text:
    John POMIER v. Robert MORELAND, et al.
    No. 2006-1117.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    David Groner, David Groner, P.L.C., New Iberia, Louisiana, for Plaintiff/Appellant, John Pomier.
    Skylar J. Comeaux, Joseph H. Garbari-no, Jeff R. Rytlewski, Law Offices of Jeff R. Rytlewski, Lafayette, Louisiana, for Defendant/Appellee, Hartford Insurance Company of the Midwest.
    John W. Penny, Jr., Penny and Hardy, Lafayette, Louisiana, for Defendants/Ap-pellees, Robert Moreland and Allstate Insurance Company.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| pursuant to non-jury trial in this personal injury action stemming from an automobile accident, the trial court assigned eighty-percent fault to Plaintiff and twenty-percent fault to Defendant. Subject to adjustment for comparative fault, the trial court awarded Plaintiff general damages in the amount of $25,000.00, and medical expenses of $12,406.20. Plaintiff appeals the general damage award. For the following reasons, we affirm as amended.

FACTS

On January 3, 1997, Plaintiff, John Po-mier (Pomier), was attempting to leave his home in the New Horizon Trailer Park in New Iberia, Louisiana, when he struck a parked vehicle owned by his neighbor, Defendant, Robert Moreland, Jr. (Moreland). Pomier filed suit for personal injuries naming as defendants Moreland and his automobile liability insurance carrier, Allstate Insurance Company (Allstate), and Hartford Insurance Company of the Midwest (Hartford), which issued the applicable uninsured/underinsured motorist policy. A joint stipulation was entered into by the parties wherein they agreed “that [Pomier’s] cause of action does not exceed the amount of $50,000.00, exclusive of interest and costs.... ”

At the trial of this matter, the parties stipulated to the amount of Pomier’s medical expenses as well as to the existence of insurance coverage under the relevant policies. Following a bench trial, the trial court assessed Pomier with eighty-percent of the fault for the subject accident and Moreland with twenty-percent fault. The trial court further found that Pomier’s medical condition was causally related to the |2accident of January 3, 1997. Notwithstanding comparative fault, the trial court rendered judgment in favor of Pomier in the amount of $25,000.00 in general damages and $12,406.20 in special damages. Based upon the trial court’s finding of comparative fault on the part of Pomier, the total damage award of $37,406.20 was to be reduced by eighty-percent. Plaintiff appeals the general damage award.

ISSUE

The sole issue presented by Pomier in this appeal is the adequacy of the general damage award by the trial court. Pomier failed to raise the issue of negligence as an assignment of error. We acknowledge that in his appellate brief Pomier argues that the trial court “committed manifest error in finding the [PJlaintiff to be eighty-percent (80%) at fault.” However, since the negligence issue was not set forth by Pomier as an assignment of error, it will not be considered by this court. See Uniform Rules-Courts of Appeal, Rule 1-3; Atwood v. Grand Casinos of Louisiana, Inc., 04-715 (La.App. 3 Cir. 11/10/04), 887 So.2d 634, writ not considered, 04-3046 (La.2/18/05), 896 So.2d 15. Therefore, we will review only the issue of the adequacy of the general damage award of $25,000.00.

LAW AND ARGUMENT

In Andrus v. State Farm Mut. Auto. Ins. Co., 95-801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210 (citations omitted), the supreme court stated:

In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Only if the reviewing court determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion.
Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in | aeither direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Pomier contends that the general damage award of $25,000.00 is an abuse of the trial court’s discretion given the diagnosis of a herniated disc at C5-6 with cord compression. We note, as did the trial court, that the only medical evidence of record are the medical records of Pomier and that “[njeither party introduced medical testimony either by [deposition] testimony or calling a live witness.”

The subject accident occurred on January 3, 1997. On January 8, 1997, Pomier was treated by Dr. Jaikishen for complaints of neck pain. An MRI was performed on January 23, 1997, which evidenced a herniated disc at C5-6 with mild cord compression.

On February 5, 1997, Pomier sought treatment with Dr. Michel Heard, an orthopedic specialist. Dr. Heard diagnosed Pomier with posttraumatic headaches, neck pain, and low back pain. Dr. Heard also noted that the MRI of January 23, 1997 evidenced a C5-6 disc herniation. Dr. Heard scheduled Pomier for a CT of the cervical and lumbar spine. On a subsequent visit of February 12, 1997, Dr. Heard noted that the “CT of the cervical spine show[ed] mild spondylosis at C5-6 with question of a small disc and/or spur at this level.” Dr. Heard, therefore, ordered another cervical MRI which “show[ed] C5-6 disc herniation to the right.” Pomier continued to treat with Dr. Heard through December 1997, at which time the doctor noted that “[sjurgery is an option on the neck if it becomes frequent and severe.”

Thereafter, Pomier presented for treatment with University Medical Center (UMC) in Lafayette, Louisiana. A subsequent CT scan was performed at UMC on March 3, 1998, which showed “no evidence for osseous narrowing of the spinal canal or neural foramina with no significant degenerative change identified within the facet | ¿joints.” Pomier was then referred to the Medical Center of Louisiana in New Orleans, Louisiana.

Another cervical MRI was performed on Pomier in New Orleans on December 22, 1998 which revealed a “right posterior lateral disk protrusion at the level of C5-6 ... with mild spondylosis.” This MRI indicated no cord compression. Though Dr. Heard noted that surgery was an option, Pomier did not undergo surgery on his neck. Basically, as a result of the accident, Pomier suffered a cervical injury with disc involvement without surgical intervention.

We find that the medical records clearly establish that Pomier suffered a cervical injury with disc involvement as a result of the accident. We find no manifest error in the trial court’s ruling that “there is a clear indication that there is a herniated disc.” Accordingly, we find that the trial court abused its discretion in only awarding Pomier $25,000.00 in general damages for a herniated cervical disc.

Having found an abuse of discretion by the trial court, we refer to similar cases to determine the lowest reasonable amount which may be awarded for the injuries suffered by Pomier. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Andrus, 670 So.2d 1206. In so doing, however, we are mindful of the stipulation that Pomier’s “cause of action does not exceed the amount of $50,000.00” and the consequence of such a stipulation. It is noteworthy that this court opined in Williams v. Quinn, 03-630, p. 2 (La.App. 3 Cir. 11/5/03), 858 So.2d 873, 874, as follows:

In Bullock v. Graham, 96-0711 (La.11/1/96), 681 So.2d 1248, overruled on other grounds, Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702, the supreme court examined the methods used by various courts of appeal in cases dealing with jurisdictional limits and stipulations limiting a plaintiffs recovery to a certain amount. After reviewing those methods, the supreme court held that an amount awarded in such cases could “not exceed that maximum recoverable amount, and the plaintiffs percentage of fault was to be deducted from the maximum recoverable amount.” Landry v. Allstate Ins. Co., 599-1971[, p. 4] (La.App. 1 Cir. 9/22/00), 768 So.2d 256[, 258]. The maximum recoverable amount is the jurisdictional limit or the amount stipulated by the plaintiff as being that amount.

In the case at bar, given the medical expenses of $12,406.20, and considering the $50,000.00 stipulated cap on damages, the award for general damages cannot exceed $37,593.80, and Pomier’s percentage of fault is then to be deducted from this maximum recoverable amount.

We find that the lowest general damage award reasonably within the discretion of the trial court exhausts the amount of damages remaining which may be awarded in this case. See Brasseaux v. Hagan, 98-1796 (La.App. 3 Cir. 4/28/99), 736 So.2d 284 (general damage award increased from $10,000.00 to $30,000.00 where plaintiff had a cervical disc herniation, degenerative disc problems and residual pain); Roberts v. State, 00-778 (La.App. 3 Cir. 11/2/00), 776 So.2d 519, writs denied, 00-3307, 00-3324 (La.2/2/01), 784 So.2d 8, 644 (general damage award increased from $11,000.00 to $65,000.00 for herniation at C4-5 and herniation at L4-5 with surgical recommendation); Cox v. Julian, 03-107 (La.App. 5 Cir. 5/28/03), 846 So.2d 986 (general damage award increased from $7,000.00 to $30,000.00 for a C5-6 herniation); Webb v. Horton, 01-978 (La.App. 5 Cir. 2/13/02), 812 So.2d 91 (general damage award increased from $6,700.00 to $50,000.00 for non-surgical herniated cervical disc). In the instant matter, Pomier’s injuries included not only a cervical injury with disc involvement, but also posttraumatic headaches, neck pain, and low back pain with residual complaints through the date of the trial. For the foregoing reasons, and in accordance with the stipulation that Pomier’s cause of action does not exceed $50,000.00, we increase the general damage award to $37,593.80, which is subject to eighty-percent reduction due to Pomier’s comparative fault.

DECREE

Considering the $50,000.00 stipulated cap on damages, the judgment of the | atrial court awarding John Pomier general damages in the amount of $25,000.00 is amended and increased to $37,593.80, which is subject to an eighty-percent reduction due to Pomier’s comparative fault. In .all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against Defendants/Appellees, Hartford Insurance Company of the Midwest, Robert More-land, and Allstate Insurance Company.

AFFIRMED AS AMENDED.

      . Although the record contains a stipulation by the parties that Pomier’s medical expenses were $13,994.52, which was acknowledged by the trial court, the written judgment of January 17, 2006 grants judgment in favor of Pomier, before reduction for his comparative fault, for $ 37,406.20 for general and special damages. Considering the $25,000.00 general damage award, the award by the trial court for medical expenses was actually $12,406.20, which figure was not objected to nor appealed. Furthermore, this is the figure used by Pomier in his appellate brief. Hence, the figure of $12,406.20 in medical expenses is the figure which will be used by this court.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    SUCCESSION OF Achille BIJEAUX v. Mildred Bourque BROYLES, et al.
    No. 2006-1172.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Stan Gauthier, II, Kristi D. Husher, Lafayette, Louisiana, for Plaintiff/Appellee, Succession of Achille Bijeaux.
    James Patrick MacManus, Lafayette, Louisiana, for Defendant, Mildred Bo-urque Broyles.
    G. Phillip Shuler, III, Michael D. Spencer, Chaffe McCall, L.L.P., New Orleans, Louisiana, for Defendant, John Hancock Life Insurance (U.S.A.).
    Thomas A. Roberts, Gabriel A. Crowson, Juston M. O’Brien, Larry E. Mobley, McGlinchey Stafford, PLLC, New Orleans, Louisiana, for Defendants/Appellants, Citigroup Corporate and Investment Banking, Inc., David Anderson Alford.

      Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

|! Citigroup Corporate and Investment Banking, Inc. (“Citigroup”), as the successor to Salomon Smith Barney, Inc. (“Smith Barney”), and David Alford appeal a trial court judgment overruling their dilatory exception of prematurity and motion to compel arbitration. For the following reasons, we affirm.

Procedural History

The Succession of Achille Bijeaux (“the Succession”) filed a petition for damages alleging that Mr. Alford, a Smith Barney employee, and Mildred Bourque Broyles fraudulently purchased two annuities with funds from the decedent’s Smith Barney account. Citigroup, as Smith Barney’s successor, and Mr. Alford filed a dilatory exception of prematurity and motion to compel arbitration based upon the arbitration clauses in two “Account Agreements” that the decedent allegedly signed. The Succession opposed the exception and motion, arguing that Defendants failed to prove the existence of a valid, enforceable arbitration agreement and, in particular, contending that the decedent was incapable of understanding the “Account Agreements” due to his illiteracy and advanced age and that the annuity contracts themselves did not contain arbitration clauses.

At the hearing on the exception and motion on March 1, 2006, the following exchange occurred between counsel and the trial court:

MR. GAUTHIER [Attorney for the Succession]: Your Honor, if I may, we don’t have any evidence yet because this is the hearing where you present the evidence. You don’t do it in briefs unless you’re going to do a motion for summary judgment. This is simply an exception of prematurity. We’re putting the cart before the horse here. They are alleging that an arbitration agreement exists. There is no arbitration agreement in evidence right now. All we have is what’s attached to his brief, which has not been introduced into evidence, so until he gets that in there we can’t even consider that.
| ¡THE COURT: Anything further?
MR. CROWSON [Attorney for Citigroup]: No. I mean, my client agreement was attached to the motion so I think it’s in the record now and it wasn’t refuted in the papers.
MR. GAUTHIER: In the record and in evidence are two (2) entirely different things, Your Honor. We need to get it in evidence and it’s not in evidence today and there’s no arbitration agreement to consider.
THE COURT: Exception is overruled.

Citigroup and Mr. Alford filed an application for supervisory writs to this court, which we denied in an unpublished ruling bearing docket number CW 06-677 (La.App. 3 Cir. 7/24/06). They also filed this appeal, assigning as error the trial court’s failure to require the Succession to submit to arbitration and its failure to consider the agreements containing the arbitration clauses when the Succession judicially confessed and relied on the agreements in support of their cause of action.

Opinion

Louisiana Code of Civil Procedure Article 930 provides in part: “On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” Further, when the failure of a party to arbitrate in accordance with the terms of an agreement is raised by the exception pleading prematurity, “the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature.” Cook v. AAA Worldwide Travel Agency, 360 So.2d 839, 841 (La.1978).

In the present case, the minutes of the trial court do not indicate that any evidence was introduced in support of or in opposition to the exception and motion, and counsel for Defendants represented to the trial court that the client agreements hat issue had only been attached to pleadings filed in connection with the exception and motion. As the above exchange indicates, the trial court did not reach the merits of the dilatory exception of prematurity, but instead denied it solely on the basis of counsel’s failure to introduce the attached client agreements into evidence.

As this court pointed out in Abshire v. Belmont Homes, Inc., 04-1200, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 280, writ denied, 05-862 (La.6/3/05), 903 So.2d 458, documents that were merely “attached to the pre-hearing memoranda filed by the litigants” were not properly introduced into evidence at the hearing on a dilatory exception. However, this court went on to review those documents because the litigants in that case “treated the documents as if they were introduced; therefore, we will treat their acknowledgment as a judicial confession of the existence of the documents as evidence.” Id. In the present case, however, counsel for the Succession’s objection to the incompleteness of the record precludes us from proceeding accordingly. Based upon the record before us, we find that the trial court did not err in overruling the exception of prematurity.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants-Appellants, Citigroup and Mr. Alford.

AFFIRMED.

      . Also heard that same day was a peremptory exception of prescription that the trial court overruled and that is not part of this appeal.


author: PAINTER, Judge.'

text:
    MARSH ENGINEERING, INC. and Richard D. Barnett v. Earnest L. PARKER, et al.
    No. 2006-1137.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Warren D. Rush, Lafayette, LA, for Plaintiff-Appellant: Richard D. Barnett.
    L. Lane Roy, Dawn L. Morris, Lafayette, LA, for Defendant-Appellee Ace American Insurance Co.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.'

hThe Plaintiff, Richard D. Barnett, appeals a trial court judgment dismissing, as untimely, his suit against Ace American Insurance Company (Ace), professional liability insurer of attorney Ernest L. Parker. For the following reasons, we affirm.

FACTS

The underlying facts of this case were set out by this court in its opinion in an earlier appeal, as follows:

Richard D. Barnett and Ernest L. Parker, a lawyer, began an attorney-client relationship in 1981. Over time, they also became close friends. In 1984, Parker was informed by a fellow attorney and friend, Logan Nichols, that shares of stock issued by Campbell Wells Corporation and CAMPCO-1985, a related concern, were for sale. Parker discussed the possibility of acquiring Campbell Wells with Barnett and William C. Davis, also one of Parker’s clients and a businessman. Barnett, Parker, Nichols and Davis agreed to purchase the corporation. Each investor acquired 25% of Campbell Wells’ stock. Barnett’s interest in Campbell Wells was acquired in the name of his brother-in-láw, Jerry Brazzel.
Campbell Wells was purchased at a cost of $2,052,500.00 on September 10, 1985. The sellers financed $1,052,500.00 of the price and Guaranty Bank & Trust Company of Lafayette (Guaranty) loaned the investors the remaining sum. Guaranty also loaned the investors $500,000.00 as “start up” capital for use by the corporation. The investors all personally obligated themselves to pay the loan extended by Guaranty. Braz-zel, appearing as Barnett’s alter ego, signed the loan documents.
Despite Campbell Wells’ success, however, Barnett’s financial portfolio was not as promising. Barnett also owned Marsh Engineering, a company on the verge of failure. Barnett was in default on loans owed to Guaranty exceeding one million dollars and on the brink of bankruptcy. Parker, also Guaranty’s attorney, represented Barnett in an attempt to resolve his financial problems with various creditors; and he continued to advise Barnett as a friend and business partner.
According to Barnett, Parker informed him the Internal Revenue Service and other creditors might seize his interest in Campbell Wells. Parker then suggested Barnett transfer his interest in Campbell Wells for him to hold in trust.
^Parker prepared an Act of Cash Sale and Assumption which Barnett, through Brazzel, executed on February 8, 1986. This instrument transferred Barnett[’s] 25% interest in Campbell Wells to Parker. As “consideration” for the transfer, Parker assumed fully the obligation of Barnett through Brazzel in favor of Guaranty and further agreed to pay $1,000.00 in cash to him.
William Davis, experiencing financial difficulties as well, transferred his interest in Campbell Wells to Parker on the same day in an identical document. Barnett asserts he did not read the Act of Cash Sale and Assumption before he signed it because he trusted Parker; and, he did not seek advice from “outside” counsel for the same reason. He claims Parker did not inform him -of the contract’s terms and he did not receive a copy of the agreement before Brazzel signed it. Barnett also asserts Parker did not express to him an intent to release Brazzel as a guarantor on the note executed in favor of Guaranty. Barnett insists he would not have approved the release because Campbell Wells was grossing over one million dollars a year and the company’s indebtedness to Guaranty was not in arrears. Barnett further complains the thousand dollars mentioned in the contract as partial consideration for the alleged transfer was not paid to him by Parker.
Parker steadfastly denies the transfer was a simulated transaction. To the contrary, he maintains Barnett fully understood the terms of the Act of Cash Sale and Assumption. Parker asserts he satisfied all the obligations he undertook in the agreement; and, Barnett and Brazzel never were called to pay the substantial Campbell Wells’ indebtedness he assumed in favor of Guaranty. Parker also contends Barnett’s conduct, following the agreement, was inconsistent with his claimed ownership in Campbell Wells. According to Parker, Barnett’s tax returns did not reflect his alleged interest in the company and he did not disclose such continued interest to Guaranty which held notes he defaulted on as part owner and operator of Marsh Engineering.
Barnett alleged he first became suspicious that Parker never intended to hold in trust his interest in Campbell Wells in late 1986 after speaking with a friend. Not believing in the truth of his friend’s assertions, Barnett dismissed his initial suspicion as unfounded until late 1987 or early 1988 when he decided to confront Parker at a restaurant in Lafayette, Louisiana. Barnett requested that Parker return his interest in Campbell Wells and Parker refused to do so. Parker also threatened, in Barnett’s words, to destroy him if he tried to seek redress.
Campbell Wells’ success story continued. In June 1990, Parker and Nichols agreed to merge Campbell Wells with Sanifill, Inc., a public company trading stock on the New York Stock Exchange. They tendered all of Campbell Wells stock in exchange for Sanifill, Inc., stock.
|sOn November 21, 1991, Barnett filed suit seeking damages or, alternatively, rescission of the Act of Sale and Assumption and an accounting, or a declaratory judgment recognizing him as owner of Sanifill’s shares of stock in proportion to the 25% interest he held in Campbell Wells. Barnett premised his claim for relief on the following grounds: breach of contract, fraud, breach of fiduciary duty, failure of consideration, detrimental reliance and nullity of the agreement.

Marsh Eng’g, Inc. v. Parker; 94-1129, pp. 1—4 (La.App. 3 Cir. 5/8/96), 688 So.2d 1042, 1043-45 (footnote omitted).

On October 3, 2003, in his sixth supplemental and amending petition, the Plaintiff added Ace as a party defendant, asking for judgment against him as Parker’s professional liability insurer. Ace was successor to Cigna Insurance Company which issued a policy of professional liability insurance to Parker’s law firm. Ace filed exceptions of prescription and no cause of action, and, alternatively, a motion for summary judgment. The Plaintiffs filed a seventh supplemental petition.

The trial court heard the exceptions on June 20, 2005 and rendered a judgment stating that “the Exception, No Cause of Action regarding Peremption on behalf of Ace American Insurance Company be and is hereby granted and the Plaintiffs suit against Ace American Insurance Company be dismissed with prejudice at the cost of Plaintiffs.” Marsh Engineering was voluntarily dismissed from the action in February 2006. The Plaintiff now appeals the judgment.

DISCUSSION

After examining the record, it is clear that the only issue before this court is whether Ace was timely notified of the claim against it.

It is uncontested that the policy issued by Cigna is a claims made policy. The policy provided to Parker states that the “insurance is limited to liability for only | ¿those CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD.”

[A] “claims made” insurance policy is one in which coverage attaches only if the negligent harm is discovered and reported within the policy period. Ward v. Vizzini, 94-638 (La.App. 5 Cir. 5/14/97), 695 So.2d 1012, writ denied, 97-2142 (La.11/14/97), 703 So.2d 632. “Where a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible.” Livingston Parish School Bd. v. Fireman’s Fund Am. Ins. Co., 282 So.2d 478, 481 (La.1973). This is in accordance with the general principle that, in the absence of conflict with statute or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability and impose such reasonable conditions as they wish upon the obligations they assume by their contract. Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302. However, an insurer cannot limit the prescriptive period in a policy for a period of less than twelve months. La.R.S. 22:629.

Robicheaux v. Adly, 00-1207, pp. 4-5 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048, 1052. See also Regions Bank v. Kountz, 05-1106 (La.App. 3 Cir. 5/31/06), 931 So.2d 506. However, it is clear that La.R.S. 22:629 does not extend the protection of a liability policy to risks that were either not covered by the policy or which it excluded. Robicheaux, 779 So.2d 1048. The terms of the policy issued to Parker limit coverage to claims first made against him during the policy period.

The Plaintiff asserts that this limitation should not apply to him because of difficulty in finding which company had acquired Cigna. However, unlike the policy in the Robicheaux and Regions Bank cases, the policy in this case does not require notice to the insurer within the policy period, rather it requires only that a claim be made against the insured within the policy period. However, no formal demand was made on Parker, the insured, until November 26, 1990, more than four years after the policy expired and more than four years after the act which is alleged to have given rise to the Plaintiffs cause of action. No evidence was introduced to suggest that | ¡¡Parker or his insurer knew or should have known about the claim during the policy period or within a year of the accrual of the Plaintiffs cause of action. Even the date Barnett first confronted Parker with his concerns about the transfer of shares was more than a year after the expiration of the policy, as the record shows that this event occurred in late 1987 or early 1988. Therefore, as in Robi-cheaux, although Parker’s “ ‘claims made’ policy had a limitation, when the facts of this case are considered, it did not shorten the statutorily mandated period” dictated by La.R.S. 9:5605 or La.R.S. 22:629. Id. at 1054.

Therefore, the trial court correctly concluded that there was no coverage under the Ace policy and that Barnett’s claim against Parker was perempted.

CONCLUSION

For these reasons, the judgment of the trial court dismissing the Plaintiffs action against Ace is affirmed. Costs of this appeal are assessed to the Plaintiff, Richard D. Barnett.

AFFIRMED.


author: PETERS, J.

text:
    Virginia JOHNSON v. CALCASIEU PARISH SHERIFF’S DEPARTMENT, et al. Lonnie Kemp v. Calcasieu Parish Sheriff’s Department, et al.
    Nos. 2006-1179, 2006-1180.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      John F. Lavern, Lake Charles, LA, for PlaintiffAppellee: Virginia Johnson.

      Stephen C. Dwight, Dwight Law Firm, Lake Charles, LA, for Defendants/Appellants: Calcasieu Parish Sheriffs Department, et al.
    Robert C. McCall Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, LA, for PlaintiffiAppellee: Lonnie Kemp.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

hBeth Lundy, the former sheriff of Cal-casieu Parish, appeals the trial court’s judgment setting aside its prior judgment dismissing the plaintiffs’ suits against her in two consolidated cases. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

Virginia Johnson and Lonnie Kemp brought suit in separate actions against Beth Lundy in her capacity as sheriff of Calcasieu Parish, seeking a $100,000.00 judgment against the sheriff. The $100,000.00 at issue represents the amount of a reward offered by Ms. Lundy’s predecessor in office, Wayne F. MeElveen, for information leading to the arrest and conviction of the person or persons responsible for a triple homicide that occurred in Calcasieu Parish on July 6, 1997. Former Sheriff MeElveen posted the reward notice on July 1, 1998. The notice set forth the names of the three victims and the place and date of the homicides and contained the instructions on how to provide information and make a claim for the $100,000.00 cash reward.

Thereafter, the State of Louisiana charged Thomas F. Cisco with the three murders. After a nine-day trial that began on October 9, 2000, a jury convicted Cisco of three counts of first degree murder. Ms. Johnson filed suit on August 17, 2001, asserting that she had provided information leading to the arrest and conviction of Cisco and that she was entitled to the reward. Lonnie Kemp filed a similar suit seeking the same relief on September 27, 2001. In both suits, the plaintiffs asserted that they had complied with all the requirements and conditions of the reward offer.

| ¡.After issue was joined in both suits, they were consolidated by a judgment signed on April 18, 2002. Notice of this judgment of consolidation was mailed to the parties on April 30, 2002. The plaintiffs took no further steps in the prosecution of their claims, and the litigation remained dormant until January 24, 2006, when Sheriff Lundy filed a motion to dismiss the actions pursuant to La.Code Civ.P. art. 561, asserting that the actions had been abandoned. In response to that motion, the trial court issued a formal order of dismissal on January 25, 2006, dismissing both actions. Thereafter, the plaintiffs filed motions to set aside the order of dismissal. After a hearing, the trial court granted the plaintiffs’ motions. It is this action of the trial court that Sheriff Lundy appeals.

OPINION

Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” The party seeking dismissal on the basis of abandonment may file an ex parte motion “by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action.” La.Code Civ.P. art. 561(A)(2). In that event, “the trial court shall enter a formal order of dismissal as of the date of its abandonment.” Id. (emphasis added). Thereafter, the party against whom the ex parte judgment has been rendered may, “within thirty days of the date of the sheriffs service of the order of dismissal,” file a motion to set aside the dismissal order. La.Code Civ.P. art. 561(A)(3).

|3Whether the plaintiffs’ suits were abandoned is a question of law. Olavarrieta v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, writ denied, 05-1557 (La.12/16/05), 917 So.2d 1118. Thus, when an appellate court reviews a question of law the standard of review is simply whether the lower court’s interpretive decision is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, writ denied, 05-2444 (La.3/24/06), 925 So.2d 1231.

It is not disputed by the plaintiffs that they took no steps toward the prosecution of their claims after their suits were consolidated on April 18, 2002. Thus, more than three years had lapsed since the last step in the prosecution of their claims when Sheriff Lundy filed her motion to dismiss. However, the plaintiffs assert that they were prevented from pursuing their claims because Cisco’s conviction had been reversed by the Louisiana Supreme Court. In making this argument, the plaintiffs point to the language of the reward notice itself which provided that “[i]n order to receive payment for the reward, the person or persons responsible for the crime must be convicted of the crimes, unless the Sheriff makes a finding, in his sole discretion, of impossibility of conviction due to the death or incapacity of such person or persons.” (Emphasis added.) The trial court agreed, and we find no legal error in that judgment.

Abandonment of an action is a species of liberative prescription. Melancon v. Cont’l Cas. Co., 307 So.2d 308 (La.1975). Given the prescriptive nature of the action, our jurisprudence has long recognized that, where the. cause of the failure to pursue a claim is due to matters beyond a plaintiffs control, the prescriptive period does not run. Barton v. Burbank, 138 La. 997, 71 So. 134 (1916); Bell v. Staring, 170 4So. 502 (La.App. 1 Cir.1936). In that regard, our courts have specifically found that the doctrine of contra non valentem applies when failure to prosecute is caused by circumstances beyond the plaintiffs control. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779.

When the plaintiffs filed their individual suits, Cisco had been convicted, but his conviction was not final. Because Cisco’s conviction was overturned by the supreme court, his retrial is in the sole discretion of the Calcasieu Parish District Attorney. La.Code Crim.P. art. 61. Thus, the plaintiffs’ failure to prosecute their action to completion is caused by circumstances beyond their control.

Sheriff Lundy argues on appeal that the doctrine of contra non valentem as an exception to the interruption of the abandonment period is limited to only two circumstances — a plaintiffs service in the United States Military or his confinement to a mental institution. While we note that in Pounds v. Yancy, 224 So.2d 1 (La.App. 1 Cir.), writ denied, 254 La. 810, 227 So.2d 145 (1969), these two circumstances were listed as examples of exceptions, we do not find that they are exclusive. In fact, policy considerations require that La.Code Civ.P. art. 561 be liberally construed in favor of maintaining a plaintiffs suit. Clark, 785 So.2d 779. Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned. Id. The presumption of abandonment that arises under La.Code Civ.P. art. 561 as a result of three years of litigation inactivity is not conclusive. Id. Dismissal being the harshest of remedies, the general rule is that any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id.

| KSheriff Lundy next argues that the plaintiffs could and should have protected their rights by obtaining a stay order. This argument is equally without merit. As noted in Faust v. Greater Lakeside Corp., 03-808 (La.App. 4 Cir. 11/26/03), 861 So.2d 716, writ denied, 04-424 (La.4/2/04), 869 So.2d 887, it would have been a useless gesture for the plaintiffs to have obtained a stay of proceedings and left it in place as an explanation for their failure to take action in the cases, when the actual reason thwarting their ability to take action was a matter well understood by all parties to be entirely beyond the plaintiffs’ control.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects and tax all costs of this appeal to Beth Lundy, sheriff of Calcasieu Parish, Louisiana, in the amount of $482.20 as required by La. R.S. 13:5112.

AFFIRMED.

      . Sheriff MeElveen left office in 2000. Sheriff Lundy became sheriff in July 2000. She, in turn, was replaced in July 2004 by the current Sheriff Tony Mancuso.

      . It is undisputed that Sheriff Lundy’s dismissal motion complied with this provision.

      . It is also undisputed that the plaintiffs timely complied with this provision.

      .In State v. Cisco, 01-2732 (La.12/3/03), 861 So.2d 118, the supreme court reversed Cisco's conviction and remanded the matter to the trial court for a new trial.


author: COOKS, Judge. GENOVESE, J.,

text:
    Garrett Linn LeBLANC v. Nichole LeBLANC.
    No. 2006-1052.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 2007.

      Todd H. Melton, Lake Charles, LA, for plaintiff/appellee, Garrett Linn LeBlanc.
    Richard E. Lee, Pineville, LA, for defendant-appellant, Nichole LeBlanc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| ,In this child custody case, the mother appeals the trial court’s judgment finding a material change in circumstances occurred and that the best interests of the minor child required naming the father domiciliary parent. For the following reasons, we reverse.

FACTS

Garrett Leblanc and Nichole Leblanc were married on June 1, 2002. They had one child together, Pacen Cole Leblanc, who was born on February 6, 2001. On August 23, 2003, Garrett filed for divorce and sought shared custody of Pacen. Nichole sought joint custody and designation as domiciliary parent. On September 13, 2004 the parties stipulated to joint custody, with Nichole designated as domiciliary parent and Garrett provided specific visitation.

On February 14, 2005, Garrett filed a “Rule to Change Custody and for Incidental Relief.” Garrett sought to maintain the joint custody of the parties, but sought to be named domiciliary parent. He also sought injunctive relief to prohibit relocation of Pacen pending the hearing and to address the. issue of child support if the custody change was granted. Garrett alleged Nichole, who had become engaged, planned on moving from Sulphur, Louisiana to Pollock, Louisiana where her fiancé resided. Nichole was pregnant, and her fiancé had two children of his own through a previous relationship. Garrett was also remarried and resides with his new wife and her two children in Sulphur.

A hearing was held on the Rule to Change Custody. The trial court rendered judgment maintaining the joint custody, but designating Garrett as domiciliary parent. The court also set forth specific visitation for Nichole. The trial court set forth the following reasons for its judgment:

| Jn determining if the proposed modification is in the best interest of the child, the Court must consider La.Civ. C[ode] art. 134, which sets forth twelve relevant factors. Using these factors as a framework for analysis, the Court will determine if a material change in circumstances has occurred and if the proposed modification is in the best interest of Pacen.
Material Change in Circumstances
In Garrett’s rule to change custody, he alleged that various changes in circumstances such as conflicts in receiving his visitations, Nichole’s stability, and Nichole’s engagement and anticipated move with Pacen to Pollock, Louisiana. The Court notes at the outset that the distance between Lake Charles and Pollock is insufficient to trigger the application of the Louisiana Relocation Statute, La.R.S. 3:355 et seq. Thus, the relocation statute is not applicable.
If the relocation statues [sic] was applicable, Nichole’s notice of her proposed relocation of the child would not constitute a material change in circumstances as per La.R.S. 9:355(11). -However, in the instant case, Nichole has actually relocated to Pollock. As the Second Circuit Court of Appeal noted in Masters v. Masters, 756 So.2d 1196, 1200 (La.App. 2d Cir.4/5/00), writ denied, 803 So.2d 975 (La.2000[2001]), “an actual move out of state is a ‘material change in circumstances’ which allows the court to revisit custody and re-measure the best interest of the child.”
While notifying a party of the intent to move with the child may not constitute a material change in circumstances, this Court believes that the party’s own testimony at trial that they intend to move with the child should constitute a material change in circumstances. A party should not have to wait until the actual move occurs, when it may not be in the child’s best interest, to constitute a change in circumstances if the party makes it clear in their testimony that they intend to relocate. Nichole and her witnesses testified that she intended to move with Pacen to Pollock. In fact, on the last day of trial, Nichole testified that she had moved the preceding weekend.
Other changes of circumstances have occurred which materially affected Pa-cen. Besides his mother’s move and desire to take him with her, Pacen is also reaching school age and a decision needs to be made as to which school he will attend. In addition, Pacen is exhibiting some aggressive behavior which was noted by both parents.
For the numerous reasons discussed above, the Court finds that there have been material changes of circumstances which have affected the welfare of Pa-cen. Accordingly, the Court shall next consider the factors of La.Civ. C[ode] Art. 134 to determine a custody and access arrangement that is in Pacen’s best interest.
|sLa. Civil Code Article 134 Factors
For the first time ever, the Court finds that it is not necessary to discuss in detail each individual factor because the parents stand on equal footing for almost every factor.
Nichole and Garrett both love Pacen and have strong emotional ties with him. In addition, they both have evidenced to the Court their capacity and disposition to love Pacen and show affection to Pa-cen. Nichole and Garrett both have guided Pacen’s spiritual growth and evidenced their involvement in the education and rearing of Pacen. Pacen has split his time almost equally between both parents and they have both maintained a stable and adequate environment for Pacen. In addition, both parents appear to have permanent family units. Garrett and his new wife, Daphne, reside together with her two children. Nichole will be residing with her fiancé, Evan Delaney, and his two children in Pollock. She is pregnant and due in February. They intend to marry soon.
Garrett has been employed with the post office for five or six years. Nichole has worked as a hair dresser for several years, at one point opening her own shop. Clearly, the parties both have the ability to provide Pacen with his food, clothing, medical care and his other material needs. The evidence established that neither parent has a significant mental or physical health issue which would affect their ability to parent Pa-cen. Further, there was not any significant testimony concerning the moral fitness of either party that the Court finds affects Pacen’s well-being.
Both parents have been the primary caregiver of Pacen at some point in his life. They both play very active roles in his life and every day activities. Thus, it is no surprise to the Court that Pacen might have expressed to both parents his desire to live with them. However, Pacen is too young for the Court to consider any preference he may have as to where he wants to live. The Court is absolutely confident that Pacen would excel in the home of either parent.
Nichole and Garrett have both shown the Court their willingness and ability to facility [sic] and encourage a close and continuing relationship between Pacen and the other parent. Despite their stipulated judgments, Nichole has continuously offered and agreed to Garrett having additional time with Pacen. Garrett also recognizes the importance Pa-cen’s mother plays in his life. Both parties allow the other unlimited phone calls with Pacen while in their care.
While both parties brought up negative things about the other, which is no surprise in a custody case, the Court finds that none of these things were very significant. Obviously, Garrett and Nichole are not going to get along perfectly or they would still be together. However, this Court must state unequivocally that Garrett and Nichole are truly ajjwonderful example of how divorced parents should continue to work together for their children. Pacen is truly blessed to have Garrett and Nichole as his parents.
Nichole became engaged to Evan in May of 2005. Evan is in the National Guard and stationed at Camp Beauregard in Pollock, La. Nichole explained that Evan can be deployed to another country, but his base would always be at Camp Beauregard. She said that they tried to reside locally, but were not able to. Nichole testified that regardless of the outcome of this custody case, she has made her decision to marry Evan and move to Pollock.
As hard as it is, this Court must make a decision as to who should be named domiciliary parent of Pacen. In doing so, it will determine whether Pacen resides in Pollock or Calcasieu Parish. Thus, one of the La. Civ. C. art. 134 factors that is important in this case is the home and community history of Pa-cen. Pacen will start preschool this year, so he does not have a significant school history yet. However, Pacen does have a history in this community. He has resided in this parish all of his life — either in Vinton or Sulphur. Almost all of Pacen’s family lives in this area. Family has played a very important role in Pacen’s life. Every week, Pacen spends the afternoon with his paternal grandmother, Dorothy Tony. In addition, Pacen spends a considerable amount of time with his maternal grandmother and her family. Pacen also has family friends that he plays with such as Sam Breaux’s two boys. To limit or interfere with Pacen’s contact or relationship with his extended family would be a significant change in his life.
Nichole maintains that Garrett’s visitation with Pacen will not change significantly if Pacen moved to Pollock with her. She testified that she has a flexible schedule as a hair dresser and will be able to transport Pacen for visitation on a regular basis. However, the Court notes the following example of how things can come up and interfere with well-intended plans. Garrett and Nichole both testified that Pacen was showing some aggressive tendencies and was in need of counseling. They agreed on a counselor and Garrett set it up. Despite the need to get Pacen started in counseling, Nichole canceled her appointment because one of her customers needed their hair done and could only come at that time. If something like this would occur when Nichole needed to transport Pacen from Pollock to Sulphur for his visitation, Garrett might miss out. However, if Pacen was local, other arrangements could be made so that Garrett’s visitation would not be missed and Nichole could help her customer. While everyone may have good intentions that Pacen and Garrett’s extensive contact will remain intact, things can come up, even though not intentional, which make continuous long-distance contact hard on all parties involved. In addition, the distance would clearly prevent Garrett from being involved in any of Pacen’s school activities and/or extracurricular activities during the week. For a very involved parent such as Garrett, this would significantly impact on Pacen and Garrett’s relationship.
J^CUSTODY CONCLUSION
This Court has evaluated and discussed the factors of La. Civil Code art. 134 to determine what custody arrangement is in the best interest of Pacen. In making a custody decree, the Court should examine all relevant facts:
In determining what is in the best interest of the children, courts must examine all relevant facts, including but not limited to, stability of environment, standard of living each parent can provide, and the prior history of the child’s custody. The role of the court is to determine the best interest of the children based on relative fitness and ability of the competing parents in all respects to care for the children. Simmons v. Simmons, 554 So.2d 238 (La.App. 3d Cir.1989).
Peyton v. Peyton, 614 So.2d 185 (La.App. 3rd Cir.1993)
This decision is not an easy one as both parents bring positive attributes to the care of Pacen. Garrett and Nichole, unlike most parents appearing in family court, have truly made an effort to parent Pacen together amicably. In most instances, they have put any negative feelings they have about each other to the side and have focused on the needs of Pacen. The Court believes that Pa-cen would do well living with either parent.
However, after hearing all of the evidence, the Court finds that Pacen’s interest would best be served by granting domiciliary parent to Garrett. Pacen has a very close bond and relationship with Garrett and all of his extended family. If Pacen relocated to Pollock, the distance would significantly interfere with these relationships. The Court finds that it is in Pacen’s best interest to primarily reside with Garrett in a home and community he has always known and thrived in.
Accordingly, the Court grants joint custody of Pacen to Garrett and Nichole, naming Garrett as the domiciliary parent. The Court grants Nichole visitation as set forth in the attached joint custody plan.

Nichole appealed the trial court’s judgment, contending it erred in modifying the previous stipulated custody agreement and naming Garrett as Pacen’s domiciliary parent.

ANALYSIS

Because the prior custody decree was a stipulated judgment, Garrett, as the |fiparty seeking to modify the existing custody arrangement, must prove (1) there has been a material change of circumstances affecting the welfare of the children since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731; Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02), 824 So.2d 438.

Our initial inquiry is whether the trial court correctly found there was a material change in circumstances which affected the welfare of Pacen, such that a best-interest analysis under La.Civ.Code art. 134 was necessary. Garrett argued below that Nichole’s engagement and anticipated move with Pacen to Pollock, as well as alleged conflicts in receiving his visitations were significant enough to amount to material changes in circumstances.

Nichole contends the trial court erred in finding Garrett proved by a preponderance of the evidence that there was a material change in circumstances. She argues the trial court improperly considered her proposed relocation a per se change in circumstances that materially affected the welfare of the children. Louisiana Revised Statutes 9:355.1(4)(b) declares that an intrastate move of less than one hundred fifty miles is not considered a relocation.

Upon review of the trial court’s reasons, we find it unclear whether the trial court found the move to Pollock to be a per se material change in circumstances. While the court specifically noted that the distance between Lake Charles and Pollock was insufficient to trigger the application of the Louisiana Relocation Statute, La.R.S. 9:355.1 et seq., it also stated that a “party’s own testimony at trial that they intend to move with the child should constitute a material change in circumstances.” Assuming |7that the trial court did not find the move to Pollock was per se a material change in circumstances (which would have been improper), at a minimum the trial court found the move, along with Pacen beginning school and some exhibiting of aggressive behavior, constituted a material change in circumstances affecting the welfare of Pacen so as to undertake an Article 134 best-interest analysis. For the reasons that follow, we find this conclusion was erroneous, and reverse the trial court’s modification of the previous stipulated decree and return domiciliary parent status to Nichole.

In Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478, this court was presented with a similar factual scenario to the one here. In that case, the trial court found “it was in the best interest of the children to redes-ignate the father as the domiciliary parent should the mother decide to move from Crowley, the life-long home of the children, to Baton Rouge, the home of her future husband.” Id., 653 So.2d at 50. On appeal, we discussed when an intrastate move constitutes a material change in circumstances:

Underscoring the problem which these prospective facts presented, the trial court stated in its written reasons:
The job [of the trial court] boils down to a balancing of the advantages of moving the children to the new domicile of their mother so they can continue in her care against the possible negative impact of “uprooting” them from the environment in Crowley to which they are so accustomed. (Emphasis added).
Thus, in the present case, the trial court was asked to make a decision based only upon anticipated facts that may possibly have a negative impact on the children. Accordingly, we find that the trial court improperly modified a custody decree without a showing of a change of circumstances.
In this same vein, we point out that we failed to uncover any appellate jurisprudence in Louisiana that has held that an intrastate move was a change in circumstance per se. Although the appellate decisions are replete with instances where children were moved out of state, not 1 sthe equivalent of the facts presented herein, there too we found that not every interstate move has been held to be a change of circumstances that necessitated a modification of custody. Accordingly, we find that an intrastate move is not per se a material change of circumstances such that we may presume that it will materially affect the children’s welfare without further evidence. See Smith v. Smith, 615 So.2d 926 (La.App. 1st Cir.), writ denied, 617 So.2d 916 (La.1993). Therefore, we find that Michael’s claims before the trial court were purely speculative and the issue of a modification of child custody was not ripe for adjudication before the tribunal.

Id. at 53. (Emphasis added).

Much as the trial court in Hensgens, the lower court decision here anticipates difficulties that may arise from Pacen’s move to Pollock. At trial neither party testified as to any problems that occurred due to Paeen’s impending move. Further, the fact that the greater distance between Pollock and Sulphur will impact Garrett’s time with Pacen is not sufficient by itself to constitute a material change in circumstances. Similarly, we held in Hensgens, 653 So.2d at 56-57 (footnotes omitted):

Although the move of the boys to Baton Rouge will mean that Michael may have less contact with his sons, this factor alone does not necessitate a finding that custody should be moved from Patricia to Michael.

It is unavoidable that Pacen’s relationship with one of his parents will be affected by this custody determination. When there are two loving, concerned and involved parents, as there are in this matter, decisions regarding the custody of the children are extremely difficult, and even more so when the relocation of one of the parents is at issue. However, in today’s society, this is one of the many inevitable and undesirable effects of divorce when children are involved. Nichole testified she agreed to move to Pollock only when it became unavoidable. She further testified she would do everything possible to insure that Garrett spent as much time as possible with Pacen even with the move to Pollock. Nichole has continually demonstrated a | asincere effort to maintain Garrett and Pacen’s relationship since the divorce. The trial court specifically noted that “[djespite their stipulated judgments, Nichole has continually offered and agreed to Garrett having additional time with Pa-cen.” Therefore, as the move to Pollock is not, by law, considered a relocation, and no actual negative effects from the move have occurred, we find the trial court erred in finding the move was a material change in circumstances which affected Pacen’s welfare.

The trial court also found that Pacen reaching school age was a change in circumstances “which materially affected Pa-cen.” We disagree. There will always be material changes in circumstances throughout the lifetime of a child. Starting school is always such a change, as is the birth of a sibling, adolescence, etc. However, the ultimate question which must be answered is whether the change in circumstances will negatively impact the welfare of the child. As was aptly stated by Judge Weimer in his concurring opinion in Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 360, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151, “[l]ife changes may occur, but if the changes do not have an effect on the welfare of the child, then no change in custody is justified.” In that same case, Judge Pro Tem Fontenot, in his dissenting opinion, also noted:

While visitation may be judicially modified to accommodate the needs of a growing child, I am uncomfortable with a rule that could lead to the review of the domiciliary status at each stage of the child’s journey to adulthood ... I have found no case in which a mere reduction in visitation necessitated by school obligations was considered a material change for purposes of empowering a court to discard a prior custody arrangement in the pursuit of the best interest of the child.

Id. at 362-3.

The second circuit in Payne v. Payne, 41,049 (La.App. 2 Cir. 5/19/06), 930 So.2d 1181, writ denied, 06-1871 (La.8/9/06), 935 So.2d 130, reversed the trial | 10court’s judgment rejecting the mother’s request to move to Mississippi with her five-year-old daughter. In discussing the father’s argument that the child had already begun school and it would be injurious to her development to move, the Payne court stated:

The child was only five years old at the time of trial and was completing kindergarten. At this very young age, she was not yet so invested in any school or activity that relocation would cause a detrimental impact on her development.

Id. at 1185.

Likewise, the trial court noted in this case Pacen was just beginning preschool, and he did “not have a significant school history yet.” Thus, we find the trial court’s conclusion that Pacen reaching school age was a material change in circumstance that affected his welfare was legally erroneous.

We also find the trial court erred in concluding Pacen’s aggressive behavior was a material change in circumstance. There was no testimony from either parent that this behavior arose because of Pacen’s future move to Pollock, or because of any difficulties in the shared custody arrangement with his parents. Nichole opined that it may have been the result of learned behavior from watching adults with tempers, specifically Garrett and his mother (Pacen’s paternal grandmother). Garrett noted that it was not uncommon for Pacen to exhibit some aggressive behavior, and stated he believed it was Pacen’s instinct to hit when he felt he was being picked on. Thus, by the parent’s own testimony, Pa-cen’s aggressive behavior was not caused by any possible move to Pollock and the trial court erred in finding it was a material change in circumstances so as to affect the disposition of custody.

DECREE

InFor the above reasons, we find the trial court erred in finding Garrett met his burden of proving there were material changes of circumstances affecting the welfare of the child since the original custody decree was entered. Therefore, the trial court erred by undertaking a best-interest analysis and in modifying the original custody decree. The judgment of the trial court is reversed and the motion for change of custody filed by Garrett Leblanc is dismissed. Costs of this appeal are assessed to Garrett Leblanc.

REVERSED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following written reasons.

LI disagree with the majority opinion in this matter and respectfully dissent therefrom. This court has clearly stated the standard of review for an appellate court in child custody cases. “The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

The trial court in this case gave extensive and cogent reasons for judgment. Though the majority opinion is a permissive view of the case, the trial court is in the best position to make the call, and we should not err by superimposing our judgment for its judgment. The majority relies heavily on Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. However, in Hensgens, the trial court was addressing an “anticipated move”; whereas in the instant case, the mother had actually relocated and moved the weekend prior to the trial of this matter. The facts in both cases are clearly distinguishable.

| /There is nothing in the record of this case to show a “clear abuse of discretion” by the trial court or that the trial court was clearly wrong. For these reasons, I dissent from the majority and would affirm the trial court judgment.

      . Garrett also cited an alleged lack of stability on Nichole’s part as a further example of a change in circumstances. The record does not support this allegation, and the trial court’s reasons specifically noted there was no evidence that the moral fitness of either party "affect[ed] Pacen's well-being.”


author: COOKS, Judge.

text:
    STATE of Louisiana v. Richard ORDNER.
    No. 2006-1054.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 2007.

      Dmitrc I. Burnes, Alexandria, LA, for Defendant/Appellant, Richard Ordner.
    Douglas L. Hebert, Jr., District Attorney, Sherron Ashworth, Assistant District Attorney, Oberlin, LA, for Appellee, State of Louisiana.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

I,FACTS AND PROCEDURAL HISTORY

On the evening of September 3, 2004, the Defendant, Richard Ordner, was at the Uskitchitto River near Mittie, Louisiana for a party. Approximately twenty minutes after arriving at the party with his girlfriend, Jennifer Martin, four males approached his vehicle while he was sitting in the passenger seat of the vehicle. When the men were approximately fifteen feet from the vehicle, Defendant fired a shot into the air with his 9 mm pistol and the men turned and ran away. Defendant fired two more shots and one struck the victim, Jody Robinson. Defendant then ran into the woods where he discarded the gun.

On December 22, 2004, Defendant was charged by bill of information in count one with illegal use of weapons or dangerous instrumentalities, in violation of La.R.S. 14:94, and in count two with aggravated battery/discharge of firearm, in violation of La.R.S. 14:34. Defendant was arraigned on January 11, 2005 and entered a plea of not guilty.

The State filed a Notice of Intent to Seek Enhancement of Sentence under La. Code Crim.P. art. 893.3. Defendant filed a Motion in Limine and objected to the State’s intent to seek enhancement of the sentence. A hearing was scheduled, but the parties waived the hearing and agreed to have the trial court rule on the motion/objection based on the briefs submitted. In its opinion and ruling dated December 12, 2005, the trial court noted the State did not specify as to which count it sought to enhance and ultimately concluded that the State could enhance only count two (aggravated battery/discharge of firearm), thereby granting the Defendant’s motion as to count one and denying same as to count two.

Defendant waived his right to a jury trial, and following a bench trial, | ¡¿Defendant was found guilty as charged. Defendant was sentenced on count one to serve two years at hard labor with the eligibility for diminution of time, and on count two, ten years at hard labor to run concurrently and without benefit of parole, suspension of sentence and diminution of time. Defendant was also ordered to pay court costs of $994.00. A motion to reconsider sentence was filed wherein the trial court was asked to reconsider Defendant’s ten year sentence. The motion was denied without reasons. Defendant now seeks an appeal, setting forth two assignments of error.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Defendant argues the trial court erred in finding him guilty because he was acting in self defense. More specifically, Defendant maintains he was in reasonable apprehension of receiving a battery when he was approached by four to six drunken men spoiling for a fight, and he took steps to defend himself, justifiably firing shots into the air. Alleging his actions were justifiable, Defendant concludes they did not provide the basis for criminal intent.

Although Defendant does not specify which conviction should be set aside in setting forth this assignment of error, he requests at the conclusion of his argument that we overturn both of his convictions. Accordingly, we will address each conviction in light of Defendant’s claim of self defense.

The illegal use of a weapon is defined in La.R.S. 14:94 as “... the intentional or criminally negligent discharging of any firearm ... where it is foreseeable that it may result in death or great bodily harm to a human being.” Aggravated battery is defined in La.R.S. 14:34 as “... a battery committed with a dangerous weapon.” Self defense is addressed in La.R.S. 14:19 as follows:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible | aoffense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

Defendant testified that he arrived at the river around 11:00 or 12:00 p.m., about twenty minutes before the shooting. He had been drinking beer since about 9:00 p.m. and had consumed approximately ten beers prior to the shooting. He denied, however, that he was intoxicated.

Defendant testified he had been in a fight with Chris Darbonne, Jonathon Dar-bonne’s brother, prior to the evening of the shooting. He described the altercation as a “one time thing.” While at the bonfire on the night of the shooting, Defendant spoke with Jonathon Darbonne and apologized to Jonathon about the fight with his brother. According to Defendant, the two shook hands and Jonathon said that it was all right. After speaking to a few more people, Defendant went to his truck, sat down on the passenger side and lit a cigarette.

Next, Defendant testified that out of the corner of his eye, he saw five to six men approaching him. He recalled seeing Justin and Jonathon Darbonne, Roger Gurga-nus and a man who he originally thought was Jody Robinson, the victim. He was unsure of Jody Robinson’s identity.. According to Defendant, the group of men came around the side of his truck and he was hit twice in the head. Next, two of the men grabbed Defendant, pulled him from the truck and then they all began hitting him. Defendant was able to grab his gun that was laying on the seat while they were beating on him and he fired a shot into the air. Defendant stated that the fighting continued. After getting to his feet, he fired a second shot, but the fighting did not stop. Next, Defendant fell to the ground and he fired a third shot. At that time, the men quit hitting him and he crawled through the bushes and took off running.

|4Pefendant testified he was unaware that he had hit someone. Defendant denied aiming toward any of the men when he fired the gun and stated that he did not intend to strike anyone and was trying to retreat. Lastly, Defendant stated he never saw Jody Robinson that evening, that he did not know that he had shot in an area near Jody, nor did he aim his gun at anyone. Further, the investigators photographed the injuries to Defendant’s face and the bloody T-shirt he was wearing that evening. According to Defendant, the injuries and bloody T-shirt were a result of the fight.

Three of the men that approached Defendant on the night of the shooting were called by the State to testify and their testimonies differed significantly from that of Defendant. First, Roger Gurganus testified he was at the river the night of the shooting and there were about fifty other people camping out that night. Roger added that he had been there since noon and was intoxicated at the time of the shooting. Prior to the shooting, Roger walked up to the Defendant, shook his hand and talked with him. Minutes later, Roger heard something about a fight so he, Justin Darbonne and Jonathon Dar-bonne walked up to the front of the Defendant’s truck to see what was going on. Roger testified Defendant was sitting in his truck with the door open and when they were about fifteen feet away from the truck, Defendant exited the truck with a gun. According to Roger, there was no physical confrontation with Defendant, the men never got near Defendant and nothing was said to Defendant. Next, Defendant pointed the gun up in the air, fired a shot and said he did not want any trouble.

Meanwhile, Jody Robinson, the victim, went around the back of truck and was shot. Roger testified he did not see Jody get shot. Roger stated that after the shooting began, he' blacked out and when he came to, he was beating up Defendant’s truck. Roger denied walking up to Defendant for the purpose of beating him up. He |Badmitted he removed his shirt, but denied any intent to beat up Defendant.

Next, Justin Darbonne testified that he arrived at the river with his cousin, Jonathon Darbonne, around 5:00 to 6:00 p.m. He said Defendant was there at that time. Justin stated he was not intoxicated, claiming he was not a big drinker. Later on in the evening, Justin, along with Jonathon, Roger and John Lafleur, walked toward Defendant’s truck. Justin stated Defendant was sitting in the truck on the passenger side with the door open. According to Justin, they did not exchange any words, none of them removed their shirts as they approached the Defendant’s truck and there was no fighting with the Defendant. Suddenly, Defendant jumped out of his truck with a gun and said he did not want any “shit.” Justin saw Defendant shove a clip into the gun and shift the chamber back to put a round in the gun. Then Defendant began waving the gun around, pointed the gun at Justin and then shot up into the air twice. Justin estimated they were about ten feet from Defendant’s truck when he started firing. Justin did not see Defendant shoot the victim because he had run away and was hiding in the creek.

Additionally, Justin testified that Jonathon did not get along too well with Defendant. He admitted that there had been a previous fight between Jonathon and Defendant. Justin denied, however, going to Defendant’s truck to engage in a fight. He explained they walked over so Jonathon could speak with the Defendant about why they were not getting along. Justin admitted, nonetheless, that if speaking with Defendant did not work, then he intended on fighting Defendant. Lastly, Justin stated that he did not see Jody as they were walking toward the truck.

Jonathon Darbonne testified that on the night of the shooting, Defendant called him over to speak to him. According to Jonathon, they spoke about the fight between Defendant and Jonathon’s brother, Chris, then Defendant apologized for same and I fithey shook hands. Later, Jonathon walked toward Defendant’s truck and several people were walking behind him. He took his shirt off as he was walking toward Defendant, but denied the intent to fight. Jonathon admitted, however, if Defendant had made him mad, he would have hit him. Jonathon also denied saying anything to Defendant as he approached him. Further, Jonathon denied hitting Defendant that evening and stated than none of the other men hit Defendant.

Jonathon testified when he was about fifteen feet away, Defendant cocked his gun and said he did not want any “shit.” Next, Defendant shot the gun into the air two times. After the first shot, Jonathon ran into the woods. Jonathon stated he did not see Jody Robinson around at that time. When the third shot rang out, Jonathon stated he was well into the woods.

The victim, Jody Robinson, testified he knew Justin, Jonathon, Roger and John, but was not with the group when they approached the Defendant’s truck prior to the shooting. Just before the first shot, Jody had left the area between the fire and the creek and was headed to Mr. O’Quinn’s truck to retrieve a pen. As he was returning to the fire, Jody heard a female say something about a gun and he inquired about the location of same. Jody was directed to the area of Defendant and he proceeded to walk in that direction until he came upon Defendant.

As Jody first approached Defendant, Jody explained he had a glow stick in his pocket and was not hiding his position or trying to threaten Defendant. Instead, Jody was telling Defendant that a gun was not needed. Next, Jody watched as the Defendant fired a shot into the air. He was about ten feet from Defendant at that time. Jody stated he did not move prior to the shot or after the shot. Jody explained he looked over his right shoulder, then his left, noting that no one was coming around him or from behind him. Before he could complete his next sentence, Defendant |7pointed the gun at Jody and fired a second shot. About ten seconds elapsed between the first and second shots. Jody’s medical records reveal he sustained a gunshot wound to his right neck with an exit wound in the right su-prascapular area, indicating that he was facing the Defendant when he was shot.

Brittany Henry, an eyewitness to the shooting, testified she was at the river the evening of the shooting, but was not intoxicated. Prior to the shooting, Brittany was at the campfire and left when she heard there was going to be a fight. Brittany saw Defendant sitting in his truck with the door open and saw Justin, Jonathon, Roger and John walk toward Defendant’s truck. She stated Jody was not with the group. As the men were walking toward the truck, Roger and John removed their shirts and the men were talking about fighting Defendant. Next, Joey O’Quinn approached the men and Brittany heard him telling the men that the fight should be one on one.

As the men approached the truck, Brittany heard the men yelling at Defendant, saying that they were going to “kick his ass.” Next, Brittany saw Defendant pull a gun out of the truck and fire a shot into the air when the men were ten to fifteen feet from the Defendant’s truck. According to Brittany, there was no physical contact at all between the men prior to the shooting. After the first shot, the four men ran away and Brittany ducked behind Jarrett O’Quinn’s truck.

When Brittany first saw Jody, he was approaching Defendant after the first shot was fired. She was not sure from where Jody had come. She testified Jody was trying to convince Defendant to put the gun away, talking as he was walking toward the truck. As Jody came close to him, Defendant took a step toward Jody, pointed the gun directly at him and fired a second shot. Then, Defendant took a step back and fired a third shot into the air and ran into the woods.

Detective Ben Perkins was called as a defense witness and testified when | ¡.Defendant came in to give a statement around 5:00 a.m., he photographed the Defendant’s face. Defendant had a swollen lip and a gash or mark around his left eye. Defendant reported to Detective Quirk that the injuries resulted from an altercation at the river with Justin, Jonathon and Roger. Although Defendant claimed he received his injuries from a fight with these men, Detective Perkins did not conclude a battery had been committed and none of the men were charged with battery. Defendant stated he was approached by these men and a fight ensued. Defendant also claimed the shots he fired were in self defense to get the men away from him and that he never intended to strike or hit anyone.

Detective Perkins also testified that during his investigation, Jonathon Darbonne and John Lafleur were charged with simple assault based on their statements that they verbally threatened the Defendant with bodily harm. Justin Darbonne and Roger Gurganus were charged with simple criminal damage to property in an amount in excess of $1,000.00 for which both men pled guilty.

The trial court did not find Defendant’s testimony to be credible with regard to Defendant firing the gun three times before the men would stop beating him. The court found more credible the testimony that the men ran after the first shot. However, the trial court did believe that Defendant was' scared of receiving a battery from the men when he pulled out his gun and fired the first round. Considering same, the trial court concluded as follows:

So, from that point on the actions of Mr. Ordner were no longer reasonably and apparently necessary to prevent a battery. That had left. That threat was over, the boys were scattered. Yet Mr. Ordner discharged his weapon two more times and someone was shot. Mr. Ord-ner, who had been drinking himself made the choice to bring a loaded weapon to a party at midnight were there was little lighting and where there were at least twenty-five and as many as fifty young people present, many of whom had been drinking since daylight hours. It was foreseeable that the discharge of the weapon, even shooting in the air could result in death or great bodily injury. So, consequently the Court 1 Sfinds beyond a reasonable doubt that Mr. Ordner is guilty of illegal discharge of a weapon.

Next, the trial court considered the evidence presented in support of the charge of aggravated battery. Based on the evidence presented, the court opined that Jody Robinson was not with the group of men. The court noted that only Defendant’s testimony indicated that Jody might have been with the group of men who set out to harm him. However, Defendant’s testimony contradicted itself in that he first testified he was not sure if he saw Jody with the group, and then later testified that he did not see Jody at all that evening. Also, the court observed there was no testimony by anyone placing Jody with the group of men that approached Defendant.

With regard to intent, the trial court held that intent can be inferred from the fact that Defendant aimed a loaded gun at Jody and fired at him as supported by the testimony of Jody Robinson and Brittany Henry. Further, the court noted that the direction of Jody’s wound corroborates their testimony that the gun was leveled at Jody and fired. Although there were some inconsistencies, the court found the testimony of Ms. Henry was credible and corroborated by Jody Robinson, the Dar-bonnes and Roger Gurganus as well as the direction of the wound. Considering same, the trial court ultimately held Defendant was guilty of aggravated battery with a firearm.

The State was not required to show intent for the illegal use of a weapon. In lieu of intent, the State was required to show criminal negligence. As stated by the trial court, Defendant made the choice to bring a loaded gun to a late night party attended by several young people who had been drinking all day. Considering same, we find no error by the trial court in finding Defendant was criminally negligent in firing the gun, regardless of his intention, and it was foreseeable that the discharge of the gun could have caused great bodily injury in this situation.

|10As to Defendant’s conviction for aggravated battery, Defendant had the burden of proving self defense — that the use of the gun was justifiable to prevent a forcible offense against his person. First, the trial court concluded from the evidence presented that the group of men which were allegedly the aggressors had fled the scene after Defendant fired the first shot. It was a subsequent shot, either the second or third shot, which resulted in the harm to the victim. Once the aggressors ran from the scene following the first show, there was no longer a perceived threat of harm. There is no testimony or evidence which indicates that Jody Robinson was ever a threat to Defendant or that he approached Defendant in an aggressive manner when he arrived on the scene to convince Defendant to put the gun away. Thus, there was no justification for Defendant’s action when he fired the gun a second and third time which resulted in the victim’s injury. Accordingly, we will set aside the trial court’s decision in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

ASSIGNMENT OF ERROR NO. 2

In his final assignment of error, Defendant argues the trial court erred in applying La.Code Crim.P. art. 893.3(D) in sentencing him, alleging he was never advised that it was being applied against him. The notice requirement for the imposition of sentence under La.Code Crim.P. art. 893.3 is provided for in Article 893.1, which reads:

A. If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.
B. The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.

First, as stated by Defendant, the bill of information indicates Defendant was ]ncharged under La.Code Crim.P. art. 893.3(E)(1)(a) which states:

Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of twenty years.

A violent felony is defined in La.Code Crim.P. art. 893.3(E)(1)(b) as “... second degree sexual battery, aggravated burglary, carjacking, armed robbery, second degree kidnapping, manslaughter, or forcible rape.”

On August 25, 2005, the State filed notice of its intent to seek enhancement of sentence under Article 893.3. The State requested Defendant be sentenced under the provision of Article 893.8, in general, but did not indicate a specific subsection. Next, Defendant filed a motion in limine and objection to the State’s intent to seek enhancement of his sentence. Defendant’s objection to the enhancement was based on a claim of double jeopardy, not the argument made herein. As noted by the State, Defendant did not refer to a specific subsection in making his argument.

Upon consideration of the parties’ briefs, the trial court concluded Article 893.3 applied to the charge of aggravated battery, but not to illegal use of weapons. In its written opinion and ruling, the trial court does not refer to a specific subsection of Article 893.3. Also, the trial court found that proper notice notifying Defendant of the State’s intent to seek enhancement of sentence in accordance with Article 893.3 had been made.

At sentencing, the trial court noted once more there had been notification of the State’s intent to seek enhancement of Defendant’s sentence under Article 893.3. Later, Defendant objected to the enhancement of his sentence under 893.3(E)(1)(a), as set forth in the bill of information and argued that it did not apply to the instant |12case because the conviction did not fit any of the violent felonies as defined in subsection E. Considering same, Defendant argued he had not been given proper notice of which enhancement was going to be used, and thus, the enhancement could not be used against him.

The State argued the general wording of its notice gave adequate and specific notice that it would seek enhancement due to the use of a firearm during the commission of a violent felony and the trial court agreed. In reaching its conclusion, the trial court took note of the incorrect subsection in the bill of information, but also noted that the State had filed a separate notice stating that Article 893.3 was going to be used. The court found the State’s notice provided the specific facts containing the basis of the motion and that the facts fit under the appropriate subsection.

Thus, we conclude the State’s notice was adequate. Although the bill of information incorrectly states the applicable subpart of Article 893.3, the State’s notice was general and encompassed all the subsections. Defendant was not surprised at sentencing by the State’s intent to enhance his sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent involving the sentence imposed and one error in the minutes of sentencing.

First, the trial court erroneously denied Defendant eligibility for diminution of sentence for aggravated battery. Prior to imposing Defendant’s sentences, the judge stated, “And finally 15:571.3(C)(d), says the defendant is not eligible for diminution of sentence for the crime of aggravated battery.” When imposing the Defendant’s sentence for aggravated battery, the judge stated, “On the charge [of aggravated battery] you are not eligible for diminution of sentence in accordance with 1315:571.3(C)(1)(d).”

Louisiana Code of Criminal Procedure Article 894.1(D)(1) requires the trial court to advise Defendant, immediately following the imposition of a felony sentence, “[w]hether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is subject to diminution for good behavior.” Louisiana Code of Criminal Procedure Article 894.1(D)(2) also requires a trial court to advise Defendant whether the sentence was “enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law.” It does not appear from the court’s statements that it complied with La.Code Crim.P. art. 894.1’s requirement. Around the time of the trial court’s statement regarding diminution ineligibility, there was no advisement regarding enhancement.

The trial court’s statement was not merely an advisement, but was an actual denial of eligibility for diminution of sentence. See State v. Davis, 05-543 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, writ denied, 06-587 (La.10/13/06), 939 So.2d 372, wherein this court found the trial court’s statement, “you’re not eligible for diminution of sentence, for good time under Louisiana Revised Statute 15:571.3 C because you have been convicted one or more times of violations of the Louisiana Controlled Dangerous Substances Law, which are felonies,” was an actual denial of diminution eligibility rather than an advisement of such eligibility. This court amended that defendant’s sentence to delete the statement denying diminution of sentence.

In State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So.2d 698, 699, the 1 Usupreme court stated the following regarding a trial court’s authority to deny eligibility for diminution of sentence:

[A] trial judge lacks authority under La.R.S. 15:573.1(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is “directed to the Department of Corrections exclusively.” State ex rel. Simmons v. Stalder, 93-1852 (La.1/6/96), 666 So.2d 661. Moreover, even the Department of Corrections lacks that authority under La.R.S. 15:571.3(C) in a case in which the trial court has not formally adjudicated and sentenced the defendant as a multiple offender under the provisions of La.R.S. 15:529.1. When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge’s discretion should be exercised under La.C.Cr.P. 890.1(B).

Id. at 699. See also State v. Hotard, 04-1092 (La.10/15/04), 885 So.2d 533.

Louisiana Code of Criminal Procedure Article 890.1 states:

A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(13).
B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(13) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).

Although the offense involved in the present case is enumerated as a crime of violence in La.R.S. 14:2(B)(13), the trial court made no indication that the offense was considered a crime of violence. Thus, the trial court was not exercising its authority to deny diminution eligibility under La.Code Crim.P. art. 890.1. The trial court’s statement regarding diminution eligibility was not an advisement in compliance with La.Code Crim.P. art. 894.1(D). Accordingly, the trial court’s statement regarding diminution was improper and Defendant’s sentence for aggravated battery should be amended to delete the denial of diminution eligibility. The case is remanded and the |1fidistrict court instructed to make the necessary corrections in the minutes.

Lastly, the minutes of sentencing are in need of correction. The minutes state, “THE COURT SENTENCES THE DEFENDANT AS FOLLOWS: ILLEGAL USE OF WEAPON/2 YEARS AT HARD LABOR WITH THE DEPARTMENT OF CORRECTIONS WITH THE BENEFIT OF DEPRICATION OF TIME.” The transcript indicates that after the judge imposed the two year sentence, she stated, “Diminution of sentence for good behavior shall be earned....” Thus, the trial court should be instructed to amend the minutes of sentencing to indicate Defendant’s sentence for illegal use of a weapon is “with the benefit of diminution of sentence” rather than “with the benefit of deprication of time.”

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are affirmed. However, Defendant’s sentence for aggravated battery is amended to delete the denial of diminution eligibility. The case is remanded and the district court instructed to make the necessary corrections in the minutes. Additionally, the trial court is instructed to amend the minutes of sentencing to indicate Defendant’s sentence for illegal use of a weapon is “with the benefit of diminution of sentence” rather than “with the benefit of deprication of time.”

AFFIRMED, AS AMENDED AND REMANDED.

      . Later in the proceeding, after the judge had imposed the sentences, she was asked to clarily her reference to La.Code Crim.P. art. 893.3. In doing so, she stated, “As far as the other mentions, that was simply to say where I got no suspension. Those are all legislatively mandated, no parole and that there is no diminution of sentence for that charge.”

      . Because this issue is being discussed in an error patent review, we have not reviewed whether the trial court's advice is correct as to Defendant's ineligibility in accordance with La.R.S. 15:571.3. In other words, we have not determined whether Defendant is, in fact, ineligible for diminution of sentence under La. R.S. 15:571.3.


author: DREW, J.,

text:
    STATE of Louisiana, Appellee, v. James Anthony REYNOLDS, Appellant. State of Louisiana v. James Anthony Reynolds.
    Nos. 41954-KW to 41956-KW.
    Court of Appeal of Louisiana, Second Circuit.
    March 8, 2007.

      Whitley Robert Graves, Benton, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Joseph Andrea Gregorio, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   liThe applicant, James Anthony Reynolds, seeks review of his convictions and sentences for battery of a police officer, hit-and-run driving, and resisting arrest, after consolidation of five bills of information for trial. This court noted potential error patent and requested a response from the litigants on the issue of advisement of right to jury trial and any waiver thereof, resulting from the aggregate possible penalties for the charged offenses.

When separate bills of information are joined for trial, the aggregate punishment which may be imposed determines whether the right to trial by jury exists. State v. Williams, 404 So.2d 954 (La.1981); State v. Comeaux, 408 So.2d 1099 (La.1981). When the total potential punishment exceeds six months’ | ¡Imprisonment or a fine in excess of $1,000, an accused is entitled to trial by jury. La. C. Cr. P. art. 779 A. State v. Williams, supra. The charges were not properly consolidated in a single bill of information under La. C. Cr. P. art. 493.1, which is the statutory method of implementing a sentencing cap, and avoiding the necessity of a jury trial. See State v. Hornung, 620 So.2d 816 (La.1993). In the case at bar, the applicant is entitled to a trial by jury.

Although the record contains an acknowledgment of an agreement by the state and the defendant’s counsel of a sentencing limitation (that the sentences imposed would not exceed six months or fines in excess of $1,000), this agreement, standing alone, cannot operate to deprive the defendant of the right to be informed of his right to jury trial, and to make an informed invocation or waiver of that right, in the absence of a showing that the stipulation manifested actual knowledge of the right to jury trial, and an informed waiver, as in State v. Knowles, 40,324 (La.App.2d Cir.12/30/05), 917 So.2d 1262.

Because we note, as error patent, the failure to advise the applicant of his right to a trial by jury, we vacate the applicant’s convictions and sentences. This decision to remand obviates the need to review the applicant’s assignments of error. The matter is hereby remanded to the trial court for further proceedings.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

Ill must respectfully dissent.

Notwithstanding a quarter century of consistent jurisprudence [State v. Grimble, 397 So.2d 1254 (La.1981), and State v. Comeaux, 408 So.2d 1099 (La.1981) ], defendant was not entitled to a jury trial. He was properly tried and convicted.

The transcript makes it clear that he was being tried on the misdemeanor version of battery of a police officer, La. R.S. 14:34.2.33(1), not one of the felony types of that crime.

Defense counsel, prosecutor, and trial court all agreed that his maximum exposure would not exceed six months of imprisonment, nor exceed a $1,000 fine. This was an enforceable right, for which redress would have been readily available to the defendant, had he received a sentence exceeding the foregoing parameters. He had no exposure for a greater sentence than that — that’s why the stipulation was made, so these consolidated misdemeanors could be properly triable at bench trial.

The guilty convictions are clearly supported by the record, and said rulings fall squarely within the province of the trial court, which heard the evidence and made the calls.

I would find that:

• The defendant, as per stipulation as to sentencing exposure, made in open court, was not entitled to a trial by jury.
• The guilty findings on all three charges should be upheld.

Accordingly, I respectfully dissent.