author: WALTER J. ROTHSCHILD, Judge.

text:
    Audie DOMINIQUE, Jr. v. Anielka M. RODRIGUEZ and Allstate Insurance Company.
    No. 06-CA-578.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.
    Cheryl Ann McAnespy-Smith, Attorney at Law, Harvey, Louisiana, Elizabeth M. Gaudin, Attorney at Law, Gretna, Louisiana, for Plaintiffs/Appellees.
    James F. Ryan, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡>This case arises from a motor vehicle accident that occurred on February 20, 1999. Plaintiff, Audie Dominique, Jr., asserts that he was a passenger in a vehicle owned and operated by Shanna Warren and they were traveling on LA Hwy. 45, commonly referred to as Barataría Blvd., when the vehicle in which they were riding was struck by a vehicle owned and operated by Anielka Rodriguez. On November 19, 1999, plaintiff filed suit against Ms. Rodriguez and Allstate Insurance Company (“Allstate”), alleging that Ms. Rodriguez was solely at fault for the accident and that Allstate was Ms. Rodriguez’s liability insurer at the time of the accident.

On January 12, 2000, plaintiff amended his petition and added Shanna Warren and her liability insurer, National Automotive Insurance Company (“National”), as defendants. On February 15, 2000, Ms. Warren filed a cross-claim against Ms. Rodriguez and Allstate for property damage resulting from the ^accident. Plaintiffs claims against Ms. Warren and National were dismissed on January 9, 2001, and his claims against Ms. Rodriguez personally were dismissed on January 9, 2004. At trial, Ms. Warren dismissed her cross-claim against Ms. Rodriguez personally.

On October 24, 2003, Allstate filed a Motion for Summary Judgment, arguing that there was no policy of liability insurance issued by Allstate in favor of Ms. Rodriguez in effect on the date of the accident and thus, plaintiffs claims against it should be dismissed. At a hearing on May 4, 2004, this motion was denied.

The matter proceeded to trial on March 18, 2005 with Allstate as the only remaining defendant. On April 26, 2005, the trial judge issued a judgment in favor of Mr. Dominique and against Allstate, finding that there was a policy of insurance in effect for Ms. Rodriguez at the time of the accident. The judgment awarded $12,467.29 in damages to Mr. Dominique and $600 to Ms. Warren. Allstate filed a Motion for New Trial on May 2, 2005, which was subsequently denied. Allstate appeals.

DISCUSSION

On appeal, Allstate argues that the trial judge erred “when it ruled that Allstate failed to prove that it timely canceled the policy effective from August 4, 1998 to February 4, 1999 and that therefore Allstate Indemnity Company provided coverage for the February 20, 1999 motor vehicle accident.” Allstate asserts that it offered to renew Ms. Rodriguez’s policy, but she failed to timely pay her premium. Allstate also contends that it was not necessary for Allstate to cancel the policy because it expired on its own terms.

At trial, Carrell Devillier, an Allstate insurance agent, testified that Ms. Rodriguez purchased Lability insurance from Allstate Indemnity Company with a |4six-month term, effective August 4, 1998 through February 4, 1999. He stated that at the end of the term, he contacted Ms. Rodriguez about renewal and she told him that she would not be renewing her policy with Allstate because it was too expensive.

Thomas Burlette, an Allstate insurance agent who worked with Mr. Devillier, testified that Ms. Rodriguez came to their office on February 22, 1999, stating that she wanted to make a payment on her policy and that she had been in an accident two days earlier. Mr. Burlette stated that he pulled her file and noticed that her policy had expired on February 4,' 1999. He testified that Ms. Rodriguez admitted that she told Mr. Devillier that she did not want to renew her policy, but she stated that she had changed her mind. According to Mr. Burlette, Ms. Rodriguez’s policy could not be renewed because it was not reinstated within seven days of its expiration. Ms. Rodriguez completed a new application and purchased a new insurance policy.

Ms. Rodriguez testified that she believed she had insurance on the date of the accident. She indicated that she received a renewal letter/statement from Allstate and mailed her renewal payment on February 2, 1999 to Allstate’s payment center in Dallas, Texas. She testified that in March 1999, the envelope with her payment was returned to her by the postal service with a notation indicating “insufficient address.” She asserted that she did not speak with Mr. Devillier about renewal of the policy and she never indicated to him that she did not want to renew it. She testified that she did not know that her renewal payment had not been posted until she called to report the accident. She further indicated that she filed for bankruptcy and thus, would not be liable for any damages resulting from this accident.

In his reasons for judgment, the trial judge stated:

1 sThe Court found that there was a policy in effect at the time of the accident. The Court finds that according to the policy Allstate could cancel the policy for non-payment of the premium. However, the date of cancellation would be at least ten (10) days after the date of mailing the notice of cancellation.
The Court further finds that the Allstate agent copied the wrong address on his insured’s paper work. The agent sent the notice of cancellation to the wrong address. The agent presented the letter at Trial with the wrong address and not dated. The agent further testified that on the last day of the policy he called the insured to see if she was going to pay to continue the policy in effect. The Allstate agent states that the insured wanted to cancel the policy. This was denied by the insured. The Court does not believe the Allstate agent.

Considering the testimony and evidence before us, we find the trial court’s reasoning and analysis to be flawed.

First, we find that the cancellation provisions set forth in the Allstate policy and LSA-R.S. 22:636.1 do not apply in this case. It is undisputed that Ms. Rodriguez purchased a policy of Allstate insurance for the period of August 4, 1998 through February 4, 1999. There is no evidence that Allstate attempted to cancel this policy prior to its expiration on February 4, 1999. In Arcenaux v. Broussard, 319 So.2d 846, 848 (La.App. 1 Cir.1975), the First Circuit stated:

There is no reason for the insurer to comply with the provisions of a cancellation statute if the policy is not being canceled. Cancellation implies that a policy is being disrupted for some reason, and terminated prior to its anticipated termination date. When a policy expires from the running of its term, it is not being disrupted, but instead it is dying a natural death.

See also Green v. McCollum, 535 So.2d 8 (La.App. 4 Cir.1988), writ denied, 536 So.2d 1222 (La.1989).

Renewal is defined in LSA-R.S. 22:636.1 A(5) as the “issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term.” When a policy expires from the running of its term and is not disrupted, the | fistatutory provisions regarding renewal are applicable, rather than the cancellation provisions. Adamson v. State Farm Mutual Auto. Ins. Co., 95-2450 (La.App. 1 Cir. 6/28/96), 676 So.2d 227, 282.

It is clear that the instant case involves the renewal of an insurance policy, not cancellation, because there is no evidence that the policy was disrupted or terminated prior to its anticipated termination date, February 4,1999.

LSA-R.S. 22:636.1(E) provides in pertinent part:

No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This Subsection shall not apply: a) If the insurer has manifested its willingness to renew.

If the insurance company has clearly manifested its willingness to renew an insurance policy and the insured does not avail himself of the opportunity within the time period allowed, the insurance policy will lapse at the termination of the period. Morill v. K & M Services, Inc., 524 So.2d 263, 264 (La.App. 5 Cir.1988). The insurer is not required to renew a policy or to give notice of its intention not to renew if it “has manifested its willingness to renew.” Jacobs v. Louisiana Indemnity Ins. Co., 96-1203 (La.App. 3 Cir. 3/12/97), 692 So.2d 1182, 1185, unit denied, 97-958 (La.5/16/97), 693 So.2d 802. By stating its willingness to renew á policy, the insurer gives the insured the option of continuing or terminating coverage and, if the insured is silent, the insurer is no longer obligated to renew the policy. Id.

The trial judge found that the Allstate agent copied the wrong address on Ms. Rodriguez’s paperwork and sent the notice of cancellation to the wrong address. It is true that the evidence indicates that Mr. Devillier incorrectly listed Ms. Rodriguez’s address as West Pork Court, instead of West Park Court. However, as stated above, no notice of cancellation was required in this case, |7because it was not being terminated prior to its expiration date. Further, Ms. Rodriguez admits that she received a renewal letter/statement, despite the fact that it was improperly addressed. Ms. Rodriguez testified that after she received a renewal statement, she mailed her renewal payment on February 2, 1999, but she received her payment back in the mail with a notation from the postal service of “insufficient address.” She admitted that she wrote the address on the envelope herself, but it was not the right address.

Allstate has shown that it manifested its willingness to renew Ms. Rodriguez’s policy. Accordingly, the provisions of LSA-R.S. 22:636.1(E) requiring notice to an insured that an insurer does not intend to renew a policy do not apply.

The Allstate policy contains the following provision:

If we offer to renew your policy and your required premium payment isn’t received on or before the end of the then current policy period, your policy will terminate on the expiration date of the then current policy period. (Emphasis added.)

Allstate manifested its willingness to renew Ms. Rodriguez’s policy, but the evidence reflects that it did not receive the renewal premium on or before the end of the policy period. Accordingly, Ms. Rodriguez’s policy expired at the end of its term, February 4,1999.

After a thorough review of the testimony and evidence in this case, we find that Allstate has established that Ms. Rodriguez’s Allstate insurance policy was not in effect on the date of the accident, February 20,1999. Accordingly, the trial court’s judgment against Allstate, finding it liable to the plaintiffs in this matter, is reversed.

|sDue to our ruling on the first issue on appeal, Allstate’s second assignment of error regarding whether or not it is responsible for damages awarded in excess of its policy limits is moot.

DECREE

For the reasons set forth above, the April 26, 2005 judgment in favor of plaintiffs and against Allstate is reversed.

REVERSED.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    NEWTON & ASSOCIATES, INC. v. Terri GROSS.
    No. 06-CA-596.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      W. Paul Andersson, Leake & Andersson, L.L.P., Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant, Newton & Associates, Inc.
    Teri L. Gross, In Proper Person, River-view, Florida, Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| ¡.This is a suit by a collection agency against a former employee to enforce a non-competition agreement, in which the former employee reconvened with various claims, including a sexual harassment claim. The plaintiff appeals a judgment that awarded the former employee damages and attorney’s fees on the sexual harassment claim. We reverse in part, affirm in part, and render.

FACTS

Teri L. Gross was hired by Newton & Associates (“Newton”) in July 1998 as a commercial debt collector. She was terminated in early September 1999 for excessive absenteeism. Shortly after her termination by Newton, Gross was employed by Alexander & Hamilton, Inc., a competitor of Newton.

Newton rapidly filed suit against Gross, seeking to recover $2,000.00 paid her as commissions that allegedly were not due her, as well as to enforce the noncompetition provisions of Gross’ employment agreement, which prohibited her from soliciting clients of Newton after her employment was terminated.

Gross responded with a reconventional demand, asserting claims against Newton for violation of the Family and Medical Leave Act, hostile work ^environment, gender discrimination, sexual harassment, and intentional and/or negligent infliction of emotional distress.

After a bench trial, the district court dismissed most of both parties’ claims, but found in favor of Gross on her sexual harassment claim and awarded her damages of $5,000.00 plus attorney’s fees of $2,500.00. In ruling from the bench, the judge stated only that “the sexual harassment claim by Ms. Gross was warranted and had merit.”

Newton took a suspensive appeal. Gross has neither appealed, nor filed an answer to the appeal, although she has filed an appellate brief in proper person. (Her attorney withdrew as counsel following the trial.)

Newton does not attempt to reinstate its claims dismissed by the trial court, but seeks only to have the award to Gross for sexual harassment reversed. Newton asserts the trial court committed legal error in finding that sexual harassment had been established for the following reasons: (1) Gross did not prove a pervasive and hostile work environment; (2) Gross did not prove that management failed to take prompt remedial action in addressing harassment complaints; (3) Gross’s factual allegations were uncorroborated by either documentary or testimonial evidence; and (4) the consistent and uncontradicted testimony demonstrated that management promptly responded on the two occasions that complaints of improper conduct were made. Further, (5) Gross’s complaints regarding a birthday party on office premises at which a stripper appeared were meritless, because Gross -testified she did not participate in or see the party, and had only a momentary fleeting glance of the stripper as she passed the claimant’s office, and management immediately | ¿halted the party even before complaint .was made, and prohibited any future repetition. '

LAW AND ANALYSIS

La.R.S. 23:332 prohibits intentional discrimination in employment. It provides in pertinent part:

A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire ■ or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.

Louisiana courts look to federal jurisprudence to interpret Louisiana discrimination laws, because they are derived in part from the federal law. Bustamento v. Tucker, 607 So.2d 532, 538 n. 6 (La.1992).

There are two types of sexual harassment, one based on a quid pro quo theory and the other based on a theory of a hostile working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 2405, 91 L.Ed.2d 49 (1986).

Hostile environment harassment consists of verbal or physical conduct that has the effect of creating an intimidating, hostile, or offensive work environment. To prevail in a hostile environment harassment claim, the plaintiff must assert and prove that: (1) she belonged to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew' or should have known of the sexual harassment and failed to take proper remedial action ... Every act of harassment, although reprehensible, does not necessarily give rise to a hostile environment claim. To be actionable, the harassment must be sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive, hostile environment. In general, hostile environment harassment is characterized by | (¡multiple and varied incidents of offensive conduct which have the cumulative effect of creating a hostile working environment for the employee thus victimized.

Lee v. Delta Air Lines, Inc., 00-1034 (La. App. 5 Cir. 1/30/01), 778 So.2d 1169, 1173.

At trial Gross claimed she was subjected to sexual harassment repeatedly over the course of her 14-month tenure at Newton, but she described only a few incidents. She claimed that some male employees kept obscene photographs as screensavers on their computers, or displayed on the walls. However, she gave no proof that she had complained to management about such a practice, and provided no corroboration of her claim. It was denied by all the other Newton employees who testified.

Gross complained that on her first day a fellow employee, Jim Bradshaw, was assigned to train her. She said he had been drinking and kept trying to get closer and closer to her, forcing her up against the side of her cubicle. After about 20 minutes, she ended the training and told Bradshaw she would train herself. She did not present evidence that she reported the incident to her supervisor.

Gross testified that whenever she and another employee, whom she knew only as Melissa, tried to use the fax machine, an employee named John Hearn would walk behind them and keep brushing against them. Gross did not testify that she complained of this behavior to management; nor did she call Melissa or anyone else to corroborate her story.

On one occasion, Gross testified, Hearn was drunk and had urinated/defecated on himself, and was walking around the office in that state. As she was using the fax machine he decided to rub up against her. She complained to her boss, Mike Rome, and he sent Hearn home within ten to fifteen minutes.

| fiGross testified that John Hearn made unwelcome advances and suggestive remarks to her at a Christmas party. However, another employee, Les Ledet, overheard him and told him, “Either leave her alone or leave the party,” and Hearn desisted from his behavior.

In July 1999 employees put on a surprise birthday party for Tom Barcelona, one of the collectors, which included a female stripper who stripped to the nude in Barcelona’s office and with whom Barcelona participated in overtly sexual behavior. Although counsel for Gross introduced into evidence a number of snapshots taken of the event, Gross testified she did not view the show, but stayed in her office because she was disgusted by it. She claimed the only time she saw the stripper was when the stripper ran by her office as she was leaving the building. Gross complained she was unable to work while the party was going on, due to “screaming, yelling, and loud music.”

No other witnesses corroborated any of Gross’ testimony regarding the alleged incidents of harassment, and several contradicted her claim that she stayed at her desk and did not watch the stripper perform. Rather, they said she was watching the performance and laughing along with everyone else.

Bill Newton, owner of the company, testified that as soon as he discovered what was going on, he put a stop to the party, sent the stripper away immediately, and later sent a memo to all employees forbidding any such events in the future. His testimony was supported by several current or former Newton employees.

The witnesses who had worked at Newton all said that Bill Newton was an approachable boss whose door was always open, and who was willing to listen to their complaints. None of them recalled hearing or seeing any episodes of sexual discrimination or harassment.

^Applying the above-cited standards to the facts elicited at trial, we conclude the trial court erred in finding that Gross proved sexual harassment. We find that Gross failed to meet her burdens of proof. She failed to show that the incidents involving Bradshaw and Hearn at the fax machine were reported to management. The incidents involving Hearn’s soiled pants and his advances at the Christmas party were immediately redressed by management. Finally, the birthday party stripper incident was dispersed by Bill Newton as soon as he realized what was going on. In addition, according to Gross’s own testimony, her complaint about the incident was not that it was sexual harassment, but rather that she was unable to perform her job because of the noise and distraction. She testified that she was repulsed by the sight of the naked stripper running past her cubicle as she left, but this appears to have been an isolated incident.

DECREE

Accordingly, the judgment is reversed insofar as it awarded damages and attorney’s fees to Teri Gross, and judgment is rendered in favor of Newton & Associates, Inc. dismissing the sexual harassment claim. In all other respects the judgment is affirmed. The parties are cast with their own costs for this appeal.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . Newton calls the defendant "Terri” Gross in the title of the case and in its pleadings. However, Gross spells her first name "Teri,” so we adopt her own spelling of her first name.

      . "An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” La. C.C.P. art. 2121.

      . An appellee who desires to have the judgment modified, revised, or reversed in part or who demands damages against the appellant must file an answer to the appeal, stating the relief demanded, not later than 15 days after the return day or the lodging of the record, whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. La.C.C.P. art. 2133.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana in the Interest of A.T.C. and C.R.C.
    No. 06-CA-562.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Eunice S. Charles, Attorney at Law, Gretna, Louisiana, for Parent/Appellant.
    Sherry A. Watters, Attorney at Law Department of Social Services, New Orleans, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|j>The juvenile court rendered judgment in this case on the petition of the Department of Social Services, Office of Community Services (OCS), terminating the parental rights of the mother, S.C., to the minor children A.C. and C.C. S.C. appeals from that judgment. For the reasons which follow, we affirm.

A.C. was born on January 20, 1991. C.C. was born January 4, 1995. They are the minor children of S.C. On August 23, 2005, OCS filed a petition to terminate S.C.’s parental rights alleging that she had abandoned her children and that her rights should be terminated under La. Ch.C. art. 1015(4)(b) and (c). The petition also asserted that it was in the best interest of the children to have the opportunity for permanency through an adoptive home.

IsFollowing a hearing, the court found that “OCS has proven by clear and convincing evidence that the parents, [L.C.] and [S.C.], have abandoned the minor children pursuant to Louisiana Children’s Code Article 1015(4), inasmuch as for a period in excess of six months the parents have failed to maintain substantial contacts with the children or to pay substantial support for the children and have not provided for the health, safety or financial support of the children.” Additionally, the court found “that it is in the best interest of the children for them to be freed for adoption together, by the prospective adoptive parents whom they have identified.” The court rendered judgment on February 2, 2006 terminating the parental rights of each parent. It is from this judgment that S.C. appealed. On appeal, S.C. assigns two errors.

In the single argument on the assigned errors, S.C. argues that the court erred in terminating her parental rights without first requiring OCS to search for relatives who could care for the children. S.C. also argues that OCS failed to prove that she intended to permanently avoid parental responsibility. She contends that the children are very attached to her and that she did not intend to abandon them but was prevented from supporting and providing for the children because of hurricane Katrina and her incarceration.

OCS opposed S.C.’s position arguing that they met the burden of proof by clear and convincing evidence and the juvenile court judgment terminating S.C.’s parental rights should be affirmed. OCS points out that the children have been in state custody since March 2004 when S.C. was picked up on a shoplifting charge. The children were found to be “in need of care” on May 18, 2004 and a case plan was presented with the goal of reunification. From May through October, S.C. was difficult to get in touch with. She changed addresses and could not be reached by telephone. S.C. was re-incarcerated in October 2004. Despite being given bus Rtokens, S.C. made no visits between July and October. One of the children, A.C., was taken to the prison to visit her mother in February 2005. S.C. did not send any cards or letters to the children before the petition to terminate was filed in August 2005. She paid no child support during the two year period that the children were in foster care. OCS points out that the children want to be adopted and S.C. presented no evidence of “just cause” for her lack of support of or communication with the children.

In State ex rel. J.A, 99-2905 pgs. 7-9 (La.1/12/00), 752 So.2d 806, 810-811, the Louisiana Supreme Court discussed termination of parental rights proceedings, as follows:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of AE., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the ^permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. La. Child. Code art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.

In this case, OCS grounded the petition for termination on La. Ch.C. art. 1015(4)(b) and (c) which provides:

The grounds for termination of parental rights are:
(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

The State only needs to establish one ground under La. Ch.C. art. 1015 upon which to base the termination of parental rights, and must prove those elements by clear and convincing evidence. State ex rel. J.A, 99-2905 p. 9 (La.1/12/00), 752 So.2d 806, 811; State ex rel J.T.C., 04-1096 p. 12 (La.App. 5th Cir.2/15/05), 895 [(6So.2d 607, 615, writs denied, 05-0466 (La.4/8/05), 899 So.2d 11; La. Ch.C. art. 1035(A); La. Ch.C. art.1037. In addition, the trial judge must also find that the termination is in the best interest of the child. State ex rel. J.A 99-2905 at 9, 752 So.2d at 811; La. Ch.C. art. 1037. The appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G., 02-2886, p. 4 (La.3/18/03), 841 So.2d 759, 762.

Once the State has established abandonment and failure to provide care and support, the burden shifts to the parent to establish “just cause” and thereby avoid termination. State in Interest of M.L., 95-45, p. 9 (La.9/5/95), 660 So.2d 830, 833; State ex rel. T.M.H., 99-433 p. 6 (La.App. 5th Cir.11/30/99), 748 So.2d 1216, 1219. Incarceration is not a “just cause” defense to failure to support the children or to maintain contact with them in a termination of parental rights case, if the incarceration is shown to be a result of the parent’s actions. In re Fleming, 01-1405, p. 7 (La.App. 5th Cir.4/30/02), 817 So.2d 371, 376; In the Interest of H.A.N., 528 So.2d 1079, 1080 (La.App. 5th Cir.1988).

After considering the record in light of the above, we find no error in the juvenile court ruling terminating the parental rights of S.C. to A.C. and C.C. OCS clearly proved that S.C. did not support her minor children for a period of over six months from March 2004 through October 8, 2004. Pamela Martin, a Child Welfare Specialist with OCS assigned to this case testified to these facts. Additionally, S.C. admitted in her testimony that she had not provided support for her minor children during this time or any other time after they were placed in foster care. Ms. Martin also testified that she repeatedly gave S.C. bus tokens to enable her to visit her children and keep her case appointments but she did not attend as required. She wrote letters to the children from time to time and there |7was some sporadic telephone contact. But the court found that the few contacts that were made occurred after the petition for termination was filed. Also, A.C.’s foster mother testified that the telephone calls were upsetting to A.C. because S.C. would tell her that she was no good and that no one loved her. Furthermore, in finding that the termination of parental rights was in the children’s best interest, the court noted that the children, 15 and 11 years old at the time of the hearing, both stated that they wanted to be adopted. The court also noted that there was a family interested in adopting the two children and that the children were happy with that situation.

Based on the foregoing we find no error in the juvenile court finding that OCS proved by clear and convincing evidence that S.C. had abandoned her minor children, A.C. and C.C., as provided by La. Ch. C. art. 1015(4)(b) and (c) by failing to maintain substantial contacts with the children or providing substantial support for them for a period in excess of six months, and that termination of S.C.’s parental rights, freeing the children for adoption, was in the best interest of the children.

Accordingly, we affirm the judgment of the juvenile court terminating the parental rights of S.C. to A.C. and C.C.

AFFIRMED.

      . The judgment also terminated the parental rights of the father, L.C., to the children. No appeal was taken on behalf of the father. Therefore, that part of the ruling has not been discussed herein.

      . We will refer to the minor children and their parents by initials to lessen the minor children's exposure and thereby protect their identity. La. Sup.Ct. Rule XXXII, § 3,


author: DALEY, Judge.

text:
    Mary L. Classen, Wife of/and Anthony C. CLASSEN v. Vivian HOFMANN, Horace Mann Insurance Company, United Services Automobile Association.
    No. 06-CA-560.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Robert P. Kemp, Metairie, Louisiana, for Plaintiffs/Appellants, Mary L. Classen and Anthony C. Classen.
    M. Randall Brown, Cameron M. Mary, Brown & Mary, LLC, Mandeville, Louisiana, for Defendants/Appellees, Vivian Hof-mann & Horace Mann Insurance Company.
    Michael R. Sistrunk, C. Devin Fadaol, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, Louisiana for Defendant/Appellee, United Services Automobile Association.
    Panel composed of Judges THOMAS F. DALEY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   DALEY, Judge.

| sPlaintiffs, Mary L. Classen and Anthony C. Classen, appeal the trial court’s grant of defendants’ Exception of Res Ju-dicata. For the reasons that follow, we affirm.

This action arises out of an automobile accident that occurred in Jefferson Parish on May 24, 2002, between an automobile driven and owned by Vivian Hofmann and an automobile driven by Mary L. Classen and owned by her and her husband, Anthony C. Classen. On July 29, 2002, Hof-mann filed suit in Civil District Court, Parish of Orleans, for personal injuries and property damage, naming as defendants Mrs. Classen, USAA Insurance (Mrs. Classen’s liability insurer), and Horace Mann Insurance Company (Hofmann’s uninsured/underinsured motorist insurance carrier). Mrs. Classen was personally served on August 7, 2002. In this suit, Mrs. Classen was represented by counsel provided by her liability insurance carrier, USAA.

l40n November 12, 2002, the Classens, represented by different counsel, filed the instant suit, in the 24th JDC in Jefferson Parish, against Mrs. Hofmann and her liability carrier, Horace Mann Insurance, alleging personal injuries and property damage arising out of the same automobile accident that formed the basis for Mrs. Hofmann’s suit in Orleans Parish. Mrs. Classen answered the Orleans Parish suit, but did not file a reconventional demand in the Orleans Parish suit. Mrs. Hofmann answered the Jefferson Parish suit, but did not file an Exception of Lis Pendens in the Jefferson Parish suit.

The parties to the Orleans Parish suit settled the case before the conclusion of the Jefferson Parish suit. On November 24, 2004, pursuant to a Joint Motion to Dismiss, an Order dismissing the suit with prejudice was signed. No appeals were taken in that matter.

On February 25, 2005, defendants, Hof-mann and Horace Mann Insurance Company, filed an Exception of Res Judicata in the instant matter, citing the dismissal with prejudice of the Orleans Parish suit as the basis for the Exception. The Exception was heard on March 30, 2005. The trial court granted the Exception, without reasons, by judgment signed on April 11, 2005.

On appeal, the Classens argue that the trial court erred in granting the Exception because one essential element, that the parties must be the same, was not met, nor did the parties appear in the same capacity in both suits. Next, the Classens argue that the trial court erred because the issues in the Orleans Parish lawsuit were not actually litigated or decided; the Clas-sens’ insurance company, they argue, merely made a business decision to settle the lawsuit.

LSA-R.S. 13:4231, amended in 1991, states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
|R(1) If the judgment-is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

LSA-C.C.P. art. 1061(B), which was also amended in 1991, states that the defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action (emphasis added).

In Tower Partners, L.L.C. v. Wade, 2003-0665 (La.App. 4 Cir. 1/21/04), 869 So.2d 126, 129, the court summarized recent jurisprudence on res judicata as follows:

In Terrebonne Fuel & Lube, Inc. v. Placed Refining Co., 95-0654, 95-0671 (La.1/16/96), 666 So.2d 624, the Louisiana Supreme Court discussed the scope of res judicata as follows:
Res judicata is an issue preclusion device found both in federal law and in state law. Prior to the amendments to Louisiana res judicata law effective in 1991, Louisiana law on res judicata was substantially narrower than federal law. The purpose of both federal and state law on res judi-cata is essentially the same; [sic] to promote judicial efficiency and final resolution of disputes by preventing needless relitigation.

95-0654, p. 11-12; 666 So.2d at 631.

In Terrebonne, the Supreme Court also stated: “the original Louisiana doctrine of res judicata was based on a presumption of correctness rather than an extinguishment of the cause of action. A decided case precluded a second suit only if it involved the same | fiparties, the same cause and the same object of demand as the prior suit.” 95-0654, p. 12; 666 So.2d at 632 (citation omitted). The Supreme Court further stated that under La. R.S. 13:4231, as amended effective 1 January 1991, the following would be the case:

[A] second action would be barred because it arises out of the occurrence which was the subject matter of the prior litigation. The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.

Id., quoting Comments — 1990, La. R.S. 13:4231.

The official comment to article 1061, which was also amended effective 1 January 1991, states in pertinent part:

(a) Judicial efficiency is served by requiring the defendant though compulsory reconventional demand to assert all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the basis for the plaintiffs action.
(b) Furthermore, if the defendant has a cause of action arising out of the subject matter of the plaintiffs action, then the defense of res judicata will prevent relitigation of issues common to both causes of action except as otherwise provided by law. The requirement of a compulsory reconven-tional demand therefore also serves the interest of fairness by giving the defendant notice that he must assert his related cause of action.

In Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049, the Supreme Court set forth five criteria that must be met for a matter to be considered res judicata. They are:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.
2002-1385, p. 8; 843 So.2d at 1053.

The Classens argue that the parties were different in each suit, as Mr. Classen was not a defendant in the Orleans Parish suit, but was a plaintiff in the Jefferson Parish suit. They also argue that they appeared in different capacities in |7each suit: Mrs. Classen being a defendant in the Orleans Parish suit, and a plaintiff in the Jefferson Parish suit. These facts, they argue, should have defeated the Exception of Res Judicata.

As the Supreme Court explained in Burguieres v. Pollingue, supra, capacity means “legal capacity,” not whether a party is a plaintiff or a defendant. The court found that a previous suit against defendant Pollingue, as an executrix of an estate, did not make res judicata a second, later suit, filed by the same plaintiffs, against Pollingue as curatrix and trustee. The principle of identity of capacities was imposed, the Burguieries court explained, to safeguard the integrity of representative functions, a concept that is not applicable to this suit.

Given the fact that LSA-C.C.P. art. 1061 and LSA-R.S. 13:4231 must be read in pari materia⅛ it does not matter whether Mrs. Classen was a defendant in the Orleans suit and a plaintiff in the Jefferson Parish suit. C.C.P. art. 1061 requires her to assert any causes of action against Mrs. Hofmann and her insurer, which arise out of the same operative facts, via a compulsory counterclaim in the Orleans Parish suit. See also Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057.

Nor does the fact that Mr. Clas-sen was not a defendant in the Orleans suit defeat the Exception of Res Judicata in the Jefferson Parish suit under the specific facts of this case. It is true that only the named defendant in the principal action may proceed by way of a reconven-tional demand. Mr. Classen was not a named defendant in the Orleans Parish suit, and, therefore, he could not have filed a reconventional demand in the Orleans Parish suit. However, Mr. Classen asserted a cause of action against Mrs. Hofmann for damages for loss of consortium, which is derivative of and dependent on Mrs. Classen’s cause of action for personal Isinjuries. Because his cause of action does not stand alone, he alone could not have filed an original suit against Mrs. Hofmann and her insurer, in any parish. Because C.C.P. art. 1061 required Mrs. Classen to reconvene in the Orleans Parish suit, Mr. Classen’s remedy was to file an intervention in the same matter to assert his claim for loss of consortium. This case differs from Burguieres v. Pollingue, supra, wherein the Exception of Res Judi-cata was reversed, in the second suit, as to Dr. Pollingue. Dr. Pollingue was not a defendant in the decedent’s children’s first suit against his wife as executrix, thus causing a lack of identity of parties fatal to his exception, but the critical issue in the defeat of his Exception of Res Judica-ta in the second suit was that the plaintiffs asserted a cause of action against him, independently of his wife, for his alleged independent tortious acts. No such independence exists in a loss of consortium claim.

Further, we find that Mr. Classen’s property damage claim is duplicative of his wife’s claim for the same. Their Jefferson Parish petition clearly alleges that they were married at all times pertinent thereto, and moreover identifies the damaged car as “petitioners’” (plural) car. As it appears that the car was community property, either party could sue to recover damages to it. LSA-C.C.P. art. 686. Therefore, there was no requirement that Mr. Classen be joined in the suit to preserve this claim.

The Classens next argue that because the issues were never litigated in Orleans Parish, but were rather settled with no findings of fact or adjudication, the Exception of Res Judicata must be reversed. LSA-C.C.P. art. 1673 provides that a judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. Given the clear language of this statute, there is no requirement that the claims be actually litigated for the doctrine of res judica-ta to apply. Leon v. Moore, 98-1792 (La.App. 1 Cir. 4/1/99), 731 So.2d 502. Since the | ^Orleans Parish suit was dismissed with prejudice, these principles of res judi-cata apply. Under the claim preclusion part of res judicata, a final judgment of dismissal with prejudice precludes the parties from relitigating matters that were or could have been raised in the first action. Blanchard v. ABC Ins. Co., 38,005 (La.App. 2 Cir. 3/3/04), 867 So.2d 901.

The Classens argue that they were not a party to the settlement in Orleans Parish. We give no moment to this argument, however. Mrs. Classen was clearly a defendant in that action, and the dismissal of the action operated in her favor. Moreover, the settlement documents introduced into this record show that both Mr. and Mrs. Classen, by name, were released by the settlement, in addition to their insurer.

Last, the Classens appeal to equity, arguing the application of “exceptional circumstances,” under LSA-R.S. 13:4232, that justify relief in their favor. This Court sees no exceptional circumstances, however, that warrant application of this statute. The Classens and their attorney in the Jefferson Parish suit were fully aware of the existence of the Orleans Parish suit, as is apparent by correspondence between counsel introduced into this record. They apparently gambled that their suit would reach judgment prior to the Orleans suit, and lost.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

      . The Classens are married and it is presumed that the auto in question is community property. Their Petition in Jefferson Parish referred to the “petitioners’ vehicle.”

      . Walker v. Howell, 04-246 (La.App. 3 Cir. 12/15/04), 896 So.2d 110.

      . Baldwin v. Antin, 95-0714 (La.App. 1 Cir. 2/23/96), 673 So.2d 1049.


text:
    STATE of Louisiana v. Javon GOMEZ.
    No. 06-KA-417.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, Fortieth Judicial District, Parish of St. John the Baptist, Edgard, Louisiana, for Appellee, State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant, Javon Gomez.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2The District Attorney for St. John the Baptist Parish filed a bill of information charging Javon Gomez with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A)(1) and possession with intent to distribute marijuana in violation of La. R.S. 40:966(A)(1). The defendant pled not guilty at arraignment. Defendant filed numerous pre-trial motions, including motions to suppress physical evidence and statements. The motion hearings were conducted over the course of several months; after which, the trial judge denied the motions to suppress.

On April 4, 2005, the defendant pled guilty to both counts, reserving his right to appeal the trial judge’s ruling on his motions to suppress under State v. Crosby, 338 So.2d 584 (La.1976). The defendant thereafter waived sentencing delays and, that day, the trial judge sentenced defendant to concurrent sentences of seven years imprisonment at hard labor on each count. The trial judge also ^imposed a fine in the amount of $2,000.00 and court costs of $210.50. The defendant filed a timely motion for appeal, which the trial judge granted.

Facts

Corporal Jose Rel of the St. John the Baptist Parish Sheriffs Office testified that, on August 9, 2003, he was on patrol in LaPlace on Airline Highway when he observed a red Nissan traveling east on Airline Highway at approximately 1:00 a.m. According to Corporal Rel, the vehicle’s tail-lights were not illuminated. Corporal Rel pulled alongside the vehicle and saw that the headlights were activated, which ruled out the possibility that the driver had just forgotten to turn on his headlights. Corporal Rel also observed that the driver was not wearing his seat belt. The officer followed the vehicle for approximately one-half mile before initiating a traffic stop.

As Corporal Rel exited his patrol unit, the driver exited his vehicle and approached Corporal Rel. As the driver walked toward him, Corporal Rel smelled a strong odor of marijuana on the driver. Corporal Rel advised the driver of the reasons for the traffic stop and asked for his driver’s license. At that point, Corporal Rel identified the driver as Javon Gomez, the defendant herein.

Corporal Rel testified that, when asked, the defendant denied that he had been smoking marijuana. Defendant also denied that he had any illegal narcotics or contraband in the vehicle. Corporal Rel testified that he asked the defendant for consent to search the vehicle, and the defendant replied he had “no problem with that.” Instead of immediately searching the vehicle, however, Corporal Rel asked the defendant to close the door of the car. Meanwhile, Deputy Charles Ray Wale, III had arrived at the scene as a back up officer.

Corporal Rel then called for a canine unit. Approximately two minutes later, Corporal Bertrand and his dog, Nasca, arrived. Corporal Bertrand testified that he |4toId the defendant that Nasca was certified to detect and alert when odors of marijuana, cocaine, heroin, and metham-phetamines are present. Corporal Bertrand further explained to the defendant that Nasca would alert to the odor of these substances, even if the substances were not physically present. Thereafter, Corporal Bertrand asked the defendant to allow him to search the vehicle and the defendant agreed. When Corporal Bertrand informed Corporal Rel that defendant had consented to the search, Corporal Rel confirmed that the defendant had also consented when Corporal Rel asked permission to search the vehicle.

When Corporal Bertrand walked Nasca along the exterior of the vehicle, the dog alerted to the seam between the front and rear driver’s side doors, and also to the rear quarter panel of the vehicle. Corporal Bertrand allowed Nasca to get into the front seat of the ear and the dog immediately jumped in the back seat and alerted to the rear deck, or ledge, of the back seat. As Nasca pawed the back seat, Corporal Bertrand could see that the rear seat was unlatched so he leaned the seat forward to reveal the trunk area. When Corporal Bertrand shined his flashlight into the trunk area, he saw an opened brown paper bag containing a clear plastic bag of green leafy material. He also observed a scale inside of the bag. Corporal Bertrand advised Corporal Rel of the contraband. The green leafy material field-tested positive for marijuana, and the defendant was arrested. According to Corporal Rel, the defendant said that the marijuana did not belong to him.

Corporal Rel testified that the officers then opened the trunk from the outside, and saw a partially-opened CD case containing a clear plastic bag, which contained a white powder that field-tested positive for cocaine. The officers also found a brown paper bag containing three smaller bags of marijuana and various other controlled dangerous substances that are not related to the convictions that defendant is now appealing.

|BOn appeal, defendant presents one counseled assignment of error and one pro se assignment of error. In his counseled assignment of error, defendant argues that the trial court erred in denying the motion to suppress the physical evidence because it was the product of an illegal detention and involuntary consent. In his pro se assignment of error, defendant contends that the trial judge erred in denying his motion to suppress the evidence because the officer “had legitimate reason to stop appellant and no verbal consent to search his car.” We will address both issues simultaneously.

The Fourth Amendment to the United States Constitution and Article I, § V of the Louisiana Constitution protect individuals from unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspect of engaging in criminal activity is recognized by La. C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Preston, 04-269 (La.App. 5 Cir. 7/27/04), 880 So.2d 64, 67. Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe that a traffic violation has occurred. State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1056, citing, Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is an objective one that does not take into account the subjective beliefs or expectations of the police officer. State v. Waters, citing, Whren, 517 U.S. at 813, 116 S.Ct. at 1774. Accord, State v. Preston, supra.

In his pro se brief, defendant contests the validity of the traffic stop. At the suppression hearing, Corporal Rel testified that he stopped the defendant because his vehicle’s tail-lights were not illuminated while traveling at night. La. R.S. 32:304 requires tail-lights on motor vehicles. La. R.S. 32:301 governs the operation of lights and other illuminating devices on vehicles on a highway. In 6State v. Winfrey, 359 So.2d 73, 76 (La.1978), the Louisiana Supreme Court found that the police lawfully stopped the defendant who was driving an automobile without its lights at night because every vehicle driven after sunset and before sunrise must have its lights on.

Defendant contends that his taillights were in perfect working order, which he argues casts doubt on Corporal Rel’s credibility. First and foremost, the credibility of witnesses at the suppression hearing is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Calvert, 01-826, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084. Second, the record does not support the defendant’s argument. Corporal Rel testified at the suppression hearing that he followed defendant’s vehicle for about one-half mile on the night in question. Corporal Rel verified, during that time, that defendant’s headlights were in working order. The defense did not elicit or offer testimony to contradict Corporal Rel’s statements.

Furthermore, Corporal Rel testified that defendant was not wearing a seatbelt. La. R.S. 32:295.1 provides for seat belt use by occupants of vehicles. A driver’s failure to wear a seatbelt constitutes reasonable cause for a stop. See, State v. Jackson, 04-728 (La.App. 5 Cir. 12/14/04), 892 So.2d 71, 75, unit denied, 05-548 (La.1/9/06), 918 So.2d 1033. Thus, even if we were to find merit in defendant’s contention that the vehicle’s tail-lights were operational, the record reflects that defendant was not wearing a seatbelt and, thus, in violation of traffic law, which gave Officer Rel probable cause to stop the defendant. We find that the initial stop was justified.

In his counseled brief, defendant asserts that the traffic stop exceeded constitutional bounds when Corporal Rel asked the defendant to exit the vehicle |7without justification. However, both the U.S. Supreme Court and the Louisiana Supreme Court have recognized that an officer making a traffic stop may order the driver (as well as passengers) out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997); State v. Benoit, 01-2712 (La.5/14/02), 817 So.2d 11, 15; State v. Jackson, 04-728 (La.App. 5 Cir. 12/14/04), 892 So.2d 71, 75, unit denied, 05-548 (La.1/9/06), 918 So.2d 1033. Thus, once Corporal Rel stopped the vehicle, he was authorized to order the defendant out of the vehicle, which led to further conversation and eventually a search of defendant’s vehicle.

Next, in both his counseled and pro se briefs, defendant contends that he did not consent to the officers’ search of his car. Consent is a well-recognized exception to the warrant requirement. State v. Strange, 04-273 (La.5/14/04), 876 So.2d 39. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 15. Oral consent is sufficient and written consent is not required. State v. Ossey, 446 So.2d 280, 287, fn. 6 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984). Accord, State v. Enclade, supra. Voluntariness of consent is a question of fact which the trial judge is to determine based on the totality of the circumstances. State v. Enclade, 858 So.2d at 15.

Here, defendant contends that, considering the large amount of illegal narcotics that were ultimately found in his vehicle, a reasonable person could not imagine that he would have consented to a search of his vehicle. The standard, however, is whether the trial judge found that consent was voluntarily given under the circumstances. In this case, both Corporal Rel and Corporal Bertrand testified at the suppression hearings that the defendant consented to have his vehicle [Ssearched. In fact, the defense did not elicit or offer testimony to refute or contradict the officers’ statements that defendant consented to the search of his vehicle. Based upon our review of the record, we do not find support for defendant’s argument.

Ultimately, the trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Butler, 01-907 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 124. Based on the foregoing, we cannot say that the preponderance of evidence clearly favors suppression. We, therefore, find no error in the trial court’s denial of defendant’s motion to suppress.

Finally, defendant requests an error patent review. We note that defendant’s sentence is indeterminate according to La.C.Cr.P. art. 879 because the trial judge did not specify whether the $2,000.00 fine was imposed as a penalty for count one or count two. See, La. R.S. 40:967(B)(4)(b); 40:966(B)(3), West 2003. We, therefore, vacate defendant’s sentence and remand this matter for the trial judge to clarify the sentence. See, State v. Lachney, 621 So.2d 846, 848 (La.App. 5 Cir.1993).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . In exchange for defendant’s guilty plea, the State dismissed charges which arose from the same incident but had been brought in a separate bill of information. We note also that the defendant sent a letter, received on April 21, 2005, to the Clerk of Court for St. John the Baptist Parish asking for consideration of his request to change his Crosby plea to an Alford plea. There is no ruling on defendant's request in the record. Further, defendant has not briefed this issue on appeal. This issue is, thus, not before this Court and will not be addressed on appeal.


text:
    STATE of Louisiana v. Keith M. DILLON.
    No. 06-KA-488.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Appellee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Appellant, Keith M. Dillon.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2Pefendant, Keith M. Dillon, appeals his conviction for third-offense driving while intoxicated. For the following reasons, we affirm defendant’s conviction, vacate his sentence, and remand for resentencing..

On September 17, 2002, defendant was arrested in Jefferson Parish for driving while intoxicated. On August 20, 2004, the Jefferson Parish District Attorney’s office filed a bill of information charging defendant with third-offense driving while intoxicated, in violation of La. R.S. 14:98(D). After numerous notices, defendant appeared before the trial judge, was arraigned, and entered a plea of not guilty in this matter on or about July 12, 2005.

On July 25, 2005, defense counsel filed numerous pre-trial motions. On November 2, 2005, defendant filed a pro se Motion to Quash the bill of information on the basis that the time limitation for the institution of the prosecution or for the commencement of trial had expired pursuant to La.C.Cr.P. art. 532(7) and/or La.C.Cr.P. art. 538(3).

On March 28, 2006, defendant’s Motion to Quash was denied. On March 30, 2006, defendant withdrew his former plea and entered a guilty plea to third-offense driving while intoxicated, reserving his right to appeal the denial of his 3Motion to Quash under State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced the defendant to 2 years and 6 months at hard labor with all but thirty days suspended with credit for time served then placed defendant on probation for the remainder of his sentence with the special condition of home incarceration. Defendant filed a timely motion for appeal, which was later granted by the trial court.

On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders procedure used in Louisiana was discussed in State v. Benjamin, 573 So.2d 528, 529-530 (La.App. 4th Cir.1990), approved by the Louisiana Supreme Court in State ex rel. Hawkins v. Criminal Disk Court, 92-3200 (La.11/30/93), 629 So.2d 421, adopted for use in this Circuit in State v. Bradford, 95-929 (La.App. 5th Cir.6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242. To comply with Jyles, appellate counsel’s brief must review not only the procedural history of the case and the evidence presented at trial, but also must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, 704 So.2d at 242 (quoting State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177).

When an Anders brief is filed, the appellate court reviews (1) the bill of information to insure that the defendant was properly charged, (2) all minute entries to insure that the defendant was present at all crucial stages of the proceedings, the jury composition, verdict, and the sentence, (3) all pleadings in the record, and (4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, at 1110-1111. If, in its independent review, the Rappellate court finds a legal point arguable on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing the legal point or it may grant the motion to withdraw and appoint substitute appellate counsel. State v. Bradford, at 1110.

Defendant’s appellate counsel has asserted that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She has filed a Motion to Withdraw as counsel, which states that she sent the defendant a letter to inform him that she had filed an Anders brief and that he has the right to file a supplemental brief. In addition, this Court sent the defendant a letter, by certified mail, informing him that an Anders brief had been filed and also that he had until August 20, 2006 to file a supplemental brief. Defendant has not filed a supplemental brief.

In her appellate brief, defendant’s counsel discussed the timeliness of institution of prosecution and commencement of trial. She concludes that there are no non-frivolous issues to be raised on appeal. After an independent review of the record, we find that counsel’s conclusion is correct.

In this case, defendant filed his motion to quash alleging that “the time limitation for the institution of prosecution or for the commencement of trial has expired.” La. C.Cr.P. art. 532(7). The record reflects that the prosecution of the defendant’s case and commencement of his trial were timely pursuant to La.C.Cr.P. art. 572(2) and La.C.Cr.P. art. 578(2).

Prosecution is instituted on the date that the indictment is returned or the bill of information is filed. State v. Breaux, 05-358, p. 3 (La.App. 5 Cir. 12/27/05), 920 So.2d 274, 276. La. R.S. 14:98(D)(l)(a) provides that an offender convicted of third-offense driving while intoxicated shall be imprisoned with or without hard labor. According to La.C.Cr.P. art. 572(2), prosecution must be instituted within 1 R“[f]our years, for a felony not necessarily punishable by imprisonment at hard labor.” In this case, defendant was arrested for driving while intoxicated on September 17, 2002. The Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant with third-offense driving while intoxicated, in violation of La. R.S. 14:98(D), on August 20, 2004, less than two years after defendant’s arrest. Therefore, we find that defendant’s prosecution was timely instituted.

La.C.Cr.P. art. 578(2) requires that trial be commenced in non-capital felony cases within “two years from the date of institution of the prosecution.” However, when a defendant files a motion to quash or other preliminary plea that has the effect of delaying trial, the running of the periods of limitation established by Article 578 are suspended until the court rules on the pleadings. La.C.Cr.P. art. 580. State v. Quinones, 03-907, p. 4 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 827. In this case, defendant filed an omnibus pre-trial motion, including a Motion for Preliminary Examination and a Motion to Suppress Confession, Identification, and Physical Evidence, on July 25, 2005. The record reflects that there were no rulings on said motions. Therefore, the two-year time limitation for commencement of trial was suspended and never resumed.

Based on the foregoing, we find that the trial court did not abuse its discretion in denying the defendant’s motion to quash. Our independent review of the record and appellant counsel’s brief reveal no non-frivolous issues for appeal. Further, appellant counsel has demonstrated to this Court by full discussion and analysis that she has cast an advocate’s eye over the trial court and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence, as [ ^required by Jyles. See, State v. Mouton, supra. Therefore, we grant appellant counsel’s motion to withdraw.

In addition, this Court routinely reviews the record for errors patent, according to La.C.Cr.P. art. 920. Defendant’s sentence is illegally lenient because the trial judge did not impose the $2,000.00 fine mandated by La. R.S. 14:98(D)(l)(a) and did not require defendant to obtain employment and participate in a court-approved driver improvement program as mandated by La. R.S. 14:98(D)(3)(b). Therefore, we vacate defendant’s sentence and remand for resentencing in accordance with the proper provisions of La. R.S. 14:98(D). See State v. Vidal, 04-1139, p. 9 (La.App. 5. Cir. 3/29/05), 901 So.2d 484, 492.

In conclusion, we grant appellate counsel’s Motion to Withdraw. Further, we vacate defendant’s illegally lenient sentence and remand for resentencing in conformity with the proper penalty provisions. In all other respects, defendant’s conviction is affirmed.

AFFIRMED; REMANDED; MOTION GRANTED.

      . It is well-established that the law in effect at the time of the commission of the offense is determinative of the penalty to which the accused is subject. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518; State v. Schief-

        fler, 841 So.2d 1000, 1002 (La.App. 5 Cir. 2/25/03)


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Mohammad MAHBOD v. Mersedeh EBRAHIMI (Busse), ABC Insurance Company, New York Life Insurance and Annuity Corporation and First Variable Life Insurance Company.
    No. 06-CA-235.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      John-Michael Lawrence, Attorney at Law, New Orleans, Louisiana, for Plain-tiffAppellant.
    Maura Z. Pelleteri, Amy M. Seltzer, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1 ¡¿Plaintiff, Mohammad Mahbod, appeals the grant of a summary judgment in favor of defendant, New York Life Insurance & Annuity Corporation (New York Life), dismissing with prejudice all claims made by plaintiff against New York Life. The court further decreed the judgment was final for purposes of appeal. For reasons set forth in this opinion, we affirm.

The underlying action began with the filing of a “Petition for Damages and Nullification of Variable Universal Life Insurance Contract,” against New York Life, First Variable Life Insurance Company (First Variable), life insurance agent Mer-sedeh Ebrahimi, and her professional liability insurer. In the petition, Mahbod asserts that he purchased a variable life insurance policy with a face value of $500,000.00 from Ebrahimi, acting as agent for New York Life. She subsequently convinced him to cancel that policy and purchase one of the same face value with First Variable. In the process of these transactions it is alleged that Ebrahimi made |s“numerous false statements and material misrepresentations” concerning the universal life insurance policies she sold him.

Specifically, Mahbod asserts that in May of 1999 Ebrahimi presented a variable life insurance policy with New York Life having a face value of $500,000.00 with a monthly premium of $629.69, to be fully paid up in five years. Mahbod further alleges that in 2000, after some controversy about whether Mahbod was a smoker, Mahbod was placed in the “non-preferred” category and the terms of the policy were changed, extending the period for' paying premiums from five to ten years. According to the petition, Ebrahimi promised that if she could not secure the policy on the terms originally promised, she would transfer the policy to one with another company. That new policy would have the same face value,, and he would have to pay premiums for only five years. Ebrahimi also told Mahbod he would receive a credit of approximately $10,000.00 toward the new policy for the $11, 775.28 in premiums already paid on the New York Life policy. The new policy would be written by First Variable. Based on these representations, Mahbod signed documents necessary to cancel the New York Life policy and transfer to the First Variable policy, causing him to suffer damages.

Mahbod asserts that in April of 2003 he learned he would have to pay premiums indefinitely and that he was only given a credit of $3,468.00. Mahbod seeks damages, and further, to have the First Variable insurance company policy declared null and void.

New York Life answered the petition, admitting that it issued a variable life insurance policy to Mahbod in May of 1999, and that Ebrahimi was an agent of the company, although that relationship ended in August of 2000. Additionally, New York Life filed exceptions of prescription, peremption and no cause of action. The basis of the prescription/peremption exceptions is that the policy was issued in |41999 and the suit was filed in 2003. In support, New York Life cites La. R.S. 9:5606 and La. C.C. art. 3492. The no cause of action exception is based on the fact that Mahbod voluntarily surrendered his New York Life policy in 2000 for cancellation. The exceptions were denied by the trial court.

After discovery was conducted by the parties, New York Life filed a motion for summary judgment. Mahbod opposed the motion and the matter went before the trial court for a hearing, after which the judgment at issue herein was rendered.

The memorandum in support of New York Life’s motion for summary judgment incorporates the exceptions of prescription, peremption and no cause of action previously denied, as well as summary judgment, and the arguments were also combined at the hearing. However, because we find the summary judgment was correctly granted, we need not consider the arguments on the exceptions.

A motion for summary judgment should be granted only 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. La.C.C.P. art. 966(B). Our review of summary judgments on appeal is de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385, 387. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. art. 966(A)(2). Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

As explained by the Louisiana Supreme Court;

Is..The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties. Obviously, the initial determination of the parties’ intent is found in the insurance policy itself. In analyzing a policy provision, the words, often being terms of art, must be given their technical meaning. When those technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written.
Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, 123-124; rehearing granted for correction only, 00-0947 (La.3/16/01), 782 So.2d 573.

One fact not in dispute is that Mahbod applied for and was issued a variable life insurance policy by New York Life in 1999. A copy of the application and the policy issued are among the documents attached to New York Life’s motion for summary judgment. There is no dispute among the parties that these documents are authentic. On the face of policy # 63611014 issued to Mohammad Mahbod by New York Life the following clause is written:

Payment of premiums. While this policy is in force, premiums can be paid at any time before the policy anniversary on which the insured is age 95, and while the insured is living. They can be paid at any interval or by any method we make available, subject to the Premiums section. The amount and interval of scheduled premiums, as stated in the application for this policy, are shown on the Policy Data page.

The premiums page of the policy reads as follows:

Scheduled premium payable at monthly intervals: $692.95.
.Premiums cannot be paid on or after the policy anniversary on which the insured is age 95, which is May 17, 2048. Coverage will expire when the cash value less surrender charges, and any unpaid loans and accrued interest is insufficient to cover the monthly deduction.

A policy receipt form executed by Mah-bod on August 3, 1999 acknowledges that he received a copy of the policy and his application. As part of the application process, Mahbod selected four options for investment in the special account associated with this policy. Also included is a presentation made by Ebrahimi specifically for Mahbod entitled “Variable Universal Life Insurance Illustration.” | fiThe document charts return rates for the separate investment account which forms part of the variable life policy. On the front page of the document it states:

The purpose of this illustration is to show how the performance of the underlying investment accounts could affect the policy cash value and life insurance benefit. This illustration is hypothetical and may not be used to project or predict investment results. Specifically, the values shown in this illustration reflect hypothetical assumptions as to investment rate of return, premium payment option, life insurance benefit option, face amount, policy transactions, and policy changes. The values would be affected by a change in any of these assumptions, the investment rates of return shown in this illustration are hypothetical level annual rates of return. Even if the average rate of return, over a specified period, is the same as the hypothetical rate, actual results will vary due to fluctuations in the actual rates of return. Because this is a flexible premium policy, it is the responsibility of the policy owner to assure that sufficient premiums are paid to keep the policy in force. A policy may terminate due to insufficient premiums and/or poor investment performance. Excessive loans and/or withdrawals may cause the policy to lapse due to insufficient cash surrender values.

The policy states that, “(n)o agent is authorized to change this contract.”

In support of his opposition to the motion for summary judgment, Mahbod presented his deposition in which he verified his signature on the application as well as the receipt of policy form. He stated that Ebrahimi’s representation that the premiums would only be due for only five years was made prior to the signing of these forms. Mahbod states that he does not have an illustration showing that he was to pay $692 for five years becaüse Ebrahimi kept it. Mahbod suggested that Ebrahimi removed it from the file and substituted a “fake” one. He could not recall whether any of the above language was on that illustration.

In his deposition, Mahbod acknowledged that he knew on August 31, 2000 that the New York Life policy could not be paid up in five years, and he discussed transferring the policy to First Variable with Ebrahimi.

Mahbod also stated that after his request for cancellation of the New York Life policy, he was contacted by Mathew McGovern, who tried to convince him to 17keep the policy. Mahbod says he showed the First Variable illustration to him. Mahbod stated that at that time he trusted Ebrahimi and believed that New York Life was at fault. Consequently, he did not believe the representatives of New York Life when they assured him that the First Variable policy would not be paid up in five years.

In Mr. McGovern’s deposition, he states that he worked for New York Life and went with another agent to speak to Mah-bod in an attempt to save the policy for New York Life. Mr. McGovern explained that a sales tool used in the sale of a variable life policy is a hypothetical illustration to show potential cash values and death benefits in the future, although he did not have the specific illustration given Mahbod. He could not recall a discussion about whether Mahbod was a smoker.

In support of his position that there are material facts at issue preventing summary judgment, Mahbod presented affidavits from other clients of Ebrahimi stating that she made misrepresentations to them. Mahbod asserts that his signature was obtained fraudulently on the application for the New York Life policy by a “bait and switch” scheme engaged in by Ebrahimi with New York Life’s knowledge and approval. Mahbod also argues that his decision to cancel the New York Life policy in 2000 was because of fraudulent representations by Ebrahimi, in a “bait and switch” plan of which New York Life had knowledge.

The documents presented by New York Life and Mr. Mahbod’s own testimony do not support his arguments. The terms of the New York Life policy are clear and give no indication that the premiums would discontinue in five years. Mahbod admits his signature is on the receipt of the policy. Assuming Ebrahimi did make that false representation before the application was made and the policy issued, Mahbod is deemed to know when it was issued that the correct terms of the policy did not include a paid-up policy in five years. Further, he accepted the ^policy as written and held it for about one year before surrendering it for the cash value.

Further, we find no merit in plaintiffs claim that questions of material fact remain regarding the representations made in 2000 that caused him to surrender the New York Life policy for its cash value and replace it with the First Life policy. By plaintiffs own admission, Ebrahimi had become disenchanted with New York Life and no longer represented the company at that point. Thus, any allegations of fraud regarding this transaction can not be imputed to New York Life, and cannot prevent the grant of summary judgment as to that party.

Mahbod asserts that knowledge of Ms. Ebrahimi’s “bait and switch” plan can be imputed to New York Life. In support of that assertion, Mahbod offers three affidavits from other clients who claim to have been defrauded by the same scheme. Two of the affidavits, by Munta-dhir Hussan and Victor Sadvani, show knowledge by the affiants of the false representations in 2004 and 2003, and therefore will not serve to impute knowledge by New York Life of the scheme in 2000, which is when Mahbod discovered the alleged misrepresentation. The remaining affidavit presented by Mahbod, which would indicate that New York Life knew of Ebrahimi’s false representations by 2000, is unsigned and cannot by used to support the conclusion that New York Life knew of Ebrahimi’s actions.

Thus, we find the trial court was correct in finding no material issue of fact remained to be decided regarding the issuance of the New York Life policy and was correct in granting summary judgment.

For the foregoing reasons, we affirm the judgment of the trial court and remand the matter for further proceedings.

AFFIRMED; MATTER REMANDED.