author: PATRICIA RIVET MURRAY, Judge.

text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana. v. PRODUCTION OPERATORS, INC.
    No. 2007-CA-0648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.
    Rehearing Denied Jan. 16, 2008.

      Emily W. Toler, Donald Bowman, Frederick Mulhearn, Nykeba Walker, Antonio Ferachi, Louisiana Department of Revenue, Legal Division, Baton Rouge, LA, for Plaintiff/Appellant.
    Jesse R. Adams, III, Nicole Crighton, Andre B. Burvant, Oreck, Crighton, Adams & Chase, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge, JAMES F. McKAY, III, Judge, MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

| -iThis is a sales tax case. The Louisiana Department of Revenue sued Production Operators, Inc. (“POI”), a gas compression company, seeking to recover taxes on the customer-supplied fuel that POI used to power its compressors. From the trial court’s judgment granting POI’s motion for summary judgment and ordering that the Department vacate its assessment, the Department appeals. For the reasons that follow, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

During the tax period at issue (January 1, 1997 through December 31, 1999), POI was a provider of natural gas compression services to companies engaged in the exploration and production of natural resources in Louisiana. POI’s services were provided pursuant to a form gas compression contract with its customers. Under that contract, the customer was required to provide compressor fuel at no cost to POI. Following an audit, the Department determined that POI owed additional taxes for the tax period on the customer-supplied fuel that POI used to power its compressors located in Louisiana.

|aOn September 28, 2000, the Department issued a proposed assessment for additional taxes and statutory interest in the total amount of $129,652.96, which POI refused to pay. On December 20, 2001, the Department filed this suit against POI pursuant to La. R.S. 47:1561(3), which provides for the collection of taxes by ordinary suit. In its petition, the Department seeks to recover taxes, interest, and attorney’s fees.

Answering the petition, POI denied that it owed additional sales or use taxes and averred that it did not owe any use tax on any natural gas it consumed in providing its compression services in this state. POI also asserted the following defenses:

• Under its contracts with its customers, POI does not purchase natural gas. As such, there is no transaction that is subject to tax. At all times, the natural gas that is utilized in POI’s compressors is owned by the producer of that gas.
• Because POI’s customers retain ownership of the gas at all times, POI cannot be liable for a use tax. Under the relevant statutes, a use tax can only be owed by the owner of the tangible property being used.
• The Department’s attempt to collect the taxes at issue violates La. Const. Art. VII, § 4, which directs that no additional taxes are to be imposed upon the right to produce and market oil and gas in Louisiana. See Bel Oil Corp. v. Fontenot, 238 La. 1002, 117 So.2d 571 (1959).
• Even if POI is liable for a sales or use tax, the Department has overvalued the natural gas that is used in POI’s compressors. Under its contracts with its customers, the producer is obligated to furnish natural gas to POI. As such, the “sales price” of the gas is zero. If the tax is based upon POPs “use” of the gas, the tax is based upon POI’s cost of the gas or the market value of the gas “which ever is less.” Because POI’s alleged purchase price is zero, it can owe no tax. Moreover, because there is no market for the gas where it is used, on the lease, if the gas has any value it would be the cost of production or “lifting cost” of the gas. In either event, the Department’s assessment is overstated because it overvalued the gas used in POI’s compressors.

pOn February 7, 2006, POI filed a motion for summary judgment seeking an order that the Department vacate its assessment. In support of its motion, POI offered a copy of a representative POI gas compression contract and the affidavit of Brian Matusek, POPs president during the tax period. In his affidavit, Mr. Matusek attested to the following facts:

• The compression provided by POI was the first compression of the gas flowing out of its customer’s well, and it was necessary to move the gas downstream to processing plants and ultimately to market and customers. POI compressed the gas before it was processed in any way, including the removal of water vapor, which was typically done at the customer’s well site.
• POPs compressors were specifically designed to operate on the unprocessed gas found at the customer’s well site. The gas at the point where POI operated its compressor was not market quality gas and could not be sold to consumers.
• POI’s compressors siphoned off enough gas to operate from the gas flowing through them. POI had no right to a certain amount of gas and could only use enough gas to compress the customer’s gas. The gas that was used in POPs compressors was not metered or measured in any way by either party and neither party accounted for the gas that was used. In fact, because of the water vapor in the gas mixture, measuring and metering the gas at this point was inefficient and inaccurate.
• For its services, POI received a flat monthly fee. The amount of gas mixture consumed had no consequence on POI’s compensation and was not a term that POI and its customer negotiated. POI’s fee did not vary based upon the amount of gas mixture used. In fact, POI received its monthly fee even if the compressor was not in use.
• POI did not purchase the gas mixture from its customers nor did it negotiate a sales price for the gas mixture. POI’s customers simply allowed POI’s compressors to consume the unmarketable gas mixture at no cost to POI.

Mr. Matusek also attested that he had reviewed the copy of the representative contract for gas compression services that POI used during the pertinent period.

14Opposing POI’s motion, the Department presented the affidavit of Joseph Louis, the revenue agent who performed the audit of POI. Mr. Louis attested to the following facts:

• At the request of the auditor, POI was able to provide a listing by compressor unit of the fuel used for each year and the engine specifications for several compressor engines to explain how it calculated the fuel used. The reports compiled by POI’s engineering and operations departments were included as schedules as part of the Department’s audit report. The information about the quality of gas utilized, horsepower capacity of the engines and operating time of the engines used by POI were taken into account by its engineering and operations departments in compiling the reports, which identified the compressor fuel utilized. This information was also included in the audit.
• The Department’s auditor was able to calculate a monthly average of the amount of compressor fuel utilized by POI for each year of the audit period. This was calculated by dividing it by twelve months to give a monthly average. The auditor then applied the spot market rate for each month of the audit period of January 1, 1997 through December 31, 1999 to calculate the monthly value of the compressor fuel utilized. The taxable value of the compressor fuel was then calculated by multiplying the monthly value with the Louisiana state taxable rate of four percent (4%) for each month. The total amount due for the tax on compressor fuel is $87,384.00.

As noted, the trial court granted POI’s motion for summary judgment and rendered judgment ordering that the Department vacate its assessment of $129,652.96 together with interest and penalties.

DISCUSSION

Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 00-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. According to this standard, a summary judgment shall be granted if the |Rpleadings, 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 00-2456 at p. 3, 778 So.2d at 670. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of civil actions. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2).

On appeal, the Department assigns as error the trial court’s grant of POI’s motion for summary judgment; it contends that there are genuine issues of material fact on three issues: (i) whether the transaction between POI and its customers was a sale in the form of a barter; (ii) whether the customer-supplied gas utilized by POI should be valued at the Louisiana spot market price or whether the gas was free as stated in the form gas compression contract; and (iii) whether title of the gas passed to POI given that the contract does not require POI to return any lost or consumed gas. Alternatively, the Department contends that POI is not entitled to judgment as a matter of law even if the factual issues are decided in POI’s favor. The Department further contends that the trial court erred in following the holding in Hanover Compressor Co. v. Department of Revenue, State of La., 02-0925 (La.App. 3 Cir. 2/5/03), 838 So.2d 876. The Department points out that it issued Statement of Non-Acquiescence No. 04-001, on December 2, 2004, announcing that it did not acquiesce in the Hanover decision.

POI counters that there are no genuine issues of material fact and that the trial court’s holding is supported by the Hanover case, which is directly on point. Before addressing the Hanover case, we briefly outline the relevant sales tax principles and statutory provisions.

| r,The Louisiana sales and use tax is an excise tax, which is imposed “upon the transaction itself, not the property involved in the transaction.” Bruce J. Oreck, Louisiana Sales & Use Taxation, § 2.1 (2d ed.1996). The Louisiana use tax is assessed on the “cost price” of items used in the state, and the sales tax is assessed on the “sales price” of items sold in the state. The sales and use taxes are complementary taxes designed to “make all tangible property sold or used subject to a uniform tax burden regardless of whether it is acquired inside the state and subject to a sales tax or acquired outside the state and subject to a use tax.” Pensacola Const. Co. v. McNamara, 558 So.2d 231, 232-33 (La.1990).

The term “sale” is defined broadly as “any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property, for a consideration.” La. R.S. 47:301(12). “In keeping with this definition, a gift or other gratuitous transfer is not a sale.” Oreck, supra at § 2.3.

The sales tax is levied upon the sales price of each item or article of tangible personal property when the property is sold at retail in Louisiana. La. R.S. 47:302(A). A “sale at retail” is defined as including “all such transactions as the secretary, upon investigation, finds to be in lieu of sales.” La. R.S. 47:301(10). The legislative intent behind this provision is “to classify every sale made to the final user or consumer for any imaginable purpose, other than for resale, as a retail sale or a sale at retail.” LAC 61:1.4301. As noted, the amount of the tax is calculated based on the “sales price,” which is defined as “the total amount for which tangible personal property is sold ... including any services, except services |7for financing, that are a part of the sale valued in money, whether paid in money or otherwise.” La. R.S. 47:301(13)(a).

POI contends that there was no transaction pertaining to the compression fuel that satisfied the statutory definition of a sale for sales tax purposes — there was no transfer of title or possession and no consideration for any purported transfer. POI’s position is supported by the holding of the Third Circuit in the Hanover case, which involved virtually identical facts, contractual provisions, and sales tax issues. However, under the “law of the circuit” rule, this Third Circuit holding is not binding on this court; rather, it is only persuasive authority. Wilson v. A-1 Industries, Inc., 451 So.2d 1251, 1253 (La.App. 4th Cir.1984). Given the striking similarities between this case and the Hanover case, we find it necessary in deciding this case to first summarize the Hanover case.

THE HANOVER CASE

In Hanover, the Department assessed a compression service company, Hanover Compressor Company, with sales or use taxes on its consumption of the customer-supplied gas mixture it used to fuel its compressors. Hanover challenged the assessment by filing a Petition for Redeter-mination of the assessment with the Board of Tax Appeals. In its petition, Hanover asserted essentially the same defenses as POI asserts in this case; it asserted the following:

Hanover alleged that they rendered their services pursuant to a contract that provided them with “free use” of the gas mixture that was at all times owned by the customer, the producer of the gas. In the petition, Hanover argued that “there has been no transaction translative of ownership prior to consumption of the gas.” Hanover further stated: “Therefore, prior to the consumption of the gas in the compressors, the gas has never been the subject of a “sale” and therefore, cannot be subject to a “use” tax.” Hanover alternatively argued that, in the event that a tax was found due, the amount accessed [ (sic) ] by the Department was excessive in that the “cost price” of the mixture was overvalued.

Is Hanover, 02-0925 at pp. 1-2, 838 So.2d at 877-78.

The Department countered that “if Hanover’s customers had not provided the gas mixture for energy purposes, Hanover would have been required to supply its compressors from an outside source, ultimately resulting in higher costs passed along to its customers.” Hanover, 02-0925 at p. 2, 838 So.2d at 878. The Department also cited Columbia Gulf Transmission Co. v. Broussard, 94-1650 (La.4/10/95), 653 So.2d 522, in support of its position that natural gas consumed in a gas compression company’s service to its customers is subject to taxation.

Vacating the Department’s assessment against Hanover, the Board of Tax Appeals reasoned as follows:

There was no evidence to show that the ownership of the gas was transferred from the Customer to Taxpayer. The Contract between Taxpayer and the Customer does not show that there was a change in ownership of the gas. The Board holds that the Taxpayer burns a gas-mixture that belongs to the Customer and, pursuant to the Contract, is not required to pay for the use of the gas-mixture. The Board knows of no prohibition against such an agreement.
There is no sales tax due. As defined by LSA-R.S. 47:301(12), a sale can be a transfer of possession, but the amount of the tax is measured by the Sales Price. The Sales Price is defined by LSA-R.S. 301(13)(a) [as] .. the total amount for which tangible personal property is sold ... ”. In this case there is no sales price....
The Secretary attempted to argue that Columbia Gulf ... was analogous, but the Board finds clear factual distinctions between that case and the subject case. First, Columbia Gulf involved compression of metered gas, whereas in this case, the gas-mixture was not yet metered and with good business reason. Second, the fuel consumed in Columbia Gulf was itself metered; in the instant case the gas-mixture was not metered and, again, with good reason.

| ⅜ Hanover Compressor Co. v. Department of Revenue and Taxation, 2000 WL 33299495, pp. 1-3 (La.Bd.Tax.App.4/5/00).

Both the trial court and the Third Circuit affirmed the Board of Tax Appeal’s decision in favor of Hanover. The Third Circuit found that there was a sale and a use for sales tax purposes, but found the lack of either a sales price or value for the compressor fuel precluded the recovery of either a sales or a use tax. Hanover, 02-0925 at p. 10, 838 So.2d at 882. The Third Circuit also noted that the compressor fuel at issue was unmeasured.

The Third Circuit further found no error in the Board’s determination that La. Const. Art. VII, § 4 prohibited taxing the compressor fuel finding that the Hanover case was factually analogous to Bel Oil Corp. v. Fontenot, 238 La. 1002, 117 So.2d 571 (1959). In Bel Oil, the Louisiana Supreme Court vacated the assessment of a gas gathering tax on a producer based on the same prohibition contained in the 1921 constitution.

The Third Circuit also distinguished the Supreme Court’s decision in Columbia Gulf, which held that taxes were due on customer-supplied compression fuel used by a company that transported natural gas through its interstate pipelines. The Third Circuit found that the Columbia Gulf case was factually distinguishable from Hanover. The consumption at issue in Hanover occurred very early in the process, and was not metered because the gas was not marketable at that early, crude stage. By contrast the gas at issue in Columbia Gulf was metered during the process and appeared to be in a more refined stage. Hanover, 02-0925 at p. 10, 838 So.2d at 882. The Third Circuit also found that the Columbia |inGulf case was legally distinguishable from Hanover in that the Supreme Court, which did not address “sales price” in Columbia Gulf, was “squarely answering a ‘use tax’ question on the consumption of the natural gas under La.R.S. 47:305(E) [the interstate commerce exclusion].” Hanover, 02-0925 at p. 10, 838 So.2d at 882.

We disagree with the legal analysis of the court in Hanover, and .conclude that there was not only a transfer of possession of the compressor fuel from the customers to POI, but also that there was a barter for a taxable consideration.

TAXABLE BARTER

Barter is defined as “[t]he exchange of one commodity for another without the use of money.” Bryan A. Garner, Black’s Law Dictionary (8th ed.2004). Barter is also defined as “[a]n exchange of things for things [ (i.e. assets for assets) ], as opposed to a sale of things for money.” Daniel Oran, Oran’s Dictionary of the Law (1983). By statute, the term “sale” for sales tax purposes is defined to include a barter for consideration. La. R.S. 47:301(12).

It is well settled that “[t]he taxpayer cannot defeat collection of sales taxes by either the wording, form or label of a contract.” Monsanto Co. v. St. Charles Parish School Bd., 94-2145, p. 5 (La.2/20/95), 650 So.2d 753, 756. The substance not the wording of the contract is controlling. Id. Applying this principle, we find the wording of POI’s gas compression contract that it was to receive the compressor fuel free of charge is not controlling. The contrary finding in Hanover has been criticized: “the [Hanover] court’s acceptance of Hanover’s assertion that it received the gas free of charge based on the contract as written is somewhat lnunusual since Louisiana’s courts rarely allow the wording of a contract to control the tax consequences of a transaction.” David R. Cassidy, Court Says No Tax on Gas Consumed in Processing Gas, 14-May J. Multistate Tax’n 35, 36 (2004)(citing Monsanto, supra.) Despite the wording of the contract between POI and its customers, we find that POI received consideration' and that there was a taxable barter.

A contrary finding — that POI received no consideration — would imply that the transfer of possession of the compressor fuel was a gift or gratuitous transfer, which as noted above is not a sale and thus not taxable. See Oreck, supra. Because businesses generally do not give away their assets, it can be inferred that some type of consideration is present in any exchange of assets that occurs between two business entities. See Eric A. De Moya, Managing Transaction Taxes When Moving Assets in Connection with Mergers and Acquisitions, 17-May J. Mul-tistate Tax’n 24, 28-29 (2007)(citing the Department’s Statement of Non-Acquiescence No. 04-001 to the Hanover case).

In this case, the consideration that POI received in exchange for its compression services included not only the flat monthly fee but also the fuel necessary for this process. We are persuaded by the Board’s argument that had its customers not provided the gas mixture to power its compressors, POI would have been required to obtain the fuel for the compressors from an outside source, incurring additional expense. It can be inferred that POI factored this saving into |12the calculation of its monthly rate. Thus, the transaction between POI and its customers with regard to the compressor fuel was a taxable barter.

The finding that there was a taxable barter is supported by the language of POI’s contract in which the possibility that sales or use tax would be imposed on POI’s utilization of the customer-supplied compressor fuel is acknowledged. That contract provides that, in the event such taxes are imposed, the cost of same is expressly passed onto the customer. This contractual provision thus evidences that there was a quid pro quo exchange between POI and the customer regarding the compressor fuel.

Finally, we find that neither La. Const. Art. VII, § 4, which directs that no additional taxes are to be imposed upon the right to produce and market oil and gas in Louisiana, nor Bel Oil, supra, precludes the imposition of a sales tax on the customer-supplied compressor fuel POI used. This constitutional prohibition ceases to apply “once the natural gas upon which severance tax has been paid is purchased by a third party.” United Gas Pipe Line Co. v. Whitman, 390 So.2d 913, 918 (La.App. 2d Cir.1980). Given our finding that for sales tax purposes there was a sale to POI of the compressor fuel, it logically follows that the protection from-additional taxation provided the producer by La. Const. Art. VII, § 4 is no longer available. See Cassidy, supra (citing United Gas Pipe Line, supra.) Put differently, although the constitutional protection would have applied to the producer, it does not extend to a third party purchaser such as POI.

|isln sum, we find the trial court erred in granting summary judgment in POI’s favor. As a matter of law, there was a taxable barter between POI and its customers.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McKAY, J., concurs in the result.

      . Although the Louisiana Department of Revenue alleges in its petition that use taxes are due, the Department concedes in its brief that this case involves only a claim for sales tax.

      . The Department alleges in its petition that the taxes due totaled $87, 255.11 and that the interest due calculated to November 20, 2001 totaled $42,397.85.

      .Mr. Matusek further attested that POI’s contract was substantially similar to the contract used during the period 1994 to 1997 by Hanover Compressor Company, which according to POI is "a related compression company and POI’s successor.” The relevance of the Hanover contract is that in Hanover Compressor Co. v. Department of Revenue, State of La., 02-0925 (La.App. 3 Cir. 2/5/03), 838 So.2d 876, the Third Circuit affirmed the rulings of the trial court and the Louisiana Board of Tax Appeals that Hanover's use of customers-supplied gas mixture to fuel its compressors was not taxable.

      . The slight discrepancy between this tax figure of $87,384 and the tax figure alleged in the petition of $87,255.11 is not explained in the record. The Department’s schedules indicate the total tax due as $87,384.80.

      . The trial court did not issue reasons for judgment.

      . It is undisputed that the compressor fuel in question constitutes tangible personal property for sales tax purposes.

      . As noted elsewhere, the definition of sales price in La. R.S. 47:301(13)(a) is not limited to the dollar amount for which an item is sold; rather, it also includes the cost of "any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise.” La. R.S. 47:301(13)(a).

      . In that case, “compression fuel” was defined to mean "natural gas which is diverted from an interstate pipeline to power the compressors which propel the natural gas through the pipeline.” Columbia Gulf, 94-1650 at p. 1, 653 So.2d at 523.

      . The Department's position is that the instant case is factually distinguishable from Hanover because it was able to calculate the amount of compressor fuel POI used, albeit after the fact and with the help of POI’s engineering and operating staff. POI counters that it is undisputed that neither it nor its customers measured or metered the compressor fuel it used to power its compressors. Because our legal analysis differs from that of the court in Hanover we need not determine if this factual distinction is material.

      . The Department argues that the consideration is implicit in the contractual provision requiring that POI lower its monthly rate if it does not satisfy the "Guaranteed Monthly Mechanical Average” of 95%. We agree with POI that there is no direct relationship between the monthly performance guarantee and POI’s flat monthly fee. Rather, the performance guarantee is subject to various other conditions unrelated to the compressor fuel provision.

      . Although we find that a taxable barter occurred in which POI received a consideration in the form of the compressor fuel, we do not reach the factual issue of the amount of that consideration. Given the procedural posture of this case — the reversal of a summary judgment in favor of the taxpayer, POI — it is unnecessary for us to reach that issue. Moreover, this is a factual issue on which additional evidence should be taken in the trial court.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    The ESTATE OF Gregory ALIX, Sr. and Raynell Johnson, Individually and o/b/o her Minor Child Ashley Erin Johnson v. Robert WELLS, Big Lots Stores, Inc. and ABC Insurance Company Miosha Walker, Individually and/or in her Capacity as Natural Tutrix of her Minor Daughter, Mijae Amari Walker v. Penske Logistics LLC. Augusta Holloway, Individually and in her Capacity as Natural Tutrix of her Minor Son, Jordan Alix v. Penske Logistics, LLC, Robert Lee Wells, Jr., Jonathan Hampton and Bui Nguyen Bui Thi Nguyen, Individually and in her Capacity as Natural Tutrix of her Minor Daughter, Nga Vu v. Penske Logistics, L.L.C., Robert Lee Wells, Jr., Jonathan Hampton, ABC Insurance Company, Gregory Alix, and XYZ Insurance Company Jonathan D. Hampton, Individually and on Behalf of his Minor Children, Jonathan Hampton, Jr. and Joshua Hampton v. Robert Lee Wells, Jr., Penske Logistics, L.L.C., The Estate of Gregory Clinton Alix, Sr., and State Farm Mutual Automobile Insurance Company Dionne Davis, Individually and on Behalf of her Minor Son, Gregory Alix, Jr. v. Robert Wells, Big Lots Stores, Inc., ABC Insurance Co., The State of Louisiana, Department of Transportation and Development, Penske Logistics, LLC and XYZ Insurance Company.
    Nos. 2007-CA-0503 to 2007-CA-0508.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.
    Rehearing Denied Jan. 23, 2008.

      Gregory P. DiLeo, Jennifer B. Eagan, New Orleans, LA, for Plaintiffs/Appellees, Jonathan D. Hampton, et al.
    W. Paul Andersson, Margaret F. Swet-man, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellee, Jonathan Hampton.
    David J. Schexnaydre, Edward Lassus, Jr., Mary B. Lord, Pajares & Schexnay-dre, L.L.C., Covington, LA, for Defendants/Appellants, Robert Lee Wells, Jr. and Penske Logistics, L.L.C.
    Gregory G. D’Angelo, Wm. David Coffey, Panzeca & D’Angelo, L.L.C., Metairie, for Defendant/Appellant, State of Louisiana, Through The Department of Transportation and Development.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

I,On May 31, 2004, Robert Wells, Jr. was driving an 18-wheeler owned by Penske Logistics, LLC when he encountered three stopped vehicles on westbound 1-10 in New Orleans, Louisiana. Wells collided with the vehicles sending the first vehicle and its driver, Gregory Alix over the guard rail into the Industrial Canal where he drowned. Jonathan Hampton was the operator of the second stopped vehicle.

This suit is the consolidation of six actions arising out of that May 31, 2004, multi-car accident. On February 16, 2007, the trial court held hearings on two motions for summary judgment filed on behalf of Mr. Hampton regarding the issue of liability. The trial court granted both motions and Mr. Hampton was dismissed as a defendant and additionally deemed to have no fault as a plaintiff. Defendants, the DOTD, Robert Wells, Jr. and Penske Logistics, LLC appealed that ruling.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. “Favored in Louisiana, the summary judgment | ¡.procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 545 (citing La. C.C.P. art. 966(A)(2)).

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966(C)(2); Hutchinson v. Knights of Columbus, Council No. 574, 03-1533 (La.2/02/04), 866 So.2d 228, 233.

When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967.

Due to injuries sustained in the accident, Mr. Hampton has no independent recollection of the events surrounding the accident. However, he contends that there has been no evidence to dispute that he was stopped safely behind vehicle number one prior to being rear ended. To support his contention he presented | ¡¡deposition testimony that supported his vehicle was the second stopped vehicle and his emergency flashers were activated. Thus Mr. Hampton avers that he took the required evasive action that proved to be effective and he is in no way liable for the accident that ensued. In sum, there is no genuine issue of material fact regarding fault on the part of Mr. Hampton. The trial court agreed.

Mr. Wells and Penske countered Mr. Hampton’s motion for summary judgment with an affidavit from Mr. Wayne Winkler, an accident reconstruction expert. The affidavit stated that prior to any contact by the 18-wheeler driven by Mr. Wells there was an impact between Mr. Hampton’s vehicle and the first stopped vehicle operated by Mr. Alix. Mr. Wells and Penske claim that because of that initial impact Mr. Hampton was at the very least partially responsible for the three vehicles being stopped. As such, it was improper for the trial court to grant his two motions for partial summary judgment.

In determining whether an issue is genuine for purposes of a summary judgment, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/31/00), 772 So.2d 828; Oakley v. Thebault, 684 So.2d 488, 490 (La.App. 4 Cir.1996); Helwick v. Montgomery Ventures Ltd., 95-0765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306. On its face the affidavit presented in opposition to the two partial motions for summary judgment raises a genuine issue of material fact sufficient to defeat the motions. 'Therefore, we are compelled to reverse the trial court’s ruling.

[¿Because this finding is dispositive of the issue on appeal we do not find it necessary to address additional arguments made by the appellants. Accordingly, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . Based on the record these facts are undisputed.

      . Ms. Leonora Byrd provided testimony that she witnessed the three vehicles stopped and the second and third vehicles displayed emergency flashers. Also, Ms. Juanita Delvisco testified that she encountered the vehicles and was able to avoid any contact, which was consistent with Ms. Nguyen’s affidavit statement that she had time to stop behind the Hampton vehicle prior to being struck by the 18-wheeler.


text:
    STATE of Louisiana v. Antoine DUPLESSIS.
    No. 2007-KA-1005.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   PATRICIA RIVET MURRAY, Judge.

11 This is a criminal case. The defendant, Antoine Duplessis, appeals his conviction and sentence for possession of cocaine. The principal issue on appeal is whether Mr. Duplessis’ motion to suppress the evidence — the cocaine — was erroneously overruled. Finding no error, we affirm.

STATEMENT OF THE CASE

On November 14, 2006, Mr. Duplessis was charged by bill of information with possession of cocaine, in violation of La. R.S. 40:967(0(2). On December 6, 2006, Mr. Duplessis pled not guilty at his arraignment. On January 5, 2007, a hearing on Mr. Duplessis’ motion to suppress the evidence was begun and continued until January 11, 2007. Following the hearing, the trial court granted the motion to suppress the evidence.

On January 29, 2007, another panel of this court granted the State’s writ application and reversed the trial court’s ruling on the motion to suppress. Mr. pDuplessis’s application for supervisory writs was denied by the Louisiana Supreme Court.,

On May 1, 2007, a bench trial was held, and Mr. Duplessis was found guilty as charged. After Mr. Duplessis waived all delays, the trial court immediately sentenced him to serve thirty months at hard labor with credit for time served. This appeal by Mr. Duplessis followed.

STATEMENT OF FACTS

On the evening of May 31, 2006, New Orleans Police Officer Robert Long and his partner, Officer Launey Beckham, were involved in an on-going investigation at the Voo Doo Bar on North Rampart Street. The officers were dressed in plain clothes and were conducting surveillance inside the bar in preparation for the execution of a search warrant. The bartender was suspected of selling narcotics and hiding the narcotics inside a compact disc case that he kept behind the bar. After Officers Long and Beckham observed the bartender engaged in an apparent drug transaction, they alerted the other officers who were waiting to execute the warrant. When the other officers entered the bar, Officers Long and Beckham identified themselves as police officers and assisted the other officers in detaining the patrons in the bar. The exact number of patrons present in the bar was approximated to be between four, according to Officer Long, and fifteen, according to Officer Beckham and Sergeant Christopher Hart. Mr. Du-plessis was one of those patrons. He had been sitting at the bar the entire time the officers | jjWere there, and Officer Long had observed a blue knapsack that was on the bar near where Mr. Duplessis was sitting.

The officers ordered all the patrons to show their hands for safety and to cooperate during the investigation. Officer Long detained Mr. Duplessis and asked him to place his hands where they could be visible. Mr. Duplessis and all other patrons were then patted down for weapons. Officer Long stated that the bar patrons were not allowed to leave.

Officer Long asked the patrons, including Mr. Duplessis, if the blue knapsack belonged to them. All the patrons, including Mr. Duplessis, denied ownership of the knapsack. Officer Long then opened the knapsack. Inside of it, he found two forms of identification with Mr. Duplessis’ name and picture on them, sixteen bags of powder cocaine, a bag of marijuana, and easy wider rolling papers. Officer Long then arrested Mr. Duplessis and conducted a search incident to arrest. Nothing was found on Mr. Duplessis during that search. Officer Long acknowledged on cross-examination that he never saw Mr. Duplessis touch the knapsack or exchange any type of item with the bartender.

Officer Beckham testified that the officers believed the bartender was hiding narcotics in a closet behind the bar. He further testified that the knapsack was within arms reach of the bartender. Officer Beckham acknowledged that all the patrons in the bar were detained and their names were run through the police computer. He admitted that the patrons were lined up against the wall furthest from the bar with their backs to the bar. According to Officer Beckham, some of |4the patrons were handcuffed. He explained that not all the patrons were handcuffed because there were not enough handcuffs. As noted above, Officer Beckham estimated that there were fifteen patrons in the bar. Officer Beckham testified that Officer Long asked the patrons, including Mr. Duples-sis, about the ownership of the knapsack after the patrons were detained and handcuffed.

Sergeant Hart, the supervisor of the unit handling the investigation, was on the scene during the execution of the search warrant. Sergeant Hart testified that Officers Beckham and Long had observed the bartender, who was the subject of the search warrant, engage in a narcotics transaction that evening. However, the person who purchased the narcotics was not arrested because the officers were involved in surveillance. Sergeant Hart testified that narcotics and a firearm were located in the bar and that Officer Long informed him that narcotics were found in the knapsack.

The parties stipulated that the criminalist, William Giblin, tested the substances that were found in the knapsack and found them to be positive for cocaine.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

Mr. Duplessis asserts two assignments of error.

First, he contends that the trial court failed to address him concerning his waiver of his right to a jury trial.

|bA defendant may waive his right to a jury trial and elect to be tried by the judge. La.C.Cr.P. art. 780(A)(provid-ing that “a defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.”) Although the waiver generally is entered at arraignment, the trial court may accept a waiver of a jury trial at any time before the trial begins. La.C.Cr.P. art. 780(B). The waiver is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983). The waiver must be express; it can never be presumed. Id. The record must show a knowing and intelligent waiver. State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 606. Although the trial court must determine if the defendant’s waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Rideau, 05-0462, p. 30 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 144-45 (citing State v. Frank, 549 So.2d 401 (La.App. 3rd Cir.1989)).

In this case, the supplement to the record reveals that the trial court addressed Mr. Duplessis concerning his waiver of a jury trial. The transcript indicates that the trial court advised Mr. Du-plessis of his right to a jury trial as well as his right to waive that right. The trial court then asked him if he understood his rights and had discussed his rights with his counsel. Mr. Duplessis responded affirmatively to both questions. Based on the colloquy that is part of the record, we find that the trial court adequately advised Mr. Duplessis of his right to a jury trial Dand that he knowingly waived his right. We thus find this assignment of error unpersuasive.

Mr. Duplessis’ second assignment of error is that this court should reconsider its prior ruling on his motion to suppress evidence — the cocaine — given the additional evidence presented at trial. The additional evidence was provided by the trial testimony of Officer Beckham and Sergeant Hart, who did not testify at the motion hearing. They testified that the patrons were not only detained and questioned, but also handcuffed and made to stand against the wall or the bar with their hands on the wall or bar while searched. Mr. Duplessis stresses that as a result of the officers requiring the patrons to move, he was forced to leave his knapsack at the bar, and he was not sitting next to it when he was questioned about it. Although the State acknowledges that additional evidence was presented at trial regarding the circumstances surrounding the execution of the warrant, it contends this evidence does not dictate a different result.

“Pretrial determination by the appellate court of the admissibility of evidence does not absolutely preclude a different decision on appeal if after trial it is apparent that the determination was patently erroneous and produced unjust results.” State v. Decuir, 599 So.2d 358, 360 (La.App. 3rd Cir.1992)(citing State v. Ondek, 584 So.2d 282 (La.App. 1st Cir.1991)); see also State v. Fontenot, 550 So.2d 179 (La.1989). In our previous pretrial decision, we found that Mr. Duplessis had abandoned the knapsack before the officers searched it. In so finding, we reasoned that “[o]nee the defendant disclaimed ownership of the blue 17bag, effectively abandoning it, the police had a right to search it without a warrant.’-’ In support, we cited State v. Singleton, 01-1070, p. 8 (La.App. 4 Cir. 9/25/02), 828 So.2d 1185, 1191.

In the Singleton case, police officers responded to a dispatch that two individuals wanted for armed robbery were staying at a particular apartment. The officers were also told that a gun was in a black purse in the residence. When the officers arrived at the apartment, they spoke with Ms. Reese, the person who was renting the apartment. She gave the officers permission to enter and search the apartment. The officers observed the defendant lying on the sofa and the co-defendant, Ms. Patterson, sitting on a chair. As defendant and Ms. Patterson matched the description of the individuals wanted, they were handcuffed, given Miranda warnings, taken to the steps outside the apartment, and their names were run through the police computer. The officers learned that Ms. Patterson had an outstanding municipal warrant and that the defendant was a convicted felon. The defendant and Ms. Patterson were then placed under arrest. Ms. Reese consented to a search of her apartment. During the search, the officers found two purses on the sofa where the defendant was located.

The officers asked Ms. Reese and Ms. Patterson if the purses belonged to them. Both denied ownership of the purses. The officers then searched the purses and found a revolver, a camera, and a photograph of the defendant holding a gun, along with personal papers that belonged to Ms. Patterson. This Court held that by Isdenying ownership of the purse, Ms. Patterson effectively abandoned the property, and the seizure of the gun, camera, and film in the camera was proper.

Mr. Duplessis contends that the Singleton case is distinguishable from this case because the officers had probable cause to believe that the defendant and Ms. Patterson had committed an armed robbery, whereas, Officers Long and Beckham had no basis to believe that Mr. Duplessis was involved in any criminal activity when he was detained. He argues that he was being illegally detained and handcuffed without being advised of his rights when he was questioned about the knapsack. The gist of Mr. Duplessis’ argument is that his detention was improper and tainted the subsequent abandonment of the knapsack.

To provide a background for addressing the improper detention argument, we find it necessary to outline a trio of Supreme Court cases.

First, in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the defendant was a patron of a tavern in which a search warrant was executed, which authorized the search of the tavern and the bartender. A pat down frisk for weapons was conducted of all the tavern patrons, and drugs were found on the defendant. Finding no basis to conduct a pat down frisk of the defendant, the Supreme Court reasoned that “[t]he ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place. Ybarra, 444 U.S. at 92-94, 100 S.Ct. Rat 343. The Court also noted that the officers could not articulate any specific basis for suspecting that the defendant was armed, dangerous, or possessed contraband.

Two years later, the Supreme Court in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), held that officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted. The execution of a warrant to search for narcotics, the Court reasoned, is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. Summers, 452 U.S. at 703, 101 S.Ct. at 2594. The Court further reasoned that the risk of harm to both the police and to occupants is minimized if the officers routinely exercise unquestioned command of the situation. Id. Distinguishing Ybarra, the Court stressed that the defendant in Ybarra did not raise any question regarding the validity of the detention and noted that the issue in Ybarra was only whether the search was valid. Summers, 452 U.S. at 695, 101 S.Ct. at 2590, n. 4.

In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Supreme Court expanded the “Summers’ authorization to detain an occupant of the place to be searched” to include the use of reasonable force necessary to effectuate the detention. Muehler, 544 U.S. at 98-99, 125 S.Ct. at 1470. The Court reasoned that inherent in the authorization to detain the occupants of premises is the authority to use reasonable force necessary for the detention. Id. Such force, the Court held, includes the use of handcuffs for the duration of the search. The Court noted that the use of handcuffs is even more reasonable when there is a need |into detain multiple occupants to execute a warrant. Muehler, 544 U.S. at 100, 125 S.Ct. at 1471.

In this case, the issue Mr. Duplessis raises is the validity of the detention during the search of the bar. Given Summers’ authorization to detain an occupant of the place to be searched coupled with Muehler’s extension of that authorization to handcuff the occupants for the duration of the search, we cannot find that the detention in this case was invalid. Given our finding that Mr. Duplessis’ detention was valid, we now turn to the question of the validity of the search of the knapsack without a warrant.

The general rule is that a search may be conducted only with a warrant which has been issued by a judge on the basis of probable cause. A search conducted without a warrant issued on probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Marks, 337 So.2d 1177 (La.1976). One such exception to the warrant requirement, which this court relied on in its pretrial ruling in this case, is abandonment.

The search without a warrant of abandoned property does not constitute an unreasonable search and does not violate the Fourth Amendment. The rationale behind this exception is that when an individual voluntarily abandons his property, he forfeits any expectation of privacy in it that he might have had. Abel v. United In States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); State v. Dobard, 01-2629 (La.6/21/02), 824 So.2d 1127.

Generally, an individual enjoys a reasonable expectation of privacy in personal baggage that is protected by the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, an individual who abandons his baggage by denying ownership of it may not contest the constitutionality of its subsequent acquisition by police. United States v. Cofield, 272 F.3d 1303 (11th Cir.2001). “Abandonment for purposes of the Fourth Amendment differs from abandonment in property law; here, the analysis examines the individual’s reasonable expectation of privacy, not his property interest in the item.” State v. Stephens, 40,343, p. 7 (La.App. 2 Cir. 12/14/05), 917 So.2d 667, 673 (citing United States v. Fulani, 368 F.3d 351 (3d Cir.2004), cert. denied, 543 U.S. 1091, 125 S.Ct. 963, 160 L.Ed.2d 901 (2005)). The voluntary denial of ownership constitutes sufficient evidence of the intent to disassociate to prove abandonment. Id. (citing United States v. Lewis, 921 F.2d 1294 (U.S.App.D.C.1990)).

Mr. Duplessis does not dispute that he denied ownership of the knapsack. Rather, he contends that his denial was involuntary and that he could not have abandoned the knapsack because he was already detained and placed in handcuffs before Officer Long asked the bar patrons if any of them owned the knapsack. As discussed above, the detention was justified by the warrant and thus could not, as Mr. Duplessis suggests, taint the abandon-merit. Because none of the bar patrons | ^claimed ownership of the knapsack, the police reasonably could have assumed it belonged to the bartender. We thus reaffirm our prior holding that once Mr. Du-plessis denied ownership of the knapsack he effectively abandoned it, giving the officers the right to search it without a warrant. See Singleton, supra. We thus find that the search of the knapsack and seizure of the cocaine was proper and that the cocaine was admissible evidence at trial.

DECREE

For the forgoing reasons, the conviction and sentence of the defendant is affirmed.

AFFIRMED.

      . State v. Duplessis, 07-0117 (La.App. 4 Cir. 1/29/07)(unpub.).

      . State v. Duplessis, 07-0309 (La.3/30/07), 953 So.2d 61.

      . U.S. Const. amend. IV; La. Const. art. I, § 5; La.C.Cr.P. art. 162; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Tomasetti, 381 So.2d 420, 423 (La.1980).

      . Mr. Duplessis also argues that the officer improperly searched not only the knapsack but also a bank envelope that was inside the knapsack and contained drugs. We find this argument without merit. Mr. Duplessis’ abandonment of his knapsack encompassed everything inside the knapsack.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    KIMPTON HOTEL & RESTAURANT GROUP, INC. and First Orleans Hotel Associates, L.P. v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
    Nos. 2007-CA-1118, 2007-CA-1209, 2007-C-1310.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Campbell E. Wallace, Jonathan C. McCall, Douglas L. Grundmeyer, Chaffe McCall, L.L.P., New Orleans, LA, for Kimpton Hotel & Restaurant Group, L.P. and First Orleans Hotel Associates, L.P.
    Judy Y. Barrasso, H. Minor Pipes, III, Barrasso Usdin Kupperman Freeman & Sarver, LLC., New Orleans, LA, and Christopher S. Finazzo, Rachel R. Hager, Budd Larner, PC, Short Hills, NJ, for Liberty Mutual Fire Insurance Company.
    . (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| ¶This appeal arises from flood damage to the Hotel Monaco and Cobalt Restaurant as a result of Hurricane Katrina. Hotel Monaco and Cobalt Restaurant were insured for flood damage by Liberty Mutual Fire Insurance Company. The business entities representing Hotel Monaco and Cobalt Restaurant asserted, in a motion for partial summary judgment, that the flood insurance limit was $10 million. Liberty Mutual Fire Insurance Company claimed that the limit was $2.5 million. The trial court held that the insurance contract’s “clear and plain meaning” insured the Hotel Monaco and Cobalt Restaurant for $10 million in flood damages. We find that the insurance contract unambiguously limits flood damage to $10 million and affirm.

A writ was consolidated with the appeal regarding a memorandum that Liberty Mutual Fire Insurance Company received from an insurance broker during discovery. The trial court held that the memorandum was not privileged and did not constitute work-product. We find that the trial court did not abuse its discretion and deny the writ.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Hotel Monaco and Cobalt Restaurant (collectively “the Hotel”), located |2at 333 Saint Charles Avenue, suffered flood damages as a result of Hurricane Katrina. First Orleans Hotel Association, L.P., the owner of the Hotel, and Kimpton Hotel & Restaurant Group, L.P., the manager of the Hotel (collectively “Kimpton”), insured the Hotel with a multiple property insurance policy (“Policy”) from Liberty Mutual Fire Insurance Company (“Liberty”). The Policy covered property damage and business interruption insurance. The basement level of the Hotel, which housed the Hotel’s electrical vault, flooded. Kimpton sought $10 million from Liberty to repair the damage. Kimpton’s first written proof of loss, totaling $10,708,613, was submitted on October 25, 2005. The second proof of loss, submitted on February 24, 2006, added an additional $6,257,044 in damages. Liberty refused to tender $10 million stating that the Policy only covered $2.5 million in flood damages.

Kimpton filed a petition for declaratory judgment and damages against Liberty. Liberty then filed a notice of removal. However, the United States District Court for the Eastern District of Louisiana remanded the case to the Civil District Court because Liberty did not show that the parties were diverse at the time of removal. Kimpton later added the Sewerage and Water Board (“S & WB”) and AEGIS, Limited (“AEGIS”), the liability insurer of Entergy New Orleans, Inc., as defendants alleging their negligence contributed to the flood damage.

Liberty filed an exception of forum non conveniens, which the trial court denied. The S & WB filed a motion for summary judgment, which the trial court granted dismissing the S & WB with prejudice, predicated upon the fact that nothing in the S & WB’s custody interfered with Kimpton’s electrical vault.

Kimpton filed a motion for partial summary judgment alleging that according to the four corners of the Policy, the Policy covered $10 million in flood | ¡¡damages. The trial court granted Kimpton’s motion for summary judgment. The trial court also granted Kimpton’s motion to strike extrinsic evidence, Kimpton’s motion to strike scandalous language, and Liberty’s motion to compel a second deposition of John Tastor (“Mr. Tastor”). The trial court denied Kimpton’s motion to strike and exclude inadvertently produced documents.

Kimpton then sought writs to this Court regarding the motion to strike and exclude inadvertently produced documents. Kimp-ton and Liberty sought to certify the trial court’s ruling on the motion for partial summary judgment as final and appeal-able. Once designated as final and appeal-able, Liberty appealed the trial court’s granting of Kimpton’s motion for partial summary judgment. Kimpton’s writ was consolidated with this devolutive appeal.

MOTION FOR PARTIAL SUMMARY JUDGMENT

Appellate courts review partial summary judgments using the de novo standard of review. Wingrave v. Hebert, 06-1240, p. 5 (La.App. 4 Cir. 5/9/07), 964 So.2d 385, 389. Summary judgments are favored and “designed to secure the just, speedy, and inexpensive determination” of actions. La. C.C.P. art. 966(A)(2). “[I]f 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,” then summary judgment will be granted. La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial on the matter that is before the court ... the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). In that ease, the movant must “point out to the court that there is an absence of factual support |4for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). “Thereafter, if the adverse'party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

Liberty asserts that the trial court erred in granting Kimpton’s motion for partial summary judgment.' Liberty avers that endorsement RM1132 does not change the liability limits contained in endorsement RM1109. Instead, Liberty avers that RM1132 only changed the policy to reflect that the Hotel was located in zone B or X, which was insured for flood damage, as opposed to zone A.

The Policy does not cover flood losses according to the exclusions listed, on -RM1003. However,- endorsement RM1109 “changes” and/or “modifies” the Policy to include flood coverage on particular properties. RM1109 states, in part: “[w]e will pay for direct physical loss to covered property caused by flood at or within the states and locations shown on the Schedule of this endorsement.” Further, RM1109 contains a schedule of liability as follows, in pertinent part:

| ¡^Endorsement RM1132 then states that it also “changes” and/or “modifies” Kimp-ton’s insurance coverage regarding flood damage. RM1132 reads, in pertinent part:

2. The location(s) shown in Schedule B of this endorsement have been identified as being situated in zone B or X shaded which is the area defined by the Federal Emergency Management agency (FEMA) as being subject to inundation by a one-hundred (100) to five-hundred (500) year flood event. (One-hundred (100) to five-hundred (500) year flood plain).
Schedule B
No. Location Address
26 1095 Rollins Road, Burlingame, CA 94010
36 333 Saint Charles Avenue, New Orleans, LA 70130
37 10500 S. De Anza Blvd., Cupertino, CA 95014

An insurance policy is a contract. The Louisiana Civil Code dictates how contracts should be interpreted. Determining the common intent of the parties is the first step for interpreting a contract. La. C.C. art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. When a provision in a contract is susceptible of different meanings, an interpretation that renders the provision effective and not ineffective must be utilized. La. C.C. art. 2049. Additionally, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. art. 2050. Insurance contracts “shall be construed according to the entirety of its terms and conditions ... and as amplified, extended, or modified by any rider, endorsement, or application ^attached to or made a part of the policy.” La. R.S. 22:654. However, “[i]n case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.” La. C.C. art. 2056.

RM1109 provides that the Hotel is insured for flood damage up to $2.5 million. However, RM1132 provides that it “changes” and/or “modifies” the Policy and that the Hotel should be included in the “zone B or X” category. We find that the words of the Policy are clear and explicit. The Hotel was always physically located in the “zone B or X” category. Therefore, the only interpretation of RM1132’s provision would be to increase the flood damage liability for the Hotel to $10 million. Otherwise, RM1132 would have no purpose as it related to the Hotel.

The use of extrinsic evidence to determine the amount of flood coverage is not warranted as we find that the words of the Policy are “clear and explicit.” Therefore, we need not consult other documents to search for the intent of the parties. Accordingly, we find that the Policy insured the Hotel for up to $10 million in flood damages and affirm the trial court’s granting of Kimpton’s motion for summary judgment.

WRIT APPLICATION

Kimpton filed a supervisory writ application with this Court on September 5, 2007, seeking review of the trial court’s denial of Kimpton’s motion to strike and exclude inadvertently produced documents.

Kimpton alleges that it inadvertently produced a September 1, 2005 memorandum (“Tastor Memo”) from Mr. Tastor, the Arthur J. Gallagher & |7Company of California representative heading the Kimpton account team, to Melinda Tisch, Kimpton’s assistant general counsel/Viee President. The Tastor Memo discussed Mr. Tastor’s interpretation of the Hotel’s flood coverage. Kimpton alleges that the Tastor Memo is subject to either the attorney-client privilege or the work-product doctrine.

As the reviewing court, this Court must determine if the trial court abused its discretion in denying Kimpton’s motion to strike and exclude inadvertently produced documents. Dixon v. Winn-Dixie Louisiana, Inc., 93-1627 (La.App. 4 Cir. 5/17/94), 638 So.2d 306, 312. Inadvertent disclosure of a document protected by the attorney-client privilege or work-product doctrine does not waive the protections. La. C.C.P. art. 1424(D).

The work-product doctrine provides that the “court shall not order the production or inspection of any writing, dr electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial.... ” La. C.C.P. art. 1424(A). Additionally, “the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.” La. C.C.P. art. 1424(A).

The attorney-client privilege allows the client to refuse to disclose communication:

(1) Between the client or a representative of the client and the client’s lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer.
(3) By the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who ^represents another party concerning a matter of common interest.
(4) Between representatives of the client or between the client and a representative of the client.
(5) Among lawyers and their representatives representing the same client.
(6) Between representatives of the client’s lawyer.

La. C.E. art. 506(B). The Louisiana Code of Evidence defines a client’s representative .as:

(a) A person having authority to obtain professional legal services, or to act on advice so obtained, on behalf of the client.
(b) Any other person who makes or receives a confidential communication for the purpose of effectuating legal representation for the client, while acting in the scope of employment for the client.

La. C.E. art. 506(A)(2). Further, a representative of the lawyer, “is a person engaged by the lawyer to assist the lawyer in the lawyer’s rendition of professional legal services.” La. C.E. art., 506(A)(4).

In order for a document to be protected by the work-product doctrine, the document must be prepared in “anticipation of litigation or in preparation for trial.” The Tastor Memo was not prepared in anticipation of litigation or in preparation for trial as Mr. Tastor typed the Tastor Memo on September 1, 2005, prior to Kimpton making a claim for flood damages. Additionally, the Tastor Memo is not covered by the attorney-client privilege as Mr. Ta-stor prepared the Tastor Memo in the ordinary scope of his business duties as an insurance consultant and he was not a representative of the client. Therefore, we do not find that the trial court abused its discretion and deny the writ.

DECREE

For the above mentioned reasons, we find that the Policy unambiguously provided Kimpton with $10 million in coverage for flood damage to the Hotel. | (Additionally, we find that the trial court did not abuse its discretion in finding that the Tastor Memo was not privileged or a work product. Therefore, we affirm the granting of the motion for summary judgment and deny the writ.

AFFIRMED; WRIT DENIED.

BELSOME, J., concurs in the result with reasons.

BELSOME, J.,

concurs in the result with reasons.

|,I concur with result of the majority opinion but not with its analysis. More specifically, I disagree that a clear unambiguous reading of the policy provides for $10 million dollars of flood coverage for Hotel Monaco and Cobalt Restaurant. It is undisputable that endorsement RM1109 makes a distinction between “[a]ny covered property situated in zone B or X shaded as defined in item 4.(B) of this endorsement” and “New Orleans Hotel Monaco and Cobalt Restaurant” setting forth flood damage liability coverage at $10 million and $2.5 million respectively. However, a reading of endorsement RM1132 under the Flood Zone Designation Schedule, which is identified as modifying RM1109, specifically lists Hotel Monaco and Cobalt Restaurant as a location that falls into the category of property situated in zone B or X. I find that endorsements RM1109 and RM1132 create two equally reasonable interpretations of what limit of liability for flood applies to Hotel Monaco and Cobalt Restaurant. Accordingly I find the policy language to be ambiguous. See Elmer v. Washington Nat’l Ins. Co., 308 So.2d 312, 314 (La.App. 3 Cir. 2/12/1975)

Due to the ambiguity within the contract the Court must look to the parties’ intent. Succession of Fannaly v. Lafayette Insurance Co., 01-1144, p. 2 (La.01/15/02), 805 So.2d 1134, 1137. Under the general rules of contract the Court should not look beyond the four corners of the insurance contract to ascertain the Lintent of the parties. See Ashire v. Vermilion Parish School Board, 02-2881, p. 5 (La.6/27/03), 848 So.2d 552, 555 citing Ortego v. State, Dept. of Transp. and Dev., 689 So.2d 1358 (La.2/25/97). However if a question remains, the unclear language is construed in favor of the insured. La. C.C. art. 2056 and Succession of Fannaly, 01-1144, p. 4, 805 So.2d at 1138. Because the language of the two provisions prevent a clear unambiguous determination of the policy flood limit, La. C.C. article 2056 directs us to find in favor of the insured, thus this Court must interpret the provisions as providing $10 million of flood coverage. For these reasons I concur in the result reached by the majority.

      . “A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La. C.C. art. 1906.

      . The supervisory writ application was consolidated with the appeal sub judice.

      . An international insurance broker.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Marvin A. SMITH.
    No. 2007-KA-0744.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

L The defendant/appellant, Marvin Smith, appeals his conviction and sentence for unauthorized entry of an inhabited dwelling. After review of the record in light of the arguments of the parties and applicable law, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

The defendant was charged by bill of information on June 11, 2002, with unauthorized entry of an inhabited dwelling, a violation of La.Rev.Stat. 14:62.3. He pleaded not guilty at his arraignment on June 18, 2002, and, after undergoing competency evaluations, was found incompetent to stand trial. On June 23, 2005, the defendant was found competent to proceed to trial. On August 16, 2006, the following evidence was adduced in the defendant’s one-day jury trial.

Mr. Balad Tebo testified that sometime on the day of April 10, 2002, the key to the back door of his residence was stolen. After filing a police report, he engaged a locksmith to re-key the door. Later that evening, at approximately 10:00 p.m., Mr. Tebo answered the fi-ont door to find the defendant standing on the porch. The defendant told Mr. Tebo that he knew Mr. Tebo had lost a key that day. Mr. Tebo noticed that the defendant was holding in his hand the key to the | aback door of his residence and demanded that the defendant return the key. The defendant refused, saying he would only return the key in exchange for $100.00. Mr. Tebo refused to pay the defendant, and the defendant stepped into the Tebo residence. Mr. Tebo blocked the defendant’s progression, and the pair began to grapple. The physical confrontation spilled onto the porch and into the front yard as Mr. Tebo and the defendant fell off the porch. During the scuffle, the defendant lost his shirt. As the altercation progressed, one of Mr. Tebo’s sons activated the burglar alarm system in the house causing the defendant and an accomplice to flee on a bicycle. Mr. Tebo, accompanied by two neighbors, got into his car and followed the pair, all the while on the telephone advising the police of the location of their pursuit. The police met Mr. Tebo and his neighbors during the chase, and they apprehended the defendant at the intersection of Broad and Washington Avenue. The accomplice escaped. Mr. Tebo made an on-the-scene identification of the defendant.

Mrs. Cecile Tebo, Mr. Tebo’s wife, testified that on the night in question, she was upstairs putting two of the couple’s three young sons to bed when she heard the doorbell ring around 10:15 p.m. She descended the stairs and saw her husband at the front door talking to the defendant, who was holding a key and demanding money. The conversation escalated into a physical confrontation when the defendant stepped into the Tebo residence. Mr. Tebo pushed the defendant out of the house, and the pair landed in the front yard. When Mrs. Tebo saw the defendant’s accomplice hit her husband with a bike, she ran to his aid and jumped on the accomplice’s back to prevent any further injury to her husband. The next thing she knew, the house alarm sounded, and the defendant and accomplice left the scene on a bicycle. Mrs. Tebo testified that the defendant lost his striped T-Shirts while scuffling with her husband. A short while later, at police request, Mrs. Tebo drove to the area of Broad and Washington Avenue where she identified the defendant as the man who came into her home, scuffled with her husband and rode away on a bicycle.

Mr. Phillip Blake, the Tebos’ next door neighbor, testified that on the night of April 10, 2002, at about 10:00 p.m., he saw Mr. Tebo fighting with the defendant the Tebos’ front yard. When Mr. Blake went to Mr. Tebo’s aid, the defendant and an accomplice fled the scene on a bicycle.

The jury found the defendant guilty as charged. Initially sentenced to a six-year prison term, the defendant was adjudged a third offender on March 27, 2007, and re-sentenced to twelve years at hard labor on March 30, 2007.

Errors Patent/Assignment of Error Number 1

A review for errors patent reveals that the bill of information is not contained in the record. Because the defendant also raises this issue as an assignment of error, we address the matter in conjunction with the first assignment of error.

In his first assignment of error the defendant complains that because the bill of information is missing from the record , it cannot be determined that he was apprised he was charged with violating La.Rev.Stat. 14:62.3 or that he presented an appropriate defense. Further, the defendant argues that the State failed to prove the element of “unauthorized entry”.

|4In this case, the record does not support the defendant’s claim that he was not apprised of the crime with which he was charged. The docket master indicates the charge as “UNAUTHORIZED ENTRY INHAB DWELL” in violation of La. Rev.Stat. 14:62.3. The record does not indicate any objection or motion alleging that the charges had not been clarified; in fact, the docket master shows that defense counsel waived the reading of the bill of information on June 18, 2002. Moreover, during cross-examination of Mr. Tebo, defense counsel questioned, “I’m sure you understand that unauthorized entry is an element of this offense?” There is no evidence of any objection to the jury charge. Finally, the record indicates the court reporter read the jury verdict, “We the jury, find the defendant, Marvin Smith guilty as charged of unauthorized entry of an inhabited dwelling.” Based on the foregoing, there is no question the defense was aware of the charge and did offer a defense.

As to the defendant’s claim of insufficiency of the evidence, in accordance with the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the issue before the court is whether the “evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). See also State v. Sykes, 04-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

La.Rev.Stat. 14:62.3 prohibits “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” State v. Wilson, 2006-1421 (La.App. 4 Cir. 3/28/07), 956 So.2d 41 citing State v. Nunnery, 2004-1560 (La.App. 4 Cir. 12/8/04), 891 So.2d 67. Thus, to show an “unauthorized entry,” the State need only prove that any portion of the defendant’s body passed the line of the door’s threshold. State v. Abrams, 527 So.2d 1057 (La.App. 1 Cir.1988).

At the motion hearing, Mr. Tebo stated that the defendant’s “[foot] crossed the threshold” and that the defendant stepped “[a] foot, eighteen inches” into the Tebo residence and, at trial, Mr. Tebo testified that the “[defendant’s] foot crossed the door.” Further, Mrs. Tebo testified at trial that the defendant came into the house. Accordingly, the unrefut-ed testimony shows the State proved “unauthorized entry”. This assignment is without merit.

Assignment of Error Number 2

In this assignment, the defendant raises a claim of ineffective assistance of counsel. The defendant contends his counsel was ineffective because he (1) waived the defendant’s presence at the end of the motions hearing, in violation of La.Code Crim. Proc. art. 831; (2) failed to plead the defendant not guilty by reason of insanity; and (3) failed to object to the chain of evidence with regard to the shirt the defendant wore the night of the incident.

[(¡Pursuant to the two part test of Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prove ineffective assistance of counsel the defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective only when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment and that his deficient performance prejudiced the defendant to the extent that he was deprived of a fair trial. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Accordingly, to carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992). An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 97-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444 (La.1983)).

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

j7In this case, the defendant complains that his counsel was ineffective for waiving the defendant’s presence at the end of the motions hearing.

The right to be present may be waived by the defendant or by his attorney, or by defendant’s voluntary absence or his failure to assert an objection to a discussion held in his absence. State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218. Presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. Therefore, the presence of the defendant is only essential at proceedings which have a reasonably substantial relation to the fullness of the opportunity of the defendant to defend against the charge. State v. Kahey, 436 So.2d 475, 483 (La.1983) (citing Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). No prejudice can result from a defendant’s absence from an argument or discussion of questions of law. Kahey, Id.

In this case, the record indicates that defense counsel waived the defendant’s presence only after all the testimony at the motions hearing was presented. The only portion of the hearing for which the defendant was not present was a brief colloquy between the judge and the attorneys concerning the whereabouts of a police officer needed as a witness in the case and the trial judge’s ruling denying the Motion to Suppress the Identification. None of the discussion which transpired after the defendant left the courtroom bore a “reasonable] substantial relation to the fullness of [his] opportunity ... to defend against the charge.” Kahey, 436 So.2d at 483. Even assuming there was error, in order for the defendant to receive relief, he would have to show his defense was prejudiced by his absence. The defendant has made no such showing.

|RThe defendant next argues that trial counsel was ineffective because counsel did nothing to plead or develop the insanity defense for the defendant, despite an indication of mental illness, including three years of hospitalization. Defendant contends the plea may have negated his culpability or served to mitigate his sentence.

Louisiana law presumes a defendant is sane and responsible for his or her actions. La.Rev.Stat. 15:432. This presumption is rebuttable, however, and the defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La.Code Crim. Proc. art. 652.

The defendant in this case has not pointed to anything in the record which shows his inability to tell right from wrong at the time of the offense. However, the docket master in this case indicates that at the time the defendant was arraigned on June 18, 2002, counsel requested a lunacy hearing. The docket master also shows that the judge was aware of the defendant’s incompetency, but there are no psychiatric or sanity commission reports in the record. Considering the absence of the foregoing information, the issue cannot be adequately decided based on the present record. The matter should be addressed in a post-conviction proceeding.

Finally, the defendant argues ineffective assistance in counsel’s failure to object to the chain of evidence when the State introduced the defendant’s shirt. Citing no authority or jurisprudence, nor denying that the shirt was his, the defendant argues that the witnesses’ testimony about what he wore at the time of the commission of the offense and his arrest are inconsistent. The defendant points out that Mr. and Mrs. Tebo testified at the motions hearing that the defendant wore a red or yellow shirt. Then the defendant notes that trial testimony indicated that the shirt was striped.

IsThe record indicates that Mrs. Tebo testified at the hearings motion that the defendant’s accomplice wore a red shirt while Mr. Tebo told the court the defendant wore a red or yellow shirt. While there is some discrepancy in the testimony regarding the shirt, any confusion is easily explained by the stress of the situation, the fact that the incident occurred at night and that trial was conducted approximately four years after the incident. The discrepancy regarding the color of the shirt is a minor detail. In fact, when the photograph of the shirt was introduced at trial, there was no comment as to color. Moreover, Mr. and Mrs. Tebo identified the defendant as the person who entered their home and demanded money. The defendant has failed to show any prejudice from counsel’s failure to object to the photograph of the shirt. This assignment is meritless.

Assignment of Error Number 3

In a final assignment, the defendant claims the trial court erred in imposing an excessive sentence.

In State v. Smith 01-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the standard for evaluating a claim of excessive sentencing:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906. See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973; State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Landry, 03-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

Id., p. 7, 839 So.2d at 4.

In State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, this Court further stated:

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 8/4/98), 708 So.2d 813:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

06-0875, p. 18, 947 So.2d at 820.

In imposing the maximum sentence, the trial court noted the defendant’s extensive criminal record:

... which dates back to juvenile arrests, all for curfew violations, with an adult record that starts in 2000 ..., felony conviction for simple burglary of a shed ...; criminal trespass in December of 2000; disturbing the peace in January 2001; criminal trespass in March of 2001; April 27, 2001, ... felony charge for burglary, where the defendant received a suspended sentence and active probation; and this charge in 2002 ...

The trial court further stated:

The Court notes for the record that this case involved what I believe to be more than an unauthorized entry of a dwelling because, in fact, the Indefendant’s actions led to a battery on the victim in this case, with more than a battery, a full-fledged struggle, and injury to the victim in this case.
Further the defendant’s actions in confronting the victims in this case on their property, although the charge is unauthorized entry, the Court, in its opinion from what it heard at both the motion hearings and at the trial, likens this case on its factual face more to an aggravated burglary.
The Court takes into account that the two prior felony convictions of the defendant also involve burglary felony offenses involving private citizens in their homes, in their dwellings, and the Court finds that any lesser sentence than the one it is about to impose would certainly deprecate the seriousness of this offense, and the Court feels that the sentence that it is about to impose is reflective of what this Court believes to be the defendant’s danger to the community, should any lesser sentence be imposed.

The docket master indicates that the trial judge was aware of the defendant’s rehabilitation in order to stand trial. The court also considered the fact that the defendant had the audacity to demand $100 for the return of the Tebos key. Though the defendant’s action in demanding money for the return of the key may be characterized as less than intelligent, the action does not show an inability to discern right from wrong. The record supports the trial court’s sentencing decision.

A conviction of unauthorized entry of an inhabited dwelling carries a maximum sentence of six years, with or without hard labor, and the possibility of a one thousand dollar fíne. La.Rev.Stat. 14:62.3. Upon the adjudication of defendant as a third felony habitual offender under La.Rev.Stat. 15:529.1 A(l)(b)(i), the defendant’s possible prison sentence exposure was not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. The defendant was sentenced to the maximum of twelve years at hard labor.

In sentencing the defendant, the trial judge opined that from the evidence adduced in the case, the defendant’s crime was akin to aggravated burglary | ^because the defendant entered the Tebo residence while the family was present and the defendant battered Mr. Tebo when he refused to pay the defendant. .In State v. Martin, 28,489 (La.App. 2 Cir. 8/21/96), 679 So.2d 557, the Second Circuit upheld a twenty five year sentence for a defendant convicted of simple burglary and adjudged a fourth felony offender. In State v. Segue, 92-2426 (La.App. 4 Cir. 5/17/94), 637 So.2d 1173, this Court upheld a twelve yéar sentence for a second felony offender convicted of unauthorized entry of an inhabited dwelling. See also State v. Deslatte, 610 So.2d 947 (La.App. 1 Cir.1992).

Based upon the facts and jurisprudence, the defendant’s sentence is not excessive. This assignment is without merit.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . At the time the defendant filed his brief, the record did not contain a copy of the bill of information. However, on July 17, 2007, the State moved to supplement the record. By order dated July 20, 2007, this Court granted the motion and offered the defendant an opportunity to file objections to the motion to supplement within ten days of the date of the order. Further, the order granted the defendant fourteen days from the date of the order to file a supplemental brief. The defendant did not object to the supplement nor did he file a supplemental brief.

      . La.Code Crim. Proc. art. 831 provides:
      Presence of defendant when prosecution is for felony
      A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
      (1) At arraignment;
      (2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
      (3) At the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
      (4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
      (5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
      (6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.
      B. Nothing in this Article shall prohibit the court, by local rule, from providing for a defendant's appearance at his arraign.ment by simultaneous audio-visual transmission, except when the defense counsel requests the defendant’s appearance in open court.