author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Ranee DUNBAR.
    No. 2006-KA-1030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plain-tifi/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant, Ranee K. Dunbar (“Dunbar”), was charged by bill of information on 4 March 2005 with unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. He pleaded not guilty at his 8 March 2005 arraignment. The trial court denied Dunbar’s motion to suppress the evidence at a 30 March 2005 hearing, at which the court also found probable cause. He was tried by a six-person jury on 19 July 2005, and found guilty as charged. Dunbar pleaded not guilty on 26 July 2005 to a bill of information charging him as a third-felony habitual offender, La. R.S. 15:529.1. He was adjudicated as a third-felony habitual offender on 26 August 2005, and sentenced to twelve years at hard labor. The trial court granted defendant’s motion for appeal on 26 August 2005.

New Orleans Police Officer Robert Hurst testified that at approximately 4:25 a.m. on 16 February 2005, he and his partner were sitting in their police unit in the median at South Claiborne Avenue and Octavia Street when he noticed a white Acura automobile traveling eastbound on South Claiborne with its headlights off. Officer Hurst waived to the driver, summoning him over in order to notify him that his headlights were off. Officer Hurst said the windows of the Acura were down. The driver, a dark-skinned black male that Officer Hurst later identified as the | ^.defendant, pulled over. A very light-skinned black male was his passenger. As Officer Hurst began to say something to the driver, the driver rapidly accelerated in a northbound direction onto Octavia Street, and the officers pursued him. Officer Hurst’s partner determined that the Acura had been reported stolen. Dunbar turned off Octavia Street onto McKenna Street, and both males fled. Dunbar was subsequently apprehended in the area by a canine unit and arrested. Officer Hurst identified a citation he issued to Dunbar for possession of an open alcoholic beverage container (a beer) in a motor vehicle. Officer Hurst testified that the steering column on the Acura had not been defeated.

Officer Brandon Singleton, Officer Hurst’s partner on the morning in question, identified Dunbar as having been the driver of the car. Officer Singleton ran a computer check of the Acura, and learned it had been reported stolen the preceding day. Officer Singleton testified that he and his partner set up a perimeter after Dunbar and his passenger abandoned the vehicle, and that backup units arrived within a minute to a minute and a half. The defendant was apprehended shortly thereafter. Officer Singleton confirmed on cross-examination that Dunbar and the other individual were still in the stolen Acura when he and Officer Hurst got to the corner of Octavia and McKenna Streets. Officer Singleton identified a traffic citation summons/affidavit he issued to the defendant, charging him with reckless operation of a motor vehicle, driving with no headlights, and speeding. Officer Singleton confirmed that the “vehicle keys” were in the ignition of the Acura. He also confirmed that when he ran a check of the license plate of the Acura he learned the name of the vehicle’s owner. The officer further confirmed that he contacted “her,” and “she” confirmed that “her” car had been stolen. Officer Singleton stated that police ask the owners of recovered stolen vehicles |swhether they wish to have it towed to a secure location or just leave it secured at the location it is recovered. He said they left the Acura at the location it was recovered, implying that the owner requested that it be left there.

Patricia Abrams testified that at approximately 9:00 p.m. on the evening of 15 February 2005, while working at the V.A. Medical Center, she realized she had left her keys in her vehicle. She went outside and discovered that her car, which she had parked in front of the hospital, was missing. She immediately went upstairs and reported it to police. At approximately 5:30 a.m., police contacted her at work about her vehicle. She said she asked them if they could just leave the car on the scene because she could not retrieve it until her shift ended. Ms. Abrams said she did not give the defendant permission to use her vehicle that evening.

Dunbar testified that he worked at a BFI recycling plant. He admitted to having pled guilty in 2002 to accessory after the fact of carjacking, and to having been convicted of unauthorized entry of a business. He said that on the morning in question he was at his home at 2402 Milan Street, talking on the telephone, when he heard a car horn honking outside. He was not expecting anyone. He then heard his doorbell ring. It was an acquaintance, Marvin Robertson (“Robertson”). Robertson told Dunbar that he had some women they could visit. Dunbar got into a car that Robertson told him belonged to his sister. They visited the women somewhere in New Orleans. Robertson was bringing Dunbar home when police signaled for him pull over. Dunbar said Robertson pulled over, but that when the police car began to move, Robertson, who did not have a driver’s license, sped off. Robertson stopped the car at some point, and he, Dunbar, ran, in a state of panic. He said he submitted to an officer with a dog and denied ever having driven the Dear. He replied in the negative when asked whether he saw anything such as a broken steering column or a broken window that would have indicated to him that the vehicle was stolen. Dunbar stated that the keys were in the car, and a purse was on the back seat. He said he did not give the officers Robertson’s name because he was not a tattletale. He said police told him that if he was not going to give them the name of the driver, then he was the driver.

ERRORS PATENT

The record contains one error patent. The record does not contain a minute entry reflecting sentencing. However, the record does contain the sentencing transcript. Considering this, and that Dunbar has not assigned any error regarding the absence of the minute entry reflecting sentencing, any error with regard thereto is harmless. See State v. Francois, 00-1039, p. 2 (La.App. 4 Cir. 1/10/01), 778 So.2d 673, 676 (missing minute entry reflecting sentence was harmless error patent where record contained docket master entry reflecting sentencing and defendant did not raise it as assignment of error).

No other errors patent are noted.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Dunbar argues that the evidence is insufficient to support his conviction.

| ¡/This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent •necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

L98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

La. R.S. 14:68.4(A) states:

Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.

Dunbar argues that the state failed to prove beyond a reasonable doubt that he either took or used a motor vehicle while knowing its use was unauthorized. He notes that the steering column was intact and the keys were in the ignition. He cites two cases in which the evidence was found to be insufficient to prove the respective defendants committed the offense of unauthorized use of a motor vehicle or unauthorized use of a movable, to-wit: State in Interest of O.B., 559 So.2d 31 (La.App. 4 Cir.1990) and State in Interest of Batiste, 367 So.2d 784 (La.1979).

In O.B., supra, a juvenile defendant was apprehended fleeing from a stolen motor vehicle after it crashed during a police pursuit, O.B., 559 So.2d at 33 The defendant testified that he was on his way to catch a bus in Harvey, Louisiana, back to the Eastbank of New Orleans, when an acquaintance offered him a ride. Id. The driver told the defendant that he was going to return the vehicle to his cousin on the Eastbank. The defendant testified that he observed a set of keys in the ignition, and did not see a broken steering column. Id. The steering column had been broken into, but the owner of the vehicle testified that neither the broken steering column nor pieces of it on the floor beneath the driver would have been visible to a rear seat passenger. Id. This court held that aside from the inference |7that could be drawn from the defendant’s presence in the stolen vehicle, the state had presented insufficient evidence to prove that the defendant took or used the vehicle with the knowledge that it was stolen. Id.

In Batiste, supra, the Louisiana Supreme Court found that the evidence was insufficient to support a defendant’s delinquent adjudication for unauthorized use of a movable, the elements of which are identical to those of the offense at issue in the instant case, except that the object in one is a movable, and a motor vehicle in the other. Batiste, 367 So.2d at 789. Police apprehended the defendant in possession of a stolen bicycle. Batiste, 367 So.2d at 785. The defense stipulated that the bicycle had been taken from its owner and was found in the defendant’s possession. A friend of the defendant’s testified that he loaned, and later gave, the bicycle to the defendant. The friend further testified that the bicycle had been given to him by a third individual. That third individual did not testify at trial. The Louisiana Supreme Court held that aside from the inference which could possibly be drawn from the defendant’s possession, no evidence existed tending to prove that he “took or misappropriated” the bicycle. However, the decision is called into question because, contrary to what the Louisiana Supreme Court stated in its analysis, unauthorized use of movable, La. R.S. 14:68, does not require a “misappropriation or taking.” Batiste, 367 So.2d at 789. (“[B]oth theft and unauthorized use of movables require a misappropriation or taking by the culprit.”). Just as with the instant offense of unauthorized use of a motor vehicle, which was enacted in 1995, unauthorized use of a movable requires a “taking or use.” Misappropriation is not an element of either offense. The element of a “taking or use” for unauthorized use of a movable has remained unchanged since at | Sleast 1942, when the prohibition was enacted as Article 68 along with then “new” Louisiana Criminal Code by Acts 1942, No. 43, § 1.

In State in Interest of H.N., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, police apprehended three juveniles who fled from a stolen Mazda RX7 after it crashed during a police pursuit. The three had been passengers in the vehicle. Police found no key in the ignition or damage to the vehicle’s steering column. The owner testified that his 1986 Mazda RX7 was stolen earlier the same day as the three defendants were arrested. It had been locked, and he had not given anyone permission to use it. One juvenile, H.N., testified that he and his two friends were walking when a person in a Mazda RX7 whom he knew offered them a ride. H.N. said he did not know the car was stolen— that a key was in the ignition, the steering column was intact, and there was no broken glass. The driver jumped out while the car was still moving and told the juveniles to run because the car was stolen. H.N. said he panicked and ran. A second juvenile, T.B., testified that he did not know the car was stolen because nothing was broken and there was a key in the ignition. The third juvenile, L.C., testified that he did not know the car was stolen. Relying on its prior decision in O.B., supra, this court held that the state failed to prove beyond reasonable doubt the elements of unauthorized use of a movable.

In State v. Stevenson, 02-1152 (La.App. 4 Cir. 1/22/03), 839 So.2d 203, the defendant was stopped while driving a rental car that had been reported stolen. The vehicle’s, steering column was intact, the key was in the ignition, and none of the vehicle’s windows was broken. This court said the case presented an even stronger case for reversal than had its decision in H.N., supra, because, unlike in H.N., there was no attempt by the defendant to elude police by fleeing, and the | noccupants cooperated with police. This court also noted that there was nothing to indicate that any of the occupants knew that the car had been stolen. The court held that the evidence failed to establish that the defendant took or used the vehicle with the knowledge that it was stolen. In reaching its decision in Stevenson, this court distinguished its decision in State v. Jefferson, 97-2949 (La.App. 4 Cir. 4/21/99), 735 So.2d 769, in which the court affirmed the conviction of Stevenson’s codefendant, Jefferson, on the ground that Jefferson had given a statement to police that she had obtained the vehicle from a woman, but that she did not know the woman’s last name, address, or telephone number. The Stevenson court quoted language from Jefferson that a trier of fact could have concluded that such a story was suspicious and indicative of criminal knowledge and/or intent. This court had also stated in Jefferson that Jefferson knew or should have known that the vehicle did not belong to the woman who allegedly lent her the vehicle, because the rental agreement in the vehicle was in the name of another person.

In neither O.B., supra, nor H.N., supra, did this court cite or discuss the general rule that flight is a circumstance from which guilt can be inferred. State v. Plaisance, 00-1858, p. 16 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1186; State v. Smith, 98-2645, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 314, 317-318. See also State v. Monette, 99-1870, p. 5 (La.App. 4 Cir. 3/22/00), 758 So.2d 362, 36.5 (flight is a factor evidencing guilty knowledge). However, flight from police officers alone cannot be sufficient to prove guilt, given that flight alone is insufficient to justify an investigatory stop based on reasonable suspicion. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Belton, 441 |inSo.2d 1195, 1198 (La.1983); State v. Briley, 01-0143, p. 6 (La.App. 4 Cir. 10/3/01), 798 So.2d 1191,1195.'

In the instant case, on the issue of Dunbar’s knowledge that the vehicle belonged to another and was being used or had been taken either without the owner’s consent, or by means of fraudulent conduct, practices or representations, the defendant’s flight from police was a circumstance indicating guilty knowledge. While it can be noted that after his apprehension Dunbar was issued a citation for having an open alcoholic beverage container in his vehicle, it is highly unlikely that he fled from police because he knew this was illegal and did not want to receive a municipal summons for that infraction.

As discussed, the “vehicle keys” were in the Acura’s ignition, the steering column was intact and had not been defeated, and there was no evidence that any windows were broken. Nor .was there evidence of any other indication that entry into the vehicle had been forced.

However, Dunbar testified that he was only a passenger in the vehicle. That testimony was directly contradicted by the testimony of both Officer Hurst and Officer Singleton, who said Dunbar was the driver. Officer Singleton testified that Dunbar pulled the Acura abreast of the police unit, about a foot away, and that he was eight feet away from the defendant— the distance from his passenger position inside the police unit. Thus, Officer Hurst, in the driver’s seat of the police unit, was even' closer to the defendant than eight feet. The trier of fact could have found that Dunbar lied, and considered that factor indicative of criminal knowledge and/or intent, just as this court hypothesized in affirming the defendant’s conviction for unauthorized use of a movable in Jefferson, supra.

InThus, in the instant case, unlike in O.B., supra, H.N., supra, and Stevenson, supra, the trier of fact had two factors upon which to base a finding of guilty knowledge and/or intent — flight, and the defendant’s false testimony. Therefore, the instant case is distinguishable from those cases.

Another problem with the sufficiency of the evidence in the instant case is that the state presented no direct or compelling circumstantial evidence that the vehicle Dunbar was driving belonged to Patricia Abrams, the owner of the vehicle — as charged in the bill of information. The only testimony by either of the police officers as to the owner of the vehicle was Officer Singleton’s testimony that he learned the name of the vehicle’s owner when he ran a check of the license plate of the Acura. However, the officer never stated the owner’s name. He confirmed that he contacted “her,” and that “she” confirmed that “her” car had been stolen, thus evidencing that the owner was a female. Officer Singleton also stated that police asked the owners of recovered stolen vehicles whether they wish to have their respective vehicles towed to secure locations or have police just leave them secured at the locations at which they are recovered. He said in the instant case they left the Acura at the location where it was recovered. Officer Singleton also testified that the white Acura had been reported stolen “the day before,” meaning February 15, 2005. Ms. Abrams never testified to any descriptive quality — make, model, color, style, etc. — of the vehicle she left parked in front of the V.A. Medical Center with the keys in the ignition. She testified that she discovered it missing at approximately 9:00 p.m. on the evening of 15 February 2005, the night before the defendant was seen driving it. She reported it to police that night. She also testified that at approximately 5:30 a.m. on the following day, police contacted her at work about her vehicle. She asked them to leave the car on the scene | ^because she could not retrieve it until her shift ended. Ms. Abrams also testified that she did not give the defendant permission to use her vehicle that evening.

The only evidence upon which the jury could base an inference that the vehicle Dunbar was driving belonged to Patricia Abrams was that: (1) her vehicle was taken by someone without her authority on 15 February 2005, the same day the Acura the defendant was driving was reported stolen; (2) Officer Singleton contacted the female owner of the stolen Acura at some point after approximately 4:25 a.m. on 16 February 2005, notified her that her vehicle had been recovered, and was advised by the female owner that she wanted the Acura left at the scene — which is consistent with Ms. Abrams receiving a call from police at 5:30 a.m. on 16 February 2006, notifying her that her vehicle was recovered; she in turn advised the police caller that she wanted her vehicle left at the scene; and (3) she left the keys in her car, and the Acura being driven by the defendant had the “vehicle keys” in the ignition when police recovered it.

Viewing all of the evidence in a light most favorable to the prosecution, it does not appear and we do not find that any rational trier of fact could have concluded beyond a reasonable doubt that Dunbar took or used a motor vehicle belonging to Patricia Abrams, thus rendering moot the issue of guilty knowledge and/or intent.

We find this assignment of error has merit.

In light of the foregoing, we pretermit a discussion of the two remaining assignments of error, to-wit: (1) the trial court erred in denying Dunbar’s motion to quash the habitual offender bill of information and (2) that his twelve-year sentence at hard labor as a third-felony habitual offender is unconstitutionally excessive.

| ^CONCLUSION

For the reasons assigned in addressing Assignment of Error No. 1, we find that the evidence was insufficient to sustain Dunbar’s conviction, and therefore reverse his conviction and sentence.

CONVICTION AND SENTENCE REVERSED.

      . Browning Ferris Industries.

      . When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55; State v. Hearold, 603 So.2d 731, 734 (La.1992).


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alan B. SMITH, Jr.
    No. 2006-KA-1091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, and Gavin H. Guillot, Law Clerk, Tulane Law School, for Appellee, State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Alan B. Smith, Jr.
    Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.
   LEON A. CANNIZZARO, JR., Judge.

hThe defendant, Alan B. Smith, was convicted of attempted possession of cocaine in violation of La. R.S. 40:(979)967(C). He was sentenced to three years at hard labor to run concurrently with certain other sentences imposed upon him. Mr. Smith is now appealing his sentence.

STATEMENT OF THE CASE

Mr. Smith was charged by bill of information with one count of violating La. R.S. 40:967(C), which makes it unlawful to possess, among other controlled dangerous substances, cocaine. Mr. Smith pled not guilty at his arraignment. He waived his right to a jury trial, and he was tried by the trial court judge and found guilty of attempted possession of cocaine. Mr. Smith was sentenced to three years imprisonment at hard labor for his attempted possession of cocaine. Mr. Smith filed a motion for an appeal, which was granted, and he is now seeking a reconsideration of his sentence. The facts in this case are irrelevant for purposes of this appeal, because the only issue that Mr. Smith has raised on appeal is the length of his sentence.

| .ASSIGNMENT OR ERROR

We have found one error patent in the instant case, and the error patent is the same as the sole assignment of error raised by Mr. Smith. Although Mr. Smith was charged with possession of cocaine, he was found guilty of the crime of attempted possession of cocaine. The maximum prison sentence for the offense of possession of cocaine is five years with or without hard labor. La. R.S. 40:967(0(2). The maximum prison sentence for the crime of attempted possession of cocaine is imprisonment in the same manner as for the offense of possession of cocaine not to exceed one-half of the longest term of imprisonment prescribed for possession of cocaine. La. R.S. 40:979(A). Therefore, the maximum prison sentence for the crime of attempted possession of cocaine is two and one-half years with or without hard labor.

The trial court imposed a three year prison sentence on Mr. Smith, which exceeds the statutory maximum for the offense of attempted possession of cocaine. Therefore, Mr. Smith’s assignment of error has merit. His sentence is illegal, a fact that the State has conceded in its appellate brief.

DECREE

Based on the foregoing discussion, Mr. Smith’s conviction is hereby | .affirmed, but his sentence is vacated. This case is remanded so that Mr. Smith can be re-sentenced in accordance with La. R.S. 40:979(A).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RE-SENTENCING.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Michael GUICE, Jr.
    No. 2006-KA-1146.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE.
   TERRI F. LOVE, Judge.

hOn December 16, 2004, in case number 454-594 “K”, the state filed a bill of information charging defendant, Michael Guice, Jr., with possession with intent to distribute cocaine, in violation of La.R.S. 40:967. Defendant’s bond was set at $10,000.00; defendant filed a bond on December 17, 2004. Defendant pleaded not guilty at his arraignment on January 6, 2005. A hearing non motions was set for February 4, 2005 and continued, by a defense motion, to March 10, 2005. On that day, defendant failed to appear for the hearing on motions. An alias capias was issued for his arrest without bond, and the case was continued without date. Subsequently, on April 18, 2005, defendant appeared in court without counsel; the alias capias was recalled. A motion hearing was set for May 6, 2005; defendant again appeared without counsel. A hearing to determine counsel was set for May 17, 2005. On that date the district court found no probable cause to hold defendant pending his trial which was set for June 21, 2005. On that day, the state requested a continuance which the district court denied. The state entered a nolle prosequi, and defendant was released.

|sThe case was reinstated fifteen days later on July 6, 2005 as case number 460-952 which was allotted to Section “K” to follow the previous case, 454-594 “K”. On August 11, 2005, defendant was appointed defense counsel; defendant entered a plea of not guilty; defense counsel filed a motion to quash the bill of information. The district court granted the motion on August 17, 2005. The state appeals. The state filed a motion and order to supplement the record on September 18, 2006 which was subsequently granted by this court on September 21, 2006.

FACTS

Because the record in case number 454-594 is unavailable, the facts surrounding defendant’s arrest, which can be adduced from the instant case, are limited to what is stated in the bill of information. On October 12, 2004, the defendant willfully and unlawfully possessed, with intent to distribute, a controlled dangerous substance, to wit: cocaine (crack) in violation of La.R.S. 40:967.

MOTION TO QUASH

On August 11, 2005, relator filed a two paragraph motion to quash arguing that his constitutional right to a speedy trial was violated because the state nolle prose-quied the charges and subsequently reinstated them after the state was denied a continuance of the hearing on motions.

In a single assignment of error, the state counters that the trial court improperly granted defense counsel’s motion to quash the bill of information reinstituting prosecution because defendant failed to carry his burden of proving that the delay between the filing of the original bill of information and the filing | sand granting of the motion to quash was presumptively prejudicial and triggered a violation of defendant’s constitutional right to a speedy trial.

A defendant has the right under the Sixth Amendment and Article 1, Section 16 of the Louisiana Constitution to a speedy trial. This constitutional right attaches when an individual becomes an accused either by formal indictment or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Sweeney, 443 So.2d 522 (La.1983). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out the following four factors to determine whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant as a result of the delay. The court stated that the length of the delay was the triggering mechanism; and, until the delay was presumptively prejudicial, there was no need to inquire into the other factors. The court further stated that the length of the delay, which would provoke such an inquiry, was dependent upon the peculiar circumstances of the case. The court noted that the reason for the delay was closely related to the length of the delay and that different weights would be given to different reasons. As to the defendant’s assertion of his right to a speedy trial, the court stated that the assertion of the right was entitled to strong evidentiary weight in determining whether the defendant was deprived of his right. Regarding the final factor, the court stated that prejudice was to be assessed in light of the interests of the defendant which the speedy trial right was designed to protect. The court identified those interests as preventing oppressive pretrial incarceration, minimizing the anxiety and concern of the defendant, and limiting the possibility that the defense would be impaired.

|4In State v. Reaves, 376 So.2d 136 (La.1979), the defendant was charged with possession of one marijuana cigarette, a misdemeanor, and trial was set and continued four times in the three and one-half months since charges had been brought. On the fourth trial date, the State moved for a continuance because its principal witness was absent. The trial court denied the continuance, and the State nolle prose-quied the bill of information. The State then filed a new bill of information, which the defendant moved to quash on the basis that he had been denied his right to a speedy trial. The trial court granted the motion, and the Supreme Court affirmed. The court stated that, although the defendant had not been subjected to an extremely long delay, he was denied his right to a speedy trial. The continuances had been caused by the failure of the arresting officer to appear at trial to testify for the State, and the court stated that the responsibility for these repeated absences had to rest with the State. The defendant had not moved for a speedy trial before filing his motion to quash. The court stated that because the defendant was charged with a misdemeanor, the prejudice requirement was not as stringent.

In State v. DeRouen, 96-0725, p. 2-3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, fifteen months elapsed between institution of prosecution and the granting of the motion to quash. Two of the trial continuances were attributable to the State and the balance to weather, a crowded docket, and the actions of co-defendants. Furthermore, the defendant was not incarcerated during the pendency of the proceedings. In finding that the trial court erred, this Court stated that the |5defendant was not prejudiced to the extent found in State v. Esteen, 95-1079 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098.

In two other cases, this Court has held that the right to a speedy trial was not violated by a nineteen month delay and a twenty-two month delay between the filing of the bill of information and the defendant’s motion to quash. In State v. Brown, 93-0666 (La.App. 4 Cir. 7/27/94), 641 So.2d 687, there were eight continuances during the nineteen months between the institution of prosecution and the granting of the motion to quash, and only two were directly attributable to the state. Furthermore, the defense did not object to the delays until the filing of its motion to quash, and no prejudice to the defendant was shown. Id.

In State v. Johnson, 622 So.2d 845 (La. App. 4 Cir.1993), the defendant argued in a pro se assignment of error on appeal that he had been denied a speedy trial. Although there was a twenty-two month delay between the date of arrest and the day of trial, this Court found that much of the delay was due to the failure of the defendant to appear in court. Additionally, he did not argue that he was prejudiced by the delay.

In the instant case, slightly over eight months elapsed between the filing of the original bill of information and the filing and granting of the motion to quash. The felony charge of possession with intent to distribute cocaine carries a term of imprisonment of not less than two nor more than thirty years at hard labor with the first two years to be served without benefit of parole, probation or suspension of | ^sentence, and may carry a fine of not more than $50,000.00. Thus, the eight-month delay is not presumptively prejudicial. Furthermore, the other Barker factors do not support defendant’s claim. The record reflects that defendant’s first motion hearing on February 4, 2005 was continued by the defense to March 10, 2005. On that date, defendant failed to appear and an alias capias was issued for his arrest. Subsequently, on April 18th and May 6th defendant again appeared without counsel. A defense continuance was granted to determine counsel on May 17th the same day the district court denied the state’s request for a continuance and found no probable cause to hold defendant pending his trial on June 21, 2005 when the state was again denied another continuance. The only continuances, which contributed to the eight-month delay, were granted to the defense. The state was not granted any of its three requests for a continuance. Therefore, none of the eight-month delay can be attributed to the state. In addition, defendant does not allege in his motion to quash, nor does the record reflect, that he ever filed a motion for a speedy trial. Finally, defendant has not alleged in his motion to quash any prejudice caused by the delay. He was free on bond throughout the proceedings. He has not alleged that any witness or evidence has been lost or compromised due to the delay. Therefore, taking all of the Barker factors into consideration, it appears that there was “palpable abuse” on the part of the trial court in granting defendant’s motion to quash. See, State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, and State v. Harris, 2003-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16.

DECREE

The ruling of the district court granting the motion to quash is hereby reversed and the case is remanded for further proceedings.

      . Defendant was charged with his co-defendant, Kiom Y. Smith.

      . In his motion to quash defendant did not assert a violation of his statutory right to a speedy trial pursuant to La.C.Cr. P. art. 578 which requires that trial in a non-capital case be commenced within two years of the institution of prosecution. Pursuant to La.C.Cr.P. art. 580, the time period set forth in Article 578 is suspended until the trial court’s ruling when the defendant files a motion to quash or other preliminary plea; but in no case shall the State have less than one year after the ruling to commence trial.

      . In Esteen, this court affirmed the trial court's granting of a motion to quash. The court found that a two and one-half year delay between the filing of the charges and trial was presumptively prejudicial triggering an inquiry into the other factors. The case was continued twenty-two times, mostly due to the state and the trial court. Twice the state nolle prosequied the charges when it was not ready to begin the trial. Although the defendant did not move for a speedy trial nor object to any of the continuances, this court concluded that these omissions were not dispositive, and found that they were only one factor to consider. This court also found that the defendant was "clearly prejudiced” by the delays since he spent eleven months incarcerated, and his defense was severely hampered by the death of a crucial witness.


author: JONES, Judge.

text:
    Antoinette RIDGEWAY and Florine Ridgeway v. Arthur PIERRE and State Farm Insurance Company. Kathleen Ridgeway v. State Farm Insurance Company and Arthur Pierre, Jr.
    Nos. 2006-CA-0521, 2006-CA-0522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2007.

      Louis A. Gerdes, Jr., New Orleans, LA, for Kathleen Ridgeway.
    David A. Strauss, Christian A. Garbett, King, LeBlane and Bland, P.L.L.C., New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge TERRI F. LOVE).
   JONES, Judge.

hThe Appellants, State Farm Insurance Company and Arthur Pierre, appeal an adverse judgment by the trial court which denied their post trial Motions For Involuntary Dismissal. In the Motion, the Appellants alleged: (1) that the named Appellee, Kathleen Ridgeway, failed to request service of process on Mr. Pierre within the time prescribed by law; and (2) that Ms. Ridgeway sought to bring an indirect action, under La. R.S. 22:655, against State Farm, alone, as insurer. Further, they appeal the adverse monetary judgment awarded by the trial court. We Affirm.

FACTS AND PROCEDURAL HISTORY

This matter stems from a two-car accident which occurred in New Orleans on February 13, 2001. The Appellee, Kathleen Ridgeway, and another person, Florine Ridgeway, were passengers in a vehicle operated by Antoinette Ridgeway, when it was involved in an accident with a vehicle operated by Arthur Pierre. Mr. Pierre’s vehicle was insured by State Farm Auto Insurance.

li>On February 13, 2002, Kathleen Ridge-way filed her own lawsuit. In the suit she named State Farm and Mr. Pierre as defendants. She alleged that Mr. Pierre ran a stop sign and collided with her vehicle thereby causing “severe injury and property damage.”

However, in that lawsuit, State Farm contended that Kathleen Ridgeway’s attorney instructed the Orleans Parish Clerk of Court to withhold service of the Petition on the defendants. State Farm was not served with the Petition until April 10, 2002, but the Appellants assert that this was done only after Kathleen Ridgeway’s attorney paid for and requested service on State Farm only. State Farm answered the petition timely. However, Mr. Pierre was never served with the petition, nor did he ever file responsive pleadings to the appellee’s petition on his own behalf.

Antoinette Ridgeway and Florine Ridge-way filed a separate lawsuit on February 18, 2002, in First City Court for New Orleans. Antoinette and Florine Ridge-way named as defendants and requested service on both State Farm and. Mr. Pierre.

On May 3, 2002, State Farm filed its Motion to Consolidate both lawsuits, without any objection. The lawsuits were subsequently consolidated via signed order dated August 5, 2002.

On September 22, 2004, State Farm and Mr. Pierre filed an expedited Motion for Partial Summary Judgment, seeking dismissal of Antoinette Ridgeway’s claims up to $10,000.00 under the Louisiana “no pay-no play” statute. Antoinette Ridgeway was later dismissed from the case. The case subsequently proceeded to trial on March 4, 2005.

| ⅜At the close of trial, State Farm filed a Motion to Dismiss Kathleen Ridgeway’s claims against Mr. Pierre, with prejudice, since she had never served him with the Petition, and Mr. Pierre had never expressly waived service. State Farm contends that the lawsuit was an improper direct action against them in their capacity as Mr. Pierre’s insurer, and State Farm also moved for dismissal from the lawsuit.

In a judgment, dated March 14, 2005, the trial court cast State Farm in judgment and awarded Kathleen Ridgeway $9,500.00 in general damages, $2365.00 in medical expenses, and $600.00 for Dr. McKenna’s testimony fees, along with interest and court costs from the date of judicial demand.

With Respect to Florine Ridgeway, the trial awarded her $8,412.00 in general damages, inclusive of medical expenses, plus $1,250.00 in medial expenses .and $650.00 for the testimony of Dr. Stewart Altman, along with interest and court costs from the date of judicial demand.

After an unopposed Motion to Amend Judgment was filed on March 15, 2006, the trial court issued an amended judgment on March 16, 2006 which re-iterated the dispositions of the earlier judgment, but also included its dismissal of Antoinette Ridge-way’s suit, along with its denial of State Farms’ post trial motions to dismiss the lawsuit. This timely appeal followed.

In their appeal, the Appellants assert five (5) assignments of error: the district court erred in failing to dismiss Kathleen Ridgeway’s claims against Arthur Pierre since he was never served with Kathleen Ridgeway’s petition; the district court erred in failing to dismiss Kathleen Ridge-way’s claims against State Farm since none of the factors available for a direct action under La. R.S. 22:655 existed; the district court erred in casting Arthur Pierre and/or State Farm in judgment since 14Arthur Pierre was never served with Kathleen Ridgeway’s petition, that and a direct action against State Farm was improper; the district court erred in finding that the subject auto accident caused Kathleen Ridgeway’s injuries; and the district court erred in awarding Kathleen Ridgeway excessively high general and special damages.

DISCUSSION

Assignments of Error One and Three

In their first and third assignments of error, the Appellants argue that the trial court erred in failing to dismiss Kathleen Ridgeway’s claims against Arthur Pierre since he was never served with Kathleen Ridgeway’s Petition; and that the trial court erred in casting Arthur Pierre and/or State Farm in judgment since Mr. Pierre was never served with Kathleen Ridgeway’s petition and that a direct action against State Farm was improper.

Generally, “[t]he Motion for Involuntary Dismissal is reviewed under the manifest error standard of review.” Franicevich v. Caillou Island Towing Co., Inc., 1997-1887, p. 3, (La.App. 4 Cir. 3/17/99) 732 So.2d 93, 95, 1999 A.M.C.2039. Addi tionally, this Court has also held that:

A dismissal under Article 1672 B should not be reversed absent manifest error. The manifest error standard provides that where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Trans. & Dev., 617 So.2d 880, 883 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. at 882. The reviewing court may not disturb the reasonable evaluations of credibility and reasonable inferences of fact when viewed in light of the record in its entirety even though it feels its evaluations are more [¡^reasonable. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in testimony. Id. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon credibility determination. Id. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Kelly v. Housing Authority of New Orleans, 2002-0624, p. 6, (La.App. 4 Cir. 8/14/02) 826 So.2d 571, 575.

State Farm and Mr. Pierre contend that Filson v. Windsor Court Hotel, 2004-2893, (La.06/29/95), 907 So.2d 723, is controlling in this matter. In Filson, a co-defendant in a civil suit filed a motion for involuntary dismissal on the basis that a request for service of process had not been made within ninety days. However, the co-defendant filed a motion for involuntary dismissal after filing an answer and propounding discovery on the plaintiffs. The district court denied the motion, while the Court of Appeal granted the defendant’s writ application and reversed the district court’s judgment, thereby granting the motion for involuntary dismissal, without prejudice. The Louisiana Supreme Court granted Certiorari and held that service was not waived by the co-defendant, and affirmed the court of appeal.

However, the instant case is distinguishable from Filson. The record reflects that the State Farm filed its Motion for Involuntary Dismissal after having agreed to consolidate the separate lawsuits “early on.” Although the appellants employed the proper procedural device to challenge the sufficiency of service or citation in | fithe present case, the very fact that the matters were consolidated puts the issue in a different posture than a case such as Fil-son, that was not consolidated.

In a case which has a similar procedural history to the matter sub judice, Cunningham v. Chalmette Medical Center, 2003-0214, (La.App. 4 Cir. 10/15/03), 859 So.2d 832, a physician who was named in a medical malpractice suit raised several exceptions, including a declinatory exception of insufficiency of service of process, when the suit was subsequently consolidated with another case in which he was a party, but had not been duly served within the time period provided for by law. This Court held that the physician’s exception of insufficiency of service of process was moot, where proper service was made on physician in second lawsuit, that was consolidated with original lawsuit. Cunningham, p. 3, 859 So.2d at 835.

We find that in the present case, State Farm cannot make a successful argument concerning its exception given: (1) that Mr. Pierre was served in another suit arising out of the same transaction and occurrence of the original suit, for which he was duly served with service of process; and (2) both suits were subsequently consolidated by State Farm. The lack of service of process on Mr. Pierre in the Kathleen Ridgeway’s lawsuit was waived, or rather “cured,” due to Mr. Pierre’s failure to timely raise an exception of insufficiency of service of process, prior to State Farm’s Motion to Consolidate the cases. The consolidation of the cases and subsequent participation in the litigation of the consolidated cases, by the appellants, specifically Mr. Pierre, constituted a general appearance. Thus, the trial court was not manifestly erroneous or clearly wrong in its decision to deny the appellants’ Motion for Dismissal.

Assignment of Error Two

In the appellants’ second assignment of error, State Farm argues that the trial 17court erred in failing to dismiss Kathleen Ridgeway’s claims against State Farm, since none of the factors available for a direct action under La. R.S. 22:655 were satisfied.

La. R.S. 22:655(B) provides as follows:

B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. However, such action may be brought against the insurer alone only when:
(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
(b) The insured is insolvent;
(c) Service of citation or other process cannot be made on the insured;
(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
(e) When the insurer is an uninsured motorist carrier; or
(f) The insured is deceased.

In support of this argument, the appellants cite White v. State Farm Insurance Company, 2003-0754, (La. App.4.Cir.ll/26/03), 862 So.2d 263, to support their argument that Kathleen Ridge-way improperly filed a direct action against State Farm alone, as Mr. Pierre’s insurer. In White, the victims of an automobile accident sued the car owner and his liability insurer, State Farm. After | strial, State Farm and the owner moved for an involuntary dismissal pursuant to La. C.C.P. art 1672, arguing that that the vehicle owner/policyholder was not negligent in causing the accident. The First City Court of New Orleans dismissed the owner/policyholder of the vehicle, pursuant to La. C.C.P art. 1672, since he was not the driver at the time of the accident. The insured’s son was actually the driver at the time of the collision. State Farm then moved for the court to grant its exception of no right of action and dismissal of the suit on the basis that La. R.S. 22:655(33) provides that a direct action against an insurer can only be maintained under certain circumstances, citing, Foltmer v. James, 2001-1510 (La.App. 4 Cir. 9/12/01), 799 So.2d 545. The First City Court of New Orleans rendered judgment against State Farm alone, denied State Farm’s exception of no right of action, but allowed the plaintiffs to amend their petition to add the actual driver of the vehicle to the lawsuit. However, the plaintiffs amended their petition nearly five months post judgment. State Farm appealed.

On appeal, this Court, in White, held that: the plaintiffs had no right of action against the liability insurer alone after the owner of the vehicle was dismissed. White, 862 So.2d at 266, and that the plaintiffs could not amend their petition to add the insured driver after the judgment had been rendered against State Farm alone since “once a final judgment has been rendered, there generally can be no amended petition as there is no longer a petition before the court to amend. State, Through Louisiana Riverboat Gaming Com’n v. Louisiana State Riverboat Gaming Enforcement Division, 97-0167 (La.App. 1 Cir. 6/20/97), 696 So.2d 645.” White, 862 So.2d at 266.

However, we find that the White case is not applicable to the matter sub judice for the same reasons we have distinguished Filson v. Windsor Court J¿Hotel, 2004-2893, (La.06/29/95), 907 So.2d 723. This record reflects that the State Farm moved, without any opposition, to consolidate both Ridgeway lawsuits, despite Mr. Pierre’s lack of citation and service. Once the trial court granted the Motion to Consolidate, both State Farm and its insured, Mr. Pierre, were all made defendants in both lawsuits, as reflected in court filings which appear in the record. State Farm also contends that it filed responsive pleadings which are titled “for State Farm and Arthur Pierre.” State Farm appears to argue that the titles to the pleadings are misnomers, however, these motions appear in the court record and the language is unambiguous. The result of captioning a pleading in such a specific and unambiguous manner not only puts the Court on notice which party petitions a court for relief, but it also puts other parties on notice as to who authored the pleading.

The consolidation in this case renders this assignment of error moot because both the Appellant, State Farm, and its insured were parties to the action, post consolidation. Therefore, this claim does not have merit.

Assignments of Error Four and Five

In the appellants’ fourth and fifth assignments of error, State Farm argues that the trial court erred in finding that the subject accident caused Kathleen Ridgeway’s injuries and that the trial court erred in awarding Kathleen Ridgeway excessively high general and special damages.

“In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614. Where a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 |1flSo.2d 840, 844-845 (La.1989).” Lindsey v. USAA Property and Cas. Ins. Co., 2002-0797, p. 6, (La.App. 4 Cir. 10/9/02), 830 So.2d 335, 338-39.

As to the whether the accident in question caused Ms. Ridgeway’s injuries, “a plaintiff has the burden of proving that his injuries were caused by the accident in question. Lacy v. ABC Ins. Co., 97-1182 (La.App. 4 Cir. 4/1/98), 712 So.2d 189. However, the plaintiffs disability is presumed to have been caused by the accident if, before the accident, he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, so long as the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973, 980 (La.1991). After this presumption has been established, the burden shifts to the defendant to prove that some other factor could have caused plaintiffs injuries. Maranto v. Goodyear Tire and Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757.” Lindsey, p. 7-8, 830 So.2d 335, 340.

The record indicates that State Farm and Mr. Pierre entered into an oral stipulation which clearly indicated that Mr. Pierre was at fault for the subject accident. This stipulation cannot be ignored given the fact that Kathleen Ridgeway was in the vehicle that Mr. Pierre collided into. The record also reflects that in the present suit, Kathleen Ridgeway’s bodily injuries, which she allegedly sustained as a result of Mr. Pierre’s negligence, caused her to seek medical treatment with Dr. Dwight McKenna.

At trial, Dr. Dwight McKenna testified that he treated Kathleen Ridgeway, beginning around February 23, 2001. At the time of her initial visit, her chief medical complaint was “[l]ower back pain.” He also testified that Kathleen |nRidgeway gave him a history in which she indicated that she had been in an auto accident. He also testified that upon Kathleen Ridge-way’s physical exam, her blood pressure was 122/82, and that all other findings were “essentially normal.” However, there were positive findings with respect to her back pain, and Dr. McKenna testified, that “[Kathleen] had spasms in the lumbar sacral muscles. There was pain with flexion and rotations.”

When he was questioned about the significance of the spasms, Dr. McKenna indicated that a “spasm is an objective finding that usually indicates that an insult has occurred to a muscle.” Dr. McKenna prescribed muscle relaxants and heat therapy to treat Kathleen Ridgeway’s injuries.

Additionally, Dr. McKenna testified that Kathleen Ridgeway reported for treatment as follows: in March, she came to the office for treatment four times; in April, she came five times; in May, she reported four (4) times; in June she came four times; in July, she also came in four times; in August, she reported six times. Dr. McKenna also testified that he subsequently discharged Kathleen Ridgeway on August 6, 2001, and he opined that the injuries for which he treated Kathleen Ridgeway, were all related to the car accident which occurred on February 13, 2001.

Based upon this Court’s review of the record, we cannot say that the trial court committed manifest error in finding that the injuries which Kathleen Ridgeway complained of in her Petition are not supported by the stipulation made by the appellants and the treatment and assessments made by a medical professional. The trial court found Dr. McKenna’s testimony credible, therefore, the burden shifted to the defendants to show that some other causal connection or |¶ ¿factor could have caused her injuries. Lindsey, 830 So.2d at 340. We find that the appellants’ fourth assignment of error does not have merit.

In the fifth assignment of error, the appellants argue that the general and special damage awards granted by the district court are excessive. “[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.9/3/93), reh. denied, (10/7/93).

Additionally, “[t]he standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages.” Youn, 623 So.2d at 1257, 1261. Furthermore, “[r]easonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id.

liaSince the Court has previously concluded that the record supports the causal connection between the accident and the injury, and these determinations are based upon credible testimony, this Court will not disturb the court’s general damage awards. We cannot say that the awards constitutes manifest error or are clearly wrong. The appellants’ fifth assignment of error is without merit.

CONCLUSION AND DECREE

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . While the Appellants cite errors of the district court, the matter was tried in a city court.

      . The record indicates that the relationship between the plaintiffs is: grandmother (Antoinette Ridgeway), her daughter (Kathleen Ridgeway), and her granddaughter (Antoinette Ridgeway).

      . The record indicates that State Farm filed pleadings "on Behalf of State Farm and Arthur Pierre.”

      . The Appellants have raised a similar argument concerning Kathleen Ridgeway’s improper direct action in her second assignment of error. The Court will address the issue in the Appellants' second assignment of error.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    NEW ORLEANS REDEVELOPMENT AUTHORITY v. James M. PITTMAN, The City of New Orleans and the United States of America.
    No. 2005-CA-1002.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 2007.
    Rader Jackson, Jackson & Mcpherson, L.L.C., New Orleans, LA, Counsel for Plaintiff/Appellee.
    Allen H. Borne, Ryan P. Reece, New Orleans, LA, Counsel for James Pittman.
    Edwin R. Murray, Murray, Darnell & Associates, L.L.C., New Orleans, LA, Counsel for Intervenor, Holy Cross College, Inc. c/b/a Holy Cross School.
    (Court composed of Chief Judge JOAN BERNARD Armstrong, Judge DENNIS R. BAGNERIS SR. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|TThe defendant-appellant, James M. Pittman, appeals a judgment denying his petition to annul a judgment of expropriation in favor of the plaintiff-appellee, New Orleans Redevelopment Authority (“NORA”). We affirm.

On September 15, 2000 the New Orleans Department of Health declared the immovable properties located at 4970 St. Claude Avenue and 1030-32 to be blighted. On December 17, 2003, NORA entered into an after acquired purchase contract with Holy Cross College, Inc. d/b/a Holy Cross School (“Holy Cross”) for those two properties.

In October of 2004, NORA filed a petition for expropriation seeking to take the properties from their record owner, the defendant-appellant, Mr. Pittman. Mr. Pittman was served with the petition and citation along with an Order setting the case for trial on January 7, 2005. The citation referenced the petition, but made no mention of the Order setting the case for trial. The failure of the citation to encompass the Order setting the case for trial forms the crux of this appeal.

Mr. Pittman filed an answer on December 14, 2004. On January 7, 2005, after a trial on the merits the court rendered a final judgment of expropriation against Mr. Pittman. Notice of the judgment was mailed to Mr. Pittman on January |⅞21, 2005. The judgment became final when no motion for new trial was filed and no appeal was taken.

On February 1, 2005, Mr. Pittman filed a Petition to Annul Judgment based on the allegation that he was not “legally cited to appear,” and that the judgment was “not legally obtained.” In response, NORA filed its answer and an exception to the use of summary procedure on February 22, 2005.

On March 8, 2005, the trial court signed an order accepting Holy Cross’ petition in intervention in opposition to Mr. Pittman’s petition to annul. Holy Cross has also filed a brief opposing Mr. Pittman’s appeal which we have carefully considered.

After a trial on the merits of the annulment on March 18, 2005, the court ruled against Mr. Pittman based on a finding that he was in fact served on December 2, 2004.

In his reply brief on appeal, Mr. Pittman emphasizes that he is not complaining about lack of service or notice of the expropriation proceeding. After all, he did file a timely answer. His sole contention on appeal is that the Order setting forth the trial date annexed to the petition does not satisfy the citation/notice the requirements of La. R.S. 19:5. Mr. Pittman argues that La. R.S. 19:5 mandates that he be served with a separate notice or citation in addition to the information concerning the trial date contained in the Order annexed to and served with the petition. The citation refers only to the petition for expropriation, making no mention of the Order fixing the trial date.

| ¡¡This expropriation proceeding is subject to the special citation/notice provisions of La. R.S. 19:5 Band C:

B. The clerk of court shall issue to the defendant, at least sixty days before the time fixed for the trial, a notice signed by the clerk in his official capacity and under the seal of his office, accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof, and a certified copy of the order for trial.
C. The notice shall contain the following:
(1) The date of issuance.
(2) The title of the cause.
(8) The name of the person to whom it is addressed.
(4) The title and location of the court issuing it.
(5) The date fixed for trial.
(6) A statement that the person cited must file an answer within the fifteen day period after service of citation and that failure to file an answer within the fifteen day period constitutes a waiver by the defendant of all defenses to the suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property.

Thus, the notice to the defendant required by La. R.S. 19:5 in expropriation proceedings calls for specific information. It is uncontested that the order fixing the trial date along with all of the other information required by the statute was served on Mr. Pittman at the same time the petition was served on him. The trial order clearly and unambiguously informed Mr. Pittman of the trial date. Additionally, we need not concern ourselves with the failure of the citation to comply with the 19:5 C(6) requirement of describing the consequences of failing to file a timely answer as Mr. Pittman filed his answer timely and does not raise that as an issue.

| ¿Therefore, while it might be argued that service on Mr. Pittman was not in conformity with a strict literal reading of the statute, there is no doubt that in substance all of the information required to be served on him was in fact served on him. There are no due process issues here. There was proper service and the notice in the form of the trial order was timely and fully informative.

Thus, NORA contends that it is sufficient that the Order fixing the trial date was served on Mr. Pittman and that it is not required that the trial date be separately referred to in the 19:5 citation/notice. We agree.

The notice Mr. Pittman complains was not served on him is not, under the facts of this case, analogous to the citation that is required to accompany a normal petition instituting suit. The citation accompanying a petition is intended to furnish additional legally vital information not included in the petition — it officially informs the defendant that an answer is called for and tells the defendant when that answer is due, along with an admonition of the potential for an adverse judgment by default for failure to file a timely answer — information not officially found in the petition, which information is necessary for due process. In the instant case, Mr. Pittman was served with a copy of the trial order, an official court document, served by an official process server, containing all of the information Mr. Pittman claims should have been in the notice. To put it another way, Mr. Pittman had both service and notice. As there was formal service in the instant case, the instant case is not analogous to those cases holding that actual notice is insufficient in the absence of proper service

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The "notice” referred to in 19:5 is what is more commonly referred to as the “citation” in matters of service of process. Louisiana Power & Light Co. v. Caldwell, 353 So.2d 371, 375 (La.App. 1 Cir.1977); Tenneco Inc. v. Earhart, 220 So.2d 109, 110-111 (La.App. 3 Cir.1969),; Michigan Wisconsin Pipe Line Co. v. Sugarland Development Corp., 221 So.2d 593 (La.App. 3 Cir.1969).


author: AMY, Judge.

text:
    Purvis TOUCHET v. Mark HAMPTON.
    No. 2006-1120.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Rehearing Denied March 21, 2007.

      W. Alan Lilley, Lafayette, LA, for Defendant/Appellee: Mark Hampton.
    Carrol L. Spell, Jr., Milton, LA, for Plaintiff/Appellant: Purvis Touchet.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe plaintiff filed a claim for battery, alleging that the defendant physically accosted him at his place of employment. At the close of the plaintiffs case, the defendant moved for an involuntary dismissal. The plaintiff appeals the trial court’s granting of the motion. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Purvis Touchet, was a sales manager at Hampton Mitsubishi, a car dealership owned by the defendant, Mark Hampton, for approximately three years. Touchet testified that he briefly left his employment with the dealership but subsequently returned to his former job position. He testified that his employment was terminated during the summer of 2002.

According to Hampton, the parting was amicable. However, he testified that in October 2002, he received a telephone call from Touchet in which “he basically was sort of making fun of our business because our business had gone down.” Hampton stated that he hung up the telephone and that Touchet called back later that day. Hampton did not speak with him. Hampton testified that when he spoke with Tou-chet again, Touchet cursed him, threatened him, and told him that he knew where he lived. According to Hampton, Touchet continued to call and when he did not answer, Touchet left him several threatening voice mail messages, three of which were left on October 13, 2002.

| aHampton testified that on October 19, 2002, he went to Jackie Edgar RV Center, Touchet’s place of employment, “[bjecause it was a public place, and I felt it was the safest place to talk to him.” Touchet was not there. According to Hampton, he returned to Jackie Edgar RV Center on October 22, 2002 to “tell [Touchet] to quit harassing me and to ask him to stop calling me.” Hampton asked if Touchet was in, and someone pointed him towards Tou-chet’s office. Hampton testified that when he entered Touchet’s office, Touchet,

whose back was. to Hampton, quickly turned around in his chair and yelled “F[ — k] you, Hampton.” Hampton stated that he was startled and scared because it appeared as if Touchet “was going to hit me, what he said he was going to do.” Hampton testified that he defended himself by hitting Touchet. Although he did not know how many times he hit Touchet, Hampton surmised that the incident lasted approximately twenty seconds before Tou-chet’s co-worker, David Raggette, intervened and pulled Hampton off Touchet. Hampton immediately left the premises.

Touchet filed suit against Hampton, seeking damages for “medical expenses, physical pain and suffering, mental anguish and humiliation.” A bench trial was held on May 31, 2005. At the close of Touchet’s case, Hampton moved for an involuntary dismissal “on the issue[s] of consent and self-defense[.]” The trial court granted the | ¡¡motion. Touchet appeals, asserting the following assignments of error:

The trial court erred in granting defendant/appellee’s motion for involuntary dismissal.
The trial court erred in placing the burden of proof on plaintiff/appellant to preclude self[-]defense on the part of defendant/appellee.
The trial court erred in finding that defendant/appellee acted in self[-]defense.

Discussion

Involuntary Dismissal

Touchet argues that he “proved by a preponderance of the evidence that [Hampton] committed a battery on the date alleged, causing injury to [him]. It was manifest error to require [Touchet] to prove that [Hampton] did not act in self[-] defense.” He also argues that “[t]he trial court erred in finding that defendant/ap-pellee acted in self[-]defense.”

Louisiana Code of Civil Procedure Article 1672(B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

“The trial court is granted much discretion in determining whether to grant an involuntary dismissal.” Boone v. Reese, 04-979, p. 5 (La.App. 3 Cir. 12/8/04), 889 So.2d 435, 438 (citing Kite v. Carter, OS-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271). “The trial court’s grant of an involuntary dismissal is proper if, after weighing and evaluating all of the evidence that has been presented by the plaintiff, the trial court determines that the plaintiff has failed to prove his claim by a preponderance |4of the evidence.” Id. at 439. The granting of an involuntary dismissal is reviewed under the manifest error standard of review. Id.

In granting Hampton’s motion for involuntary dismissal, the trial court explained:

The plaintiff has testified that he threatened the defendant’s person; he threatened the defendant’s business. The defendant testified he was fearful when in the presence of the plaintiff on the date of this altercation.
The two witnesses the plaintiff provided today, their testimonies were] that they did not see the defendant — I stand corrected — they did not see the plaintiff threaten or make any threatening moves towards the defendant. They did not testify that, in fact, the plaintiff did not make any threatening moves towards the plaintiff — towards the defendant.
I am going to grant [the] defense motion for directed verdict [sic].
The plaintiff has failed to present sufficient evidence to cause me to believe that this was not an action of self-defense.

In Landry v. Bellanger, 02-1443, p. 6 (La.5/20/03), 851 So.2d 943, 949 (quoting Caudle v. Betts, 512 So.2d 389, 391 (La.1987)), the supreme court defined a battery as a “harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact ...” In order to succeed on his battery claim, Touchet must prove “all prima facie elements of the tort, including lack of consent to the invasive conduct.” Id. at 954.

In his brief submitted to this court, Hampton argues that Touchet did not carry his burden of proving that a battery occurred. Hampton alleges that Touchet consented to the altercation when Touchet left him a message telling him to “meet me somewhere you f — king piece of s — t.” Additionally, Hampton contends that Tou-chet’s actions on the day of the altercation, 1.e., Touchet quickly turning around in his chair, yelling an obscenity, and moving as if to hit him, constituted consent.

|Jn Cole v. State, Dep’t of Public Safety and Corrections, 01-2123, p. 11 (La.9/4/02), 825 So.2d 1134, 1142 (citations omitted), the supreme court held that “consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim. Consent may be expressed or implied; if implied, it must be determined on the basis of reasonable appearances.”

At trial, defense counsel reminded Tou-chet that in the “Request for Admissions,” he admitted that prior to this incident, he had threatened to do physical harm to Hampton. Touchet acknowledged that he “invited Mark Hampton to meet [him] anytime, anyplace so that [he] could beat [Hampton’s] a — [.]” However, Touchet testified that his “invitation” to meet him was for that particular day and that he did not know Hampton was coming to his place of employment on October 22, 2002. Touchet stated that he was informed of Hampton’s arrival immediately prior to Hampton entering his office. Furthermore, upon learning of Hampton’s presence, Touchet continued to perform his job duties at his desk with his back to the door. Touchet testified that it was only when Hampton opened the door that he turned around in his chair. According to Touchet, when Hampton began hitting him, he asked, “What are you doing, Mark?” He attempted to cover his face.

However, despite Hampton’s arguments in brief, we note that the trial court did not address whether the essential elements of battery were satisfied, but instead only addressed the issue of self-defense. As we ultimately have no determination by the trial court on the issue of consent to review, we, like the trial court proceed to the | (¡question of whether self-defense has been demonstrated on the evidence presented by Touchet.

To escape liability for damages resulting from a battery, the defendant may prove that “his actions were privileged or justified, such as self-defense.” Landry, 851 So.2d at 954. The defendant’s actions can be justified as self-defense if there was an actual or reasonably apparent threat to his safety and the force employed was not excessive in degree or kind. Id. “The privilege of self-defense is based on the prevention of harm to the actor, not on the desire for retaliation or revenge, no matter how understandable that desire.” Id. at 955.

At trial, Hampton testified that he felt threatened by the messages that Touchet had left on his voice mail. Hampton stated that he went to Jackie Edgar RV Center to tell Touchet to stop harassing and calling him. According to Hampton, when he entered Touchet’s office, Touchet quickly turned around in his chair, yelled an obscenity at him, and began to rise from his chair. Hampton testified that he was scared that Touchet would carry out his threats; therefore, he struck Touchet.

In Momean v. American Oil Co., 272 So.2d 313, 316 (La.1973) (quoting Richardson v. Zuntz, 26 La.Ann. 313 (1874)), the supreme court held that “mere words, even though designed to excite or irritate, cannot excuse a battery.” This holding was reiterated in Landry, 851 So.2d at 950 (quoting Munday v. Landry, 51 La.Ann. 303, 25 So. 66 (1899)), where the supreme court explained that “[w]ords written or spoken some time prior will not justify a physical attack upon the one by whom they were written or spoken.” Therefore, neither the messages that Touchet [7left on Hampton’s voice mail nine days prior to the altercation nor Touchet allegedly yelling, “F[ — k] you, Hampton” immediately before he was struck, seem to justify Hampton’s physical attack on Touchet. See Butler v. Paciera, 483 So.2d 1190,1191 (La.App. 4 Cir.1986) (where the court held that the “defendant’s conduct cannot be justified on the theory he was provoked by the vulgar epithet hurled at him by plaintiff.”)

Furthermore, all of the witnesses, with the exception of Hampton, testified that Touchet did not make any threatening moves toward Hampton when Hampton entered his office. At trial, Touchet testified that on the day of the incident, he was sitting at his desk and Hampton “came through the door real quick[J” He described what transpired:

[H]e came around and he said something like I’m going to kill you. Okay. And he just looked so mad at me. You know, and I was sitting so low.
And then when I turned around like that, he just started — he came on me and he hit me ... a couple of times. And then I hollered, “What are you doing, Mark?”
And by that time Dave [Raggette] came in and grabbed him ... and pulled him to the far corner of the office.... And then Dave lost him from there, and he reached over the desk and grabbed me from the back of the shirt and pulled me, not over the desk but on top the desk and was hitting me again.
Then Dave finally got a good hold on him and kind of like picked him up ... and walked him out to the hall.

Touchet maintained that he did not get out of his chair, make any threatening moves, or say anything before he was struck.

At trial, Touchet entered into evidence the deposition testimony of David Rag-gette, his former co-worker at Jackie Edgar RV Center, in which he recalled the |sevents of October 22, 2002. Raggette stated that his office was across from Tou-chet’s office and that the offices had glass walls. He testified that he was in his office with some customers when he saw Hampton pull up in the parking lot. “And then the next thing you know, Mark Hampton just walked straight into the building, walked into our sales manager’s office and closed the door and just — he started hitting on Purvis Touchet.” Rag-gette testified that he ran to Touchet’s office and pulled Hampton off Touchet. Hampton then left the building.

Raggette stated that he did not know if Touchet yelled anything at Hampton when Hampton walked into his office. He testified that Touchet was sitting at his desk when Hampton walked in, and Touchet appeared to cover his head and put it on his desk. According to Raggette, Touchet was unable to get out of his chair because “Hampton was on top of him.”

Stacy Duhon testified that on October 22, 2002, she and her husband were shopping for a camper at Jackie Edgar RV Center. She stated that she was in Rag-gette’s office while he was preparing a quote on a camper. Duhon testified that when Hampton drove up, Raggette informed Touchet of his arrival.. According to Duhon, Hampton “just walked around the corner or the edge of the office that I was in, and he went straight into the office to where [Touchet] was sitting.” Duhon testified that Hampton hit Touchet, and Raggette subsequently pulled Hampton out of the office.

| flUpon further questioning, Duhon testified that she did not see Touchet make any threatening moves toward Hampton before he was struck. Nor did she hear him yell at Hampton before he was hit. Duhon explained that Touchet started to rise from his chair but could not because Hampton had already hit him.

Given the circumstances, we find that the record does not support a determination that there was “an actual or reasonably apparent threat to [Hampton]’s safety.” Landry, 851 So.2d at 955. Recall that the incident happened approximately nine days after Touchet left Hampton those messages. Hampton unexpectedly arrived at Touchet’s place of employment, and Touchet was only aware of Hampton’s presence a few minutes prior to the altercation. Additionally, Raggette and Duhon corroborated Touchet’s testimony that he did not make any aggressive moves towards Hampton and, in fact, Touchet was unable to stand before Hampton struck him.

Even assuming arguendo that Touchet did make a threatening move towards Hampton, Hampton could have immediately left the premises. Instead, Hampton repeatedly struck Touchet and had to be pulled off of him. We note that in Landry, the supreme court explained that if the defendant used excessive force in repelling an actual or apparent threat to his safety, his self-defense claim could not stand. Here, Hampton hit Touchet while Touchet was still sitting at his desk. The record indicates that Touchet never struck Hampton, but instead tried to protect himself by covering his face. See Brasseaux v. Girouard, 269 So.2d 590 (La.App. 3 Cir.1972), writs denied, 271 So.2d 262 (La.1973) (where this court held that when the defendant repeatedly shot the unarmed plaintiff, who was trying to protect his face with his hands, from a distance of thirty-five feet, he employed excessive force; therefore, he did not act in self-defense); Coludrovich v. Hess, 407 So.2d 4 (La.App. 4 Cir. 1981) |in(where the court held that the defendant was not acting in self-defense when he was on top of the defendant beating his head against a brick floor) Likewise, we find that Hampton’s repeated hitting of Touchet does not demonstrate self-defense.

For these reasons, we conclude that the trial court’s granting of Hampton’s motion for involuntary dismissal on the issue of self-defense was manifestly erroneous. Nevertheless, we note that on remand, Hampton will have the opportunity to present additional evidence.

DECREE

For the above reasons, we reverse the judgment of the trial court dismissing the plaintiffs suit, overrule the granting of the motion for involuntary dismissal, and remand the case to the trial court for further proceedings. All costs of this proceeding are assessed against the defendant, Mark Hampton.

REVERSED AND REMANDED.

      . A transcript of the messages was entered into evidence:
      Saved Message — Sunday, October 13 @ 2:41 p.m.
      Let me tell you what you f — king sorry a— bastard, I’m coming for your f — king head. When I get to J.P., JP Thibodeaux, I am going to f — king murder your a — •, you heard me, you mother f — ker. You f — king piece of s — t. You are nothing but a piece of s — t, you heard me Mark Hampton. You ain't nothing but a piece of s — t.
      Saved Message' — Sunday, October 13 @ 2:45 p.m.
      You piece of s — t. You can’t f — k'with me you hear me you a — 'hole. You can't f — k with me. I’m gonna get you you a — hole. I’m gonna call every mother f — ker, every f — king mother f-ker, Crescent, I’m gonna f — k with you, you hear me you a — hole. Anytime you want to f — k with me, let me know you f — king ignorant bastard.
      Saved Message — Sunday, October 13 @ 2:48 p.m.
      You ain’t nothing but a piece of s — t you a— hole. But let me tell you what, I can call Bank One. I’m calling Crescent, I’m calling everybody. I want your f — king a — on a platter you hear me you a — hole. Come on. Let’s me and you, come meet me somewhere you f — king piece of s — t. You ain't nothing but a piece of s — t, you heard me.

      . Touchet stated that he thought Raggette was joking when Raggette told him that Hampton was there.

      . We note that in Landry, 851 So.2d at 953, the supreme court held that "the aggressor doctrine no longer has a place in Louisiana tort law.” Nonetheless, if Touchet is deemed to have provoked Hampton, the court can take this factor into consideration in determining percentages of fault under La.Civ. Code art. 2323. Id.

      . On cross examination, however, Raggette admitted that he did not see when Hampton first hit Touchet. Rather this was brought to his attention by the customer in his office. Raggette explained that "[s]he actually said, 'He’s hitting him.’ And that’s how — when I jumped up and went around, you know, the desk to the office.”

      . Her husband had gone to the bathroom before the incident occurred.