text:
    STATE of Louisiana v. Leroy WAGUESPACK.
    No. 2006-410.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      J. Phil Haney, District Attorney, New Iberia, LA, Jeffrey J. Trosclair, Asst. District Attorney, Franklin, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Leroy Waguespack.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hln this case, the defendant, Leroy Waguespack, was convicted of aggravated rape, in violation of La.R.S. 14:42, and was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. Defendant now raises two assignment of errors contending that the evidence was insufficient to support his conviction and that his sentence is excessive. For the following reasons, we affirm.

SUFFICIENCY OF EVIDENCE

In his first assignment of error, Defendant contends the evidence was insufficient to convict him of the charge of aggravated rape. Our standard of reviewing sufficiency of evidence is as follows:

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” La.Rev.Stat. 15:438; see State v. Jacobs, 504 So.2d 817, 820 (La.1987)(all direct and circumstantial evidence must meet the Jackson v. Virginia test); State v. Porretto, 468 So.2d 1142, 1146 (La.1985) (La.Rev.Stat 15:438 serves as an evidentiary guide for the jury when considering circumstantial evidence).

State v. Sosa, 05-0213, pp. 6-7 (La.1/19/06), 921 So.2d 94, 99.

In order to support a conviction of aggravated rape, the State was required to prove beyond a reasonable doubt that Defendant had oral, vaginal, or anal sexual intercourse with a victim who was under thirteen years of age. La.R.S. 14:42(A)(4). “[A]ny sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” La.R.S. 14:41(B). In State v. Ross, 03-564, p. 11 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, 895, writ denied, 04-0376 (La.6/25/04), 876 So.2d 829, we defined sexual penetration as, “[a]ny penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient.”

The record reflects that Dave Lamperez allowed Defendant, who was homeless, to move into his trailer with him two to three days prior to June 3, 2004, the date of the offense at issue. On that date, S.B. and her child, T.B., who was the victim in this case, went to Lamperez’s residence at approximately midnight. Lamperez and S.B. later left Lamperez’s home and went to another trailer, two doors down, belonging to some people described as Mexicans.

Lamperez testified that when he returned to his trailer he found Defendant with T.B. At that time, Defendant was totally nude and kneeling in front of T.B. and T.B. had her shorts off. Lamperez further described what he saw as follows: “[T.B.] was like on her knees. Her pants was off, and she had her hands toward the back like she was leaning back, and [Defendant] was in front of her.” He did not see any oral sex or vaginal or anal penetration. Lamperez ran to T.B.’s mother and reported the incident to her and Defendant ran from the trailer.

T.B. testified that she was born on May 2, 1996, making her eight years old at the time of the crime. She described Defendant as “the boy” who hurt her by putting “his private in her private.” T.B. explained that she was watching Sponge |sBob when Defendant took her off the sofa and took his clothes off, then took her clothes off. She said that he then got on top of her and he kept moving up and down. T.B. said that Lamperez subsequently came into the room and Defendant grabbed his clothes and left out of the back door. T.B.’s mother then took her to the hospital. When asked where her private part was, T.B. pointed to her vagina.

T.B. said that she told the doctor and her mother that the boy put his private in her mouth. At trial, T.B. acknowledged that this act did in fact occur. T.B. testified that she told Ann Lavergne, a forensic interviewer with Stuller Place, that Defendant put his private in her mouth. T.B. stated that if she told Lavergne that this did not occur, it was a lie. T.B. also testified that Defendant put lotion on his private and on her private and the lotion made her private burn.

Lavergne interviewed T.B. on June 10, 2004. During that interview, T.B. stated that Defendant put his private inside her private and he put lotion on his private and her private. She further stated that Defendant had sex with her. T.B. at first indicated that she did not know what sex meant, then she stated that sex meant getting on top of you. She later indicated that Defendant used the word “sex.” T.B. also told Lavergne that the boy put two fingers inside her private. T.B. did not tell Lavergne that oral sex had occurred.

T.B. was taken to the emergency room on June 4, 2004. Mona Moore was working as a nurse in the emergency room at that time. Moore testified that T.B. was talkative, calm, and not in any acute distress while there. A questionnaire filled out by Moore indicated that T.B. was not sure that vaginal or anal penetration occurred. However, the questionnaire indicated that oral sex had occurred. Moore 1 ¿indicated that the answers were based on information provided by T.B. A history of the assault was written on a “Sexual Assault Evidence Collection Kit Information Sheet.” The sheet was introduced as Defendant’s Exhibit 1 and indicated that T.B. stated that a thirty-three-year-old “had sex with her.”

Dr. Christopher Lawrence examined T.B. at the emergency room. Dr. Lawrence testified that T.B. sustained the following injuries:

[AJbrasions to the right and left labia, or the outer surface of the vagina, specifically, the right side, the labia majora, which is the larger skin fold, if you will, covering the entrance to the vagina, and the left labia minora, which is the small, thinner, I guess, lip, if you will, which is further inside, right at the entrance to the vagina.

T.B. told Dr. Lawrence that “[Defendant] had sex” with her. Dr. Lawrence felt that this was not a typical response by an eight-year-old, so he had T.B. elaborate. T.B. then told Dr. Lawrence that “he” took her pants off then took his pants off and got on top of her. Dr. Lawrence testified that no semen was detected on the skin or external genitalia of T.B. He noted that T.B.’s hymen was intact. Additionally, there was no bleeding. Dr. Lawrence testified that the abrasions were caused by something slender, rigid, and blunt. Dr. Lawrence further testified that the abrasions could have been caused by a penis.

On cross-examination, Dr. Lawrence was asked if the abrasions could have been caused by a finger and he initially indicated that they could not. He then testified that it was possible the abrasions could have been caused by a finger; however, he stated that a finger was “almost a little too small in diameter” to cause the abrasions. Additionally, Dr. Lawrence testified that T.B. did not indicate she had been digitally penetrated. He further testified that he could not “see how a finger |fiwould cause that type of abrasion in both of those places because it’s a fairly significant distance,” assuming they were both caused at the same time. Dr. Lawrence agreed that it was possible that a finger could have caused one of the abrasions and another insertion of the finger could have caused the other abrasion.

Detective Gary Louviere of the Iberia Parish Sheriffs Office testified at trial. At the time of the crime, he was employed by the New Iberia Police Department and met T.B. at the Emergency Room of the Dauterive Hospital, where he interviewed her. According to Detective Louviere, T.B. did not tell him anything about oral sex. However, Detective Louviere testified that he did not conduct an in-depth interview with T.B. because he was going to have that done at Stuller Place. Detective Louviere did say that at the, time he spoke to T.B., she called her assailant “the boy” and did not know his name.

Detective Louviere said that he did not interview S.B. because she was drunk and in a “pretty bad state” at that time. Approximately one week after the incident, he compiled a photo line-up, which he presented to T.B. and S.B. S.B. could not identify anyone from the line-up; however, T.B. selected Defendant within thirty seconds of being shown the line-up.

George Skiroe, an expert in DNA testing and serology, testified that the rape kit performed on T.B. did not reveal any seminal fluid. However, semen was found on an adult T-shirt that was submitted by police. Skiroe further testified that the lack of semen in a rape kit did not evidence a lack of penetration, as penetration can. occur without ejaculation.

| ^Defendant testified that on the night in question he was offered twelve hundred dollars to babysit T.B., but he told Lam-perez and S.B. to take T.B. with them when they left the trailer. However, Lam-perez and S.B. left, leaving T.B. behind. He testified that Lamperez later returned to get more beer. After Lamperez left again, Defendant said he locked the door and took a bath. According to Defendant, while he bathed, Lamperez and a Mexican entered the trailer and smoked marijuana.

Defendant then testified that the Mexican took T.B. and put her on the floor and took her clothes off. Defendant said that during that time Lamperez had a knife in his hand and was telling him to shut his mouth. Defendant stated that the Mexican then tried to have sex with T.B. Defendant testified that Lamperez put a knife to his throat and said he would kill him if he did not shut up, to mind his own business, and not to say a word to anyone.

Defendant also testified that after everyone left, with the exception of T.B., he drank water and KoolAid and passed out on the love seat. He claimed that when he woke up, he was numb and could not move. Defendant said that at that time, S.B., T.B., Lamperez, a Mexican, and a heavyset lady, who had been at Lamperez’s home earlier that night, were laughing at him. Defendant said that the heavyset woman was putting her private part in his face and S.B. was trying to open his left eye, which was bloody. He then testified that the heavyset woman was on top of him and S.B. was on top of his face. Defendant further testified that “he,” presumably Lamperez, had a knife to his throat and Defendant backed off. At that time, “he” grabbed Defendant’s hair and shoved Defendant’s face into the lady’s private part. During this time, according to Defendant, the Mexican was laughing and drinking. Defendant then testified that he saw a midget.

Defendant further testified as follows:

He took his clothes off and put it on top of me. She was asking me who my name was and everything. David Lam-perez got my, the knife was in my throat right there.
He told me that he say he’s going to kill me if I don’t move, or he will hurt me bad. He told me, he said don’t push her. Don’t get her off of me or nothing. And I can’t move anyway. Then she left out there, told her who I was and everything there, want to make love and all of that. I don’t know who that was.
I was, don’t know what’s going on. David Lamperez had took his clothes off, and he took her off of me, but I still had my clothes on the whole time, and I saw the little girl, or little midget, I don’t know which way it go, and some kind of way, it blocked me. That pill and some kind of medicine that they, I don’t know what it was.

Defendant’s testimony continued as follows:

They took the little girl, the little midget when I saw her, and he put her on the floor in the kitchen, and some kind of way, he put, if I know about that, if it would be all right, I could tell you. It’s a thing a protection of a — I think it’s a rubber....
All I seen this man pour some out and poured it out there, and he put it on his private part, when I’m sitting on this thing right there.
When I was sitting on this love seat the whole time with my clothes on, he made me turn to see that person right there, and that person, I don’t know who that person was. All I know is a little midget was sitting right there in the front of me, and he was laughing at me. And he — the midget told me to make love or something like that. She ain’t say, she didn’t holler or scream or nothing like that. He told me to put it all the way in there, in her private part.
And, some kind of way, he got through with her. She put her clothes back on in the front of me, and she left out of there....

Defendant denied any sexual contact with T.B. He also testified that at the time of the offense at issue he was on probation for sexual battery, which he pled guilty to in 1997. He said that the victim of that offense was fifteen years old.

Defendant makes several arguments regarding whether penetration occurred in this case. He contends that the vague evidence offered by T.B. regarding | spenile penetration was uncorroborated by medical evidence and was insufficient to support his conviction. He notes that T.B. told the nurse that someone had sex with her and then indicated that the sex had been oral sex. Defendant then asserts that during the child advocacy interview, T.B. said the person used his fingers. He further contends that the “glaring defect” in this case is that the State failed to establish that T.B. knew what “sex” was or if she understood what putting a private “in” a private meant. Defendant argues that it is clear from the record that T.B. did not know what happened to her. He asserts that there are many contradictory statements by T.B. and these inconsistencies are a “critical foundational defect” that the State failed to correct.

In support of his argument, Defendant cites State v. Marigny, 532 So.2d 420 (La.App. 1 Cir.1988). Therein, the fifteen-year-old victim testified that the defendant “had sex” with her. The appellate court found that there was no evidence that the victim understood the phrase “had sex” to mean sexual intercourse. The appellate court further found that the state failed to produce sufficient evidence to indicate there was any penetration and no medical evidence of penetration was presented. Accordingly, the defendant’s conviction of carnal knowledge of a juvenile was set aside and a verdict of attempted carnal knowledge of a juvenile was entered. Defendant also asks the court to compare the case at bar to State v. Wright, 96-786, p. 8 (La.App. 3 Cir. 2/19/97), 690 So.2d 850, 856, writ denied, 97-0665 (La.9/26/97), 701 So.2d 978, wherein the victim testified that the defendant “stuck his penis in my behind.”

Defendant points out that the doctor noted only “external abrasions” as evidence of sexual activity. He asserts that the doctor testified that the abrasions could have been caused by someone’s finger, which supports T.B.’s testimony that | ^Defendant rubbed lotion on her “private.” Defendant also claims that it is significant that the State did not ask the doctor the fundamental question of whether or not there was medical evidence of penetration, however slight. Defendant then argues that there is a great likelihood that penetration in this matter was digital and would not support a conviction for aggravated rape. Accordingly, he avers that at best the evidence proved he committed sexual battery.

On the other hand, the State contends the evidence is sufficient to support Defendant’s conviction and cites State v. Patterson, 05-560 (La.App. 5 Cir. 1/31/06), 922 So.2d 1195, in support of its argument. In Patterson, the victim testified that the defendant did not fully penetrate her, but that his penis entered her vagina by an inch. The victim told the nurse that she did not think the defendant “went in” and “[h]e couldn’t get it in.” Id. at 1199. When the doctor asked if she'had been penetrated, the victim immediately answered that she did not know. The doctor testified that during his examination of the victim he did not observe any visible tears and noted she appeared “virginal.” Id. Additionally, the victim did not remember telling the first responding officer that the defendant raped her until her mother returned home. Our colleagues on the Fifth Circuit Court of Appeal found that the victim’s testimony was not irreconcilable with the physical evidence. The appellate court additionally noted that while the victim’s responses to the nurse and doctor were not as clear as her testimony, it was “reasonable to conclude that her lack of clarity was due to her inexperience with sexual intercourse.” Id. at 1202. The appellate court in Patterson, cited State v. Hubbard, 97-916 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415, wherein that court found the evidence was sufficient to prove the element of penetration when the victim testified that the defendant made her “have sex” with him and answered | inaffirmatively when asked whether the defendant raped her. We note the victim’s testimony in Patterson was corroborated by two other witnesses.

Defendant’s assertion that T.B. did not know what “sex” is may be true; however, T.B. testified that Defendant put his private in her private. Defendant may argue that the State did not clarify what that meant; however, T.B.’s testimony is clear. Additionally, during the child advocacy interview, T.B. was asked to place a crayon under a table, place a crayon on a table, and to place the crayon in the crayon box. T.B. accurately complied with these requests. Accordingly, it is clear that T.B. understands what the word “in” means. Further, it appears from the interview that T.B. understands what male and female private parts are and where they are found.

We are cognizant that there were inconsistencies in T.B.’s version of the events that occurred on June 3, 2004. T.B. told the nurse at the emergency room that there had been oral sex and was unsure whether anal or vaginal penetration had occurred. She told Lavergne, the interviewer at the advocacy center, that Defendant put his private in her private and did not tell the interviewer that oral sex had occurred. Furthermore, T.B. testified that Defendant put his private in her private and that she told the interviewer that he put his private in her mouth. T.B. then indicated that Defendant did put his private in her mouth. We are confident that the jury was aware of what T.B. said occurred on June 3, 2004, and chose to believe a portion of T.B.’s testimony, as reflected by the verdict. Additionally, as in Patterson, 922 So.2d 1195, T.B.’s testimony may be clearer than her initial reports due to her inexperience with sexual activity.

Furthermore, “[t]he fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient.” State v. Holley, 01-0254, p. 6 (La.App. 3 Cir. 10/3/01), 799 So.2d 578, 583, citing State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand, 429 So.2d 1385 (La.1982).

State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 456-57.

We find that Marigny, 532 So.2d 420, is distinguishable from the case at bar in that T.B. did more than testify that Defendant had sex with her. T.B. testified that he placed his private in her private.

“[T]he credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. ‘[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.’ ” [State v.] Schexnaider, [03-144, p. 9 (La.App. 3 Cir. 6/4/03),] 852 So.2d [450] at 457 (citations omitted), quoting State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/20/02), 812 So.2d 646. Furthermore, the testimony of the victim alone is sufficient to establish the elements of a sexual offense. Id.

State v. Willis, 05-218, p. 15 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 378-79, writ denied, 06-0186 (La.6/23/06), 930 So.2d 973.

We further find that the abrasions prove there was penetration, however slight, whether it be digital or penial penetration into the external features of the female genitalia. Further, the verdict may indicate the jury chose to believe T.B.’s testimony that Defendant put his private in her private, thus finding that penile penetration occurred.

Aggravated rape may also be proven when oral sex occurs. Therefore, the jury verdict may indicate the jury believed T.B.’s testimony and her report to the emergency room nurse that Defendant placed his private in her mouth. We hold that the State proved the elements of the crime of aggravated rape beyond a reasonable doubt. Accordingly, this assignment of error lacks merit.

EXCESSIVE SENTENCE

In his second assignment of error, Defendant contends his life sentence is unconstitutionally excessive in light of his mental retardation. He argues that the imposition of a life sentence without consideration of his mental defect as a | ^mitigating factor resulted in his receiving an excessive sentence. In support of his argument, Defendant cites State v. Dorthey, 623 So.2d 1276 (La.1993), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

The record does not indicate that Defendant filed a motion to reconsider sentence, nor does the record indicate that he orally objected to the sentence at the sentencing hearing. According to La.Code Crim.P. art. 881.1, failure to make or file a motion to reconsider sentence precludes a defendant from raising, on appeal, any objection to the sentence. When the record does not indicate that any objection was made regarding sentencing, the defendant is precluded from appealing his sentence. State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-0578 (La.1/31/03), 836 So.2d 59.

Defendant’s sentencing claim is barred pursuant to Article 881.1. However, we will review his sentence for bare excessiveness in the interest of justice. State v. Graves, 01-0156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-029 (La.10/14/02), 827 So.2d 420.

Louisiana Revised Statute 14:42 provides a mandatory life sentence for aggravated rape cases in which the death penalty is not sought or not otherwise available. In State v. Foley, 456 So.2d 979, 981 (La.1984), the supreme court discussed the penalty for aggravated rape as follows:

The mandatory life sentence for aggravated rape is a valid exercise of the state legislature’s prerogative to determine the length of sentence for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Farria, 412 So.2d 577 (La.1982); and State v. Talbert, 416 So.2d 97 (La.1982).

Based on Foley, Defendant’s life sentence is mandatory and can not be excessive. Accordingly, this assignment of error lacks merit.

| ^CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The initials of the victim and her family members are being used in accordance with La.R.S. 46:1844(W).


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. PAINTER, Judge,

license: Public Domain

text:
    Jacqueline BAZILE v. NESTLÉ USA, INC., et al.
    No. 06-223.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Stephen C. Resor, Sullivan, Stolier & Resor, New Orleans, LA, Defendant/Ap-pellee — Dolgencorp, Inc.
    Jason R. Bonnet Kendra Leigh Duay Leake & Anderson New Orleans, LA Defendant/Appellant — Nestlé USA, Inc.

      Cory Paul Roy, Marksville, LA, Plain-tifflAppellee — Jacqueline Bazile.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

_[jThis case involves the assessment of damages against a private corporation for failure to fund a settlement within thirty days. The plaintiff, Jacqueline Bazile, sued Nestlé USA, Inc. (Nestlé) after allegedly finding worms in a candy bar manufactured by Nestlé. No insurance companies were involved in the suit. The parties settled the matter for $1,500.00, and the settlement was funded approximately sixty-four days later. However, when the settlement was not funded within thirty days, Bazile filed a motion for enforcement of the settlement and for bad faith damages. The trial court assessed $5,000.00 in bad faith damages against Nestlé pursuant to La.R.S. 22:1220, which governs an insurer’s duty to fund a settlement within thirty days from settlement. It is from this judgment, and from a judgment denying a new trial, that Nestlé appeals. We reverse the judgment for the bad faith penalty against Nestlé. It is not an “insurer” within the meaning of La.R.S. 22:1220.

I.

ISSUES

We must decide whether the trial court erred in applying the thirty-day time restriction of La.R.S. 22:1220 to a settlement not involving an insurer.

II.

FACTS AND PROCEDURAL HISTORY

On July 12, 2004, Bazile sued the Nestlé corporation and Dolgencorp, Inc. after allegedly discovering worms in a candy bar that she had purchased from a Dollar General store in December 2003. Dolgencorp, Inc. was subsequently dismissed. No insurance companies were named in the suit or involved in the litigation.

l2On December 6, 2004, Nestlé accepted the counteroffer from Bazile to settle the suit for $1,500.00 and faxed a letter to Bazile confirming the amount. The letter agreed to “pay plaintiff $1,500, inclusive of medical specials and court costs, in exchange for a full and final dismissal of all claims against Nestlé USA; Inc.” The letter also requested a tax identification number (TIN) from Bazile’s attorney for the funding of the settlement. The parties had previously agreed that Nestlé would pay the court costs in addition to the settlement amount. Therefore, this letter of December 6, 2004, inaccurately reflects that the amount of $1,500.00 includes and settles all damages and all court costs. Bazile did not respond to this mistake but later argued that the settlement was con-fected in this letter of December 6, 2004. Bazile also did not respond to the request for the TIN.

On December 8, 2004, Nestlé forwarded a Receipt and Release and Motion to Dismiss and again requested the TIN for the settlement. Bazile did not respond to this correspondence, even though the enclosed dismissal again failed to reflect that court costs would be paid by Nestlé.

As of January 7, 2005, Nestlé had not received the signed settlement documents. On this date, Nestlé forwarded correspondence requesting the executed copies of the Receipt and Release and also requesting the TIN for a third time.

On January 12, 2005, Bazile wrote Nes-tlé, acknowledging the January 7, 2005 correspondence and enclosing the executed Receipt and Release. However, at this time Bazile requested a revised Motion to Dismiss that reflected the parties’ agreement that all costs would be paid by Nes-tlé. Counsel for Bazile did not ask about the settlement check, nor did he provide his TIN as requested for the settlement. Counsel for Nestlé obtained the TIN of counsel for Bazile by phone and wrote it on |sthe January 12, 2005 correspondence. Nestlé would later argue that the settlement was confected no earlier than January 12, 2005.

On January 21, 2005, Bazile wrote Nes-tlé, enclosing the executed revised Motion to Dismiss reflecting that all costs would be borne by Nestlé.

On January 27, 2005, counsel for Nestlé inadvertently filed the Motion to Dismiss before funding the settlement. The record indicates that the Nestlé corporation’s third-party claims administrator transferred the file to another office and that this transfer contributed to miscommunica-tions between the attorney’s office and the claims office and contributed to some delay in confecting the settlement check.

On January 29, 2005, Bazile filed a motion to enforce the settlement and requested damages for bad faith handling of the settlement pursuant to La.R.S. 22:1220. The motion to enforce was ostensibly filed to protect Bazile’s interests in light of the premature filing by Nestlé of the motion to dismiss.

On February 4, 2005, Nestlé cut the settlement check for $1,500.00 and, upon receipt of same, counsel for Nestlé sent the check by Federal Express to counsel for Bazile. Accompanying the check was correspondence dated February 7, 2005. The correspondence contained an apology for the premature filing of the Motion to Dismiss before sending the settlement check which prompted the filing of the motion to enforce. The correspondence also confirmed in writing a verbal agreement wherein counsel for Bazile agreed to withdraw the motion to enforce upon receipt of the settlement check. At the hearing, counsel for Bazile did not deny the agreement to withdraw the motion to enforce but attempted to discount it by indicating that there was no proof of the agreement.

On April 26, 2005, Bazile filed a motion to reopen the case for submission of additional evidence. Counsel for Bazile asserted that he hand wrote |4a response on Nestlé’s first offer to settle wherein Bazile made the counteroffer of $1,500.00, and that this letter was inadvertently omitted from the exhibits. The trial court granted the motion, and after a hearing on May 16, 2005, the court accepted the letter with the handwritten response. While there is confusion in the record regarding the date of this letter with the handwritten response, the letter is of no moment. The December 6, 2004 letter from Nestlé, which is in the record, without any response, confirms the previous counteroffer of $1,500.00, and there are no allegations of a confected settlement prior to December 6, 2004.

The trial court found in favor of Bazile and assessed a $5,000.00 penalty against Nestlé pursuant to La.R.S. 22:1220 for failure to fund the settlement within thirty days from December 6, 2004.

On June 27, 2005, Nestlé filed a motion for a new trial based upon La.Code Civ.P. arts.1971 and 1972(1), on the grounds that the judgment was contrary to the law and the evidence. In its supporting memorandum, Nestlé argued for the first time that it was not an insurer and, therefore, not subject to La.R.S. 22:1220 or its thirty-day limitation on funding a settlement. Nestlé has continued to maintain that, despite the inapplicability of the statute, the settlement was funded timely under La.R.S. 22:1220, where the settlement was not con-fected until January 12, 2005, and the settlement was funded on February 9, 2005. Nestlé further argues that La.R.S. 22:1220 is inapplicable because Nestlé never knowingly held the check.

JiH.

LAW AND DISCUSSION

Whether Nestlé Is an Insurer under La.R.S. 22:1220

Nestlé contends that the trial court erred in applying the thirty-day time restriction of La.R.S. 22:1220 to the Nestlé settlement in this case where Nestlé is not an insurer under the meaning of that statute. We agree. Louisiana Revised Statutes 22:1220 is a penal statute and must be strictly construed. Bennett v. State Farm Ins. Co., 03-1195 (La.App. 3 Cir. 3/24/04), 869 So.2d 321. It provides in pertinent part:

La.R.S. 22:1220. Good faith duty; claims settlement practices; cause of action; penalties
A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
|fi(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C.In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

Nestlé cites Thibodeaux v. Stapp Towing Co., Inc., 96-1511, 96-1514 (La.App. 3 Cir. 8/27/97), 702 So.2d 693, where the trial court awarded punitive damages to the plaintiffs under La.R.S. 22:1220, after the defendant towing company’s vessel drifted into the plaintiffs’ pleasure craft and dock. In reversing the trial court, a panel of this court held that the statute imposing a duty of good faith and fair dealing upon an insurer and prescribing penalties for violating this duty did not permit an award of punitive damages against the defendant, who was not an insurer. More specifically, after making it clear that the award of negligence damages was not at issue, but rather the only issue was whether the trial court erred as a matter of law in assessing a penalty under La.R.S. 22:1220, the panel articulated as follows:

The gist of defendant’s argument is that because it is not an insurer, it should not have been held liable for punitive or exemplary damages, as the penal provisions of La.R.S. 22:1220 explicitly imposes [sic] both the duty and the penalties only against insurers. As defendant points out, La.R.S. 22:1212 defines the term “insurer” as follows:
§ 1212. Definitions
|7C. “Insurer” means any person, reciprocal exchange, interinsurer, Lloyds insurer, fraternal benefit society, or any other legal entity engaged in the business of insurance, including insurance agents, insurance brokers, surplus lines brokers, and insurance solicitors. Insurer shall also mean medical service plans, hospital service plans, health maintenance organizations, and prepaid limited health care service plans. For the purposes of this Part, these foregoing entities shall be deemed to be engaged in the business of insurance.
In view of the fact that there is no question but that defendant is not and never has been alleged to be an insurer within the purview of La.R.S. 22:1212, we are compelled to reverse the judgment of the trial court. When a statutory or codal provision enacted by the Louisiana Legislature is clear and unambiguous, its letter shall not be disregarded under the pretext of pursuing its spirit; rather, the law is to be applied as written and no further interpretation may be made in search of the intent of the legislature. La.Civ.Code art. 9; La.R.S. 1:4. La.R.S. 22:1220, particularly when read in conjunction with La.R.S. 22:1212(C), only imposes upon insurers the duty to settle upon pain of penalties, and the trial court erred in holding to the contrary, for the law of Louisiana is clear insofar as it provides that a party cannot recover damages for failure to settle a case, except in the limited circumstances provided by statute. Yoes v. Shell Oil Co., 95-12 (La.App. 5 Cir. 5/10/95); 657 So.2d 241, writ denied, 95-2087 (La.11/17/95); 663 So.2d 714; Guillory v. Gulf South Beverages, Inc., 506 So.2d 181 (La.App. 5 Cir.1987).
In this case, plaintiffs can allude to no legal authority by which defendant, neither an insurer nor a health provider, can be held answerable for more than the damages occasioned by its delict.

Id. at 694.

Nestlé also cites Rawls v. City of Bastrop, 38,449 (La.App. 2 Cir. 5/12/04), 873 So.2d 934. In this property damage case, the plaintiffs filed suit against the City of Bastrop, claiming that paint overspray from the negligent painting of a 1 ¿municipal building damaged their vehicle. The trial court found the city liable for damages, penalties, and attorney fees. The city appealed and argued that the trial court erred in awarding inappropriate damages and in awarding penalties and attorney fees. The appellate court affirmed the damage award, but reversed the award of penalties and attorney fees, stating as follows:

The City’s second issue on appeal is whether the trial court erroneously awarded penalties and attorney fees. On this issue, the City argues that it is a member of the Louisiana Municipal Association Risk Management Agency (“LMARMA”) and part of a self-insurance fund. The City further argues that there is a distinct difference between a regular insurance company and the LMARMA. In support of this argument, the City cites the provisions of La.R.S. 33:1345, which state in pertinent part that an interlocal risk management agency is not an insurance company or an insurer under the laws of Louisiana, and that the development and administration by such agency of one or more group self-insurance funds shall not constitute doing insurance business.
In opposition to this argument, the plaintiffs assert that the record in this matter does not reflect that the City is anything other than a self-insured entity. They also argue that the trial court did not indicate that the City was an insurance company, but that the court simply likened the City to any other self-insured company, and that because of the untimely manner in which the City satisfied its liability in this case, the court concluded it was appropriate to sanction the City as though it were an insurance company. In this regard, the plaintiffs argue that the duties of good faith and fair dealing incumbent upon insurers pursuant to the provisions of La.R.S. 22:658 and 22:1220 should also apply to self-insurers.

Id. at 937.

After reviewing the statutory provisions, the court in Rawls disagreed with the plaintiffs, quoting La.R.S. 22:1220(A) and (C) and stating as follows:

The above-quoted provisions are found in Part 26 of Chapter 1 of the Louisiana Insurance Code. Part 26, entitled “Unfair Trade Practices,” is designed to regulate the trade practices in the business of insurance, in accordance with federal law, by defining or providing for |8the determination of all acts, methods, and practices which constitute unfair methods of competition and unfair or deceptive acts and practices in this state, and to prohibit the same. La.R.S. 22:1211.

Id. at 938.

After quoting the definition of an insurer pursuant to La.R.S. 22:1212(C), as did this court in Thibodeaux, the Rawls court stated as follows:

As we held in Block v. St Paul Fire & Marine Ins. Co., 32,306 (La.App.2d Cir.9/22/99), 742 So.2d 746, statutes requiring timely payment of claims and imposing a duty of good faith and fair dealing are penal in nature and, therefore, must be strictly construed. Even without the definition of “insurer” quoted above, a strict interpretation of the word “insurer” would not include the City in the instant case.... [T]he above-quoted definition of “insurer” plainly shows that the legislature intended to include only those entities engaged in the business of insurance; the City is not in the insurance business. Accordingly, the City is not an “insurer” for purposes of La.R.S. 22:1220.
Because the penal provisions of this statute must be strictly construed, they cannot be applied by analogy to the City when the City does not fall within the plain reading of the words of the statute. Thibodeaux v. Stapp Towing Co., 96-1514 (La.App. 3d Cir.8/27/97), 702 So.2d 693. Moreover, because the City is not an insurer, we also find inapplicable the penalty and attorney fee provisions of La.R.S. 22:658.

Id. at 939.

Accordingly, based upon the foregoing, we find that the trial court erred as a matter of law in finding that Nestlé was an insurer under Title 22 and in assessing a $5,000.00 penalty under La.R.S. 22:1220 for failure to fund a settlement within thirty days. Because we find La.R.S. 22:1220 inapplicable, we need not address whether the settlement was reduced to writing on December 6, 2004, as Bazile argues, or on January 12, 2005, as Nestlé argues.

11 flNestlé has further contended that the trial court erred in finding that the thirty-day limitation on funding the Nestlé settlement began to run before counsel for Ba-zile supplied his TIN to counsel for Nestlé. Again, since we find that La.R.S.22:1220 is inapplicable to Nestlé in the present case, it is likewise not necessary to address the issue of the TIN or the issue of the denial of Nestlé’s motion for a new trial.

IV.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is reversed. Costs of this appeal are to be borne by plaintiff-appel-lee, Jacqueline Bazile.

REVERSED AND RENDERED.

PAINTER, Judge, concurs and assigns written reasons.

PAINTER, Judge,

concurs.

1 jWere it possible under the law, I would affirm the trial court’s judgment assessing Nestlé with penalties. However, the law as written allows Nestlé avoid the consequences of its failure to pay by self-insuring. Under the existing law no result other than that reached by the majority is possible. Basically, the law provides no penalty where a self-insured defendant fails to pay a plaintiff after settlement. Even worse, if the defendant has a shadow insurer that does not appear on the surface, the same result can occur. In this ease, there is no evidence that Nestlé is anything other than self-insured and La. R.S. 22:1220 must be strictly construed. It may be that this problem is one which should be corrected by the legislature. As a result, I concur in the result reached by the majority.

      . This letter does not appear in the record.

      . Louisiana Revised Statutes 22:1220 was amended by 2006 La. Acts No. 12, § 1; however, the amendment does not affect the issues addressed in this opinion.

      . Judge Thibodeaux dissented in Thibodeaux. He has now abandoned his contrary position.


author: COOKS, Judge. PETERS, J.,

text:
    TECHE FINANCIAL SERVICES, INC. v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES.
    No. 06-250.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      W. Glenn Soileau, Breaux Bridge, LA, for Plaintiff/Appellant, Teche Financial Services, Inc.
    Charles C. Foti, Jr., Attorney General, Ted D. Hernandez, Assistant Attorney General, Lafayette, LA, for Defendant/Ap-pellee, State of Louisiana, Department of Public Safety, Office of Motor Vehicles.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   COOKS, Judge.

11 Teche Financial Services, Inc., appeals the trial court’s judgment granting the State of Louisiana’s peremptory exceptions of no right of action and/or no cause of action. For the following reasons, we reverse the judgment of the trial court maintaining the exception of no right of action. We affirm the grant of the exception of no cause of action, and remand the matter to the trial court to allow the plaintiff opportunity to amend its petition, if possible, to state a cause of action.

FACTS AND PROCEDURAL HISTORY

On March 7, 2003, Mabel Lee Johnson submitted an application with Teche Financial Services for a loan in the amount of $5,375.00. To secure the loan, Ms. Johnson mortgaged her mobile home to Teche as a movable under the Chattle Mortgage Law of Louisiana. The Office of Motor Vehicles recorded the lien on the movable and the title was sent to Teche.

On May 31, 2003, Ms. Johnson died, leaving an outstanding balance on her loan in excess of $5,000.00. The only asset of her succession was the mobile home, which was subject to the lien and mortgage. Ms. Johnson’s daughter, Thelma Rochelle Johnson, went to the Department of Motor Vehicles and obtained a title to the mobile home which did not reflect any lien or privilege.

Thelma Johnson stopped paying the notes on the mobile home and notified Teche she would be selling the mobile home. Teche subsequently filed suit on April 30, 2003, seeking damages against the State of Louisiana for the intentional, wrongful, or negligent actions on the part of the State in canceling the lien that Teche had on the mobile home. The State filed peremptory exceptions of no cause of action and no right of action in response to Teche’s petition. On May 3, 2005, a hearing was | ¡.held on the State’s exceptions. Teche made no appearance at the hearing, nor did it file any memorandum in opposition to the exceptions. On May 9, 2005, the trial court entered judgment granting both exceptions finding Teche had no right of action and/or no cause of action. Teche’s suit against the State was dismissed with prejudice. Teche appealed the trial court’s judgment granting the exceptions.

ANALYSIS

The peremptory exception of no right of action addresses itself to whether the particular plaintiff falls, as a matter of law, within the general class of those to whom the law grants the cause of action being asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885. This exception is a “threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted.” Crochet v. Cisco Sys., Inc., 02-1357 (La.App. 3 Cir. 5/28/03), 847 So.2d 253, writ denied, 03-1838 (La.10/17/03), 855 So.2d 765. We find the trial court erred in finding Teche did not have a right of action in this matter.

The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Louisiana Paddlewheels, 646 So.2d 885; Crochet, 847 So.2d at 255. In other words, the exception pleading the objection of no cause of action, tests whether, under the allegations of the petition, the law affords any remedy for the grievance asserted. Roger Boc, L.L.C. v. Weigel, 99-570 (La.App. 3 Cir. 11/3/99), 744 So.2d 731. In ruling on the exception, the court must accept all well-pleaded allegations of fact as true. Crochet, 847 So.2d 253. No evidence may be introduced to support or controvert the objection of no cause of Paction. La.Code Civ.P. art. 931.

In paragraph 9 of its petition, Teche alleges the State was “negligent, reckless and/or intentionally frauded [sic] the plaintiff.” “Under Louisiana law, for a negligence cause of action to accrue, three elements are required: fault, causation and damages.” Bailey v. Khoury, 04-620, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. The State argued the element of damages was missing in this case. The State contended as follows:

By this suit, Plaintiff seeks to collect a debt owed by Mabel Johnson. Ms. Mabel Johnson is now deceased but her daughter, Thelma Johnson, accepted her succession and took possession and title to her mother’s mobile home and thereby accepted her mother’s debt. [La.Civ. Code arts.] 957 and 961. If this debt is indeed satisfied by Ms. Thelma Johnson, Plaintiff has no grounds for suit against the State. The lack of existence or absence of a security interest causes Plaintiff no damage if the debt it secures is paid. Any potential cause of action against the State has not accrued.

In support of its argument the State cites the case of Urban Property Co. of La., L.L.C. v. Pioneer Credit Co., 03-38 (La.App. 5 Cir. 4/29/03), 845 So.2d 1227. In Urban the plaintiff appealed the dismissal of its suit for improper cancellation of a mortgage on real property. The fifth circuit, on its own motion, found no cause of action existed based on plaintiffs failure to show it suffered actual damages from the improper cancellation of the mortgage. The court stated:

[D]amages are an essential element of the cause of action under the statute. The problem in this case is that, based on the allegations in the petition, and the expansion of those allegations by testimony at trial, Urban has not yet suffered any actual damages. While its mortgage was cancelled by mistake, there is no allegation or showing of damage as a result.
As pointed out by Pioneer, for example, there has been no allegation or showing that the mortgage cannot be reinseribed or that Urban’s security is compromised. Urban has not secured a ranking judgment. There has been no allegation or proof that the Joseph’s [sic] 14cannot pay the note and it is only in the event of non-payment that the compromised security would possibly result in a loss or as damages to Urban. Urban has not brought suit on the note against the Josephs, obtained a judgment, attempted foreclosure, or secured a deficiency judgment. Prior to sustaining damages, Urban has no cause of action against Pioneer and its lawsuit seeking damages solely for the mortgage cancellation was pre-mature.

Id. at 1230-31 (footnote omitted).

The court vacated the judgment, finding Urban’s suit against Pioneer, absent any allegations or showing that damages have been sustained, failed to state a cause of action. The court granted Urban thirty days to amend its petition, if possible, to state a cause of action or have the case dismissed without prejudice. On remand, Urban amended its petition to allege the makers of the note “do not have income that would be subject to garnishment nor to satisfy any deficiency judgment.” Urban Property Co. of La., L.L.C. v. Pioneer Credit Co., 04-246, p. 5 (La.App. 5 Cir. 8/31/04), 882 So.2d 1178, 1181. The exception of no cause of action was reurged by Pioneer. The trial court granted the exception with written reasons that tracked the language in the appellate opinion. Plaintiff again appealed. Despite the amendment alleging the note was of no value and suit on the note would be useless, the appellate court maintained the granting of the no cause of action exception. The court stated:

We conclude the trial court did not err in granting the exception of no cause of action. Urban’s allegation that the makers of the promissory note “do not have income which would be subject to garnishment,” assuming it can be proven at a trial, does not establish that Urban has sustained damages that it would be entitled to recover from Pioneer. Urban has not been deprived of its security interest because the law allows a mortgage erroneously cancelled to be reinstated. There is no allegation that Urban has taken any steps to reinstate and then to enforce the mortgage. Thus, Urban has not alleged any actual damage it can recover from Pioneer.

Id. at 1182.

|sNo exception of prematurity or exception of no cause of action was filed in Urban. Appellate courts cannot supply an exception of prematurity on its own motion, however, it can supply the exception of no cause of action on its own motion, which the court in Urban did. The court then granted the no cause of action exception on prematurity grounds, finding there had “been no allegation or showing that the mortgage cannot be reinscribed or that Urban’s security is compromised” and that the “lawsuit seeking damages solely for the mortgage cancellation was pre-ma-ture.” Urban, 845 So.2d at 1230-31 (emphasis added). The case was remanded to the trial court to allow the plaintiff therein to amend its petition, if possible, to state a cause of action.

We find a similar situation presented in the present case. The State herein did not file an exception of prematurity below, even though its argument before the trial court raised the prematurity issue. The State specifically argued that any potential cause of action against the State has not yet accrued. We agree. Despite the “clean title” obtained by Thelma Johnson, Teche still possesses a lien on the trailer. Teche may have the mortgage reinscribed, attempt foreclosure on the trailer, or bring suit on the note against Thelma Johnson. Until Teche attempts any or all of these options, any cause of action for damages against the State has not yet accrued because Teche cannot prove it sustained or will sustain any actual damages. Therefore, as in Urban, we will grant the exception of no cause of action. The plaintiff herein is granted ninety days from finality of this decision to amend its petition to state a cause of action.

DECREE

For the foregoing reasons, the judgment of the trial court granting the exception |fiof no right of action is reversed. The portion of the judgment granting the exception of no cause of action is affirmed. The case is remanded to the trial court and the plaintiff is given ninety days from the date of mailing of the notice of this judgment to amend its petition to state a cause of action. The costs of this appeal are to be borne by the parties in equal proportions.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

PETERS, J., assigns additional reasons.

EZELL, J., concurs for the additional reasons assigned by Judge Peters.

PETERS, J.,

concurring.

hi agree with the opinion rendered herein that the petition of Teche Financial Services, Inc. (Teche) does not state a cause of action because it fails to state any facts that would establish it has sustained any damages — an element of its burden of proof. While joining in that opinion, I submit that the record reflects other reasons that the trial court’s grant of the exception of cause of action should be upheld.

As pointed out in the opinion rendered, we must accept all well-pleaded allegations of fact in the petition as true. Crochet v. Cisco Sys. Inc., 02-1357 (La.App. 3 Cir. 5/28/03), 847 So.2d 253. Long before we get to the issue of damages, we must recognize that there are no allegations of fact in the petition that establish a cause of action in any respect. With regard to liability, Teche’s petition asserted that “[t]he defendant, STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES, was negligent, reckless, and/or intentionally frauded [sic] the plaintiff herein by transferring a title on which they had a legal mortgage and lien” — nothing more. These assertions are conclusions and not facts upon which to base a cause of action.

Thus, the petition fails to state a cause of action as to liability and damages. Although the circumstances surrounding Teche’s effort or lack of effort to enforce its 12lien after cancellation were argued by both parties to this litigation, we are precluded from considering those factual assertions because, an pointed out in the released opinion, they are not alleged as a part of the petition. Thus, Teche’s petition is defective in all respects and the trial court did not err in granting the exception of no cause of action. However, as pointed out in the released opinion, Teche should have the opportunity, pursuant to La.Code Civ.P. art. 934, to amend its petition to state a cause of action if it can.


author: AMY, Judge.

text:
    STATE of Louisiana v. J.G.
    No. 2006-541.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, J.G.
    Court composed of OSWALD A. DeCUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

1 Recording to the factual basis supplied by the State at the defendant’s guilty plea hearing, “[b]etween December 1st of 2002 and January 31st of 2003, [J.G.] had sexual intercourse with a female juvenile having a date of birth of April 6th, 1990 which made her approximately 12. She was his sister.” On October 10, 2003, the grand jury indicted the defendant on the charge of forcible rape, a violation of La.R.S. 14:42.1. Pursuant to a guilty plea agreement, the charge was amended from forcible rape to sexual battery. The defendant entered a “best interest” plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

On February 15, 2006, the trial court sentenced the defendant to ten years at hard labor to be served without benefit of probation, parole, or suspension of sentence. The trial court denied the defendant’s motion for reconsideration of sentence. The defendant now appeals, arguing that his sentence is excessive. For the following reasons, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Excessive Sentence

In his sole assignment of error, the defendant contends that “[t]he ten-year sentence for sexual battery is excessive under the circumstances of the case.” He argues that the trial court “made only a cursory examination of [his] background” and [{.failed to consider “the fact that he comes from an obviously dysfunctional family.” Further, the defendant alleges that “the trial court never explained why it considers [him] the most egregious of offenders as to warrant the maximum sentence for sexual battery.”

In State v. Staton, 05-612, p. 8 (La.App. 3 Cir. 2/1/06), 922 So.2d 1216, 1221 (quoting State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331), this court articulated the standard for reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that,”[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

At the sentencing hearing, the trial court stated that the defendant was a third felony offender and had previously pled guilty to sexual battery in 2001. The trial court explained:

But, look, because of your prior sex offense and because of the nature of this crime, you could have actually been looking at life imprisonment or at least a minimum — if you’d have been multiple offender billed, even on the forcible rape you’d have been looking at a minimum of 20 years and a maximum of 80, or actually since it’s — you would be a third | aoffender, you’d actually be looking at probably life on the multiple offender bill considering your — the charges that you have and the current charge you have now, you’d probably — it would either be probably 30 years to 80, or life, or somewhere along those lines.
And I just — I don’t see — I think to sentence you to anything less than ten years would deprecate the seriousness of the offense, in light of your criminal history and in light of the facts that were alleged here.
I think the only appropriate sentence in this matter is a ten-year sentence, because I think you — you were fortunate to get that reduction to the sexual battery.

We find unpersuasive the defendant’s argument that the trial court only made a cursory examination of his background and that it failed to consider the fact that he comes from a dysfunctional family. The record indicates that a presentence investigation report was completed, which according to La.Code Crim.P. art. 875(A)(1) includes an inquiry “into the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, his family situation and background, economic and employment status, education, and personal habits.”

At the sentencing hearing, the trial court stated that it reviewed the report. The trial court did not state for the record the defendant’s personal and family history; however, there is no indication that the trial court failed to consider the information. Rather, the reasons reflect the trial court’s concern with the circumstances of the offense. In State v. Roberts, 01-0154 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, unit denied, 01-2974 (La.9/20/02), 825 So.2d 1163, a panel of this court reaffirmed that the sentencing court need not articulate consideration of every circumstance in order to comply with La.Code Crim.P. art. 894.1. Additionally, the defendant failed to present any information regarding his personal and family history for the record.

|4Under La.R.S. 14:43.1(0, a conviction for sexual battery carries a sentence of “imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” Here, the trial court sentenced the defendant to the maximum term allowed by statute. Given the circumstances present in the record, we find that the trial court did not abuse its discretion in imposing the maximum sentence. See State v. Runyon, 05-36, (La.App. 3 Cir. 11/2/05), 916 So.2d 407. The victim was the defendant’s twelve-year-old sister. Furthermore, this was the defendant’s second sexual offense.

We note that the State did not file a multiple offender bill, which would have exposed the defendant to a longer sentence. See La.R.S. 15:529.1. Further, the State entered into a plea agreement with the defendant, whereby he was allowed to plead guilty to sexual battery. The defendant was initially indicted on forcible rape, which carried a maximum sentence of forty years in prison. Given these circumstances, we find that the defendant’s sentence is not excessive.

This argument lacks merit.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the defendant's initials have been used to protect the identity of the victim.

      . Because the defendant was under the impression that he was a second felony offender, the trial court explained that he pled guilty to simply burglary in 1998, pled guilty to sexual battery in 2001, and was pleading guilty to the present charge of sexual battery.


author: THIBODEAUX, Chief Judge.

text:
    Theodore MAGNON, Sr., et al. v. Charlene MILLER, et al.
    No. 2006-321.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Edward B. Broussard, Judge, Abbeville City Court, Abbeville, LA, for Plaintiffs/Appellees, Theodore Magnon, Sr. and Judy Magnon.
    James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, Kraig Thomas Strenge, Lafayette, LA, for Defendanf/Ap-pellant, Charlene Miller.
    Walter Kay Jamison, III, Daigle, Crawford & Jamison, LLC, Lafayette, LA, for Defendant/Appellee, New Hampshire Indemnity Insurance Company.
    Ray F. Lucas, III, Lafayette, LA, for Defendant/Appellee, Western Heritage Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

11 Defendant/Appellant, Charlene Miller (Ms. Miller), appeals from the judgment of the trial court granting New Hampshire Indemnity Insurance Company’s (New Hampshire) summary judgment motion which dismissed New Hampshire as a co-defendant in the underlying civil action. Because Ms. Miller filed a written request for notice of date of trial pursuant to La. Code Civ.P. art. 1572, and because she was not served with New Hampshire’s motion nor the order setting a hearing date on that motion, we vacate the judgment of the trial court granting New Hampshire’s motion for summary judgment. We remand to the trial court.

I.

ISSUE

Under La.Code Civ.P. art. 1572, was service of New Hampshire’s motion for summary judgment and the order setting a hearing date on that motion required to be served on Ms. Miller because she requested written notice of the date of trial such that the judgment granting New Hampshire’s motion for summary judgment must be vacated and remanded?

II.

FACTS

On August 16, 2003, an automobile accident occurred involving a vehicle owned and driven by Theodore Magnon, Sr., and one owned by Edward Miller, Jr., that was being driven by his wife Charlene Miller. On August 4, 2004, Mr. Magnon and his wife (the Magnons) filed a suit for damages naming as defendants Ms. Miller, the Magnons’ own uninsured motorist insurance carrier, Western Heritage Insurance Company (Western), and Ms. Miller’s alleged liability carrier, New Hampshire.

| gAll of the defendants filed answers to the Magnons’ initial petition. In all of those initial answers, each defendant explicitly requested written notice of any trial or hearing date regarding the case at least ten days prior to any trial or hearing as required by La.Code Civ.P. art. 1572. Western was dismissed from the case via a stipulation between the parties when the Magnons discovered that the insurance policy that formed the basis of their claim against Western was not in effect at the time of the accident. New Hampshire filed a motion for summary judgment claiming that Ms. Miller was specifically excluded from coverage by virtue of a named driver exclusion. New Hampshire asked the clerk of court to serve only the Magnons through their attorney of record. In that same petition, New Hampshire’s lawyers signed a certified statement asserting that a copy of the petition had been mailed to all counsel of record via the U.S. mail.

The Magnons opposed New Hampshire’s motion. Only the Magnons were sent an official notice of the January 24, 2005 hearing date by the clerk of court as per New Hampshire’s instruction. On January 24, 2005, the Magnons’ attorney was the only party to the case physically present in court. Their attorney told the judge that the Magnons and New Hampshire had agreed to submit the issue to the court via memoranda, thus negating the need for a hearing. On March 12, 2005, a judgment was signed granting New Hampshire summary judgment, thereby dismissing it from the case. Notice of the signing of the judgment was mailed to all parties of record including Ms. Miller on November 15, 2005.

_b.ni-

LAW AND DISCUSSION

Standard of Review

Appellate courts review a trial court’s grant of summary judgment using the de novo standard of review. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37. An appellate court must review the record in its entirety and apply the same standards as the trial court. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773.

While the mover may be entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law,” there are also procedural requirements which must be met before summary judgment may be granted. La.Code Civ.P. art. 966(B). “However, in addition to proof that the mover is entitled to judgment under the substantive law, ‘courts have consistently found that the mover must also show that he has secured the judgment in accordance with the procedural law in order to have the summary judgment upheld on appeal.’ ” Hornage v. CLECO Power, L.L.C., 04-1492, pp. 2-3 (La.App. 3 Cir. 4/6/05), 899 So.2d 153, 155 (quoting Macaluso v. Macaluso, 99-935, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 180, 183). In Hornage, this court reversed summary judgment granted on behalf of one defendant because the other co-defendants had not been notified of the filing of, nor did they attend the hearing on, the motion for summary judgment, even though they had requested notice of trial pursuant to La.Code Civ.P. art. 1572. As in this case, the defendant seeking summary judgment in Hornage requested service of its motion only on the plaintiff.

|4Included in the procedural requirements is service of a motion for summary judgment at least fifteen days prior to the hearing date on the motion. La. Code Civ.P. art. 966(B); Chaney v. Coastal Cargo, Inc., 98-1902, p. 4 (La.App. 4 Cir. 1/20/99), 730 So.2d 971. This is to ensure that all parties have an opportunity to be heard on the motion, and that each individual party can offer its own opposition to that motion. Hornage, 899 So.2d 153. “Moreover, procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental.” Lassere v. State, Dep’t of Health & Hosps., Office of Pub. Health, 00-306, p. 4 (La. App. 1 Cir. 3/28/01), 808 So.2d 513, 516.

Ms. Miller took the extra step to ensure that she would be formally informed of all trial dates set in this case in her answer to the Magnons’ petition for damages. She filed a Request for Notice of Trial Date with the trial court on November 3, 2004, specifically invoking her right to receive written notice of the date of any trials set in the case from the Vermilion Parish Clerk of Court. Louisiana Code of Civil Procedure Article 1572 specifically instructs:

The clerk shall give written notice of the date of the trial whenever a written request therefor is filed in the record or is made by registered mail by a party or counsel of record. This notice shall be mailed by the clerk, by certified mail, properly stamped and addressed, at least ten days before the date fixed for the trial. The provisions of this article may be waived by all counsel of record at a pre-trial conference.

There is nothing in the record to suggest that Ms. Miller waived her right to receive formal service of trial or hearing dates in this case.

“Additionally, this court has previously recognized that a motion for summary judgment determining liability should consider the conduct of all defendants.” Hornage, 899 So.2d at 156. Furthermore, New Hampshire’s argument |Bthat Ms. Miller should not succeed in this appeal because the pleadings and discovery show that it is entitled to judgment as a matter of law is fallacious. Ms. Miller was not given the opportunity to prepare for and participate in the proceedings on New Hampshire’s motion. Therefore, it cannot be argued that the Magnons represented the interest of Ms. Miller in their memorandum in opposition to New Hampshire’s motion. Ms. Miller has her own specific interest in ensuring that New Hampshire remained a party to the case. Not only would New Hampshire possibly share some of the fault and ensuing liability for the damages alleged by the Magnons, but also if New Hampshire remained as a party to the case it would have an ongoing duty to defend Ms. Miller in the underlying action. Moreover, New Hampshire cannot say that Ms. Miller would not have succeeded in meeting her burden of proof and showing that there remains an issue of material fact thereby defeating New Hampshire’s motion because she was not given the opportunity to participate in that debate.

Consequently, we vacate the grant of summary judgment on New Hampshire’s motion because the process for granting that motion was procedurally flawed. “Even if the co-defendants were not considered to be ‘adverse parties]’ under La. Code Civ.P. art. 966(B), entitling them to service of the motion and supporting affidavits at least fifteen days before the hearing, they were at least entitled to notice of the hearing date under La.Code Civ.P. arts. 1571 and 1572.” Hornage, 899 So.2d at 156.

New Hampshire also argues that Ms. Miller cannot succeed in this appeal because re-litigating its summary judgment motion is barred by res judicata. While we disagree with New Hampshire that Ms. Miller and the Magnons were successors in interest, we do not reach the merits of this argument. Louisiana Code | fiof Civil Procedure Article 927(B) states that since this issue was not specially pleaded by New Hampshire, but merely raised in its reply brief, this court cannot supply the objection of res judicata.

IV.

CONCLUSION

Louisiana Code of Civil Procedure Article 966(B) states the substantive and procedural requirements for granting a party’s motion for summary judgment. Additionally, La.Code Civ.P. art. 1572 requires that the clerk of court shall give written notice of the date of trial whenever a written request for such notice is filed in the record of a case. Ms. Miller made a written request pursuant to La. Code Civ.P. art. 1572 for notice of any and all trial and hearing dates in this ease and filed her request with the Vermilion Parish Clerk of Court. Because she did not receive written notice of the trial date for New Hampshire’s summary judgment motion, the judgment of the trial court granting that motion is vacated, and the case is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed to New Hampshire.

VACATED AND REMANDED.

      . "The court cannot supply the objections of prescription and res judicata, which must be specially pleaded." La.Code Civ.P. art. 927(B).