author: CANNIZZARO, J.

text:
    Randall Wayne EVANS, Jr. v. LOUISIANA STATE UNIVERSITY AGRICULTURE CENTER.
    No. 2006 CA 2025.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Floyd J. Falcon, Jr., Avant <& Falcon, Baton Rouge, for Plaintiff-Appellant Randall Wayne Evans, Jr.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips L.L.P., Baton Rouge, for Defendant-Appellee Louisiana State University Agriculture Center.
    Before: McKAY, GORBATY, and CANNIZZARO, JJ.

      . The Honorable James F. McKay, III, Judge, the Honorable David S. Gorbaty, Judge, and the Honorable Leon A. Cannizzaro, Jr., Judge, all members of the Fourth Circuit Court of Appeal, are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   CANNIZZARO, J.

| ¡.Randall Wayne Evans, Jr. was terminated from his employment with the Louisiana State University Agriculture Center (the “Ag Center”). He appealed the termination, and after a hearing before a referee of the Louisiana Civil Service Commission (the “Commission”), Mr. Evans’ job was reinstated. The Ag Center appealed the referee’s decision to the Commission, and the Commission upheld the original termination of Mr. Evans’ job. Mr. Evans is now appealing the Commission’s decision. For the reasons set forth in this opinion, we affirm the Commission’s ruling.

FACTS AND PROCEDURAL HISTORY

Mr. Evans was employed at the Ag Center machine shop as a permanent employee. His supervisor was Thomas McClure. Mr. Evans and Mr. McClure shared an office in the machine shop, and the office contained a desk with a telephone and a calendar that both men used. The two men normally made work related notations on the calendar.

On June 17, 2005, Mr. Evans was sitting at the desk using the telephone, and he jotted the following notations in the squares of the calendar for the following dates:

June 6, 2005: “Tom received his new A.K. 47 Via Mail order”
June 7, 2005: “Tom assembled his new A.K. 47”
June 8, 2005: “Tom gunned down All of the student workers for Fun”
June 9, 2005: “Tom sharpened his knife”
June 10, 2005: “Watched Tom Kill a Person In cold Blood.”

On Saturday, June 18, 2005, Mr. McClure was at work, and he saw the notations on the calendar. He recognized the handwriting as that of Mr. Evans. Mr. McClure then notified Michael Mailan-der, an associate professor at Louisiana State University (“LSU”) in the Department of Biological and Agricultural Engineering (the “Department”) and asked Dr. Mailander to come to the machine shop and look at the calendar. Dr. Mailander secured the calendar until Daniel Thomas, a professor at LSU who was the head of the Department, could see it.

Dr. Thomas gathered information regarding the notations on the calendar. Mr. Evans admitted to Dr. Thomas that he had made the notations but said that he was “joking” when he made them. He also admitted that “Tom” referred to Mr. McClure, his supervisor. After the incident involving the calendar, Mr. McClure was no longer willing | oto work in the machine shop with Mr. Evans. Therefore, Mr. McClure was transferred to another position in the Ag Center, and his workplace for the new job was two buildings away from the machine shop.

In a letter dated July 5, 2005, Mr. Evans was advised that disciplinary action against him was being considered on the ground that he had violated the Ag Center’s Violence-Free Workplace policy (the “Violence-Free Policy”). He was permitted to respond to the letter, and his attorney answered the letter on behalf of Mr. Evans. In a subsequent letter dated July 20, 2005, Mr. Evans was advised that he was being dismissed from his position at the Ag Center. The letter stated that “[t]he reason we are taking disciplinary action against you is for violating the LSU AgCenter Violence-Free Workplace policy .... ” The letter then detailed the reasons for the action.

The July 20 letter further stated that “[w]e also noted that during the investigation into your actions, others expressed concern about your anger and how you manage it. In addition to the statements written on the shop calendar, you have exhibited behavior that has caused others in the workplace to be fearful of you, such as a tendency to abuse machinery in the shop when you become angry.” Finally, the letter notified Mr. Evans that he was being dismissed from his job effective as of the close of business on July 29, 2005. The letter also advised Mr. Evans that he had the right to appeal the termination of his job to the Commission.

Mr. Evans appealed to a Commission referee the Department’s decision to terminate his job. A hearing was held before the referee. Prior to the taking of testimony, however, the charge contained in the July 20 letter regarding how Mr. Evans managed his anger and his tendency to abuse machinery was dismissed, because it did not comply with Louisiana Civil Service Rule 12.8(a)(2). That rule provides:

A permanent employee who is removed or subjected to any disciplinary action, other than an emergency suspension or a suspension pending criminal proceedings, shall be given prior written notice which:
2. contains such information as will fully inform the employee of the conduct for which the action is being taken and will enable him to prepare a defense, including, where pertinent, the date, time and place of such conduct and the 14names of persons directly involved in or affected by such conduct (unless their identities are protected by law, in which case, identification shall be made as permitted by law);

The referee found that the allegations regarding Mr. Evans’ anger management and the machinery abuse did not contain a sufficiently clear and concise statement of those charges for the purpose of Rule 12.8(a)(2), and she dismissed them. The Ag Center did not contest the dismissal of the charges.

At the hearing that was held before the referee, Dr. Mailander testified that he had secured the calendar on which notations had been made so that Dr. Thomas could review the notations. Dr. Mailander further testified that Mr. McClure was very upset by what he saw on the calendar and that Mr. McClure could not believe what he was reading. The calendar with the notations on it was introduced into evidence.

Dr. Thomas also testified at the hearing before the referee. Dr. Thomas stated that Mr. Evans told him that the notations on the calendar were supposed to be a joke on Mr. McClure. Dr. Thomas further said that after the calendar notations were made, Mr. McClure was no longer willing “to go back in the shop with Mr. Evans at that point.” Therefore, Mr. McClure “was no longer operating in the primary responsibility — job responsibility that he had.” Mr. McClure was moved elsewhere to work for the Ag Center. This created a hardship on the Department, because, according to Dr. Thomas’ testimony, “we operate with two mechanical technical folks out of the shop and, essentially, one of those was not available to do whatever jobs or responsibilities were necessary in that shop area.”

Mr. McClure stated at the hearing before the referee that after the calendar incident, he could no longer continue a close working relationship with Mr. Evans. Mr. McClure testified that “I didn’t want to be around him. I didn’t know what this was all about and what he was up to.” Although Mr. McClure did say that Mr. Evans had never struck him nor threatened him, Mr. McClure also said that he knew Mr. Evans was “capable of hitting a person, because he has in the past and has admitted that he has.”

| BMichael F. Burnett, who was the director of the School of Human Resource Education and Work Force Development and a professor of human resource education at LSU, testified at the hearing before the referee. Dr. Burnett said that one afternoon Mr. McClure came to his office and seemed “very disturbed.” Mr. McClure asked Mr. Burnett to come to the Ag Center shop and look at the calendar containing the notations made by Mr. Evans. Dr. Burnett described Mr. McClure’s demeanor when they looked at the calendar as “very concerned, worried... a little nervous” and “very upset.” Dr. Burnett stated that “I think [sic] had shared with him at that time that I would be very concerned if this was someone in our building that had written these things.” Finally, Dr. Burnett said that “[i]t would make me very upset, very concerned as well, and I certainly agreed with him that he needed to-have someone that had witnessed this and .. .my concern would be, I would [sic] very disturbed about this if someone in our building — and, for that matter, I was very concerned that someone in the adjacent building to us, the next one over, had written these things down.”

The director of human resources at the Ag Center, Ann Coulon, also testified at the hearing before the referee. She stated that she spoke to Mr. Evans about the notations on the calendar. He admitted making the notations but said that they were made as a joke. Ms. Coulon also learned from Mr. Evans that he was aware of the Violence-Free Policy, a copy of which was admitted into evidence. Additionally, Ms. Coulon interviewed Mr. McClure regarding the calendar notations, and she testified that he was “extremely upset,” that he was “fearful,” and that “[h]e was uncomfortable ... to the point of tears on at least one occasion.” She further stated that Mr. McClure was “frightened and scared to work with Mr. Evans.” Mr. McClure “didn’t know what Mr. Evans was capable of and he didn’t want to work with him.”

Randy Price, an assistant professor in the Department, stated at the hearing before the referee that he had never seen Mr. Evans strike or threaten to strike Mr. McClure and that he had seen no problems with their interactions. He did say, however, that sometimes Mr. Evans would get “fed up, but he pretty much controlled it.”

IfiMr. Evans and his father also appeared at the hearing before the referee. Mr. Evans testified that he made the notations on the calendar as a joke. He said that he did not think he was doing anything wrong when he did so. He also stated that prior to his making the notations on the calendar, he and Mr. McClure “got along great.” Mr. Evans also said that he had never threatened to strike or harm Mr. McClure and that he had never done so. Finally, Mr. Evans explained that he had, in fact, “beat up” his wife’s boss but that he was just defending himself when he had confronted his wife’s boss about cursing at his wife. Mr. Evans’ father testified that he often visited the shop where Mr. Evans and Mr. McClure worked and that Mr. McClure and his son got along well.

The Commission referee issued a ruling in which she found that Mr. Evans had never threatened or harassed Mr. McClure. She also found that Mr. Evans had not violated the Violence-Free Policy. Mr. Evans was ordered to be reinstated to his former position at the Ag Center with back pay, which was subject to an offset for any earnings or unemployment benefits he had actually received after he was terminated from his job. Mr. Evans was also awarded attorney’s fees in the amount of $1,500.00.

The Ag Center applied to the Commission for a review of the referee’s findings. After reviewing the record and the transcript of the hearing before the referee, the Commission granted the Ag Center’s application for review and reversed the decision of the referee.

The Commission found that Mr. Evans had violated the Violence-Free Policy, which expressly states that “[t]he Ag Center does not tolerate violence, threatening behavior or harassment in the workplace.” Additionally, the stated general policy of the Violence-Free Policy provides that a “peaceful and secure work environment that facilitates productivity and job performance” is to be ensured and that the “occurrence of violence, aggressive acts, verbal or non-verbal threatening behavior and harassment in the workplace ... will not be tolerated.”

|7The Commission also made several factual findings. It found that three senior administrators at LSU testified that Mr. McClure was visibly upset about the calendar notations and that he declined to work any more with Mr. Evans. The Commission further specifically found that, contrary to the referee’s conclusion that the notations were not threatening, harassing, or abusive, albeit inappropriate and offensive, the notations were, in fact, threatening, harassing, and abusive. The Commission found that Mr. McClure was reasonably aggrieved by the calendar notations and that as a result, the relationship between Mr. Evans and Mr. McClure was “significantly impaired.” The Commission further concluded that “not only had the appellant destroyed the working relationship between himself and his supervisor, but also his coworkers” and that the “peaceful and secure working environment” sought by the Violence-Free Policy was “directly adversely affected by appellant’s actions.” The Commission reversed the decision of the referee and upheld Mr. Evans’ dismissal. Mr. Evans is now appealing the Commission’s ruling.

DISCUSSION

Cause for Disciplinary Action

La. Const, art. 10, § 8 provides that “[n]o person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.” A classified employee who is disciplined has the right to appeal to the appropriate commission. Id. The burden of proof on appeal with respect to the facts is to be borne by the appointing authority. Id. Louisiana Civil Service Commission Rule 1.5.2.01 defines “cause” to mean “conduct which impairs the efficient or orderly operation of the public service.” In AFSCME, Council # 17 v. State ex rel. Department of Health & Hospitals, 01-0422 (La.6/29/01), 789 So.2d 1263, the Louisiana Supreme Court stated that legal cause for disciplinary action by a civil service commission exists if the facts found by the commission disclose that an employee’s conduct impairs the efficiency of the public service. 789 So.2d at 1268 n. 7. Additionally, there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service. Id. See also Dep’t of Public 8Safety and Corrections, Office of State Police v. Piazza, 588 So.2d 1218 (La.App. 1st Cir.1992);. Flowers v. Dep’t of Revenue and Taxation,. 507 So.2d 240 (La.App. 1st Cir.1987). The appointing authority must show by a preponderance of the evidence that an employee’s conduct impaired the efficient and orderly operation of a public service. Thornton v. DHHR, 394 So.2d 1269, 1271 (La.App. 1st Cir.1981).

Standard of Review

In Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984), the Louisiana Supreme Court discussed the standard by which a decision of a civil service commission must be reviewed. The Supreme Court, citing La. Const, art. 10, § 12(B), stated that “[t]he Commission’s decision is subject to review on any question of law or fact upon appeal to the court of appeal.” 454 So.2d at 113. Further, the Supreme Court held that “[t]he Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction.” Id The Supreme Court found that a “reviewing court should not reverse a commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the commission’s discretion.” Id

The Supreme Court in Watters stated:

In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.

Id at 114. See also Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. In Bannister the Louisiana Supreme Court stated that “arbitrary or capricious” means that there is an absence of a rational basis for the action taken. Id at 647.

| ^Assignments of Error

Mr. Evans has raised four assignments of error on appeal. They are each discussed below.

The Commission erred in finding sufficient cause for terminating Mr. Evans from his job.

Cause that is sufficient to permit the imposition of disciplinary action with respect to a permanent classified state employee is “conduct which impairs the efficient or orderly operation of the public service.” Louisiana Civil Service Commission Rule 1.5.2.01. In the instant case Dr. Thomas testified that as a result of the calendar notations made by Mr. Evans, Mr. McClure was no longer willing to work with Mr. Evans, because Mr. McClure feared Mr. Evans. Thus, according to Dr. Thomas’ testimony, only one person was available in the Ag Center shop to do the work that had previously been done by two persons. Dr. Thomas further said that Mr. McClure was no longer performing his primary job responsibility, which was to work in the Ag Center shop. Clearly, Mr. Evans’ conduct resulted in the impairment of the efficient and orderly operation of the shop. Thus, we find that the Department proved by a preponderance of the evidence that Mr. Evans’ actions resulted in the impairment of the efficient and orderly operation of the Ag Center shop.

The standard pursuant to which an appellate court is to review a disciplinary penalty imposed by the Commission is to determine whether or not the action by the Commission is arbitrary and capricious. Walters, 454 So.2d at 114. In the instant case Dr. Thomas, Dr. Mailander, and Dr. Burnett were all very concerned about the notations that had been made on the calendar. Dr. Burnett even testified that he was concerned that someone who was in a building near his office building would make such notations. His reaction to Mr. Evans’ actions was very similar to that of Mr. McClure in that he expressed fear of the individual who wrote the notations. Only if there was no rational basis for the action taken by the Commission could this Court modify the Commission’s disciplinary action. Bannister, 666 So.2d at 647. We find that there was a rational hnbasis for terminating Mr. Evans from his job. Therefore, this assignment of error is without merit.

The Commission erred in finding that the Department proved by a preponderance of the evidence that the calendar notations violated the Violence-Free Policy.

The Violence-Free Policy clearly prohibits verbal or non-verbal threatening behavior and harassment in the workplace. It is clear from the testimony in this case that Mr. McClure perceived the calendar notations to be threatening and that he was harassed by Mr. Evans’ actions. Dr. Thomas, Dr. Mailander, Dr. Burnett, and Ms. Coulon all testified to the effect that Mr. McClure was very distressed and disturbed by the notations that were made on the calendar. Ms. Coulon stated that Mr. McClure was reduced to tears at one point, and Mr. Burnett was himself distressed that someone working in close proximity to his building would make such notations on a calendar. There is ample evidence that Mr. McClure was harassed by Mr. Evans’ actions. There was a clear violation of the Violence-Free Policy. We find this assignment of error to be without merit.

The Commission erred in reversing the decision of the referee.

We must review the decision of the Commission by determining whether or not the factual findings of the Commission were clearly wrong or manifestly erroneous. Walters, 454 So.2d at 114. The findings of the Commission were that Mr. Evans made the notations on the calendar and that the notations were threatening, harassing, and abusive. The Commission further stated in its opinion that it was reasonable for Mr. McClure to feel threatened and harassed by the calendar notations. Based on the testimony in the record, we do not find that these factual findings are clearly wrong or manifestly erroneous. Thus, they must be affirmed. This assignment of error is without merit.

The Commission erred in failing to order Mr. Evans’ reinstatement and the payment of his attorney’s fees.

We have found that the Commission’s decision to terminate Mr. Evans was neither clearly wrong nor manifestly erroneous. Therefore, we need not address this assignment of error.

lnDECREE

Mr. Evans was properly terminated from his job. The ruling of the Commission is hereby affirmed.

AFFIRMED.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Lisa Gail TENNISON v. Lionel Keith NEVELS.
    No. 2006 CA 2124.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Scott P. Gaspard, Melanie W. Walters, Baton Rouge, for Plaintiff/Appellant Lisa G. Tennison.
    Lionel K. Nevels, Baton Rouge, In Proper Person.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

| ¡¿Plaintiff, Lisa G. Tennison, petitioned the Twenty-First Judicial District Court for a declaration of nullity of her marriage to Lionel Keith Nevels, which was denied. An appeal was lodged alleging that the trial court erred in not declaring the marriage a nullity because the marriage ceremony failed to be witnessed by two witnesses that meet the requirements of La. R.S. 9:244. For the following reasons, the judgment of the trial court is affirmed.

On June 28, 2005 a marriage license was issued to Lisa Gail Allen and Lionel Keith Nevels. Subsequently, the license certified that Pastor Douglas Prewitt married Lisa and Lionel on July 4, 2005, and that witnesses to the ceremony were Katie Allen and Ashley Allen.

In January 2006, Lisa filed a petition for declaration of nullity of marriage alleging that the ceremony at which she married Lionel was witnessed by her two daughters from a prior marriage, both of whom were minors at the time. Alleging that the marriage ceremony was invalid due to the witnesses being minors, Lisa sought to have the marriage declared an absolute nullity. The trial court heard the matter in March 2006 and denied the motion for nullity, relying on case law wherein marriages were upheld in spite of similarly defective ceremonies.

The Louisiana Civil Code, Title IV, entitled Husband and Wife, provides for the general principles of marriage, nullity of marriage, incidents and effects of marriage, and termination of marriage. The requirements for a valid contract of marriage are: the absence of legal impediment; a marriage ceremony; and the free consent of the parties to take each other as husband and wife, expressed at the ceremony. La. C.C. art. 87. A marriage is absolutely null when contracted without a marriage ceremony, by | ..¡procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested party. La. C.C. art. 94. In the matter before us, all of the legal requirements for a valid marriage are present. None of the deficiencies resulting in an absolutely null marriage are present. The nullity is sought based on a defect in the marriage ceremony.

Our courts are reluctant to inval- ■ idate a marriage, and they will not do so unless the law and the facts clearly indicate that it should be annulled. Parker v. Saileau, 213 So.2d 190, 194 (La.App. 3rd Cir.1968). Jurisprudence has been established to the effect that the articles of the Civil Code providing the manner and form in which marriages are to be contracted* and celebrated are merely directory to the celebrant, and that the failure to technically observe these formalities does not strike the marriage with nullity. Saileau 213 So.2d at 191, and the cases cited therein. The facts of this case do not warrant a deviation from this long-standing jurisprudence. Therefore, the judgment of the trial court is affirmed and this opinion\is issued in accordance with URCA Rule 2-16.1 B. Costs are assessed to Lisa G. Ten-nison.

AFFIRMED.


author: McClendon, j.

text:
    STATE of Louisiana v. Tony Joseph TABOR.
    No. 2007 KA 0058.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Ellen Daigle Doskey, Jay Luke, Assistant District Attorney, Counsel for Appel-lee State of Louisiana Houma, LA.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, Counsel for Defendant/Appellant Tony Joseph Tabor.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

|aThe defendant, Tony Joseph Tabor, was charged by amended bill of information with one count of second degree kidnapping, a violation of LSA-R.S. 14:44.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He moved for a new trial and a post-verdict judgment of acquittal, but the motions were denied. He was initially sentenced to five years at hard labor, suspended upon serving two years without benefit of parole, probation, or suspension of sentence and a $1,000 fine. Thereafter, the state filed a habitual-offender bill of information against the defendant, alleging he was a second-felony habitual offender. Following a hearing, the defendant was adjudged a second-felony habitual-offender, the sentence initially imposed was vacated, and he was sentenced to twenty years at hard labor without benefit of probation or suspension of sentence and a $1,000 fine. He moved for reconsideration of sentence, but the motion was denied. He now appeals, designating two assignments of error. We affirm the conviction, affirm the habitual-offender adjudication, vacate the sentence, and remand for resentencing in accordance with this decision.

ASSIGNMENTS OF ERROR

1. There was insufficient evidence to support the conviction.

2. The trial court erred in imposing a constitutionally excessive sentence.

FACTS

The victim, Brandi Lynn Beyer Van Norman, testified at trial. Approximately three weeks before the incident, she met the defendant while she was making a pizza delivery to a bar. Thereafter, the victim and her three children began visiting the defendant at his grandmother’s house, where he [aalso lived. The victim and her children stayed overnight at the defendant’s grandmother’s house “a couple of times” during the three-week period.

Specifically, on Friday, May 21, 2004, the victim and her children spent the night with the defendant. The next day, the - defendant, the victim, her children, and the defendant’s friend, Danny Robichaux, drove to the beach at Grand Isle. The defendant drove the victim’s car to and from the beach. (R. 103). After spending the day at the beach, and after taking Robichaux to his home, the defendant, the victim, and her children returned to the defendant’s grandmother’s home. The victim and her children again spent the night with the defendant.

According to the victim, on Sunday, May 23, 2004, the defendant left her and her children at the defendant’s grandmother’s home and drove away in the victim’s car, stating he was going to church. At approximately 12:00 noon, the defendant returned. The defendant subsequently drove the victim, her children, and himself to church in the victim’s car. Shortly after arriving at the church, the defendant spoke to a. man. The defendant then told the victim to “get the kids and let’s go.” The defendant then drove the victim, her children, and himself to the • defendant’s mother’s house in the victim’s car. The defendant told the victim someone was looking for him in connection with a “probation thing.”

Thereafter, the defendant drove the vie-, tim, her children, and himself to the defendant’s grandmother’s house in the victim’s car. According to the victim, after they arrived, she asked the defendant for her car keys because she had to take her children home to get them ready for school the next day. The defendant became upset with the victim because he wanted her to spend the night. The victim pleaded with the defendant to give her back her car keys. Defendant told the victim that he did not have her car keys, but she did not |4believe him. The defendant asked the victim to go .into the house and talk to him. She complied with his request, but left her children outside. The defendant begged the victim to stay overnight, but the victim-refused. She told the defendant that she needed to tend to her children because they had school in the morning. The defendant then told her, “Well, I’m going to shoot you with my nine.” The victim went back outside, telling the defendant she did not want her children to be outside by themselves. The defendant followed her outside. The victim continued to ask the defendant for her car keys, and he continued to refuse to return the keys. The victim stated, “Fine,” and told the defendant he could have her car, but she was going home. The victim tried to run away from the defendant. The defendant, however, ran up behind the victim, grabbed her hair, and made her fall to the ground.

The victim eventually returned to the defendant’s grandmother’s house with the defendant. The defendant told the victim, “Don’t try to run again.” He then acted as if he was calling the police. The defendant spoke into the telephone, and seemed to be inviting “the police” to come to his house because of a drug dealer in the house who had drugs in her car. After hearing that, the victim stated, “He’s lying. He don’t let us go home. Please help us.”

The victim further testified, as follows: “[W]e kept trying to run. Every time we run (sic) he kept catching us.” The victim asked the defendant to let her get her clothes and put them in her car. The defendant went into his grandmother’s house, and the victim “snuck” into the house and took her clothes from the utility room. When the defendant found out the victim had taken her clothes out of the house, he spun the victim around, grabbed her throat, and stated, “Are you fing stupid?” The victim told the defendant she was going back outside and went outside. The defendant responded, “What do you think you are doing? [,]” and slammed the victim’s head against a brick Rwall. During this altercation, the victim’s oldest daughter, B.V., said; “Mama, come on, let’s go home.” The defendant then picked up B.V. by her head and threw her into the victim’s car.

Thereafter, the defendant went into his grandmother’s house, and the victim and B.V. ran to the next street. The defendant drove up to the victim and B.V. and told the victim to “[g]et in.” The victim’s two youngest children were in the car with the defendant. The victim refused, stating, “No. You can keep the car. I want my kids and I’m getting out. I’m going home. I’m walking home.” The defendant again told the victim to get into the car, and she again refused. The defendant offered to let the victim drive. The victim and B.V. got into the car and drove in the direction of the defendant’s grandmother’s house, but stopped before reaching the house. The defendant demanded that the victim drive to the house, but she refused. The defendant and the victim struggled over the keys in the ignition, and the defendant pulled the victim’s head down by her hair and put his hand in her mouth. The victim bit the defendant’s hand. The defendant punched the victim in the face and bit her left wrist. The defendant then jumped out of the car and ran to his grandmother’s house. The victim drove away with her children. She denied ever threatening or attempting suicide. She denied jumping out of a car on the night of the incident. She also denied that the defendant told her that someone from Baton Rouge was coming to pick him up and she had to leave.

The victim identified State Exhibit # 1 as a photograph depicting a bruise and a bite caused by the defendant punching her in the face and biting her. The victim identified State Exhibit #2 as a photograph depicting a bruise on her eye caused by the defendant punching her in the face. The victim identified State Exhibits # 3 and # 5(B) — # 5(D) as photographs depicting the bite on her arm caused by the defendant. The victim identified State Exhibit | k# 4 as a photograph depicting swelling of her throat caused by the defendant grabbing her throat. The victim identified State Exhibits # 5(A) and # 5(E) — # 5(H) as photographs depicting the “black eye” the defendant gave her. The victim identified State Exhibit # 5(1) as a photograph depicting swelling to her neck caused by the defendant.

B.V. also testified at trial. She was nine years old at the time of her testimony. She gave the following account of the events surrounding the incident. The victim went to pick up the defendant from “somewhere” after school. The defendant asked the victim and her children to sleep over and they agreed. The next day, the victim washed some clothes. ‘Whenever it started to get dark,” the victim wanted to leave because, her children had school the next day, but the defendant did not want to give the victim her keys. When the victim went to get her clothes out of the laundry, the defendant grabbed her by the leg and pulled her away from the dryer. The defendant asked the victim to go to his room so that they could talk. While the victim and the defendant were in the defendant’s room, B.V. took “the keys” from ' the top of the deep freezer and hid them under the seat of the car. According to B.V., the victim saw that the keys were no longer on top of the deep freezer, so the victim knew B.V. had the keys when the victim finished talking to the defendant. The victim got into her car and attempted to leave, but the defendant grabbed her by the hair and threw her against a brick wall. B.V. told the defendant to stop hitting the victim, and the defendant picked B.V. up by her head, threw her into the car, and closed the car door on her foot. The victim told her children to “get out of the car so [they] could run.” The victim and her children got out of the car and ran, but the defendant drove up to them. The defendant told the victim and her children to get into the car, but the victim refused. However, the victim and her children got into the car after the defendant said he would |7let the victim drive. The defendant told the victim to drive to “his” house, but the victim drove only to a stop sign. The defendant demanded that the victim go under “his” carport, but the victim refused. The defendant “got upset” and tried to take the car keys from the victim, but she kept holding them. The defendant put his fist in the victim’s mouth and bit her arm. Also during the struggle for the keys, the key chain broke, and the keys fell onto the floor. The defendant then got out of the car and ran into “his” house. The victim picked up the car key from the floor, started the car, and drove away.

The victim’s son, C.V., also testified at trial. He was eight years old at the time of his testimony. He indicated that he, his two sisters, and the victim slept over at the defendant’s grandmother’s house one day, and the defendant wanted them to sleep over again. The victim, however, wanted to go back to her house because C.V. and his sisters had to go , to school. The defendant “got mad” and started beating up the victim. The victim ran away from the defendant, but the defendant pushed her down and pulled her by the hair. The defendant went back to his grandmother’s house, but then returned and told the victim that she could drive. The victim wanted to drop the defendant off at the stop sign, and the defendant “got mad.” The defendant pushed his hand in the victim’s mouth and bit her. He also “broke the key.” Defendant then got out of the car, and ran to his house. C.V. indicated that the victim did not bite the defendant when he put . his hand in her mouth. C.V. also denied- that the victim had any pills on the night of the incident.

Dr. Jay Clement Alexius, Jr. testified that he worked at Terrebonne General Hospital Emergency Room, and treated the victim on May 24, 2004. The victim was suffering from a facial contusion, a human bite, and muscular back pain, which may have been chronic. The victim complained that an [ ^acquaintance had grabbed her by the throat, had hit her over her left eye, and had bitten her on her left wrist.

Travis Sanford testified that on May ‘23, 2004, he worked for the Terrebonne Parish Sheriffs Office. On that date, the defendant advised Officer Sanford that the defendant and the victim had broken up, the victim had threatened suicide, and the defendant was concerned that the victim might commit suicide. The defendant told Officer Sanford the victim might claim the defendant had beaten her up, but that would be a lie.

Officer Sanford located the victim in the emergency room of Terrebonne General Hospital. The victim indicated she had had an altercation with the defendant after she decided she wanted to leave “the house,” and the defendant did not want her to leave. The victim indicated that the defendant had her car keys and would not give them to her. She also stated that the defendant had tackled her, thrown her to the ground, hit her, and, when she tried to run away, he “drug her back to the residence.” Officer Sanford noticed that the victim had a bite mark on her left wrist, had a clump of hair missing from her head, had bruising and swelling on her left eye, and had a big knot on her forehead. The victim told Officer Sanford that the defendant had inflicted her injuries.

The defendant also testified at trial. He claimed he had a relationship with the victim, which lasted approximately eighteen days, in the spring of 2004. He claimed the victim would come to the house he shared with his grandmother at approximately 2:00 a.m. or 3:00 a.m., stay at the home until approximately 5:00 a.m. or 6:00 a.m., “put her kids on the bus,” and then come back to the house and “do whatever [the defendant] had for [the victim] to do.” He claimed he did not have a sexual relationship with the victim, and he paid the victim for work she did at “his” house. The defendant claimed that during lflhis relationship with the victim, the victim was aware that he had a girlfriend, Michelle Thomas, who lived in Baton Rouge.

The defendant claimed he spent May 22, 2004 at the beach with the victim, her children, and Danny Robichaux until the victim left at about 4:00 p.m. to go to work. He claimed that the victim called him on his cellular telephone at approximately 7:00 p.m., and wanted to come to see him. He claimed he refused, telling the victim that he was not at home, was not going to be at home, and, if he decided not to remain at his present location, he would go to Baton Rouge.

According to the defendant, when he woke up at approximately 8:30 a.m. on Sunday, May 23, 2004, the victim and her children were at “his” house. The defendant claimed the victim had allowed him to drive her car to church. For that reason, he took the victim’s car to church that morning while the victim and her children slept. After the defendant returned from church, he stayed at the house. The victim washed clothes and got her children ready for school. At approximately 3:30 p.m., the defendant drove the victim and her children to the defendant’s mother’s house in Sehriever. According to the defendant, before he arrived at his mother’s house, the victim attempted to jump out of the car. The defendant pulled the victim back into the car. He indicated that he thought “it was a joke[,]” and that he believed that the victim also thought “it was a joke.”

After visiting the defendant’s mother, the defendant, the victim, and her children went to church. According to the defendant, one of his friends pulled a prank on him at church. The friend told the defendant that he had missed a court date and a warrant had been issued for defendant’s arrest. The defendant had the victim and her children get into the car, and drove them back to his mother’s house. The defendant claimed that he stopped at his mother’s house, |1(1and then. he and the victim and her children went to the Shop Rite in Sehriever. The defendant claimed the victim became upset with him at the store after he gave an old girlfriend some money for gas. He claimed the victim also became angry after they went back to his grandmother’s house and he spoke to Thomas on the telephone and told her to “hurry up and send somebody to come get [the defendant].” .The defendant claimed the victim was “devastated.” He testified that he told the victim to take her children and get away from “his” house. He also claimed that one of the victim’s children subsequently told defendant to go outside because the victim had defendant’s medicine.

According to the defendant, when he went outside, he found the victim standing in the middle of his front yard. She was saying that she was not good enough for him. He claimed that the victim was very angry, was crying hysterically, and was holding what appeared to be one of his pill bottles in her hand. He claimed that the bottle was not open at that time. He told the victim not to do something stupid, and that she was going to wake up his grandmother and his neighbors. According to the defendant, moments later, the victim had placed several of his Soma pills in her mouth and spilled the rest of the pills on the ground. The defendant claimed that he placed his index and middle fingers inside the victim’s mouth and “raked out” three pills. He asserted that when he did that, the victim bit him “like a dog.” He claimed that he and the victim then “kind of had a little wrestling match, cursing match.” Next, he went inside and called the police. He testified that the victim went to her car, and got in while “screaming and hollering, claiming she was going to go commit suicide.” He denied trying to keep the victim and her children at his home or doing anything that could be construed as kidnapping the victim. He denied biting the victim on her wrist or intentionally hurting . her. He also ludenied giving the victim a black eye. He claimed he told the police that the victim might say he beat her up because she had “lied on” her ex-husband on several occasions.

Lanita Templet, the defendant’s mother, also testified at trial. She stated that the defendant, the victim, and her children came to the grandmother’s house on May 23, 2004, and they seemed upset. Templet claimed that the victim and “the little girl” told Templet that the victim had tried to jump out of the car at the railroad tracks. Templet testified that after the victim calmed down, the defendant, the victim, and her children left to go to church. Templet indicated that the defendant subsequently told her that the victim had bitten him when he put his finger in her mouth to remove the pills she had taken.

Mardis Sanders, the defendant’s grandmother, also testified. She claimed at approximately 10:30 p.m. or 11:00 p.m. on May 23, 2004, her dog awakened her at her home. She looked outside and saw the victim’s three children sitting on a swing, and the defendant and the victim sitting on another swing. The victim was crying. Sanders claimed she went back to bed.

.According to Sanders, she subsequently overheard the defendant telling the victim that he wanted to go to Baton Rouge, and the victim begging the defendant not to go to Baton Rouge. Sanders claimed the defendant was trying to get the victim to leave and that “Michelle” was coming to the house to pick up the defendant. Sanders claimed, at approximately 12:00 midnight, she saw the victim put a bathing suit and a set of car keys on the table. Sanders testified that she subsequently heard one of the victim’s children tell the defendant, “Mommy is taking some pills.” Sanders claimed that the defendant rushed outside, returned with a bleeding finger, and told Sanders that the victim was trying to take some pills. Sanders also claimed that the | ^defendant wore partial dentures for four bottom teeth, and he could not find his dentures when he was arrested. However, Sanders testified that she found the defendant’s dentures in the pocket of his pajamas, two days after his arrest.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant argues that his claim, that he. attempted to prevent the victim from committing suicide, was corroborated by the testimony of Lanita Templet and Mar-dis Sanders. He also argues that there was insufficient evidence that he kidnapped the victim by taking her car keys and physically abusing her.

. In reviewing claims challenging the sufficiency of the evidence, this court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

Second degree kidnapping is the imprisoning of any person wherein the victim is physically injured. LSA-R.S. 14:44.1(A)(3) & (B)(3). For a conviction, LSA-R.S. 14:44.1(B)(3) requires neither movement of the victim, nor that the imprisonment exists for any minimum period of time. State v. White, 593 So.2d 882, 887 (La.App. 2 Cir.1992).

After a thorough review of the record, we are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of the second degree kidnapping of the victim. The verdict rendered against the defendant indicates that-the jury accepted the testimony of the state’s witnesses, including the victim’s account of the incident, and rejected the | iatestimony of the defense witnesses, including the defendant’s account of the incident.

This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of .the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331.

This assignment of error is without merit.

REVIEW FOR ERROR

Our review for error is conducted pursuant to LSA-C.Cr.P. art. 920. Specifically, article 920 provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” LSA~C.Cr.P. art. 920(2).

In the instant case, the trial court failed to deny the defendant parole for at least two years of the sentence. See LSA-R.S. 14:44.1(C). The sentencing error cannot be remedied on appeal under LSA-R.S. 15:301.1(A) because “at least” two years of the sentence imposed are required to be without benefit of parole, probation, or suspension of sentence. See State v. Moore, 37,935, pp. 15-16 (La.App. 2 Cir. 1/28/04), 865 So.2d 227, 236, writ denied, 2004-0507 (La.7/2/04), 877 So.2d 142. Thus, that aspect of the sentence involves discretion by the sentencing judge, and, although the defendant is not prejudiced by this sentencing error, we believe the sentence 114must be vacated and remanded. Accordingly, we vacate the sentence and remand to the trial court for resentencing.

CONVICTION AFFIRMED; HABITUAL-OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENC-ING.

      . Having vacated the sentence, we pretermit assignment of error number 2. However, we do note that in the sentence the trial court imposed a fine of $1,000.00. However, neither LSA-R.S. 14:44.1 nor LSA-R.S. 15:529.1 authorized such a fine.


author: GAIDRY, J.

text:
    Cabrina SPEARS v. RYAN’S STEAKHOUSE.
    No. 2006 CA 0999.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Clarence T. Nalls, Jr., Baton Rouge, Counsel for Plaintiff/Appellant Cabrina Spears.
    Pierre M. Legrand, Karen G. Arena, Metairie, Counsel for Defendani/Appellee Ryan’s Family Steakhouse.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

1 RIn this workers’ compensation case, plaintiff, Cabrina Spears, appeals a judgment dismissing her claim for workers’ compensation benefits and denying her claims for mental injury, past due medical benefits, and penalties and attorney fees. We affirm.

FACTS AND PROCEDURAL HISTORY

Cabrina Spears filed a Disputed Claim for Compensation on July 14, 2004, claiming that she was injured in an on-the-job accident at Ryan’s Steakhouse (“Ryan’s”). Specifically, Spears alleges that on March 22, 2004, while she was walking to the kitchen at Ryan’s carrying a tray of dirty dishes, she fell and hit her back and head on the floor.

After a hearing, the workers’ compensation judge (WCJ) concluded that Spears had failed to meet her burden of proving a compensable work-related accident and injury and dismissed her claim with prejudice. The WCJ gave extensive reasons for this finding, but the gist was that the WCJ did not find Spears’s testimony to be credible. Spears’ testimony as to the circumstances of the accident was internally inconsistent, as well as in conflict with other witnesses’ accounts. The medical records in evidence reveal some additional conflicts with Spears’ version of events, and one doctor testified that he suspected secondary gain.

This appeal by Spears followed. Ryan’s answered the appeal, arguing that the WCJ erred in failing to assess all court costs to Spears.

DISCUSSION

In Spears’ first assignment of error, she argues that the WCJ erred in impeaching her testimony pursuant to an erroneously-dated document from North Oaks Hospital. The document she refers to was a record of an emergency room visit dated June 24, 2004 which stated that Spears came to [sthe emergency room complaining of chest, back, and knee pain since a fall two weeks prior. It is noteworthy that Spears’ trial testimony about the accident at Ryan’s does not include any mention of an injury to her knee, and she did not mention any knee pain prior to June 24, 2004 when seeking medical treatment for her injuries. The June 24, 2004 emergency room record also contains a notation that this was not a work-related accident. Spears argues that the emergency room record must have contained an error, because the accident at Ryan’s occurred two months prior to the emergency room visit, not two weeks prior, and it was error for the WCJ to impeach her based on this document. In reviewing the WCJ’s reasons for judgment, however, it is clear that there is no merit to Spears’ argument. The WCJ specifically noted that she considered the possibility that the records contained a typographical error as to the date of the accident, since the description of the accident sounds similar to the accident she describes having at Ryan’s; however, the WCJ ultimately concluded, based on the complaint of knee pain, the accident date noted, and the notation of a non-work-related accident, that this June 24, 2004 emergency room visit was related to a separate, new incident and not the alleged accident at Ryan’s. We find no error in this conclusion and note that the date on the emergency room record was far from being the sole factor affecting the WCJ’s opinion of Spears’ credibility.

Spears’ next assignment of error is that the WCJ erred in basing the denial of benefits on the fact that Spears did not exhibit any physical discomfort during the hearing. Spears argues that she was wearing a TENS unit during the hearing to help manage the pain and that the testimony of several of her doctors corroborates her injuries. This mention of Spears’ apparent lack of discomfort when sitting for a long time was simply an | ¿observation made by the WCJ when explaining why it found Spears’ testimony incredible. A court, as trier of fact, is entitled to make credibility calls based upon its observation of the witness’s demeanor; this comment about Spears’ lack of discomfort was simply such an observation. This assignment of error has no merit.

Spears’ third assignment of error is based upon the WCJ’s allowance of the testimony of Ryan’s general manager Jody Gary, after he remained in court in spite of a sequestration order. Louisiana Code of Evidence article 615 governing exclusion of witnesses provides that a when a party is not a natural person, its representative may not be excluded pursuant to a sequestration order. Mr. Gary was listed as a witness on Ryan’s pretrial statement. His testimony was not a surprise to Spears. The trial court did not abuse its discretion in finding that Mr. Gary was a company representative not subject to the sequestration order and in allowing him to testify-

Spears’ final two assignments of error concern the fact that Ryan’s paid some of Spears’ medical bills but did not pay workers’ compensation benefits. She alleges that Ryan’s acted arbitrarily and capriciously in doing so and that it was error for the WCJ to find that no work-related injury existed, when she had testified that she suffered injuries from a work-related accident and Ryan’s had paid some of her medical bills. Louisiana Revised Statutes 23:1204 expressly provides that “[njeither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.” The statute is clear that Ryan’s is not estopped by its voluntary payment of medical bills from challenging the occurrence of a work-related accident. These assignments of error have no merit.

| ¡¡Costs

In its answer to Spears’ appeal, Ryan’s argues that the WCJ erred in failing to assess all costs to Spears under La. R.S. 23:1310.9 or 1317(B). Louisiana Revised Statutes 23:1310.9 provides that if the WCJ determines that workers’ compensation proceedings have not been brought on a reasonable ground, it shall assess the total cost of the proceedings to the party who has brought them. Additionally, La. R.S. 23:1317(B) provides that costs may be awarded by the workers’ compensation judge, in his discretion. The WCJ did not find that the proceedings were not brought on a reasonable ground; she found that Spears failed to carry her burden of proof that a work-related accident occurred. We find no abuse of discretion in the division of costs between the parties, and therefore we deny Ryan’s answer to the appeal.

DECREE

The judgment dismissing Cabrina Spears’ workers’ compensation claims with prejudice is affirmed. Costs of this appeal are to be shared equally by Spears and Ryan’s.

AFFIRMED; ANSWER TO APPEAL DENIED.


author: MCDONALD, J. WHIPPLE, J., KUHN, J.,

text:
    STATE of Louisiana v. FORD MOTOR COMPANY, William Clay Ford, Jr., Allan Gilmour, Nick Scheele, Bill Hood Ford, L.L.C., and Hixon Autoplex of Alexandria, Inc. d/b/a Hixson Autoplex and Hixson Autoplex of Alexandria.
    No. 2006 CA 1810.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2007.

      Tony Clayton, Port Allen, Ben D. Bey-chok, Baton Rouge, Charles C. Foti, Jr., Baton Rouge, Counsel for Plaintiff/Appel-lee State of Louisiana.
    Allen V. Davis, Michael T. Pulaski, Charles E. Sutton, Jr., Hillard F. Kelly, III, Covington, Brian C. Anderson, William R. Nifong, Washington, D.C., Counsel for Defendant/Appellant Ford Motor Co., Hixson Autoplex of Alexandria, Inc.
    Paul L. Billingsley, Hammond, Counsel for Defendant/Appellant Bill Hood Ford, L.L.C.
    Before: CARTER, C.J., WHIPPLE, KUHN, DOWNING and MCDONALD, JJ.
   MCDONALD, J.

| ¡.The petition in the matter before us was filed by the plaintiff, the State of Louisiana (State), in December 2003, for injunctive relief, declaratory relief and damages pursuant to Louisiana redhibition law (La. C.C. art. 2520 et seq.), Unfair Trade Practices Act (La. R.S. 51:1401 et seq.), the Procurement Code (La. R.S. 39:1679) and article 2315 of the Louisiana Civil Code for intentional interference with contracts. The defendants are the Ford Motor Company, some individual representatives of Ford, and two Ford dealerships. The allegations of the 71 paragraph petition on which this opinion is focused are that the Ford Crown Victoria Police Interceptor vehicle was marketed as a vehicle specially designed to be used by law enforcement personnel, but that it contained a hidden defect causing an increased risk of fuel leakage and combustion in rear-end impact collisions, which entitles petitioners to a reduction in the purchase price and other damages.

After removal to federal court and remand to the state court, in July 2004, a first amended and supplemental petition was filed seeking to represent a class of “all governmental, parish, municipal, police and sheriff departments, law enforcement districts and other political subdivisions within the State of Louisiana who have purchased and own Ford Crown Victoria Police Interceptors since 1992 that were provided to law enforcement for use as a law enforcement vehicle.” Paragraph LXVI of the amended petition sought to exclude from this class “any persons or entities who have an action for damages for personal injury or death arising out of post-collision fuel fed fires in the Ford Crown Victoria Police Interceptor.”

|sThe amended petition reiterated the claim of unfair trade practices and sought damages pursuant to La. R.S. 51:1401 et seq.; and reiterated the claims of violation of the Louisiana Procurement Code and intentional interference with contract. The plaintiff sought declaratory and in-junctive relief as well as class certification. Following a hearing, the trial court denied the request for injunctive relief by judgment rendered September 28, 2004, which was not appealed.

In November 2004, the trial court heard argument on the plaintiffs motion for class certification. Class certification was granted, and judgment was signed December 15, 2004, defining the class as “All parishes, municipalities, police and sheriff departments, law enforcement districts and other political subdivisions within the State of Louisiana who have purchased, leased or otherwise acquired Ford Crown Victoria Police Interceptors since the 1992 model year for use as law enforcement vehicles.” The State of Louisiana on behalf of the Louisiana State Police was named as the class representative. This appeal was timely filed by the defendants, collectively designated as Ford.

Ford asserts that the court erred: (1) in certifying a class in which questions of law or fact common to the members of the class do not predominate over questions affecting only individual class members; (2)in certifying a class in which the claims of the representative are not typical of the claims of the class; (3) in certifying a class in which the representative party will not fairly and adequately protect the interest of the class; and (4) in certifying a class in which a class action is not superior to other available methods for the fair and efficient adjudication of the controversy.

| ¿The trial court has much discretion in deciding whether a suit should be certified as a class action. . The factual findings upon which a class action certification is based should be reviewed on appeal by the manifest error (clearly wrong) standard. After the trial court makes its determination of fact, it exercises its discretion to certify the class or not. This discretionary judgment must be reviewed on appeal by the abuse of discretion standard. Boudreaux v. State, DOTD, 96-0187, p. 4 (La.App. 1st Cir.2/14/97), 690 So.2d 114, 118.

The prerequisites for maintaining a class action are provided in La. C.C.P. art. 591, as follows:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A óf this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against' individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
|s(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Sub-paragraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

The requirements of Paragraph A of article 591 are referred to as the elements of numerosity, commonality, typicality, adequate representation, and objectivity (definability), and all must be present to maintain a class action. Boyd v. Allied Signal, 2003-1840, 1842, 1843, p. 10 (La.App. 1st Cir 612/30/04), 898 So.2d 450, 457; writ denied 2005-0191 (La.4/1/05), 897 So.2d 606. The burden of proving the necessary elements is on the party seeking to maintain the class action. Conclusory allegations of a pleading alone are insufficient to establish the existence of a class. Carr v. GAF, Inc., 97-0838R, p. 5 (La.App. 1st Cir.4/8/98), 711 So.2d 802, 805.

The issue before us on appeal considered broadly is whether the lawsuit should have been certified as a class action. In our initial review of this record, we were disturbed by a seeming lack of evidence on the issue of numerosity. The numerosity requirement is not met simply by alleging a large number of potential claimants. Lewis v. Texaco Exploration and Production Co., Inc., 96-1458 p. 11 (La.App. 1st Cir.7/30/97), 698 So.2d 1001, 1012. At the hearing on this matter no evidence was. introduced concerning the numbers of agencies using this vehicle. The statement by the trial court “that based off [sic] the number of entities that have this vehicle...” is not based on any evidence in the record. The record does confirm that at least two law enforcement agencies had filed suit and subsequently had it dismissed. In fact, the record contains no evidence whatsoever as to the numbers of potential plaintiffs. The only such reference is found in the argument of counsel, both at the trial level and at the appellate level. Therefore, on the record before us, we find that the plaintiff has failed to establish an element necessary to establish entitlement to class certification, numerosity, and the decision of the trial court cannot be affirmed.

However, for the sake of judicial efficiency, we will also consider other assignment of errors made by appellants. Ford asserts that the State has not met its burden of proving commonality, typicality and adequate representation. Under Louisiana law, there must be a “common ehar-acter” [ 7among the rights of the representatives and the absent members of the class in order to make class action appropriate. To satisfy this element, plaintiffs must establish that questions of law or fact common to the members of the class predominate over any questions affecting only individual members. Boudreaux v. State DOTD, 690 So.2d at 120. Additionally, the “common character” requirement restricts class actions to those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Id.; McCastle v. Rollins Environmental Services of La., Inc., 456 So.2d at 616 (La.1984). Thus, the commonality requirement involves a two-step inquiry: (1) a determination that common issues predominate over questions affecting only individual members, and (2) a determination that the class action procedure is superior to other procedural mechanisms. Johnson v. Orleans Parish School Bd., 2000-0825, 0826, 0827, 0828, 0828, p. 14 (La.App. 4th Cir.6/27/01), 790 So.2d 734, 744 and cases cited therein.

Ford maintains that the issues involved in the plaintiffs claims are claimant-specific in nature, are nearly infinite in variation, and require different packages of evidence with respect to each separate proposed class member. Among the variations in the issues cited by Ford are: representations made to each class -member, reasons influencing each member’s decision to acquire the vehicle, each member’s knowledge of the alleged defect over time, vehicle design changes and post-sale retrofits, the various purposes for which the vehicles are used, and the various sources of puncture, ignition and fire.

Some common issues cited by the State are whether the Crown Victoria Police Interceptor (CVPI) has a redhibitory defect and whether | ^members of the proposed class are entitled to a reduction in the purchase price of the CVPI because of the redhibitory defect. While arguably these issues are important and common to all members of the proposed class, the existence of a common question of law or fact does not by itself justify a class action as involving a common character of the right to be enforced even though the parties are too numerous to be joined practicably. Banks v. New York Life Ins. Co., 98-0551 p. 5 (La.7/2/99), 737 So.2d 1275, 1280.

The majority of the evidence submitted by the plaintiffs chronicle law suits and documentation from other law enforcement personnel regarding increased safety risks to police officers involved in rear-impact collisions in the CVPI dating back to 1997. A Louisiana law enforcement officer was killed in a crash and fire in a CVPI in May 1998. Law enforcement officers in Arizona and in Texas were killed in crashes involving the CVPI, and law suits were filed alleging liability on the part of Ford. The State of Florida, Department of Highway Safety and Motor Vehicles addressed a letter to the Police Vehicle Engineering Division of Ford in 1999, outlining its concerns for the safety of law enforcement officers driving the CVPI.

The evidence (deposition of Michael Blackmer) indicates that Ford’s initial response was to deny that the CVPI had a design defect, and refuse responsibility for notifying owners of any potential problems or paying to make changes. However, Ford’s position changed through the years; design modifications were made, and by 2002 Ford was offering an upgrade kit that was designed to “retrofit” existing CVPI vehicles. In the 2003 year model, | psubstantial design changes were made in an attempt to eliminate the perceived danger, which in addition to the allegations of numerous lawsuits, had been the subject of nationally broadcast television news programs.

While the only issue at the certification hearing is the appropriateness of the procedural device, the possibility that the defendants will assert affirmative defenses such as comparative fault and prescription should be considered. Mathews v. Hixson Bros., Inc., 02-124 (La.App. 3rd Cir 7/31/02), 831 So.2d 995, 1000. As noted by the trial court, prescription is an issue in this case. Plaintiffs are claiming as members of the class, purchasers of the CVPI since model year 1992. Louisiana Civil Code art. 2534 provides in pertinent part that the “action for redhibition against a seller who knew, or is presumed to have known (the manufacturer), of the defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.” There is absolutely no evidence, or reason to believe under the facts in this case, that the issue of prescription can be resolved on behalf of all plaintiffs by inquiry as to the class representative only. Each individual potential plaintiff may have different issues regarding prescription.

Further, an essential requirement to maintain a suit in redhibition is that the complained of defect is hidden, and indeed, plaintiffs petition alleges that the defect is hidden. Given the widespread dissemination of information concerning problems with the CVPI, and considering the probability of notice to Louisiana law enforcement personnel occasioned by the aforementioned 1998 death, the knowledge of the alleged defect possessed by each member of the putative class, and when it was discovered, | inwill be raised as a defense by Ford and will have to be determined with regard to each individual class member on an individual basis.

The plaintiff also alleges that the hidden defects increase the risk of fuel leaks and fuel fed fires “under certain circumstances for which the CVPI was expressly marketed and sold.” Therefore, it will be necessary to establish that the purposes for which the vehicles were acquired and the use made of them by the various class members, conform to the “certain circumstances” under which the risk is increased. We find no evidence in the record addressing this issue. This also implicates the element of typicality.

A trial court’s decision to certify a class action is a two-step process. The trial court must first determine whether a factual basis exists for class action certification. If the trial court finds that a factual basis exists for certification, it then must exercise its discretion in deciding whether to certify the class. Boyd v. Allied Signal, 898 So.2d at 456. All of the elements of numerosity, commonality, typicality adequate representation and objectivity (de-finability) must be present to maintain a class action. La. C.C.P. art. 591(B), Boyd, 898 So.2d at 457.

Even if the plaintiff has met its burden regarding the elements of numer-osity, commonality, typicality, adequate representation, and objectivity, it is then necessary for the court to evaluate whether the class action is superior to other available methods for the fair and efficient adjudication of the controversy. Mathews, 831 So.2d at 1004. Judicial inquiry into the suitability of a lawsuit to be certified as a class action does not end with the establishment of the elements required by paragraph A of La. C.C.P. art. 591; the trial court must evaluate the requisite factors of paragraph B, which generally address the issues of fairness and efficiency. Inin determining whether a class action in a particular case will promote fairness and efficiency, the trial court must actively inquire into every aspect of the case and should not hesitate to require showing beyond the pleadings. McCastle, 456 So.2d at 616.

The trial court made no factual findings whatsoever in this matter. The court noted the factors provided in paragraph A of La. C.C.P. art. 591 that are requisites of class certification and said, “The state has alleged a number of agencies that have this particular vehicle. [The] court feels that based off the number of entities that have this vehicle, and the commonality and typicality of the issue in terms of the Crown Victoria Police Interceptor,- and that the state would fairly represent the entire class, the court is going to grant the class certification of this particular suit.” There is no evidence that the trial court was aware of or considered whether the lawsuit is suitable for class certification in conformance with any of the factors contained in paragraph B of La. C.C.P. art. 591.

We do not agree with Ford that the issues underlying plaintiffs claims are “nearly infinite in number.” However, on the record before us, and without any factual findings by the trial court, we are unable to conclude that the issues of law and fact common to class members predominate over individual issues. We hold that the plaintiff has not met its burden of establishing the elements necessary to maintain a suit as a class action pursuant to- La. C.C.P. art. 591. Therefore, the certification of this suit as a class action is reversed, and the matter is remanded to the district court. Costs in the amount of $2,296.04 are assessed to the State, Department of Public Safety and Corrections.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

WHIPPLE, J., dissents and assigns reasons.

DOWNING, J., dissents for the reasons assigned by WHIPPLE, J.

CARTER, J., concurs.

WHIPPLE, J.,

dissenting.

| Appellants (“Ford”) appeal a judgment certifying the instant suit relating to the Ford Crown Victoria Police Interceptor (“CVPI”) as a class action. A trial court’s decision to certify a class merits great discretion and should be affirmed on appeal absent manifest error. Robichaux v. State ex rel. Dept. of Health and Hospitals, 06-0437 (La.App. 1st Cir.12/28/06), 952 So.2d 27, 33.

In its assignments of error, Ford contends that the trial court erred in finding that the plaintiff (the State of Louisiana) demonstrated conformity with all of the class certification requirements of LSA-C.C.P. art. 591. Specifically, Ford avers that the State did not prove the elements of commonality, typicality, that the representative party will fairly and adequately represent the class, or that the class action is superior to other methods of adjudicating the controversy.

The test for commonality is not a demanding one. Duhe v. Texaco, Inc., 99-2002 (La.App. 3rd Cir.2/7/01), 779 So.2d 1070, 1078. Commonality requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members. Duhe, 779 So.2d at 1078. The |¡>crux of this case is whether the Ford-manufactured CVPI vehicles contain a redhibitory defect. This question will require common proof, and when answered as to one class member, will be answered as to all. I do not find that the individual class member’s use of the vehicle, or even modifications made to the vehicle, defeat commonality, nor dó I find that the question of individuals’ pre-purchase knowledge, which may rebut the redhibition claims, defeats commonality. Compare, West v. G & H See Co., 01-1453 (La.App. 3rd Cir.8.28/02), 832 So.2d 274, 287. The primary issue is whether the CVPI is redhibitorily defective and calls for common questions and common proof. Thus, the test for commonality is satisfied.

Likewise, the test for typicality is not demanding. Davis, 844 So.2d at 256. Here, the class members’ claims arise out of the purchase of Ford CVPI vehicles and are based on the legal theory of redhibition. The damages suffered by the class representative are the same type as those of other class members. Thus, the test for typicality is satisfied.

After thorough review, I find no manifest error in the trial court’s conclusions that the representative party will fairly and adequately protect the interest of the class and that the class action is superior to other available methods for fair and efficient adjudication of the controversy. This case concerns a single allegedly defective product, the Ford CVPI, and although individual questions will certainly arise, I find that common questions predominate. Moreover, I am |smindful that any doubt as to certification should be resolved in favor of certification. West, 832 So.2d at 292.

Considering the foregoing, I find no manifest error or abuse of discretion committed by the trial court, and conclude that this case is proper for class certification. I note here that the State moved for class certification on the issues of defendant’s liability for damages in redhibition and breach of contract/warrant only. The trial court’s judgment states that the State’s motion to certify is granted. Thus, I would amend the judgment to clarify that the class is certified as to these issues only and as amended, would affirm the trial court’s judgment, by memorandum opinion issued in compliance with URCA Rule 2-16.1 B.

Accordingly, I respectfully dissent.

KUHN, J.,

concurring.

l'il concur in the conclusion that the plaintiff failed to establish the numerosity element. Nothing in the record sufficiently identifies a definable group of aggrieved persons so as to satisfy the numerosity requirement for certification of a class action. Simply alleging that there are a large number of potential claimants is insufficient. Lewis v. Texaco Exploration and Production Co., Inc., 96-1458 (La.App. 1st Cir.7/30/97), 698 So.2d 1001, 1012.

Although the issue at a class certification hearing is whether the class action is procedurally preferable — not whether any of the plaintiffs will be successful in urging the merits of their claims — because the primary opinion has chosen to consider other assignments of error raised by defendants, I point out that under the facts of this case, it appears a redhibition claim is incompatible with a class certification. A redhibition claim involves subjective issues of individual knowledge and reliance. Thus, to receive redhibitory relief, plaintiff-by-plaintiff adjudication of liability and defense issues will be necessary. If it is recovery under the Louisiana Products Liability Act for a design defect that plaintiff seeks, specific allegations to justify such relief must be made.

      . The original 64-paragraph petition was amended. This opinion is based on allegations put forth by plaintiffs in both the original and the amended petition.

      . The individual defendants did not appeal.

      . We do not address at this point whether the exclusivity of the Louisiana Products Liability Act would prohibit maintaining this allegation of design defect as a suit in redhibition.

      . Among the evidence introduced by the plaintiff was the deposition of Helen Pitreuk-is, a Ford representative, taken on February 25, 1992, and concerns similar issues with respect to the 1986 Crown Victoria. We do not see the relevance of that deposition to this lawsuit involving vehicles purchased after 1992.

      .Iberville Parish Sheriff John Brent Allain testified in a deposition taken in May 2003, that he had seen a television broadcast featuring concerns over rear-end collisions in the CVPI.

      . Appellants are Ford Motor Company, Hix-son Autoplex of Alexandria, Inc., and Bill Hood Ford, L.L.C. The other named defendants are not a party to this appeal.

      . A detailed statement of the factual and procedural history of this suit, as well as the applicable law and standard review, is set forth in this court's previous opinion, State v. Ford, 05-1127 (La.App. 1st Cir.5/31/06), 930 So.2d 1244 (unpublished).

        .See also Mire v. Eatelcorp, Inc., 02-1705 (La.App. 1 Cir. 5/9/03), 849 So.2d 608, 614 (stating that “the inquiry under a redhibition claim does not involve the buyer’s subjective knowledge or reliance, but rather is an objective inquiry into the deficiency and whether it diminishes the product’s value or renders it so inconvenient that the reasonable buyer would not have purchased it had he known of the deficiency.”)

      . In support of its contention that the claims of other class members will be based on other legal theories, Ford directs our attention to petitions filed in other class action lawsuits. However, Ford admits that those petitions do not form part of the record before us on appeal. We cannot take judicial notice of those petitions and, as evidence outside the appellate record, those petitions cannot be •considered herein. See LSA-C.E. art. 201.