author: STEWART, J. BROWN, C.J.,

text:
    REGIONAL UROLOGY, L.L.C., et al., Plaintiffs-Appellees v. David T. PRICE, M.D. and David T. Price, M.D., A Professional Medical Corporation, Defendants-Appellants.
    No. 42,789-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.
    Rehearing Denied Oct. 18, 2007.

      Breazeale, Sachse & Wilson, L.L.P. by Claude F. Reynaud, Jr., Jude C. Bursa-vich, Jeanne C. Comeaux, Baton Rouge, for Appellants.
    Cook, Yancey, King & Galloway, by Sidney E. Cook, Jr., Shreveport, for Appel-lees.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

| defendants, David T. Price, M.D., and David T. Price, M.D., A Professional Medical Corporation, appeal a judgment in favor of plaintiffs, Regional Urology, L.L.C., et al., enforcing a noncompetition and non-solicitation agreement against Dr. Price, individually. Finding that the agreement meets statutory requirements and is binding on Dr. Price, individually, we affirm.

FACTS

Dr. Price began practicing with Regional Urology on September 11, 2001, by entering into a Service Agreement purporting to be between Regional Urology, L.L.C., and David T. Price, M.D., A Professional Medical Corporation. Under the Service Agreement, Dr. Price’s corporation was an independent contractor, and all services were to be performed by Dr. Price.

On June 1, 2005, Dr. Price and the other thirteen physicians who had Service Agreements with Regional Urology signed the following amendment:

AMENDMENT TO SERVICE AGREEMENT
WHEREAS, the Members of Regional Urology, L.L.C., have decided to amend the Service Agreement for each of its Members, listed hereinbelow; and
WHEREAS, this Amendment is to be signed by each entity which is a Member.
NOW, THEREFORE, BE IT AGREED:
A new paragraph 6 F is hereby added to each Service Agreement:
F. In the event of termination of this Agreement for any ^reason, neither Physician, Physician Corporation, nor Physician Company shall perform any duties as a urologist or perform any urological procedures, either individually or as the employee, owner, or equity interest holder of any entity within the Parishes of Caddo and Bossier, Louisiana, for a period of two (2) years following such termination. Further, in the event of termination of this Agreement for any reason, Physician, Physician Corporation, and Physician Company shall not solicit any patients of the Company, either individually or as the employee, owner, or equity interest holder, of any entity within the Parishes of Cad-do and Bossier, Louisiana, for a period of two (2) years following such termination. Physician, Physician Corporation, and Physician Company agree that in the event of a breach or threatened breach of any portion of this paragraph, irreparable harm and damage will be done to the Company. Accordingly, Physician, Physician Corporation, and Physician Company agree that, in such event, the Company shall be entitled to seek an injunction or restraining order to restrain and enjoin such breach or threatened breach by Physician and/or Physician Corporation and/or Physician Company. The Company shall also be entitled to recover monetary damages a (sic) result of the breach of this paragraph by Physician and/or Physician Corporation and/or Physician Company.
(2) The second and third sentence of Paragraph 7 of each Service Agreement is hereby deleted.
(3) These changes shall apply to any physician who is a Member, any corporation which is a Member or any physician’s L.L.C. which is a Member of Regional Urology, L.L.C.

As is shown by the signature pages to this amendment, the fourteen Members of Regional Urology were all either professional corporations or L.L.C.’s. Each physician, including Dr. Price, signed on behalf of his business entity.

The relationship between Regional Urology and Dr. Price ended on June 1, 2007. On June 2, 2007, Dr. Price filed articles of incorporation for a new entity, David Price, M.D., L.L.C., domiciled in Claiborne Parish.

Two days later, Regional Urology filed suit to enforce the non-compete and non-solicitation clauses in the Amendment to the Service 1 sAgreement. The petition alleged that Dr. Price was performing urological procedures in Caddo and/or Bossier Parish and soliciting patients of Regional Urology in violation of the Amendment to the Service Agreement. Injunctive relief was sought to prohibit Dr. Price from engaging in these activities in the parishes of Caddo and Bossier for a period of two years.

In his defense, Dr. Price alleged that, because he had not signed in his individual capacity, the Amendment to the Service Agreement could not be enforced against him individually, or against his new L.L.C. He also alleged that the Agreement was overly broad and lacked the required geographical limitation. Finally, he asserted that enforcement of the Amendment would violate public policy.

The parties filed competing affidavits in support of their positions. The trial court granted Dr. Price’s motion in limine to exclude parol evidence regarding the intent of the parties. Regional Urology filed its own motion in limine to exclude evidence pertaining to Dr. Price’s public policy argument. The trial court denied this motion, but declined to address policy considerations, which it considered a legislative matter. Regional Urology also filed a motion to strike the affidavit of Sara Burroughs, which was offered by Dr. Price in support of his argument regarding the lack of geographical limitation. Burroughs’ affidavit was stricken as untimely.

|4By agreement of the parties, the hearing on June 29, 2007, addressed the merits of permanent injunctive relief. The trial court ruled in favor of Regional Urology upon finding the Amendment to the Service Agreement to be clear, in compliance with statutory requirements, and binding on Dr. Price individually.

A judgment was signed on July 6, 2007, enjoining David T. Price, M.D., A Professional Medical Corporation and David T. Price, M.D., “either individually or as the employee, owner, or equity interest holder of any entity,” from soliciting patients of Regional Urology and from performing urological procedures or duties as a urologist in the parishes of Caddo and Bossier for a period of two (2) years from June 1, 2007, through May 31, 2009. A separate judgment set forth the trial court’s rulings on the evidentiary motions. This appeal followed.

DISCUSSION

Historically, Louisiana’s public policy has disfavored noncompetition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 4-5 (La.App.2d Cir.6/29/01), 808 So.2d 294, 298. This policy is reflected in La. R.S. 23:921(A)(1), which provides that contracts or agreements restraining anyone from exercising a lawful profession, trade, or business shall be null and void. However, there are statutory exceptions which allow for noncom-petition agreements.

La. R.S. 23:921 C provides the exception relevant to this matter:

C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the |semployer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

Under this provision, an independent contractor may enter agreements not to compete and not to solicit customers within a specified geographical area for a period of no more than two years. The exceptions set forth in La. R.S. 23:921 C must be strictly construed, and agreements con-fected pursuant to this provision must strictly comply with its requirements. SWAT 24, supra; Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954, p. 7 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 411, writs denied, 2001-3316 (La.3/8/02), 811 So.2d 883 and 2001-3355 (La.3/8/02), 811 So.2d 886; Francois Chiropractic Center v. Fidele, 630 So.2d 923, 926 (La.App. 4th Cir.1993).

A noncompetition agreement is a contract between the parties who enter it, and it is to be construed according to the general rules of contract interpretation. SWAT 24, supra. The common intent of the parties is used to interpret a contract. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Both parties state that the terms of the Amendment are clear and unambiguous.

|fiWhen a contract may be interpreted from the four corners of the agreement, without consideration of extrinsic evidence, the interpretation is a matter of law. ScenicLand Construction Co., L.L.C. v. St. Francis Medical Center, Inc., 41, 147 (La.App.2d Cir.7/26/06), 936 So.2d 251; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28, 555 (La.App.2d Cir.8/21/96), 679 So.2d 477. In such cases, appellate review considers whether the trial court was legally correct or legally incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App.2d Cir.9/26/01), 796 So.2d 115, writ denied, 2001-3134 (La.2/1/02), 808 So.2d 341.

Dr. Price argues that the noncom-petition and nonsolicitation provisions may not be asserted against him individually, because only “Members” of Regional Urology were required to sign the Amendment and because the Amendment language states that the changes to the Service Agreement apply only to physicians, physician’s L.L.C.’s, and corporations who are “Members” of Regional Urology.

The obvious purpose or intent of the Amendment is to prevent the physicians of Regional Urology from opening competing practices in the event of terminating their contractual relationship, as apparently happened in this matter. If the Amendment is interpreted as proposed by Dr. Price, it would have no effect. The record shows that all of the “Members” of Regional Urology are listed as either physician’s professional medical corporations or L.L.C.’s. Each Member could end ties with Regional Urology and open his own practice as an individual or in the name of a new corporation or company, as attempted by Dr. Price. The clear language of |7the contract, when considered in light of its obvious purpose, does not support Dr. Price’s interpretation. We are bound to give legal effect to the contract according to the true intent of the parties. La. C.C. art. 2045; ScenicLand Const, supra.

The Amendment states that the “Members” of Regional Urology decided to amend their Service Agreements, that “each entity which is a Member” must sign the Amendment, and that the “changes shall apply to any physician who is a Member, any corporation which is a Member or any physician’s L.L.C., which is a Member of Regional Urology, L.L.C.” Clearly, the Amendment was agreed to by the Members, applies to the Members, and was signed by the Members. However, the language that prohibits competition and solicitation of patients upon termination does not limit the restriction to Members only. The language specifies that the Physician, Physician Corporation, and Physician Company shall not perform any duties as a urologist or urological procedures and shall not solicit patients for the two year period. The clear and unambiguous language of the Amendment reflects the obvious intent of the parties in confecting the agreement. The language prohibits the individual physicians as well as their corporations and companies from competing with Regional Urology or soliciting its patients for two years after termination. By signing the Amendment on behalf of his professional medical corporation, Dr. Price bound both David T. Price, M.D., A Professional Medical Corporation and himself under the clear and unambiguous language of the Amendment.

| sUnder the Service Agreement, Dr. Price’s medical corporation is designated the independent contractor. Dr. Price argues that because he, individually, was neither an employee or independent contractor of Regional Urology, he is not among the limited class of persons or entities against whom La. R.S. 23:921 permits restrictions against competition. We find no merit in this argument.

A juridical person, such as a corporation, is distinct from its members. La. C.C. art. 24. However, the privilege of separate corporate identity is not without limits. Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752, 757-758 (La.1983). Courts have found it appropriate to disregard the corporate entity, or “pierce the corporate veil” in cases where observing the fiction of a separate identity would result in inequity, fraud, or some wrong. Id. Whether to disregard the corporate entity should involve a “study of the just and reasonable limitations upon the exercise of the privilege of separate capacity under the particular circumstances in view of its proper use and functions.” Id. Competing policies supporting the recognition of a separate corporate existence and those justifying piercing must be weighed to determine if there is some misuse of the corporate privilege or other justification for limiting it under the facts of a particular situation. Id.

“Professional medical corporations” are corporations organized for the purpose of practicing medicine. La. R.S. 12:901. Only natural persons who are duly licensed to practice medicine in this state may form a professional medical corporation. La. R.S. 12:902. Moreover, only [ {¡shareholders in such corporations who are duly licensed to practice medicine in this state, or another professional medical corporation, may vote the shares and participate in earnings; other shareholders have no voting rights and shall not participate in the earnings or any other affairs of the corporations, except as provided for by R.S. 12:913(B) in the event of the death of a shareholder. La. R.S. 12:905 and 12:906.

Both the language of the Amendment and the laws governing professional medical corporations recognize that, although Regional Urology’s Members are professional medical corporations or L.L.C.’s, the physicians are the controlling parties behind their corporate identities. The individual physicians, not their corporations or L.L.C.’s, are the public face of Regional Urology. The physicians provide all the services on behalf of their corporations and for the benefit of Regional Urology under their Service Agreements. We assume there are benefits related to taxation, business management, and protection in the event of liability that make the formation of a professional medical corporation desirable to a physician or a group of affiliated physicians. Maintaining the professional corporation’s separate identity would be necessary to preserve the benefits that stem from corporate existence. However, we find no policies or considerations that would require us to maintain that separateness between Dr. Price and his professional medical corporation with regard to the Amendment voluntarily agreed to in good faith by the Members of Regional Urology for the purpose of preventing any of them from competing with Regional Urology upon termination of their contractual arrangements.

I min Trost v. O’Connor, 2006-1281 (La.App. 3d Cir.4/4/07), 955 So.2d 246, Mr. O’Connor, an independent contractor, signed a non-competition agreement and then tried to avoid the obligation not to compete by forming L.L.C.’s and even selling one to his son in a effort to avoid the imposition of a permanent injunction. He was not successful. The courts recognized Mr. O’Connor’s actions as attempts to circumvent his contractual obligations.

Dr. Price’s formation of a new L.L.C. in Claiborne Parish immediately upon termination of his relationship with Regional Urology and his argument that he is not individually bound because his professional medical corporation was the independent contractor are attempts to circumvent his contractual obligations under the noncom-petition agreement. Just as the court in O’Connor recognized that Mr. O’Connor was the controlling party behind the L.L.C.’s he formed, we recognize that Dr. Price is the controlling party with regard to his medical practice, regardless of its formation as a corporate entity. It is the intent of the Amendment to the Service Agreement to restrict Dr. Price, or any other physician associated as a Member with Regional Urology, from competing with Regional Urology in the parishes of Caddo and Bossier by forming his own urological practice upon termination of his relationship with Regional Urology. Dr. Price cannot avoid his contractual obligation not to compete by establishing a corporate identity in another parish as a means to continue practicing in Caddo or Bossier. By voluntarily signing the Amendment, Dr. Price and his professional medical corporation agreed to its provisions. Considering the ladear language of the Amendment, the language of the Service Agreement requiring the services of Dr. Price only, and the requirement of good faith under La. C.C. art. 1759, we find that Dr. Price, individually, is bound by the noncompetition and non-solicitation provisions of the Amendment.

Dr. Price next argues that the non-competition agreement fails for lack of a geographical limitation. As required by La. R.S. 23:921 C, a noncompetition agreement must specify the parishes or municipalities in which the agreement is to have effect. Vartech Systems, Inc. v. Hayden, 2005-2499 (La.App. 1st Cir.12/20/06), 951 So.2d 247, Kimball v. Anesthesia Specialists of Baton Rouge, Inc., supra; Medivision Inc. v. Germer, 617 So.2d 69 (La.App. 4th Cir.1993), writ denied, 619 So.2d 549 (La.1993).

At first glance, the Amendment language clearly appears to specify the parishes — Caddo and Bossier — to which the noncompetition and nonsolicitation provisions apply. However, Dr. Price asserts that the lack of a comma after “entity” in the sentences prohibiting competition and solicitation of patients means that the phrase “within the Parishes of Caddo and Bossier, Louisiana” modifies or describes “entity” and does not set forth a geographical limitation. Dr. Price seeks to apply the rule of the last antecedent, which limits the modifying phrase to the word right before it. In support of his argument, Dr. Price offered the affidavit of Sara Burroughs, who analyzed the sentence structure. The trial court struck the affidavit as untimely.

11?The last antecedent is a rule of statutory construction. Fosscett v. Lake Charles Municipal Fire and Police Civil Service Board, 125 So.2d 44 (La.App. 3d Cir.1960). However, the rule should apply only where there are uncertainties or ambiguities, when other rules of construction fail, and when the intent of the legislature (or contracting parties, as in this case) is unclear. Id. See also 82 C.J.S. Statutes, § 334, at 670. In construing statutes, the Louisiana Supreme Court has explained that punctuation cannot control construction if it goes against the real intent of the legislature and that the rule of the last antecedent “will not be adhered to where extension to a more remote antecedent is clearly required by consideration of the entire act.” Buras v. Fidelity & Deposit Co. of Maryland, 197 La. 378, 385, 1 So.2d 552, 554 (La.1941); State v. Anderson, 540 So.2d 974 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989), cert. denied, 493 U.S. 865, 110 S.Ct. 185, 107 L.Ed.2d 140 (1989). These same principles can be applied to contractual interpretation.

Moreover, the Supreme Court has addressed the interpretation of contracts as follows:

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties....

Commercial Union Ins. Co. v. Advance Coating Co., 351 So.2d 1183, 1185 (La.1977).

Review of the Amendment reveals neither ambiguities nor uncertainties about the meaning and intent of the parties. The rule of strict 1 ^construction does not authorize us to apply the rule of the last antecedent to reach a result that would be contrary to the clear intent of the parties as shown by the unambiguous language of the Amendment. The obvious intent of the Amendment is to prohibit the physicians who are Members of Regional Urology through their professional medical corporations or L.L.C.’s from practicing urology or soliciting patients “either individually or as the employee, owner, or equity interest holder of any entity” in Caddo or Bossier Parish for two years following termination. The Amendment is in compliance with the requirements of La. R.S. 23:921 C. It clearly specifies an appropriate geographical limitation. Even considering the affidavit of Sara Burroughs, the rules of contractual interpretation would lead to the same result.

Lastly, Dr. Price argues that we should nullify the noncompetition and non-solicitation agreement between the Members of Regional Urology for being against public policy. This we decline to do. The considerations raised by Dr. Price are compelling, particularly concerning the freedom patients should have to obtain treatment from a physician of their own choosing. However, these considerations were apparent when Dr. Price and the other physicians of Regional Urology signed the Amendment and put their own material concerns above that of patient choice. We find nothing in Louisiana’s public policy that would require us to nullify the agreement at issue. The policy concerns raised by Dr. Price are, as observed by the trial court, a matter for the legislature to address.

^CONCLUSION

For the reasons stated, we affirm the trial court’s judgment and assess costs of appeal to the appellant.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, C.J.,

dissenting.

11After a lengthy discussion of contracts, the majority opinion in one sentence brushes aside the public policy issue.

As stated by the majority, restrictive covenants not to compete are generally disfavored as a restraint of trade. This disfavor is even greater when noncompetition agreements implicate important public concerns. For example, ethical rules governing the practice of law forbid employment agreements restricting rights of lawyers to practice their trade. Louisiana State Bar Association Rules of Professional Conduct, Rule 5.6, La. R.S. foil. 37:222. Access to legal representation is an important public policy. Clients have the right to choose an attorney that they trust to represent their interest. Noncompetition agreements would violate these ethical standards.

The American Medical Association (“AMA”) has emphasized that noncompetition restrictions on the practice of medicine impact health care and are not in the public interest. More practicing physicians provide greater access to health care and increased competition improves the quality and affordability of health care. Noncompetition agreements negatively influence the availability of quality medical care.

In respect to such restrictions, I see no practical difference between the practice of law and the practice of medicine. Both involve a relationship between the professional and the client/patient that goes beyond providing goods or services. These relationships are consensual, highly fiduciary, and based on client/patient trust. Both require, at times, disclosure of private, confidential, and sensitive information. Faith and confidence in the doctor |2or lawyer is essential to effective treatment or service. Noncompetition or restrictive covenants have a destructive impact on these relationships.

I respectfully dissent.

APPLICATION FOR REHEARING

Before BROWN, C.J., and STEWART, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., and PEATROSS, J., would grant rehearing.

      . The petition was filed by Regional Urology, L.L.C.; Regional Urology Ambulatory Surgery Center, L.L.C.; Urology Property Group, L.L.C.; Regional Urology Oncology and Radiation Treatment Center, L.L.C.; and Regional Urology Oncology and Radiation Property Group, L.L.C., Dr. Price and/or David T. Price, M.D., A Professional Medical Corporation were alleged to be members of all the Regional Urology entities.


source: Caselaw Access Project

author: MARC T. AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James J. FRANCIS.
    No. 2007-373.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Kim R. Hayes, Assistant District Attorney, Crowley, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, James J. Francis.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   MARC T. AMY, Judge.

liThe defendant was charged with one count of distribution of cocaine and one count of distribution of marijuana. He represented himself at a jury trial and was convicted of the charged offenses. The trial court imposed separate sentences of six years at hard labor and ordered that the sentences be served concurrently. The defendant appeals, asserting that his waiver of counsel was not effective and that the trial court failed to adequately comply with the provisions of La.Code Crim.P. art. 894.1. For the following reasons, we reverse the defendant’s convictions, vacate his sentences, and remand for further proceedings.

Factual and Procedural Background

The State alleges that the defendant, James Francis, sold crack cocaine and marijuana to an undercover officer working with the Acadia Parish Sheriffs Department. He was charged by bill of information with one count of distribution of cocaine, a violation of La.R.S. 40:967, and one count of distribution of marijuana, a violation of La.R.S. 40:966. At a December 7, 2005 arraignment, the defendant entered a not guilty plea.

The defendant’s trial was fixed for February 21, 2006. On that date, however, the trial court continued the matter and permitted defense counsel to withdraw from the matter after being informed that the defendant did not wish to be represented by the attorney. The defendant explained that he would retain another attorney. Thereafter, the trial court stated that there would be no further continuances and fixed the trial for April 10, 2006.

When trial commenced on April 10th, the original defense attorney appeared and explained that, although he was no longer representing the defendant, the defendant had requested that he attend the pre-trial conference. The record reflects |2that he did so and that the court held the conference in chambers. However, after the in-chambers conference, and on April 11th, jury selection and the trial commenced with the defendant representing himself.

The jury found the defendant guilty of both charges. The trial court subsequently sentenced the defendant to separate six-year sentences for the convictions. The trial court ordered that they be served at hard labor and that they be served concurrently. The defendant’s motion to reconsider sentence was denied.

The defendant appeals, assigning the following as error:

I. The Trial Court failed to determine whether Mr. Francis’s waiver of counsel was intelligently and voluntarily made, and whether his assertion of his right to represent himself was clear and unequivocal.
II. The Trial Court failed to comply with the provisions of [La.Code Crim.P. art.] 894.1.

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, the only patent error found pertains to the defendant’s first assignment of error which is discussed below.

Waiver of Counsel

In his first assignment of error, the defendant contends that the trial court failed to determine whether his waiver of counsel was intelligently and voluntarily made and whether his assertion of the right to self-representation was clear and unequivocal. He asserts that the record does not support a finding of waiver or of a clear and unequivocal assertion of his right to self-representation.

| sLouisiana Constitution Article 1, Section 13 and the Sixth Amendment of the United States guarantee a criminal defendant the right to assistance of coum-sel. While a defendant may represent himself, his choice to do so must be knowingly and intelligently made and the assertion of the right to self-representation must be clear and unequivocal. State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1 (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The supreme court reiterated that a defendant must “ask clearly and unequivocally to proceed pro se.” Id. at 22.

With regard to a defendant’s waiver of his or her right to counsel, a panel of this court has stated:

Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant’s literacy, competency, understanding and volition, i.e. was defendant’s waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. [State v.] Mitchell, 580 So.2d 1006 [ (La.App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993) ]; [State v.] Smith, 479 So.2d 1062 [(La.App. 3 Cir.1985)]; State v. Adams, 526 So.2d 867 (La.App. 3 Cir. 1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).

State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86. See also State v. Johnson, 06-937 (La.App. 3 Cir. 12/6/06), 944 So.2d 864, and State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751.

Our review the record indicates that the trial court failed to satisfy the requirements set forth in Hayes. While these considerations may have been fully explored at the pre-trial conference held in chambers, there is insufficient memoriali-zation of any such inquiries in the record.

First, at the February 21, 2006 hearing where defense counsel was permitted to withdraw, the following exchange occurred:

THE COURT: Okay. My understanding is that you didn’t want Mr. Stefanski to represent you and you’re going to be hiring your own attorney?
MR. FRANCIS: Yes, sir.
THE COURT: And who’s that attorney going to be; do you know?
MR. FRANCIS: I got to find one first.
IsTHE COURT: Okay. You understand we’re continuing your matter, but you have to show up here ready to go to trial the next time with or without an attorney.
MR. FRANCIS: So — never mind.
THE COURT: What’s that?
MR. FRANCIS: Never mind.
THE COURT: So you understand you do have to be ready for trial next time, so whoever you do go hire, make sure they understand that there ain’t no continuances, ain’t no nothing. They have to be ready to go.
MR. FRANCIS: So next time I come, I’m going to have a trial with a jury?
THE COURT: You’re going to have a trial with whoever attorney you bring with you.
MR. FRANCIS: Okay.
MR. HAYES [Assistant District Attorney]: With or without one.

Next, on April 10, 2006, the day trial was set to begin, the following exchange occurred:

THE COURT: That’s the — okay. James Francis, come forward, please. All right. You understand what we’re going to do in the morning? I kind of just wanted to go over a few things with you.
MR. FRANCIS: The morning?
THE COURT: The jury is subpoenaed to be here in the morning.
MR. FRANCIS: The jury?
THE COURT: Unless you wanted a judge trial.
MR. FRANCIS: No, I want a jury trial, but I was supposed to be there. Like I told him, when they pick the jury, I want to be there too.
|bTHE COURT: Oh, yeah. You’re going to be the one picking the jury for you. You don’t have an attorney.
MR. FRANCIS: Okay.

Finally, on April, 11, 2006, the day of jury selection and trial, the judge stated that he had met with the defendant in chambers the previous day and explained the trial proceedings. The defendant agreed with the judge’s assertion. The judge then questioned the defendant about his education. The following exchange appears in the transcript:

THE COURT: And I explained to you that you had a right to an attorney, if you couldn’t afford to hire an attorney, one would be appointed, and one was appointed, Mr. Stefanski, and the last trial date you chose to not have Mr. Stefanski’s services anymore and said you were going to hire an attorney; is that correct?
MR. FRANCIS: That’s right.
THE COURT: And you showed up yesterday without an attorney knowing that I had explained to you that you had to be ready for trial today; is that correct?
MR. FRANCIS: That’s right.
THE COURT: And you’re prepared to represent yourself today; is that correct?
MR. FRANCIS: As much as I can.
MR. FRANCIS: After we get through, can I go home and get the phone number and call my lawyer? I’ll be right back. I ain’t going nowhere.
THE COURT: Well, what I’m going to do is I’m going to qualify the jury first.
MR. FRANCIS: Okay.
THE COURT: If you want to waive your presence for the qualification. That’s just whether they can read, write, understand English. I’m going to excuse the ones that can’t read and write. If you |7want to go do that while I’m qualifying the jury, you certainly can do that.
MR. FRANCIS: All right, sir.
THE COURT: Why don’t you just have someone bring you that number.
MR. FRANCIS: Ml right.
THE COURT: Let me go through some more things with you. So you have twelve (12) plus years of education, and you understand you’re charged with distribution of cocaine and distribution of marijuana?
MR. FRANCIS: Yes, sir.
THE COURT: And I’ve explained to you I’m going to let you pick your jury, ask the jury questions. After that, the District Attorney is going to present his case to the jury. You get to cross-examine any witness he presents. He’s told me I believe there’s three (3) witnesses. Is that correct, Mr. Hayes? Is there three (3) witnesses in this case?
MR. HAYES: Your Honor, let’s see, one, two, three, probably three, maybe four, probably.
THE COURT: And I’ve warned you in chambers about self-incrimination, that since you are going to be asking the questions, you have to be very careful about making statements while you’re asking the question, because if you open yourself up by making statements, I can allow the district attorney to cross-examine you on those statements you made, so—
MR. FRANCIS: Ml right.
THE COURT: — if you’re not careful, you might waive your Fifth Amendment right to remain silent by making certain statements other than asking questions, okay?
MR. FRANCIS: Yeah.
THE COURT: So I just wanted to caution you against that.
MR. HAYES: And along those lines, Judge — I don’t mean to interrupt you, but he explicitly needs to understand that he does not have to take the stand to testify.
IsTHE COURT: And you do have the Fifth Amendment right not to testify, so- — -
MR. FRANCIS: Right, not to self-incriminate myself.
THE COURT: — when it’s your case, after Mr. Hayes’ case has rested, you have an opportunity to put on your own witnesses, including yourself, but you don’t have to testify, and I’m going to explain to the jury that they can’t hold that against you that you don’t testify because of your Fifth Amendment right to remain silent. So you understand now?
MR. FRANCIS: Got you.
THE COURT: And the only other thing is — and again, I warned you in chambers, but I know you get kind of excited. I didn’t want you to get excited and — if you get excited in front of the
jury, I’m going to hold you in contempt, okay, if you act up in front of the jury, okay?
MR. FRANCIS: Okay.
THE COURT: If there’s something going on here that you don’t agree with, you need to ask to approach the bench with Mr. Hayes, and we’ll stop court, remove the jury and we’ll talk, okay.
MR. FRANCIS: All right.
THE COURT: That’s good. You can go make a phone call and—

The transcript contains the bailiffs statement that he was available to transport the defendant home to retrieve the attorney’s telephone number. While the minutes of court indicate the defendant was not present while the jury was qualified, there is no mention of the attorney’s identity or whether he or she was contacted.

The colloquy above contains no express statement from the defendant that he wished to waive his right to counsel. Instead, on the morning of trial, he again made reference to contacting his attorney. With regard to representing himself, he merely stated “As much as I can” when asked if he was prepared to represent himself.

| ^Although the trial court attempted to memorialize the in-chambers conference with the defendant, the information contained in the transcript reveals only a cursory review of various points regarding potential dangers and disadvantages associated with self-representation. Instead, the self-representation appeared to be a foregone conclusion. The trial court advised the defendant of various hazards to be wary of during the course of his self-representation, rather than the dangers and disadvantages of asserting his right of self-representation. In short, there is no indication in the record, that the defendant’s self-representation was knowingly and intelligently decided, nor is there an indication in the record that an assertion of the right to self-representation was clear and unequivocal.

Implied Waiver of the Right to Counsel

While, as stated above, the colloquies are insufficient indication of the defendant’s waiver of counsel and assertion of the right to self-representation, a defendant may waive his right to counsel through his conduct. We consider this issue.

In State v. Wilson, 02-700 (La.App. 3 Cir. 12/18/02), 833 So.2d 560, writ denied, 03-216 (La.5/2/03), 842 So.2d 1100, cert. denied, 540 U.S. 952, 124 S.Ct. 393, 157 L.Ed.2d 285 (2003), this court reviewed this circuit’s jurisprudence involving implied waiver of the right to counsel:

In [State v.] Barr, [01-696 (La.App. 3 Cir. 12/28/01),] 806 So.2d 137, we found that the defendant impliedly waived his right to counsel at trial by his dilatory actions, where he was given two years to secure counsel, during which time he made several court appearances at which he was represented by three different attorneys. In State v. Batiste, 96-526 (La.App. 3 Cir. 12/11/96); 687 So.2d 499, writ denied, 97-174 (La.6/30/97); 696 So.2d 1003, this court also found an implied waiver of counsel by dilatory actions, where the defendant had previously obtained three continuances and told the trial court on eight out of eleven appearances that he had retained or would retain counsel. | T (Although we found an implied waiver of counsel, we, nonetheless, reviewed the sufficiency of the evidence to determine whether the defendant was unduly prejudiced by proceeding without counsel.
In State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993), the defendant appeared for trial without counsel, after he had previously been granted four continuances and had refused to accept court-appointed counsel. The defendant informed the trial court that he had planned to represent himself, but he could not because he was under “treatment.” Although the trial court allowed the defendant to represent himself, it also appointed an attorney to assist him. Finding that the defendant waived his right to counsel, we stated:
[T]he defendant was repeatedly given the opportunity to obtain his own counsel or to accept the appointed counsel made available to him. On each occasion, he reversed his previous decision. Additionally, he failed to make any attempt to obtain the independent counsel he insisted upon. This conduct can only be interpreted as an attempt to avoid trial.
Defendant’s conduct in this matter constitutes [an implied] waiver. Moreover, defendant did have counsel available to him throughout the trial and was lent assistance by counsel as needed. Accordingly, we find no denial of the defendant’s constitutional right to counsel.
Id. at 1009.

Id. at 564-65.

In Wilson, 833 So.2d 560, Mr. Vidrine represented the defendant at an habitual offender hearing. Shortly after the proceedings began, the defendant wanted to remove Mr. Vidrine as his counsel based on a collection letter Mr. Vidrine sent on behalf of a client. The trial court then informed the defendant that when he previously objected to having Mr. Vidrine as his attorney in January of 2002, he was given ten days to hire the attorney of his choice, Harold Register. When the trial court never heard from Mr. Register, it appointed Mr. Vidrine to represent the | n defendant. Based on the defendant’s objection at the habitual offender proceedings, the trial court removed Mr. Vidrine from the case, but ordered him to remain to assist the defendant during the habitual offender hearing. At that time, the defendant requested that he be given some time for his family to “appoint [him] a lawyer.” Id. at 563. The trial court denied the request. On appeal, a panel of this court found that the defendant had impliedly waived his right to counsel through dilatory tactics. The court noted that in January 2002 the defendant was given ten days to hire his own counsel but had failed to do so by the time of the hearing in May 2002. Therefore, the defendant impliedly waived his right to counsel by his dilatory tactics. The court further observed that while the defendant was unrepresented at trial, he did, in fact, have the assistance of Mr. Vidrine.

In State v. Dunn, 30,269, pp. 7-8 (La.App. 2 Cir. 5/15/98), 713 So.2d 479, 492 (on rehearing), the second circuit stated the following:

In this case, Dunn’s actions did not warrant forcing him to proceed to trial without an attorney on the charge of simple escape. Dunn replaced his first (appointed) attorney with retained counsel, and the court granted his second (retained) attorney’s motion to withdraw because Dunn failed to pay him. When Dunn appeared before Judge Butler without an attorney for the recusal motion, Dunn indicated a willingness to retain a lawyer but indicated that he could not afford one at that time. Although Judge Butler stated, “The record will reflect that at the present time, he’s representing himself,” Judge Butler did not conduct a full hearing to determine whether Dunn was entitled to another appointed attorney, nor did he determine whether Dunn intended to waive his right to counsel. When Dunn appeared for trial without an attorney, Judge Clason stated that Dunn was “representing himself by prior court order.” Judge Clason stated that Dunn had been previously notified that trial was scheduled for that day, and that his appearance without an attorney constituted a waiver of the right to counsel.

The second circuit found the trial court erred in failing to appoint an attorney to represent, or at least assist, Dunn during trial or to continue the trial. The second circuit further found Dunn’s behavior did not reach the level of abuse and delay | ^exhibited in the cases cited in the opinion, which included Batiste, 687 So.2d 499, and Mitchell, 580 So.2d 1006. The second circuit noted Dunn was not explicitly warned that he would be forced to proceed to trial without an attorney if he did not retain one or accept court-appointed counsel.

The attorney for the defendant in the present case was permitted to withdraw on February 21, 2006. When the defendant explained that he would retain counsel of his choosing, the trial court informed him that if he did not have an attorney for the April 10, 2006 scheduled trial date, he would have to represent himself. On the date trial began, April 11, 2006, the defendant was not represented by counsel, but asked if he could leave during jury qualification to retrieve his attorney’s telephone number. There was approximately a month and a half between the time the defendant’s appointed attorney withdrew and his trial. There were no additional continuances in this matter, the defendant did not ask for more time to retain an attorney, and the record does not indicate that the trial court attempted to appoint another attorney to represent the defendant or offer assistance during trial.

There is no doubt that the defendant’s conduct was dilatory. However, the record does not indicate that the circumstances were analogous to those reported in the above jurisprudence. In particular, we note that, given the time periods involved and the number of appearances before the court, the defendant’s acts were not as egregious as those in Wilson, 833 So.2d 560, Barr, 806 So.2d 137, and Mitchell, 580 So.2d 1006. Instead, the defendant’s conduct was most similar to those of the defendant in Dunn, 713 So.2d 479 (on rehearing). Furthermore, in Mitchell, the defendant had a lengthier time period to retain counsel and was provided with assistance of counsel during the trial. Accordingly, we conclude that, in light of the |1sreported jurisprudence, the record does not support a determination that the defendant impliedly waived his right to counsel.

In sum, we conclude that the defendant neither knowingly and intelligently waived his right to counsel nor did he clearly and unequivocally assert the right to self-representation. Finally, the jurisprudence does not support a determination that the defendant impliedly waived his right to counsel. Accordingly, we reverse the defendant’s convictions, vacate his sentences, and remand the matter to the trial court for further proceedings consistent with this opinion.

Sentencing Considerations

In his second assignment of error, the defendant contends the trial court failed to comply with the provisions of La.Code Crim.P. art. 894.1. However, our discussion above pretermits consideration of this assignment.

DECREE

For the foregoing reasons, we reverse the defendant’s convictions for distribution of cocaine and distribution of marijuana, vacate the related sentences, and remand this matter to the trial court for further proceedings consistent with this opinion.

CONVICTIONS REVERSED; SENTENCES VACATED; REMANDED.

      . Article 1, Section 13 provides, in part:
      In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.

      . The Sixth Amendment provides:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.


author: AMY, Judge.

text:
    ESTATE OF Derrick FRANCIS, et al. v. CITY OF RAYNE, et al.
    No. 07-359.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      John F. Wilkes, III, Lisa E. Mayer, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellants, City of Rayne, Officer Mario Foreman, Officer Daniel Boul-et.
    Jarvis J. Claiborne, Opelousas, LA, for Plaintiff/Appellee, Estate of Derrick Francis, Felecia R. Batiste.
    Daniel J. Stanford, Lafayette, LA, for Defendant/Appellant, Officer Mario Foreman.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

h The plaintiffs filed suit against the City of Rayne and two of its police officers after the decedent was shot to death following a low-speed pursuit by police officers. The trial court found the defendants liable for wrongful death, apportioning ninety percent of the fault to the defendants and ten percent to the decedent. The trial court awarded general damages in the amount of $650,000.00. The defendants appeal. For the following reasons, we affirm as amended.

Factual and Procedural Background

This wrongful death suit involves a series of events occurring at approximately 12:30 a.m. on September 7, 2003 in Rayne, Louisiana and resulting in the death of Derrick Francis. Master Trooper Dan Hudson of the Louisiana State Police prepared the crash reports associated with the incident and testified as to the events. Trooper Hudson explained that Mr. Francis was initially involved in a single car crash while traveling westbound on LA 98 in Rayne. This first crash occurred when Mr. Francis crossed the center line in his 2003 Dodge Neon, left the road, and struck a street sign. The vehicle struck and tore away a portion of the curb. According to Trooper Hudson, this first crash resulted in the deflation of the Francis vehicle’s tires. However, the tires remained on the rims.

After freeing the vehicle from the curb, Mr. Francis traveled south in the northbound lane of LA 35 and was involved in the second crash recorded by Trooper Hudson. Taryn Hunt explained that she was traveling northbound on the roadway, when she saw the Francis vehicle approaching in her lane of travel. Although Ms. Hunt swerved into the opposing lane of traffic to avoid a collision, the Francis vehicle struck the rear passenger side of her vehicle, tearing away the bumper.

| sLacey Kibodeaux, a dispatcher with the Rayne Police Department, testified that this second crash, involving Ms. Hunt, was first reported by Micah Thibodeaux at approximately 12:30 a.m. Mr. Thibodeaux reported that “a silver Dodge Neon with no tires, the tires were blown out, was spinning his tires on the road and was trying to hit a couple of vehicles.” After Mr. Thibodeaux reported that the Neon had struck a vehicle, Ms. Kibodeaux dispatched Officers Mario Foreman and Daniel Boulet to the scene. She initially reported the call as an accident, but after being informed that the car left the scene, she changed the call to a hit and run accident.

Trooper Hudson explained to the trial court that, after striking Ms. Hunt’s vehicle, Mr. Francis moved into the southbound lane and continued traveling in that direction. Although the front left tire separated from the rim, the vehicle continued rolling on its rim. Officer Foreman testified that he approached this scene from the north and turned his patrol car to follow Mr. Francis. According to Officer Foreman, Mr. Francis initially increased his speed, but ultimately stopped at “A School” and North Adams Streets. Officer Foreman explained that, by this time, Mr. Francis had turned his vehicle northwest. Officer Boulet approached the scene from the south. Both officers exited their police cruisers and approached the Francis vehicle from either side. Despite a verbal command to do so, Mr. Francis did not exit his vehicle. Officer Boulet explained that he tried to open the driver’s side door but that it was locked. According to the officer, Mr. Francis placed his car in reverse, turned the wheel, and then proceeded north on LA 35. Both Officers Boulet and Foreman described moving from their positions to avoid being hit when Mr. Francis made this turn and left the scene.

| traveling north on LA 35, Mr. Francis encountered Rhyanna Brown who was traveling southbound in the same lane before stopping her vehicle behind one of the police cruisers. According to Ms. Brown, Mr. Francis was originally in the northbound lane when he left the scene, but that at some point “he just was like barreling towards me and he caught the rear panel, rear quarter-panel on the driver’s side of my car.” She described her car as making “a 180.” Her tire was also flattened.

With Officers Boulet and Foreman in pursuit, Mr. Francis continued north on LA 35. During this time, Officer Foreman fired shots at the Francis vehicle in an attempt to disable it. Officer Foreman testified that he believed that he had stopped his police cruiser at the time he fired the undetermined number of shots.

Despite these initial gunshots, Mr. Francis continued driving until he struck the truck of Officer Ronald Garrie at the intersection of LA 35 and LA 98. Officer Gar-rie responded to the scene after hearing the radio transmissions. He exited his vehicle after the truck was hit. Officer Boulet subsequently pulled his police cruiser behind the Francis vehicle. The degree to which the Francis vehicle was trapped between the truck and car was contested at trial, as was the ability of the Francis vehicle to escape. However, according to the officers, Mr. Francis continued to shift his vehicle from drive to reverse, revving the engine. While all three officers drew their weapons, only Officers Boulet and Foreman fired their weapons after Mr. Francis did not respond to the commands to exit the car. While he could not recall the exact count, Trooper Hudson explained that there were approximately twenty rounds fired. The record indicates that two of these bullets struck Mr. Francis in the head, while one struck him in the left hand. Acadian Ambulance personnel responding to the scene found |4Mr. Francis dead. Dr. Terry Welke of the Calca-sieu Parish Coroner’s Office listed the cause of death as the two gunshot wounds to the head.

According to Trooper Hudson, the crashes occurred in an area of approximately 700 feet, while information from the dispatcher indicates that approximately two minutes passed between the time of the initial call reporting the crash with Ms. Hunt’s car until the call for an ambulance at the time of the shooting. The coroner was requested a few minutes later.

The Estate of Derrick Francis and Felecia R. Batiste, as the legal tutrix of Mr. Francis’ minor son, Dontay, filed suit for damages associated with Mr. Francis’ death. They named the City of Rayne, through Chief of Police George Melancon, and Officers Foreman and Boulet as defendants. The officers were named in their individual capacities as well as in their capacities as police officers. Following a bench trial, the City and both officers were found liable for the wrongful death of Mr. Francis. The trial court apportioned ninety percent of the fault to the defendants and ten percent to Mr. Francis, due to his “failure to stop and respond to the commands of the police officers.” The trial court awarded $650,000.00 in general damages, but denied the plaintiffs’ demand for funeral expenses due to inadequate proof.

The defendants appeal and, in their brief to this court, assert that the trial court erred in: 1) failing to find that the officers acted reasonably in the use of deadly force in light of the circumstances; 2) assuming “the position of an ‘advocate’ ” during the trial; 3) allowing inappropriate expert testimony; 4) not permitting Trooper Hudson to testify as to the existence of probable cause to charge Mr. Francis with aggravated assault; 5) failing to permit their expert to testify regarding the fleeing felon rule; 6) not allowing the use of the criminal trial testimony of a witness who was unavailable; |fi7) failing to apply an adverse presumption against an expert retained by the plaintiffs, but not called as a witness; 8) failing to apportion greater fault to Mr. Francis for his role in his own death; and 9) in awarding excessive damages.

Discussion

Reasonable use of force

The defendants first contend that the trial court erred by finding in favor of the plaintiffs and assert that the circumstances required a determination that the use of deadly force was reasonable. They argue that the testimonies of the officers and various witnesses indicate that the officers were reasonably in fear .for their own safety or that of other citizens. This perception of fear and possible escape, the defendants contend, was furthered by Mr. Francis moving his vehicle forward and backward and revving his engine.

Louisiana Civil Code Article 2315(A) provides that: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The duty/risk analysis is used to determine whether liability is imposed under Article 2315 and requires a plaintiff to prove that:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

| (Mathieu v. Imperial Toy Corp., 94-952, pp. 4-5 (La.11/30/94), 646 So.2d 318, 322.

In Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), the Louisiana Supreme Court cited La.Code CrimJP. art. 220 in holding that a police officer owes a duty of reasonableness in using force when making an arrest. Later, in Mathieu, 646 So.2d 318, the supreme court found that the duty of reasonableness expressed in Kyle applied to officers approaching a suspect for the purpose of disarming him. This court, in Lewis v. Kahn, 95-1203 (La.App. 3 Cir. 3/6/96), 670 So.2d 777, writ denied, 06-818 (La.5/10/96), 672 So.2d 927, relied on both Mathieu and Kyle in finding a duty of reasonableness applicable in a situation in which police officers shot a suspect threatening motorists and officers with a knife.

Thus, Officers Boulet and Foreman owed a duty of reasonableness in the force used to apprehend Mr. Francis. The critical inquiry faced by the trial court in this case, and the one at issue in this assignment, is whether the police officers breached this duty of reasonableness by using deadly force in this instance.

The reasonableness of the force used must be limited to that required by the totality of the facts and circumstances of each case and the officers’ actions must be evaluated “against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.” Kyle, 353 So.2d at 973. The supreme court set forth the following factors to be considered in the reasonableness evaluation: 1) the known character of the arrestee; 2) the risks and dangers confronting the officers; 3) the nature of the underlying offense; 4) the |7chance of escape if the particular means at issue are not employed; 5) the existence of alternative methods of arrest; 6) the physical size, strength, and weaponry of the officers compared to those of the arrestee; and 7) the exigencies of the moment. Id.

The defendants contend that the trial court failed to consider the facts of this case in light of the above factors. While the specific factors listed above were not specifically addressed in the reasons for ruling, it is clear that the trial court made a determination that the force used by the officers was not reasonable under the circumstances. After review of the record, we find no manifest error in its ultimate conclusion. We further find that the trial court’s conclusion is not clearly incorrect in light of the Kyle factors.

It is important to recall that the trial court found both the defendants and Mr. Francis at fault in the shooting death. This was not a case of a fault-free victim. Rather, the officers were responding to an unfolding scene that began with a report of a hit and run accident. Undoubtedly, Mr. Francis was acting erratically and failed to stop when pursued by the officers and when commanded to exit the vehicle. All of these events unfolded at night in an atmosphere of noise, smoke, and poor visibility. Furthermore, much of the argument and evidence addressed events during the low speed chase and at the A School Street location. Certainly, these are relevant factors when considering the officers’ perception of the danger of the situation.

However, the critical portion of the trial court’s ruling is its determination that, before the fatal shots were fired, the Francis vehicle was trapped between Officer Reggie’s truck and Officer Boulet’s vehicle, effectively bringing the chase, the potential for escape, and imminent danger to an end. Even in light of the officers’ testimony that Mr. Francis was shifting the vehicle forward and backward, the trial | scourt was not required to find that it was a reasonable perception that the vehicle could escape or could cause further harm. Testimony in the record supports the view that Mr. Francis’ hands were in the air at the time of the shooting and, even if his hands were not raised in surrender, the trial court was free to determine that Officer Foreman, then joined by Officer Boul-et, continued to .fire after the threat of harm to themselves or the public had deescalated to the extent where deadly force was not reasonable.

Further, the trial court accepted the testimony of Lloyd Grafton, qualified as an expert in the field of use of force and police policy and procedure. Dr. Grafton referenced photographs showing the final location of the car and explained that its position and lack of tires indicated that the car would not have had traction if Mr. Francis attempted to escape. He opined that, given these circumstances, “at the point [the officers] used deadly force, in my judgment, had they slowed down, they could have used other options without taking the man’s life.” The trial court was free to accept this expert testimony and free to discount that of the defendants’ expert. See Lasyone v. Kansas City S. R.R., 00-2628, p. 11 (La.4/3/01), 786 So.2d 682, 692, wherein the supreme court noted that “it is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and then to decide which expert among those testifying that it finds more credible.” The photographs showing the resting place of the Francis vehicle between the police cruiser and Officer Gar-rie’s truck were available for the trial court’s review as well.

In short, the trial court was free to determine that the police officers were faced with a dangerous situation in their encounter with Mr. Francis, but that, once his vehicle was effectively immobilized, the level of force used became unreasonable. 19The record contains no evidence indicating that Mr. Francis suggested that he had a dangerous weapon other than the car itself. As stated above, the trial court’s determination that the car was effectively immobilized at the time of the shooting is supported by the record.

This assignment lacks merit.

Actions of the trial court

The defendants point to a number of instances in which they contend the trial court assumed the role of advocate, including the trial court’s questioning of witnesses, and assert that the questioning elicited new information rather than clarifying the testimony brought forth by the attorneys. The defendants also argue that the trial court inappropriately objected to and excluded testimony and evidence on its own motion. Finally, they contend that the trial court lacked a basis for rejecting certain testimony, including that of the defense expert, and that it instead relied upon its own speculation and conclusions.

With regard to the questioning of witnesses, La.Code Evid. art. 614(B) provides that: “The court may question "witnesses, whether called by itself or by a party.” Without comment on the appropriateness of the questioning, we note that Article 614(C) provides: “Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.” No objection was entered into the record on this point. Thus, pursuant to Paragraph (C), the defendants failed to preserve this argument for review on appeal. See also Salley & Salley v. Stoll, 03-807 (La.App. 5 Cir. 12/9/03), 864 So.2d 698. The failure to contemporaneously object similarly prevents review of the defendants’ contention that the trial court erroneously lodged nits own objections to evidence it deemed irrelevant to the proceedings. See Le-Blanc v. Acadian Ambulance Serv., Inc., 99-271 (La.App. 3 Cir. 10/13/99), 746 So.2d 665 (wherein the court noted that failure to lodge an objection at trial waives a party’s right to complain on appeal).

Finally, the defendants’ general contention that the trial court acted as an advocate in disregarding certain expert testimony in favor of the version of events offered by the defense lacks merit. The type of credibility determination and consideration of varying witness accounts complained of is part of the role of the finder of fact. See Lasyone, 786 So.2d 682. While the defendants complain that the trial court repeatedly commented on its view of the evidence throughout the course of the trial, it is important to recall that this was a bench proceeding, not a jury trial. See La.Code Civ.P. art. 1791. There is no indication that the trial court failed to adequately consider the evidence and witness testimony presented by the defendants.

This assignment lacks merit.

Evidentiary Matters

The defendants next question a number of evidentiary rulings and contend that the allegedly erroneous rulings collectively require a de novo review of the record. Expert Testimony

The defendants first assert that the trial court violated La.Code Evid. art. 702 |nby permitting experts to testify as to areas exceeding their expertise. They first claim that the trial court erred in permitting Lloyd Grafton, an expert in the fields of use of force and police policy and procedure, to offer testimony regarding his opinion as to the possibility that the Francis vehicle could have escaped from its final position between the truck and patrol car. The trial court overruled the defendants’ objection on this point, stating that the witness was “an expert.” Notwithstanding a trier of fact’s ability to assess the appropriate weight to be given to witness testimony, a trial court has broad discretion in determining the breadth and scope of an expert’s testimony. Barnco Int’l, Inc. v. Arkla, Inc., 28,157 (La.App. 2 Cir. 11/15/96), 684 So.2d 986, writs denied, 97-19, 97-58 (La.2/7/97), 688 So.2d 511 (emphasis added). We find no abuse of discretion in the trial court’s determination in this regard.

Testimony of Trooper Dan Hudson

Neither did the trial court abuse its discretion in its evidentiary rulings regarding Trooper Hudson, who was permitted to testify as a fact witness, but not as an expert witness in the field of accident reconstruction. Although the defendants attempted to question Trooper Hudson as to whether he would have charged Mr. Francis with aggravated assault, the trial court disallowed the line of questioning. Trooper Hudson was not a witness to the events. Furthermore, and although the factual findings leading to a probable cause determination are subject to the manifest error-clearly wrong standard of review, the existence of probable cause is a legal question for the trial court. See State v. Gauthier, 02-1227 (La.App. 3 Cir. 4/17/03), I 854 So.2d 910. Accordingly, the trial court neither erred nor abused its discretion in its rulings as to Trooper Hudson.

Fleeing Felon Rule

Similarly, the trial court did not err in denying the defendants’ attempted questioning of Dr. Gould on what it described as the “Fleeing Felon Rule.” The questioning differed from the situation anticipated by La.Code Evid. art. 704, which provides in part that: “Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact.” Instead, defense counsel sought comment on the applicability of a specific United States Supreme Court case, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), to the situation at hand. The transcript also reveals that defense counsel was permitted to extensively question Dr. Gould on the ultimate issue, i.e., the threat posed by Mr. Francis and the reasonableness/justification of the officers’ actions under the circumstances.

11STestimony of Shannon Hughes

The defendants next contend that the trial court erred in refusing to permit the introduction of the testimony of Shannon Hughes recorded at the criminal trial related to these proceedings. The defendants argue that Mr. Hughes was an unavailable witness at the civil proceeding as he was working out of state and failed to honor a subpoena to appear at the trial. They argue that the testimony from the criminal trial should have been admitted or the record should have been held open “so that Hughes’ live testimony could be taken.”

The trial court was not required to find that Mr. Hughes was unavailable pursuant to La.Code Evid. art. 804(A) insofar as there was no indication as to when defense counsel knew that Mr. Hughes would not honor the subpoena and what attempts, if any, had been made to secure his testimony by other means. Additionally, even if Mr. Hughes was found to be unavailable, there is no indication that the requirements of La.Code Evid. art. 804(B)(1) or (6) were met. Neither party’s | ucounsel appeared at the criminal proceeding and, again, there was no indication that alternative means of procuring Mr. Hughes’ statement were used.

Presumption

The defendants also argue that the trial court erred in failing to apply an adverse presumption against an expert witness, George Armbruster, retained by the plaintiffs, but not called as a witness at trial. The trial court denied the presumption, finding that the expert testimony was cumulative. We find no error in the denial of application of the presumption.

In Driscoll v. Stucker, 04-0589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47 (citations omitted), the Louisiana Supreme Court explained that:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebutta-ble and is tempered by the fact that a party need only put on enough evidence to prove the case. Explaining that adverse presumption, the Fourth Circuit recently noted “ ‘[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.’ ” This adverse presumption is referred to as the “uncalled witness” rule and applies “when ‘a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence’ and fails to call such witnesses.” Despite the advent of modern, liberal discovery rules, |1fithis rule remains vital, especially in cases, such as this one, in which a witness with peculiar knowledge of the material facts is not called to testify at trial.

The trial court was not required to apply this presumption as the transcript reveals that both parties had access to Mr. Arm-bruster’s deposition. Further, Mr. Arm-bruster was to be admitted as an expert and, thus, he would not have offered “material facts.” Finally, the trial court reviewed the deposition and found the testimony to be cumulative to other testimony heard during the plaintiffs’ case. This court cannot now review that finding as the record does not contain the deposition.

For these reasons, the defendants’ assignment regarding these evidentiary matters lacks merit.

Apportionment of Fault

The defendants next question the trial court’s apportionment of only ten percent of the fault to the Mr. Francis.

Louisiana Civil Code Article 2323(A) provides:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

This provision applies to “any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine, or theory of liability, regardless of the basis of liability.” La.Civ.Code art. 2323(B). ■

_Jj¿In determining the percentages, the trial court considers both the nature of the conduct of the actors and “the extent of the causal relationship between the conduct and the damages claimed.” Dupree v. City of New Orleans, 99-3651, p. 19 (La.8/31/00), 765 So.2d 1002, 1015. The following five factors may influence the allocation of fault:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste without proper thought.

Id. (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985)).

An appellate court affords a trial court’s apportionment of fault great deference on review. Even if the appellate court would have decided the case differently had it been the original trier of fact, the trial court’s ruling must be affirmed unless it is manifestly erroneous or clearly wrong. Dupree, 765 So.2d 1002.

The trial court did not set forth its reasoning in apportioning the fault, ninety percent to the defendants and ten percent to Mr. Francis. Instead, the trial court merely stated that: “Additionally, the court assesses 10% comparative fault to Mr. Derrick Francis in failing to stop and respond to the commands of the police officers.” We consider this determination in light of the factors set forth by the supreme court in Dupree.

As for the question of whether the conduct resulted from inadvertence or involved an awareness of danger, neither party’s conduct can be said to have occurred due to inadvertence. The police officers used exacting, deadly force, whereas Mr. Francis displayed dangerous and erratic behavior, fled from police, and repeatedly refused to exit his vehicle. Although the cause of Mr. Francis’ behavior was not | ^conclusively established at trial, his actions were clearly not inadvertent. However, important in consideration of this factor, as well as in the remaining factors, is the trial court’s obvious initial determination that the police officers acted with intent in using lethal force after the threat from Mr. Francis’ actions had ceased.

The second factor, consideration of how great a risk was created by the conduct, again indicates that the conduct of all parties created an atmosphere of risk in this incident. The police officers obviously put Mr. Francis’ life at risk due to the decision to use deadly force. While Mr. Francis may have initially placed himself in the position of risk due to both his commission of the traffic offenses and his refusal to obey the officers’ commands, the record supports a determination that any risk created by Mr. Francis had ended at the time his vehicle became lodged between the police cruiser and Officer Game’s truck.

The third factor, the significance of what was sought by the conduct, is in favor of the defendants. Whereas it is unreasonable to find any merit to Mr. Francis’ actions, the police officers’ actions were ostensibly taken to stop what they perceived to be a dangerous and unfolding situation. Although the record supports a determination that they were at fault in the degree of force used, there is no indication that the officers’ intent was anything other than to stop and contain the series of events.

With regard to the capacities of the actors, and while each party must again bear a portion of the responsibility, the police officers used exacting, deadly force. 11sAccording to the trial court’s ruling, they did so at a time when Mr. Francis’ own deadly weapon, his vehicle, had become immobilized.

The final element of extenuating circumstances could have been, again, weighted against the defendants by the trial court. Although the police officers were responding to a rapidly unfolding situation, the trial court was free to determine that the police officers’ appreciation of the situation was flawed and their response, disproportionate. While Mr. Francis may have set the series of events in motion, the record supports a view that the danger presented by these events de-escalated to a less volatile point where the degree of force used was unreasonable.

Having considered these factors, we find no manifest error in the trial court’s apportionment of fault.

This assignment of error lacks merit.

General Damages

In their final assignment of error, the defendants assert that the $650,000.00 awarded in general damages for the wrongful death claim was excessive.

Louisiana Civil Code Article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” The Louisiana Supreme Court has further explained that an appellate court must accord vast discretion to a trier of fact’s award of general damages and rarely disturbs such an award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 159, 127 L.Ed.2d 379 (1994).

Felecia Batiste, Mr. Francis’ girlfriend, testified that Mr. Francis had assumed the role of rearing the couple’s young son, Dontay Francis, due to her health situation and her return to school. Dontay was ten years of age at the time of the July 2006 h atrial. Ms. Batiste explained that Mr. Francis and Dontay were close, with Don-tay living with his father and spending approximately ninety percent of his time with Mr. Francis. She testified that, after Mr. Francis’ death, Dontay had shown anger, had gained weight, and had begun having nightmares about being shot. He had been in trouble at school for possessing a BB gun.

Dontay testified that he missed his father, their conversations, and the time that they spent together. He explained that they had “a very good relationship” and that his father would take him to the movies or the mall and that his father had participated in school field trips. Dontay also testified as to the nightmares he had experienced after his father’s death, including one in which he dreamed that “the police” killed him, his mother, and his sisters.

In addition to the nature of Mr. Francis’ death and the impact that such a death undoubtedly had on Dontay, the above testimony supports a view that Dontay suffered greatly from his father’s death. While the $650,000.00 wrongful death award is in the upper range of permissible awards, we find that it is supported by the record and not an abuse of the trial court’s discretion. Accordingly, we leave the award for general damages undisturbed.

No Right of Action

Although the petition in this case advanced a number of theories of recovery, the trial court awarded damages for wrongful death, focusing on the damages incurred by Dontay. The trial court denied the plaintiffs’ claim for special damages related to funeral expenses. Neither did the trial court award damages associated with a Ignsurvival action pursuant to La.Civ.Code art. 2315.1. Despite the limitation of the award to damages for wrongful death, the judgment awarded general damages to both “The Estate of Derrick Francis and Felecia R. Batiste, as Tutrix of Dontay Francis[.]” Insofar as the judgment is entered in favor of the Estate of Derrick Francis, it is in error and requires amendment.

With regard to those who may bring a wrongful death action, Louisiana Civil Code Article 2315.2 provides:

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
• (4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

Thus, as a surviving child, Dontay is able to recover for his own damages sustained due to the wrongful death. However, a deceased’s estate is not among those listed.

Accordingly, pursuant to the court’s authority under La.Code Civ.P. art. 927(B) to recognize the absence of a party’s right of action, we reverse the trial court’s judgment insofar as it awarded -general damages to the Estate of Derrick Francis. We further amend the judgment to reflect that all general damages, subject |aito the reduction required due to comparative fault, are awarded to Felecia R. Batiste, as Tu-trix of Dontay Francis.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court insofar as it found the defendants, the City of Rayne, Officers Mario Foreman and Daniel Boul-et, individually and in their official capacity as police officers for the City of Rayne, at fault and awarded general damages. We further affirm the quantum awarded in general damages. Howeyer, we reverse that portion of the judgment entered in favor of the Estate of Derrick Francis. The judgment is amended to award general damages solely to Felecia R. Batiste, as Tutrix of Dontay Francis. This award is subject to the reduction required due to the finding of comparative fault. All costs of this proceeding are assessed to the defendants, the City of Rayne, Officers Mario Foreman and Daniel Boulet, individually and in their official capacity as police officers for the City of Rayne.

AFFIRMED AS AMENDED.

      . The sequence in which the tires of the Francis vehicle were'flattened and at what point they were reduced solely to the metal rims were at issue at trial.

      . Also pertinent to this wrongful death claim is La.Civ.Code art. 2315.2, which provides:
      A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      . Louisiana Code of Criminal Procedure Article 220 provides:
      A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

      . Entitled “Comment on facts by judge prohibited,” Article 1791 provides: "The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.” (Emphasis added.)

      . Article 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

      .Although the defendants contend that the trial court's ruling as to Dr. Grafton’s testimony is "opposite” to its exclusion of testimony regarding the mobility of the truck sought from Trooper Tim Breaux, we point out that Trooper Breaux was not qualified as an expert.

      . See Tennessee v. Garner, 471 U.S. 1, 12, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985), wherein the United States Supreme Court considered the factual scenario before it in rejecting the application of the common law rule which permitted “whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant.” Finding the common law rule archaic insofar as it stemmed from a time when virtually all felonies were punishable by death and before the availability of guns to the police, the Supreme Court instead explained that:
      Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

        Id. at 11-12, 105 S.Ct. 1694; 1701. From the broad questioning by the defense counsel and the styling of the inquiry as one involving the "Fleeing Felon Rule,” it is unclear whether counsel sought to ask questions related to the common law rule rejected in Gamer or to the qualified use of deadly force as quoted from Gamer above.

      . Article 804(A) provides, in pertinent part:
      Definition of unavailability. Except as otherwise provided by this Code, a declar-ant is "unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:

      (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

      . Article 804(B) provides, in part:
      Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

      (6) Other exceptions. In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. If, under the circumstances of a particular case, giving of this notice was not practicable or failure to give notice is found by the court to have been excusable, the court may authorize a delayed notice to be given, and in that event the opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the evidence.

      . The trial court stated its finding as to Mr. Francis’ behavior as follows: “The court received no explanation for this behavior except perhaps that contributing factors could be the small traces of cocaine, as well as the prescribed anti-depressant Elavil, both detected by the coroner as a result of his autopsy.” And, although it was not argued by either party, nor was there evidence to suggest such a finding, the trial court further stated that: "Or perhaps Mr. Francis sustained a concussion in the first accident.”

      . The trial court’s reasons for ruling reveal: "[T]he court finds that the plaintiffs have proven their case by a preponderance of the evidence, and finds defendants, Officer Daniel Boulet, Officer Mario Foreman and the City of Rayne, liable in the wrongful death of Derrick Francis. The court hereby awards general damages in the amount of $650,000.”

      . Article 927(B) provides, in part: "The non-joinder of a party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court on its own motion.” (Emphasis added.)