author: PEATROSS, J. MOORE, J,

text:
    Gary LUFFEY on Behalf of FREDERICKSBURG PROPERTIES OF TEXAS, LP, Plaintiff-Appellees, v. FREDERICKSBURG PROPERTIES OF TEXAS, LP, et al., Defendant-Appellants, Gary Luffey on Behalf of Allante Properties of Texas, LP, Plaintiffs-Appellees, v. Allante Properties of Texas, LP, et al., Defendant-Appellants.
    Nos. 37,591-CA, 37,592-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 22, 2004.

      Kitchens, Benton, Kitchens & Newell by Daniel W. Newell, Minden, for Appellants.
    Snellings, Breard, Sartor, Trascher & Inabnett by Charles C. Trascher, III, Monroe, David R. Loveridge, for Appel-lees.
    Before WILLIAMS, GASKINS, PEATROSS, DREW and MOORE, JJ.
   PEATROSS, J.

These consolidated cases are derivative actions filed in Lincoln Parish by Gary Luffey (“Luffey”), a limited partner in two limited partnerships that operate nursing homes in San Antonio, Texas. The defendants filed exceptions of lack of subject matter jurisdiction, urging that the “Law Governing” clause of the partnership agreements limited jurisdiction and venue to Travis County, Texas. The district court overruled the exceptions. This court granted the defendants’ writ applications and consolidated the cases for full consideration as an appeal. The matter was referred to a five-judge panel pursuant to La. Const. art. 5, § 8(B), and URCA Rule 1-5. For the reasons stated herein, we affirm.

Procedural Background

The partnerships, Fredericksburg Properties of Texas, LP, and Allante Properties of Texas, LP, were formed in February and December 1999 under agreements designating each as a “Texas Limited Partnership.” The general partner of each was DLen Inc., a Texas corporation. The limited partners of each were Luffey, the plaintiff, and Danny K. Prince, both residents of Ruston, Louisiana. The partnerships’ principal office was listed as being on West Mississippi Street, Ruston, but the registered office is in Plano, Texas. Both agreements contain the following clause:

12.2. Law Governing. This agreement shall be governed by and construed in accordance with the laws of the State of Texas, and each Partner agrees that the obligations of the Partners are performable in Travis County, Texas and Travis County, Texas shall be appropriate jurisdiction and venue for any litigation with respect to the Partnership.

In October 2000, Luffey filed these suits in the Third Judicial District Court, Lincoln Parish, Louisiana. He named the partnerships, DLen Inc., Danny Prince and the nursing homes themselves as defendants. He alleged that they had misused partnership funds and allowed HUD-guaranteed loans to default. He demanded an accounting and orders directing the various defendants to fulfill their obligations under the partnership agreements.

In October 2001, the defendants filed answers containing only general denials. In November 2001, they filed exceptions of lack of subject matter jurisdiction. These alleged that the “Law Governing” clause divested the Third Judicial District Court of jurisdiction to hear the suits. Luffey opposed the exceptions, urging that the “Law Governing” clause was only a permissive forum selection clause and not grounds to dismiss the suit for lack of subject matter jurisdiction.

After oral argument, the district court denied the exceptions and issued written reasons finding that the “Law Governing” clause was ambiguous as it did not rule out the possibility of other forums besides Travis County, Texas. The court observed that the “Law Governing” clause designated Travis County as “appropriate jurisdiction,” not as “the appropriate jurisdiction.” The court, therefore, found subject matter jurisdiction in the Lincoln Parish court and overruled the exceptions.

The defendants took writs, which this court granted and converted into a consolidated appeal on January 30, 2003. In this court’s order granting the defendants’ writ application, we stated that the rulings of the district court “concern the venue for this litigation despite their caption as exceptions of subject matter jurisdiction. An exception is treated as what it actually is, not what it is titled.” (Citations omitted.)

The Parties’ Contentions on Appeal

By two assignments of error, the defendants urge that the “Law Governing” clause is not permissive. They submit that the word “shall,” which appears twice in the clause, is mandatory; the permissive “may” does not appear. La. R.S. 1:3; La. C.C.P. art. 5053. They also urge that, by referring to Travis County as “appropriate jurisdiction and venue,” the parties intended to limit all actions to Travis County. They submit that the “Law Governing” clause is essentially the same as those upheld in Pitts, Inc. v. Ark-La Resources, L.P., 30,836 (La.App.2d Cir.8/19/98), 717 So.2d 268, and in Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5th Cir.6/28/95), 658 So.2d 20. They conclude that the court should have sustained their exceptions and dismissed the suits.

Luffey urges that the exceptions are really claims of improper .venue, which the defendants necessarily waived by first answering the petitions. La. C.C.P. art. 928(A). He also argues that the parties could not waive the jurisdiction of the Third. Judicial District Court. In the alternative, he contends that the “Law Governing” clause falls short of being a mandatory forum selection clause. He urges that it is more like the clauses found to be I ambiguous or permissive in Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir.1974) and in American Health Care Syst., Inc. v. Magic Software Enter., 1994 WL 624842 (E.D.La.1994), and less like those upheld in Pitts and Digital Enterprises, Inc., supra. Finally, he submits that, because of the parties’ strong connections to Lincoln Parish, they probably did not intend to restrict jurisdiction to Travis County, Texas. He concludes by urging that the district court did not err in overruling the exceptions.

Discussion

Both parties argue the applicability and nature (either permissive or mandatory) of the forum selection clause contained in section ’ 12.2 of the partnership agreement; and both parties, in their briefs, use the terms “subject matter jurisdiction” and “venue” interchangeably in making their arguments. In so doing, both parties have missed the very critical legal distinction between those two legal concepts. This case is not about which court has or does not have subject matter jurisdiction over this action, but, rather, the relevant inquiry is whether the forum in which the action was filed was a court of proper venue and, necessarily, whether the objection to improper venue was properly and timely raised. As previously stated, a panel of this court noted that this case was one of venue, rather than subject matter jurisdiction, in the order granting the defendant’s writ application; and, after reviewing the entire record on appeal, we see no reason to depart from that conclusion.

Section 12.2 of the partnership agreements contain both a choice of law component and a forum selection clause. The defendants would have us interpret and apply the forum selection clause as an issue of subject matter jurisdiction. True, the defendants’ exceptions are styled as exceptions of lack of subject matter jurisdiction. Substantively, however, the exceptions are actually exceptions of venue in which the defendants argue that the suit should have been brought in Travis County, Texas, as provided in the forum selection clause. It is well-settled that an exception is to be treated as what it actually is, rather than what it is titled. Stadtlander v. Ryan’s Family Steakhouses, Inc., 34,384 (La.App.2d Cir.4/4/01), 794 So.2d 881, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790, citing Traweek v. LaBorde, 30,551 (La.App.2d Cir.5/13/98), 713 So.2d 664, writ denied, 98-1933 (La.11/6/98), 727 So.2d 449.

Jurisdiction is a separate and distinct legal concept from venue. Turner v. Leslie, 96-2288 (La.12/6/96), 684 So.2d 395; Sims v. Sims, 388 So.2d 428 (La.App. 2d Cir.1980), writ denied, 394 So.2d 612 (La.1980); Clark v. Clark, 600 So.2d 880 (La.App. 1st Cir.1992), writ denied, 604 So,2d 1305 (La.1992). A forum selection clause expresses the parties’ intent with regard to venue, which means the “parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La. C.C.P. art. 41. Louisiana has long held that forum selection clauses allowing the parties to agree to a certain venue are valid and enforceable. Subject matter jurisdiction, on the other hand, is the “legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. C.C.P. art. 2. Subject matter jurisdiction is created by the constitution or legislative enactment; see e.g., La. Const. Art. 5, and cannot be conferred or waived by the parties. La. C.C.P. arts. 2, 3 and 925; Boudreaux v. State, 01-1329 (La.2/26/02), 815 So.2d 7; State of Louisiana, Department of Social Services v. Parker, 595 So.2d 815 (La.App. 2d Cir.1992); Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991); Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250 (La.App. 5th Cir.10/16/02), 831 So.2d 296. As such, subject matter jurisdiction is not affected by the parties’ agreement as to venue, via a forum selection clause, as to the particular forum where a suit may or shall be brought by an aggrieved party. Stated another way, venue is not concerned with the power of and authority of a court, but with the parish or county where an action may be brought. Sims, supra; Clark, supra.

In the ease sub judice, the defendants incorrectly argue that the parties may agree that a certain court has “exclusive subject matter jurisdiction” over any action brought on the agreement. They further assert that the parties in this case agreed that a Louisiana court would not have subject matter jurisdiction over an action such as this, but, rather, the Travis County court would have exclusive subject matter jurisdiction over the action. There is no prohibition against parties selecting one of several courts that possess subject matter jurisdiction. Such selection is one of venue, accomplished by a forum selection clause, which does not affect the subject matter jurisdiction of either court. The parties may not, however, by agreement divest a court of its constitutionally created subject matter jurisdiction, nor may they bestow subject matter jurisdiction on a court that would not otherwise have jurisdiction over the subject of the matter.

Simply put, what we have in this case is an action over which two courts have subject matter jurisdiction; Lincoln Parish, Louisiana, and Travis County, Texas. When a suit is filed in one of two courts that each possess proper subject matter jurisdiction and there exists a valid and enforceable forum selection clause, the issue then becomes whether or not the court may decline its jurisdiction based on the forum selection clause and dismiss the case. See Abuan v. Smedvig Tankships, Ltd., 96-1013, (La.App. 4th Cir.6/24/98), 717. So.2d 1194, writ denied, 98-2608 (La.1/15/99), 736 So.2d 208, cert. denied, 527 U.S. 1016, 119 S.Ct. 2359, 144 L.Ed.2d 254 (1999); Barcelona v. Sea Victory Maritime, Inc., 619 So.2d 741 (La.App. 4th Cir.1993), writ denied, 626 So.2d 1179 (La.1993). The court that declines to exercise its subject matter jurisdiction and enforces a valid forum selection clause is making a determination of venue; the court’s power and authority to adjudicate the matter, or its subject matter jurisdiction, remains.

Thus, we conclude that an exception of lack of subject matter jurisdiction is an improper procedural vehicle by which to assert enforcement of the forum selection clause in this case. The defendants could have urged the forum selection clause via an exception of improper venue, however, the defendants waived any exception of venue by not filing such exception prior to filing their answer. Recall that the instant suit was filed in October 2000 in a Louisiana court and the defendants filed answers containing general denials in October 2001. In November 2001, the defendants filed exceptions styled as declinatory exceptions of lack of subject matter jurisdiction, which were denied by the trial court. La. C.C.P. art. 925(A)(4) provides that an exception of venue is declinatory in nature and La. C.C.P. art. 928(A) provides that the declinatory exception shall be pleaded prior to or in the answer.

In summary, our limited holding in the case sub judice is that the defendants cannot assert the forum selection clause through an exception of lack of subject matter jurisdiction, as the forum selection clause does not affect the power or authority of the court to hear the matter. We note that the cases relied upon by the defendants are procedurally distinguishable from the case sub judice. Digital Enterprises, Inc., supra, was before the trial court on a timely filed exception of improper venue. Pitts, supra, was before the trial court on exceptions of improper venue and lack of subject matter jurisdiction. While the exceptions in Pitts were styled conjunctively to include lack of subject matter jurisdiction, the panel of this court clearly upheld the forum or venue selection made by the parties in the forum selection clause. Finally, we further note that, in Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998), after the denial of exceptions of improper venue and lack of subject matter jurisdiction, the supreme court analyzed and enforced a forum selection clause when asserted via a motion for partial summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying the defendants’ Exceptions of Lack of Subject Matter Jurisdiction is affirmed. Costs of appeal are assessed against the defendants.

AFFIRMED.

DREW, J., dissents for the reasons assigned by Judge MOORE.

MOORE, J., dissents with written reasons.

MOORE, J,

dissenting.

The district court was called to interpret the “Law Governing” clause in the partnership agreements, aptly observing that the sole issue was whether it had jurisdiction over the litigation between the parties. Likewise, jurisdiction is the only issue raised in this court for supervisory review. The majority has strayed into matters not contemplated by the parties or presented to the district court.

The “Law Governing” clause states, in pertinent part: “Travis County, Texas shall be appropriate jurisdiction and venue for any litigation with respect to the partnership.” The district court found that this did not exclude the possibility of other forums besides Travis County, Texas. Such a conclusion simply defies the basic rules of contract interpretation, La. C.C. arts.2046 and 2049. By strained and tortuous construction, the court found the clause could have been more restrictive. The federal case which the district court cited in support was unreported and thus not competent authority. FRAP Local R. 47.5.3. Moreover, that federal opinion never mentioned the plain meaning rule of construction.

The majority conveniently overlooks this error until the final paragraph of its opinion. However, in Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998), the supreme court analyzed a choice of forum clause which stated that actions “may be brought” in a designated forum. If anything, the “may be brought” formulation is much more permissive than the “shall be appropriate jurisdiction” clause used in the instant case. Nevertheless, the supreme court held that to expand “may be brought” to allow jurisdiction in the designated forum and anyplace else the plaintiff may choose would eviscerate the contract and frustrate parties’ clearly expressed intent. The court therefore enforced the clause.

In my view, the same rationale validates the “Law Governing” clause and negates the district court’s holding. On this basis alone, we should make our prior writ peremptory, sustain the exceptions of lack of subject matter jurisdiction, and render judgment dismissing these actions.

Rather than address the district court’s blatant error, the majority embarks on a tutorial about the distinction between jurisdiction and venue. While this is interesting and has a certain scholarly allure, it perpetuates the district court’s error. Forum selection clauses are prima facie valid and should be enforced unless the enforcement would be unreasonable under the circumstances. Lejano v. Bandak, supra; M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Unless it contravenes a strong public policy, a forum selection clause should be enforced as written. Lejano v. Bandak, supra; Pitts Inc. v. Ark-La Resources LP, 30,836 (La.App. 2 Cir. 8/19/98), 717 So.2d 268. The “Law Governing” clause plainly elects venue and jurisdiction in Travis County, Texas, and it should be applied as written.

In light of the parties’ clearly stated intent, the majority’s effort to reduce the “Law Governing” clause to a permissive venue option is misguided and erroneous. Parties waive jurisdiction all the time, most notably in arbitration clauses. See, e.g., Stadtlander v. Ryan’s Family Steakhouses Inc., 34,384 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, writ denied, 2001-1327 (La.6/22/01), 794 So.2d 790. The majority cites not one case in which a forum selection clause, specifying venue and jurisdiction, has been demoted to venue only.

The district court and the majority of this court have both disregarded the parties’ clearly stated intent. As an incongruous result, the Third JDC will have to take notice of Texas partnership law to resolve technical disputes between parties who are mostly from Texas. I respectfully dissent.

APPLICATION FOR REHEARING

Before WILLÍAMS, GASKINS, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

DREW and MOORE, JJ., would grant rehearing.

      . He also sought a writ of mandamus, but this was dismissed on the defendants’ exception of improper use of summary proceedings.

      . There is extensive discussion in the parties' briefs about whether the forum selection clause is permissive or mandatory. A literal reading of the forum selection clause could lead one to reasonably conclude that the partners agreed only that Travis County, Texas, is an appropriate forum rather than the only appropriate forum. This interpretation would support a finding that the clause is permissive. On the other hand, the parties’ choice of law tends to suggest that the parties may have intended that it be mandatory that any litigation be instituted in Texas. At best, the clause may be construed as ambiguous and the intent of the parties not immediately dis-cernable.

      . Black's Law Dictionary states:
      “Venue must be carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to hear and dispose of a given case; in the federal system, it involves questions of a constitutional dimension concerning the basic division of judicial power among the states and between state and federal courts. Venue is of a distinctly lower level of importance; it is simply a statutory device designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and efficient allocation of judicial resources.” Jack H. Friedenthal et al.. Civil Procedure §§ 2.1, at 10 (2d ed.1993). "The distinction must be clearly understood between jurisdiction, which is the power to adjudicate, and venue, which relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants. It is possible for jurisdiction to exist though venue in a particular district is improper, and it is possible for a suit to be brought in the appropriate venue though it must be dismissed for lack of jurisdiction. The most important difference between venue and jurisdiction is that a party may consent to be sued in a district that otherwise would be an improper venue, and it waives its objection to venue if it fails to assert it promptly. This is in striking contrast to subject-matter jurisdiction, which cannot be conferred by the parties, if it has not been granted by Congress, whether by consent, waiver, or estoppel.” Charles Alan Wright, The Law of Federal Courts §§ 42, at 257 (5th ed. 1994).
      BLACK’S LAW DICTIONARY (7th ed.1999).

      . The exception itself states that "said matter falls exclusively within the jurisdiction of the courts of Travis County, Texas.”

      . The defendants point to the inclusion of the word "jurisdiction” in section 12.2 for support of their argument that the parties intended to agree as to subject matter jurisdiction in addition to venue. As discussed herein, however, the recitation of the word "jurisdiction” in the clause does not alter the subject matter jurisdiction, or the ability to hear a case of this type, of any court. The inclusion of the word "jurisdiction” may have been intended to operate as a waiver to any objection on the part of Luffey to personal jurisdiction in Travis County, Texas.

      . The trial court reached its conclusion to deny the exceptions by finding the forum selection clause to be permissive. We arrive at the same conclusion, but for different reasons. It is well-settled that our review is of the judgment of the trial court and not the reasons for judgment. Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773; Rogers v. Stockmon, 34,327 (La.11/1/00), 780 So.2d 386; Harris v. Bancroft Bag, Inc., 30,431 (La.App.2d Cir.4/9/98), 714 So.2d 44.


source: Caselaw Access Project

author: OLLEY, J.

license: Public Domain

text:
    Jane E. McKOIN, et al., Plaintiffs-Appellees, v. Eugene HARPER, et ux., Defendants-Appellants.
    No. 37,984-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Travis Holley, Bastrop, for Appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., by Robin D. McGuire, Lafayette, Hamilton & Carroll, by John Clay Hamilton, Oak Grove, for Appellees.
    Before WILLIAMS, MOORE, and LOLLEY, JJ.
   OLLEY, J.

Eugene Harper, Joyce Edwina Harper, Harold B. Summarell, Dorothy Summarell, and Gary B. Harper (collectively, the “Harpers”) appeal the judgment of the Fourth Judicial District Court, Parish of Morehouse, Louisiana, in favor of Jane W. McKoin, Kelsey S. McKoin, Carol Ann Harrington, and L. Scott McKoin (collectively, the “McKoins”). For the following reasons, we reverse in part and render and affirm in part.

Facts

The underlying facts in this boundary dispute have been reported in this court’s opinion McKoin v. Harper, 36,533 (La.App.2d Cir.01/31/03), 836 So.2d 1260, writ denied, 2003-0622 (La.05/02/03), 842 So.2d 1104 (“McKoin I”). In that opinion, this court affirmed the judgment of the trial court in favor of the Harpers, who were the defendants in the original and underlying action.

In the trial court’s Amended and Restated Judgment, the McKoins were ordered to pay all costs of the litigation. Specifically, that judgment stated, “Plaintiffs [the McKoins] are to pay all costs of these proceedings.” Prior to the rendering of this court’s opinion in McKoin I, the Harpers filed with the trial court their Motion to Tax Costs, specifically seeking an order taxing the McKoins with the costs and fees of the Harpers’ expert surveyor, Michael P. Mayeux, P.L.S. (“May-eux”), in the amount of $81,231.20. In response, the McKoins filed their Motion to Dismiss Motion to Tax Costs, wherein they argued that the trial court’s jurisdiction was divested as a result of the pending appeal and the matter of the costs could not be decided. Counsel for the Harpers, via correspondence, requested the motion to dismiss be withdrawn based on La. C. Civ. P. art. 2088, which states, in pertinent part:

The jurisdiction of the trial court over all matters in the case renewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only-over those matters not reviewable under the appeal, including the right to:
* * *
(10) Set and tax costs and expert witness fees.

When the McKoins did not withdraw their motion to dismiss, the Harpers filed an opposition to same and requested sanctions be imposed against the McKoins. Subsequently, the McKoins filed their own Motion to Tax Costs against the Harpers, asking the trial court to tax as costs the fees and costs of the McKoins’ two experts in the amount of $59,071.00. In response to that filing of the McKoins, the Harpers again sought sanctions alleging that the McKoins had brought a clearly improper motion.

After a hearing on the issue of the costs and sanctions, Judge Dimos held the matter in abeyance for thirty (30) days to give the parties a chance to resolve the matter between themselves. Subsequently, however, Judge Dimos entered a judgment on the matter awarding $60,000 to the Har-pers for Mayeux’s fees and costs. The trial court’s judgment did not address the sanctions requested by the Harpers; however, at the previous hearing, Judge Dimos had noted that he was “... willing to forget all the sanctions....”. The appeal of that judgment by the Harpers ensued.

Discussion

The Harpers raise two assignments of error on appeal. First, the Harpers argue the trial court erred in taxing a lower amount than the amount they actually incurred for their expert, Mayeux. The Harpers state that Mayeux’s fee of $81,231.20 was reasonable under the circumstances and resulted from his survey of the disputed land, time spent preparing the survey plats produced and used at trial, and three days time spent at the trial at which he testified.

La. R.S. 13:3666 A is applicable regarding compensation for expert witnesses. The statute states, in pertinent part, as follows:

Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.

Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. Hammock ex rel. Thompson v. Louisiana State University Medical Center in Shreveport, 34,086 (La.App.2d Cir.11/01/01), 772 So.2d 306, citing, La. R.S. 13:3666. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness and has great discretion in awarding and fixing costs and expert fees. However, a trial court’s assessment of costs can be reversed by an appellate court upon a showing of abuse of discretion. Id., citing, Smith v. Scott, 26,849 (La.App.2d Cir. 05/10/95), 655 So.2d 582, writ denied, 95-1450 (La.09/22/95), 660 So.2d 475.

Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Hammock, supra. Additional considerations include helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Id.

Here, Judge Dimos set Mayeux’s fee at $60,000, lower than the total fee of $81,231.20. However, there is no indication that the trial court considered any of the stated factors when making the award of a lower amount than actually charged by Mayeux. Pursuant to his oral ruling on March 3, 2003, Judge Dimos noted Mayeux’s fees and costs of $81,231.20, but also noted that the expert fees and costs incurred by the McKoins was less than $60,000. Further, Judge Dimos stated that after the previous hearing on the matter, he had not heard from the parties regarding a resolution, and he set Mayeux’s fee at $60,000, which he deemed “to be reasonable and fair and not excessive.” In fact, although he deemed $60,000 was reasonable and not excessive, Judge Dimos made no findings that Mayeux’s fees and costs as requested by the Harpers were unreasonable, nor was there any proof of such. In fact, the McKoins themselves incurred over $59,000 in expert fees for their surveyors used for a matter in which they failed to prevail.

Mayeux was accepted at the original trial by Judge Ingram as an expert registered land surveyor. A description of Mayeux’s work is set forth in McKoin I. Obviously, Judge Ingram relied heavily upon Mayeux’s expert opinion in reaching the ultimate. conclusion in favor -of the Harpers, which we affirmed in McKoin I. Additionally, as the trial transcript of the original proceedings reflects, Judge Ingram was fully aware that at the time of the trial, Mayeux’s fees and costs in excess of $65,000 had already been paid, which amount had not even included Mayeux’s fees for trial preparation and appearance. With this knowledge in hand, and surely the expectation that the Harpers had incurred additional fees and costs as a result of the trial, Judge Ingram assessed “all costs” to the McKoins. For Judge Dimos to subsequently award an amount even less than that which Judge Ingram had knowledge of during the original trial, particularly without articulating any reasons for doing so, was clearly an abuse of discretion. For these reasons, we reverse that portion of the judgment awarding $60,000 in expert witness fees and costs and render judgment in favor of the Har-pers in the amount of $81,231.20 for May-eux’s expert witness fees and costs.

The Harpers also argue that the trial court further erred in failing to impose sanctions against the McKoins. After filing their Motion to Tax Costs and in connection with the pleadings the McKoins had filed in response to the Harpers’ motion, the Harpers sought sanctions against the McKoins pursuant to La. C.C.P. art. 863.

The trial court has discretion to sanction under La. C.C.P. art. 863. Unkel v. Unkel, 29,728 (La.App.2d Cir.08/20/97), 699 So.2d 472, citing, Diesel Driving Academy, Inc. v. Ferrier, 563 So.2d 898 (La.App. 2d Cir.1990). A trial court’s factual findings as a basis for awarding (or for that matter, not awarding) sanctions are reviewed under the manifestly erroneous or clearly wrong standard. Unkel, supra.

Although the trial court gave no reasons for denying the Harpers’ request for sanctions, we cannot say such a final determination was clearly wrong. In affirming the denial of sanctions, the Unkel court characterized the subject pleadings as “unpersuasive and inartful,” but not sanctiona-ble. Id. at 477. So is the case here. While perhaps “unpersuasive and inartful,” at the hearing on the costs issue, counsel for the McKoins was able to present some argument to explain his legal position in filing the various pleadings. Whereas the imposition of sanctions pursuant to La. C.C.P. art. 863 is on occasion warranted and necessary, the threat of sanctions tends to chill the nature of the proceedings by limiting the adversarial nature of such and the diligent representation of clients by their attorneys. Considering the record before us, Judge Dimos was not manifestly in error for failing to impose sanctions against the McKoins. Thus, we find this assignment of error without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is hereby reversed in part and affirmed in part with the parties to each bear their own costs of appeal.

REVERSED IN PART AND RENDERED; AFFIRMED IN PART.

      . Judge Michael S. Ingram presided over those proceedings; however, after his death, Judge J.N. Dimos presided over the proceedings regarding the costs issue.

      . In brief, the Harpers claim that the agreement reached by the parties was that the Harpers would accept $60,000 for their expert fees and costs if the McKoins would not seek writs to the Louisiana Supreme Court in connection with McKoin I. The Harpers claim the McKoins reneged on the agreement and that is why the parties had not reached an agreement.


author: h CARAWAY, J.

text:
    WALKER, TOOKE & LYONS, L.L.P., Plaintiff-Appellee, v. Douglas SAPP, Defendant-Appellant.
    No. 37,966-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Douglas Sapp, In Proper Person.
    Mayer, Smith & Roberts, L.L.P., by David F. Butterfield, Shreveport, for Ap-pellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

In this collection suit for legal fees, the trial court awarded judgment on behalf of the law firm for its fees plus the interest stipulated in the parties’ contract and attorney’s fees for the prosecution of the claim. The defendant makes assignments of error regarding the conduct of the trial and challenges the interest charge as usurious. Finding merit only in his claim of usury, we amend the judgment to exclude the award of interest in advance of the judicial demand, and as amended, the judgment is affirmed.

Facts

In 1997, Douglas Sapp (“Sapp”) hired a Shreveport law firm to pursue an alleged employment discrimination claim against his former employer, Entergy Corporation. Sapp entered a contingent fee contract with the firm in which he agreed to pay advanced costs and expenses relating to the representation. In 1998, suit was filed in federal court alleging constructive discharge and race-based harassment. In late 1999, after conducting preliminary discovery, this law firm advised Sapp that it was withdrawing as his counsel of record and that he should find a new attorney. Within a few weeks, Sapp contacted Henry C. Walker’s office to schedule an appointment. After the initial consultation, Sapp hired the law firm, Walker, Tooke & Lyons, L.L.P. (“WTL”), to continue the federal court litigation.

Sapp and WTL entered into an letter agreement dated February 25, 1999, detailing how charges for the law firm’s legal services would be billed and paid. Sapp agreed to pay for representation on an hourly fee basis plus costs, to be billed monthly. The fee structure set forth in the letter agreement stated that Henry C. Walker’s time would be billed at $200/hour, that H. Clay Walker’s time would be billed at $100/hour, and that paralegal time would be billed at $50/hour. Further, the letter provided that “[a]n eighteen percent (18%) per annum finance charge accrues on any balance with this firm which is over 30 days old.” Finally, the letter acknowledged receipt of Sapp’s $5,500 retainer, stating that “[o]ur fees and costs will be deducted as earned, and any excess amount due will be billed to you on a monthly basis as described above.” The letter did not contain any provision as to payment for attorney’s fees in the event of collection.

During 1999, WTL engaged in further discovery and refined the components of Sapp’s claim. An amended complaint alleged constructive discharge, promotion denial based on race, hostile work environment due to racial harassment, and race-based pay disparity. In early June, 1999, WTL conducted depositions of two of Sapp’s co-workers, one in Arkansas and one in Monroe. Henry C. Walker testified at trial that by September, 1999, the only claim left that had not been weakened by discovery was the disparate pay issue. Entergy was successful in obtaining a protective order under which its responses to plaintiffs interrogatories were sealed due to their sensitive nature.

In November, 1999, shortly before En-tergy responded to Sapp’s discovery requests, WTL advised Sapp that he was “behind on keeping abreast of our legal fees,” and that Sapp “presently owe[d] ... $6,441.92.” He proposed that they meet at WTL’s office to resolve any financial problems. The same letter indicated that if adequate proof of Sapp’s claims emerged from Entergy’s discovery responses, WTL would change its fee arrangement from an hourly basis to a contingent fee basis. However, this never happened because after reviewing these responses, WTL concluded that there was no evidence to support the disparate pay claim.

After Entergy moved for summary judgment in January, 2000, Henry C. Walker met with Sapp to discuss his claim. The content of the meeting was memorialized in WTL’s letter to Sapp dated January 31, 2000, stating the following:

At the end of our Sunday meeting, you acknowledged that the pay disparity proof wasn’t there, and agreed that I would advise opposing counsel and the Court that we would not be responding to the summary judgment motion, and that the case would be dismissed by the Court sometime thereafter. I have now advised Entergy’s counsel and the Judge’s clerk that we will not be opposing the Summary Judgment motion, and we should expect dismissal soon.

The law suit was dismissed with prejudice on February 24, 2000.

In April, 2001, WTL mailed a demand letter to Sapp requesting payment on the remaining outstanding balance of $10,-978.98 in legal fees and finance charges, pursuant to the contract. When Sapp failed to pay off his account, WTL filed the instant suit to collect the debt. The petition prayed for judgment on the contract in the amount of $10,978.98, plus interest, attorney’s fees, and costs. Sapp answered with a general denial, and reconvened alleging professional negligence, deceptive trade practices, Land a civil conspiracy on behalf of Henry C. Walker and H. Clay Walker to defraud him by excessive and fraudulent billings. Sapp claimed that WTL’s breach of contract constituted a waiver of its right to collect further compensation. The trial court deferred ruling on WTL’s peremptory exception of prescription and motion for summary judgment until trial on the merits.

The trial took place over two days. At the close of trial, the trial court ruled from the bench that WTL proved that Sapp owed $10,978.98 under the fee contract. Additionally, the court awarded WTL “eighteen percent per annum simple interest through the date of judicial demand” and legal interest thereafter on the amount of the judgment. In its bench ruling, the trial court found that Sapp’s claims as set forth in his reconventional demand had all prescribed. The trial court took the matter of WTL’s attorney’s fees for the collection suit under advisement, and subsequently rendered a second judgment for $5,000 plus $400 advanced court costs and expenses. It is from these two judgments that Sapp appeals.

Discussion

We first note that Sapp does not raise an issue of the overall reasonableness of the attorney’s fees, which are always subject to inquiry by virtue of the inherent power of the courts to regulate the practice of law. City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987); Chittenden v. State Farm Mutual Automobile Ins. Co., 00-414 (La.5/15/01), 788 So.2d 1140. Instead, in his first assignment of error, appellant argues that “most of the fees sued upon arose from the calculation of an illegal interest rate.” Specifically, he asserts usury and that the interest awarded by the trial court was improperly compounded. We agree.

With respect to the practice of attorneys charging their clients interest, it is permitted provided the client agrees in writing to such a charge, and the interest rate is lawful and reasonable. Chittenden, supra. Interest is a charge, or fee, commonly expressed as an annual percentage rate, paid by a person for the use he makes of, or a detention he exerts on, monies belonging to another, for a specified period of time. Id. Additionally, La. C.C. art. 2000 provides in pertinent part as follows:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of an agreement, at the rate of legal interest as fixed by Article 2924.

A claim for professional services becomes due upon the completion of such services and interest commences to run from the date the bill is due. James, Robinson, Felts & Starnes v. Powell, 303 So.2d 229 (La.App. 2d Cir.1974); Meeks v. Huntington School, Inc., 489 So.2d 435 (La.App. 3d Cir.1986).

Art. 2924 provides in pertinent part as follows:

A. Interest is either legal or conventional.
C. (1) The amount of conventional interest cannot exceed twelve percent per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case.
* * *
D. The provisions of this Article shall not apply to a loan made for commercial or business purposes or deferring payment of an obligation for commercial or business purposes.

Thus, the conventional interest rate is limited to 12 percent per annum except for business or commercial purposes. Spencer v. Boucher, 587 So.2d 97 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1208 (La.1992).

In The Research Group, Inc. v. Sharp, 430 So.2d 165 (La.App. 2d Cir.1983), this court concluded that a suit on a contract for legal services rendered was not within the contemplation of the Consumer Credit Law (La. R.S. 9:3510, et seq.), and that the general law of the Civil Code concerning interest on debts applied. The court noted in dicta that if the parties had agreed in writing to pay interest as required by Article 2924, the maximum rate of conventional interest would nevertheless be 12 percent per annum. Because such a writing did not exist, the plaintiff could only recover legal interest on the debt from the date of judicial demand.

A rate of interest is usurious when it exceeds the statutory maximum. La. C.C. art. 2924; Bieber-Guillory v. Aswell, 98-559 (La.App. 3d Cir.12/30/98), 723 So.2d 1145; Succession of Drake, 359 So.2d 249 (La.App. 2d Cir.1978). Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted. La. R.S. 9:3501; Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973); Succession of Drake, supra.

Based upon the above law, the eighteen percent interest rate provided in the parties’ contract was usurious and must be forfeited. In reaching this conclusion, we disagree with WTL’s assertions that its finance charge was not interest and that Article 2924’s usury provision applies only to loans. The finance charge listed in the parties’ contract was for Sapp’s untimely performance of his obligation to pay money and thus falls within Article 2000’s discussion of interest as moratory damages. Article 2924’s usury provision of paragraph C is not stated as a limitation solely on loans for the use of money. To the contrary, the language of paragraph D of that article makes reference not only to interest on a loan, but to interest owed for a non-loan commercial or business obligation. Also, as indicated in The Research Group, Inc., supra, we find that an individual’s obligation to pay legal fees is not an obligation for a business or commercial purpose under Article 2924(D).

Additionally, Sapp is correct in suggesting that the judgment reflected improperly compounded interest. The $10,978.98 figure cumulated the legal fees and the eighteen percent finance charge pursuant to WTL’s billing statements. We, therefore, amend and remove the interest/finance charges from the judgment and award WTL $8,566.77 plus legal interest from date of judicial demand.

In his next assignment, Sapp argues that the trial court erred when it denied his discovery request for production of WTL’s daily time sheets reflecting incremental time entries of the attorney or paralegal for services actually rendered. Appellant asserts that he is entitled to audit these daily entries for accuracy and that his inability to do so hampered his ability to defend himself at trial.

WTL objected to Sapp’s pre-trial request for the daily time sheets because of other privileged client data reflected on those sheets. Sapp’s smotion to compel production was not addressed before the time of trial. Before the commencement of the second day of trial, after Sapp had received all other records from his WTL file, the trial court denied his motion to compel the production of the daily time sheets.

The client statements presented into evidence by WTL describe the amount of hours expended each day and the nature of services provided in Sapp’s case by WTL’s attorneys and paralegals. WTL’s bookkeeper testified at trial regarding the process of inputting data from the individual daily time sheets into the computer for the purpose of generating client statements.

The trial court has broad discretion in ruling on pre-trial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. King v. Phelps Dunbar, L.L.P., 01-1735 (La.App. 4th Cir.4/2/03), 844 So.2d 1012. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Id.

From our review of the record, we find no abuse of the trial court’s discretion. The existence of other privileged information on the daily time sheets along with the trial court’s finding that Sapp’s production request had been nondescript convinces us that the trial court correctly refused to grant Sapp’s belated motion to compel during the course of trial.

Sapp’s final assignment of error argues that the trial court erred when it rendered judgment awarding $5,000 for attorney’s fees. He argues . that the awards were made solely on the basis of the trial counsel’s affidavit and WTL’s fee statement and that the trial court should have had a hearing on this issue.

La. R.S. 9:2781 provides the substantive basis for the trial court’s award of attorney’s fees, as follows:

A. When any person fails to pay an •open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section....
D.... “Open account” shall include debts incurred for professional services, including but not limited -to legal and medical services....

The trial court is vested with great discretion in arriving at an award of attorney’s fees. Deutsch, Kerrigan & Stiles v. Fagan, 95-0811, 95-0812 (La.App. 1st Cir.12/15/95), 665 So.2d 1316, writ denied, 96-0194 (La.3/15/96), 669 So.2d 418. The exercise of this discretion will not be reversed on appeal without a showing of abuse of discretion. Id.

The affidavit submitted by WTL reflects that the work performed by attorneys in the firm and by WTL’s trial counsel exceeded the $5000 award of the trial court. The use of the affidavit is appropriate since the trial court’s own knowledge of the complicacy of the case and skill employed by the attorneys serves primarily as the basis for the factual measure of the award. Deutsch, Kerrigan & Stiles v. Fagan, supra. We find no abuse of the trial court’s discretion for either the evidentiary process employed or the amount for the attorney’s fees award.

Conclusion

For the foregoing reasons, we amend the judgment to exclude the conventional interest- award. The amended amount of the judgment shall be $8,566.77 with an award only of legal interest from date of judicial demand. In all other respects, the judgment is affirmed. Costs of appeal are assessed to the appellant.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED. '

      . This sum includes $2,412.21 in finance charges which began to accrue starting in July, 1999.

      . The record shows that Sapp had previously paid a total of $10,787.76.

      . Sapp has represented himself throughout the proceedings.

      . Sapp also apparently attempted to subpoena certain records for trial. The subpoena is not in the record.

      . Act. No. 1075 of 2001, effective August 15, 2001, amended and re-enacted this statute.


author: JjPEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Clifton M. FIELDING, Appellant.
    No. 37,943-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    Walter E. May, Jr., District Attorney, for Appellee.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   JjPEATROSS, J.

Defendant, Clifton M. Fielding, was convicted by a unanimous jury of second degree murder, a violation of La. R.S. 14:30.1. He was sentenced to the mandatory term of life imprisonment in accordance with La. R.S. 14:30.1(B). Defendant now appeals, assigning four errors. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On October 19, 1999, at 11:24 p.m., 911 dispatchers received a call that someone had been shot in the area of Ivy and Howard streets, an area known as West Town, in Arcadia, Louisiana. The Arcadia Police Department and the Bienville Parish Sheriffs Office responded with several officers, as well as emergency medical personnel, dispatched to the scene. The first officer to arrive at the scene was Arcadia police officer, Andrea Rogers. Officer Rogers testified that, when he arrived, there was a small red pickup truck in the middle of the road with the driver’s side door open. A white male was lying in the road outside of the open door with an apparent gunshot wound to the head which was bleeding profusely. A loaded .38 Smith and Wesson pistol was found near the victim’s feet.

Officer Randy Price arrived shortly thereafter. Officer Price testified that no one was in the area when he arrived, but that a few people eventually started coming out of nearby houses. He secured the scene and no one but law enforcement personnel were allowed within 12 to 15 feet of the body and truck. Two deputies from the Bienville Parish Sheriffs Department arrived next, followed by emergency medical personnel. Officer Rogers testified that the medical personnel moved the victim’s body slightly to | ¡.determine whether the man had a heartbeat; but, after determining that the man was dead, the medical personnel left the body in the same position as the officer had found it. Numerous other officers then arrived at the scene and Officer Price took photographs of the crime scene and gathered physical evidence.

A search of the truck revealed that the glove compartment was open, the driver’s side window was down and there was a small splatter of blood on the inside of the driver’s door. There were no signs that a struggle had occurred inside the truck. Two spent .38 caliber cartridge casings were found in the truck, one on the driver’s seat and the other amid jumper cables that were coiled on the passenger side floorboard. Officers found a wallet in the victim’s back pants pocket, which revealed his identity as that of a Gary Stephens. There was no money in the wallet.

Investigators interviewed residents of the immediate area where the shooting occurred. Several residents reported hearing two (or three) gunshots in rapid succession. Although some stated they had looked outside as soon as they had heard the gunshots, all denied seeing anybody in the area after the shooting.

It was determined that the victim, Mr. Stephens, worked in the Arcadia area as a permitter for an oil exploration company and was familiar with the area where his body was found. Prior to the shooting, Mr. Stephens had been at a local bar where he had consumed( a couple of | adrinks and cashed a check before telling an employee of the bar that he was going to fill up his truck with gas and go to the hotel where he was staying to get some sleep. The employee of the bar testified that, after paying for his drinks and a tip, she gave Mr. Stephens $40 in cash. The employee further testified that she thought Mr. Stephens put the money in his wallet, but it might have been his checkbook. No checkbook was found on Mr. Stephens’ person or in the truck.

The investigation of the shooting ultimately led officers to Defendant, who was arrested on an outstanding warrant for shoplifting shortly after the shooting. While in custody, officers questioned Defendant regarding the shooting. In an unrecorded statement, Defendant told a detective that, on the evening of the shooting, he had seen the victim at a convenience store buying gas and that he had gotten in the victim’s vehicle and asked for a ride. Defendant stated that the victim did not agree to give him a ride and Defendant then got out of the truck. He further stated that, since he had opened the passenger side door of the victim’s truck, officers would find his fingerprints there.

The officers also learned during the investigation that Defendant was unemployed and was either living with friends or in abandoned houses in the area where the shooting took place. A friend of Defendant, Jacqueline Baxter, told officers that Defendant had been at her house before and after the shooting. She further divulged that he had a pistol in a black backpack that could possibly be found in one of the abandoned houses nearby.

|4The authorities began a search of the abandoned houses in the area and, in the second house searched, found a .38 Lorcin pistol partially hidden between the cushion and back of a recliner. Officers subsequently questioned Defendant a second time, informing him that the Lorcin pistol had been found. Defendant then told the officers to “get a recorder.” After being read his Miranda rights warning and signing a waiver of rights form, Defendant related to the officers an account of the events leading up to the shooting that substantially differed from his prior statement. In this second statement, Defendant claimed that he was walking down the road when Mr. Stephens and a passenger drove past him in the truck, turned and came back by him. He asserted that Mr. Stephens stopped him . and asked him whether or not he sold drugs. He stated that, when he answered he did not sell drugs, the passenger in the truck raised a gun. Defendant asserted that he was standing on the driver’s side of the vehicle by the front fender when Mr. Stephens attempted to get out of the vehicle and asked him whether or not he knew where he could get some drags. He said he again answered “no.” According to Defendant, at this point, Mr. Stephens was “about to raise a pistol in his hand” and so he (Defendant) put his hand on his pistol and shot Mr. Stephens in self-defense.

A grand jury returned a bill of indictment charging Defendant with the second degree murder of Mr. Stephens. Defendant filed a motion to suppress the statements and the pistol. The defense argued that the statements were coerced and that there was no search warrant sought or issued for the search of the abandoned house where the pistol was found, h The trial judge denied the motion, finding that the statements were made freely and voluntarily and that Defendant did not have a right to an expectation of privacy over the abandoned house which was property belonging to another.

At trial, five officers, three residents of West Town, four friends of Defendant, the bar employee, Mr. Stephens’ boss and three experts testified for the State. The evidence established that there had been no tampering with the crime scene, that the spent cartridge casings found inside the truck were fired from the .38 Lorcin pistol found in the abandoned house and that Mr. Stephens was shot twice — one shot entering under his right armpit and traveling just under the skin of the upper back and the other from very close range to the right side of the head in the area of the temple. Coroner George McCormick testified that the cause of death was the gunshot wound to the head. As previously stated, two .38 cartridge casings were found in the truck. The Lorcin pistol was found with four rounds unfired in the clip that holds six rounds. DNA analysis of tissue taken from the Lorcin pistol was established to match that of Mr. Stephens. There was no evidence that there was, in fact, a passenger in the truck at the time of the shooting. The audio tape of Defendant’s second statement was played for the jury.

The defense moved for a mistrial when the district attorney asked Dr. McCormick if the gunshot wound to the head was the result of an “execution or assassin type killing.” The trial court immediately | (¡admonished the jury and did so again after hearing and denying the motion for mistrial.

The defense presented no evidence. The jury unanimously found Defendant guilty of second degree murder and he was subsequently sentenced to life imprisonment. A motion to reconsider sentence was filed and denied. This appeal ensued.

DISCUSSION

Assignment of Error Number One: There was insufficient evidence at trial to support the verdict of second degree murder.

The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988).

In Defendant’s second statement, he admits that he shot Mr. Stephens, but claims that he was acting in self-defense. In State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852.So.2d 1020, this court reiterated its holding in State v. Hudson, 33,357 (La.App.2d Cir.5/10/00), 760 So.2d 591, that sets forth the law applicable to a claim of justifiable homicide because of self-defense:

|7Self-defense is justification for a killing only if the person committing the homicide reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346. The state has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Arnold, 30,282 (La.App.2d Cir.1/21/98), 706 So.2d 578.

For a homicide to be justified, the offender must have had a reasonable belief he was in imminent danger, of losing his life or receiving great bodily harm and that the killing was necessary, under the circumstances, to save himself from that danger. La. R.S. 14:20(1); State v. Dozier, 553 So.2d 911 (La.App. 4th Cir.1989), writ denied, 558 So.2d 568 (La.1990).

Factors to consider in determining whether a defendant had a reasonable belief the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La. App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

When a defendant in a homicide case claims self-defense, the State has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Garcia, 483 So.2d 953 (La.1986); State v. Flowers, 574 So.2d 448 (La.App. 2d Cir.1991), unit denied, 580 So.2d 666 (La.1991).

Second degree murder is defined in La. R.S. 14:30.1 as:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

Defendant argues that, because a loaded gun was found beside the victim’s body and in light of his statement that he shot Mr. Stephens after Mr. Stephens began to raise a gun, the State did not prove beyond a reasonable doubt that he was not acting in self-defense. The State argues that the physical evidence is inconsistent with Defendant’s second version of the events leading up to the shooting.

The only accounts of the events surrounding the shooting come from Defendant’s two statements to the investigating officers. In the first, unrecorded statement, Defendant denied any knowledge of or involvement in the shooting. He offered only that he had approached Mr. Stephens’ truck, sat in the passenger’s seat and asked for a ride to West Town. After being told that Mr. Stephens was not going to West Town, Defendant got out of the truck and did not see Mr. Stephens again that night. Once Defendant was made aware of the recovery of the Lorcin pistol, however, his story changed. In his second statement, which was recorded and played for the jury, he depicted a much different scene as he explained that |flMr. Stephens and a passenger approached him wanting to buy drugs. Defendant then stated that he did not sell drugs and he noticed that the passenger had a gun. Mr. Stephens then exited the truck and asked about purchasing drugs again and began to raise a gun to Defendant. According to Defendant, he then put his hand on his pistol and shot once aiming at Mr. Stephens’ head and shot again, unsure of where he was aiming with the second shot. Defendant stated that he ran away and hid the gun in a recliner in the abandoned house.

Significantly, Defendant also stated that he was standing on the driver’s side of the truck toward the front fender, at least five to six feet away from Mr. Stephens, when he shot him. The transcript of the statement played at trial reads:

“... And at that time I saw him about to raise a pistol in his hand.
Q Was the driver out of the vehicle at that time?
A Yes. He was out of the vehicle.
Q Did he have his door open?
A The door was open.
Q Lights on?
A Right.
Q Engine still running?
A Yes.
Q All right.
A And I put my hand on the pistol that I was carrying at the time.
Q And your pistol wras where? In your waistband, in the back of your waistband?
A Yes. I put my hand on my pistol and I saw him attempt to raise his gun so I shot.
Q You shot which person?
A The driver.
Q How close to the driver were you?
A At least within five-six feet away.
|inQ You shot at the driver? What part of the driver were you shooting at?
A The pistol-I had the pistol aimed at his head.
Q And you shot one time?
A Twice.
Q The first time you shot shooting at his head and then the second time you fired, where was he at?
A I really don’t know because when I fired the first time, I attempted to turn my head. Scared you know and I just fired again, not looking at what I was doing.
Q Where was the passenger of the truck at, at that time?
A He was still in the vehicle.
Q Did he have his gun in his hand getting out?
A No.
Q What was the passenger doing?
A I really wasn’t paying attention to what he was doing. I was just worried about the-they had a gun you know-

The physical evidence contradicts this scenario. Firearms expert, Richard Beighley, testified that the two spent cartridge casings were fired from the .38 Lorcin pistol that was found in the abandoned house. These cartridge casings were found inside the truck, one in the driver’s seat and one on the passenger side floor board, not outside where Defendant argues he was standing when he fired the shots. Other testimony established that the cartridge casings would eject from the right side of the Lorcin pistol when fired. This supports the State’s suggested scenario that Defendant was inside the truck on the passenger side when he shot Mr. Stephens and'the cartridge cases ejected first onto the seat and then to the right onto the passenger side floor. •

Further compelling evidence that this shooting was not in self-defense is testimony of Dr. McCormick and Mr. Beighley establishing that Mr. Stephens was shot at such a close range that his blood and tissue were h&ound on the Lorcin pistol. Mr. Beighley testified that the tearing of Mr. Stephens’ shirt and the concentration of soot and partially burned and unburned gunpowder were consistent with close contact shots, with the gun being no more than- six -inches from the skin. Further, Mr. Beighley testified that, without testing, his visual- assessment of the shirt convinced him that it was a close contact shot. Dr. McCormick corroborated this testimony, opining that the gun had been pressed against Mr. Stephens’ skin resulting in blood and tissue splattering onto the gun. Finally, Michelle Collins, an expert in the field of DNA analysis, testified that “to a certain probability in this case 1 in 6.4 trillion the ... DNA profile' from the firearm -was consistent with ... the DNA profile from the blood from Gary Stephens.”

The State submits that the foregoing evidence was sufficient for a rational jury to find that Defendant had the specific intent to kill or inflict great bodily harm when he aimed the gun at Mr. Stephens’ head and pulled the trigger. We agree. Numerous cases hold that specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993).12 Pointing a gun at the victim and firing a gun has been ruled sufficient evidence to infer specific intent to kill or do great bodily harm in State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979), and in State v. Maxey, 527 So.2d 551 (La.App. 3d Cir.1988), toril denied, 541 So.2d 868 (La.1989);

On this record, we find that the testimony and physical evidence were sufficient for a rational jury to find that Defendant had the specific intent to kill or inflict great bodily harm when he fired his weapon at Mr. Stephens’ head. Although Defendant’s self-serving statement was that he shot the victim in self-defense, the jury obviously chose to reject this version of the shooting. This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, and does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984).

Even if the jury had accepted Defendant’s version of the shooting, we fail to see how and at what point under Defendant’s scenario he was in imminent danger. Defendant stated that Mr. Stephens did not have the gun in his hand when he was getting out of the vehicle, but “I put my hand on my pistol and I saw him attempt to raise his gun so I shot.” In addition, as previously mentioned, Defendant’s statement that a passenger was present is also suspect. There was no evidence revealed that such passenger existed; and, even assuming arguendo that a passenger was present, a close reading of Defendant’s statement reveals that the passenger and driver had only one gun between them; Defendant stated: “they had a gun you know.” Most Insignificantly, Defendant’s self-defense scenario does not clearly indicate that either the victim or the alleged passenger ever actually pointed a weapon at Defendant or threatened him. Finally, Defendant fails to explain why it was necessary to deliver a fatal gunshot to the head to protect himself. Defendant’s assertion that the State failed to prove that he did not act in self-defense is without merit.

Since we find sufficient evidence to convict Defendant of second degree murder under La. R.S. 14:30.1(A)(1), we pretermit any discussion of Defendant’s arguments challenging the State’s proof of the shooting during an armed robbery under section (A)(2)(a) of the statute.

Assignment of Error Number Two: The trial court erred in refusing to suppress the physical evidence and the statement made by Clifton Fielding on October 23rá.

In this assignment of error, Defendant argues that the intrusion into the abandoned house where the Lorcin pistol was found was unlawful since there was no search warrant sought or issued. He seeks to have the pistol found as a result of the warrantless search and the resulting statement in which he admitted shooting Mr. Stephens suppressed as tainted evidence.

The State argues that the officers were properly investigating the case by searching the abandoned houses and, further, that the owner of the abandoned house where the pistol was recovered had previously requested that they watch the house and keep people out of the house.

La. Const, art. 1, sec. 5, provides:

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or | uaffirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

This court in State v. Taylor, 30,531 (La.App.2d Cir.5/13/98), 714 So.2d 143, held that both the federal and state constitutional provisions protect only reasonable expectations of privacy. We stated:

If there is no reasonable expectation of privacy in the matter sought to be protected, then the constitutional provisions are not applicable. Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979 (La.7/1/97), 696 So.2d 562; Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In other words, compliance with the Fourth Amendment and Article 1, § 5, i.e. warrant or exceptions thereto, becomes immaterial.
* ❖ *
The test for determining whether one has a reasonable expectation of privacy which is constitutionally protected “is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.” Capital City Press, supra, quoting State v. Harper, 27,278 (La.App.2d Cir.8/23/95), 660 So.2d 537, unit denied, 95-2318 (La.1/12/96), 666 So.2d 320.

Our jurisprudence consistently holds that one does not have a right to an expectation of privacy in property belonging to another. In State v. Kimble, 375 So.2d 924 (La.1979), the supreme court, held that two defendants had no right to an expectation of privacy' beneath the steps of a vacant trailer where they had hidden drugs. In State v. Henry, 440 So.2d 872 (La.App. 2d Cir.1983), this court, relying on State v. Kimble, supra, held that a defendant had no right to an expectation of privacy in the house of his girlfriend, when he did not own the property and only occasionally stayed there. Likewise, in the later case of State v. Harper, supra, a panel 11fiof this court found that a defendant had no expectation of privacy in a neighbor’s backyard. Accord State v. Campbell, 93-1959 (La. App. 4th Cir.5/26/94), 640 So.2d 622.

There is no dispute that the deputies conducted a warrantless search of the abandoned house looking for a gun that investigators were told Defendant possessed prior to the shooting and may have hidden in an abandoned house in the area. There is also no dispute that the house was owned by someone other than Defendant, although there was evidence that Defendant sometimes slept in the house without the owner’s consent. While the search was also made without the owner’s consent, the deputies had been in the house before because the owner had asked them to keep vagrants off the premises.

The trial court denied the motion to suppress, specifically finding that Defendant had no expectation of privacy in the property belonging to another. We find no error in this ruling. Defendant had no right to an expectation of privacy in the abandoned house which did not belong to him.

Probable cause for the search existed from the information given to investigators that the pistol may be found in one of the abandoned houses in the neighborhood. Since the search of the abandoned house was not unlawful, the statement given by Defendant after he learned of the recovery of the gun was not subject to suppression as the product of an illegal search. Defendant’s argument to that effect is without merit.

|1fiWe further agree with the trial court that Defendant’s second statement was freely and voluntarily given and was properly admitted by the trial court. A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Normandin, 32,927 (La.App.2d Cir.12/22/99), 750 So.2d 321, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550; State v. Williams, 98-1006 (La.App. 5th Cir.3/30/99), 735 So.2d 62, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

This assignment is without merit.

Assignment of Error Number Three: The trial court erred in denying the motion for mistrial made when the prosecutor asked an inappropriate question during direct examination of a witness.

Defendant argues that the trial court erred in failing to grant a mistrial when the district attorney asked Dr. McCormick if the gunshot wounds were “execution or assassin type.” The trial judge found the question improper, but found that two admonitions to the jury were sufficient to prevent any prejudice to Defendant.

La.C.Cr.P. articles 770 and 771 address the trial court’s authority to declare a mistrial or admonition when an inappropriate comment is made by the district attorney. These articles read:

Art. 770. Prejudicial remarks; basis of mistrial

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
117(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
Art. 771. Admonition
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
* * *
Art. 775. Mistrial; grounds for
A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

|18In the case sub judice, the alleged inappropriate remark came during the State’s questioning of Dr. McCormick:

Q: So this is the type of wound that would be very, very quickly fatal?
A: In a matter of a few seconds, yes, sir.
Q: And could we describe (sic) as an execution or assassination type?
By counsel for defendant:
Objection, Your Honor.
By the court:
Sustained. That is going to be stricken from the record. Ladies and Gentlemen, disregard that comment absolutely. Proceed, Mr. D.A.
By counsel for the defendant:
Your Honor, I’m going to ask that the
Jury be removed.
By counsel for the defendant:
Your Honor, at this point I’m going to ask for a mistrial. There is no way an admonition will ever cure what he just said.

After a hearing on the motion for a mistrial, the trial court found that the question was improper, but that an admonition would suffice. We find no error in this conclusion.

The jury had already heard Defendant’s recorded statement that he had aimed at Mr. Stephens’ head and shot and testimony regarding the position of the body and had viewed photographs of the wound and other crime scene evidence. The trial court reasoned that the remark was made after much evidence was presented regarding the manner in which Mr. Stephens was shot; and, therefore, the impact of the statement was lessened. We note also that, in addition to the admonition, the trial court ordered that no more demonstrative evidence would be allowed, there |19would be no reenactment of the shooting and there would be no more mention of “assassin-type” killing or executions. The trial court further advised the district attorney that, in addition to the granting of a mistrial if such occurred, he would be found to be in direct contempt of court.

The determination as to whether a remark has resulted in denying a defendant a fair trial is within the sound discretion of the trial court, and a denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Smith, 418 So.2d 515 (La.1982); State v. Bean, 582 So.2d 947 (La.App. 2d Cir.1991), writ denied, 586 So.2d 567 (La. 1991); State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (La.1990). In State v. Griffin, 618 So.2d 680 (La.App. 2d Cir.1993), writ denied, 625 So.2d 1063 (La.1993), this court stated that the prosecution’s characterization of the defendant as an “assassin” twice during cross-examination of the defense witness was at best a non-prejudicial error since the trial court had instructed the jury to disregard use of the term and evidence of the defendant’s guilt was overwhelming. In the present case, Defendant has failed to articulate how the lesser action of an admonition in lieu of declaring a mistrial deprived him of a fair trial. Based on the record before us, we find that the trial court did not abuse its discretion in allowing the trial to continue with its strong admonition.

Assignment of Error Number Four: The trial court erred in imposing a sentence that was harsh and excessive under the facts and circumstances of this case.

Defendant argues the statutorily mandated life sentence was harsh and unconstitutionally excessive and that the trial court did not articulate its | ^reasons as required by La.C.Cr.P. art. 894.1. We find no merit in this assignment of error.

The sentence for second degree murder is found in La. R.S. 14:30.1(B) which reads:

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

When there is a constitutional mandatory sentence, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

As to the alleged excessiveness of the mandatory prison term, it is within the legislature’s purview to determine the length of the sentence imposed for crimes classified as felonies and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Koon, supra. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. Id. Further, the argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Davis, 31,-711 (La.App.2d Cir.3/31/99), 732 So.2d 612, writ denied, 99-3114 (La.5/5/00), 761 So.2d 539.

In the case sub judice, Defendant fails to articulate why his circumstances justify an exception to the imposition of the mandatory sentence. In order to overcome the legislative mandate, there must be clear |aiand convincing evidence that Defendant is exceptional or that, because of unusual circumstances, he is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. We find no such unusual circumstances in this case; and, on the evidence presented, we find that imposition of the mandatory life sentence does not shock the sense of justice. State v. Dorthey, 623 So.2d 1276 (La.1993).

This assignment lacks merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Clifton M. Fielding are affirmed.

AFFIRMED.

      . A permitter contacts local landowners on whose property the company seeks' to conduct testing. It is the permitter's responsibility to seek approval from the landowner for the company to lay cable and conduct dynamite testing for oil exploration.

      . On the day of trial, another inculpatory statement to a probation officer was suppressed after the trial court determined that it was taken after Defendant was arrested and his right to counsel had attached.

      . In Harper, supra, this court went further to state that "[w]hen property has been abandoned, a person's property interest in it lapses, and there is no further reasonable expectation of privacy, so property may be searched and seized without normally requiring a search warrant.”