author: LSUSAN M. CHEHARDY, Judge.

text:
    LAMARQUE DODGE, INC. v. JULIAN GRAHAM DODGE, INC., M. Julian Graham, Jr., Michael W. Murphy, and Troy J. Duhon, Daimler Chrysler Motors Company LLC and Daimler Chrysler Services North America LLC.
    No. 04-CA-532.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Herschel C. Adcock, Sr., Baton Rouge, LA, and Jude C. Bursavich, Scott N. Hensgens, Michael P. Fruge, Breazeale, Sachse & Wilson, L.L.P, Baton Rouge, LA, for Third-Party Plaintiff/Appellant, Julian Graham Dodge, Inc.
    Mark F. Kennedy, Gwen J. Young, Wheeler Trigg Kennedy LLP, Denver, CO and Anthony Rollo, Stephen W. Rider, McGlinchey Stafford, New Orleans, LA, for Third-Party Defendant/Appellee, Chrysler Corporation.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   LSUSAN M. CHEHARDY, Judge.

Third-party plaintiff, Julian Graham Dodge, Inc., appeals the partial summary judgment dismissing one of its claims for damages against third-party defendant, Chrysler Corporation. For the following reasons, we affirm.

In the summer of 1996, M. Julian Graham, Jr.(“Graham”) and Michael W. Murphy(“Murphy”) sought to sell the assets of Julian Graham Dodge, Inc.(“JGD”), which owned and operated a Metairie Dodge dealership under a dealer agreement with Chrysler Corporation(“Chrysler”). It is undisputed that Graham and Murphy identified two potential purchasers: Troy M. Duhon(“Duhon”), who was Vice President, director and minority shareholder of JGD from July 1992 through December 18, 1996 and Ronald Lamarque(“Lamarque”).

In October of 1996, Lamarque entered into an Agreement to Purchase certain assets of JGD in Metairie, subject to approval from Chrysler. With knowledge of negotiations between JGD and both Lam-arque and Duhon, Chrysler |4approved Lamarque to succeed as Chrysler’s Dodge dealer in Metairie. On or about December 10, 1996, JGD sold substantially all of its assets to Lamarque Dodge, Inc.(“LDI”).

On June 27, 1997, LDI filed a Petition on Open Account and/or for Recovery of Money Owed and/or for Unjust Enrichment naming JGD, Graham, Murphy, and Duhon as defendants. On August 20, 1997, JGD answered, reconvened, and filed a third-party demand.

In its third-party demand, JGD named Chrysler as third-party defendant and alleged that “Chrysler,” through its employee, A1 Stevens, “intentionally ‘leaked’ confidential information regarding [the JGD/Lamarque] negotiations to one of the potential buyers of [JGD]’s assets, which ultimately cost [JGD] approximately $500,000 on the sale of its assets.” JGD further stated that “Chrysler is liable unto [JGD] for the amount of profit lost on the sale of the assets of the corporation due to the wrongful acts of Mr. A1 Stevens.”

On July 3, 2003, Chrysler filed a motion for partial summary judgment on JGD’s “Stevens-related” claim, to which it attached Chrysler’s answers and supplemental answers to JGD’s interrogatories; excerpts from Alfred S. Stevens, Jr.’s deposition; and excerpts and exhibit from Duhon’s deposition including the Board of Directors’ Resolution dated November 13, 1996 evidencing Unanimous Written Consent to the sale of all of JGD’s assets to Lamarque. Chrysler asserted that there was no genuine issue of material fact because JGD could not prove that there had been a disclosure of information to Du-hon, who was the only other potential buyer, from its employee, A1 Stevens. Further, even if there had been a disclosure, the disclosure would not have been wrongful since Duhon, as Vice | ^President, director, and minority shareholder of JGD, was entitled to know information about the prospective sale of the company or its assets.

In his deposition, Duhon stated that he was Vice-President, director and minority shareholder of JGD from 1992 until December 18, 1996. He stated that he heard rumors in July or August of 1996 that Graham and Murphy were interested in selling JGD. He approached Graham about buying the remaining 75% of the dealership. He stated that he and Graham went to lunch then had another meeting with their attorneys to discuss the purchase.

Duhon stated that he did not submit a concrete verbal offer or a written offer but that he was in negotiations with Graham about the dealership in September of 1996. Duhon stated that he “shied away” from the deal when he learned the price that Graham sought.

Duhon admitted that he spoke with Chrysler employee, A1 Stevens, two to three times a week at that time because they were “social friends and business acquaintances.” Duhon “guaranteed” that he did not remember A1 Stevens’ mentioning or discussing with him the particulars of Lamarque’s offer. He also stated that his decision not to purchase JGD’s assets did not have anything to do with any conversation that he had with A1 Stevens. Duhon admitted that he was aware that Lamarque was also in negotiations to purchase JGD and had, in fact, spoken with Graham about Lamarque’s “buy-sell” offer but denied knowing details of the offer.

According to his deposition, A1 Stevens worked as the Dealer Placement Manager for the New Orleans Zone office of Chrysler Corporation from 1994 until July of 1997. His job was to “coordinate dealer package agreements for ... incoming new dealers, existing dealers, making changes to their current agreement” with Chrysler. For the New Orleans Zone, Stevens would handle | fiChrysIer’s dealership transfers as well as applying for and opening new Chrysler dealerships.

In September of 1996, Stevens stated that he sent a letter to Murphy to convey Chrysler’s concerns about “growing pains” that JGD was experiencing at a couple of their stores, specifically the Dodge dealership. Within a few days, Murphy called Stevens to report that he had “agreed in concept to sell the store, along with selling a couple other stores he had” to Lam-arque.

Stevens admitted that he was in contact with Duhon during this time period but denied discussing with Duhon any of his conversations with Murphy. Stevens knew that he discussed the details of the JGD/Lamarque deal with Murphy “because I remember very specifically hoping to bring Mr. Lamarque to Mr. Murphy, and we had a great deal of discussion about the numbers but never any discussion of numbers that [Murphy] was discussing with [Duhon].”

Stevens went on to state, “In fact, there was never any inference that they were trying to do a deal with [Duhon]. In fact, what was represented to me was they were buying [Duhon] out and [Duhon] was going off to do an import deal.” Stevens further reported that Duhon reported to him that Duhon had learned the details of the Lamarque offer from Graham and his attorney during a lunch meeting. Stevens also stated that, in their only discussion about this deal, Stevens “reiterated to Mr. Duhon ... it was a done deal; that Mr. Murphy and Mr. Lamarque had reached an agreement.”

JGD opposed the motion, averring that there were issues of fact regarding whether Stevens discussed JGD and Lamarque’s buy/sell agreement with Duhon; whether Stevens did not know of Duhon’s discussions with Graham about purchasing JGD; whether Duhon was still a Vice-President, director and minority shareholder of JGD at the time of the sale of assets to Lam-arque; and whether Duhon’s decision not to purchase JGD “had nothing to do with discussions with 17Stevens.” In support of their opposition, JGD attached affidavits from Murphy and John McFarland, who was Secretary of JGD from 1989 until the assets were sold to Lamarque.

In his affidavit, Murphy attested that he was Chairman of the Board from 1989 until the assets were sold to Lamarque. He attested that during negotiations with Graham, Duhon agreed to purchase the assets of JGD and assume all charge-backs from financial institutions that purchased retail installment contracts from Graham. He further stated that, to his personal knowledge, Lamarque offered to purchase the assets for a similar price but refused to assume the charge-backs. According to Murphy, the difference between the two figures was in excess of $500,000.00.

He also attested that, on the day that Graham was to sign the purchase contract with Duhon, Graham learned from Du-hon’s lawyer that Duhon would not agree to the deal. Murphy stated that Stevens “breached [their] confidential conversation” and told Duhon the specifics of Lam-arque’s buy/sell offer.

In his affidavit, John McFarland, who was Secretary of JGD at the time, stated that during negotiations with Graham, Du-hon agreed to purchase the assets of JGD and assume all charge-backs from financial institutions that purchased retail installment contracts from Graham. He further stated that, to his personal knowledge, Lamarque offered to purchase the assets for a similar price but refused to assume the charge-backs. According to McFarland, the difference between the two figures was in excess of $500,000.00.

He also attested that, on the day that Graham was to sign the purchase contract with Duhon, Graham learned from Du-hon’s lawyer that Duhon would not agree to the deal. McFarland stated that Stevens “breached [their] confidential conversation” and told Duhon the specifics of Lamarque’s buy/sell offer. McFarland also stated that on or after, July 1, 1996, Duhon was no longer | ^employed by JDG, was required by the Shareholder’s Agreement to “put” his stock in JGD, and not permitted to review confidential information of JGD after that date.

On November 10, 2003, Chrysler filed a Reply to JGD’s opposition with an attached excerpt of Duhon’s deposition and a copy of the Corporate Stock Buy/Sell Agreement of JGD executed by Duhon in 1994. In its reply, Chrysler argued that the evidence submitted by JGD cannot defeat summary judgment because the affidavits are not based on the personal knowledge of the affiants. Further, Chrysler argues that JGD failed to offer sufficient evidence to defeat summary judgment on the basis that any disclosure to Duhon was not confidential since Duhon remained a minority shareholder and director of JGD until December 18, 1996, at least eight days after JGD’s assets were purchased by Lamarque.

On November 13, 2003, JGD supplemented their opposition to contend that “substantial circumstantial evidence exists tending to prove the disclosure by Stevens.” JGD argued that the circumstantial evidence was the fact that, in his deposition, Duhon admitted that Chrysler awarded him a Dodge franchise in New Orleans East at “no cost.” The trial judge heard and granted Chrysler’s motion for partial summary judgment on the disclosure issue on November 14, 2003.

On November 21, 2003, Chrysler moved to supplement the record of its motion for partial summary judgment with an affidavit from Nancy Davis to contravene assertions made in JGD’s supplemental opposition that Duhon received a Dodge franchise “for free” in exchange for favorable testimony on this case. Nancy Davis attested that she is the present Dealer Placement Manager of the Southeast Business Center for Chrysler. She was employed as the Dealer Placement Manager for the New Orleans Zone from January 2000 through May 2001. Davis attested that “Chrysler never asks for, nor does it receive, any fees or other monetary consideration for awarding a prospective dealer an open point for a | anew dealership.” Davis further attested that the award was not connected to a favorable outcome in this litigation. JGD opposed Chrysler’s Motion to Supplement the Record.

On November 25, 2003, the trial judge signed a written judgment granting summary judgment and dismissing JGD’s claim for purported disclosure of confidential information. The trial judge designated the judgment as final.

JGD filed a Motion for New Trial, which Chrysler opposed. On January 23, 2004, the trial judge heard and denied the motion. On January 29, 2004, the trial judge signed written judgments denying the Motion for New Trial and Granting Chrysler leave to supplement the record with Nancy Davis’ affidavit. This appeal follows.

On appeal, JGD asserts that the trial judge erred in granting Chrysler’s motion for partial summary judgment for three reasons: first, “Chrysler failed to carry its burden;” second, “the trial court improperly made credibility determinations;” and third, “Murphy and McFarland’s affidavits are not hearsay.” With regard to carrying its summary judgment burden, JGD specifically argues that Chrysler’s claim that there was no disclosure misrepresents the testimony because Duhon did not state that there was no disclosure but that he did not remember Stevens telling him of the disclosure. JGD submits that detail is a disputed fact that precludes summary judgment. Next, JGD argues that circumstantial evidence that Duhon received a Dodge dealership “at no cost” was sufficient to defeat summary judgment. JGD also contends that Chrysler’s alternative theory for summary judgment, which is any disclosure to Duhon was not wrongful because he, as an officer, director, and shareholder, had a right to know about the prospective sale of the company or its assets, is flawed.

JGD next argues that, in order to grant summary judgment in this case, the trial court had to “accept Stevens and Duhon’s dubious testimony as true — the | inveracity of which has been directly attached[sic] by the affidavits of McFarland and Murphy” and, thus, improperly made credibility determinations. Finally, JGD argues that Murphy and McFarland’s affidavits are not hearsay under La. C.E. art. 801 because they contain statements by Duhon’s attorney offered against Duhon.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 571*7, 03-1533, (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610.

Summary judgments are reviewed de novo on appeal. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Id.

In Smith, the supreme court recognized that a “genuine issue” is a “triable issue.” Id. “An issue is genuine if reasonable persons could disagree. If on the Instate of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.” Id. Facts are material when their existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id at 751. See also La. C.C.P. art. 966(B). When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967.

The movant, Chrysler, has the burden of proof. La. C.C.P. art. 966(C)(2). However, because Chrysler will not bear the burden of proof at trial, it is not required to negate all essential elements of JGD’s action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to JGD’s claim. If Chrysler meets this initial burden of proof, the burden shifts to JGD to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden at trial. If JGD fails to meet this burden, there is no genuine issue of material fact, and Chrysler is entitled to summary judgment.

In this case, JGD claims that Chrysler is liable to JGD for “wrongful disclosure of confidential information” by its employee, A1 Stevens. Because Chrysler will not bear the burden of proof at trial, it is not required to negate all essential elements of JGD’s action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to JGD’s claim.

After reviewing all of the documents presented in support of Chrysler’s motion for partial summary judgment, we find an absence of factual support for an essential element of JGD’s claim, namely, that there was a disclosure by Chrysler’s employee. JGD’s contention that Duhon’s testimony, which was that he did not remember Stevens discussing other offers that JGD had received, precludes summary judgment is unpersuasive.

| ^Duhon testified that the only people with whom he discussed the Lam-arque/JGD offer were his attorney and Graham. Duhon stated that his decision not to purchase JGD was not influenced by any conversation he had with Stevens. Further, Stevens stated that he did not discuss details of the Lamarque/JGD deal with Duhon but only informed Duhon that it was a “done deal.” We conclude that Chrysler met its burden of proof with respect to summary judgment.

Under the law, the burden then shifts to JGD to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden at trial. In its opposition, JGD presented two affidavits that are substantially similar in their assertions. McFarland and Murphy both attest that, during negotiations with Graham, Duhon agreed to purchase the assets of JGD and assume all charge-backs from financial institutions that purchased retail installment contracts from Graham. They state that Lamarque offered to purchase the assets for a similar price but refused to assume the charge-backs. According to both affiants, the difference between the two figures was in excess of $500,000.00.

They also attested that, on the day that Graham was to sign the purchase contract with Duhon, Graham learned from Du-hon’s lawyer that Duhon would not agree to the deal. Both stated that Stevens “breached [their] confidential conversation” and told Duhon the specifics of Lam-arque’s buy/sell offer.

We are again unpersuaded by JGD’s contention that the affidavits are not hearsay because the information is an admission against interest by a party. La. C.C.P. Art. 967(A), in pertinent part, provides, “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

11gFirst, although the affiants state that the information was based on their personal knowledge, the affidavits do not meet these criteria. Neither affiant exhibits personal knowledge of a disclosure by Stevens to Duhon. Both state that Graham learned from Duhon’s attorney that Duhon was canceling the deal because Duhon learned the details of the Lamarque offer. JGD argues that alleged information from Duhon’s attorney represents an admission against interest, which could be an exception to the hearsay rule. Even if Duhon was a party to the third-party demand, the alleged statement from Duhon’s attorney must be reported by someone who had personal knowledge of that statement. Neither affiant claims knowledge of the statement; in fact, both state that Duhon’s attorney told Graham of the alleged disclosure. We conclude, as the trial judge did, that the affidavits, which are not based on personal knowledge, do not produce factual support sufficient to establish that JGD will be able to satisfy its evidentiary burden at trial.

JGD also supplemented its opposition with an unsupported statement that “substantial circumstantial evidence exists tending to prove the disclosure by Stevens.” JGD argued that Chrysler awarded Duhon a Dodge franchise in New Orleans East at “no cost” in exchange for favorable testimony in this litigation, which tends to prove that Stevens disclosed confidential information to Duhon. Chrysler supplemented its motion for partial summary judgment with an affidavit from Nancy Davis to contravene JGD’s assertions. Nancy Davis, who was Dealer Placement Manager for Chrysler’s New Orleans Zone when Duhon was awarded the new dealership in New Orleans East, testified that, “Chrysler never asks for, nor does it receive, any fees or other monetary consideration for awarding a prospective dealer an open point for a new dealership.” We again conclude that JGD has failed to produce factual support sufficient to establish that JGD will be able to satisfy its evidentiary burden at trial. Accordingly, we find no genuine hfissue of material fact on the issue of alleged wrongful disclosure of confidential information so Chrysler was entitled to summary judgment.

Finally, because we found an absence of factual support for JGD’s contention that a disclosure occurred and found summary judgment was properly granted on Chrysler’s first theory, we decline to reach the merits of JGD’s arguments on Chrysler’s alternative theory of summary judgment. In conclusion, we affirm the trial court’s judgment. Costs of this appeal are to be paid by appellant, JGD.

AFFIRMED.

      . Graham was President of Julian Graham Dodge, Inc.("JGD”) and held 37.5% of its stock.

      . Murphy was Chairman of the Board of JGD and held 37.5% of its stock.

      . Chrysler Corporation, an automobile manufacturer that sells and distributes new Chrysler, Jeep and Dodge automobiles through independent, privately-owned dealerships, is now known as DaimlerChrysler Motors Company, LLC.

      . In 1996, Duhon held 25% of JGD’s stock.

      . LDI alleged defendants owed $760,821.27 with interest in reimbursements for funds received by JGD but owed to LDI for various transactions, including car sales, credit card payments, dealer statement credits, repair and manufacturer charge backs, and a stolen vehicle.


source: Caselaw Access Project

author: I JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kelly BOSS.
    No. 04-KA-457.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux — Appellate Counsel, Andrea F. Long — Counsel of Record on Appeal, Frank A. Brindisi' — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    • Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, CLARENCE E. McMANUS.
   I JAMES L. CANNELLA, Judge.

The Defendant, Kelly Boss, appeals from her conviction for possession of hy-drocodone and her sentence to one year imprisonment at hard labor, suspended, with three years active probation and a $2500 fine; For the reasons which follow, we affirm.

On August 25, 2003, the Defendant was charged in a bill of information with possession of hydrocodone in violation of La. R.S. 40:967(C). She initially pled not guilty and filed several pretrial motions including motions to suppress the evidence and her statement. After a hearing on December 15, 2003, the Defendant’s motions to suppress were denied. On that same date, the Defendant withdrew her not guilty plea and entered a plea of guilty under Crosby and La.C.Cr.P. art. 893.

FACTS

On July 21, 2003, Lieutenant Emile Larson received a phone call from an anonymous caller (AC) advising that the Defendant was going to sell her wedding | -¡ring set to her sister for $2,000 and then obtain illegal narcotics for her husband. The AC identified herself as a member of the Defendant’s family. The AC gave Lt. Larson the Defendant’s name and described her as a white female with brown hair and gave him the Defendant’s approximate height and weight. The AC also described the vehicle that the Defendant would be driving as a grey Mercury Cougar. The AC advised that the ring transaction was going to take place at approximately 3:80 p.m. at the Whitney Bank on Jefferson Highway. She then advised that the Defendant would obtain the drugs after the transaction. Lt. Larson relayed this information to Detective Richard Valley, who had been present in the room during the phone conversation between Lt. Larson and the AC. Detective Valley proceeded to the Whitney Bank and set up surveillance. He observed a car fitting the description given by the AC pull into the parking lot, driven by a person matching the description given by the AC. Detective Valley immediately ran a check on the license plate of the vehicle and learned that it was registered to the Defendant.

Detective Valley watched the Defendant meet with another female in front of the bank. He observed the two engage in a short conversation and then depart in separate vehicles. Detective Valley initiated a moving surveillance of the Defendant, following her to 1804 South Clearview Parkway where she picked up a white male, later identified as Robert Perry (Perry). He followed the Defendant to the 6600 block of Kawanee Avenue where she dropped off Perry, who went inside an address on Kawanee. Detective Valley observed the Defendant circle the neighborhood for approximately five minutes before picking Perry up and driving back to 1804 South Clearview Parkway.

Once the Defendant returned to 1804 South Clearview Parkway, Detective Valley stopped her and advised her of the investigation. He advised the Defendant [4of her rights and interviewed her. The Defendant initially denied having any illegal narcotics. However, when Detective Valley asked her if she would mind turning out her pockets, the Defendant removed seventeen tablets of hydrocodone and gave them to him. The Defendant was arrested and later gave a taped statement.

The Defendant admitted that she drove Perry to Kawanee Avenue so that he could purchase hydrocodone. She denied selling her wedding rings but admitted that her husband used drugs, namely Vieodin, at the time of the incident.

Pursuant to the plea agreement, the Defendant was sentenced to one year imprisonment at hard labor which was suspended in favor of three years of active probation. She was also ordered to pay a fine of $2,500. The Defendant appeals the ruling, denying her motions to suppress the evidence and her statement.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial court erred in denying her motions to suppress the evidence and her statement because the officer lacked reasonable suspicion to conduct an investigatory stop when he stopped her vehicle. The Defendant argues that the officer did not have enough information from the anonymous caller to support reasonable suspicion of criminal activity. She argues that there was not enough predictability in the AC’s information such as the type of drugs involved, the quantity to be purchased, the location of the purchase, or the time the drug transaction would occur. The Defendant contends that there was no ^testimony regarding the AC’s reliability and basis of knowledge and that the officer did not observe any criminal activity when he conducted surveillance of her and the bank. The Defendant also argues that the officer lacked a reasonable belief that he was in danger to justify a pat and frisk. She contends that he had no justification for searching her because there was no evidence that his safety was threatened.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Duckett, 99-314 (La.App. 5th Cir.7/28/99), 740 So.2d 227, 230.

Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops which allow officers to stop and interrogate a person reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La.App. 5th Cir.4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200. Investigatory stops require reasonable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Duckett, supra at 230. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. State v. Triche, 03-149 (La.App. 5th Cir.5/28/03), 848 So.2d 80, 84, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. Under certain circumstances, an informant’s tip can provide reasonable suspicion to detain and question a person. State v. Rodriguez, 99-914 (La.App. 5th Cir.1/25/00), 761 So.2d 14, 17, writ denied, 00-599 (La.4/7/00), 759 So.2d 765. Generally, there must be some corroboration of the informant’s tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960 (La.10/29/98), 721 So.2d 1268, 1270.

Whether an informant’s tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983); State v. Nelson, 02-65 (La.App. 5th Cir.6/26/02), 822 So.2d 796, 801, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627. The sufficiency of an anonymous tip under Terry is determined by the reliability of its assertion of illegality and not just its tendency to identify a determinate person. Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000); State v. Triche, supra at 85. The anonymous caller’s ability to predict the suspect’s future behavior goes towards reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. Alabama v. White, 496 U.S. at 332, 110 S.Ct. 2412; State v. Triche, supra.

Independent corroboration of the details of an informant’s tip by police investigation is valuable when applying the totality of the circumstances analysis. State v. Triche, supra at 85. A non-predictive anonymous tip paired with either police corroboration or independent police observation of unusual suspicious conduct can provide police with the reasonable suspicion needed to temporarily detain the suspect. State v. Robertson, supra at 1270; State v. Triche, supra. “If the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. 2412; State v. Morgan, 00-1501 (La.App. 5th Cir.3/28/01), 783 So.2d 514, 519. In a hearing on a motion to [ suppress, the state bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D).

The Defendant first argues that the anonymous tip was insufficient to justify an investigatory stop. In State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, the Louisiana Supreme Court found that a tip from an untested confidential informant along with police surveillance gave police reasonable suspicion to stop the defendant. The tip named and described the defendant and indicated that he was selling drugs from a certain location. The tipster also described the defendant’s car and provided its license plate number. Based on the tip, the officers set up a surveillance of the location and observed what they believed was a hand-to-hand drug transaction. The Supreme Court noted that the officers did not stop the defendant based solely on the information received from the tipster. Rather, the stop was based on the officers’ observations coupled with the tip.

On the other hand, in State v. Robertson, supra, the Louisiana Supreme Court found the officers lacked reasonable suspicion to stop the defendant. The officers received an anonymous tip that the defendant, who was named and described, was selling drugs. The tip also described the vehicle that the defendant drove and stated where the vehicle would be parked when the defendant was not using it to sell drugs. The officers went to the location and saw the vehicle being driven away. They followed the vehicle and when the defendant stopped, the officers detained him and called for a canine unit. The Supreme Court found that, although the officers corroborated certain aspects of the tip, such as the defendant’s name, physical description, and the location of the vehicle, the tip contained no predictive information. The Supreme Court noted that the tip “failed to predict the specific time period in which the defendant would be engaged in illegal activity.” State v. Robertson, supra at 1270. The Supreme Court stated:

[sWe note that the police were not powerless to act on the non-predictive, anonymous tip they received. The officers could have set up more extensive surveillance of the defendant until they observed suspicious or unusual behavior. Furthermore, if, after corroborating the readily observable facts, the officers had noticed unusual or suspicious conduct on the defendant’s part, they would have had reasonable suspicion to detain him. These circumstances, however, were not present here. In the absence of any suspicious conduct or corroboration of information from which police could conclude that the anonymous informant’s allegation of criminal activity was reliable, we must conclude that there was no reasonable suspicion to detain the defendant.

Id. at 1270-1271.

In the present case, the tip by itself would not have given Detective Valley reasonable suspicion to stop the Defendant. However, the stop was not based solely on the tip. Rather, the stop was based on the tip, Detective Valley’s corroboration of certain aspects of the tip, and Detective Valley’s observation of suspicious activity by the Defendant consistent with drug activity-

The AC named and described the Defendant and her vehicle and stated that she would sell her wedding ring set around 3:30 p.m. at the Whitney Bank on Jefferson Highway. The AC then stated that the Defendant would obtain illegal narcotics after the wedding ring transaction. Detective Valley proceeded to Whitney Bank where he corroborated certain aspects of the tip such as the Defendant’s presence, physical description, and vehicle. He observed the Defendant meet with someone but did not see any type of transaction. He then followed the Defendant as she left the bank. Thereafter, Detective Valley observed the Defendant pick up a passenger from one location and drop him off at another, while she circled the neighborhood for approximately five minutes, before retrieving the passenger once again. Detective Valley testified that this activity was consistent with drug activity. Based on the totality of the circumstances, we find that the officer’s observations, coupled with the tip that the Defendant would |abe engaged in narcotic activity after her transaction at the bank, gave the officers reasonable suspicion to stop the Defendant.

The Defendant next argues that the officer was not justified in conducting a pat-down search. But, as pointed out by the State, Detective Valley testified that the hydrocodone pills were not discovered as the result of a protective frisk. Rather, the Defendant voluntarily gave them to the officer when he asked if she would mind turning out her pockets.

In State v. Duplessis, 391 So.2d 1116, 1118 (La.1980), the Louisiana Supreme Court held that “when one who is suspected of a crime voluntarily complies with a police request, to his own detriment, he cannot reclaim the rights which he has waived.” In State v. Massey, 03-1166 (La. App. 5th Cir.1/27/04), 866 So.2d 965, this Court applied Duplessis and determined that the defendant’s conduct of removing crack-cocaine rocks from her mouth after an investigatory stop was a voluntary act that did not implicate the Fourth Amendment. In Massey, the police conducted an investigatory stop of the defendant while responding to complaints from residents regarding individuals selling drugs in the area. When the police arrived in the area, they observed the defendant put something in her mouth. The officers approached the defendant and asked her to extract the object from her mouth at which time the defendant removed three crack-cocaine rocks from her mouth and dropped them on the ground. On appeal, the defendant argued that the officer lacked reasonable suspicion of criminal activity when he ordered her to remove the cocaine from her mouth. This Court first concluded that the defendant had reasonable suspicion to conduct an investigatory stop based on the citizens’ complaints, the area’s reputation as a high crime area, and the defendant’s suspicious action of placing something in her mouth. Moreover, the cocaine was lawfully recovered because the defendant was not unlawfully seized when she voluntarily relinquished the cocaine.

|inAs discussed above, the police in the present case had reasonable suspicion to stop the Defendant. The record shows that the Defendant was approached by Detective Valley after she returned to 1804 South Clearview Parkway and advised that she was under investigation for narcotics activity. She denied having any illegal narcotics on her at which time Detective Valley asked her if she would mind turning out her pockets. The Defendant then reached into her pocket and retrieved 17 hydrocodone pills which she gave to Detective Valley. Detective Valley acknowledged that he could not have done anything if the Defendant had refused to turn out her pockets.

The Defendant testified that she was told that she had to empty her pockets and that she was advised that a female officer was coming to frisk her. In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the United States Supreme Court noted that “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled” may evidence a seizure. Detective Valley was asked on cross-examination what tone of voice he used in requesting that the Defendant turn out her pockets. As noted by the State in its brief, the trial court heard the tone of voice used by Detective Valley and apparently concluded that it was not such a menacing tone that compelled compliance. Based on the totality of the circumstances, we find no error in the trial court ruling denying the Defendant’s motion to suppress upon finding that the initial stop was legal and that the Defendant voluntarily removed the hydrocodone pills from her pocket and handed them to the officer. This assignment of error has no merit.

h .ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors in this case.

Accordingly, for the reasons stated above, we affirm the Defendant’s conviction for possession of hydrocodone and her sentence to one year imprisonment at hard labor, suspended with the imposition of three years active probation and a $2500 fine.

CONVICTION AND SENTENCE AFFIRMED.

      . The bill of information also charged Robert Perry with possession of hydrocodone and John Draughon with possession with intent to distribute hydrocodone.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The Defendant testified at the suppression hearing that she subsequently learned that the anonymous caller was her sister.

      . It is noted that the Defendant failed to specify which pre-trial ruling she was reserving by pleading guilty under Crosby. The waiver of rights form does not mention any pretrial rulings nor does the plea colloquy. A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby, may limit the scope of appellate review but does not preclude review altogether. State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196 (per curiam). In Joseph, the Louisiana Supreme Court explained,
      [a]bsent a detailed specification of which adverse pre-trial, rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of evidentiary rulings which go to the heart of the prosecution's case that a defendant would otherwise waive by entering an unqualified guilty plea.
      The Supreme Court stated that such rulings would include a motion to suppress the evidence or a confession. Id. at 1197. In the present case, the Defendant pled guilty immediately after the trial court denied her motions to suppress the evidence and her statement. Additionally, said motions were the only pre-trial motions ruled upon by the trial court. Thus, we find that the denial of the motions to suppress the evidence and statement are the pre-trial rulings which she was reserving and, are properly reviewable.

      . It is noted that the Defendant challenged the denial of her motion to suppress the evidence and her statement. The Defendant made no separate argument regarding the admissibility of her statement other than to argue it is the fruit of a poisonous tree, i.e., fruit of an illegal seizure. The State addresses the admissibility of the statement by arguing that it was freely and voluntarily given after the Defendant was advised of and waived her rights. Since the Defendant's only assignment of error pertains to the legality of the investigatory stop, based on our findings on that issue, we likewise find no error relating to the admissibility of her statement.


author: laSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Rene TAYLOR.
    No. 04-KA-346.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      John M. Crum, Jr., District Attorney, Fortieth Judicial District, Parish of St. John the Baptist, Rodney A. Brignac, Assistant District Attorney, for Plaintiff/Ap-pellee.

      Newton K. Muhammad, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   laSOL GOTHARD, Judge.

Defendant, Rene Taylor, appeals his conviction and sentence on a charge of armed robbery in violation of LSA-R.S. 14:64. For reasons that follow, we affirm.

Taylor was charged with the offense by bill of information on September 18, 2002. After being found competent to stand trial, defendant pled not guilty and filed several pre-trial motions, including a motion to suppress his statement which was denied after a hearing. He proceeded to trial on September 9, 2008, and was found guilty as charged by a twelve-person jury. In due course, defendant was sentenced to ten years without benefits. He filed a timely motion for appeal.

FACTS

On August 30, 2002, Officer Darryl Mar-chand was patrolling Airline Highway near Homewood Place when he saw two black males running eastbound on Airline and two black males running along the side of a gas station building. Officer Marchand turned into the parking lot, at which time one of the black males running on Airline approached, and stated he had just been robbed by two males 13who ran to the side of the building. Officer Marchand pursued the two suspects on foot. He drew his weapon and called for the suspects to stop. One of the suspects jumped the fence while defendant complied with Officer Marchand’s commands. As Officer Marchand approached defendant, he saw defendant drop some money, a red bandana, and a piece of paper which later proved to be a check stub bearing the name of David Singleton. A .20 gauge shotgun was later recovered from a grassy area behind the gas station.

Defendant was arrested and transported to the jail. After being advised of his constitutional rights, defendant gave an in-culpatory statement admitting his role in the armed robbery. Defendant stated he and co-defendant, Perry Chopin, were in the Homewood subdivision when they decided to rob someone. He stated Chopin armed himself with a shotgun and gave defendant a 9 mm gun. Defendant explained the victim, David, was sitting in a pickup truck in front of a store when defendant covered his face with a bandana, approached the victim, and pulled a gun. According to defendant, the victim grabbed the gun, at which time Chopin approached with his shotgun. Two people who were with the victim ran, and the victim gave defendant his money. Defendant and Chopin ran away from the scene but were pursued by a police officer. Chopin jumped a fence but defendant was apprehended. Defendant stated he threw the money down when he was ordered to lie on the ground.

Co-defendant, Perry Chopin, testified at trial against defendant. He stated that he was serving a ten-year sentence for the armed robbery he and defendant committed on Homewood. He testified that defendant pointed a 9 mm gun at the victim and took his money. Chopin testified the gun in evidence, a .20 gauge shotgun, belonged to him.

[4As part of the proof against defendant, the State introduced photographs of the money seized and of the check stub bearing the victim’s name. Also introduced into evidence was defendant’s statement.

LAW

In brief to this court, defendant assigns five errors. Specifically, defendant asserts that the trial court erred when it violated his Sixth Amendment right to confront his accuser, and allowed the testimony of Detective Royal Burke concerning the confession of defendant without the testimony of the victim. Further, defendant argues that the evidence presented was insufficient to support the conviction and, that he had ineffective assistance of counsel at trial. In the final assignment, defendant requests that this court conduct an errors patent review of the record.

On review of the assignments of error, we find that the assignment relating to the admission of Detective Burke’s testimony is essentially an argument based on the issue of whether the State proved that a crime was actually committed. Further, in another assignment, defendant questions the sufficiency of the evidence presented to support the conviction.

When issues are raised on appeal as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. Harris, 03-1297 (La.App. 5 Cir. 3/30/04), 871 So.2d 599, 605. Because two of the five errors presented for our review relate to the sufficiency of the evidence, we will consider them first.

Armed robbery is “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64. To | ¡¡support a conviction for armed robbery, the State must prove 1) a taking, 2) of anything of value, 3) from the person or in the immediate control of another, 4) by the use of force or intimidation, 5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Page, 02-689 (La.App. 5 Cir. 1/28/03), 837 So.2d 165, 175, writ denied, 03-951 (La.11/7/03), 857 So.2d 517. In addition to proving the statutory elements of the charged offense, the State is required to prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So .2d 65, 69.

Defendant’s argument as to sufficiency is two-fold. He argues first that his uncorroborated confession cannot be used to establish the corpus delicti and second, that the evidence presented did not prove defendant’s guilt beyond a reasonable doubt.

The law of corpus delicti was discussed by the Louisiana Supreme Court in State v. Brown, 236 La. 562, 108 So.2d 233, 236 (1959) as follows:

In the trial of every criminal case the State, to warrant a legal conviction of an accused, must prove the corpus delicti, or the fact that a crime has been committed. Without such proof no conviction will be permitted to stand....
Suspicion, rumor, gossip, or mere hearsay evidence is not sufficient to establish the proof of corpus delicti. (Internal citations omitted.)

The corpus delicti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt and may be proven by circumstantial evidence. Id. at 236-237. A conviction cannot be based on the extrajudicial confession of the defendant, unless corroborated by independent evidence of the corpus delicti. Id. at 237. When determining the existence of the corpus de-licti, the issue is not whether there is sufficient evidence to convict the defendant; but rather, whether there is any evidence at all^ independent of the confession, that establishes the fact that a crime was committed. Id. at 237.

| ^Defendant’s specific argument in this portion of the discussion is that his confession alone supported the proof of the corpus delicti, in violation of the law. We find that argument unconvincing. Defendant’s confession was corroborated by the specific testimony of Perry Chopin, who specifically stated he saw defendant aim a gun at the victim and take his money. Further, Officer Marchand testified the victim reported he had been robbed by two men. We find the officer’s testimony combined with the eyewitness testimony of Chopin clearly shows that an armed robbery occurred.

Defendant also seems to suggest the trial court erred in admitting his confession prior to the establishment of the corpus delicti. However, Officer Mar-chand and Chopin testified prior to the admission of defendant’s confession; therefore, the corpus delicti was established prior to the playing of defendant’s confession for the jury. Further, it is noted that the order of evidence is within the discretion of the trial court, and there is no requirement the corpus delicti be established prior to the accused’s confession being admitted as long as the corpus delicti is established prior to the close of the State’s evidence. State v. Mullins, 353 So.2d 243, 246 (La.1977).

Defendant also complains the State failed to establish the corpus delicti because the victim did not testify. There is “no rule [that] requires the State to establish the corpus delicti by no other means than through the testimony of the victim of the crime.” State v. Lee, 01-2082 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 623, writ denied, 02-2549 (La.9/5/03), 852 So.2d 1019. We find no merit to defendant’s claim that the evidence is insufficient to support the corpus delicti.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the |7essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

As stated above, Chopin testified he saw defendant, while armed with a weapon, take money from the victim. Defendant admitted in his confession that he covered his face with a red bandana, walked up to the victim (whom he identified as “David”), pulled out a gun and demanded the victim’s money. Defendant stated the victim complied with the demand, and defendant ran away. Officer Marchand testified that when defendant was apprehended, defendant discarded money and a red bandana. This evidence clearly establishes a thing of value was taken from another.

Although defendant did not challenge his identification as the perpetrator of the crime, it is nonetheless noted that the State proved his identity beyond a reasonable doubt through the testimony of Chopin and defendant’s confession. See, State v. Joseph, 01-1211 (La.App. 5 Cir. 4/10/02), 817 So.2d 174, 179, where this Court held that once corpus delicti is independently established, a confession alone may be used to identify the defendant as the perpetrator of the crime.

Because we find no merit in the assignments of error which relate to sufficiency, we now consider the two remaining assignments. In the first, defendant argues his constitutional right to confront his accuser was violated because the victim did not testify at trial.

The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is given to defendants in state as well as federal criminal proceedings. State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131, 1135. The confrontation clause of the Louisiana Constitution specifically guarantees each accused the right “to confront and cross-examine the witnesses against him.” Id. The main purpose of confrontation is to ^secure the opportunity of cross-examination, which is “the principal means by which believability and truthfulness of testimony are tested.” Id. at 1135.

Defendant asserts the information regarding the offense that led to his conviction was provided by the victim. Therefore, defendant reasons he was prejudiced by the failure of the State to present the testimony of the witness at trial where defendant could engage in cross-examination. Specifically, defendant argues he was prejudiced by his inability to cross-examine the victim on issues pertaining to the gun, the money found at the scene, the victim’s observations on the day of the offense, and the victim’s credibility.

Defendant’s assertion that the victim did not testify at trial is correct. To prove its case the State presented the testimony of Officer Darryl Marchand who testified that the victim approached him and stated he had just been robbed by two guys. Officer Marchand explained he asked the victim if the perpetrators were the ones who ran on the side of the building and the victim affirmatively responded. Defendant did not object to this testimony.

At the beginning of the second day of trial and outside the presence of the jury, the State introduced a subpoena issued to David Singleton, the victim, into evidence. The jury was then brought in and the State called for Mr. Singleton to take the stand. There was no response, at which time the State requested the clerk to read aloud the subpoena and return. The return indicated Mr. Singleton did not reside at the address listed in the subpoena. The State then proceeded to call another witness, Detective Royal Burke. Prior to Detective Burke’s testimony, defense counsel objected to any portion of Detective Burke’s testimony pertaining to defendant’s confession on the basis the corpus delicti had not been established. Defense counsel also indicated he would be objecting to the admissibility of the check stub on the ground of hearsay. At no time did defense counsel raise the tissue that he was denied his right to confrontation by the failure of the victim to testify.

In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841. It is well-established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict, then resorting to appeal on errors that might easily have been corrected by an objection. State v. Johnson, supra at 187. Since defendant did not object to the victim’s failure to appear or to any testimony on the ground that it violated the confrontation clause of the United States or Louisiana Constitutions, he is precluded from raising the issue on appeal. See State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366, 369-373, writ denied, 00-208 (La.8/31/00), 766 So.2d 1274.

In the fourth assignment of error defendant argues he had ineffective assistance of counsel at trial. Defendant enumerates six allegations in support of this assignment.

1) Defense counsel failed to present a defense after the State rested;
a) Defense counsel failed to call any witnesses;
b) Defense counsel failed to subpoena the victim;
c) Defense counsel failed to give defendant an opportunity to testify on his own behalf;
2) Defense counsel failed to adequately question the State’s witnesses on cross-examination;
|in3) Defense counsel was unprepared for trial;
4) Defense counsel failed to meet with defendant prior to trial to discuss trial strategy;
5) Defense counsel failed to object to inadmissible prejudicial evidence; and,
6) Defense counsel failed to file a motion for reconsideration of sentence.

Generally, a claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La.C.Cr.P. arts. 924-930.8. State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095.

We have reviewed the allegations of ineffective assistance of counsel made herein and find that there is sufficient evidence to consider some, but not all, of the allegations. We find this assignment of error and its supporting allegations of ineffective assistance of counsel are best considered in their entirety by the trial court on post-conviction relief at an evidentiary hearing. Accordingly, we will not discuss this assignment in this direct appeal.

In his final assignment of error, defendant requests a review of the record for errors patent on the face. We have conducted such a review and find a discrepancy between the minute entry and the sentencing transcript. The sentencing transcript Instates that defendant’s ten-year sentence was imposed “without benefit, per the statute.” The minute entry does not contain the restrictive language. WTien there is an inconsistency between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). It is noted, however, that mandated statutory restrictions on the eligibility of benefits are self-activating and require no action by this court when the trial court fails to impose the sentence with the mandated restriction of benefits. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 798-799; State v. Williams, 03-942 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1016.

For the foregoing reasons the conviction and sentence are affirmed.

AFFIRMED.

      . Defendant stated he recognized the victim as someone he knew after he was apprehended by the police.


author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Calvin R. GRANT, Jr.
    No. 04-KA-341.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

Defendant Calvin Grant appeals his sentence for one count of distribution of marijuana in violation of LSA-R.S. 40:966(A) and one count of possession of cocaine in excess of 200 grams but less than 400 grams, in violation of LSA-R.S. 40:967(F). Grant withdrew his initial plea of not guilty, and entered guilty pleas on both counts. In accordance with his plea agreement, he was sentenced to eleven years on each count, the sentences to run concurrently with each other. The eleven-year sentence on count two was imposed without the benefit of parole, probation or suspension of sentence.

Grant argues that the eleven year sentence on each count is excessive, asserting that the sentences should be reduced below the mandatory minimum. Grant contends he is a drug addict in need of treatment as opposed to long incarceration, claiming he changed his life as evidenced by his pastor’s testimony, letters on his behalf, and certificates showing he completed several substance |3abuse classes while in jail. He asserts the mandated sentences are excessive as to him.

The record on appeal shows that the sentences were imposed pursuant to a plea agreement. The waiver of rights form executed by Grant shows he was advised and understood that he would receive “11 years each count concurrent with each other and with any other sent., [sic] with credit for time served.” During the plea colloquy, the trial judge advised Grant that if she accepted his pleas he would be sentenced to “eleven years in the Department of Corrections on each count....” The court asked Grant if he understood and agreed to it to which he replied affirmatively. Grant was subsequently sentenced to eleven-year concurrent sentences in conformity with the plea agreement. The sentences imposed are well within the statutory limits.

Under LSA-C.Cr.P. art. 881.2(A)(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. During the Boykin colloquy, the judge reviewed with Grant the sentences agreed upon, and Grant stated that he understood the sentences agreed upon as part of the plea bargain. Moreover, Grant and his attorney completed and signed a waiver of rights form that included a statement of the sentences that Grant would receive. This Court has consistently recognized that La.C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty.

Based on the foregoing, Grant is not entitled to appellate review of his sentence for excessiveness.

Pursuant to our error patent review, we note that Grant received illegally lenient sentences on both counts. Neither the State nor Grant raises this issue on [¿appeal. Grant was convicted of distribution of marijuana and possession of cocaine between 200 and 400 grams. A conviction for distribution of marijuana requires a fine of not more than $50,000 and requires at least five years of the sentence be without the benefit of parole, probation or suspension of sentence. A conviction for possession of cocaine between 200 and 400 grams requires a fine of not less than $100,000 and • not more than $350,000. LSA-R.S. 40:966(B)(2); LSA-R.S. 40:96Y(F)(1)(b). Grant did not receive a fine on either conviction and his sentence for distribution of marijuana was imposed without any restrictions. Generally, statutory restrictions against parole, probation or suspension of sentence are self-activating and the failure of a trial court to impose a sentence with such restrictions does not require corrective action. Moreover, in the present case, we find that the failure of the trial court to restrict Grant’s sentence on count one is inconsequential because the entirety of his sentence on count two was imposed without the benefit of parole, probation or suspension of sentence and the two sentences were ordered to run concurrently. In effect, Grant’s eleven-year sentence will be served without benefits.

Regarding the failure to impose any mandatory fines, although we have the authority to correct an illegally lenient sentence, despite the fact that neither party has raised the issue below or on appeal, we have also recognized that such authority is permissive rather than mandatory, and have, on occasion, declined to remand for imposition of a mandatory fine. When a' defendant is sentenced pursuant to a guilty plea, this Court has withheld from correcting an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant |Bmakes no complaint and which resulted in disposition of the case favorable to the defendant. In the present case, we will not disturb Grants sentences.

Finally, we note that the trial court failed to properly inform Grant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Grant was advised that he had “two years from the day [his] judgment of conviction becomes final to seek post-conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. We remand the case and order the district court to properly inform Grant of the time from which prescription for post-conviction relief runs by sending written notice of such to him within ten days of the rendition of the appellate opinion, and to file written proof that defendant received the notice in the record.

For the foregoing reasons, the sentences are affirmed, and the matter is remanded in accordance with this opinion.

AFFIRMED.

      . See State v. Dorthey, 623 So.2d 1276 (La.1993).

      . State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writs denied, 03-200 (La. 10/10/03), 855 So.2d 326 and 03-503 (La.10/10/03), 855 So.2d 329; State v. Guerra, 03-1071 (La.App. 5 Cir. 12/30/03), 865 So.2d 154.

      . State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790. See also State v. Taylor, 04-0054 (La.App. 5 Cir. 4/27/04), 874 So.2d 297; State v. Sarrio, 04-89 (La.App. 5 Cir. 5/26/04), 875 So.2d 898.

      . See State v. Samo, supra; State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609.

      . State v. Massey, 02-872 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, writ denied, 03-805 (La. 10/17/03), 855 So.2d 758, citing State v. Campbell, 01-0329 (La.l 1/2/01), 799 So.2d 1136.

      . See, State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975.


text:
    James BURROW and Kathleen Burrow v. DELTA CONTAINER and XYZ Insurance Company.
    No. 04-CA-566.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Frank A. Bruno, New Orleans, LA, for Plaintifl/Appellant.
    Pierre M. Legrand, Ginger K. Deforest, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA, THOMAS F. DALEY.
   I JAMES L. CANNELLA, Judge.

The Plaintiffs, James and Kathleen Burrow, appeal from a summary judgment in favor of his employer, the Defendant, Delta Container, in an intentional tort suit. We affirm.

The depositions and affidavits attached to the summary judgment motion established that on September 13, 2001 James Burrow was employed by the Defendant constructing-boxes. That morning, he and another employee, Linda Chatelain (Chate-lain), set up a Revicart folder-gluer machine to run a small specialty box for a Tony Chachere product. On the initial run, they determined that a certain “flap” was not folding right. To resolve the problem, the plant supervisor, Craig Hart-zheim (Hartzheim) instituted a work method of “hand positioning” the box as it passed from the gluer aerial belt system to the drying compression belt system so that the boxes would be straight before they came out of the machine. The machine had been installed for less than one year. At some point prior to that day, the safety devices on the doors had been disconnected to allow access to the machine interior to straighten boxes that were not coming out correctly. On the day of the accident, Hartzheim assigned the job of fixing the I nflaps to Virgil Barbarin (Barbarin), who had 20 years experience with moving machinery parts, but had not yet worked “inside” that machine. Hartzheim showed Barbarin how to place his hand in a space approximately 1-1/& feet between the moving parts to flatten the box flaps. The Plaintiff was at the rear of the machine stacking the boxes at the time. Chatelain was the primary operator. The machine was running slow, one box approximately every 10 seconds. All of the workers knew that the safety devices had been overridden.

According to Barbarin, he did this for approximately one half hour, although the Plaintiff recollected that Barbarin performed this job for two hours, from 7:00 a.m. to 9:00 a.m. Barbarin testified that he was not afraid to work the machine. However, it was uncomfortable because he had to lean over to reach the boxes and it was also monotonous. He recollected that during the 9:00 a.m. break, the Plaintiff noted that he was not happy with his job and offered to switch jobs. The Plaintiff thought Barbarin asked to switch because he was so uncomfortable. Nevertheless, the two men swapped jobs without telling anyone. The Plaintiff performed Barba-rin’s job .for approximately two hours before his right arm made contact with the aerial belt and was drawn into and around the roller, seriously injuring his wrist.

Hartzheim testified that he had performed the job in the past and had done so since the accident. On the day of the accident, the machine was run at its slowest setting. Hartzheim watched Barbarin for approximately ten minutes after showing him how to do the job. He was not aware that Barbarin and the Plaintiff had swapped places prior to the injury. Hart-zheim stated that when he assigned Barba-rin the task, he did not intend for anyone to be injured and did not believe that an injury was substantially certain to happen to either Barbarin or the Plaintiff.

Under the “Important Advice” section of the Revicart manual, Revicart states: “It is severely forbidden to approach the machinery from its side during | operation. Protection barriers have been installed on the machine for this reason.” None of the employees recalled reading or seeing the warning. However, it was clear that the machine had problems with some boxes and that the safety devices remained off even after this accident. Hartzheim testified that he continues to employ the same technique, but now he is the only one that performs it.

On December 10, 2001, James Burrow filed a Disputed Claim for Compensation. On August 30, 2002, he and Kathleen Burrow filed a petition for Plaintiffs personal injury damages, asserting the intentional tort exclusion to the workers’ compensation act. On January 10, 2003, the Defendant filed a motion for summary judgment, asserting that the exclusive remedy is under workers’ compensation. A hearing on the motion was held on April 29, 2003. On May 1, 2003, the trial judge granted the motion.

On appeal, the Plaintiffs allege that the trial judge erred in failing to find disputed issues of fact regarding whether the Defendant intentionally injured James Burrow.

In support of the motion for summary judgment, the Defendant submitted the petition, excerpts from the depositions of James Burrow and Barbarin, the affidavit of Hartzheim and the Disputed Claim for Compensation. In their opposition to the motion, the Plaintiffs attached the depositions of Mark May, the Defendant’s general safety manager, the depositions of Hartzheim, Barbarin, Chatelain, and Philip Arceneaux, the production manager, the affidavit and curriculum vitae of Michael Frenzel (Frenzel), an expert as a “Certified Safety Professional,” and the inserts from the Revicart manual.

The Plaintiffs assert that James Burrow’s injury was substantially certain to follow from the Defendant’s willful and intentional disregard of the safety devices and from the work method devised by the Defendant that required him to place his hand among the moving parts of the machine. They point out that the machine was | ¡¡designed to shut down if the safety doors were opened and that it was against the manufacturers’ recommendations to turn off the safety devices. They note that the practice of switching positions was permitted by the Defendant and that James Burrow and Barbarin were unaware that it was against OSHA regulations to allow an employee to work inside the machine. The Plaintiffs also refer to Frenzel’s affidavit which asserts that the Defendant disregarded the public safety instructions in the manual and devised a procedure that required employees to place their hands in a danger zone. He notes that no other alternative methods were attempted to fix the problem. In his opinion, the accident was caused by the willful and intentional disregard and discard of critical safety devices. Given the conditions, he concluded that the accident was foreseeable and substantially certain to occur.

A summary judgment is reviewed by the appellate courts de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Garrison v. Tanenbaum, 02-1181, p. 4 (La.App. 5th Cir.4/8/03), 846 So.2d 40, 42. The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La.C.C.P. art. 966(A)(2); Garrison, 02-1181 at 4, 846 So.2d at 42.

The burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or moré elements essential to the adverse party’s claim, action, or defense. Garrison, 02-1181 at 5, 846 So.2d at 43. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; [,La. C.C. P. art. 966(C)(2). After the motion for' summary judgment has been properly supported by the movant, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison, 02-1181 at 5, 846 So.2d at 43.

A claim by an employee against his employer for'injury or death resulting from a work-related accident is almost always recoverable only through workers’ compensation. La. R.S. 23:1032 provides, in part:

A.(l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, 'or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages....
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional tort.

In Carrier v. Grey Wolf Drilling Company, 00-1335, p. 4 (La.1/17/01), 776 So.2d 439, 441 and Reeves v. Structural Preservation Systems, 98-1795, p. 5 (La.3/12/99), 731 So.2d 208, 210-211, the Louisiana Supreme Court explained that the exclusion is narrow, and that the Louisiana legislature has rejected amendments to the section that would allow double compensation in cases where an employer violated a safety regulation, failed to provide a required safety device or, through a supervisor, acted with gross negligence. See also: Nicks v. AX Reinforcement Co., 02-1116, p. 6 (La.App. 5th Cir.2/25/03), 841 So.2d 987, 990.

In Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981), the Court stated that “the words ‘intentional act’ mean the same as ‘intentional tort’ in reference to civil liability.” In this context, “intent” is that the person who either (1) consciously desires the physical result of his. act, whatever the likelihood of, that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Id.; Reeves, |798-1795 at 6, 731 So.2d at 211; Nicks, 02-1116 at 6; 841 at 991. The substantial certainty element is not satisfied simply because “someone may, or even probably will, eventually get hurt if a workplace practice is continued. That falls within the range of negligent acts that are covered by workers’ compensation.” Reeves, 98-1795 at 9, 731 So.2d at 212; Nicks, 02-1116 at 6, 841 So.2d at 991.

“ ‘Substantially certain to follow’ requires more than a reasonable probability that an -injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ ” Jasmin v. HNV Cent. Riverfront Corp., 94-1947, p. 2 (La. App. 4th Cir.8/30/94), 642 So.2d 311, 312; Reeves, 98-1795 at 9, 731 So.2d at 213; Nicks, 02-1116 at 7; 841 So.2d at 991. “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty’ requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4th Cir.1993), unit denied, 629 So.2d 347 (La.1993); Reeves, 98-1796 at 10, 731 So.2d at 213; Nicks, 02-1116 at7, 841 So.2d at 991. “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Armstead, 618 So.2d at 1142 (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4th Cir.1991)); Reeves, 98-1795 at 10, 731 So.2d at 213; Nicks, 02-1116 at 7, 841 So.2d at 991.

In this case, there are no facts presented that would support a finding of intent, within the meaning of the workers’ compensation intentional act exclusion. The evidence was to the contrary. No one intended for James Burrow or anyone to be injured. The method, although unsafe, was used to correct a problem inherent in the machine. Furthermore, the accident was not “substantially certain” to follow within the meaning of the workers’ compensation law. Hartzheim had performed the job in that manner since the machine had been installed without injury, as did | sBarbarin and Burrow for several hours. Even if we agree with plaintiffs argument that a high probability exists that someone would evidentially be hurt by the dismantling of a safety mechanism on the machine, such actions would, at the most, constitute reckless disregard for the safety of the employees. Reckless disregard constitutes gross negligence and does not satisfy in this case the very narrow criteria for asserting an intentional tort under the Workers Compensation Act. Thus, we find that the trial judge did not err in granting the summary judgment in favor of the defendant.

Accordingly, we hereby affirm the judgment. Costs of appeal are to be paid by the Plaintiffs.

AFFIRMED.


author: J^WALTER J. ROTHSCHILD, Judge.

text:
    David MILLET, Jr. v. IMPERIAL FIRE AND CASUALTY INSURANCE, Lloyd T. Clabaugh and Encompass Indemnity Company.
    No. 04-CA-561.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Richard M. Millet, Laplace, LA, for Plaintiff/Appellant.
    Gerald A. Melchiode, Julie Eustis Vaici-us, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J^WALTER J. ROTHSCHILD, Judge.

Plaintiff, David Millet, Jr., appeals from a summary judgment rendered in favor of defendant Continental Insurance Company. For the reasons stated herein, we affirm.

Facts

David Millet, Jr. was injured in a vehicular collision on September 3, 2001 when a vehicle being operated by Lloyd Clabaugh struck Millet’s vehicle from the rear. Millet filed suit for damages against Clabaugh and his liability insurer, as well as against Continental Insurance Company as Millet’s uninsured/underinsured motorist carrier. Plaintiff averred in this petition that Clabaugh was intoxicated at the time of the accident, and plaintiff sought punitive damages pursuant to La. C.C. article 2315.4. Additionally, plaintiff alleged that Clabaugh’s liability policy provided minimum limits of $10,000 and that he was an underinsured driver for the purpose of this claim. In an amended petition, plaintiff averred that the |,-¡Continental Insurance policy provided UM coverage to Millet with policy limits of $100,000.00.

Thereafter, Continental Insurance Company filed a motion for partial summary judgment seeking a declaration that the UM limit of the Continental policy in effect on September 3, 2001 was $10,000, rather than the $100,000 as alleged by plaintiff. In support of this motion, Continental attached a certified copy of the insurance policy issued to David Millet, Jr., including a UM selection form as well as the deposition of David Millet, Jr.

David Millet, Jr. also filed a motion for partial summary judgment in this matter seeking a declaration that the limits of Millet’s UM coverage with Continental Insurance Company is an amount not less that the bodily injury liability limits of $100,000.

By judgment rendered on February 12, 2004, the trial court granted the partial summary judgment filed by Continental Insurance Company and denied the motion filed by plaintiff David Millet, Jr. In the same judgment, the trial court certified this ruling as a final and appealable partial judgment.

David Millet, Jr. now appeals from this ruling, arguing that the trial court erred as a matter of law in declaring that the UM limits under the Continental policy were $10,000.

The Insurance Policy

The Continental insurance policy in the name of David Millet, Jr. which was effective on the date of the accident is contained in the record. Policy Number U.S. 214514296 was issued on June 20, 2000 and provides policy limits for bodily injury liability coverage of $100,000 per person, $300,000 per accident ($100,000/$300,000). On the uninsured/underinsured motorist coverage form attached to the policy, it is indicated by David Millet’s initials and signature that UM coverage with |4lower limits than bodily injury liability coverage was selected. The amounts indicated on this form for UM coverage limits are $10,000 for each person and $20,000 for each accident ($10,000/$20,000).

In his deposition testimony which is contained in the record, Mr. Millet stated that when he initially applied for this insurance policy, he executed a UM selection of benefits form indicating lower limits because he wanted to reduce his premium when he added a third vehicle to the policy. Mr. Millet contends that following the initial selection, he deleted the third vehicle from his policy and that he did not sign another selection of benefits form at this time. Further, Mr. Millet substituted a new BMW for an older model after the issuance of the policy and his initial selection of UM benefits. Mr. Millet stated that his intention when he made these changes to the policy was to select UM coverage with the same limits as the bodily injury liability coverage, $100,000/$300,000. In his deposition, Mr. Millet also identified a copy of a Policy Change Request which he submitted after the accident on January 3, 2002 in an attempt to correct the UM limits on his policy to accurately reflect his intention to maintain UM limits at the same level as his bodily injury liability coverage.

Mr. Millet argues that since he made changes in his policy after the issuance of the policy and after he initially selected lower UM limits, a new policy was created. Mr. Millet argues that the deletion of the third vehicle and the substitution of a new vehicle materially changed the policy, and a new written UM selection form was therefore required. He contends that the initial UM limits selected by him are ambiguous, and cannot be considered as a valid rejection of UM limits in the amount of bodily injury liability coverage afforded by the policy.

\fJLaw and Discussion

The issue presented by this appeal is whether the deletion of a vehicle or the substitution of a new vehicle on an insurance policy operates to create a new policy requiring the execution of a new UM selection form.

Pursuant to La. R.S. 22:1406 D(l)(a)(i), redesignated as La. R.S. 22:680 by Acts 2003, No. 456, Section 3, UM coverage must be provided in an amount not less than the limit of bodily injury liability coverage, unless the insured rejects that coverage or selects lower limits. This statute also provides that the form signed by the insured which initially rejects coverage or selects lower limits shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. La. R.S. 22:1406 D(l)(a)(i), now La. R.S. 22:680(l)(a)(ii).

In Dempsey v. Automotive Casualty Insurance, 95-2108 (La.App. 1 Cir. 6/28/96), 680 So.2d 675, the court restated the general rule regarding the rejection of UM coverage that an initial valid rejection or selection of lower limits by an insured is also valid for renewal, reinstatement, or substitute . policies. LSA-R.S. 22:1406D(l)(a)(i). By definition, the policy in the instant case qualifies neither as a renewal nor reinstatement policy. | See, Dempsey, supra, 680 So.2d at 679. The policy was renewed in June of 2001, several months before the accident herein, and coverage has been continuous since the policy was issued. We must next determine whether the policy changes made by Mr. Millet constitute a substitute policy or whether a new policy was created.

There is little jurisprudence concerning substitute policies. However, a majority of the courts of appeal have held that an increase in liability coverage has the effect of a new policy and; if a separate UM selection/rejection is not executed at that time, the UM coverage increases in an amount equal to the face limits of liability. Ruiz v. Lewis, 579 So.2d 1203, 1207 (La. App. 4 Cir.), writ denied, 586 So.2d 562 (La.1991); Gaar v. Sowards, 573 So.2d 499, 501 (La.App. 1st Cir.), writ denied, 569 So.2d 990 (La.1990); Guilbeau v. Shelter Mutual Insurance Co., 549 So.2d 1250, 1255 (La.App. 3rd Cir.1989). Further, increasing the number of insured vehicles under a policy or increasing the bodily injury liability limits of a policy, has been held to result in a new policy. See, Daigle v. Allstate Ins. Co., 690 So.2d 261, 262 (La.App. 4 Cir.1997), writ denied, 693 So.2d 738 (La.1997)(addition of car); Doyle v. Titan Indemnity Co., 629 So.2d 516, 520 (La.Ct.App. 5 Cir.l993)(addition of another insured and/or new vehicle); Thibodeaux v. Champion Ins. Co., 614 So.2d 232, 233-34 (La.App. 3 Cir.1993) (addition of car); Donaghey v. Cumis Ins. Society, 600 So.2d 829, 831 (La.App. 3 Cir.1992)(addition of car).

In Dempsey v. Automotive Casualty Insurance, supra, the court found that the addition of an additional insured to an existing policy, without any change in the bodily injury limits, increased the policy’s coverage, such that the policy was not a substitute, policy. As such, the court determined that 17the policy was a new one, requiring the execution of a separate selection/rejection of UM insurance.

However, in Lewis v. Lenard, 694 So.2d 574, 577 (La.App. 2 Cir.1997), the Louisiana Second Circuit Court of Appeal explained that a substitute policy clearly requires some change in a policy. The materiality of the change, however, determines whether the change results in a “new” policy requiring the execution of a UM waiver rather than a substitute policy which does not. Lewis, 694 So.2d at 577. Deleting one named insured and changing the remaining named insured’s name on the policy to her maiden name did not cause the issuance of a new policy. Id. at 578. In so concluding, the court explained that the remaining named insured, the vehicle covered, and the amount of bodily injury liability coverage remained constant. Id.

The jurisprudence further reveals that the substitution of one vehicle for another constitutes a substitute policy. In Allen v. State Farm Mutual Automobile Insurance Company, 617 So.2d 1308, 1312 (La.App. 3rd Cir.1993), the court held that the substitution of one vehicle for another, regardless of the addition of comprehensive and collision coverage on the replacement vehicle, did not convert the existing policy into a new policy, but, rather constituted a substitute policy within the intendment of La. R.S. 22:1406D(l)(a)(i).

We are mindful that UM coverage in Louisiana is provided for by statute and embodies a strong public policy to promote full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Exceptions to this statutory provision are to be interpreted strictly. Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987). The insured must be allowed an opportunity [ato make an “informed and meaningful” selection of being covered by UM coverage or not. Tugwell v. State Farm Ins. Co., 609 So.2d 195,197 (La.1992).

However, on a motion for summary judgment, judgment must be rendered in favor of mover where there are no genuine issues of material fact. La. C.C.P. art. 966. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 634 So.2d 1180 (La.1994).

In the present case, Louisiana jurisprudence clearly provides that Mr. Millet’s substitution of a new vehicle for an older model constituted a substitute policy and a new policy was not created by this change. Allen, supra. Mr. Millet did not add a new vehicle to his policy which resulted in an increase in liability coverage; rather, he substituted one vehicle for another and liability coverage remained constant. Further, the deletion of the third vehicle from the policy did not increase liability coverage, but rather had the opposite effect. Mr. Millet has been unable to point to any legal or jurisprudential support to bolster his position that a new policy is created by the deletion of a vehicle from a policy. We fail to find an issue of fact as to whether this action created a material change to the policy so as to require the execution of a new UM selection form.

Thus, under the facts of this case, the initial UM selection form executed by the insured at the time the policy was issued remains in effect. There was no requirement for a new UM selection form to be executed as there was no increase in liability coverage.

| ^Accordingly, the lower limits of UM coverage in the amount of $10,000/$20,000 remain in effect for Mr. Millet’s policy. The trial court was therefore correct in granting partial summary judgment in favor of Continental Insurance Company on the issue of UM coverage limits. The judgment of the trial court is hereby affirmed. Plaintiff, David Millet, Jr. is to bear all costs of this appeal.

AFFIRMED.

      . Plaintiff initially named another insurer as his UM carrier, but subsequently filed an amended petition to reflect the proper defendant, Continental Insurance Company.

      . The case relied upon by plaintiff, Smith v. Foret, 98-1142 (La.App. 1 Cir. 5/14/99), 734 So.2d 922 is not applicable herein. In that case, the insured deleted two categories of "COVERED AUTOS" from coverage and the court specifically distinguished this case from the situation involving the standard addition, deletion, or substitution of one vehicle from a policy.