author: | TRAYLOR, Judge Pro Tempore. b BROWN, C.J.,

text:
    STATE of Louisiana, Appellee, v. Marlon WASHINGTON, Appellant.
    No. 37,321-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, Indigent Defender Board by Michelle M. AndrePont, Marlon Washington, In Proper Person, for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

Defendant, Marlon Washington (‘Washington”), was convicted of two counts of illegal use of a firearm, one count of aggravated burglary and one count of attempted aggravated burglary. He was adjudicated a fourth felony offender, and on the first count of illegal use of a firearm, sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On the second count of illegal use of a firearm, he was sentenced to fifteen years at hard labor without benefit of probation, parole or suspension of sentence. On the charge of aggravated burglary, he was sentenced to fifteen years at hard labor, and on the charge of attempted aggravated burglary, he was sentenced to ten years at hard labor. These sentences were ordered to run concurrently. Washington now appeals the multiple-offender conviction and the sentences. We affirm.

FACTS

Washington and the victim, Rosalind Johnson (“Johnson”), had dated, but separated just prior to the evening of February 18, 2000. On the evening of February 18th, Washington went to Johnson’s home armed with at least one firearm. Johnson was in the yard of her home. Washington confronted her about their broken relationship, then shot her twice, once in the leg and once in the arm. Johnson crawled into her vehicle in an attempt to find safety. Washington then broke through the front door of Johnson’s home and shot a Johnson family friend, Meuril Sellers (“Sellers”), once in the side of his chest. Washington left Johnson’s home to again threaten the injured Johnson who was still in her vehicle. He then went back into | ¡Johnson’s home where he again attempted to shoot Sellers, but his gun only clicked and did not fire.

When Johnson saw Washington reenter her home, she left her vehicle and fled to a next-door neighbor’s house where she hid in a back bathroom. Washington followed her into the neighbor’s house with the stated purpose of killing her. The neighbors refused to allow Washington into the back of their house, telling him that Johnson had departed. Washington fled the scene, but was arrested shortly thereafter with several firearms in his possession. Johnson and Sellers survived their wounds.

Washington was charged with two counts of illegal use of a firearm and two counts of aggravated burglary, one for each of the homes he entered. The jury found him guilty as charged of the two counts of illegal use of a firearm and the aggravated burglary of the Johnson home. As to the entry into Johnson’s neighbor’s home, the jury found Washington guilty of the responsive verdict of attempted aggravated burglary.

Thereafter, the state filed an habitual offender bill of information, alleging Washington to be a fourth felony offender. The first conviction was a September 22, 1986 guilty plea to simple burglary. Washington received a three-year hard labor sentence that was suspended, and he was placed on five years’ active probation which was revoked on May 26, 1989. The second conviction was an April 23, 1991 guilty plea to simple burglary for which Washington received a three-year hard labor sentence. The third |,-¡conviction was an October 5,1995 guilty plea to illegal use of a weapon for which Washington received a one-year hard labor sentence. The fourth conviction included one of the February 18, 2001 illegal use of a weapon in a crime of violence charges of which Washington was convicted on August 9, 2001. Washington pled “not guilty” to the habitual offender bill of information and did not file any objections to it.

The multiple offender hearing was held on May 24, 2002. The state proved that Washington was the person convicted of the prior felonies. Expert testimony established him to be the individual in the prior convictions based on his fingerprints on the bills of information. The trial court found Washington to be a fourth felony offender and sentenced him to life imprisonment without benefit of probation, parole or suspension of sentence on the illegal use of a weapon conviction included in the habitual offender bill of information. As to the second conviction for illegal use of a firearm, the trial court sentenced Washington to fifteen years at hard labor without benefit of probation, parole or suspension of sentence. On the aggravated burglary conviction, the trial court sentenced Washington to fifteen years at hard labor. On the attempted aggravated burglary conviction, the trial court sentenced him to ten years at hard labor. These sentences were ordered to run concurrent with one another. Washington filed a motion to reconsider his sentence which was denied by the trial court.

UDISCUSSION

As to assignment of error number one, Washington makes two arguments regarding the allegedly defective fourth felony offender adjudication. First, he argues that the state only introduced the minutes of his guilty pleas, and, in particular, that the minutes of the October 5, 1995 conviction for illegal use of a weapon were insufficient to establish that he was properly advised of his rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Second, he argues that the state failed to meet its burden of proving that the ten-year cleansing period had not lapsed on the 1986 conviction.

In State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993), we stated:

Where ... a prior conviction resulted from a guilty plea, the state must present a record made contemporaneously with the acceptance of that plea showing that defendant effectively waived his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Baker, 471 So.2d 945 (La.App. 2d Cir.1985); State v. Collins, 546 So.2d 1246 (La.App. 1st Cir.1989), writ denied, 558 So.2d 599 (La.1990). Although the prosecution here introduced certified copies of court minutes from both of the previous proceedings, those documents reveal only that ‘the court informed the defendant of his constitutional rights as per Boykin v. Alabama.’ This statement, standing alone, does not sufficiently demonstrate an explanation and waiver of defendant’s constitutional rights. Accordingly, the presented minute entries do not suffice to meet the state’s burden of proof. Cf. State v. Jones, 516 So.2d 396 (La.App. 5th Cir.1987).

In this instance, the court minutes reflecting Washington’s guilty plea on October 5,1995 read as follows:

THE ACCUSED, PRESENT IN COURT WITH COUNSEL, ROSS OWEN, THE STATE FILED A BILL OF INFORMATION. THE ACCUSED WAIVED ARRAIGNMENT AND PLED GUILTY TO THE CHARGE. THE COURT INFORMED THE DEFENDANT OF HIS | ,,iCONSTITUTIONAL RIGHTS AS PER BOYKIN VS. ALABAMA (SEE COURT REPORTER’S TRANSCRIPT). WHEREUPON, THE DEFENDANT WAS SENTENCED TO BE CONFINED AT HARD LABOR FOR A PERIOD OF ONE (1) YEAR, AND COMMITTED TO THE LOUISIANA DEPARTMENT OF CORRECTIONS, SUBJECT TO THE CONDITIONS PROVIDED BY LAW. THE COURT ORDERED THE DEFENDANT BE GIVEN CREDIT FOR TIME SERVED. THE SENTENCE IMPOSED WAS AN AGREED SENTENCE. (JUDGE BRYSON). (Emphasis added).

Washington’s counsel argues that since Washington was not provided a transcript of the October 5, 1995 guilty plea requested in discovery and he subsequently filed a motion to quash the fourth felony habitual offender bill of information, the guilty plea was somehow infirm.

Our review of the record indicates that when the district attorney filed the fourth felony habitual offender bill of information on October 31, 2001, counsel for Washington responded immediately on November 2, 2001 with a motion for discovery requesting a copy of the court minutes and guilty plea transcripts for all prior felony convictions. The state provided the court minutes of all three felony convictions, but provided the guilty plea transcripts of only two of those convictions. It did not provide the transcript of the October 5, 1995 guilty plea to illegal use of a weapon.

On January 30, 2002, however, the court minutes reflect that the court deemed all discovery requests satisfied. Subsequently, on April 2, 2002, Washington filed a motion to quash the fourth felony habitual offender bill on grounds that the state could not show that the guilty plea was properly taken in compliance with Boykin.

LOn April 19, 2002, Washington then filed a pro se motion for production of documents of all the proceedings transcribed in this case.

On May 9, 2002, the court minute entry states that the state filed an amended fourth felony habitual offender bill. The new bill alleges the same three prior felonies as the first bill with a hand-corrected date. The entry further reads:

THE ACCUSED WAIVED ARRAIGNMENT AND PLED NOT GUILTY TO THE CHARGE. COUNSEL FOR THE ACCUSED WITHDREW THE MOTION TO QUASH FOURTH FELONY HABITUAL OFFENDER BILL OF INFORMATION.

The record is silent as to why the motion to quash was withdrawn. There is no transcript of this proceeding in the record. However, on May 24, 2002, at the multiple offender hearing, the state filed a supplemental discovery response consisting of the court minutes and guilty plea transcript of an additional felony conviction of Washington on January 19, 2000 for a charge of felony theft.

At this hearing, in addition to other exhibits, the state offered into evidence state’s Exhibits S-l and S-2. Exhibit S-l was a bill of information showing that Marlon Washington was charged with illegal use of a weapon and contained his fingerprints on the back of the bill taken on the date of conviction. The date of the offense was August 20, 1995. Exhibit S-2 consisted of the minutes from the Caddo Parish clerk’s office in docket number 176,-683, showing that on October 5, 1995, Washington was represented by counsel, pled guilty to one count of illegal use of a weapon and was sentenced to one year’s imprisonment at hard labor. As to both of [7these evidentiary offerings, counsel for Washington responded, “No objection, Your Honor.”

After introduction of similar evidence of the other felonies of which Washington had been convicted, Sergeant Owen McDonnell (“McDonnell”) was qualified as a fingerprint expert. In open court, McDonnell took Washington’s fingerprints on a card which was offered into evidence as Exhibit S-7. McDonnell then matched the fingerprints on Exhibit S-l and the other bills of information with the fingerprints on Exhibit S-7. Washington’s counsel did not object to the fingerprint exhibits.

After a cross-examination of McDonnell by Washington’s counsel, and with no argument from defense counsel, the matter was submitted to the court. The court then ruled, adjudicating Washington a fourth felony offender, to which defense counsel objected.

In State v. Shelton, 621 So.2d 769 (La.1993), the supreme court explained the shifting burden of proof in an habitual offender proceeding:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State....

Id. at 779.

In this instance, Washington denied the allegation of the bill of information by pleading not guilty to the habitual offender bill. It was then|sthe state’s burden to (1) prove the existence of the prior guilty pleas and (2) that Washington was represented by counsel.

Our review of the transcript of the multiple offender hearing and court minutes of prior convictions offered into evidence at the multiple offender hearing indicates that the state used fingerprint evidence and expert testimony on that evidence to show that Washington was the same as the person charged by the previous bills of information and convicted by the guilty pleas. The court minutes reflect that Washington was represented by counsel in each case.

The state having met its burden, it was incumbent upon the defense to produce some evidence of an infringement upon Washington’s rights or a procedural irregularity. Although Washington filed a motion to quash the fourth felony habitual offender bill, the motion simply alleged that the state could not establish that the plea was taken in compliance with Boykin. The motion acknowledged that Washington was advised of his rights per Boykin, but did not allege any infirmity in those proceedings. Defense counsel then withdrew the motion for reasons not apparent from the record. However, we note that the state did supply, by a supplemental discovery response, the court minutes and transcript of an additional guilty plea felony conviction of Washington that could have been used for the habitual offender proceeding.

The court minutes reflect that Washington was advised of his rights under Boy-kin. When the minutes were introduced at the multiple offender hearing, Washington did not object to their introduction regarding any of the guilty pleas, thereby distinguishing the case from Jeffers, supra; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.04/04/03), 840 So.2d 1213. Washington offered no affirmative evidence showing any infringement of his rights or procedural irregularity in response to the court minutes. State v. O’Neal, 34,814 (La.App.2d Cir.10/12/01), 795 So.2d 1292. Thus, the court was entitled to find that the state met the initial burden by proving Washington’s guilty plea on September 23, 1986 was informed and voluntary and made with an articulated waiver of the three Boykin rights. Shelton, supra. See also, State v. Green, 36,741 (La.App.2d Cir.03/05/03), 839 So.2d 970.

The second part of Washington’s assignment of error number one is that the state failed to prove that the ten-year “cleansing period” between the 1986 conviction and the current 2001 conviction had not lapsed, citing State v. Ignot, 29,745 (La.App.2d Cir.09/24/97), 701 So.2d 1001, writ denied, 1999-0336 (La.06/18/99), 745 So.2d 618, for the proposition that the state’s failure to prove Washington’s date of discharge and that the “cleansing period” has not expired is' error patent.

Louisiana R.S. 15:529.1(B) & (C) provide:

B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.
C. This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as | ^provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods.

Since this Court’s ruling in Ignot, supra, the Louisiana Supreme Court has admonished the courts that the use of the term “cleansing period” is not correct, and that the only appropriate determination of a time limitation period is the time between the current conviction and the next previous conviction. State v. Everett, 00-2998 (La.05/14/02), 816 So.2d 1272 at 1276-77.

Applying the holding in Everett, supra, to the case sub judice, the present conviction was in 2001. The last conviction prior to that was in 1995, a period of less than ten years. As a result, Washington was properly determined to be a habitual offender, and all of his prior felony convictions could be used to determine his status. The trial court was correct to find that Washington was a fourth felony offender. The state proved, beyond a reasonable doubt, every essential element of the habitual offender bill under La. R.S. 15:529.1. Shelton, supra; Everett, supra; O’Neal, supra.

In assignment of error number two, Washington argues that although the sentence falls within the statutory limits, it may violate his constitutional right against excessive punishment.

The state argues the Habitual Offender Law is constitutional in its entirety, and the mandatory sentence is also constitutional.

Louisiana R.S. 15:529.1(A)(2)(c)(ii), as in effect in 2001, provides:

If the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or |nas a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or of any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

When, as here, a defendant’s motion for reconsideration urges merely that a sentence is excessive, he is relegated to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.02/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

A sentence is considered grossly disproportionate to the offense if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. La. Const, art. I, § 20. The definition of criminal conduct and the provisions of penalties for such conduct are purely legislative functions. State v. Carlos Johnson, 31,448 (La.App.2d Cir.03/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653. Pursuant to this function, the legislature enacted the habitual offender statute which has been held, on numerous occasions, to be constitutional. State v. Walter Johnson, 97-1906 (La.03/04/98), 709 So.2d 672. Since that statute in its entirety is constitutional, the minimum sentences it imposes on repeat offenders are presumed constitutional. Id.

In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and | ^convincingly show that he is exceptional, which, in this context, means that because of unusual circumstances, the defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Carlos Johnson, supra. Additionally, in determining whether a defendant has met this burden, the trial judge must consider that the goals of the Habitual Offender Law are to deter and punish recidivism. Id. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the Habitual Offender Law should occur only in rare instances. Id.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La.C.Cr.P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.04/04/01), 784 So.2d 714; State v. Owens, 32,642 (La.App.2d Cir.10/27/99), 743 So.2d 890, writ denied, 2000-0438 (La.09/29/00), 769 So.2d 553. It would be an exercise in futility -for the trial court to discuss the factors enumerated in Article 894.1 when the court has no discretion in sentencing a defendant. Carlos Johnson, supra.

Although in State v. Dorthey, 623 So.2d 1276 (La.1993), the court found that a punishment required by statute can be shown to be an excessive punishment, the appellate courts of this state have recognized that declaring a sentence under the Habitual Offender Law constitutionally excessive should be a rare act, not a commonplace practice. As this Court stated in State v. Ponsell, 33,543 (La.App.2d Cir.08/23/00), 766 So.2d 678, 685, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490:

... Although, in State v. Dorthey, supra, the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive.... (Citations omitted.)

Prior to imposing sentence, the trial court reviewed a presentence investigation report and considered the facts of the case. Washington had two witnesses testify on his behalf, but the trial court noted that he was a fourth felony offender, and the life sentence was mandatory. In reviewing the harm done to society, the evidence shows that Washington’s actions in the current conviction resulted in the shooting of two victims and that he threatened several others. His criminal record is one of multiple burglaries and violence involving firearms.

After close scrutiny of the record, this Court cannot say that Washington has met his burden of proof to show that he is the exceptional defendant for whom downward departure from the mandatory statutory minimum life sentence is required. This assignment is, therefore, without merit.

CONCLUSION

For the foregoing reasons, Washington’s convictions and sentences are affirmed.

AFFIRMED.

BROWN, C.J., concurs with written reasons.

b BROWN, C.J.,

Concurring.

I agree but would add that State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993) is not viable law. It conflicts with State v. Shelton, 621 So.2d 769 (La.1993).

      . The first multiple-offender bill incorrectly alleged that the conviction occurred on May 26, 1989 rather than September 22, 1986, the actual date of the guilty plea. A corrected, amended bill was filed on May 9, 2002.


source: Caselaw Access Project

author: J^MOORE, J.

license: Public Domain

text:
    Patti Louanne Denmon POPE and John Pope, Plaintiffs-Appellees, v. Matthew L. PRUNTY and City of Shreveport, Defendants-Appellants.
    No. 37,395-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Rountree, Cox, Guin & Achee by Dale G. Cox, Shreveport, for Appellants, Matthew L. Prunty and the City of Shreveport.
    Hicks, Hubley and Marcotte by Craig O. Marcotte, Shreveport, for Intervenor-Ap-pellee Stat.e Farm Mutual Auto Insurance Co.
    Rice & Kendig by William F. Kendig, Shreveport, for Appellees.
    Before STEWART, MOORE and TRAYLOR (Pro Tempore), JJ.
   J^MOORE, J.

Officer Matthew Prunty (“Prunty”) and the City of Shreveport (“City”) appeal a judgment finding Prunty solely at fault in an intersectional collision with the plaintiff, Patti Louanne Denmon Pope (“Pope”). Prunty and the City also contest the rejection of their reconventional demand that Pope was comparatively negligent. Finding no manifest error on the issue of negligence, we affirm and remand for further proceedings.

Factual Background

During the morning of November 15, 1999, the Shreveport Police Department (“SPD”) received a report of a sexual assault at the Fairfield Oaks Apartments on Fairfield Avenue. Two SPD officers, Dews and Vines, were already en route when Prunty received the dispatch regarding the sexual assault matter. Unbeknownst to Prunty, the assault complaint was canceled before Dews and Vines made it to the scene.

At the time Prunty received the dispatch, he was driving his cruiser south on Fairfield, around the Hollywood Avenue intersection; he pulled into a parking lot on his left, turned around and re-entered Fairfield. Fairfield in this area is an asphalt, two-lane road running north and south with no shoulders or neutral ground, with double-striped yellow “no-passing” lines and a posted speed limit of 35 mph. In this section of Fairfield, the northbound lane is much narrower than the southbound lane. Between Hollywood and Oek-ley Drive (“Oekley”), Fairfield runs through a residential area on both sides with two neighborhood schools and a public park immediately adjacent. There are no traffic lights until a yellow caution light appears at the westside t-intersection with Oekley. Trabue Street | ¡.intersects Fair-field between Hollywood and Oekley and marks the crest of a hill on Fairfield.

Driving north on Fairfield, Prunty deployed his overhead bar lights, his wigwag lights and was manually pressing his air horn intermittently; he did not employ his siren. At the same time, Patti Pope was also driving north on Fairfield, slowing down to make a left turn at Oekley. Several cars were waiting behind her; Prunty testified that about a dozen vehicles in the northbound lane scooted to the right to allow him to pass as he crested the hill and neared Oekley. Two of these drivers, Rhonda Martinez (“Martinez”) and Myrtis Edwards (“Edwards”), testified the police car was traveling north in the southbound lane. Edwards also testified that her vehicle was immediately behind Pope’s car and that she observed Pope initiating a left turn on to Oekley with her left turn signal on. Edwards further testified that as the police officer passed her she did not hear any warning sound and that the police car was traveling “faster than normal.”

Edwards gave a written statement to the SPD stating that Prunty was driving at a high rate of speed. Edwards also testified that when she first turned on to Fairfield from a side street north of Oek-ley, she looked to the left and did not see a police car. However, once she began driving on Fairfield, she saw the police car in her rear view mirror. Edwards also testified that she saw Pope turning left at the time the police car struck Pope’s car and that Pope must have panicked when Pope observed the police car closing upon her vehicle. Martinez’s testimony was confused in part as she testified that she heard a “siren” and saw police car lights andjjthat she saw Pope turning left from Oekley on to Fairfield and traveling north when Prunty collided his cruiser with Pope’s vehicle. Martinez testified that she first saw Prunty’s police car after he topped the hill on Fairfield. Martinez did not recall Edwards’ vehicle between her vehicle and Pope’s car. Martinez further testified that the police car appeared to be traveling very fast when he passed her.

Prunty suddenly saw that Pope was starting to make a left turn, with the front of her car in the southbound lane, when Prunty slammed on his brakes, steered his cruiser to the right across the center lines and skidded roughly 106 feet. The left front quarter panel of his cruiser slammed into the left rear quarter panel of Pope’s Lexus, totaling both vehicles.

On direct examination, Prunty testified that immediately prior to braking, he observed Pope’s vehicle turning left and then began to drift back to the right as though Pope changed her mind regarding the left turn. Then, on cross-examination, Prunty testified that after he hit his brakes, he observed Pope’s vehicle turn to the left after drifting to the right.

A1 Gonzales (“Gonzales”), who was accepted and testified as an expert for Pope in the fields of collision analysis, human factors and police tactical driving, policy and procedure, testified that the physical evidence showed that Prunty was driving 63-64 mph, pre-skid, which was too fast to stop within the 106 feet range of the resulting skid marks left by Prunty’s cruiser.

Prunty’s expert Captain James Hilton (“Hilton”) was accepted in the limited area of emergency police driving response, and testified based solely |4on information obtained from Prunty, that Prunty’s pre-skid speed was approximately 40-45 mph. On cross-examination, Hilton admitted that he did not take all scientific factors into consideration in reconstructing Prunty’s pre-skid speed and that he did not disagree with Gonzales’s estimation of Prunty’s pre-skid speed after viewing Gonzales’s computer simulations which considered all scientific factors to determine speed.

Gonzales further testified that, when traveling in the range of 60-64 mph, it would take approximately 300 feet for Prunty’s cruiser to come to rest. Gonzales also presented five computer simulations of the instant collision, including a 48 mph speed factor up through a 64 mph speed factor for Prunty and factoring in the post-impact vehicle trajectory and post-impact resting places of the vehicles. Gonzales testified that the simulations showed that if Prunty had been traveling 48 mph pre-skid, his cruiser would have come to rest before any impact with Pope’s car. Gonzales further testified that the simulation which most clearly matched the vehicles’ final resting positions, considering the length of the skid marks, showed that Prunty was traveling in the pre-skid range of around 64 mph and struck Pope’s vehicle in a manner physically consistent with her making a left turn at the time of impact.

Pope sustained head trauma and other physical injuries. Because she lost consciousness from the collision, she has no significant recollection of the impact or the events immediately preceding or following it. Prunty also sustained physical injuries from the collision.

| faction of the Trial Court

At the close of the liability phase of this bifurcated trial, the district court rendered a comprehensive written ruling. The trial court explicitly accepted the testimony of Edwards and a homeowner, Ms. Deborah L. Caple (“Caple”), who resides on Fairfield in the area of the collision. Caple testified she heard no audible sounds from Prunty’s cruiser prior to the collision; the court did not accept the contrary testimony of Martinez since she left the accident scene and failed to report her observations until months later after she was involved in an accident. The court found that the investigating officer, Lt. Margie Fields, conducted an inadequate investigation of the accident by interviewing only one witness and failing to note the resulting damage to the vehicles; however, the court accepted her conclusion that driving 60 mph on Fairfield was too fast and that Prunty should have been using his lights and siren. Lastly, the trial court accepted the testimony of plaintiffs expert, Gonzales, as based on a thorough scene investigation, sound and legitimate methodology, and because Gonzales’s computer simulations were consistent with the facts and applied science surrounding the collision. The trial court gave less weight to the City’s expert, Hilton.

The trial court found that the conduct of Prunty in the instant response must comply with subsections A, B and C of R.S. 32:24 (quoted infra) to benefit from a “gross negligence” standard of review. The trial court found that Prunty complied with subsection A, but that he violated subsections B and C. Specifically, the trial court found that, given the | (¡environmental circumstances existing on Fairfield at the time of the accident, 63-64 mph was too fast and that Prunty’s excessive speed brought the citizens into peril of probable harm to their life or property and thus, violated subsection B.

The trial court also found that Prunty’s actions, as established by Edwards and Caple, failed to provide an audible signal sufficient to warn motorists of his approach, thus violating subsection C. Specifically, Prunty could not have manually honked his air horn enough to warn Pope because he needed both hands to steer his police car down Fairfield at a high speed, weaving in and out of traffic. Because of the insufficient audible warning and excessive speed, the court concluded that Prunty’s conduct would be evaluated by an ordinary negligence standard.

The trial court found Prunty 100 percent at fault, first by finding that he should have chosen Southern Avenue as his emergency response route, as it would have presented considerably less traffic and a safer route to Prunty’s destination. Second, the court found Prunty negligent for not using his siren but instead manually deploying his air horn, requiring the use of one of his hands; this was not only insufficient, but also distracted from his attention and focus. Finally, the court found that driving 63-64 mph, some 20 mph over the posted speed limit, in the conditions present on Fairfield, was simply too fast and caused Prunty to be unable to stop in time to avert the collision.

| ^Standard of Review

An appellate court may reverse the findings of the trial court only when a reasonable factual basis does not exist for the finding and the finding is clearly wrong or manifestly in error. Stobart v. State, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Thomson v. Thomson, 34,353 (La.App. 2 Cir. 1/24/01), 778 So.2d 736. Though an appellate court may surmise that its own evaluations and inferences are reasonable, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Goings v. State, 94-1386 (La.1/17/95), 648 So.2d 884; Thomson v. Thomson, supra. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845; Thomson, 778 So.2d at 738.

The task of the reviewing court is not to assess whether the trial court’s factual findings are right or wrong in an absolute sense, nor to determine whether the court of appeal or another trier of fact might reasonably reach a different conclusion from the same evidence, but solely to ask whether this fact finder’s resolution of the conflicting evidence was treasonable in light of the record as a whole. See, Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

Discussion

In this appeal, Prunty has assigned 20 errors and 16 issues which we have consolidated by commonality of analysis for brevity.

The Applicable Standard of Care under La. R.S. 32:24

The driver of an emergency vehicle is accorded particular driving privileges when responding to an emergency call. La. R.S. 32:24 A. These privileges include exceeding the maximum speed limits “so long as he does not endanger life or property.” R.S. 32:24 B(3). However, this privilege applies “only when such vehicle is making use of audible or visual signs sufficient to warn motorist of [its] approach, except that a police vehicle need not be equipped with or display a red light visible from the front of the vehicle.” R.S. 32:24 C; Lenard v. Dilley, 2001-1522 (La.1/15/02), 805 So.2d 175, 179.

Finally, these special driving privileges do not “reheve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provision protect the driver from the consequences of his reckless disregard for the safety of others.” R.S. 32:24 D; Lenard, supra.

In effect, R.S. 32:24 D sets out two standards of care for emergency vehicle drivers, depending on the circumstances. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C, will an emergency vehicle driver be held liable only for his actions which constitute 13reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C, such driver’s actions will be gauged by an ordinary negligence standard. Lenard at 178.

A breach of the duty to drive with due regard for the safety of others as set forth in R.S. 32:24 by an emergency responder driver will result in a finding of actionable negligence on the part of the driver. Butcher v. City of Monroe, 31,932 (La.App. 2 Cir. 5/5/99), 737 So.2d 189, 193, writ denied, 99 1608 (La.9/17/99), 747 So.2d 566; United Bilt Homes, Inc. v. Schmitt, 29,837 (La.App. 2 Cir. 9/24/97), 699 So.2d 1167, 1168.

Prunty’s Compliance with Subsection B(3)

Prunty contests the trial court’s conclusion that he violated subsection B(3). He concedes that he was exceeding the posted 35 mph speed limit and driving on the wrong side of the road. However, he urges that the true cause of the accident was his emergency response to the sexual assault call, thus satisfying the requirements of R.S. 32:24 B and Lenard, supra. Prunty elaborates that under the "trial court’s erroneous analysis, no emergency responder who is involved in an accident in which someone is hurt or property damaged will ever be able to comply with the provisions of R.S. 32:24 B(3).

This argument is without merit and was properly disposed of by the Louisiana Supreme Court in Lenard, when the Court rejected the application of a reckless disregard standard in all situations for emergency responders:

|1ftJust because an individual happens to be an emergency vehicle driver, does not automatically relieve him from liability for ordinary negligence. To hold otherwise would have the effect of severely endangering the public safety, as emergency vehicle drivers could at all times engage in ordinary negligent behavior and be shielded from the consequences of their actions. Lenard at 180, 181.

R.S. 32:24 B(3) required Prunty not to endanger life or property in exceeding the speed limit by roughly 20 mph under the environmental circumstances existing that morning. If he failed to do so, then he is subjected to liability for his ordinary negligence in disregarding the safety of others. See, Lenard, supra.

Based on the testimony of Gonzales, as well as the demonstrative evidence of Prunty’s excessive speed, and upon the record, the trial court was entitled to find that Prunty’s driving, in the conditions then present on Fairfield, endangered life or property. The finding of a violation of subsection B is not clearly wrong or manifestly in error. It is therefore affirmed. See, Stobart, supra; Butcher, supra; United Bilt Homes, Inc., supra.

Prunty’s Compliance with Subsection C

Prunty next urges on appeal that the trial court erred in concluding that he failed to make use of audible signals sufficient to warn motorists. It is undisputed that Prunty failed to use his siren within his police cruiser during the instant response, and instead, opted to manually deploy his air horn and activate his overhead and wig-wag front light systems.

It is not enough for us to determine whether or not Prunty’s choices in deploying the chosen warning devices were “sufficient,” as required by In subsection C. The fundamental question is whether the record supports the trial court’s finding that they were insufficient to warn Pope of the impending collision. First, the trial court found based on Gonzales’s expert testimony that Prunty was traveling 63-64 mph, pre-skid; this is a patently unreasonable speed to protect against danger to life or property as Prunty approached Ockley, particularly given the environmental circumstances existing on Fairfield. Next, the trial court found that Prunty’s actions — driving at excessive speed, weaving in and out of the southbound lane, and using one hand to punch his air horn as opposed to his hands-free siren — were human errors resulting in insufficient warning to Pope to avert the imminent collision.

Pope’s expert Gonzales testified that, based upon his analysis and computer simulations of the accident scene, Pope probably did see Prunty during her left turn on to Ockley, but because Prunty was traveling at such a high speed and without applying his siren, his warning came too late, causing Pope to stall in a state of panic. Thus, Pope found herself in an inescapable position at the moment she first observed Prunty, which was too late. This opinion was corroborated by Edwards, who testified that, from her perspective, Pope saw Prunty while she was making her left turn and could not get out of the way. As noted earlier, another witness, Caple, who resides on Fairfield near the intersection with Ockley, testified that she was at home at the time of the accident, and did not hear any air horn noise from Prunty’s cruiser but was alerted to the accident by the skidding tires.

Therefore, we affirm the trial court’s finding that Prunty’s conduct violated subsection B by driving excessively fast in the oncoming traffic 11plane, using one arm and hand to depress the air horn, which was inherently distracting to Prunty, and not first ascertaining that it was safe to proceed as such. We also affirm the finding that Prunty violated subsection C by failing to employ his cruiser’s siren while driving in this manner resulting in insufficient warning to Pope to avert the accident. See, Butcher at 195, 196 supra; United Bilt Homes Inc., at 1168, 1169, supra; Shaw v. Globe Indem. Co., 134 So.2d 609 (La.App. 2 Cir.1961); Cassity v. Williams, 373 So.2d 586 (La.App. 3 Cir.1979).

Based upon Prunty’s violations of subsections B and C of R.S. 32:24, we affirm the trial court’s conclusion that Prunty’s conduct is subject to an ordinary negligence standard pursuant to Lenard, supra, and that Prunty violated his duties of care provided in R.S. 32:24 D, which subject him to liability for breach of ordinary care.

Comparative Fault of Pope

Finally, Prunty and the City argue that Pope failed to move to the right upon notice of his police cruiser’s presence or otherwise take steps to avoid the collision. Specifically, Prunty and the City argue that the evidence adduced at trial showed that Pope should have heard and seen Prunty’s cruiser upon his approach and yielded the right of way to him as did other motorists. Prunty and the City also argue that Pope was negligent in stopping in the middle of the road, turning her car when she had a duty to yield and failing to complete her turn prior to the collision.

11sThe duty to yield the right of way to an emergency vehicle arises only when a motorist observes or hears, or under the circumstances should have observed or heard, the audible and visual warnings of such a vehicle. The burden of proving negligence of the non-yielding motorist rests on the party asserting the same. Butcher, supra, at 194, 195 citing Cassity, supra at 591; La. R.S. 32:125. Based on the record, the trial court implicitly found that Prunty failed to carry his burden of proof, given the evidence reflective of Prunty’s violations of subsections B and C. Particularly, as noted above, the trial court was not clearly wrong in finding that Prunty’s excessive speed made it impossible for Pope to avert the collision; the preponderance of the testimony reflected that at the time Pope first observed Prunty, it was too late. Thus, under the instant factual circumstances, Pope owed no duty under R.S. 32:125. We find that the trial court was not clearly wrong or manifestly in error in finding Prunty 100 percent at fault in the collision. See, Butcher, supra; United Bilt Homes, Inc., supra; Shaw, supra; Nelson v. State, 581 So.2d 344 (La.App. 3 Cir.1991); Cassity, supra; Natchitoches Motor Co., Ltd. v. Travelers Ins. Co., 372 So.2d 811(La.App. 3 Cir.1979); cf., Jackson v. Town of Grambling, 29,198 (La.App. 2 Cir. 2/26/97), 690 So.2d 942; Riggs v. State, 488 So.2d 443 (La.App. 3 Cir.1986).

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in all respects. Appellate costs of $116.50 are assessed against the City of Shreveport and Matthew Prunty in accord with La. R.S. 13:5112.

AFFIRMED AND REMANDED.

      . We pretermit analysis as to whether SPD General Order 603.01 V(D) unconstitutionally expands La. R.S. 32:24 as urged by Prunty and the City on appeal, as we affirm that Prunty's use of his cruiser's air horn over his siren, was insufficient to warn Pope pursuant to R.S. 32:24 C.


author: I,GASKINS, J.

text:
    Freddy FORTENBERRY, et ux., Plaintiffs-Appellants, v. HIBERNIA NATIONAL BANK, et al., Defendants-Appellees.
    No. 37,266-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      J. Michael Hart, Monroe, for Appellants.
    Rankin, Yeldell & Katz, by Stephen J. Katz, for Appellees.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   I,GASKINS, J.

This matter arises from a dispute over an alleged promise to make a crop loan. The plaintiffs, Freddy and Tommye For-tenberry, appeal a trial court judgment sustaining an exception of no cause of action in favor of the defendants, Hibernia National Bank and Priss Bryant. For the following reasons, we affirm the trial court judgment, and remand for further proceedings.

FACTS

Freddy Fortenberry is a farmer in the Lake Providence area who had a business relationship with Hibernia National Bank (Bank). He had a crop loan from Hibernia in 2001. In December 2001, he began discussing a crop loan for 2002 with a Bank employee, Priss Bryant. According to the plaintiffs, in January and February 2002, Ms. Bryant told them that the loan had been approved. Mr. Fortenberry contacted Ms. Bryant, seeking funds from the 2002 crop loan to make rental payments on land he farmed. He alleged that she made ■ a personal loan to him of $38,000 to pay the rent, and then instructed him to use other government funds in violation of the purpose for which that money was issued. He claimed that Ms. Bryant told him to use the funds for expenses necessary to the 2002 crop. Mr. Fortenberry asserted that Ms. Bryant then arbitrarily reduced the projected production from his wheat crop below the parish average, which ensured that the 2002 crop loan would not be approved. He also charged that Ms. Bryant froze his account with the Bank.

The plaintiffs filed suit on March 20, 2002, against the Bank and Ms. Bryant, claiming that the Bank’s misrepresentations prevented him from | ¡¿farming in 2002 and effectively prevented him from procuring financing from other lending institutions. The plaintiffs sought damages, claiming that they were damaged by the Bank’s failure to fund the 2002 crop loan, its false representations about the approval of the loan, failure to properly present the loan for approval, negligent and careless supervision of Bank loan officers and failure to adhere to guidelines to timely comply with loan processing. They alleged a bad faith breach of contract by the Bank in refusing to fund the 2002 crop loan. The plaintiffs also claimed that Ms. Bryant deliberately intended to cause them harm. They asserted that they relied to their detriment on the promises made to them by the Bank and Ms. Bryant. They urged that Ms. Bryant made false representations when she knew or should have known that the refusal to honor the representations about the 2002 crop loan would create a situation where other lending institutions would have extended all available farm loan credit limits for 2002.

On April 8, 2002, the defendants filed an exception of no cause of action. They asserted that this matter is governed by the Louisiana Credit Agreement Statute contained in La. R.S. 6:1121-1124. Those provisions specify that credit agreements must be in writing. According to the defendants, the plaintiffs never alleged that the credit agreement for the 2002 crop loan was in writing. They asserted that a debt- or may not maintain an action on a credit agreement unless the agreement was in writing and was signed by the debtor and the creditor. They claimed that Lsuch an agreement was not binding on a financial institution unless it was in writing.

The plaintiffs amended their petition on June 12, 2002, claiming that the loan from Ms. Bryant to Mr. Fortenberry was done to conceal an advance on the 2002 crop loan. The plaintiffs alleged that Ms. Bryant had commented that she intentionally planned to harm Mr. Fortenberry. The plaintiffs claimed that the Bank had a pattern of gross negligence or intentional negligence in handling loan applications to the detriment of area farmers. The plaintiffs claimed that the defendants committed fraudulent conduct in making gross misrepresentations to Mr. Fortenberry and then informing other lending institutions that the Bank intended to make a crop loan to him.

The plaintiffs further asserted that the Bank violated the terms and conditions of a five-year Agricultural Security Agreement between Mr. Fortenberry and the United States Department of Agriculture, through the Bank. The plaintiffs claimed that the Bank negligently gave authority to Ms. Bryant to make statements to customers regarding the approval of loans.

On July 5, 2002, the defendants responded, reiterating their exception of no cause of action and asserting exceptions of no right of action and vagueness as well as a motion to strike the plaintiffs’ demand for a jury trial. The defendants indicated that the matter should be disposed of on the exception of no cause of action, but contended that the plaintiffs had no right of action to object to the Bank’s procedures regarding other area ^farmers. In addition to their claim of vagueness as to the plaintiffs’ pleadings, the Bank asserted that the plaintiffs waived their right to a jury trial in promissory notes previously executed between the parties.

On October 31, 2002, the plaintiffs again filed a supplemental and amending petition, claiming that the Bank and Ms. Bryant committed acts of fraud through concealment, suppression of the truth and misrepresentations to the plaintiffs. They asserted that the Bank failed to inform them that Ms. Bryant had no authority to approve the loan, and that the Bank should have told them that they were not going to receive a crop loan for 2002. The plaintiffs additionally urged that Mr. Fortenberry suffered a stroke as a result of the stressful situation created by the defendants and that the defendants knew or should have known that their actions would cause Mr. Fortenberry to have a stroke. The plaintiffs claimed damages for Mr. Fortenber-ry’s severe emotional and physical injuries.

The exceptions were argued on November 6, 2002. In a judgment filed November 18, 2002, the trial court sustained the exception of no cause of action, dismissing the plaintiffs’ claims with prejudice, at their costs. Because the exception of no cause of action was sustained, the trial court "made no ruling on the other exceptions and the motion to strike jury trial. The plaintiffs devolutively appealed the ruling.

The plaintiffs assert that the trial court erred in failing to find that there was a written agreement in this matter, in applying an erroneous interpretation of La. R.S. 6:1122, and in dismissing Ms. Bryant in spite of specific allegations of her intentional conduct.

I .WRITTEN AGREEMENT

The plaintiffs argue that the loan agreement between Mr. Fortenberry and Ms. Bryant satisfies the requirement that the agreement be in writing. They assert that this document was executed on March 1, 2002, and four days, later, a charge was made against Ms. Bryant’s certificate of deposit. They claim that this was a. subterfuge to disguise the fact that the Bank actually issued money under the 2002 crop loan.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. La. C.C.P. art. 927. It questions whether the law provides a remedy to the plaintiff against the defendant for the complaints set forth in the petition. Hall v. Zen-Noh Grain Corporation, 2001-0324 (La.4/27/01), 787 So.2d 280; Robertson v. Caddo Parish, La., 36,540 (La.App.2d Cir.12/11/02), 833 So.2d 1139. All well-pleaded allegations must be assumed as true, and any doubt is to be resolved in favor of the petition. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based solely upon the sufficiency of the petition. Robertson v. Caddo Parish, La., supra.

Resolution of the issues raised in this case rests upon an interpretation of the Louisiana Credit Agreement Statute (LCAS) contained in La. R.S. 6:1121-1124. Those provisions are as follows:

La. R.S. 6:1121
For purposes of this Chapter, the following terms shall have the following meanings:
|fi(l) “Credit agreement” means an agreement to lend or forbear repayment of money or goods or to otherwise extend credit, or make any other financial accommodation.
(2)“Creditor” means a financial institution or any other type of creditor that extends credit or extends a financial accommodation under a credit agreement with a debtor.
(3) “Debtor” means a person or entity that obtains credit or seeks a credit agreement with a creditor or who owes money to a creditor.
(4) “Financial institution” means a bank, savings and loan association, savings banks, or credit union authorized to transact business in this state.
La. R.S. 6:1122
A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.
La. R.S. 6:1123
The following actions shall not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of R.S. 6:1122:
(1) The rendering of financial or other advice by a creditor to a debtor.
(2) The consultation by a creditor with a debtor.
(3) The agreement of a creditor to take or not to take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies under a prior credit agreement, or extending installments due under a prior credit agreement.
B. A credit agreement shall not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debt- or.
La. R.S. 6:1124
No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall 17not extend beyond the scope thereof. Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof. This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.

The crop loan at issue here meets the definition of a credit agreement in La. R.S. 6:1121. Under La. R.S. 6:1122, the defendant cannot maintain an action on an oral credit agreement. The plaintiffs assert that the $38,000 loan from Ms. Bryant was a disguised advance on the 2002 crop loan. According to the plaintiffs, that agreement between Mr. Fortenberry and Ms. Bryant, which is in writing, meets the requirements of La. R.S. 6:1122. We disagree.

In this matter, the loan agreement with Ms. Bryant bears her signature and that of Mr. Fortenberry. There were two witnesses to their signatures, but the document was not notarized. The document sets forth the following:

REPAYMENT AGREEMENT
March 1, 2002
I, Freddy Fortenberry, do agree to pay Priss Bryant $38,000.00 when:
(1) I close my 2002 crop production loan Or
(2) from current wheat crop of 760 acres, planted 11-01 and expected to be harvested in May 2002,
Whichever should come first.

This is not a suit to effectuate the loan of $38,000 set forth in this document. The $38,0.00 was paid to Mr. Fortenberry and this document specifies when it is to be repaid. Nothing in it obligates the Bank or Ms. Bryant to extend further credit, which is the complaint of the plaintiffs. We reject the Isplaintiffs’ argument that this writing satisfies the statutory requirement of a written credit agreement between the plaintiffs and the Bank for the 2002 farm loan.

INTERPRETATION OF LOUISIANA CREDIT AGREEMENT STATUTE

The plaintiffs urge that the trial court erroneously interpreted La. R.S. 6:1122 to exclude all causes of action arising from loans from lending institutions without a written agreement, including claims of fraud.

In Fleming Irrigation, Inc. v. Pioneer Bank & Trust Company, 27,262 (La.App.2d Cir.8/23/95), 661 So.2d 1035, writ denied, 95-2357 (La.12/8/95), 664 So.2d 427, this court considered whether La. R.S. 6:1121-1124 preclude the assertion of alternative legal theories in lender liability actions. In that matter, the plaintiff contended that the defendant bank made oral promises to fund a loan once a Small Business Administration guaranty was finalized. The plaintiff argued that he relied upon that promise and then the loan was refused.

It was urged that the LCAS” merely precluded causes of action based upon breach of contract, while not affecting recovery under theories such as fraudulent or tortious misrepresentation, negligence, promissory estoppel, or detrimental reb-anee. After examining jurisprudence from other states with a similar statutory scheme regarding credit agreements, we concluded that the LCAS precluded all actions for damages arising from oral promises to lend money, even when predicated on different theories of recovery.

In Fleming, this court observed that each legal theory asserted by the plaintiff relied upon the alleged verbal assertions of the defendant bank. We ^reasoned that accepting such allegations as affording recovery, grounded in concepts other than breach of contract, would provide an easy avenue for resourceful attorneys to circumvent the statute, thus defeating the legislative intent to prohibit claims stemming from hard-to-defend oral representations. We noted that the Louisiana legislation was intended to prevent “end runs” around the statute’s limitations.

In Whitney National Bank v. Rockwell, 94-3049 (La.10/16/95), 661 So.2d 1325, the defendant had executed a promissory note to the bank, but in response to the bank’s efforts to collect, the defendant asserted that the bank breached an oral agreement to accept interest-only payments and then to grant a term of years for repayment in monthly installments. The supreme court refused to enforce the verbal agreement, finding that a writing was required under the LCAS. The court noted that the Louisiana statute does not address, one way or the other, any protection of unsophisticated borrowers or any exemption based on fraud, misrepresentation, promissory es-toppel, or other equitable theory. In a footnote, the supreme court declined to adopt a blanket rule, as this court did in Fleming, holding that the credit agreement statute precludes all actions for damages arising from oral credit agreements regardless of the theory of recovery asserted.

In Guzzardo-Knight v. Central Progressive Bank, 1999-1449 (La.App. 1st Cir.6/23/00), 762 So.2d 1243, writ denied, 2000-2298 (La.6/15/01), 793 So.2d 208, the first circuit addressed the issue of whether causes of action for fraud, negligent misrepresentation, and detrimental | inreliance, arising from a lender’s alleged oral promise to loan money, are precluded by the writing requirement contained in La. R.S. 6:1122. In sustaining an exception of no cause of action, the first circuit found that those causes of action were precluded by the statute.

The court reasoned that the LCAS provides a statute of frauds in actions based on credit agreements. The first circuit acknowledged Whitney National Bank v. Rockwell, supra, but noted that the Fleming Irrigation case and Bonvillain v. United States, (E.D.La.11/24/99), 1999 WL 1072539, held that La. R.S. 6:1122 bars claims for damages against a lender based on an alleged oral credit agreement, regardless of the theory of recovery asserted. The first circuit found that central to all of the plaintiffs theories of liability was the alleged failure of the bank to honor its oral promise to loan money. That breach gave rise to the causes of action for fraud, negligent misrepresentation, and detrimental reliance. The court reasoned that, in enacting La. R.S. 6:1122, the legislature intended to bar liability suits against lenders involving assertions of a breach of an oral agreement to lend money. To allow a plaintiff to recover damages based on legal theories other than breach of contract, where the breach of the financial institution’s oral promise to lend money forms the very basis of those alternative legal theories, would render the statute meaningless.

In Jesco Construction Corporation v. Nationsbank Corporation, 2002-0057 (La.10/25/02), 830 So.2d 989, the Louisiana Supreme Court accepted the certified question from the United States Fifth Circuit Court of Appeals, as to whether the LCAS precludes all actions for damages arising l^from oral credit agreements, regardless of the legal theory of recovery. The supreme court answered the question in the affirmative.

According to the supreme court, Jesco Construction alleged in its petition breach of contract, detrimental reliance, negligent misrepresentation, unfair trade practices, breach of the duty of good faith and fair dealing, promissory and equitable estop-pel, and breach of fiduciary duty. The court observed that the basis for each of those causes of action was the failure of the defendant to make a loan based upon an alleged oral credit agreement. The supreme court held that the LCAS precludes all actions for damages arising from oral credit agreements, regardless of the legal theory of recovery asserted.

The plaintiffs contend that Jesco is not applicable in this matter because there were no allegations of fraud in that case. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1958. In Jesco, the plaintiff alleged, among other theories of recovery, negligent misrepresentation, and breach of the duty of good faith and fair dealing. Although negligent misrepresentation (as opposed to intentional misrepresentation) may not technically constitute fraud, in his dissent in Jesco, Justice Calogero stated that the plaintiff had asserted fraud or misrepresentation as a theory of recovery. We find, as did the court in Jesco, that the causes of action articulated by plaintiffs have as their |1?,threshold the failure to make a loan based on an oral agreement, and consequently, fall under the prohibition of La. R.S. 6:1122.

The plaintiffs in the present case amended their petition to allege a personal injury cause of action, claiming that Mr. Forten-berry’s stroke was a result of the stress caused by the Bank’s failure to make the 2002 crop loan and that the Bank knew or should have known that its actions would result in the stroke. The actions complained of are all based on an alleged oral agreement to lend money. Such an agreement is not enforceable under the LCAS, and Jesco bars all causes of action for damages arising from an oral credit agreement, regardless of the theory of recovery.

Based upon the jurisprudence discussed above, we find that the LCAS precludes causes of action arising from oral credit agreements, regardless of the theory of recovery, including fraud. The LCAS makes a writing the sine qua non of asserting an action on a credit agreement. Because there is no such writing in the present case, the plaintiffs have no cause of action against the Bank arising from the alleged failure to grant a loan. The trial court correctly sustained the Bank’s exception of no cause of action in that regard. However, as discussed below, the plaintiffs may be able to assert other causes of action against the Bank which are not grounded upon the failure to loan funds.

BANK OFFICER

The plaintiffs maintain that the trial court erred in dismissing the claims against Ms. Bryant in her individual capacity. They urge that Ms. Bryant voiced threats to deliberately harm them and assert that they were | charmed by the failure to receive a crop loan. The plaintiffs also point to efforts to prevent them from obtaining financing from other lending institutions. They claim that they asserted a cause of action for intentional harm against Ms. Bryant.

The Bank points out that all actions by Ms. Bryant were done in the course and scope of her employment. While at one point the plaintiffs argue that she had apparent implied authority from the Bank to approve loans, the plaintiffs also contend that whether Ms. Bryant’s actions were taken in the course and scope of her employment is irrelevant for the purposes of the exception of no cause of action.

In this matter, many of the actions by Ms. Bryant complained of by the plaintiffs arise out of the failure of the Bank to grant Mr. Fortenberry a crop loan. The nucleus of the complaint is the failure of the plaintiffs to receive the loan. Regardless of the way the plaintiffs attempt to frame their cause of action or state their theories of recovery, they still seek damages arising from an alleged oral agreement regarding a crop loan. The provisions of the LCAS preclude the recovery of damages even from a non-bank creditor based upon an oral credit agreement. Knight v. Magee, 2001-2041 (La.App. 1st Cir.9/27/02), 835 So.2d 636. To allow the plaintiffs in this matter to simply substitute the Bank’s employee, Ms. Bryant, for the Bank would provide yet another avenue for resourceful attorneys to circumvent the LCAS. To the extent that the plaintiffs seek to assert a cause of action against Ms. Bryant for failure to make a loan, we find that the trial court was correct in sustaining the exception of no cause of action as to Ms. 114Bryant in her individual capacity. However, as discussed below, the plaintiffs may be able to amend to assert causes of action not based upon the failure to grant a loan.

OTHER POSSIBLE CAUSES OF ACTION

As set forth above, under the LCAS, without a written agreement, we find that the plaintiffs have no cause of action against the Bank or its employees for failure to grant a loan. The petition as a whole appears to have as its main contention the failure to grant a loan. However, we note that some of the allegations vaguely pertain to tortious interference with contract by Ms. Bryant and other Bank employees. There are also vague allegations of violation of government contracts by the Bank and wrongful seizure of funds by the Bank. While we make no ruling as to whether the plaintiffs may be able to state a cause of action in this matter, we remand and grant the plaintiffs 30 days to amend the pleadings to state a viable cause of action, if any may be made. La. C.C.P. art. 934. See Elliott v. Glass, 615 So.2d 1354 (La.App. 2d Cir.1993).

CONCLUSION

For the reasons stated above, we affirm the trial court judgment sustaining the exception of no cause of action raised by the defendants, Hibernia National Bank and Priss Bryant. We remand for further proceedings consistent with this opinion. Costs in this court are assessed one-half to the plaintiffs and one-half to the defendants.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

PEATROSS, J., concurs without written reasons.


author: I,CARAWAY, J.

text:
    Kathleen REITZELL, Plaintiff-Appellant, v. PECANLAND MALL ASSOCIATES, LTD., Defendant-Appellee.
    No. 37,524-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      McLeod Verlander by Laurie J. Burk-ett, Monroe, for Appellant.

      Plauché, Maselli, Landry, & Parkerson by Cherie T. Burlett, New Orleans, for Appellee, Southeast Serviee Corporation.
    Davenport, Files & Kelly by Carey B. Underwood, Monroe, for Appellee, Southwest Shopping Centers Co.
    Before BROWN, CARAWAY and TRAYLOR (Pro Tempore), JJ.
   I,CARAWAY, J.

In this trip and fall case, the trial court granted summary judgment in favor of the mall owner and cleaning company after finding that a patched area at one of the mall entrances did not present an unreasonable risk of harm and that any unevenness in the location was open and apparent. We affirm.

Facts

On the Friday evening of March 12, 1999, Kathleen Reitzell did some after-work shopping at Pecanland Mall in Monroe, La. It had rained earlier in the day and the mall exits were wet. Reitzell exited the mall between 6:30 and 7:30 p.m. She crossed a walkway area to enter the parking lot by way of the slightly-declining handicap ramp. As Reitzell reached the end of the ramp, her right foot encountered the place of transition between the light beige tile walkway and the asphalt parking lot. At that point, some of the last tiles were missing, and the area where the tiles had been located was patched with a black asphalt-like substance. At that location as she began to enter the crosswalk area marked on the asphalt, Reitzell fell, injuring her right shoulder and lower back.

On March 9, 2000, Reitzell named the mall owner/operator, Southwest Shopping Centers, Co. (“Southwest”), and the mall cleaning service, Southeast Service Corporation (“Southeast”), in a suit for damages claiming that the damaged tile walkway and improperly applied asphalt presented a defect in the mall premises. Both defendants sought summary judgments on the grounds that Reitzell would be unable to show that an | ^unreasonably dangerous condition existed. After hearing the arguments of counsel, the trial court granted the motions for summary judgment for the defendants. This appeal ensued.

Discussion

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. This article was amended in 1996 to provide that the 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); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. In 1997, the legislature enacted C.C.P. art. 966 C(2), which further clarified the burden of proof in summary judgment proceedings. This provision first places the burden of producing evidence for summary judgment on the mover (normally the defendant), who can ordinarily meet the burden by submitting affidavits or by pointing out the lack of factual support for an essential element of the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Racine, supra, citing Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure §6.8 (1999). Once the motion for summary judgment has been Improperly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Racine, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Gray v. Investment Cars Unlimited, Inc., 36,691 (La.App.2d Cir.1/29/03), 836 So.2d 1184, writ denied, 03-0670 (La.5/2/03), 842 So.2d 1108.

La. C.C. art. 2317.1 provides that the owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. This article effectively turns strict liability into negligence claims. Solito v. Horseshoe Entertainment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610. La.C.C. art. 2317.1 actions réquire proof that the defendant had custody of the thing causing the injury, that the thing contained a defect, this is, a condition creating an unreasonable risk of harm and that the defective condition caused plaintiffs injury. Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligation, the social utility, and the cost and feasibility of repair. Simply put: The trier of) ¿fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. The concept of whether a defect presents an unreasonable risk of harm, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Solito, supra.

The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. Joseph v. City of New Orleans, 02-1996 (La.App. 4th Cir.3/5/03), 842 So.2d 420. See also, Williams v. City of Baton Rouge, 02-0682 (La.App. 1st Cir.3/28/03), 844 So.2d 360; Shavers v. City of Baton Rouge, 00-1682 (La.App. 1st Cir.9/28/01), 807 So.2d 883. The accident history of the defect is also a relevant consideration in the unreasonable risk evaluation. Reed, supra; Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080.

The courts have recognized that it is common for the surfaces of streets, sidewalks and parking lots to be irregular and that it is not the duty of the party having garde of these locations to eliminate all variations in elevations existing along the countless cracks, seams, joints and curbs. These surfaces are not required to be smooth and lacking in deviations because such a requirement would be impossible to meet. Reed, supra. This fact alone, however, is insufficient to eliminate the defendants’ liability under the unreasonable risk analysis. Id.

IsFrom our review of the evidence, we agree with the trial court’s conclusion that the patched area between the ramp’s missing tiles and the asphalt parking lot and driveway did not present an unreasonable risk of harm. The exit area immediately outside the mall where the accident happened requires patrons to either descend down the handicap ramp or step off of the adjacent curb onto the asphalt parking lot. The tile extends from the entrance doors of the mall all the way out to the curb or down the ramp. Clearly, a patron must be aware, whether stepping off the curb or walking down the ramp, that a transition of surfaces and elevations will occur.

Along the final row of the ramp’s tiles before the beginning of the asphalt, some of the 5" by 5" (approximate size) tiles were either totally missing or partially cracked and removed. To replace those tiles, the maintenance supervisor testified that he had applied an asphalt substance called Black Patch. He had poured the patch material into the area of the missing tiles and had run his vehicle over the asphalt to flatten and smooth the patch. The patched area thus bridged the asphalt of the parking lot with the tile ramp.

In her deposition, Reitzell stated that when she fell, her foot hit something and she “just fell.” She believed she fell because of the asphalt repair and insisted that she did not slip on the tile surface due to the rain. Reitzell admitted that at the time of the fall she noticed no change in color between the tile and the asphalt although in her deposition she admitted that she could see the contrasting colors. She surmised that the drop in elevation between the tile and asphalt was “probably not more than a half inch.” 16 Reitzell testified that the asphalt patch contained bumps which produced a difference in elevation. Reitzell went to the location six days after the accident and took pictures which were produced as evidence.

The affidavit of Jim Parker, mall operation manager, stated that the thickness of the tile located outside of the mall exit measured one-quarter inch. Parker was unaware of any other accidents at the location of Reitzell’s fall and stated that he routinely inspects that location and saw no change in elevation at the area of the patch in question.

Gary Taylor, the Public Safety Director of the mall, stated in an affidavit that approximately 550,000 other people had used the food court exit in the condition it was at the time of Reitzell’s fall. He also was unaware of any other accident at the site.

With this situation, the parties agree that a foreign substance or the rainwater did not cause Reitzell’s fall. It is also undisputed that the elevation dropped between the last 1/4-inch tile and the asphalt patch so that Reitzell did not hit a higher surface and stub her toe causing the fall. We may also consider that there was a change in the texture of the surface where Reitzell’s foot landed on the patch at the end of the ramp as she began her entrance into the asphalt crosswalk. Nevertheless, these accepted facts present an expected risk for the transition zone from the tiled area of the entrance out onto the asphalt crosswalk and parking lot. The pedestrian patron must expect surface and elevation change to occur at that location. The fact that the asphalt of the parking lot, or in this case, the first few inches of asphalt patch before the parking lot, may be a different texture and |7not entirely level and uniform is to be expected. Just as the pedestrian must use caution in slowing and looking down in stepping off the curb onto the parking lot, Reitzell had reached the end of the ramp where the use of some similar caution would ordinarily be expected to protect against the irregular surface changes caused by the patch.

Conclusion

The facts surrounding the condition of the patched area at the end of the ramp do not present genuine issues of material fact. That evidence is insufficient to support a conclusion that the asphalt patch presented an unreasonable risk of harm. The trial court’s granting of summary judgment is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.


author: h GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Donald BROWN, Appellant.
    No. 35,641-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Peggy Sullivan, Monroe, ' Steven R. Thomas, Mansfield, Louisiana Appellate Project, for Appellant.
    Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   h GASKINS, J.

The defendant, Donald Brown, was sentenced to serve 20 years at hard labor following his conviction for manslaughter. After remand from the Louisiana Supreme Court, this matter is before us for consideration of whether the sentence is excessive. We affirm the sentence.

FACTS

The defendant was originally charged with the first degree murder of Katherine Rankin. On the evening the victim was last seen, witnesses saw the defendant forcibly detain the obviously upset victim in an area close to the muddy trail where her body was later found. The defendant admitted smoking cocaine on the trail with the victim that night, having a dispute, and slapping her. Two days later, when the trail dried out enough after a rain to be passable, the victim’s body was found. She had been beaten, strangled, and drowned. The defendant was convicted of manslaughter and sentenced to serve 20 years at hard labor, with credit for time served.

The defendant appealed his conviction and sentence. This court reversed, finding insufficient evidence to support the conviction. State v. Brown, 2001-35641 (La.App.2d Cir.6/12/02), 825 So.2d 596. Due to the reversal of the conviction, the sentence was vacated and the defendant’s claim of excessiveness was not considered.

Upon the state’s application, the Louisiana Supreme Court granted certiorari, reversed this court, and reinstituted the defendant’s conviction, finding that evidence adduced at trial was, in fact, sufficient to support the conviction of manslaughter. The matter was remanded for consideration of lathe defendant’s remaining assignment of error. State v. Brown, 2002-1922 (La.5/20/03), 846 So.2d 715.

EXCESSIVE SENTENCE

The defendant argues that the trial court failed to adequately articulate the reasons for sentence and that the sentence imposed is excessive. These arguments are without merit.

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

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988).

|RThere is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

The record indicates the trial court adequately complied with La. C. Cr. P. art. 894.1 prior to sentencing the defendant. The court noted that the victim died of drowning and blunt force injuries. The defendant’s prior criminal history was considered; it included convictions for forgery, carnal knowledge of a juvenile, simple battery, and conspiracy to distribute cocaine and marijuana. The present offense resulted in the defendant’s third felony conviction. The court considered the defendant’s deliberate cruelty to the victim and the use of violence in the commission of the offense.

The court noted that the 32-year-old defendant had a sporadic work history. Defense counsel argued in mitigation that the defendant lacked the intent to kill the victim and he gave information in another murder investigation. The court noted that the defendant was found guilty of manslaughter due to the failure to show a specific intent to kill. The defendant’s assignment of error that the trial court failed to articulate for the record a sufficient basis for his sentence is without merit.

The second prong of the test of whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1 § 20, if it is grossly out of proportion to the seriousness of the offense or nothingjmore than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). |4 A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, supra.

Absent a showing of manifest abuse of discretion by the trial court, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. In the present case, the trial court determined that the victim had been beaten to the point of breaking her jaw, dragged across the ground, and strangled, all prior to drowning. The sentence of 20 years at hard labor is one-half of the maximum sentence allowed. The sentence is tailored to the offender and the offense. The sentence imposed is not excessive.

CONCLUSION

For the reasons stated above, we affirm the sentence of the defendant, Donald Brown, for manslaughter.

AFFIRMED.


author: J^DREW, J.

text:
    Sharon Richards SIMMONS, and Reginald Simmons, Plaintiffs-Appellees, v. Teona W. CHAMBLISS and Safeway Insurance Company of Louisiana, Defendants-Appellees, Anthony J. Bruscato, Intervenor-Appellant.
    No. 37,461-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Anthony J. Bruscato, Monroe, for Appellant.
    Charles Dean Jones, for Appellees Sharon Richards Simmons and Reginald Simmons.
    Tracy L. Oakley, Ruston, for Appellees Teona W. Chambliss and Safeway Insurance Company of Louisiana.
    Before STEWART, CARAWAY and DREW, JJ.
   J^DREW, J.

Intervenor, Anthony J. Bruscato (“Brus-cato”), appeals the trial court’s judgment granting defendant-in-intervention’s exceptions of no cause of action and no right of action and dismissing his claims for reimbursement of rental expenses and for attorney fees under La. R.S. 22:658. For the reasons assigned below, the judgment of the trial court is reversed in part, affirmed in part and remanded.

FACTS

Sharon Richards Simmons and Reginald Simmons filed suit on March 7, 2002, for damages allegedly suffered when Sharon’s 1992 Honda Civic was struck at an intersection by a 1999 GMC Safari driven by Teona Chambliss, who allegedly failed to obey a stop sign. Named as defendants were Teona Chambliss and the Safari’s insurer, Safeway Insurance Company of Louisiana (“Safeway”). In their suit the plaintiffs also made a claim for penalties and attorney fees under La. R.S. 22:658 and La. R.S. 22:1220 as a result of Safeway’s alleged arbitrary and capricious failure to timely initiate a property damage adjustment and to pay the claim. At the time of filing suit, the Simmonses were represented by Bruscato. However, shortly after the filing of their petition, the plaintiffs sought and obtained new counsel, namely Charles D. Jones.

On September 10, 2002, Bruscato filed a petition of intervention against Safeway to recover $1,406 in car rental payments he made on behalf of the plaintiffs while they were his clients. He also made a claim against Safeway for attorney fees pursuant to La. R.S. 22:658 on the basis that he had repeatedly requested reimbursement of the car rental payments from [ ^Safeway to no avail. Safeway responded by filing an answer along with exceptions of no right of action and no cause of action.

After hearing argument, the district court sustained the exceptions of no right of action and no cause of action and dismissed Bruscato’s claims in intervention for rental expenses and for attorney fees under La. R.S. 22:658. The judgment further noted that the dismissal of those claims did not prejudice Bruscato’s lien for attorney fees and expenses. This appeal followed.

DISCUSSION

An issue raised at oral argument is whether this is an appeal from a final judgment. La. C.C.P. art.1915 provides, in part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.

Bruseato has been dismissed from this action and is no longer a party thereto. Accordingly, this is a final judgment (as to him) as set forth in La. C.C.P. art. 1915(A)(1), and this appeal may proceed.

Bruseato contends that the trial court erred in granting the exceptions because an attorney’s recordation of a contingency fee contract pursuant to La. R.S. 37:218 creates an enforceable right by the attorney against third parties that can be asserted through intervention.

We recognize that the exception of no cause of action is separate and distinct from the exception of no right of action, and each serves a particular 1 ¡¡purpose with different procedural rules. The function of the peremptory exception of no cause of action is to determine whether the law extends a remedy to anyone under the factual allegations of the petition. The function of the peremptory exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The no right of action exception assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885.

While the trial court did not make a distinction as to which exception it was granting, it appears clear that the parties only argued the merits of whether Brusca-to has a right of action. Therefore, we consider whether Bruseato has a real and actual interest in intervention to seek relief against Safeway for payment of the car rental expenses he advanced to his former client and for the attorney fees provided for in La. R.S. 22:658(B)(4). Because the reimbursement of car rental expenses and assessment of attorney fees under La. R.S. 22:658 constitute two separate causes of action, we must make a separate inquiry to question whether Bruseato has a legal interest in the subject matter of each.

Advanced Car Rental Expenses

Louisiana courts have consistently recognized the right of the discharged attorney to enforce his claim for fees through intervention in the suit in which the attorney provided service. See, generally, Niemann v. American Gulf Shipping, Inc., 96-687 (La.App. 5th Cir.1/15/97), 688 So.2d 42, writ denied, 97-0404 (La.3/27/97), 692 So.2d 397; Robichaux v. Cade, 357 So.2d 849 (La.App. 4th Cir.1978). Also recognized has been the right of a discharged attorney to enforce his properly perfected claim for a contracted fee under La. R.S. 37:218 not only against his former client, but also against the opposing party in the suit filed by his former client. See, James Minge & Associates v. Hanover Insurance Company, 96-2308 (La.App. 4th Cir.4/2/97), 692 So.2d 728; Martin v. David, 95-1411 (La.App. 3d Cir.7/31/96), 685 So.2d 158, writ denied, 96-2184 (La.11/15/96), 682 So.2d 766.

Bruscato’s petition of intervention alleges that he advanced car rental expenses to his clients, and that after being discharged, he filed his lien. In light of these factual allegations, Safeway has urged no argument which would warrant a departure in this case from the established jurisprudence, which otherwise seems to allow Bruseato to intervene in the suit for collection of his fee.

The question still remains, however, whether advanced car rental expenses constitute part of the “fees” which fall under the privilege created in La. R.S. 87:218. Subsection B of La. R.S. 37:218 provides:

The term “fee,” as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

Rule 1.8(e) of the Louisiana Rules of Professional Conduct states that:

Is A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Despite the unequivocal wording of this rule, which would appear to preclude Bruscato’s advancement of car rental expenses, the Louisiana Supreme Court recognized in Chittenden v. State Farm Mutual Automobile Insurance Company, 00-0414 (La.5/15/01), 788 So.2d 1140, 1146, that the “current practice of law in our State follows the Edwins policy of allowing an attorney to advance funds under the constraints enunciated in Edwins.” The Edwins policy referred to was enunciated by the Louisiana Supreme Court in Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437 (La.1976). The court stated:

... the advancement of living expenses [does] not constitute a violation of professional responsibility, so long as: (a) the advances were not promised as an inducement to obtain professional employment, nor made until after the employment relationship was commenced; (b) the advances were reasonably necessary under the facts; (c) the client remained liable for repayment of all funds, whatever the outcome of the litigation; and (d) the attorney did not encourage public knowledge of this practice as an inducement to secure representation of others.

Id., 329 So.2d at 446.

The record contains no evidence that the advances made by Bruscato were not within the constraints set forth in the above-quoted policy. See also, Dupuis v. Faulk, 609 So.2d 1190 (La.App. 3d Cir.1992). We find that the trial court erred in finding that Bruscato did not have a right of | fiaction to intervene in the ongoing litigation to protect his interest in the car rental expenses he paid. Consequently, we reverse the granting of the exception of no cause of action and no right of action as to Bruscato’s claim for reimbursement of the car rental expenses advanced to his former client.

Attorney Fees Pursuant to La. R.S. 22:658

Bruscato also makes a claim in his petition of intervention for attorney fees under La. R.S. 22:658. The petition further states that the right to attorney fees under the statute arises out of Safeway’s failure to make payment after repeated requests that it do so.

La. R.S. 22:658(B)(4) provides:

Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable expenses or one thousand dollars whichever is greater together with reasonable attorneys fees for the collection of such expenses.

Emphasis added.

The language of this statutory provision creates a cause of action in favor of a third party claimant who has incurred alternative transportation expenses for a period of more than five working days as a result of property |7damage to their personal vehicle. The cause of action for attorney fees arises in the event the insurer responsible for payment of the property damage claim fails to pay reasonable expenses incurred by the third party claimant within 30 days of receipt of demand and presentation of proof. While the factual allegations in Bruscato’s petition of intervention and the inferences which can be drawn from them might serve as the basis for a cause of action against Safeway under La. R.S. 22:658(B)(4), Bruscato is not a third party claimant who has incurred alternative transportation expenses as a result of damage to his personal vehicle. Therefore, Bruscato is not among the class of persons to whom the law was intended to grant this cause of action. Accordingly, the trial court correctly granted the exception of no right of action in relation to Bruscato’s claim for attorney fees under La. R.S. 22:658.

CONCLUSION

For the reasons set forth above, the trial court’s judgment granting defendant-in-intervention’s exceptions of no cause and no right of action is reversed to the extent it dismissed Bruscato’s claim for payment of his “fees” as defined in La. R.S. 37:218(B) or, more specifically, the expenses advanced by him to his former client for renting a vehicle. The judgment is affirmed insofar as it grants Safeway’s exception of no right of action as to Brusca-to’s claim for attorney fees under La. R.S. 22:658(B)(4). The matter is remanded to the district court for further proceedings in accordance with this opinion. The costs of this appeal are assessed to Safeway.

I «DECREE

At appellee’s costs, the judgment is REVERSED IN PART, AFFIRMED IN PART, and REMANDED.