author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Bobby Ray YOUNG, Appellant.
    No. 37,673-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2003.

      Peter J. Black, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Michael W. Powell, J. Thomas Butler, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and TRAYLOR (Pro Tempore), JJ.
   WILLIAMS, J.

The defendant, Bobby Ray Young, was charged with possession of a controlled dangerous substance, to-wit: cocaine, a violation of LSA-R.S. 40:967(C). After a jury trial, the defendant was found guilty as charged. The trial court adjudicated the defendant a second felony offender and imposed a sentence of eight years imprisonment at hard labor without the benefit of probation, parole, suspension of sentence or good-time credit, to be served consecutively with any other sentence imposed. Defendant’s motion to reconsider sentence was denied. Defendant appeals his conviction and sentence. . For the following reasons, we affirm.

FACTS

On September 13, 2000, at approximately 11:15 p.m., Shreveport Police Department Street Level Interdiction Unit (SLIU) Agents, Corporals M.D. Davis, B. Wheeler and J. Silva, responded to a complaint of illegal narcotic sales at a house located on the corner of Havanna and Gar-donia Streets. Upon arrival at -Havanna Street, the agents observed a white Cadillac parked on the wrong side of the roadway facing west on Gardonia Street. A male on a bicycle was leaning into the Cadillac’s driver’s side window. As the agents approached the scene, the Cadillac drove westbound on Gardonia Street. The agents pursued the Cadillac, while another unit stopped the individual on the bicycle for questioning. The driver of the Cadillac was later identified as the defendant. .

The agents continued to follow the Cadillac and noticed the vehicle did not have working brake lights. As the defendant turned onto Shreveport-Blanchard Highway, Agent Davis, the driver of the police unit, activated the emergency lights and siren to conduct a traffic stop for no brake lights. The defendant traveled approximately 300 yards before he came to a stop in the 4400 block of the highway. When the defendant stopped his vehicle, Agent Davis approached the passenger side of the vehicle and asked the defendant for his driver’s license. While Agent Davis waited for the defendant to produce his license, Agent Wheeler noticed a semi-automatic handgun partially concealed between the defendant’s right leg and the center console. When the defendant heard Agent Wheeler notify Agent Davis of the handgun, the defendant put the vehicle in drive and fled from the scene.

The agents returned to their vehicle and pursued the defendant. The defendant stopped his vehicle at his mother’s residence on David Raines Road. After the defendant, exited the vehicle and began running, Agent Davis issued a verbal command for him to stop. The defendant disregarded the command and ran up the stairs onto the porch of the residence. When Agent Wheeler attempted to apprehend the defendant, a struggle ensued. The defendant cursed and threatened the officers. As Agents Davis and Wheeler attempted to handcuff the defendant, Agent Wheeler observed the defendant place his right hand into the breast pocket of his T-shirt. Agent Wheeler later determined that the item was a plastic bag containing contraband. A field test revealed that the plastic bag contained 14 grams of crack cocaine, with a street value of $1400. Subsequently, the agents searched the scene of the initial stop and located the defendant’s handgun, which was lying on the roadway in the 4400 block of ShreveporNBlanehard Highway.

After a jury trial, the defendant was found guilty of possession of cocaine. Thereafter, the state filed a habitual offender bill of information charging defendant as a third felony offender. The bill of information reflected that the defendant had two prior convictions of possession of cocaine.

After a hearing, the trial court denied the defendant’s motions for new trial and judgment of acquittal. Pursuant to a plea agreement with the state, the defendant admitted that he was a second felony offender and waived his right to a formal hearing. The trial court adjudicated the defendant a second felony offender and sentenced him to serve eight years at hard labor without the benefit of probation, parole, suspension of sentence or good-time credit. Defendant appeals his conviction and sentence.

DISCUSSION

Assignment of Error Number One:

By this assignment of error, the defendant contends the trial court erred in denying his motion for continuance, and thereby, forcing him to proceed to trial unprepared. Defendant urges the trial court should have conducted a hearing to address his complaints with regard to his court-appointed trial counsel. He argues that because of the trial court’s adverse ruling on this issue, he was effectively denied the right to present a defense and to due process of law. Finally, the defendant argues that his complaints with regard to his trial counsel are substantiated by the fact that he was required to individually prepare and file certain pre-trial motions with the trial court.

As a general rule, a claim of ineffective assistance of counsel is more properly presented by an application for post-conviction relief than on appeal, since that procedure allows the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123; State v. Milligan, 28,660 (La.App.2d Cir.12/11/96), 685 So.2d 1127, reconsideration denied, 97-0379 (La.6/30/97), 696 So.2d 1005. In the interest of judicial economy, however, the issues may be resolved on direct appeal if the record contains sufficient evidence pertaining to the matter. State v. Jordan, supra.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). In alleging ineffective assistance of counsel, a defendant must satisfy a two-pronged test by showing first, that his attorney’s performance was so deficient as to deny him the “counsel” guaranteed by the Sixth Amendment and second, that those errors were so serious as to deprive the accused of a fair trial, i.e., one with a rehable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Grissom, 624 So.2d 476 (La.App. 2d Cir.1993). In order to prevail under the Strickland test, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). Also, a reviewing court must give great deference to the trial attorney’s [.judgment, tactical decisions and strategy, strongly presuming the accordance of reasonable professional assistance. Strickland, supra; State v. Moore, supra.

In State v. LeBeau, 621 So.2d 26 (La.App. 2d Cir.1993), the defendant complained that his appointed trial counsel had “very few” meetings with him. This Court, citing Murray v. Maggio, 736 F.2d 279 (5th Cir.1984), held that the brevity of consultation time alone cannot support an ineffective assistance of counsel claim. In Murray, defense counsel spoke with his client once for approximately 20 minutes. However, this court noted that in Murray, just as in LeBeau, the case was not complicated and the facts could have been discussed in a short time frame. Additionally, this Court found that LeBeau had not demonstrated how more meetings with his counsel would have benefitted his defense, either through the production of additional evidence or otherwise. Furthermore, this Court stated that the record was adequate to resolve specific complaints of ineffective counsel without requiring defendant to seek post-conviction relief.

In State v. Jordan, supra, this Court applied the two-prong test of Strickland to determine whether defendant’s claim of ineffective assistance of counsel had merit. Citing State v. Moore, supra, this Court stated that the assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Id.

In State v. Johnson, 34,009 (La.App.2d Cir.1/24/01), 778 So.2d 706, the defendant complained that his .attorney had not visited him, had not provided him with copies of discovery documents and had not informed him of his trial strategy. This Court concluded that the record in that case contained sufficient evidence to resolve the issue of ineffective assistance of counsel, and that the trial court was not clearly wrong in finding that defense counsel maintained adequate contact with the defendant.

In the present case, the defendant asserts that his court-appointed counsel did not discuss a trial strategy with him and failed to discuss his case with him at all prior to trial. The defendant strongly urges that since his trial counsel did not refute his allegation of ineffective assistance of counsel on the record, his argument has merit.

The record shows that on the morning of March 5, 2001, the date scheduled for trial, the defendant notified the trial court that he was not ready to proceed during the following colloquy: .

THE COURT: Mr. Vergis, are you ready for trial?
MR. VERGIS: Yes, Your Honor.
THE DEFENDANT: Ain’t no way we’re ready for trial. This man here ain’t discussed no trial strategy or nothing. We ain’t talked about nothing about no trial. We talked about 15 years.
THE COURT: Have you shared with the defendant discovery that’s been provided to you by the State?
MR. VERGIS: Yes, Your Honor.
THE COURT: Mr. Young, unless there’s some resolution of the matter this afternoon, I will see you tomorrow morning at 9:00. Next matter.
THE DEFENDANT: I want to object now being forced to go to trial with this attorney.
THE COURT: Your objection is noted for the record. The record will reflect that your objection is noted that you don’t think you are ready for trial.
THE DEFENDANT: I don’t think.
THE COURT: Mr. Vergis had some witnesses here this morning and I instructed them to be back at 1:30. Those witnesses — raise your hand if you’re back in this case, State versus Bobby Young. Raise your |7hand if you’re a witness in this matter. I believe it was your mother and two other persons that were here this morning.
THE DEFENDANT: I went in the hospital. He ain’t got none of them doctor’s at the hospital. I want all them and he ain’t did that.
THE COURT: Doctor’s at the hospital?
THE DEFENDANT: Yes.
THE COURT: Mr. Vergis, do you know what he is talking about?
THE DEFENDANT: We haven’t talked about anything for him to know what I am talking about.
THE COURT: Mr. Young, have a seat. You can visit with Mr. Vergis this afternoon otherwise I’ll see you tomorrow morning at 9:00.

The trial court did not have a hearing to address the level and sufficiency of the defense counsel’s contact with the defendant prior to trial. Defendant’s case proceeded to trial on the following morning.

On this record, we cannot discern whether the defendant’s argument is meri-tous. The record does not reflect that the trial court obtained a response from defense counsel with regard to the nature and extent of his communication with the defendant prior to trial. Consequently, we conclude this issue cannot be resolved on appeal, and defendant must present his claim of ineffective assistance of counsel through an application for post-conviction relief in the trial court. There, the quality of the attorney’s assistance can be fully developed and explored. State v. O’Neal, 501 So.2d 920 (La.App. 2d Cir.1987). This assignment of error is without merit.

Assignment of Error Number Two:

By this assignment of error, the defendant contends the trial court erred in failing to consider his pro se pre-trial motions. The defendant argues that although the motions were ruled untimely, the trial court abused its discretion in not addressing the merits of his motion to suppress. He further argues that because of the lack of communication between him and his counsel, coupled with the circumstances in which his motions were filed, the trial court should have held a hearing on the merits of his motions. The state argues that since the defendant’s pro se motions were filed approximately four months after the court’s deadline, the trial court properly refused to consider the motions.

LSA-C.Cr.P. art. 521 states:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

LSA-C.Cr.P. art. 703(C) states:

A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

The record reflects that on March 5, 2001 the court held a lengthy discussion regarding the pro se pretrial motions submitted by the defendant. During those discussions, the state pointed out that at the time the defendant was arraigned on October 31, 2000, the court set a deadline of November 22, 2000 for filing motions. On the date of trial, the state asserted that discovery had been deemed satisfied on December 5, 2002 and at that time there was no mention of any motions, nor did the defendant mention any motions in his February 15, 2001 and February 26, 2001 court appearances.

During the defendant’s discussion with the trial court concerning the timeliness of the defendant’s pro se motions, the following colloquy took place:

MR. VERGIS: There is a motion to suppress slash quash which was sent to my office. I have no knowledge if it was filed or not filed with the clerk, though.
THE COURT: Let me see a copy of the motion that you’re referring to, Mr. Ver-gis. This appears to be a copy of a 28 page form, longhand form motion. You do not have a copy of any 23 page motion, Mr. Powell?
MR. POWELL: No sir, Your Honor. The State has never seen any such motion ....
THE COURT: Pass it to defense counsel, please. Mr. Vergis, I can’t expect the State to be ready to proceed on a motion that has never been filed with the clerk’s office.
MR. VERGIS: I understand that, Your Honor. The defendant did ask me to explain that he had — he had given the motions to his mother who I believe she stated to him had dropped them off at the clerk’s office as well as with the district attorney and myself.
THE COURT: Mr. Young, before the State can proceed to have any evidence filed of record against you, they will have to establish a proper foundation. That’s not the same thing as a motion to suppress. But before any evidence is adduced, first of all it would have to be from personal knowledge of the witnesses, and secondly, any items that would be introduced into evidence would have to have proper foundation laid or established for them. I’m not going to require the State to respond to a motion that’s not been filed into [sic] the record.

On March 6, 2001, prior to trial, the discussion with regard to the defendant’s pro se motions continued. The following colloquy took place between the trial judge and the defendant:

THE DEFENDANT: I said I did everything I could to get it here in time, I did, and my mother brought them here. She dropped them off with the people I trusted and she trusted to give one to you and one to the D.A.
THE COURT: For purposes of completeness of the record, Mr. Vergis, you have a copy of the motion that I looked at yesterday. I presume that the defendant was going to file a copy in the record yesterday. He had ample time to do so, but he did not do it, and I did not bring it upon myself to file it for him. But if you want to file it for purposes of completeness of the record, then you can do so. I will ask that the Clerk or someone make a copy of the handwritten motion and file it in the record of these proceedings, and we’ll have a filed mark dated today.

The court denied the motions as untimely. In refusing to continue the defendant’s trial, the court stated that it believed the defendant was using the motions as a delay tactic.

The record reflects that the defendant was arraigned on October 31, 2000. The pro se motions were received and filed by the clerk in open court on March 6, 2001, approximately four months after arraignment. Therefore, these motions were untimely on their face.

It is within the court’s discretion to allow the untimely filing of a motion to suppress. LSA-C.Cr.P. art. 703(C). Based upon this record, the defendant failed to present a valid excuse for his four-month delay in the filing of his motion to suppress. Thus, we find that the trial court did not abuse its discretion in denying the pro se motions as untimely. This assignment of error is without merit.

Assignment of Error Number Three:

By this assignment of error, the defendant contends the trial court erred in admitting photographic evidence of the defendant at trial that had not been produced in discovery. The defendant argues that the trial court erroneously overruled defense counsel’s objection to the introduction of the photographs taken of the defendant on the date of his arrest. He argues that LSA-C.Cr.P. art. 718(3) requires production for inspection of anything taken from the defendant. The defendant alternatively argues that the photographs were discoverable under LSA-C.Cr.P. art. 718(2) as evidence the state intended to use at trial. The defendant contends that the fact that the state did not use the photographs in its case-in-chief, does not mean that the state did not at some point in time intend to use the photographs at trial. Lastly, he argues that he was not afforded an opportunity to submit the photographs to an expert for evaluation of their authenticity.

In response, the state contends the photographs of the defendant were submitted in rebuttal to defense testimony that the police officers could not have taken the crack cocaine from the defendant’s shirt pocket because he was not wearing a shirt with a pocket on the day that he was arrested. The state contends the photographs depicted the defendant on the day of his arrest wearing a shirt with a pocket. The state avers that the photographs neither belonged to the defendant nor were taken from him, and the photographs were not intended to be used at trial. The state argues that the codal articles relied on by the defendant are not applicable, and that the photographs were properly used as rebuttal evidence.

Generally, the discovery rules of the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151; State v. Hendricks, 37,045 (La.App.2d Cir.7/16/03), 850 So.2d 1096, 1099.

LSA-C.Cr.P. art. 718 states in pertinent part:

On motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.

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

In the instant case, the defense presented the testimony of Letrisha Cornelius, a deputy at the Caddo Correctional Center (“CCC”). Cornelius testified that the shirt the defendant was wearing when he arrived at CCC did not have a pocket. In response, the state then presented the photographs of the defendant as rebuttal evidence to refute Deputy Cornelius’ testimony. The state assured the court that it had not planned to use the photographs during trial, and they were being used solely as rebuttal evidence.

Since the state did not use the photographs in its case-in-chief and, as it appears from the record, did not intend to use them, Article 718 is not applicable. Furthermore, the state’s evidence was offered to repel, and/or disprove facts given in evidence by the defendant. The trial court, in its discretion, allowed the photographs to be entered into evidence. A trial court’s ruling on the admissibility of rebuttal evidence will not be disturbed except in extreme cases such as when the evidence was withheld deliberately for the purpose of deceiving and obtaining an undue advantage. State v. Williams, supra; State v. Hendricks, supra. The photographs were clearly rebuttal evidence. The defendant has failed to prove that the state intended to introduce the photographs to deceive the defense or obtain an undue advantage. This assignment of error is without merit.

Assignment of Error Number Four:

By this assignment of error, the defendant contends the trial court erred in imposing an excessive sentence. The defendant argues that the trial court did not properly take into account mitigating factors listed in LSA-C.Cr.P. art. 894.1. The defendant argues that he has demonstrated rehabilitative potential through volunteer work at the jail where he is housed. He further contends that he is in poor health, which is evidenced by the fact that he was hospitalized twice during his incarceration prior to sentencing. He also contends he is the single parent of a minor daughter, who is now in the care of his elderly mother. Defendant argues that his “poverty income level” is also a mitigating circumstance. Additionally, the defendant argues that his crime was not egregious and no one was injured as a result of his offense, except himself. He asserts that his sentence is grossly disproportionate to the seriousness of the offense.

The test imposed, by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864.

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

Here, the record shows that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. Although the trial court did not list every aggravating and mitigating circumstance present, the court was cognizant of the defendant’s age, health problems, his minor child, his limited education and income potential. State v. Smith, supra; State v. Dunn, supra; State v. Jones, supra; State v. Bradford, supra; State v. Hudgins, supra.

During sentencing the court observed the guidelines of LSA-C.Cr.P. art. 894.1 and concluded that the defendant’s criminal history, coupled with the fact that the instant offense was committed while the defendant was on parole, demonstrated “there was an undue risk that during the period of any suspension or probation the defendant would commit - another crime.”

The record reflects that the defendant’s criminal history began in 1969 and he has had five felony convictions in the last 32 years. In light of the defendant’s additional drug conviction, the length of the defendant’s criminal history and the fact that the defendant was on parole when he committed the instant offense, a sentence of eight years without benefits or good-time credit does not shock the sense of justice. Thus, the trial court did not abuse its discretion in sentencing this defendant as the sentence is not constitutionally excessive. This assignment of error is without merit.

| ir Assignment of Error Number Five:

By this assignment of error, the defendant contends the trial court erred in imposing an illegal sentence. The defendant argues that his sentence is illegal because the trial court denied him the benefit of parole and good-time credit, neither of which is denied under LSA-R.S. 40:967(C), the statute violated, nor LSA-R.S. 15:529.1(A)(l)(a). He argues that the trial court does not have the authority to deny these benefits.

LSA-C.Cr.P. art. 882, states in pertinent part, “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”

LSA-R.S. 15:571.3(0 states, in pertinent part:

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(b) Second degree murder.
(m) A violation of R.S. 14:67 which is a felony.
(n) A violation of R.S. 14:95 which is a felony.
(o) A violation of R.S. 14:95.1 which is a felony.
(p) A violation of Chapter 9 of Title 40 of the Louisiana Revised Statutes of 1950 which is a felony.
(q) Any crime of violence as defined by R.S. 14:2(13).
(r) A violation of the Louisiana Controlled Dangerous Substances Law which is a felony; or
(s) Any felony which is defined as an attempt to commit one of the crimes enumerated in Subparagraphs (a) through (r) of this Paragraph, and
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3) The inmate’s last conviction for the purposes of the Habitual Offender Law, was for a crime: (a) Committed during the period beginning September 16,1975 through September 9, 1977, inclusive of both dates, and the sentence of the court specifically denies eligibility for diminution of sentence, or (b) committed on or after September 10,1977.

LSA-R.S. 15:571.3(D) states:

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if the instant offense is a second offense crime of violence as defined by R.S. 14:2(13) or was committed during a period of time that the inmate was under the jurisdiction of the department or placed on probation as a juvenile.

LSA-R.S. 15:574.4(A)(1) states, in pertinent part:

Except as provided for in Subsection B of this Section, a person, otherwise eligible for parole, convicted of a first felony offense shall be eligible for parole consideration upon serving one-third of the sentence imposed; upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving one-half of the sentence imposed. A person convicted of a third or subsequent felony offense shall not be eligible for parole.

In the present case, the defendant was found guilty of possession of cocaine. He was adjudicated a second felony offender and sentenced to serve eight years at hard labor without the benefit of probation, parole, suspension of sentence or good-time credit. Although this Court has the authority under LSA-C.Cr.P. art. 882 to correct an illegal sentence, the sentence imposed is not illegal. The defendant’s criminal record includes multiple felony convictions under the Louisiana Controlled Dangerous Substances Act. Under LSA-R.S. 15:574.4(A)(1), the defendant is denied parole eligibility. Furthermore, the defendant has a conviction for attempted second degree murder, he committed the instant offense while he was on parole, the offense was committed after September 10, 1977 and he has been adjudicated a second felony offender. Thus, under LSA-R.S. 15:571.3, the defendant is not eligible for diminution of sentence or good-time. The defendant’s sentence is valid. This assignment of error is without merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction for possession of a controlled dangerous substance, to wit, cocaine, his habitual offender adjudication and his sentence are affirmed.

CONVICTION AFFIRMED; ADJUDICATION AS A HABITUAL OFFENDER AND SENTENCE AFFIRMED.

      . Defendant filed the following motions pro se: "Motion to Quash/Suppress”, "Motion for Discovery", "Bill of Particulars and Motion 'to produce evidence most favorable to the defense'."

      . The minutes of court do not reflect there were any filings or court appearances in the defendant’s case on these dates. Furthermore, the record reflects that the responses to defendant's motions for discovery, as well as the state's own motion for discovery, were filed in the record on March 2, 2001, three days prior to the March 5, 2001 original court date.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Joycelyn Wegmann QUINN v. GGS, L.L.C., d/b/a Magnolia Shopping Center and United Fire & Casualty Insurance Company.
    No. 03-CA-682.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.
    Rehearing Denied Jan. 14, 2004.

      Anthony S. Taormina, Metairie, LA, for Appellant.
    Stephen N. Elliott, Howard B. Kaplan, Francine M. Giugno, Metairie, LA, for Ap-pellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

Plaintiff/appellant Jocelyn Wegmann Quinn appeals a verdict and ensuing judgment of the trial court dismissing her suit against defendants GGS, L.L.C. d/b/a/ Magnolia Shopping Center and Lafayette Insurance Company (Hereinafter “Magnolia”). She also appeals the denial of her Motion For Summary Judgment shortly before trial on the merits took place. We affirm.

Mrs. Quinn testified that she is an employee at the gift shop at Ochsner Foundation Hospital. On November 22, 2000, she left her job at the end of her work day and drove to a nail salon at Magnolia Shopping Center, a place that she frequents. It was almost five o’clock and it was dusk. The area where she parked her car, in a handicapped space next to some mailboxes, was shaded. The nail salon is next to a post office branch. Mrs. Quinn got out of her automobile, walked around to the trunk to put . her purse inside, and then walked across a traffic area to get to the shopping center walkway. She took a few steps, glancing to check for oncoming traffic. On cross-examination, it was pointed out that she had stated in deposition that there were no cars passing, and that the street was clear. However, she testified at trial that she looked left and right, and that two cars passed. She continued to walk, but did not see a hole in the pavement. She traveled in a diagonal direction between the mailboxes and the handicap ramp, when her foot hit something and she tripped. She did not remember taking another step before hitting her arm and shoulder on a concrete post. On the day in question, she had no trouble walking, but had a handicap sticker on her vehicle because she has bursitis, which gives her pain in her hip. Although she looked around generally in the direction that she walked, she was not looking for pot holes on the parking surface. There was no object, such as a car, blocking her view of the pothole.

It did not feel like she had stepped into a pothole, but rather she tripped over the outer edge with her right toe and stumbled, falling almost instantly. Her head was between the right post and the flagpole, and the ramp was in front of her. She goes to the nail salon every two to three weeks, and had not seen the hole before.

Mrs. Quinn’s husband, Terry Quinn, testified that at a little after five o’clock on the day of the accident, he received a phone call telling him about the accident. He arrived at the scene about ten minutes later, and it was turning dark. Mrs. Quinn was lying on the ground moaning and crying. Her head was not close to the concrete posts, but she was relatively close to the hole. Shortly thereafter, two emergency medical technicians helped his wife into the ambulance. It was not easy to see the hole because it was dark, but he believed she tripped on it because of where she was on the ground. He did not recall if there were lights on in the parking lot. The hole was very close to the fire lane. Mr. Quinn took photographs of the area, including the hole, on the following day.

Mr. Wilfred Gallardo was qualified as an expert in safety and accident cause analysis. He testified that he reviewed a number of photographs of the accident scene, the scene itself, and Mrs. Quinn’s deposition. He could not measure the hole at the site because of patches. Looking at the pictures, Mr. Gallardo thought the hole was between 4 and 6 feet from the fire lane, or 9-10 feet from the flagpole. Mr. Gallardo opined that the primary cause of the accident was that the hole could not be seen clearly because it tended to blend in, and dusk made it even harder to see. He felt that Mrs. Quinn hit the hole in such a way as to cause her to stumble, and her momentum kept her going. He did not know how many steps she would have taken, stumbling, before she hit the post. At the site, traffic came from the right. It was unlikely, considering the direction in which she was headed, that she tripped over the handicap ramp near where she parked. If she had caught her foot on the ramp she would have been propelled in the other direction. The hole was there in excess of 3 months, and because he also shopped there, Gallardo was aware of holes in the area. It would cost less than one hundred dollars to repair the hole. It was prudent for Mrs. Quinn to look to her left, and not to look at the parking surface because her main concern would be oncoming traffic, and to look in the direction in which she was headed. At the time of day of the accident, the area would have been very shaded.

Charles Wendell, Manger of Magnolia Shopping Center, testified that he inspects the parking lot as does his maintenance employee. When several potholes are discovered, he notifies a repair service, Boh Brothers Construction Company. Further, sections of the parking lot are resurfaced on an annual basis, so that the entire lot is repaved every two years. The Post Office has anywhere between 350 and 400 people on a busy day. There were no complaints prior to the accident of any problems in the parking lot. Lights in the lot go on every day at 5:00 p.m. in the fall, including the area near the Post Office.

Mr. Gene Moody, a professional engineer, was qualified as an expert in the field of accident reconstruction, forensic engineering and safety engineering. He reviewed the Motion for Summary Judgment with its accompanying affidavits; the report of Mr. Gallardo; responses to interrogatories; the Boh Brothers Construction Company file; the deposition of Mrs. Quinn; and photographs of the site. He also visited the site twice. He prepared a scale drawing of the area after taking measurements. The actual hole had been patched by the time Mr. Moody viewed the scene. Using measurements, topographic features, and from the photographs taken by Mr. Quinn, Mr. Moody located the approximate location of the pothole, and the distance from the hole to the concrete barrier posts. He determined that the distance of the hole to the posts was approximately 9 feet. From the handicap ramp to the sidewalk area was about five feet.

According to the witness, Mrs. Quinn may have lost her balance because of her physical condition, as in her deposition she stated that she had pain when she walked. Alternatively, she either tripped over the handicap ramp or lost her balance in the pothole. It is not prudent for a pedestrian to walk across a parking lot without ever looking at the surface. The hole was not unreasonably dangerous for a pedestrian who looks, and she would have seen it with her peripheral vision. Based on the testimony that Mrs. Quinn had no sensation of having stepped into a hole, and did not take any further steps after she tripped, but rather fell instantly, it was most likely that she hit the 90 degree edge of the elevated handicap ramp, tripped, and hit the posts. She was traveling in a diagonal direction toward the nail salon, and had she hit the hole with her right foot, as she testified, her momentum would have caused her to fall in the driveway, and she would not have immediately hit the posts. If she hit the post instantaneously, she had to have been close to it. One typically falls in the direction of their momentum.

There was a distinction in coloration at the hole, so at dusk, Mrs. Quinn would have been able to see the hole if she had been looking. He testified that if Mrs. Quinn put her purse in her trunk, then turned and went straight across on a diagonal toward the nail salon, she would certainly have seen the handicap ramp and would have been able to go around it unless she got too close.

Because Mrs. Quinn is 5'9" tall, and the post is 4 feet tall, she would have been in a standing position after she tripped, and therefore, she must have been close to the object on which she tripped. She would then tend to fall down near the base of the post and the handicap ramp. If someone hit one of the poles, he would expect to find them lying near the poles and the ramp. If she had tripped on the hole, which was perpendicular to the post, she would not have hit the post in the standing up position but would have fallen down before reaching the posts.

In addition to Mrs. Quinn’s Motion For Summary Judgment, Magnolia filed its own- Motion, which was also denied, upon the court’s determination that the location of the hole was an issue of fact and denied both motions.

Following trial on the merits, the jury returned a verdict finding that the pot hole was a defect that presented an unreasonable risk of harm, but that it was not the legal cause of the accident. As a result, the trial court dismissed the Quinn petition, and it is from this verdict and judgment that Mrs. Quinn appeals.

There are two theories of liability available to a plaintiff who claims she was injured as a result of the condition of a thing: negligence, under La. C.C. arts. 2315 and 2316, and strict liability, under La. C.C. art. 2317. Under both theories of liability a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries. Both theories are analyzed under the duty/risk analysis. The duty-risk analysis is employed on a case by case basis. Plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of the harm was within the scope of the protection afforded by the duty breached.

The initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. The plaintiff must prove that the alleged defect in the thing was a cause-in-fact of the plaintiffs harm. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder.

A trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong, but whether the factfinder’s conclusion was a reasonable one.

[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Mrs. Quinn urges the court committed error in denying her Motion for Summary Judgment, and further urges the portion of the verdict holding that the pothole was not a legal cause of the accident was manifestly erroneous.

There were no witnesses to the accident in question. Further, the case does not appear to turn on a determination of Mr. or Mrs. Quinn’s credibility, inasmuch as all she was certain of was that she tripped and fell, hitting the posts. Mr. Quinn opined that his wife tripped on the hole because of its proximity to where Mrs. Quinn lay on the ground.

Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. LA.CODE EVID. art. 302(4) defines an inference as “a conclusion that an evidentiary fact exists based on the establishment of a predicate fact.” Circumstantial evidence may be as persuasive as testimonial or direct evidence in providing a compelling demonstration of the existence or nonexistence of a fact at issue.

Based on the evidence before the jury, we cannot conclude that Mrs. Quinn proved that the hole was a legal cause of her injury, that is, that she tripped on it, by a preponderance of either direct or circumstantial evidence. Although Mrs. Quinn denied that she walked in the direction of the handicap ramp and “clipped” it, she never saw the hole in question, either before or right after the accident. When asked how she knew she stepped in a hole, she testified that she tripped, and that it felt like her toe hit the tip of the hole. She never had the sensation of having stepped into a hole, but rather stumbled on something.

On review, it appears that the jury found the conclusion of Magnolia’s expert more convincing than that of Mrs. Quinn’s expert. Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible. Ultimately, the weight to be given expert testimony is dependent upon the facts on which it is based, as well as the professional qualifications and experience of the expert. For an expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record.

Our review indicates that Mr. Moody had extensive experience in accident reconstruction and safety engineering, and that he was familiar with the theory of whether a pothole is dangerous by reconstruction of an accident. His opinion that Mrs. Quinn tripped on the handicap ramp rather than the pothole was based on measurements which he himself took at the scene. Although Mr. Gallardo was qualified in accident safety analysis, we cannot say that the jury abused its discretion in granting more weight to the opinion of Mr. Moody.

The court was thus also correct in denying summary judgment in favor of Mrs. Quinn.

On this record, we find that a reasonable factual basis exists to support the jury’s finding that the pothole was not a legal cause of Mrs. Quinn’s accident. For the foregoing reasons, the verdict and judgment are affirmed, as is the denial of summary judgment. Mrs. Quinn is assessed costs of this appeal.

AFFIRMED.

      . Seal v. State Farm Fire & Cos. Co., 2000-2375 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, writ denied 2002-1083 (La.6/14/02), 817 So.2d 1160; Reaux v. Louisiana Bd. Of Medical Examiners 2002-0906 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, writ denied 2003-1165 (La.6/20/03), 847 So.2d 1237.

      . Schreiber v. Jewish Federation of Greater New Orleans, 2002-0992 (La.App. 4 Cir. 1/29/02), 839 So.2d 51, writ denied 2003-0613 (La.6/6/03), 845 So.2d 1089.

      . Daye v. General Motors Corp., 1997-1653 (La.9/9/98), 720 So.2d 654.

      . Daye, supra; Reinhardt v. Great Atlantic & Pacific Tea Co., Inc. 02-319 (La.App. 5 Cir. 9/30/02), 829 So.2d 600.

      . Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682, citations omitted.

      . Syrie v. Schilhab, 96-1027 (La.5/20/97); 693 So.2d 1173, 1176; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

        . Stobart, supra.

      . Syrie, supra.

      . Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, citing Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

        . Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La. 10/30/00), 772 So.2d 94.

      . Id.

      . Mistich v. Volkswagen of Germany, Inc., 95-0939 (La. 1/29/96), 666 So.2d 1073; Tortorich v. Otis Elevator Co., Inc., 02-275 (La.App. 5 Cir. 10/16/02), 831 So.2d 307.

      . Glass v. Magnolia School, Inc., 01-1209 (La.App. 5 Cir. 3/13/02), 815 So.2d 143, writ denied 2002-1048 (La.6/7/02), 818 So.2d 776.


author: PEATROSS, J.

text:
    HIBERNIA NATIONAL BANK, Plaintiff, v. Alfred J. ANTONINI and Alva Jane Marquez Antonini, Defendants-Appellants.
    No. 37,836-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Mayer, Smith & Roberts, L.L.P., by David F. Butterfield, Shreveport, for Appellants.
    Guerriero & Guerriero, by Joe D. Guer-riero, Monroe, for Appellees, Northeast Realty, L.L.C. and North American Land Development Corp.
    Before BROWN, PEATROSS & DREW, JJ.
   PEATROSS, J.

On April 21, 1997, Hibernia National Bank (“Hibernia”) filed suit against Alfred J. Antonini and Alva Jane Marquez Anton-ini to collect on a note and to recognize and enforce a collateral mortgage on Cypress Manor Apartment Complex (“Cypress Manor”) in Monroe, Louisiana. Summary judgment was rendered by the trial court in favor of Hibernia, but this court later vacated that judgment and remanded the matter back to the trial court. See Hibernia National Bank v. Antonini, 33,436 (La.App.2d Cir.8/23/00), 767 So.2d 143. Northeast Realty, L.L.C. (“Northeast”) purchased the note and collateral mortgage from Hibernia and was substituted as plaintiff. On remand, the trial court ultimately entered judgment in favor of Northeast in the amount of $544,958.38, with annual interest of 11 percent from May 23, 1996, but subject to a credit on January 11, 1999, of $87,125.16. This appeal ensued. For the reasons stated herein, we amend the judgment of the trial court and, as amended, affirm.

FACTS

This court’s prior opinion in this case sets out the factual background of this matter. See Hibernia National Bank v. Antonini, supra. Briefly stated, to facilitate their purchase of Cypress Manor, the Antoninis executed a promissory note payable to Hibernia in the principal amount of $650,000 with annual interest of 11 percent. The note matured on May 23, 1996, and became due and payable. The promissory note was secured by a collateral mortgage note executed by the Antoninis in the principal amount of $975,000, with interest of 12 percent and a collateral mortgage on Cypress Manor. Judah Hertz, from whom the Antoninis purchased Cypress Manor, executed a commercial guarantee of the Antoninis’ indebtedness to Hibernia. When Hibernia filed suit to collect the note and make the collateral mortgage executory, the balance on the note was $544,958.38. As previously stated, the trial court initially granted summary judgment in this case in favor of Hibernia, recognizing the collateral mortgage and making it executory. Northeast was then substituted as plaintiff. In a prior appeal, this court reversed the granting of summary judgment in favor of Hibernia and remanded the matter. Subsequently, Northeast filed a motion for summary judgment, which was denied by the trial court, and the matter was tried on July 10, 2002. In the meantime, Mr. Hertz settled with Northeast for the undisputed amount of $60,000.

After trial, the court ruled in favor of Northeast and against the Antoninis, awarding Northeast $544,958.38 with 11 percent interest from May 26, 1996, subject to a credit of $87,125.16, which was applied to the interest accrued as of that date. The trial court also awarded Northeast attorney fees and costs and recognized the collateral mortgage, making it executory. This appeal ensued.

DISCUSSION

The Antoninis raise the following four assignments of error on appeal:

1. Whether the trial court erred in finding that the note was not extinguished by fraudulent inducement.
2. Whether the trial court erred in finding that the note was not extinguished by detrimental reliance.
3. Whether the trial court erred in failing to extinguish the note by confusion, and in not allowing the Anton-inis to conduct discovery for their confusion defense.
4. Whether the trial court erred in failing to give the Antoninis credit for the Hertz settlement.

Assignments of error numbers 1 & 2: Fraudulent inducement and detrimental reliance

First, the Antoninis argue that the note should be extinguished because Hibernia fraudulently induced them to sign it. According to the Antoninis, Hibernia actively marketed Cypress Manor to them because Mr. Hertz was having problems paying the loan. Recall that Mr. Hertz was the prior owner of Cypress Manor and his financing was with Hibernia. Mr. Hertz’s note was put on the “watch list” and the Antoninis argue that Hibernia was trying to secure a purchaser for the property in an effort to turn Mr. Hertz’s non-performing loan into a performing one. The Antoninis submit that Mary Kay Weeks, a loan officer with Hibernia at the time they purchased the apartment complex, supplied Mr. Antonini with an operating statement of Cypress Manor that incorrectly portrayed it as very profitable. In addition, they argue that Ms. Weeks gave Mr. Antonini a copy of a confidential appraisal of the property which showed an inflated and inaccurate potential future profitability. Despite the testimony of Paul Thompson, a vice president of Hibernia, that such activities were not the practice of Hibernia, Mr. Antonini strongly argues that Hibernia tried very hard to get him to purchase the property to protect its investment. The Antoninis contend that these alleged marketing efforts. are special circumstances which gave rise to a duty of care on Hibernia’s part and that this duty was breached by Hibernia’s furnishing of misleading and false information regarding the profitability of the apartment complex.

The Antoninis also argue that they would not have purchased, the property but for Hibernia’s alleged unfulfilled promise to provide permanent financing for the venture. In support, they submit that, once Mr. Antonini applied for permanent financing, Hibernia began an aggressive campaign to get him to sign a note with less than favorable terms. Allegedly, this campaign included numerous letters to Mr. Antonini from Hibernia’s vice president and its attorney containing harsh language threatening foreclosure on Mr. Hertz’s loan pid urging Mr. Antonini to close the loan. These facts, according to the Anton-inis, show that they were fraudulently induced to sign the promissory note; and, therefore, their consent to obligate themselves is vitiated.

Next, urging the same factual allegations, the Antoninis argue that they relied to their detriment on Hibernia’s alleged inappropriate marketing activities and promises for permanent and/or renewed financing. Mr. Antonini claims that he would not have purchased Cypress Manor but for the alleged improper actions of Hibernia. The Antoninis assert that they were swayed by Hibernia’s misrepresentations of the profitability of Cypress Manor and relied on them in making the decision to purchase it.

After hearing testimony and reviewing the deposition testimony of Mr. Antonini, the trial court disagreed with arguments on both the fraudulent inducement and detrimental reliance defenses, finding that

the defenses argued by the [Antoninis] lack any credible evidence to support them. Specifically that (sic) the defense of fraud or being miss (sic) led was not proven by the [Antoninis] and said defenses were proven to be totally baseless.
* * *
The credible testimony as a whole shows that there was no detrimental reliance by the [Antoninis], just perjured testimony to try to avoid the consequences of bad business decisions.

Regarding the defense of fraudulent inducement, we note that fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Ballard’s Inc. v. North American Land Development Corporation, 28,437 (La.App.2d Cir.6/26/96), 677 So.2d 648. Fraud may also result from silence or inaction. La. C.C. art. 1953. To prove fraud by silence or inaction, the claimant must show there was a duty to disclose information. Ballard’s Inc., supra, citing Greene v. Gulf Coast Bank, 593 So.2d 630 (La.1992). Fraud is proved by a preponderance of evidence and may be established by circumstantial evidence. La. C.C. art. 1957.

The district court’s findings with respect to a claim of fraud are subject to the manifest error rule. Ballard’s Inc., supra, citing Winegeart v. Texas Indus., Inc., 390 So.2d 265 (La.App. 3d Cir.1980), writ denied, 396 So.2d 886 (La.1981). A court of appeal may not set aside a finding of fact by a trial court in the absence of manifest error or unless it is clearly wrong, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Nugent v. Phelps, 36,366 (La.App.2d Cir.4/23/02), 816 So.2d 349, writ denied, 02-1153 (La.5/10/02), 815 So.2d 850. We find no manifest error on the part of the trial court regarding this defense.

The record in this case contains evidence sufficient for the trial court to reasonably conclude that Hibernia did not engage in any fraudulent activities regarding the note executed by the Antoninis. Mr. Thompson testified that the bank would not assist the owner of a property in the marketing and sale of the property. Further, Mr. Thompson consistently testified that any commitment on the part of Hibernia (or any other institution for which he had worked) to provide financing would be in writing. Mr. Antonini references letters that he authored and sent to the bank regarding his desire for a long-term or permanent loan or renegotiation of the loan at a later date. There exists, however, no documentary evidence showing that Hibernia ever committed to any other loan arrangement or term other than the note executed by the Antoninis. The only document originating in the bank that references a longer term loan is a letter written by Rodney Barrett, an assistant vice president at Hibernia, to Mr. Antoni-ni, which stated that the bank was considering funding a loan to him and which requested that certain items of information be provided to Hibernia in that regard. This does not constitute a statement of commitment to loan the funds. The record does indicate that the parties were engaged in ongoing discussions and negotiations regarding the possible refinancing of the original note; but, again, there is no evidence, other than Mr. Antonini’s self-serving testimony, that the bank ever made a commitment to the Antoninis to provide permanent or long-term financing. The trial court stated emphatically that it made a credibility determination in this case, finding Mr. Antonini’s testimony not credible and accepting the testimony of the Hibernia officers. We will not disturb such credibility calls on the part of the fact finder.

In addition, Mr. Antonini submits that the appraisal of Cypress Manor done in 1992 was inflated and that he would not have purchased the apartment complex had he known the true profitability (or unprofitability) of the property. A.J. Burns, Jr., the appraiser, testified that he appraised the property at $955,000 in 1992 for “typical management.” Mr. Burns explained that “typical management” would immediately bring those units that were un-rentable back to a rentable state of repair to generate additional income. At the time of the 1992 appraisal, there were many units that were in disrepair and un-rentable. According to Mr. Burns, the appraised value is a “higher indicated market value” because it includes income generated from units that would be rented under “typical management” that may be currently vacant at the time of the appraisal. This additional income is capitalized into perpetuity in calculating the value and profitability. He agreed that, if a manager came into the property and did not bring the property up to generate income as a “typical manager” would, the value and profitability would be lower. The trial court gave credit to this testimony instead of the self-serving testimony of Mr. Anton-ini that the property was represented by Hibernia to be worth more than it actually was.

Likewise, we find no manifest error in the trial court’s finding that there was no evidence to support the Antoninis’ defense of detrimental areliance. Much the same as their argument regarding fraudulent inducement, the Antoninis state that they relied to their detriment on the representations of the Hibernia personnel regarding the value and profitability in making the decision to purchase Cypress Manor. We find no manifest error in the trial court’s rejection of this defense.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations or silence. John Bailey Contractor, Inc. v. State, Through Department of Transportation and Development, 439 So.2d 1055 (La.1983); Orr v. Bancroft Bag, Inc., 29,046 (La.App.2d Cir.1/22/97), 687 So.2d 1068; Knight v. State, 30,902 (La.App.2d Cir.9/28/98), 718 So.2d 646. La. C.C. art. 1967 provides:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

Detrimental reliance is not favored in our law and is sparingly applied as it bars the normal assertion of rights otherwise present. Miller v. Miller, 35,934 (La.App.2d Cir.5/8/02), 817 So.2d 1166, writ denied, 02-1890 (La.10/25/02), 827 So.2d 1154. A claim of detrimental reliance must meet three requirements: (1) a representation by conduct or word; (2) justifiable reliance thereon; and (3) a change in position to one’s detriment because of the reliance. Robinson v. Healthworks Intern., L.L.C., 36,802 (La.App.2d 1/29/03), 837 So.2d 714, unit not considered, 03-0965 (La.5/16/03), 843 So.2d 1120, citing Edwards v. Conforto, 636 So.2d 901 (La.1993).

As previously stated, the trial court reasonably concluded that Hibernia did not fraudulently misrepresent the value of the property to the Antoninis in an effort to close the loan. The trial court further reasonably concluded that no commitment or promise was made to the Antoninis to provide permanent or long-term financing. In addition, Northeast points out that the Antoninis were involved with the management of Cypress Manor, prior to their execution of the promissory note. They had first-hand knowledge of the operation and condition of the property. The elements of detrimental rebanee have not been proven in this case and we find no error in the trial court’s conclusion on this defense.

Assignment of error number 3: Contusion

In this assignment of error, the Antoninis argue that the note was extinguished by confusion. Sunset Realty, Inc. bought the property at a tax sale. Northeast purchased the note and collateral mortgage from Hibernia bank. The An-toninis argue that Sunset Realty, Inc. and Northeast are alter egos, or the same entity; and, therefore, confusion operates to extinguish the note. The trial court disagreed, finding that:

It is absolutely clear from the documents filed into the evidence and the testimony given that Sunset Realty, Inc. and North East Realty, L.L.C. (sic) are not the same entity and that specifically they are two separate and distinct entities.

La. C.C. art. 1903 provides that “[w]hen the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion.” We find the Antoninis’ assertion of extinguishment by inconfusion to be misplaced. Even if Sunset Realty, Inc. and Northeast were the same entity as the Antoninis suggest, confusion would not operate to extinguish this note. When Sunset Realty, Inc. purchased the property at the tax sale, the property was transferred free and clear of any encumbrances or mortgages and the dehn-quent taxes were paid. Simply put, Sunset Realty, Inc. became the owner of the property free and clear. Northeast purchased the note from Hibernia, thereby becoming the mortgage creditor. The An-toninis remained the obligor on the note and that obligation was not affected by Sunset Realty, Inc.’s acquisition of the property or Northeast’s acquisition of the note. The doctrine of confusion does not apply in this case.

Even, assuming arguendo, that confusion were applicable to this scenario, we find no manifest error in the trial court’s factual finding that Sunset Realty, Inc. and Northeast were two separate and distinct entities. Ownership of the two entities is not the same and counsel for the Antoninis so stipulated. The trial court heard and weighed the evidence regarding the ownership and operation of these entities and reasonably concluded that they are not “alter egos” of each other for purposes of application of the doctrine of confusion.

In light of these findings, we pretermit any discussion of the adequacy of discovery regarding this defense.

Assignment of error number 4: Credit for Hertz settlement

As previously stated, Mr. Hertz guaranteed the Antoninis’ indebtedness to Hibernia and subsequently settled with the bank for the undisputed amount of $60,000. The Antoninis argue that they and Mr. Hertz were solidary obligors on the note; and, therefore, they are entitled to a credit for the amount he paid in settlement. We agree.

La. C.C. art. 1803, Remission of debt to or transaction or compromise with one obligor, provides as follows:

Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor.
Surrender to one solidary obligor of the instrument evidencing the obligation gives rise to a presumption that the remission of debt was intended for the benefit of all the solidary obligors.

The comments to the article indicate that a release granted in favor of one of joint and several debtors does not discharge the others; but the creditor must deduct from the debt the share of him whom he has released. According to this article, the soli-dary obligor who has not settled with the obligee is entitled to have the obligee’s recovery reduced by the amount of the released obligor’s portion of fault or liability. Mott v. Brister’s Thunder Karts, Inc., 95-410 (La.App. 3d Cir.10/4/95), 663 So.2d 233, citing La. C.C. art. 1803, Comment (b). By express terms of the promissory note, Mr. Hertz, as guarantor, and the Antoninis, as borrowers, were solidarily liable for the indebtedness. Through compromise and settlement for the amount of $60,000, Hibernia released Mr. Hertz from his obligation on the note. We find, therefore, that, while Northeast is entitled to judgment on the note, this judgment must be additionally reduced by the amount of the settlement paid by Mr. Hertz. We amend the judgment accordingly.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to reflect a credit to the principal obligation owed by the Antoninis to Northeast Realty, L.L.C. in the additional amount of $60,000, representing the settlement between Judah Hertz, solidary obligor, and Hibernia National Bank. In all other respects, the judgment of the trial court is affirmed.

AMENDED, AND, AS AMENDED, AFFIRMED.

      . At the time of trial, Mr. Antonini was incarcerated in California serving a sentence for bank fraud and could not be present.

      . This principle has been consistently applied in the tort setting as well. A plaintiffs settlement with a solidary obligor reduces his recovery against the non-settling tortfeasor by the percentage of fault of the released solidary obligor, providing the remaining defendant proves at trial that the released party was a joint tort-feasor and, therefore, solidarily liable. Barnes v. Reed, 32,380 (La.App.2d Cir. 10/29/99), 743 So.2d 936; Taylor v. U.S. Fidelity & Guar. Ins. Co., 630 So.2d 237 (La.1993).

      . Northeast points to the following language contained in the "Waivers” section of the promissory note in arguing that the credit should not be awarded: "Borrower and each guarantor further severally agree that discharge or release of any party who is or may be liable to Lender for the indebtedness represented hereby ... shall not have the effect of releasing any other party or parties, who shall remain liable to Lender....” This language merely preserves the lender's right to seek recovery of the balance due on an obligation if one solidary obligor is discharged for a portion of the indebtedness. This language does not speak to whether the lender must credit the indebtedness for the amount received from the released or discharged soli-dary obligor.