The State replies that the medical evidence and videotaped and live testimony of the victim at trial was sufficient to satisfy the Jackson test.

In reviewing the sufficiency of the evidence, due process requires the reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988).

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 finding. State v. Stec, 99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243, p. 17 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 765 So.2d 1066.

19Pefendant was convicted of aggravated rape, which on the date of the offense was defined, in pertinent part, as:

[A] rape committed ... where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of ... knowledge of the victim’s age shall not be a defense.

Defendant was also convicted of aggravated crime against nature, which at the time of the offense, was defined, in pertinent part, as:

A. Aggravated crime against nature is crime against nature committed under any one or more of the following:
(1) When the victim resists the act to the utmost, but such resistance is overcome by force;
* * *
(6) When the victim is under the age of seventeen years and the offender is at least three years older than the victim.

In this ease, the State presented Dr. Scott Benton, an expert in pediatric medicine and child abuse, to testify regarding his examination of the victim. Dr. Benton testified that a general physical exam was conducted and no visible trauma was noted. Further, no bruises, lacerations, or wounds were found during the general physical exam. The examination revealed no trauma to the victim’s mouth or oral cavity.

Dr. Benton’s initial physical examination of the victim’s genital area revealed what appeared to be a normal hymen. After the vital dye test was performed and the victim’s genital area was illuminated with ultraviolet light, however, Dr. Benton observed two separate abrasions on the victim’s Imgenitalia, which he documented in his report. Dr. Benton concluded that these physical findings were consistent with the history of recent, blunt penetration trauma.

Further, pictures of the victim’s genitalia were taken before and after the vital dye test with a special camera called a coplescope. During his preparation for trial, Dr. Benton reviewed both sets of photographs of the victim’s vaginal area for the first time. After he reviewed the photographs taken after the dye test, he concluded that the lower part of the victim’s hymen was swollen, which seemed to contradict his earlier finding of a normal physical examination. At trial, Dr. Benton explained that his revised opinion regarding the victim’s swollen hymen was based on his review of the photographs taken after the dye test and also on experience and knowledge he had gained in the two years that had elapsed between the date he examined the victim and the date of trial.

In Dr. Benton’s opinion, because the injuries were isolated to a protected area of the genital region, the injuries occurred when the child’s legs were spread apart. He testified that it would take blunt penetration force to cause injury to the hymen, because of its location beneath three layers of defensive tissue.

Moreover, Dr. Benton testified that the injury to the hymen was recent because injuries to this part of the body heal “incredibly fast” and can actually heal within a day’s time. In his opinion, the injury to the hymen was a specific indicator of sexual abuse. Ultimately, he opined that, overall, the victim’s injuries were “highly suspicious” for “blunt penetration trauma, probably sexual assault.”

InOn cross examination, Dr. Benton testified that, in his report, he stated the child’s hymen was normally thin. He admitted that this finding was different from his trial testimony, wherein he stated the hymen appeared swollen. According to Dr. Benton, his conclusion that the hymen was swollen was reached after he viewed the photographs of the illuminated injuries after the dye test, which he had not seen prior to writing his initial report.

Dr. Benton admitted that he did not supplement his report with the current findings. He explained, however, that he did not refer to the report or pictures after the initial examination because T.S. did not return for her scheduled follow-up visit. Further, he was no longer consulting for the lead agency that he consulted for in 1995.

On cross examination, Dr. Benton conceded that it was “possible” the child’s injuries were caused by her “scratching and digging at herself’ but it “was not likely.” Dr. Benton also testified that the rape kit was negative for blood or seminal fluid. He noted, however, that his current agency “did one thousand two hundred rape exams last year and there were no positive rape kits.” He stated that, without DNA evidence, he could not specifically connect the defendant to the assault.

Here, defendant’s first claim in his argument that the evidence presented was insufficient is that the medical evidence was inconclusive. Defendant maintains that Dr. Benton could not say that the child’s injuries were not the result of the victim’s own actions in digging and scratching herself. However, the trial transcript reflects that, when this question was posed to Dr. Benton on cross examination, he responded “anything was possible” but “it was not likely.”

19, Next, he argues that no seminal fluid or blood was recovered from the victim. Initially, it is important to point out that emission is not necessarily an essential element of the crime of rape. La. R.S. 14:42(B). Moreover, as Dr. Benton testified at trial, the absence of these bodily fluids is not unusual in cases of child sexual abuse.

Next, defendant questions Dr. Benton’s conclusions in this case because, at trial, he deviated from the findings presented in his initial report and he did not file a supplemental report. When Dr. Benton was specifically questioned about the difference in his report and his trial testimony, he stated that his initial opinion was that the victim’s hymen was normal. After reviewing the photographs during his preparation for trial, some two years after the exam, however, he was able to see the swelling in the child’s hymen depicted in the photographs.

He also explained that he did not supplement his report with these findings for several reasons. First, Dr. Benton had no occasion to review the report and photographs prior to trial preparation because the child did not return for a follow-up visit as scheduled. Second, he no longer consults for the agency for which he had prepared the initial report.

Finally, defendant alleges that Dr. Benton could not say conclusively that there had been a “rape” and “carnal knowledge of a juvenile[sic].” First, these are legal conclusions to be reached by the jury and not medical conclusions to be drawn by this expert. La.C.Cr.P. art. 802(2); See, State v. Hughes, 02-2455, p. 7 (La.1/31/03), 841 So.2d 718(expert testimony is excluded if there is a risk that the evidence might usurp the jury’s province to determine defendant’s guilt or innocence). Moreover, Dr. Benton did testify that T.S.’s overall injuries were “highly suspicious” of 113“blunt penetration trauma, probably sexual assault.” In sum, we find no merit in defendant’s argument that the medical evidence was inclusive.

Defendant’s second claim in his insufficient evidence argument is that the victim’s testimony was unreliable. In the videotape and live testimony presented at trial, the victim recounted the events of May 12, 1995 as she remembered them.

She stated that her mother was going to take a nap with T.S. and her siblings. Before their nap, her mother asked the defendant if he needed anything because she was going to go to sleep and he said no. T.S. went to the bathroom. Defendant knocked on the window and T.S.’s little sister opened the door for him.

Defendant followed T.S. to the bathroom, locked the door and put his “thing” in her mouth. Defendant told T.S. not to tell her mother because he would hurt her. He took the child into her mother’s bedroom where he removed her underwear. He then put his “thing” in her mouth and “down there.” T.S. testified that his “thing” was “his private.” T.S. screamed when it happened. T.S. stated that defendant told her to shut up.

T.S. testified at trial that, when her mother woke up, defendant ran and he did not cut the grass any more. She said before this incident she liked defendant, but she does not like him any more.

Defendant alleges that there are inconsistencies in the child’s testimony about whether “Bubby” ran away or returned to cutting grass; whether the child went to school on the day of the assault; the location where the child’s mother and siblings slept that day; whether defendant ejaculated; and whether T.S. had been threatened. .

Although there may be slight inconsistencies in minor details of the events surrounding her attack, the child never wavered in her statement — to |14her mother, Officer Carroñe, Dr. Benton, Omalle Gordon, and, finally, at trial — that defendant put his “thing” in her mouth and “down there,” i.e. in her vagina. Further, the alleged discrepancies are not necessarily indicative of untruthfulness or incompetence. Rather, memory lapse and alleged inconsistencies may have resulted from the child’s tender age — 5-years-old — on the date of the incident; the traumatic nature of the experience; exposure to unfamiliar surroundings; or the method of interrogation. See, State v. Foy, 439 So.2d 433, 434 (La.1983).

Furthermore, Dr. Benton, an expert in child sexual abuse, stated that it is not unusual for a child to block such experiences from their memory because the level of trauma can cause a child to either forget or even fail to register certain events. We find defendant’s argument that the victim’s testimony was unreliable without merit.

Furthermore, at trial, the jury heard the testimony of the State’s and defense witnesses, including the victim and her examining physician. After weighing the testimony, the jury found the testimony of the victim and her examining physician more credible than that of the defendant. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Kinsel, 00-1610, p. 11 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, 537, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56; State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983); State v. Kinsel, supra.

In sum, viewing the evidence in the light most favorable to the prosecution, we conclude that the State presented sufficient evidence such that any rational trier of fact could find that the State proved the essential 11Belements of the crimes of aggravated rape and aggravated crimes against nature beyond a reasonable doubt. Defendant’s first assignment of error lacks merit.

In his second assignment of error, the defendant claims that “the trial court erred by not granting a mistrial after the State failed to give proper notice of evidence it intended to use at trial and this evidence contradicted a medical report previously submitted by the same doctor.” Specifically, defendant argues that the victim photographs admitted as evidence at trial should have been disclosed by the State. He argues that the failure to disclose the photographs prejudiced him because, if he had known of this evidence, he would have secured an expert to refute Dr. Benton’s findings allegedly based upon said photographs. In sum, defendant reasons that the trial judge first erred in admitting the photographs into evidence and, next, erred when he refused to grant a mistrial, after the State’s expert used the photographs at trial to support his conclusions of sexual abuse.

The State responds that defendant did not lodge a contemporaneous objection to the admissibility of the photographs until the close of the State’s case and did not move for a recess of the trial to secure an expert when he became aware of the photographs so he has waived any objection. Further, the State asserts that, even if there was a discovery violation, the defendant cannot demonstrate prejudice because, first, Dr. Benton’s report was sufficient to place defendant on notice that his findings indicated sexual abuse and, second, defendant was afforded extensive cross examination of the State’s expert at trial. Finally, the State responds that, even if their introduction was erroneous, it was harmless because the photographs constituted cumulative evidence.

In this case, defendant filed pre-trial discovery motions that particularly sought photographs in the State’s possession, control, or custody. Before trial, the State gave the defendant Dr. Benton’s report. The photographs in question were |1finot produced because the photographs were not attached to or referenced in Dr. Benton’s report.

On the second day of trial, defendant filed a written motion in limine seeking suppression of the photographs on the grounds that the pictures were “gruesome” and “highly inflammatory,” such that “the prejudicial effect outweighed the probative value.” At the hearing on defendant’s motion in limine, defense counsel notified the trial judge that she had not received a copy of the photographs during discovery.

The prosecutor told the trial judge that he did not know of the photographs until a “few day before trial” when he learned of the photographs during a meeting with Dr. Benton. Dr. Benton, however, would not allow him to have access to the photographs until he obtained a court order due to their sensitive nature and the nature of this case. At the hearing on the motion in limine, the prosecutor stated that he had not yet seen the photographs in question.

Defense counsel argued that, although she had not seen the photographs, she could infer that the vaginal photos must be “highly inflammatory” since the physician would not release them without a court order. She also alleged the photos gave the case a “different twist” and, now, she did not have the opportunity to secure an expert because of the late disclosure.

The prosecutor argued that the photographs would merely support the information contained in the medical report. Further, he argued that the report indicated two separate “abrasions” in the vaginal area indicative of sexual assault, which should have given defendant adequate warning to secure an expert.

The trial judge reserved his ruling until after he could conduct an in camera inspection of the evidence. After Dr. Benton arrived on the second day of trial, he produced the photographs, which the State presented to the trial court for inspection. After reviewing the two photographs, the trial judge stated:

|17I believe that the defense’s argument is that these photographs are gruesome and inflammatory in nature. In reviewing them, I find nothing which is in any way gruesome about the photographs. In fact, I would think they quite possibly unless someone is given a description of what is depicted in those photographs, I’m not sure that the average person would be able to recognize what is depicted in these photographs. And if there’s going to be medical testimony given in support of what these photographs depict, then I find nothing which would be inflammatory or prejudicial by allowing the Doctor to testify and use these photographs during the course of his testimony. And I see nothing at this time which would be prohibitive in them as far as them being introduced into evidence. However, there’s been no request to admit them, so I would reserve my ruling on the admission until the time the request is made.

Thereafter, the defendant lodged an objection.

During his trial testimony, Dr. Benton identified two photographs, which were admitted without defense objection as State’s Exhibits Nos. 4 and 5, as cople-scopic photographs taken by Dr. Benton of the victim’s genital area during his examination of the victim. Dr. Benton showed the jury that the victim’s hymen appeared swollen in one of the photographs, which is an indicator of recent blunt penetration trauma and also a specific indicator of sexual abuse in a very young child. He admitted that this specific genital injury had not been noted in his medical report.

Following Dr. Benton’s testimony and outside of the jury’s presence, the defendant moved for a mistrial. Defense counsel reiterated her allegation that the photographs were prejudicial. She also noted Dr. Benton’s trial testimony was contradictory to his report because, in his report, he said the hymen was normal but, at the trial, he said the hymen was swollen. Defendant contended Dr. Benton’s contradictory findings were based on the photographs. She further argued that, if had she seen the photos earlier, she would have been prepared to refute the doctor’s testimony. Finally she alleged that Dr. Benton’s medical report was not sufficient to alert her of what would happen at trial.

I isThe State responded that the testimony was not contradictory. The prosecutor also alleged that the report, which was three or four pages in length, contained sufficient information that Dr. Benton concluded T.S. was the victim of sexual assault to alert the defendant to employ an expert.

After reviewing Dr. Benton’s medical report, the trial judge denied defendant’s motion for mistrial, stating:

Basically, the report by Dr. Benton states in part, relative to the general exam, it makes reference to the clitoris being normal, the hymen being normal, without evidence of scarring and good posterior margins. It goes further to say that there were mild abrasions in the posterior faucet area and it concludes by stating that the doctor’s impressions — and I quote, “The physical exam revealed mild abrasions to the faca navicularus (phonetic) and posterior faucet. Samples of fluorescent materials were sent for sperm analysis. The abrasions are non-specific indicators supportive of history. The presence of sperm would be diagnostic of sexual assault.” Therefore, what I conclude from the testimony, from the report and from the photographs, is that there were examinations of more than one particular area beyond merely examining the condition of the child’s hymen in order to allow the doctor to make certain conclusions. Specifically, I’m referring to the examination of the areas which revealed the mild abrasions to the faca navicula-rus and the posterior faucet, which I’m sure the Doctor testified as to what these particular areas were, but my memory fails me now. However, I do consider that a part — and correct me if I’m wrong — of the genitalia or the genital area of this child. Now, if you all want to correct me and that is not a part of the genital area of this child, which was examined by the Doctor, then, feel free to correct me. As a result, I believe that the conclusions that the Doctor arrived at were not based solely on the condition of the hymen and you were given ample opportunity to question him on cross-examination relative to the difference which you state are contained in his report relative to the testimony he presented today, relative to the photographs. And I believe that’s going to be an issue which the jury will have to make a decision on. Therefore your request for a mistrial is denied. (Emphasis added).

Defense counsel objected.

On appeal, defendant argues that the State should have disclosed this evidence and, absent such a disclosure, the photographs should have been suppressed or a mistrial granted when the State’s expert used this evidence to form an opinion, which differed from that previously espoused in the medical report. |19 Initially, the State notes that defendant did not object to the photographs until after they were admitted into evidence and no objection was lodged to Dr. Benton’s testimony regarding the photographs.

Generally, an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841(A). The purpose of the contemporaneous objection rule is to put the trial judge on notice of the alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. State v. Thomas, 427 So.2d 428, 433 (La.1982); State v. Harris, 02-397, p. 25 (La.App. 5 Cir. 9/30/02), 829 So.2d 530, 539.

However, an exception to the rule exists when, as here, the objection is embodied in a written motion. La.C.Cr.P. art. 841(B); State v. Butler, 30,798 (La.App. 2 Cir, 06/24/98); 714 So.2d 877, 894. In the motion in limine filed and heard before Dr. Benton’s testimony in this case, defendant objected to the photographs on the basis that (1) they were not disclosed in discovery, (2) they were gruesome and highly inflammatory, and (3) the prejudicial effect outweighed the probative value. As such, we will address defendant’s claim that the trial court erred in allowing the introduction of the coplescopic photographs.

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the State’s case, and to allow a proper assessment of the strength of the State’s case. La.C.Cr.P. arts. 716-729; State v. Brazley, 97-2987, p. 3 (La.10/14/98), 721 So.2d 841, 842; State v. Dennis, 00-182, p. 10 (La.App. 5 Cir. 12/14/00), 777 So.2d 569, 572, writ denied, 01-0163 (La.11/21/01), 802 So.2d 629.

an La.C.Cr.P. art. 718 provides for discovery of documents and tangible evidence, including photographs, which are within the possession, custody, or control of the state when items sought are (1) favorable to the defendant and material and relevant to guilt or punishment; (2) are intended for use by the state as evidence at trial; or (3) were obtained from or belong to the defendant. State v. Ray, 423 So.2d 1116, 1118 (La.1982); State v. Ware, 01-194, p. 15 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 502. Discovery is not limited to what is contained in the district attorney’s file. State v. Lee, 531 So.2d 254 (La.1988).

The State has a continuing duty of disclosure and if the State, subsequent to ordered disclosure, discovers additional evidence or decides to use a particular item as evidence at trial, the State has a continuing duty to notify the defendant of the evidence and of its intended use at trial. La.C.Cr.P. art. 729.3; State v. Williams, 448 So.2d 659, 664 (La.1984).

In this case, defendant challenges the late disclosure of specifically-requested evidence, which the State intended to use at trial. He argues that the State had “control” of the evidence for two years and failed to disclose it timely.

While we agree that the cople-scopic photographs were subject to the State’s continuing duty to disclose evidence, we do not agree that the State had control of the evidence for two years before trial. Here, the prosecutor stated that he learned of the existence of the photographs in a meeting with Dr. Benton the Friday before trial. The prosecutor did not know that photographs were often taken during sexual examinations of this type. Additionally, he indicated that he was not alerted to the existence of the photographs since no mention was made of them in the medical report.

Moreover, at the hearing on the motion in limine on the beginning of the second day of trial the prosecutor had not seen the photographs and did not have | ¡^possession of them. Importantly, defense counsel, upon filing her written motion, stated that the prosecutor told her about the photographs on the previous day, just two business days after he learned of their existence.

Furthermore according to the prosecutor, Dr. Benton, who was in possession of the photographs, refused to release the photographs without a court order. The prosecutor apparently secured the necessary order, pursuant to which Dr. Benton produced the photographs on the day he testified at trial.

Since the prosecutor could only obtain the evidence by a court order, we find that this evidence was not under his “control” for two years. Further, we find that when he became aware of its existence, he took steps to secure the evidence and promptly notified opposing counsel of its existence. Thus, we agree with the trial court’s implicit ruling that the State did not commit a discovery violation.

Defendant also argues that there was an obligation for the prosecutor to learn of the existence of this evidence, relying on Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). We find his reliance is misplaced.

In Kyles, the prosecution failed to disclose eyewitness and informant statements, as well as police investigation information, that was favorable to the defendant and material to his guilt. On the basis that the undisclosed evidence was both “favorable” and “material,” the United States Supreme Court reversed the defendant’s conviction. In this case, the defendant has not shown that the photographs were “favorable” or “material,” thus triggering a prosecutorial obligation to learn of their existence. We find no merit in this contention.

Defendant contends the photographs’ late disclosure warranted sanctions, such as suppression, and absent that remedy, a mistrial should have been granted. The trial court has wide discretion in fashioning a remedy for what it perceives to be a discovery violation. State v. Black, 34,688, p. 22 (La.App. 2 Cir. 5/9/01), 786 So.2d 289, 298.

gg Here, we note that the trial judge did not find that the State had committed a discovery violation. Further, we do not find that the State committed a discovery violation in this case, which would warrant a remedy. Accordingly, the trial judge did not abuse his discretion when he refused to suppress the photographs or grant a mistrial. Additionally, reversal is not warranted because, due to the cumulative nature of the information contained in the photographs, there has been no showing that substantial prejudice deprived defendant of a fair trial. In sum, defendant’s second assignment of error also lacks merit.

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 812 So.2d 387 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found the following errors patent, which require remand. First, the trial judge did not advise the defendant of the appropriate prescriptive period for filing post-conviction relief as required by La.C.Cr.P. art. 930.8. Second, defendant was convicted of La. R.S. 14:42 and La. R.S. 14:89.1, which are both defined as “sex offenses.” La. R.S. 15:540 et seq. requires registration of sex offenders. The trial judge did not, however, provide the defendant with written notification of the registration requirements of La. R.S. 15:542, as required by La. R.S. 15:543(A).

We remand, therefore, in order for the trial court to inform defendant of the applicable prescriptive period provided by La. C.Cr.P. art. 930.8. and the registration requirements of La. R.S. 15:542 by sending appropriate written notice to defendant •within ten days of this opinion, and to file written proof in the record that defendant received such notice. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141, 1153; State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165.

^CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR COMPLIANCE WITH LA. C.CR.P. 930.8 AND LA. R.S. 15:524

      . In accordance with La. R.S. 46:1844(3), the victim, who is a minor, and her family will be referred to by their initials to protect the victim’s identity.

      . In the interest of completeness, defense counsel asked this witness about events that transpired on May 15, 1995, which was not the date of the alleged incident. According to other testimony, the incident was reported the same date that it allegedly occurred, which was Friday, May 12, 1995.

      . La. R.S. 14:42.

      . La. R.S. 14:89.1.

      . Crime against nature occurs when there is unnatural carnal copulation by a human being with another of the opposite sex, when the genital organ of at least one person is used. La. R.S. 14:89.

      . The medical report was not filed into evidence and does not appear in the record on appeal. At trial, Dr. Benton testified that the abrasions were adjacent to the victim’s hymen and in the area between the vagina and the anus.

      . At the close of the State's case, defendant did lodge an objection to the photographs.

      . Trial commenced on Tuesday, April 15, 1997.


author: |,SOL GOTHARD, Judge.

text:
    RICHARD BERRY & ASSOCIATES, INC., v. John BRYANT, Tammy Bryant, Greg Campbell, Janine Day, Jennifer Flattman And Mary Leblanc.
    No. 03-CA-106.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Jeffrey A. Schwartz, Audrey N. Browne, Watkins Ludlam Winter & Stennis, P.A., New Orleans, LA, for Defendant/Appellant.
    David M. Whitaker, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiffs/Appellees.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |,SOL GOTHARD, Judge.

Plaintiff, Richard Berry & Associates, Inc. (Berry), appeals a trial court judgment that denied its request for a preliminary injunction against defendants, John Bryant, Tammy Bryant, Greg Campbell, Janine Day, Jennifer Flattman and Mary Leblanc. For reasons that follow, we affirm.

FACTS

Berry is a corporation operating as a general real estate broker. Each of the defendants individually executed a “Broker-Independent Contractor Agreement” with Berry to sell and lease real estate. Contained in each of the agreements is a non-compete clause that reads as follows:

It is agreed that the Independent-Contractor will refrain from carrying on or engaging in the real estate marketing, brokerage, sale or similar business to that performed by the Broker and also from soliciting customers of the broker within the parishes of Orleans, Jefferson and Plaquemines for a period of two years from the date the Independent-Contractor leaves the Broker’s company. This clause shall survive termination of this agreement and prohibits the engagement by IndependenWCon-tractor in any business directly or indirectly which competes with that of the broker.

Berry filed a Petition for Preliminary and Permanent Injunction seeking to prevent the defendants, all former real estate agents for Berry, from working as real estate sales agents for other companies based on the above cited clause. Defendants filed a peremptory exception of no cause of action. The matter came before the trial court for a hearing. The trial court found the non-compete clause was unenforceable. Accordingly, the court denied the request for a preliminary | ainjunction and declared the exception of no cause of action moot. Plaintiff appeals that judgment.

Plaintiffs argument is based on La. R.S. 23:921, which provides in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall b„e null and void.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

In deciding the issue at bar, the trial court relied on SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. In SWAT 21, the Louisiana Supreme Court considered the proper interpretation and application of La. R.S. 23:921, relating to non-competition agreements. The Supreme Court interpreted the limited exception found in 23:921(C) “to the general nullity of such agreements to apply only to those agreements in which the employee agrees to refrain from carrying on or engaging in his own business similar to that of the employer.” Id. 808 So.2d at 296. The plaintiff in SWAT 2k is a construction company specializing in insurance restoration work following disasters. Defendant, Bond, is a former employee of plaintiff who worked as a carpenter’s helper, and was later promoted to production manager. With the promotion came an employment contract that included a non-competition clause that provided that ^defendant could not “directly or indirectly, engage in competition with SWAT 24 Shreveport Bossier, Inc. or serve as an officer, employee, director, agent or consultant of any business, which is in direct or indirect competition with SWAT 24 Shreveport-Bossier, Inc.” Bond resigned his position with SWAT 24 and took a position with National Restoration Sendees. SWAT 24 filed a petition for in-junctive relief that was denied by the trial court based on the finding that the language in the non-competition clause went beyond the limited exceptions of La. R.S. 23:921(C). The Court of Appeal affirmed the judgment and the matter was taken up by the Supreme Court to resolve a split in the circuits as to the interpretation of the statute. The Supreme Court held that the exception in La. R.S. 23:921(0 only allows an agreement that prohibits an employee from leaving and beginning his own similar business in competition with his original employer.

This Court has recently followed SWAT 24, supra in Bail Bonds Unlimited, Inc. v. Chedville, 01-1401 (La.App. 5 Cir. 10/29/02), 831 So.2d 403; writ denied, 02-2913 (La.2/07/03), 836 So.2d 104. In Bail Bonds Unlimited, plaintiff filed a petition for injunctive relief charging that various defendants, who were fugitive recovery agents formerly in the employ of plaintiff, were in violation of a non-competition agreement. At the time of the institution of the lawsuit, the defendants were employed by Steve’s Bail Bonds, a competitor of Bail Bonds Unlimited. The trial court denied the injunctive relief and this Court affirmed, based on the holding in SWAT 2b.

In the instant case, Berry argues that the facts are distinguishable from those of SWAT 2b in that the defendants herein are independent contractors and not employees. Berry maintains that the portion of the statute at issue in SWAT 2b concerns employees and not independent contractors. Berry argued unsuccessfully in the trial court that the holding in SWAT 2b does not apply to independent ^contractors. Berry cited a separate section of La. R.S..23:921(C) which provides as follows:

.An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to that of the business of the person with whom the independent contractor had contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

In reasons for judgment, the trial court stated it found that independent contractors were also controlled by the holding in SWAT 2b- The trial court relied on the statutory language providing that non-compete agreements may be entered into by an independent contractor “on the same basis as if the independent contractor were an employee.” The trial court also noted that the language used in that part of the statute, which states “carrying on or engaging in a business similar,” is identical to the part of the statute that relates to employees. In conclusion, the trial court found:

.Because the Supreme Court interpreted and defined that language as it applies to employees, this Court believes that the same interpretation and definition also applies to independent contractors. They are to be treated, pursuant to the statute, “on the same basis as if the independent contractor were an employee ...” No distinction is made between the treatment of an employee and the treatment of an independent contractor.”

We find the reasoning of the trial court to be consistent with the rationalization of the final holding in SWAT 2b. In SWAT 2b we are reminded that the main objective of La. R.S. 23:921is to clearly establish that the public policy of this state disfavors non-competition agreements. Id. 808 So.2d at 305. The exceptions to that rule must be strictly construed in accordance with general law on statutory interpretation. Given the interpretation of the statutory language in SWAT 2b, by which we are bound, we find the trial court did not err in its ruling. Accordingly, we affirm the judgment appealed.

AFFIRMED.


author: | THIBODEAUX, Judge.

text:
    F.M. “Butch” ROBERSON & Pamela Roberson v. LAFAYETTE OILMAN’S SPORTING CLAYS SHOOT, INC., et al. F.M. “Butch” Roberson & Pamela Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., et al.
    Nos. 02-1275, 02-369.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    John A. Bivins, Roy, Bivins, Judice Roberts & Wartelle, Lafayette, LA for Defendants/Appellants, Lafayette Oilman’s Sporting Clays Shoot, Inc., First Financial Insurance Company, Doss Bourgeois, and Ronald Tate.
    L. Donald Foreman, Lake Charles, LA, for Plaintiffs/Appellees, F.M. “Butch” Roberson and Pamela Roberson.
    Dean Joseph Guidry, Lafayette, LA, for Defendant/Appellee, Jay Broussard.
    E. Gregory Voorhies, Lafayette, LA, for Defendant/Appellee, Charles Hohorst.
    M. Kevin Queenan, DeSoto, TX, for Plaintiffs/Appellees, F.M. “Butch” Roberson and Pamela Roberson.
    Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD, and GLENN B. GREMILLION, Judges.
   | THIBODEAUX, Judge.

Defendants, Lafayette Oilman’s Sporting Clays Shoot, Inc. (“Lafayette Oilman’s”), First Financial Insurance Company (“First Financial”), Doss Bourgeois, and Ronald Tate, appeal the trial court’s judgment denying defendants’ exceptions of improper venue and prescription. Suit was filed in St. Martin Parish. The defendants claim Lafayette is the proper venue. The trial court found that the doctrine of equitable estoppel was applicable in this case and, as a result, plaintiffs’, F.M. “Butch” Roberson and Pamela Roberson, claims were not barred by defendants’ exceptions.

We agree. We find that, under the particular facts of this case, defendants are estopped from denying venue.

I.

ISSUES

We shall consider whether the trial court erred in denying defendants’ exceptions of improper venue and prescription and in granting plaintiffs’ request for es-toppel?

II.

FACTS

On October 9,1999, Mr. Roberson, while attending a Louisiana Sporting Clays shooting event, fell approximately 20 feet from a skeet tower, receiving severe injuries including a multiple compound fracture of his leg.

On October 6, 2000, Mr. Roberson filed a personal injury action against the defendants in St. Martin Parish. Mr. Roberson maintained that St. Martin Parish was the proper venue to assert his claim based on the address contained in Louisiana | ^Sporting Clays Corporation’s initial report on file with the Secretary of State and on all of its other correspondence. The address was 790 Lake Martin Road, Breaux Bridge, Louisiana. According to the plaintiff, the City of Breaux Bridge lies entirely within St. Martin Parish. The Robersons concluded that St. Martin Parish was the proper venue to pursue their claim.

After suit was filed, the defendants challenged the plaintiffs’ choice of venue. Though Louisiana Sporting Clays operated its business activities from a mobile home on the shooting range’s property and received all mail at the Breaux Bridge address, its physical location was in Lafayette Parish, rather than St. Martin Parish.

Defendants filed an exception of improper venue, alleging that the plaintiffs wrongfully filed suit in violation of La. Code Civ.P. art. 42(2), which requires that “an action against a domestic corporation ... shall be brought in the parish where its registered office is located.” Defendants argued that venue was improper in St. Martin Parish since the accident did not occur there and the corporation is located in Lafayette Parish. Further, none of the defendants were domiciled in St. Martin Parish.

Additionally, defendants filed a peremptory exception of prescription, alleging that service of process was not timely. Mr. Roberson’s date of injury was on October 9, 1999. Service of process was made upon the defendants after October 9, 2000, more than one year from the date of the plaintiffs accident. Since venue was improper and service was late, Mr. Roberson’s cause of action had prescribed.

In response to the defendants’ exceptions, the Robersons maintained that the defendants were equitably estopped from taking the position that the plaintiffs’ claim had prescribed for improper venue. The Robersons argued that they relied on 13the representations made by the defendants in their communications and in its documents on file with the Secretary of State that its registered office was in Breaux Bridge, Louisiana, St. Martin Parish.

On or about February 26, 2002, the trial court entered judgment in favor of the Robersons. The court found that the plaintiffs reasonably relied on the defendants’ representations that its registered office was located in Breaux Bridge. Further, the plaintiffs detrimentally relied on the defendants’ representations such that the doctrine of equitable estoppel was applicable. * “In the interest of justice,” the trial court transferred this case to the Fifteenth Judicial District Court, Lafayette Parish pursuant to Louisiana Code of Civil Procedure Article 121.

Defendants, Lafayette Oilman’s, First Financial, Mr. Bourgeois, and Mr. Tate, appeal the trial court’s judgment. .

in.

LAW AND DISCUSSION

Appellants argue that the trial court wrongfully denied its exceptions of improper venue and prescription based on the doctrine of equitable estoppel. We disagree.

A domestic corporation is to be sued in the parish where its registered office is located. La.Code Civ.P. art. 42(2). A corporation is required to report its location and mailing address of its registered office to the Secretary of State. “Every corporation shall continuously maintain an office in the state, to be known as its registered office. The location and post office address of the original registered office shall be stated in the initial report.” La.R.S. 12:104. Further, if venue is proper as to the corporation under La.Code Civ.P. art. 42(2), then it is also proper as to all parties under La.Code Civ.P. art. 73 who are joint or solidary obligors. Thus, if venue was Lproper for Louisiana Sporting Clays Corporation, venue was also proper as to First Financial, Mr. Bourgeois, and Mr. Tate. Defendants argue that St. Martin Parish was never a proper venue for plaintiffs to initiate suit. While the corporation’s address of its registered office was in Breaux Bridge, which St. Martin Parish encompasses, the actual location once surveyed determined that the shooting range, in fact, sat in Lafayette Parish. Thus, if defendants’ argument is established, then plaintiffs never had proper venue to begin with as to the corporation nor to the other defendants, neither of whom were St. Martin Parish domiciliaries. Thus, plaintiffs’ claim had prescribed.

This case involves an unusual set of circumstances, and we must examine the facts closely. Essentially, plaintiffs’ argument is that the filings with the Secretary of State are “proof positive” of a corporation’s address and location and can be reasonably relied upon to establish venue. Additionally, plaintiffs maintain that the defendants are estopped to deny plaintiffs’ claim, because of Louisiana Sporting Clays’ statements to the Secretary of State, that venue is proper in St. Martin Parish. Because we find that plaintiffs’ estoppel argument subsumes their argument that one can reasonably rely on a corporation’s address on file with the Secretary of State to establish proper venue, we will examine the doctrine of equitable estoppel to resolve this matter and to determine if the trial court committed manifest error in denying defendants’ exceptions.

Equitable estoppel or ‘estoppel in pais’ can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reb-anee; and (3) a change in position to one’s detriment because of the reliance.

Elliott v. Catahoula Parish Police Jury, 02-9, p. 1 (La.App. 3 Cir. 5/8/02); 816 So.2d 996, 997 (quoting Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La.1975)).

In Morris v. Friedman, 94-2808, p. 9 (La.11/27/95); 663 So.2d 19, 25, the supreme court further elaborated on this issue: “[A] party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Further, estoppels are not favored in our law, and properly apply only as to representations of fact.... Finally, ‘[ejquitable considerations and estoppel cannot be permitted to prevail when in conflict with the positive written law.’ ”

Taking all the above rules of law into consideration in conjunction with the fourth circuit’s analysis in Major v. Telerecovery of Louisiana, Inc., 99-1935 (La.App. 4 Cir. 11/17/99); 748 So.2d 523, which we find is dispositive of this issue, the doctrine of equitable estoppel is applicable in this specific case.

Defendants provided to the Secretary of State that its registered office was located at 790 Lake Martin Road, Breaux Bridge, Louisiana. Mr. Charles Hohorst, owner of Louisiana Sporting Clays, Inc., testified that even when he applied for a postal address in Lafayette, he was informed that he would use the Breaux Bridge Post Office and that the address was designated in Breaux Bridge, Louisiana.

Q. Did you have a mailbox at the location where this shooting range was?
A. We had a mailbox off the side of the road, across the road, from the entrance to the Gun Club.
Q. Did you have an employee who worked at the premises?
A. Yea, we had a manager, Clayton Phillips.
Q. And he worked at the premises where the mobile home was?
LA. Correct.
Q. And so you received your mail across the street?
A. Right. I think the address was 790 Lake Martin Road. We received mail there and if any mail other than that, that required a pickup, was picked up at the Breaux Bridge Post Office facility.
Q. And you had, in fact, picked up mail at Breaux Bridge from time to time?
A. From time to time. Not that often, but at times we would do it.
Q. Okay.
A. It was assigned to us, I think, out of Lafayette.
Q. You were assigned an address?
A. We were assigned, because of the routing, the mail delivery service in that area, even though it was in Lafayette Parish, the Club—
A. The Lafayette Post Office assigned us for any pickup, other than was going to the 790 address on Lake Martin Road, to pick it up in Breaux Bridge, because of the Zip Code, 70510. That particular road, I think, is a Baton Rouge [sic] Zip Code. So they said you had to go over there to Breaux Bridge.

Further, we find that the defendants could have informed the Secretary of State that its physical location was in Lafayette Parish, as opposed to St. Martin Parish, though the address states Breaux Bridge, Louisiana. In fact, defendants are required to report to the Secretary of State any changes in address. “After incorporation, a change in the location of the registered office may be authorized at any time by the board of directors. Within thirty days after the change is made, notice of the change ... shall be filed with the secretary of state in which the new office is located.” La.R.S. 12:104(B)(1). Though this particular statute does not specifically |7address the circumstances presented in this case, we can properly deduce that the Secretary of State should be informed of any changes concerning the address and location of a corporation, including the necessity for clarifying the parish to which the registered office lies if there is the potential for dispute. After all, this is an official record that ordinary citizens rely on as valid information. Thus, we find that defendants’ conduct or words represented to the plaintiffs that the situs of its registered office was in St. Martin Parish, based on the Breaux Bridge address.

Additionally, plaintiffs were fully justified in relying upon the Secretary of State’s documentation which would lead the plaintiffs to conclude that St. Martin Parish was the proper venue to bring suit against the corporation. Several documents submitted to and issued by the Secretary of State by and on behalf of Louisiana Sporting Clays, Inc., utilized the Breaux Bridge address. If a citizen cannot rely on the Secretary of State’s filings for accuracy, we are hard pressed as to what documents constitute an official source for public information. As a result, we find that plaintiffs were justified in relying on the Secretary of State’s records.

Additionally, plaintiffs’ changed their position as a result of relying on the Secretary of State’s records. If not for these records, which are based on representations made by the corporation, plaintiffs may have pursued the venue issue further. Again, these records are official and reasonably relied upon by the public. Short of surveying the land, we find that there was no reasonable means by which the plaintiffs could have known that the address on file with the State would demonstrate that the property was located in Lafayette Parish. In fact, plaintiffs did not even realize that venue was at issue until after suit was filed. A corporation’s initial report filed with the Secretary of State’s constitutes an official record. Granted, these reports are only as correct as to the statements provided by the corporation. In Major, |sthe fourth circuit stated that “the parish of the registered office is determined by [the] filings with the Secretary of State than the filings with the parish mortgage records.” Major, 748 So.2d at 525. Moreover, we find that plaintiffs changed their position as they relied on the Secretary of State filings.

We are cognizant of the fact that equitable estoppel in this state is not favored, and is a doctrine of last resort that should not be used if the plaintiffs had the means to ascertain the parish of proper venue of the corporation. However, defendants have not shown this court that the plaintiffs had the means to determine that St. Martin Parish was not a proper venue. This exception to estoppel taken from the supreme court’s analysis in Morris fits the facts of that case because there was positive written law concerning the statute of fraud which was equally accessible to both parties. However, we do not find that there was positive written law that was equally accessible to either party on this issue presented before us in this case. As a result, we find that defendants are es-topped to deny plaintiffs’ claims for improper venue and prescription.

The trial court transferred this case from St. Martin Parish to Lafayette Parish based on La.Code Civ.P. art. 121 which provides that “[w]hen an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.” The trial court implicitly recognized St. Martin Parish as an improper venue. St. Martin Parish indeed is a parish of improper venue. However, because of our application of the doctrine of equitable estoppel, the defendants are precluded from challenging the inappropriateness of this venue. We find that equitable estop-pel does not transform St. Martin Parish into a proper venue. We conclude only that defendants may not challenge this venue. Thus, the trial court was proper in exercising its discretion | Bunder Article 121 in transferring this case to Lafayette Parish, the actual physical location of Louisiana Sporting Clays, Inc.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court, holding that defendants are estopped to deny plaintiffs’, F.M. “Butch” Roberson and Pamela Roberson, cause of action for improper venue and prescription, is affirmed in all respects.

All costs of this appeal are assessed against the defendants, Lafayette Oilman’s Sporting Clays Shoot, Inc., First Financial Insurance Company, Doss Bourgeois, and Ronald Tate, as joint and solidary obligors.

AFFIRMED.


author: THIBODEAUX, Judge.

text:
    F.M. “Butch” ROBERSON & Pamela Roberson v. LAFAYETTE OILMAN’S SPORTING CLAYS SHOOT, INC., et al. F.M. “Butch” Roberson & Pamela Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., et al.
    Nos. 02-369, 02-1275.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      John A. Bivins, Roy, Bivins, Judice Roberts & Wartelle, Lafayette, LA, for Defendants/Appellants-Lafayette Oilman’s Sporting Clays Shoot, Inc., First Financial Insurance Company, Doss Bourgeois, and Ronald Tate.
    L. Donald Foreman, Lake Charles, LA, M. Kevin Queenan, DeSoto, TX, for Plaintiffs/Appellees-F.M. “Butch” Roberson and Pamela Roberson.
    Dean Joseph Guidry, Lafayette, LA, for Defendani/Appellee-Jay Broussard.
    E. Gregory Voorhies, Lafayette, LA, for Defendant/Appellee-Charles Hohorst.
    Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, Judge.

For the reasons discussed in the consolidated appeal of F.M. “Butch” Roberson & Pamela Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., et al., 02-1275 (La.App. 3 Cir. 4/30/03); 845 So.2d 1267, defendants’ writ of certiorari and/or review is denied. The judgment of the trial court, holding that defendants are estopped to deny plaintiffs’, F.M. “Butch” Roberson and Pamela Roberson, cause of action because of improper venue and prescription, is affirmed in all respects.

All costs of this writ in docket number 02-1275 are assessed against the defendants, Lafayette Oilman’s Sporting Clays Shoot, Inc., First Financial Insurance Company, Doss Bourgeois, and Ronald Tate, as joint and solidary obligors.

WRIT DENIED.