author: MAX N. TOBIAS JR., Judge.

text:
    Henry HINES v. DEPARTMENT OF POLICE.
    No. 2006-CA-1218.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Gary M. Pendergast-, New Orleans, LA, for Plaintiff/Appellant.
    Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields,
    City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS JR., Judge.

[t The plaintiff/appellant, Henry Hines(“Lieutenant Hines”), a former lieutenant with the New Orleans Police Department (“NOPD”), appeals his termination from the department as discipline for actions taken after Hurricane Katrina. For the reasons that follow, we reverse the decision of the Civil Service Commission (“CSC”) and modify the discipline to be imposed.

Lieutenant Hines was first hired by the NOPD in October 1982. At the time of Hurricane Katrina, he was a lieutenant and head of the Downtown Development District (“DDD”), commanding a unit of two sergeants and approximately 14 police officers. The DDD falls under the jurisdiction of the 8th Police District and was responsible for patrols and calls for service in an area roughly bounded by Canal Street, North Rampart Street, Howard Avenue, and the Mississippi River in New Orleans.

It is undisputed that Lieutenant Hines and his unit reported for duty on 28 August 2005, the day before Hurricane Katrina hit the City of New Orleans. Lieutenant Hines left New Orleans with all but four of his command on 31 August [82005. Everyone, but Sergeant Berger, went to Baton Rouge. Most of his unit returned on 3 September 2005; some of his personnel, however, refused to return because Lieutenant Hines was not receiving support from other officers of the NOPD.

Upon returning to New Orleans, Lieutenant Hines and his personnel were reassigned to other units and on 27 September 2005, a formal investigation was begun by the NOPD’s Public Integrity Bureau (“PIB”). A final report was completed and submitted on 5 December 2005. On 5 January 2006, a pre-disciplinary hearing was conducted where a violation of neglect of duty was sustained. The recommendation was for Lieutenant Hines to be demoted to Police Sergeant, suspended for thirty days, and be suspended for forty-five days for not answering truthfully during the investigation.

After the hearing, the matter was reviewed by NOPD Superintendent Warren J. Riley (“Chief Riley”) who increased the discipline for violation of neglect of duty from a thirty-day suspension and demotion to termination. Lieutenant Hines appealed and the matter was heard by the CSC on 21 March and 7 April 2006. On 15 August 2006, the CSC upheld the discipline imposed by the NOPD and dismissed Lieutenant Hines’ appeal. He now seeks relief from this court.

|sLieutenant Hines has assigned two errors for our review. First, he argues that the CSC committed manifest error in dismissing his appeal because under the conditions imposed by Hurricane Katrina, no discipline was warranted. In the alternative, Lieutenant Hines contends that the CSC committed manifest error in upholding the discipline imposed by the NOPD because it is excessive.

In Smith v. New Orleans Police Department, 99-0024, pp. 5-6 (La.App. 4 Cir. 9/22/99), 743 So.2d 834, 837-38, this court set forth the standard of appellate review regarding civil service disciplinary cases:

In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984). First, as in other civil matters, deference will be given to the factual conclusions of the Commission. Hence, in deciding whether to affirm the Commission’s factual findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Walters, supra.
* * *
Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. La. R.S. 49:964.
Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4th Cir.1990). The Appointing Authority has the burden of proving the impairment. La. Const. Art. X, Sec. 8(A). The appointing authority must prove its case by a preponderance of the evidence. Cittadino, supra.
“Arbitrary or capricious” can be defined as the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961 (La.1991). A reviewing court |4should affirm the Civil Service Commission conclusion as to existence or cause for dismissal of a permanent status public employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion, as presented in this case.
Employees with the permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const., Art. X, Sec. 8(A). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Newman v. Department of Fire, 425 So.2d 753 (La.1983).

Pursuant to La. R.S. 49:964, the court is guided by the following:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The CSC has the duty to decide independently from the facts presented whether the NOPD had good and lawful cause for taking the disciplinary action [sand, if so, whether the punishment imposed is commensurate with the dereliction. Razor v. New Orleans Police Department, 04-2002 (La.App. 4 Cir. 2/15/06), 926 So.2d 1.

The CSC appeal was heard on 21 March and 7 April 2006. On 21 March, testimony was taken from Superintendent Riley, Deputy Superintendent Steven Nicholas (“Deputy Chief Nicholas”), and Lieutenant Joseph Waguespack. Lieutenant Wagues-paek was assigned the PIB investigation of Lieutenant Hines on 29 September 2005 and submitted his report on 5 December 2005. He knew that all of Lieutenant Hines’ personnel were also investigated, but those investigations were dropped because the personnel were following the orders of Lieutenant Hines. Lieutenant Waguespack was advised that all but four of the DDD left with Lieutenant Hines; the four remaining patrolmen were reassigned. In his statement, Lieutenant Hines said that on 31 August he heard a radio broadcast that the water was rising quickly and everyone was going to die. After he heard that, he reported the information to his rank. He took full responsibility for ordering his people to leave the city because he feared for their safety. While he also admitted that he had not received permission from a superior to leave, he did state that he had made several attempts to contact his captain.

Lieutenant Waguespack stated that from his own experience, he never had a problem contacting a ranking officer. He also stated that he had no difficulty finding food and housing for his own personnel. He also admitted that no one who worked for him had any serious health problems. After the first few days, he was able to obtain prescriptions through the commander of the 4th District.

In his testimony, Chief Riley recalled that the disciplinary recommendation was a 30-day suspension and demotion for the neglect of duty count and a 45-day |fisuspension for the moral conduct (truthfulness) count. Chief Riley changed the discipline to termination. His decision to do so was based on the fact that Lieutenant Hines left the city during a tragic time without permission of a superior, that he abandoned some of his personnel, and because he did not think that Lieutenant Hines would be able to effectively lead any command as either a sergeant or lieutenant. Chief Riley stated that there was absolutely no reason to leave the city when the NOPD needed everyone to be here. Under questioning by Lieutenant Hines’ attorney, Chief Riley admitted that all he reviewed was the PIB report in making his decision.

The final witness on 21 March 2006 was Steven Nicholas, Deputy Superintendent, and Chief of Operations. In support of the truthfulness violation, Deputy Chief Nicholas said that Lieutenant Hines’ statement that he could not find four of his officers was contradicted by the four officers’ statements. In particular, because the officers knew Lieutenant Hines was leaving, Lieutenant Hines must have known where they were. In addition, the statements from those officers indicated that Lieutenant Hines was in a “panic mode” when he left the city. He was allegedly shaking the officers, asking if they wanted to die. Deputy Chief Nicholas admitted, however, that as a result of the PIB report, there was no untruthfulness allegation.

In testifying about the neglect of duty charge, Deputy Chief Nicholas stated that Lieutenant Hines’ disappearance put citizens in danger and his superiors did not know if something had happened to him. This was a situation that was going to be dealt with severely. Also taken into account was the fact that Lieutenant Hines took other officers with him when he abandoned his post. Lieutenants and captains were being held to a higher standard than ordinary police officers.

|7Peputy Chief Nicholas admitted that the PIB file contained only the statement of Lieutenant Hines; no other formal or written statements were taken. In support of the moral conduct charge, Chief Riley relied solely on what Deputy Superintendent Marlon A. Defillo told him.

On the second day of the hearing, four witnesses testified: Officer Lawrence Hall, Jr.; Captain Kevin Anderson, the commander of the 8th District and Lieutenant Hines’s supervisor; Sergeant Berger; and Lieutenant Hines. Officer Hall was one of the officers under Lieutenant Hines’ command and one of the four officers who did not leave the city. He stated that at approximately 11:00 a.m. on 31 August 2005, he was assisting another officer in attempts to control looting on Canal Street. Officer Rhonda Hill, also with the DDD, told him that Lieutenant Hines and Sergeant Berger wanted to see him. When he went over to the police car parked in front of the Sheraton, he also saw Officer Stephens. Officer Hall admitted that he spoke only with Sergeant Berger who was standing under the canopy of the hotel; Lieutenant Hines remained in the car. Officer Hall testified that all Sergeant Berger said was, “Get your gear, you’re on your own.” No one told him where they were going, but Officer Hall told him that they were leaving the city. He said that he was not asked to leave with them but would not have left. He testified that prior to this time he was able to get food from the 8th District and from across the river.

The next witness was Captain Anderson. Lieutenant Hines had been selected by him to be in charge of the DDD. At no time did he authorize Lieutenant Hines to take his unit outside the city of New Orleans. He testified that he did not have any difficulty obtaining necessary food, shelter, or other supplies, including medication, for the members of his unit. In fact, he had already taken in |sa captain and 18 to 20 officers who were assigned to the Ernest Morial Convention Center. Because the Omni Royal Hotel let the NOPD use the entire hotel and its food supplies, Captain Anderson stated that they probably did better than most in terms of supplies. He claimed that Lieutenant Hines never approached him for food or supplies. Captain Anderson stated that he no longer had confidence in Lieutenant Hines’ ability to lead other officers.

Captain Anderson said that on 31 August 2005, he was approached by Officer Hall, who stated that his rank had left and asked to be attached to the 8th District. Thereafter, the three other DDD officers were housed at the Omni Royal Hotel, the 8th District’s de facto headquarters, and all four began working under him.

Sergeant Berger was the next witness. He stated that at no time did he witness any acts of cowardice by Lieutenant Hines. No one from the 8th District ever invited them to the Omni Royal Hotel.

After the storm had passed, the DDD was assigned the job of removing looters from all of the Canal Street stores. Sergeant Berger said it was dangerous work because they did not have enough weaponry and the stores were dark. When they went to the Omni Royal Hotel and saw that the officers were heavily armed, Lieutenant Hines asked for a shotgun to continue the job of stopping looters. Sergeant Berger said that he did not get one. Lieutenant Hines told Captain Anderson that the 2nd District was moving across the river, but Captain Anderson already knew that. However, the news that the 2nd District was pulling out [ ¡¿Tightened Sergeant Berger because the water was rising quickly and he was concerned that their cars would be flooded.

The DDD also went to the 4th District in Algiers. Sergeant Berger said that they sat outside of the station for about an hour. From what he understood, the 4th District was hoarding their supplies; there were a lot of people there because the area did not flood and he believed that the 4th District was worried about running out of provisions for themselves.

Consequently, the DDD returned to the downtown area of New Orleans. When asked why the DDD did not move into the Omni Royal Hotel with the rest of the 8th District, Sergeant Berger explained that there had always been animosity towards the DDD. In addition, because the 8th District did nothing to assist the DDD with the looting problem, the DDD did not believe that the 8th District would do anything for them at all. In addition, Sergeant Berger stated:

The department may try to portray this as they were prepared and everything was hunky-dory, and I’m telling you it was not. No kind of way no how was it hunky-dory. It was screwed up.

On 31 August 2005, after the DDD was without housing, Sergeant Berger and Lieutenant Hines returned to the Omni Royal Hotel to locate Captain Anderson. They were told at the hotel that there were no more rooms available. Lieutenant Hines then told Sergeant Berger of his worsening medical situation caused by a shortage of prescription medication. It was approximately 1:00 p.m. in the afternoon when the decision to leave was made. The plan was to go to Baton Rouge, stock up on food, water, weaponry, prescription medication, and |inother supplies, and then return to New Orleans to resume patrols. Lieutenant Hines could have left alone, but took his unit as he feared for their safety.

Sergeant Berger was asked about the statement made by Officer Hall that Sergeant Berger told him: “You’re on your own.” Sergeant Berger testified that he never said that to Officer Hall. Instead, he told Officer Hall to grab his stuff and meet the DDD at Canal and St. Peters Streets. Officer Hall said “okay” and walked into the Sheraton Hotel. Sergeant Berger did not see him again. Sergeant Berger also stated that he did not have any communications with Officer Dupre on 31 August 2005. Although they did not leave with Lieutenant Hines, Sergeant Berger stated that Officers Parker and Carter eventually left the city because he spoke with them while they were both in Houston, Texas.

The final witness at the hearing was Lieutenant Hines. On the Sunday before Hurricane Katrina struck, 28 August 2005, Lieutenant Hines took the responsibility of locating housing for his personnel after discovering that the 8th District had failed to do so. As a result, the DDD personnel were in at least three different hotels in the downtown area. Lieutenant Hines explained to his command that they would be working 12-hour shifts and that the shift on duty would remain on the streets patrolling their area until the weather became bad. At that point, the officers were ordered to return to the hotel rooms that Lieutenant Hines had secured for their benefit.

Hurricane Katrina passed through New Orleans on 29 August 2005. The following morning, Lieutenant Hines received word that looting was taking place on Canal Street and he immediately summoned his unit. Initially, it was only DDD officers fighting with looters while wading in knee-high water. Lieutenant Hines and his officers broke off into small groups; each took a different block, moving up |1¶ Canal Street to Rampart Street. Eventually, they had cleared the businesses on both sides of Canal Street and the looters were disbursed. With limited periods of rest, DDD officers continued to deal with looters throughout the day of 30 August, during which time the water rose higher. Lieutenant Hines made several attempts to locate Captain Anderson.

During the early evening hours of 30 August, Lieutenant Hines arrived at the 8th District Station on Royal Street in the French Quarter. He saw that several members of the district were barbequing and requested food for his unit. He was refused food, but was told that he could find Captain Anderson at the Omni Royal Hotel. Lieutenant Hines went to the hotel but could not locate his supervisor. He saw, however, that the 8th District officers at the hotel were armed with machine guns and shotguns, and had task force and detective unit personnel available. When he requested help in dealing with the looting on Canal Street, he was told that Captain Anderson had told them to stay at the hotel.

That evening, Sergeant Berger heard over his radio that the 2nd District was likely going across the river to Algiers and relocating at the 4th District Station. He told Lieutenant Hines, who decided to relocate there as well. Lieutenant Hines summoned his personnel, loaded their police vehicles and went to the 4th District Station. Upon their arrival, they were refused food and aid. Lieutenant Hines became concerned for the safety and welfare of his personnel. While his people remained at the 4th District Station, Lieutenant Hines and Sergeant Berger again attempted to locate Captain Anderson. Lieutenant Hines wanted direction for obtaining food and shelter for his officers.

A few hours later, Lieutenant Hines and Sergeant Berger found Captain Anderson at the Omni Royal Hotel. The DDD was instructed to monitor the rising |12water situation on Canal and Tchoupitoulas Streets until 9:00 a.m. the next day. Lieutenant Hines returned to the 4th District Station to gather his unit and returned to downtown New Orleans to carry out the assignment. When the assignment ended the next morning, Lieutenant Hines went to his room at the J.W. Marriott Hotel to find that the hotel was closing due to rising water in the rear of the hotel.

Lieutenant Hines returned to the Omni Royal Hotel to locate Captain Anderson, but again was unsuccessful. His last attempt was at approximately 1:30 p.m. on 31 August. At this point, Lieutenant Hines made a decision to make a run to Baton Rouge to retrieve food, water, communications equipment, weapons, and medicine for medical problems from which he suffered. He told an officer at the Omni Royal Hotel of his intentions and asked that Captain Anderson be informed. It was at this time that Lieutenant Hines and most of the unit left the city.

After reviewing the record before us, we find that the CSC was manifestly erroneous and clearly wrong in accepting the NOPD’s recommended termination of Lieutenant Hines. We agree that Lieutenant Hines neglected his duties by leaving the city after the storm. However, we find that termination from the department is excessive after 23 years of unblemished service with the NOPD. It is uncontested that Lieutenant Hines left his post without permission, although the testimony indicates that he tried to contact his supervisor to explain his actions and his concern for the safety of his personnel and his personal medical problems. However, Lieutenant Hines returned to the city with most of his personnel in less than 4 days and was prepared to resume his duties. Lieutenant Hines’ testimony was supported by Sergeant Berger’s in all respects.

As for Lieutenant Hines’ alleged untruthfulness, we find the record insufficient to sustain this charge. Other than the testimony of Officer Hall, there |iaare no statements on which the NOPD can base its decision. Even Officer Hall admits that he never spoke with Lieutenant Hines and no evidence exists to support the claim that Lieutenant Hines knew where the other officers were located. Chief Riley admitted that he relied solely on the PIB report. The testimony also reflects that the PIB report did not support a finding that Lieutenant Hines was untruthful when he gave his statement during the investigation and Chief Riley relied on one of his deputy superintendents to find out what the investigation revealed.

Therefore, we set aside the termination ordered by the CSC and the suspension for forty-five days for Lieutenant Hines’ asserted untruthfulness, but affirm the demotion of Lieutenant Hines from lieutenant to sergeant and the imposition of a suspension of thirty days for the violation of neglect of duty. In doing so, we take into consideration the fact that Lieutenant Hines was commander of the DDD and took most of his unit with him when he left the city.

Accordingly, we reverse the decision of the CSC and render judgment as outlined above.

REVERSED AND RENDERED.

      . Lieutenant Hines testified that he could not find four of his officers so he left without them. However, the NOPD contends that the officers went to Captain Anderson stating that they did not think it was right for Lieutenant Hines to leave his assignment and the city. The NOPD argues that since the officers knew that Lieutenant Hines was leáving, Lieutenant Hines knew where these four officers were located.

      . Sergeant Berger went to Texas to check on his family, obtained supplies, and returned with Lieutenant Hines on 3 September 2005.

      . These other officers were Sam Dupre, Sean Carter, and John Parker.

      . The record reflects that the 3rd District went to Baton Rouge.

      . Lieutenant Hines suffers from acute gout, an irregular heartbeat, high blood pressure, and acid reflux. In all, he takes five different prescription medications every day.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. JONES, J.,

license: Public Domain

text:
    Pinckney A. WOOD (President, Coalition of Louisiana Animal Advocates) v. Bob DEL GIORNO, WWL AM, and Sinclair Communications, Inc.
    No. 2006-CA-1612.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Pinckney A. Wood, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Edwin W. Fleshman, Taylor Porter Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD).'
   EDWIN A. LOMBARD, Judge.

Un this defamation action, Plaintiff appeals the judgment of the district court, which granted Summary Judgment in favor of the Defendants, and denied Plaintiffs Motion for Summary Judgment. Our de novo review of the record supports the district court’s judgment. Accordingly, we affirm.

Relevant Facts

The relevant facts of this case are not in dispute. Plaintiff, Pickney Wood (“Wood”), a humane rights advocate and educator, wrote to the producers of the Andre’ Trevigne Show, a radio talk show which aired on WWL AM in New Orleans, hoping to be invited as an in-studio guest to discuss the topic of “canned hunts” on the air. The show’s producers contacted Wood and invited him to be a guest on the October 27, 1997 broadcast of the show. The normal format of the show was to have someone present a topic and then have listeners call in with comments or questions.

Wood was there representing the Coalition of Louisiana Animal Advocates, a nonprofit charity over which he was acting as president. Bob Del Giorno (“Del Giorno”), an avid hunter and outdoorsman, who is an employee of WWL and host Lof WWL’s morning show, also joined the show as an on-air guest to give his opposing opinion on the topic. Things became heated during the show as Del Giorno and Wood argued their positions back and forth. Del Giorno continuously interrupted and contradicted Wood and made several rude comments to and/or about Wood including: “The man is a fraud. He is a complete fraud!;” “Everything you’ve said so far is out-and-out lying!;” and, “You’re an idiot!” Wood, too, made some comments back to Del Giorno.

A year later, Wood filed suit against Del Giorno, WWL AM, and Sinclair Communications, Inc. (“Sinclair”) (“collectively referred to as Defendants”), alleging that Del Giorno’s comments were defamatory and that he is entitled to damages. Wood alleged that WWL and Sinclair were liable because they did nothing to make amends for Del Giorno’s alleged defamatory remarks. Wood then filed a motion for summary judgment arguing that Del Giorno’s comments constituted “defamation per se.” In response, Defendants filed a cross-motion for summary judgment asserting that Wood’s claim did not satisfy the elements required for a defamation action. The trial court heard the motions simultaneously and ultimately denied Wood’s motion while granting the Defendant’s motion. The court found that Del Giorno’s comments did not rise to the level of defamation per se and that his comment that Wood was an absolute fraud was not intended to accuse Wood of a crime. The court denied Wood’s motion for reconsideration. This appeal followed.

Law and Argument

In his appeal, Wood argues that the trial court erred in denying his motion for summary judgment because there was no genuine issue of material fact at issue and that Del Giorno’s comments were defamatory per se. Wood also argues that | sthe trial court erred in granting Defendant’s cross motion for summary judgment. Specifically, Wood argues that the Del Giorno’s words were defamatory, Del Giorno is not entitled to the media defendant privilege, and that Del Giorno acted with actual malice. In the alternative, Wood argues that because discovery was not complete, the matter was not ripe for summary judgment.

Standard of Review and Summary Judgment Standard

Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. Summary Judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). Summary judgment is favored under our law and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Civ. Proc. art. 966(A)(2).

Moreover, because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669. The Louisiana Supreme Court has held that “summary adjudication is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.” See Id. p. 25, 935 So.2d at 686.

Defamation

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139; Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715; Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559; Sassone v. Elder, 626 So.2d 345, 350 (La.1993). A successful claimant in a defamation action must establish the following elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Trentecosta, 96-2388, p. 10, 703 So.2d at 559. The fault requirement is often set forth in the jurisprudence as malice, actual or implied. See Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La.1980). If even one of the required elements of the tort is lacking, the cause of action fails. Costello, supra; See also, Douglas v. Thomas, 31,470, p. 3 (La.App. 2 Cir. 2/24/99), 728 So.2d 560, 562, writ denied, 99-0835 (La.5/14/99), 741 So.2d 661; Kosmitis v. Bailey, 28,585, p. 2 (La.App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180. Even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified. Doe v. Grant, 01-0175, p. 9 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 416, writ denied, 03-0604 (La.5/2/03), 842 So.2d 1102.

Wood contends that Del Giorno’s remarks, specifically his references to Wood as a liar and a fraud, are defamatory per se, or are, at the very least susceptible to defamatory meaning, since they tend to harm his professional reputation as an advocate and educator.

Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Kosmitis, 28,585 at p. 4, 685 So.2d at 1180; Lemeshewsky v. Dumaine, 464 So.2d 973, 975 (La.App. 4 Cir.1985). When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Kosmitis, 28,585 at p. 4, 685 So.2d at 1180.

The trial court found that Del Giorno’s comments did not rise to the level of per se defamation. The court specifically held that Del Giorno’s comment that “He is an absolute fraud” is “not in the context of accusing Plaintiff of a crime.” We agree with the trial court. Del Giorno made no reference to any criminal offense on the part of Wood. Del Giorno’s reference to Wood being a fraud, or a liar, does not necessarily imply, in the mind of a listener of ordinary intelligence and sensitivity, that Wood is guilty of the crime of fraud. Moreover, we do not believe that Del Gior-no’s comments are of the type that would, by their very nature, injure Wood’s personal or professional reputation as a humane rights advocate or educator. Thus, for these reasons, we find that Del Gior-no’s references to Wood as a fraud and a liar are not defamatory per se. Accordingly, we find that the trial court’s judgment denying Wood’s Partial Motion for Summary Judgment on the issue of defamation per se was correct.

We now turn to the question of whether Del Giorno’s remarks, taken in context, were susceptible of defamatory meaning. Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Fitzgerald, 98-2313, p. 11, 737 So.2d at 716; Trentecosta, 96-2388, p. 10, 703 So.2d at 559. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Fitzgerald, 98-2313, p. 11, 737 So.2d at 716. The |F,question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Sassone, 626 So.2d at 352. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Id.

Defendants concede that Wood was treated very rudely by Del Giorno, but argue that Del Giorno’s comments were not defamatory. Defendants contend that, considering the context of the situation wherein the comments were made, any reasonable person listening to the show would not believe that Del Giorno was actually accusing Wood of engaging in fraudulent behavior or dishonest business practices. Defendants argue that Del Giorno’s comments about Wood were merely opinions or hyperbole, rather than facts, and are therefore, not actionable. We agree.

The First Amendment freedoms afford, at the very least, a defense against defamation actions for expressions of opinion. Cooksey v. Stewart, 41,336, p. 7 (La.App. 2 Cir. 8/23/06), 938 So.2d 1206, 1211. A pure statement of opinion, which is based totally on the speaker’s subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation. Id, citing Bussie v. Lowenthal, 535 So.2d 378 (La.1988). Falsity is an indispensable element of any defamation claim, and a purely subjective statement can neither be true or false. Id. p. 1211-1212. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the speaker did not intend to assert another objective fact but only his personal comment on the facts which he had stated. Id. p. 1212. The crucial difference between statement of fact and opinion depends on whether ordinary persons shearing the statement complained of would be likely to understand it as an expression of the speaker’s opinion, or as a statement of existing fact. Mashburn v. Collin, 355 So.2d 879, 885 (La.1977).

In considering the type of speech that falls beyond that which can support a defamation action, the United States Supreme Court has recognized that speakers may use language that is insulting, offensive, or otherwise inappropriate, but constitutes no more than “rhetorical hyperbole.” Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Statements that are mere hyperbole cannot reasonably be understood to convey a false representation of fact. See Milkovich, 497 U.S. at 16-17, 110 S.Ct. 2695.

Del Giorno’s remarks to and about Wood were based upon his subjective view and no underlying facts were either stated or implied. Clearly, in the context that they were made, the remarks were nothing more than opinions and hyperbole. Del Giorno’s reference to Wood as an “idiot,” for example, in the context of a heated discussion over a controversial topic, is merely an opinion and is not be likely to be understood by a normal listener to convey the false idea that Wood lacks normal mental capacity. Similarly, Del Giorno’s remarks that Wood is a fraud and a liar cannot be understood to convey to the average listener that Wood is a person lacking moral character or untruthful in his business practices. It is unlikely that Del Giorno’s remarks would have the effect of lowering Wood in the estimation of the community, of deterring others from associating with him, or |sotherwise exposing him to contempt or ridicule. The remarks were plainly abusive words not intended to be taken literally as statements of fact. Accordingly, we find that Del Giorno’s remarks, while rude and insulting, are not defamatory.

Moreover, even if Del Giorno’s comments could be considered defamatory, they are protected speech and are subject to a qualified privilege under the test of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which balances the freedom of expression against the right to defend against defamation. In cases involving statements made about a public figure, the Sullivan Court held that a plaintiff must prove actual malice, that is that the defendant either knew the statement was false or acted with reckless disregard for the truth. Id. The Sullivan Court noted that “debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on public officials.” Sullivan at 721.

In the cases that followed Sullivan, the Supreme Court broadened the scope of the constitutional privilege from “public officials” to “public figures,” including “limited purpose public figures.” See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). A limited purpose public figure is an individual who voluntarily injects himself into a particular public controversy, such as by “inviting attention and comment,” and thereby becomes a public figure in connection with that subject. See Trotter v. Jack Anderson Enterprises, Inc., 818 F.2d 431 (5th Cir.1987).

We find that pursuant to Sullivan and its progeny, Wood became a limited purpose public figure when he agreed to be on the Andre’ show to discuss and |fldebate the controversial topic of canned hunts and to represent his animal rights organization. The topic of canned hunts was a matter of public concern, which is evident by the fact that listeners of the Andre’ show that day were interested enough in the topic to call in and comment on the issue. Because Wood was a limited purpose public figure, the actual malice standard must be applied in determining the Defendants’ liability. Here, Wood presented no credible evidence that Del Gior-no acted with “actual malice” in making the comments. Without this showing, Wood cannot succeed in prosecuting this action against the Defendants. Accordingly, even if the comments were defamatory, which we deny, the district court did not err in granting Defendants’ motion for summary judgment.

Wood finally attempts to avoid summary judgment by suggesting that additional discovery is needed to determine his status as a limited purpose public figure, Del Giorno’s status as a media defendant, and the topic of canned hunts as a matter of public concern. This argument is unpersuasive since Wood has not shown that further discovery would produce any new evidence creating an issue of fact. Because there are no material facts at issue, this matter was ripe for summary judgment.

Having found, as we do above, that Wood has not been defamed by the comments made by Del Giorno, we affirm the judgment of the trial court granting summary judgment to defendants and in denying plaintiffs motion for summary judgment. There are no genuine issues of material fact and the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff, Pickney Wood.

AFFIRMED.

JONES, J., dissents in part and concurs in part.

JONES, J.,

dissents in part and concurs in part.

|-i The trial court and now this Court, in considering defendant’s motion for summary judgment, have determined the intent of a party. If intent is not fact based, what is? Further, intent is so fact intensive that it clearly lends itself to a determination that genuine issues of material fact preclude the granting of summary judgment in this matter.

Further, I would correct the procedural error of plaintiff. He seeks to appeal the denial of his motion for summary judgment. Our review of a denial of a motion for summary judgment is under our supervisory judgment. Thus, as to the appeal of the denial of the plaintiffs motion for summary judgment, I would convert the appeal to a writ application for supervisory writ, and deny his writ application. In this regard I am in concurrence with the majority.

      . Canned hunts are commercial enterprises wherein animals are kept in fenced enclosures and "hunted” and killed by paying customers.

      . Examples of hyperbole include referring to the negotiating position of a real estate developer as "blackmail,” Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 13-14, 90 S.Ct. 1537, 1541-42, 26 L.Ed.2d 6 (1970), defining a labor union "scab” to be a "traitor,” Nat. Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745 (1974), or publishing a parody of an advertisement referring to a public figure, Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988). In each of these instances, no reasonable inference could be drawn that the individual identified in the statements, as a matter of fact, engaged in the conduct described.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Larry J. VIATOR, Sr. v. DAUTERIVE CONTRACTORS, INC. and Western Geophysical Company of America, Inc.
    No. 07-CA-585.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.
    Rehearing Denied Jan. 22, 2008.
    Samuel D. Abraham, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant.
    Vallerie L. Oxner, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| /This is an appeal by Larry Viator, plaintiff-appellant, from a judgment sus-taming an exception of no right of action urged by Magnolia Quarterboats, Inc., third party defendant-appellee. For the following reasons we set aside the judgment on the exception and remand the matter for further proceedings.

The underlying facts are straightforward. Magnolia is in the business of providing barges equipped with living quarters to companies needing maritime housing for employees. In this case it entered into a bareboat charter for a barge with Western Geophysical. This company in turn contracted with Dauterive Contractors, Inc. for certain work, and Viator, the plaintiff, was employed by this latter company.

In 1997 Viator fell while getting out of a four foot high bunk bed on the barge and alleges serious injuries. He sued Dauterive and Geophysical for these damages. It appears that Dauterive was bankrupt, and the action proceeded against Geophysical. In November of 2002, Geophysical filed a third party demand |sagainst Magnolia alleging that under the bareboat charter, Magnolia was required to indemnify it for Viator’s damages.

Prior to trial Geophysical settled with Viator for $250,000, and an assignment of its third party demand for indemnification against Magnolia. Viator then substituted himself for Geophysical on this claim. Magnolia urged an exception of no right of action against Viator’s indemnification claim, which was granted. Geophysical then substituted itself for Viator on the same claim and Magnolia successfully urged an exception of no right of action against Geophysical as well. Viator now appeals both judgments.

The inquiry on an exception of no right of action is whether the particular plaintiff has a right to bring the suit. Badeaux v. Southwest Computer Bureau, Inc. 2005-0612 (La.3/17/06), 929 So.2d 1211. Clearly, Geophysical as a party to the bareboat charter at issue had a right to bring suit on the contract. The remaining question is whether this right is assignable. Article 2642 of the La. Civil Code provides as follows:

All rights may be assigned, with the exception of those pertaining to obligations that are strictly personal. The assignee is subrogated to the rights of the assignor against the debtor.

Comment (b) notes that under this article an assignment is valid even without the consent of the debtor since as a general rule the identity of the creditor should be immaterial to the debtor who owes the performance involved.

Here, the assigned right grows out of an indemnification clause in the bareboat charter:

Owner shall hold harmless and release Charterer from any liability for and will indemnify and defend Charterer for any claims brought against the Charterer by the Owner’s employees, agents, officers, or their contractors, subcontractors, or representatives of any of them for personal injury or death, or other damages including property damage or loss caused or resulting from actions of owner’s personnel, or for unseaworthiness, strict | pliability, or punitive damages, and whether they arise out of the sole or concurrent negligence or fault of Charterer.

This clause does not involve any obligation that is strictly personal and therefore it is assignable. Thus, Viator is now the party with a right to" sue under that clause in the charter, and the judgment sustaining the exception of no right of action must be set aside. Because of this ruling, the appeal of the second judgment at issue sustaining Magnolia’s exception of no right of action against Geophysical is rendered moot.

We note that we make no determination here as to whether this clause pertains to the alleged facts, or whether and to what extent Viator suffered injuries compensa-ble by Magnolia under the clause or under any other theory of the case. Those issues are yet to be determined in the district court.

For the above reasons the judgment sustaining the exception of no right of action as to Larry Viator is set aside and the matter is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENT SET ASIDE; REMANDED FOR FURTHER PROCEEDINGS.


author:
      AMY, Judge.
      COOKS, J.,

text:
    Carl MOSS v. Ronald GIFFORD.
    No. 07-800.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 2007.
    Rehearing Denied Jan. 30, 2008.
    W. Thomas Barrett, III, Lake Charles, LA, for defendant/Appellee, Ronald Gif-ford.
    Carl Moss, Lake Charles, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

LThe plaintiff filed a petition for specific performance, alleging that he and the defendant executed a contract for the purchase of property and that the defendant breached that contract. The defendant filed a motion for summary judgment in response, denying the execution of the contract. The trial court granted the motion for summary judgment, dismissing the plaintiffs claims. The plaintiff appeals. We affirm.

Factual and Procedural Background

The plaintiff, Carl Moss, alleges that he entered into a contract to purchase immovable property from the defendant, Ronald Gifford, on December 16, 2006 and that he made a $100.00 payment toward the purchase of the property. He contends that the following day the defendant attempted to “back-out of the purchase.”

The plaintiff and his mother filed an initial complaint in Lake Charles City Court advancing their claim of a valid contract and seeking “$2,000.00 in damages for breach of agreement and being removed from said property plus for the original agreement of the sale to be maintained with legal interest and all costs of court.” The plaintiff also filed a petition in the Fourteenth Judicial District Court, again asserting the existence of a contract for the purchase of the property and seeking its enforcement, damages, and court costs. The trial court treated the matters as consolidated.

In response to the plaintiffs claim, the defendant filed a motion for summary judgment, denying the existence of a contract of sale and supporting the 'motion with the following documents: 1) Exhibit A, a typewritten “Buy/Sell Agreement”; 2) Exhibit B, a $100.00 personal check; 8) Exhibit C, a handwritten document bearing a “Buy/Sell Agreement” notation; and 4) Exhibit D, the affidavit of the defendant ^denying the execution of the buy-sell agreement. Although the record does not contain a formal opposition to the motion for summary judgment filed by the plaintiff, it contains his subsequently filed affidavit wherein he asserted that the handwritten document constituted a buy-sell agreement.

At the hearing on the motion for summary judgment, the defendant’s attorney presented the exhibits listed above, noting that the typewritten agreement does not bear the signature of either party and that, although the plaintiff presented the defendant with a $100.00 check, it was not negotiated. Thus, the defendant asserted there was no written contract for the subject property. With reference to Exhibit C, the handwritten document, the defendant’s counsel explained that the document was a receipt for the $100.00 check which had not been negotiated. As in his affidavit, the plaintiff argued that the handwritten document constituted a valid buy-sell agreement.

The trial court found in favor of the defendant, noting that the handwritten document contained the defendant’s signature only at the top of the document in connection with the $100.00 check, and did not contain the defendant’s signature after the remainder of the document. The trial court granted the defendant’s motion for summary judgment, dismissing the plaintiffs claims.

The plaintiff appeals.

Discussion

The plaintiff argues that genuine issues of material fact exist with regard to whether the handwritten document, the plaintiffs Exhibit C, is a valid buy-sell agreement. See Appendix A (as it appears in the record and as attached to the plaintiffs affidavit filed in Lake Charles City Court).

^Louisiana Code of Civil Procedure Article 966(B) instructs that a summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” An appellate court reviews a summary judgment de novo, using the same criteria that governed the trial court’s consideration of the motion below. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544. Having reviewed the parties’ submissions under this standard, we find that the trial court correctly entered summary judgment.

The defendant, as the movant on the motion for summary judgment, alleged that the plaintiff would be unable to prove the existence of a valid buy-sell agreement. See La.Code Civ.P. art. 966(C)(2). The defendant also presented documents surrounding the alleged sale. The plaintiff does not argue that the typewritten, but unsigned, buy-sell agreement constitutes a valid contract as it was not signed by either party. Further, the insufficiency of the document is confirmed by reference to La.Civ.Code art. 2440, which provides that “[a] sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839 .”

| ¿The defendant also presented the handwritten document relied upon by the plaintiff. However, we find that, on its face, the handwritten document is insufficient as a buy-sell contract for immovable property. The defendant’s signature is contained only as an acknowledgment of a receipt of a check. The receipt itself lacks specificity with regard to the terms of any underlying contract. Significantly, the defendant’s signature is not contained beneath the subsequent, “buy/sell” portion of the document.

In addition to the particular requirement for a sale of an immovable, we note that La.Civ.Code art. 2439, which provides the general definition of a sale, indicates that “[t]he thing, the price, and the consent of the parties are requirements for the perfection of a sale.” Again, given the placement of the signatures, the element of consent as to all of the elements contained thereunder is lacking.

The plaintiff presented no further factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proving a valid contract of sale between the parties for the property in question. See La.Code Civ.P. art. 966(C)(2).

For these reasons, the trial court properly granted the defendant’s motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the appellant, Carl Moss.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

Jl

COOKS, J.,

dissenting.

[4 respectfully dissent from the majority opinion finding the handwritten document does not contains all the elements necessary for a valid contract to sell. The majority relies on Mr. Gifford’s “argument” that his signature only evidences a receipt for $100 and finds the handwritten document “lacks specificity with regard to the terms of any underlying contract.” I respectfully disagree. The handwritten document contains the three elements necessary for a valid contract to sell — the thing, the price and the signature of both parties. The only real factual dispute is whether the price was written on the document prior to Mr. Gifford’s signature. What Mr. Gifford says he intended when he signed the document is immaterial and inadmissible.

At the hearing, Mr. Moss explained.the parties had been negotiating for the purchase of the property “probably two months on the phone coming up with the original buy/sell agreement [the type-written document].” He explained how the handwritten document evolved:

[T]he buy-sell agreement that he showed you was the original agreement that we negotiated over the phone, but whenever I went to actually purchase the property at Mr. Gifford’s home, some facts had changed. So, he didn’t want that particular contract, he wanted some things removed, which we did in that [handwritten] agreement. And then we signed that agreement.

Mr. Moss stated the document was signed in that way because that was “the progression of the way we did our deal.”

| j>,The handwritten buy/sell agreement identifies the property as 2427 Rose Street with the purchase price of $15,000. This agreement contains the terms and conditions of the final sale and is signed by both parties. Mr. Moss signed the agreement below the terms evidencing his intent to purchase the property. Mr. Gifford signed the agreement above the terms, accepting Mr. Moss’ $100 deposit toward the purchase of the property.

Mr. Gifford does not seriously dispute that the document is a writing. His lawyer simply argues his signature on the handwritten document merely evidences a “receipt” acknowledging he took possession of Mr. Moss’ $100.00 and nothing more. He contends this “receipt” is insufficient to constitute a valid buy/sell agreement because he did not sign below the portion which contains the terms and conditions of the buy/sell agreement. The majority finds the absence of Mr. Gifford’s signature at the bottom of the document is fatal to Mr. Moss’ position that a valid buy/sell agreement was executed. I disagree.

There is no specific format or layout for a buy/sell agreement and, as Mr. Moss states, it “could have been put on a piece of toilet tissue” if it memorializes the parties intent in writing. As noted, a valid contract to sell requires three prerequisites: the thing, the price and the consent of the parties.

In this case, the agreement was handwritten, described the thing to be sold as 2427 Rose Street and states the purchase price of $15,000. The fact that Mr. Moss’ consented to purchase the property at that price is clearly evidenced by his signature appearing at the bottom of the document.

Mr. Gifford’s signature at the top of the document and his acceptance of the $100 “toward purchase of 2427 Rose St.” confirms his acceptance of the terms of the contract. The placement of Mr. Gifford’s signature at the top of the instrument rather than at the bottom is not sacrosanct or legally fatal to the validity of the agreement. [aA reasonable fact finder could conclude that there is no other explanation for Mr. Gifford to take Mr. Moss’ deposit and place this notation on the document other than he consented to sell the property on the terms and conditions contained in the agreement. See La.Civ.Code art. 2624. The insufficiency of the form of acceptance may not be determinative of whether the contract is valid. “Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.” La.Civ. Code art.1927. I do not believe the absence of the words “I agree to sell” is fatal to this ease if the consent of the seller can be discerned from an examination of the instrument. In Tullis v. Aertker, 352 So.2d 415, 418 (La.App. 3 Cir.1977), the issue arose as to whether the seller had agreed to the sale of the property when the only evidence of his consent was his signature on a receipt. This court found a receipt may indeed evidence a thing to be sold and the consent, stating:

It is settled that a receipt for all or part payment of the purchase price is sufficient to satisfy the requirements of LSA-R.C.C. Articles 2440, 2462 and 2275 if such writing adequately sets forth the three necessary elements, i.e., the thing sold, the price, and the consent.
In the instant case the consent of the parties is clear. Mr. Aertker’s consent is evidenced by his signature on the receipt. Mrs. Tullis’ consent appears from the fact that following execution of the agreement of November 2, 1963 she moved onto the premises which she has continued to occupy and by the fact that she faithfully made the monthly payments as provided for in the agreement.

Mr. Gifford does not assert his consent was vitiated by error, fraud, or duress. La.Civ.Code art.1948. In support of his motion for summary judgment, Mr. Gif-ford offers only the type-written, unsigned document and his affidavit. Further, his affidavit addresses only the unsigned document and does not refute any of the issues raised by Mr. Moss regarding the progression of the transaction or Mr. Gifford’s signature on the handwritten agreement. Mr. Gifford’s counsel, however, at the summary judgment hearing, verbally dismissed the handwritten agreement by | implying the terms were written after Mr. Gifford signed what he characterized as a “receipt.” When Mr. Moss stated he had a witness who could testify regarding the circumstances surrounding Mr. Gif-ford’s signature on the document, the trial court found such evidence would not be admissible. Louisiana Civil Code Article 1848 provides, in part: “Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature.” It does not appear, however, that Mr. Moss was attempting to negate or vary the terms of the agreement. He was seeking to introduce evidence of the progression of the transaction and present a witness who may have been present at the time Mr. Moss wrote the terms and conditions of the agreement on the document and Mr. Gifford signed it. Mr. Moss’ need to introduce evidence regarding the transaction was prompted by Mr. Gifford’s counsel’s argument for the first time at the hearing that the handwritten document was “a totally separate concoction of whatever nature that Mr. Moss [wrote] underneath Mr. Gifford’s signature.” He stated, as well: “And as you can see, Mr. Gifford signs underneath the receipt. Then in a totally different handwriting Mr. Moss writes in something and fills it out. So, Mr. Gifford gives him a receipt and this is what Mr. Moss does with this receipt.” The trial court did not allow Mr. Moss to present evidence to refute these unsupported statements made by defense counsel. In fairness, the trial court was correct in barring this testimony at the summary judgment hearing. Evidence supporting or objecting to the motion must be submitted by countervailing affidavit and/or other written documents or exhibits prior to the hearing. Although I do not believe the trial court’s decision to grant the motion ultimately rested on the “disputed facts” at the hearing concerning the circumstances leading up to the signing of the agreement, I note this evidence maybe relevant and admissible at trial on the merits. Mr. Moss astutely noted he would have submitted evidence refuting defense counsel’s argument had he been aware of the |fidefense’s position prior to the motion. Argument of counsel is not evidence. Mr. Moss was required only to refute the affidavit submitted by Mr. Gifford which I believe he successfully did in this case. The trial court found “you had an agreement that he may sell it” and ultimately concluded Mr. Gifford did not sign the document at the bottom and this was fatal to a valid buy-sell agreement. If it is established at trial that the price was indeed reflected in the document at the time Mr. Gifford signed it, the court may find a contract to sell was legally perfected. Thus, summary judgment dismissing Mr. Moss’ claim was inappropriate at this stage of the proceeding. I would reverse the judgment of the trial court and remand for full trial on the merits.

      . Article 1839 provides:
      A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.
      An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Montie MONTGOMERY, Appellant.
    No. 42,835-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      H. Melissa C. Sugar, Edward K. Bau-man, Louisiana Appellate Project, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|! Montie Montgomery was convicted of possession of cocaine in excess of 28 grams and conspiracy to distribute cocaine. He received concurrent sentences of 28 years at hard labor on the possession charge and 14 years at hard labor on the conspiracy charge with these sentences to be served consecutively to any other sentences being served. Montgomery now appeals his convictions and sentences. We affirm.

Facts

On November 25, 2005, Lieutenant Dan Weaver of the Minden Police Department met with confidential informant, Daran Adams, to discuss the purchase of illegal narcotics from Montgomery. Adams had known Montgomery for ten years and he contacted him by phone to set up the sale. Prior to the transaction with Montgomery, Adams and his vehicle were searched to ensure that the confidential informant had no illegal crack cocaine or money on him. Adams was fitted with a wire and given $1,000 to buy crack cocaine from the defendant. Adams met with Montgomery at a house belonging to Tominesia Sheppard and purchased $1,000 worth of crack cocaine from the defendant. Before Adams left the residence, Montgomery gave him eight additional rocks of crack cocaine and instructed Adams to sell it so that the two of them would have drinking money that same night. After the drug transaction was completed, Adams returned directly to Lieutenant Weaver at a pre-arranged location wherein the drugs were turned over to Lieutenant Weaver. A crime lab determined the weight of the cocaine without the bag to be 29.28 grams.

|2The defendant was charged with possession of cocaine in excess of 28 grams, a violation of La. R.S. 40:967(F)(1)(a), and conspiracy to distribute cocaine, a violation of La. R.S. 40:967 and La. R.S. 14:26. He proceeded to a jury trial on April 3, 2006, and was found guilty as charged on both counts. The trial court sentenced him to 28 years at hard labor on the possession charge and 14 years at hard labor on the conspiracy charge, with the sentences ordered to run concurrently. This appeal ensued.

Discussion

Sufficiency of the Evidence

Montgomery argues that the testimony of the confidential informant, Daran Adams, and Tominesia Sheppard, the other person present at the time of the drug transaction, should be disregarded as they are both state snitches who would do anything to remain out of prison. Montgomery also argues that the videotape of the alleged transaction does not show him exchanging money with or handing crack cocaine to Adams.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. |a State v. Hearold, 608 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

? The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

|4Where 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. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, units denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

A confidential informant’s testimony may be used to convict a defendant. State v. Zeigler, 40,673 (La.App.2d Cir.1/25/06), 920 So.2d 949.

To find one guilty of possession of cocaine in an amount in excess of 28 grams, the state must prove that the defendant knowingly or intentionally possessed cocaine and that the amount of cocaine possessed was between 28 and 200 grams. La. R.S. 40:967(F)(l)(a); State v. Lewis, 42,365 (La.App.2d Cir.9/19/07), 965 So.2d 971.

To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended rfecipient. State v. Williams, 33,881 (La.App.2d Cir.9/27/00), 768 So.2d 728, writ denied, 00-3099 (La.10/5/01), 798 So.2d 963. The elements of the crime of conspiracy are an agreement or combination of two or more persons for the specific purpose of committing a crime and an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26; State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, State ex rel. Hampton v. State, 04-0834 (La.3/11/05), 896 So.2d 57, and State ex rel. Hargrove v. State, 04-2380 (La.6/3/05), 903 So.2d 452; State v. Valrie, 99-226 (La.App. 3d Cir.10/13/99), 749 So.2d 11, writ denied, 99-3236 (La.4/20/00), 760 So.2d 343. An essential element of the crime of conspiracy is specific intent. Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow the act or failure to act. Even though intent is a question of fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Hampton, supra; State v. Johnson, 01-1084 (La.App. 3d Cir.2/6/02), 817 So.2d 120; State v. Taylor, 96-1043 (La.App. 3d Cir.2/5/97), 688 So.2d 1262. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Valrie, supra. The foundation of the offense is the combination of two minds for an unlawful purpose. State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950); State v. Williams, supra. The overt act need not be unlawful; it may be any act, innocent or illegal, accompanying or following the agreement, which is done in furtherance of the object of the agreement. State v. Hampton, supra; State v. Taylor, supra.

At trial, Lieutenant Dan Weaver was qualified as an expert in narcotics investigation and packaging. Lieutenant Weaver testified that on November 25, 2005, he met with Adams, a confidential informant, and talked to him about purchasing illegal drugs from Montgomery. Adams made contact with Montgomery by phone. In the phone conversation, | ¡¡Adams and Montgomery agreed to meet at a home in Minden, Louisiana, to complete the drug transaction. Adams was given $1,000 to make the purchase of crack cocaine from the defendant. Lieutenant Weaver testified that $1,000 worth of crack cocaine would not be for personal use.

Prior to the drug buy, Adams’s person and vehicle were searched to ensure that he had no illegal crack cocaine or money. Thereafter, Adams was fitted with video and audio and was given $1,000 to buy crack cocaine from the defendant. Lieutenant Weaver further testified that he followed Adams to a house in Minden where the drug transaction between Adams and the defendant occurred. Lieutenant Weaver stated that afterward, Adams left the residence and returned directly to Lieutenant Weaver at a pre-ar-ranged location. Adams handed Lieutenant Weaver a bag that had $1,000 worth of cocaine and another bag with eight additional rocks of crack cocaine. Lieutenant Weaver testified that Adams informed him that the defendant had given him eight additional rocks of crack cocaine with instructions to sell the cocaine for partying and drinking money. At trial Lieutenant Weaver was able to identify both Montgomery and the drugs that were purchased from him. He testified that the crime lab determined the weight of the cocaine without the bag to be 29.28 grams.

During Lieutenant Weaver’s testimony, a video of the transaction was played to the jury. Based upon his expertise and observation of the video, Lieutenant Weaver was able to point out references to money being transferred and the amount of cocaine being sold.

17Adams corroborated Lieutenant Weaver’s testimony that he and his vehicle were searched by Lieutenant Weaver prior to the transaction. He further testified that he was equipped with an undercover camera attached to a button on his shirt. Adams stated that he called Montgomery and arranged to purchase an ounce of cocaine from him. Montgomery instructed Adams to meet him at the residence belonging to Sheppard. When Adams arrived at the residence, Sheppard, her child and Montgomery were the only individuals present.

Adams testified that while he was inside the residence, he purchased $1,000 worth of cocaine from Montgomery. Montgomery put the crack on a “digital,” and it weighed about thirty grams. Adams also testified that as he was about to get into his vehicle to leave the residence, Montgomery gave him eight additional rocks of cocaine and told him to sell it so that they would have money to buy drinks that night. Adams testified that after he left the residence, he returned directly to Lieutenant Weaver and turned over the cocaine. Adams was shown and identified the video of the transaction. Adams also testified that the conversation on the video included his telling Montgomery that he had $1,000. He identified that portion of the video where he counted the money and put it on the table. Adams also identified that portion of the video where he told Montgomery “I got it,” referring to the additional eight rocks given to him by Montgomery. Adams identified the face on the video as Montgomery and also identified the photograph of the individual taken from the video as Montgomery.

IsSheppard testified that she had known Montgomery for over ten years and that he had a key to her residence and came and went as he pleased. On November 25, 2005, Adams came to her home. Montgomery was also at her residence that day. On the day in question, Sheppard testified that there were no other males present at her residence while Adams and the defendant were there. Sheppard identified Montgomery in court and in the photographs taken from the video of the drug transaction. Sheppard viewed a portion of the video. She identified both Adams’s and Montgomery’s voices from the video, and she testified that the house depicted was her home.

Lieutenant Marvin Garrett of the narcotics division of the Minden Police Department also testified. He testified that Adams first approached the Minden Police to assist them with purchasing cocaine from Montgomery. Lieutenant Garrett and Lieutenant Weaver rode together and maintained visual contact with Adams as he traveled to and from the buy location. He did not observe Adams make any stops either en route to or on the way back from the buy.

The jury was allowed to view the video recording of the transaction during trial and deliberation. The video also shows Montgomery’s interaction with Adams. Adams’s explanation to the officers regarding his receipt of the extra cocaine is also heard during the video.

Montgomery presented no evidence and did not testify on his own behalf.

1 flConsidering the testimony and evidence in a light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the evidence was sufficient to support Montgomery’s convictions of possession of cocaine in excess of 28 grams and conspiracy to distribute cocaine.

After cross-examination of the witnesses by Montgomery, the jury obviously found the testimony of the state’s witnesses truthful. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, supra. If believed, the evidence when viewed in the light most favorable to the state establishes beyond a reasonable doubt that Montgomery possessed 29.28 grams of crack cocaine and entered into an agreement with Adams for the specific purpose of transferring possession or control of the cocaine to an intended recipient.

Videotape

Montgomery next argues that the trial court erred in not permitting the jury to view the videotape during deliberations. He contends that the ruling to disallow the tape was highly prejudicial because the tape does not show money or drugs changing hands and that a review would have allowed the jury to better evaluate the strengths and weaknesses of the state’s case on the issue.

This argument finds no support in the record. While in an initial ruling, the trial court disallowed further review of the video during deliberations, the record shows that the trial court ultimately allowed the I injury to view and listen to the videotape of the drug transaction in the courtroom. The court relied on State v. Brooks, 01-0785 (La.1/14/03), 838 So.2d 725, which allows a jury’s review of properly admitted evidentiary exhibits during its deliberations, including audio and video tapes. Thus, this mistaken claim presents no error and the argument is without merit. Batson Challenge

Montgomery argues that during voir dire, and after the state and the defense raised Batson challenges, the trial court only questioned those jurors that were challenged at the time of the objection and did not bring back all prior jurors that were struck by both the state and defense counsel. The defendant asserts that the proper procedure for addressing the Batson claims would have been for the trial court to question both parties as to their race-neutral reasons for all the prior excluded jurors.

La.C.Cr.P. art. 841 provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The Louisiana Supreme Court has consistently held that a defendant waives review of irregularities in the selection of the jury when an objection is not timely raised. State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, cert. denied, Tilley v. Louisiana, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001); State v. Potter, 591 So.2d 1166 (La.1991); State v. Whitt, 404 So.2d 254 (La.1981).

In State v. Bazile, 386 So.2d 349 (La.1980), the defense objected to the voir dire procedure employed by the trial court after the jurors had been selected and sworn, but before opening arguments. The Louisiana Supreme In Court held that the propriety of the voir dire procedure could not be considered on appeal because the defense had failed to timely object to the procedure as required by La.C.Cr.P. art. 841.

In the instant case, because Montgomery did not object to the trial court’s procedure for addressing the Batson claims until after the jury was sworn and empaneled. He is therefore precluded from raising this issue on appeal.

Juror Hughes

In this assignment of error, Montgomery argues that because his counsel exhausted his last peremptory challenge on Juror Hughes, the failure of the trial judge to have earlier excused the challenged juror for cause was an abuse of discretion and constitutes reversible error.

Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been reversible error warranting reversal of the conviction, the defendant need only show: (1) the erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278.

A challenge for cause is not warranted where a prospective juror has volunteered an opinion seemingly prejudicial to the defense, but subsequently on further inquiry has demonstrated the ability and -willingness to decide the case impartially according to the law and evidence. State v. Eastin, 419 So.2d 933 (La.1982); State v. Wiley, 614 So.2d 862 (La.App. 2d Cir.1993); State v. Howard, 98-0064 (La.4/23/99), 751 So.2d 783, cert. denied, Howard v. Louisiana, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). If after subsequent questioning the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. When assessing whether a challenge for cause should be granted, the trial judge must look at the juror’s responses during her entire testimony, not just correct isolated answers or even incorrect isolated answers. State v. Lee, 559 So.2d 1310 (La.1990), cert. denied, Lee v. Louisiana, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991); State v. Van Sales, 38,138 (La.App.2d Cir.3/3/04), 867 So.2d 849, writ denied, State ex rel. Van Sales v. State, 04-1305 (La.4/22/05), 899 So.2d 569. A trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Howard, supra.

The grounds for which a juror may be challenged for cause are set forth in La. C.Cr.P. art. 797, in pertinent part:

The state or defendant may challenge a juror for cause on the ground that:
(2) the juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
(4) The juror will not accept the law as given to him by the court; ...

| ^Montgomery challenged Juror Hughes for cause. She had stated that although she would not expect the defendant to prove anything in the casé, she would expect defense counsel to prove that the defendant was innocent. Counsel thanked the potential juror for her frankness and again inquired whether or not she would require the defense counsel to prove anything. Ms. Hughes again responded yes. Defense counsel challenged Hughes for cause.

Upon further examination, the court twice asked Hughes if she would require the defendant to prove anything if the court instructed her that the defendant did not have to prove a thing. She twice responded that she would not. Hughes also agreed to follow the law as given by the court. The court declined to grant the defense’s challenge for cause finding that Hughes had been rehabilitated and would follow the law. Counsel lodged no objection to the denial of the challenge for cause but exercised its final peremptory challenge to excuse Hughes.

La.C.Cr.P. art. 800 relates to the necessity of an objection to a ruling on a challenge for cause in pertinent part:

A. A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of the objection.

In this matter, because counsel failed to lodge a contemporaneous objection, Montgomery is precluded from urging error in the court’s denial of his challenge for cause. Moreover, a review of Hughes’ entire testimony shows the juror’s ability and intent to disregard her previous mistaken views 114and to decide the case impartially according to the law and the evidence.

Mistrial

Montgomery argues that the trial court’s denial of his four requests for mistrial throughout the proceedings due to misconduct on the part of the jury and the state cumulatively denied his right to a fair trial.

Mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Sepulvado, 359 So.2d 137 (La.1978); State v. Stills, 600 So.2d 134 (La.App. 2d Cir.1992). A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant’s rights that even a jury admonition could not provide a cure. State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, cert. denied, Edwards v. Louisiana, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). A trial court’s ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443.

La.C.Cr.P. art. 775 directs the granting of a mistrial, in pertinent part, as follows:

A mistrial may be ordered, and in a jury case the jury dismissed when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4)the court finds that the defendant does not have the mental capacity to proceed;
lm(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770....

La.C.Cr.P. art. 770 addresses the granting of a mistrial in relevant part as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

Defense counsel made one request for a mistrial because of laughter by prospective jurors during jury selection. The trial court denied the motion, stating that the laughter was due to the lateness of the hour and only occurred towards the end of the proceedings. The trial court went on to state that the prospective jurors took the process and the questions very seriously and that they responded appropriately in voir dire.

Our review of the record before us shows eleven instances of laughter by the potential jurors during jury selection. In only one of those instances was the courtroom summoned to order after a statement by the trial judge. Five other instances of laughter were caused by statements made by potential jurors. The remaining five instances were elicited during interchanges by counsel with potential jurors or the court or during | ^questioning by counsel. Our review of the statements which elicited laughter in the courtroom posed no prejudice to Montgomery and were part of the normal process of jury selection. Thus, no abuse of the trial court’s discretion occurred in denying this claim for mistrial.

A second request for a mistrial occurred when the state approached Lieutenant Weaver as he was on the witness stand and whispered to him in the presence of the jury. When the trial court questioned Lieutenant Weaver regarding the nature of the conversation, Lieutenant Weaver responded that the prosecutor had inquired about Adams’s presence at the courthouse. The trial court went on to admonish the prosecutor and denied defense counsel’s request for a mistrial, relying on State v. Morgan, 315 So.2d 632 (La.1975), which stands for the proposition that the lawyers involved in cases have a right to discuss the case with witnesses.

As in the cited case, Montgomery has failed to make a showing that the discussion was heard by the jury or that there was any impropriety demonstrated in the discussion. Thus, Montgomery has established no prejudice nor an abuse of discretion by the trial court.

The third request for a mistrial occurred during the cross-examination of Sheppard when defense counsel asked the witness, “Now you do recall something about Montie Montgomery, is that right?” The prosecutor objected to the question, stating that defense counsel was “opening the door” and that “we need to stick to the November 25, 2005....” Defense counsel requested that the jury be removed from the courtroom. He argued that the prosecutor’s statement strongly implied that Montgomery was 117involved in other matters on other dates which the trial court had determined to be inadmissible. The trial court admonished the prosecutor to be careful regarding what was said before the jury. Likewise, the trial court admonished defense counsel and denied the request for a mistrial.

A review of the prosecutor’s statement shows no reference to a specific crime or criminal activity in violation of La. C.E. art. 404(B). In context, the request by the prosecutor to limit questions to the time of the crime does not unduly suggest that Montgomery was guilty of another crime or bad acts. Thus, the trial judge did not err in refusing to grant the mistrial motion.

The fourth request for a mistrial occurred during the state’s closing argument when the prosecutor commented on Adams saying, “to me he looked very credible, and I don’t think he, you know, mis-told you anything.” Defense counsel argued that the prosecutor had testified about the credibility of the witness. After researching the issue, the trial court denied the request by relying on State v. Smith, 41,048 (La.App.2d Cir.6/30/06), 935 So.2d 797, which holds that a defendant is not entitled to a mistrial based on the prosecutor’s statement of the credibility of the witness.

Commenting on the credibility of the witnesses is proper and within the scope of closing argument. State v. Mims, 39,757 (La.App.2d Cir.6/29/05), 907 So.2d 237. Moreover, an argument with regard to the credibility of a witness is proper where the credibility of the witness is in question and the facts bearing on the witness’s credibility appear in the record. State v. Sayles, 395 So.2d 695 (La.1981); State v. Brewer, 38,515 (La.App.2d Cir.8/20/04), 880 So.2d 1005, writ denied, 04-2509 (La.2/18/05), 896 So.2d 27.

In the instant case, the testimony at trial revealed that Adams had two counts of distributing cocaine charges pending against him and was facing 60 years in prison. As Adams’s credibility was in question and facts bearing on his credibility appear in the record, the prosecutor’s comments were proper. The trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The last request for a mistrial occurred during the state’s rebuttal argument. The prosecutor noted that defense counsel did not show the entire video of the drug transaction to the jury and did not focus on Chapter 3 of the videotape. Defense counsel argued that the prosecutor’s remark about Chapter 8 of the videotape suggested that defense counsel did not want the jury to view the entire videotape. The trial court denied the request, stating that the prosecutor’s remark was in rebuttal to a statement made by defense counsel during defense counsel’s closing argument pertaining to Chapter 3 of the videotape. Defense counsel admitted that he made the statement.

La.C.Cr.P. art. 774 sets forth the permissible scope of closing argument and states that “[t]he state’s rebuttal shall be confined to answering the argument of the defendant.” In the instant case, the prosecutor’s remarks were intended to rebut the effect of defense counsel’s explanation in his closing argument regarding why the defense downplayed Chapter 3 of the video. Therefore, these remarks do not amount to | ^prejudicial conduct that would make it impossible for Montgomery to obtain a fair trial.

Because Montgomery has demonstrated no prejudicial error in the denial of any of his motions for mistrial, his claim regarding the cumulative effect of the trial court rulings on his right to a fair trial has no merit.

Excessive Sentence

Montgomery argues that his sentences were excessive because the trial court failed to take his health, employment record, or marital status into consideration. Montgomery filed no motion to reconsider sentence.

When a defendant fails to timely file a La.C.Cr.P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

Even so, the record in this matter shows that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1 prior to sentencing Montgomery. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines set forth in the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. State v. Price, 40,437 (La.App.2d Cir.1/25/06), 920 So.2d 389. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, the sentence is considered unconstitutionally excessive as violative of La. Const, art. 1, § 20 if it is too severe given the circumstances of the case and the defendant’s background or if it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice.

A trial court has broad discretion to sentence within the statutory limits and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, Cook v. Louisiana, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

121 For the possession of cocaine in excess of 28 grams but less than 200 grams, Montgomery faced potential sentencing exposure of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay of fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. La. R.S. 40:967(F)(l)(a). The adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F. La. R.S. 40:967(G). For the conspiracy to distribute cocaine conviction, Montgomery faced maximum sentencing exposure of fifteen years, with the first two years to be served without benefits. La. R.S. 40:967(B); La. R.S. 14:26.

Prior to imposing sentence, the trial court noted Montgomery’s extensive criminal history which included numerous misdemeanors and felonies. The court considered that Montgomery had a six-felony record and two pending felony charges. Specifically, the court noted that Montgomery had committed several assaultive behavior crimes, including three guilty pleas for aggravated assault and one for aggravated battery. The court also took into consideration the fact that Montgomery had two prior felony drug convictions and one obstruction of justice conviction. The court determined that no mitigating factors existed and that Montgomery had repeatedly proven that he intended to use the sale of drugs to provide for himself the quality of lifestyle he desired. The court also determined that without incarceration, Montgomery would continue to be a threat to society. Thereafter, the court imposed a twenty-eight year sentence on the ^possession of cocaine over 28 grams conviction and fourteen years for the conspiracy charge.

Given the circumstances of the case and Montgomery’s background, we cannot find that the imposed sentences were constitutionally excessive. Montgomery obviously failed to benefit from the prior leniency given to him and has not been rehabilitated through previous incarceration. His continued involvement with drug activity justifies the near maximum sentences imposed by the court. He represents a continued threat to society by repeatedly proving that he intends to use the sale of illegal narcotics to maintain his lifestyle. Thus, we find this argument to have no merit.

Error Patent

We note that with regard to the conspiracy conviction, the first two years of the sentence should have been imposed without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967. This omission will be automatically corrected by operation of La. R.S. 15:301.1. State v. Powell, 42,540 (La.10/24/07), 968 So.2d 823.

Conclusion

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

AFFIRMED.