author: TRAYLOR, Justice. CALOGERO, Chief Justice, KIMBALL, Justice,

text:
    STATE of Louisiana v. Leslie Otto ORDODI.
    No. 2006-K-0207.
    Supreme Court of Louisiana.
    Nov. 29, 2006.
    Rehearing Denied Feb. 2, 2007.

      Charles C. Foti, Jr., Attorney General, J. Phil Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, for Applicant.
    Richard A. Spears, New Iberia, for Respondent.
   TRAYLOR, Justice.

b Leslie Otto Ordodi was charged by bill of information with two counts of attempted armed robbery in violation of La. R.S. 14:64 and La. R.S. 14:27. After trial, the jury found the defendant guilty on both counts.. The trial judge sentenced the defendant to concurrent terms of three years imprisonment at hard labor. Ordodi appealed, contending that the evidence was insufficient to support his convictions. The court of appeal, with one judge concurring, reversed his conviction and sentence. State v. Ordodi, 2005-522 (La.App. 3 Cir. 11/2/05), 916 So.2d 439. Upon the state’s application, we granted certiorari to review the correctness of that decision. State v. Ordodi 2006-207 (La.6/23/06), 930 So.2d 990.

FACTS

The following evidence was adduced at trial. Thelma Broussard, a former employee of Regions Bank in New Iberia, Louisiana, was, at Regions Bank to do some banking on the morning of May 28, 2004. From where she sat at the customer service desk and spoke to Marla Hebert, a customer service representative, Ms. Broussard faced the street to the side of the bank. From her vantage point, Ms. Broussard observed a man, whom she later identified as the defendant, walking toward the bank pull a gun from a plastic bag and place the gun in his right pants 12pocket. Ordodi was wearing dark glasses. Ms. Broussard informed Ms. Hebert about what she had seen and left the bank.

Because she was concerned about the bank’s employees, Ms. Broussard walked from where her car was parked near the drive-through windows to the other side of the bank. Looking in the window, Ms. Broussard saw the defendant talking to Ms. Hebert with a pamphlet in his hand. She stayed in that location until she saw the defendant leave the bank and enter his truck. Before returning to her car, she re-entered the bank and asked whether the man had been trying to open an account. When the bank employees told her “yes,” she left the bank to go to a nearby grocery store.

As Ms. Broussard traveled to the grocery store, she saw the defendant’s truck parked in the parking lot of Bank One, another bank located further down on the same street. Ms. Broussard returned to Regions Bank, where Ms. Hebert was on the telephone with the police. Ms. Brous-sard informed Ms. Hebert that the defendant’s truck was now parked at Bank One.

Marella Guidry was employed as a teller at Regions Bank that morning. At approximately 10:30 a.m., the bank was busy with customers. Ms. Guidry saw a customer looking around and asked him if he needed help. When the man mentioned something about an account, she asked if he wanted any brochures and he indicated he did not. She asked him if he wanted to speak to someone and he indicated, ‘Tes.” Wflien Ms. Guidry asked his name, the man hesitated a little and then walked over to ask her to repeat her question. Ms. Gui-dry again asked him his name so that she could introduce him to a customer service representative. The man responded that his name was “Roy,” and then walked over to the person in charge of opening accounts, Ms. Hebert.

|sMs. Guidry described the customer as wearing a cap and dark glasses. Ms. Gui-dry testified that the customer did not pull out a gun or hand her a note demanding money. The customer did not make any verbal demand for money. The only thing about which the customer inquired was opening an account. A security recording of the bank lobby that morning reflects the presence of other bank customers during the time the defendant was in the Regions bank and the defendant’s appearance.

Marla Hebert confirmed that Ms. Brous-sard told her about the man putting a gun in his pocket when the two women were sitting at her desk in the bank’s lobby. She turned around to look out of the window and saw a truck with the engine still running and a man walking down the sidewalk. Ms. Hebert observed the man enter the bank and stand in the teller line, waiting for a teller to help him. She saw the man have a conversation with Ms. Guidry and Ms. Guidry gesturing toward her desk.

When the customer approached Ms. Hebert’s desk, she asked him to have a seat but the man continued to stand. The customer was wearing a baseball cap and dark colored sunglasses which prevented Ms. Hebert from being able to identify him as the defendant. Wfliile Ms. Hebért asked the customer questions prior to opening an account, the man kept putting his hands in and out of his pockets. The customer interrupted Ms. Hebert in the middle of a question to tell her he was not ready to open a new account and that he would return at a later time. The man then took a brochure and left.

• After the man left the bank, Ms. Hebert called the main office for advice on what she should do, as she found the man’s behavior odd. She was advised to call 911, which she did immediately thereafter. Ms. Hebert was still on the phone with the police when Ms. Broussard returned a second time to tell them the same truck which the armed man drove was now parked by Bank One. , Ms. Hebert informed the | ¿police of that fact. Ms. Hebert stated that personnel at the main office called other area banks to inform them about the armed man.

Shelly Hughes was working at Bank One that morning. A customer, whom she later identified as the deféndant, entered the lobby of the bank wearing a cap and dark sunglasses. She asked the defendant if she could help him with anything. The defendant told her that he would like to open a checking account. Ms. Hughes asked the defendant if he had any identification. When he said that he did, Ms. Hughes asked him to wait in a chair because there was another customer ahead of him. A security recording of Bank One’s lobby shows the defendant sitting in the chair waiting and the presence of other bank customers.

Ms. Hughes said that the defendant sat in the chair but then saw him walk to a desk where a bank representative was sitting. Ms. Hughes subsequently saw the defendant leave the bank. She said that the defendant seemed nervous and fidgety, as though he did not have the time to wait. As soon as the defendant left the bank, Ms. Hughes saw the authorities immediately confront the defendant in front of the bank’s door.

Ms. Hughes testified the defendant never demanded money from her, never produced a gun while he was in the bank, and never reached over any teller’s counter to grab for money. Ms. Hughes confirmed that the defendant only inquired about a checking account.

Tiffany Thibodeaux handled new accounts at Bank One. She heard Ms. Hughes tell a customer, whom she later identified as the defendant, that he needed to speak with her for a new account. She called the defendant over to her desk after she finished with a customer. The defendant, who was wearing a baseball cap and dark sunglasses, told Ms. Thibodeaux that he was interested in opening a checking account 15but just wanted a brochure.

Even so, Ms. Thibodeaux began to ask the defendant different questions regarding his banking needs. She stated the defendant was very short with his answers and did not talk much but just kept asking for a brochure. However, he answered questions regarding his home ownership and whether he had any - other bank accounts. He told Ms. Thibodeaux that his name was “Roy.” According to Ms. Thibo-deaux, the defendant appeared very fidgety, as though he was in a hurry or did not have time to sit and talk. When Ms. Thi-bodeaux finished with her questions, she recommended a product and got up to obtain a brochure. She then walked back to her desk, handed the brochure to the defendant, shook his hand and walked him to the door.

After the defendant left the bank, another teller told Ms. Thibodeaux to lock the door. After she did so, Ms. Thibodeaux saw all of the police officers outside and the defendant on his knees.

Kevin Bourque, Greg Pete and James Altman were employed as police officers by the New Iberia City Police on May 28, 2004. They responded to a call from Regions Bank and were on their way to that location when they received the call that the person for whom they were looking had moved on to Bank One. The officers were met outside Bank One by one of the tellers, who informed them that the.defendant was inside but had not made any threats. The teller told the police that Bank One had been alerted about the defendant by another bank.

When the defendant walked out of Bank One, the officers confronted him with weapons drawn, requesting that the defendant put up his hands. After the defendant |fiwas handcuffed, the officers searched-him. In the defendant’s pockets, the police found an empty grocery bag and a revolver.

Investigation revealed that Ordodi’s truck was still running in the parking lot of Bank One with the keys inside. The license plate of the defendant’s truck had been removed. The license plate, the screws which had held the license plate onto the bumper of the truck, and the wrench used to remove the license plate were found on the front seat of the truck. A spent .38 caliber shell casing was found in the weapon recovered from the defendant, as well as four live rounds of .38 caliber ammunition. In addition, the state presented evidence of a newspaper notice dated about ten days after the defendant’s arrest which showed that the defendant’s house had been seized and was for sale.

A video recording of Ordodi’s interrogation showed Ordodi professed he had no idea why the police arrested him. He continually stated that he had done nothing wrong. He told the detective that he went into both banks looking for a free checking account because his current account charged a monthly fee and he was shopping around for the best deal.

The defendant claimed he had removed his license plate from the bumper but initially had no explanation for why he had done so. He later claimed he removed the license plate from the bumper in order to “look cool” and that the license plate had been in the back window of his truck. When the detective pointed out to him that the license plate was on the seat of his truck, he claimed the license had fallen down. He could not remember when he removed his license plate, but supposed it had been removed for a couple of months. Even when the detective, using an investigative tactic, told Ordodi someone had seen him remove the license that day, the defendant maintained he could not remember when the license plate was removed. Ordodi |7claimed the wrench found on the truck’s front seat was for his truck battery even though the detective pointed out that the wrench was the proper size for the screws which had held the license plate onto his bumper.

Ordodi claimed he carried a gun with him into the bank for security reasons and that his brother-in-law had given him the weapon. He told the detective that he had been robbed when he was an 11 year old paper boy. He admitted he did not have a concealed handgun permit but stated he usually carried a gun when he went to the bank. The defendant claimed he placed the gun in his pocket at home and, if anyone said differently, they were lying. However, after being asked to think again about when he armed himself, he stated he may have placed the gun in his pocket prior to entering Regions Bank.

The defendant did not recall that he was carrying a plastic bag. When told that a plastic bag had been found in his pocket, he claimed he may have put a bag in his pocket after shopping the night before although he could not articulate a reason why he would have done so. The store which the defendant claimed to have visited the night before was not the name of the store on the bag found in his pocket.

Ordodi told the investigator that he normally left his truck engine running when he did small errands. He claimed that, if he turned his truck off, the truck would stop running altogether. He stated there was a problem with the truck’s engine which drained the batteries.

Ordodi admitted to the investigator that he was in a financial bind but refused to discuss the matter further with him. He told the investigator that, had he intended to rob a bank, he would have done so.

The defense presented the testimony of Andrea Ordodi, the defendant’s ex-wife. Ms. Ordodi brought to court a work shirt of the defendant’s which had the |Rname “Roy” on it, although she testified that she personally did not call him by that name nor did her family. She could not say whether the defendant was 'called by that name at work. •

Ms. Ordodi testified that the defendant’s truck had mechanical problems. The defendant used to leave the truck running when he ran errands. If he turned off the engine, the truck might not start and he would be left stranded.

Ms. Ordodi had no personal knowledge of whether her ex-husband habitually carried a weapon with him when he did banking errands. After questioning, she recalled that the defendant told her about being robbed when he was a paper boy. Ms. Ordodi identified the weapon seized from the defendant as one which had been given to her by her brother.

Ms. Ordodi acknowledged that she and the defendant separated four years prior to her testimony and that the separation was a traumatic experience for him. In addition, she related that the defendant was laid off from his job and suffered from illness. She noted that these experiences left the defendant depressed.

The defense pointedly questioned the police witnesses about the misdemeanor crime of carrying a concealed weapon. In closing argument, the defense maintained that the defendant was guilty, at the most, of carrying a concealed weapon. The state, however, argued the totality of the circumstances established that the defendant committed an attempted armed robbery in that he had the specific intent to commit armed robbery and had performed various actions in furtherance of that intent.

The jury found the defendant guilty of both counts of attempted armed robbery. After the trial judge denied the defendant’s motion for post-judgment verdict of acquittal, the trial judge sentenced him to concurrent terms of three years at hard labor, with credit for time served. Finding that the defendant had committed crimes |aof violence under La. R.S. 14:2(13), the trial judge denied the defendant any diminution of sentence for good behavior.

The defendant appealed his convictions, asserting.in his sole assignment of error that the evidence failed to establish his guilt beyond a reasonable doubt. Specifically, the defendant argued the evidence was insufficient to show he had the specific intent to commit either armed robbery. Further, the defendant claimed that, even if the required intent was proven, the evidence was not sufficient to show that he acted in furtherance of that intent.

After reviewing the essentially .uncontested facts of this matter, the court of appeal majority determined that the defendant’s actions were not sufficient to constitute specific intent to commit armed robbery. Ordod% 2005-522 p. 7, 916 So.2d at 443. Even assuming specific intent could be found, the court of appeal majority additionally found that the defendant’s actions could not be characterized as being in furtherance of the commission of the offense, but were actions in mere preparation. “Acts in furtherance of the offense of armed robbery require more than that which is before us in this case.” Id. The court of appeal majority based its conclusion of evidentiary insufficiency on the fact that the defendant failed to initiate some manner of threatening action toward his intended victims and never demanded anything of value from anyone. Ordodi 2005-522 p. 8, 916 So.2d at 444. The court of appeal reversed the defendant’s conviction and sentence.

In a concurring opinion, Judge Saunders found the defendant’s actions constituted specific intent- to commit armed robbery. However, Judge Saunders agreed that the defendant failed to commit acts in furtherance of the offense. The court of appeal refused rehearing in the matter, with Judge Saunders voting to grant.

This court granted the state’s writ to review the court of appeal’s determination. |inAfter review of the facts and the applicable law, we find that the court of appeal erred in reversing the defendant’s convictions and sentence.

LAW AND DISCUSSION

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Weary, 2003-3067 p. 17 (La.4/24/06), 931 So.2d 297, 310, pet. for cert. filed September 20, 2006 (No. 06-6799); State v. Captville, 448 So.2d 676, 678 (La.1984). The fact-finder weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Dabney, 2002-934 p. 1 (La.4/9/03), 842 So.2d 326, 327; State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983) (“It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review.”). “However, we are mindful that the touchstone of Jackson v. Virginia is rationality and that ‘irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.’ ” State v. Davis, 2002-1043 p. 2-3 (La.6/27/03), 848 So.2d 557, 558 citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988) (emphasis in original).

In order to prove that Ordodi was guilty of attempted armed robbery, the state had to prove the elements set forth in La. R.S. 14:64 and La. R.S. 14:27, which Inprovide in pertinent part:

§ 27. Attempt
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime shall be sufficient to constitute an attempt to commit the offense intended.
§ 64. Armed robbery
A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

The Comments under the attempt article point out that the essential elements of an attempt are “an actual specific intent to commit the offense, and an overt act directed toward that end.” See La. R.S. 14:27; Reporter’s Comments; see also State v. Murff 215 La. 40, 53, 39 So.2d 817, 821 (La.1949); State v. Carter, 213 La. 829, 832, 35 So.2d 747, 748 (La.1948).

The state, therefore, had the initial burden of proving beyond a reasonable doubt that Ordodi had the specific intent to take something of value, from another person, using force or intimidation, while armed with a dangerous weapon. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Weary, 2003-3067 p. 18, 931 So.2d at 311. The determination whether specific intent exists is a fact question for the jury. State v. Legrand, 2002-1462 p. 8 (La.12/3/03), 864 So.2d 89, 96, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005); State v. Williams, 490 So.2d 255, 260 (La. 1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987).

The eyewitnesses who testified about the defendant’s actions were not uniformly certain of the defendant’s intent. When Ms. Broussard was asked on cross-examination whether she thought that the defendant was going to come into the bank and try to rob the bank, she replied, “Well, I don’t know if I would have gone that far with it, but I knew it didn’t look right.” At most, Ms. Broussard believed that there was a possibility that the defendant would rob the bank. Ms. Hebert testified that she did not follow the bank’s protocol of calling 911 after the defendant left Regions Bank. Instead, she called the main office to find out what she should do, “because [she] didn’t want to report someone who [she] shouldn’t have.” According to Ms. Hebert, “[the defendant] didn’t try to rob us. He never asked for money. And I didn t want to turn in somebody who may have been innocent.”

Even considering this evidence favorable to the defense, we find that a rational trier of fact could find proved beyond a reasonable doubt that the defendant had' the requisite specific intent to commit an armed robbery for both counts of attempted armed robbery. Viewing the defendant’s actions in the light most favorable to the prosecution, as we must on appellate review, we find that the defendant, who was despondent and in financial difficulties, armed himself with a loaded weapon and concealed it on his person. He traveled to each bank and entered, armed with a loaded weapon, and carrying a plastic bag. The defendant attempted to conceal his identity by giving a false name at each bank and wearing a baseball cap and | ^sunglasses. The defendant removed the license plate from his truck in order to escape detection. The defendant left his truck engine running while he was inside each bank which would have aided his speedy escape. The defendant left each bank after entering and ascertaining each bank was crowded. These circumstances support the jury’s determination that the defendant specifically intended to commit armed robbery.

Having found that the defendant possessed the requisite specific intent to commit armed robbery, we must now review whether sufficient evidence was presented to prove beyond a reasonable doubt to a rational juror that the defendant did or omitted “an act for the purpose of and tending directly toward the accomplishing of his object,” sometimes referred to as an “overt act.” See La. R.S. 14:27(A) and comments thereto. The attempt statute itself makes a distinction between actions which are “mere preparation,” which are not sufficient to support a finding of an attempt, and an act for the purpose of and tending directly toward the accomplishing of his object, which is an essential element of the attempt statute. “Preparation” has been “generally defined as the devising or arranging of the means necessary for the commission of the crime.” State v. Pollard, 215 La. 655, 666, 41 So.2d 465, 468 (La.1949).

The difference between mere preparation and an overt act is not precisely defined. The Comments to the attempt statute state “[t]he distinction between preparation and an overt act sufficient for an attempt is one of nearness and degree which defies concise definition, and which can best be approximated by an examination of the jurisprudence.” See La. R.S. 14:27, Reporter’s Comments. Thus, a defendant’s actions which are mere preparation and those which are an act “for the purpose of and tending directly toward the accomplishing of [an] object” may be | understood to exist on a continuum.

Where a defendant’s actions fall on the continuum is a fact question for the jury or trier of fact. Carter, 213 La. at 833, 35 So.2d at 748 (whether the actions taken by the defendant “amounted to mere preparation or constituted an overt act directed toward the accomplishment of the basic offense was a question for determination by the jury”). In determining whether a defendant’s action is an overt act which is an attempt, “the totality of the facts and circumstances presented by each case must be evaluated.” State v. Smith, 1994-3116 p. 3 (La.10/16/95), 661 So.2d 442, 444; Williams, 490 So.2d at 261. “The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted.” Smith, 1994-3116 p. 3, 661 So.2d at 444; Williams, 490 So.2d at 261. This court has previously admitted that “the distinction [between actions which are mere preparation and actions which constitute an overt act sufficient for attempt] is one of degree and is dependent on the particular facts of each case.” Williams, 490 So.2d at 261. Thus, the determination of a defendant’s actions as being mere preparation or acts sufficient to constitute an attempt will be fact specific to each case.

The jury was presented with evidence of several of the defendant’s actions taken prior to his entrance into Regions Bank and Bank One. In making the factual determination where those actions fell on the continuum between actions of mere preparation and actions for the purpose of and tending directly toward the accomplishing of his object, the jury found that the defendant had committed actions sufficient to constitute an attempt. In reviewing the evidence of the defendant’s actions outlined above, we cannot say that the jury’s determination is irrational under the facts and circumstances presented to them. Thus, we hold that a rational juror could find proved beyond a reasonable doubt that the defendant committed an act for hsthe purpose of and tending directly toward the accomplishing of armed robbery.

The jury was instructed that an attempt was also proved when a person searched for an intended victim with a dangerous weapon with the intent to commit a crime. See La. R.S. 14:27(B)(1); see also Murff, 215 La. at 53, 39 So.2d at 821 (“... the article makes it clear that ... searching for the intended victim with a dangerous weapon with the intent to commit a crime are in themselves overt acts, especially recognized by the statute, and shall be sufficient to constitute an attempt to commit the offense intended.”). Viewing the evidence in the light most favorable to the prosecution, the defendant, while armed with a dangerous weapon, entered two different banks after committing several acts. from which specific intent to commit an armed robbery could be found. The defendant left both banks after appearing nervous and distracted. The jurors heard evidence that both banks the defendant entered that morning were crowded. A rational juror could have found proved beyond a reasonable doubt that the defendant entered those banks with the specific intent to rob their employees of the valuables which were in their immediate control, but moved on in search of another bank whose employees he perceived were easier to rob.

The defendant relies on State v. Pollard, 215 La. 655, 41 So.2d 465 (La. 1949) for the proposition that “in order to constitute an attempt there must be an act which tends directly toward the commission of the crime which will apparently result in its commission unless frustrated by extraneous circumstances.” Id., 215 La. at 666, 41 So.2d at 468 (emphasis added). Contrary to the defendant’s argument, there is no statutory requirement that the defendant’s actions be thwarted by extraneous circumstances. “There is no language contained in the statute which would warrant the Court in deducing that frustration of the consummation of the intended offense by extraneous circumstances is an ingredient of an attempt.” State v. Porter, 249 La. 784, 789, 191 So.2d 498, 500 (La.1966). In this way, Louisiana’s attempt statute “is broader than the common law connotation of an attempt.” Id., 249 La. at 788, 191 So.2d at 500.

In fact, this aspect of the Pollard decision was expressly denounced by this court in Porter, wherein the court found “the language used in the Pollard case was not necessary to the decision” and “the Court [in Pollard ] gratuitously added the observation, which we now hold to be erroneous, that in order to constitute an attempt there must be an act which not only tends directly towards the commission of the crime but which will apparently result in its commission unless frustrated by extraneous circumstances.” Id., 249 La. at 789 n. 3, 41 So.2d at 500 n. 3 (emphasis added).

Nor is the defense aided by the defendant’s argument that, if he had specific intent to commit armed robbery, he voluntarily withdrew by leaving the banks prior to demanding money. As this court noted in a case involving the charge of attempted aggravated rape, “[e]ven if he voluntarily withdrew, he did so at a point in time after culpability for an attempt had already attached.” State v. Parish, 405 So.2d 1080, 1089 (La.1981) (on rehearing). Citing Porter, supra, this court in Parish found that “whether the defendant voluntarily withdrew or was merely frustrated in his attempt, ... is not dispositive of the question of culpability.” Parish, 405 So.2d at 1089, n. 2, |17CulpabiIity is a fact question for the jury.

Viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found proved beyond a reasonable doubt that the defendant had specific intent to commit armed robbery and committed an act for the purpose of and tending directly toward accomplishing his goal. The court of appeal erred in holding otherwise. We must reverse.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed. Defendant’s convictions and sentence are affirmed.

CALOGERO, C.J., and KIMBALL, J., dissent and assign reasons.

CALOGERO, Chief Justice,

dissenting.

|TI dissent from the majority’s conclusion that a rational finder of fact could have found beyond a reasonable doubt that the defendant had possessed the specific intent to commit armed robbery and also committed an act for the purpose of and tending directly toward accomplishing his goal. The evidence presented by the state in this case, as the court of appeal rightly found, is insufficient under the standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to establish beyond a reasonable doubt that the defendant is guilty of attempted armed robbery of the bank employees named in the bill of information. Neither the defendant’s actions, outside and inside the banks, nor his personal financial and marital histories were sufficient to be construed as constituting specific intent to commit armed robbery. Moreover, none of the defendant’s actions can be rationally deemed as overt acts for the purpose of and tending directly toward the completion of the offense of armed robbery; indeed, none of the defendant’s acts or omissions, in my view, went beyond mere preparation. “Mere preparation to commit a crime shall not be sufficient to constitute an attempt....” La.Rev.Stat. 14:27(B)(1).

KIMBALL, Justice,

dissenting.

|J dissent from the majority’s determination that a rational finder of fact could have found beyond a reasonable doubt that the defendant had specific intent to commit armed robbery and committed an act for the purpose of and tending directly toward accomplishing his goal. In my view, the evidence presented was insufficient to allow a rational juror to conclude beyond a reasonable doubt that defendant possessed both an actual specific intent to commit the offense, and performed an overt act directed toward that end.

Defendant’s actions, as shown by the state’s evidence presented at trial, cannot properly be construed as anything other than mere preparation to commit the crime of armed robbery. Commentators have explained the attempt to commit a crime as follows:

For a man to make up his mind to commit a crime, and to make preparations to commit it, is not an attempt. He must go further than mere preparation, and do some act directly tending to a carrying out of his unlawful intent. Procuring or loading a gun, or buying poison, or walking to a particular place, with intent to kill another, is not enough to make one guilty of an attempt to commit murder. The same is true of similar preparations to commit burglary, or robbery.

ClaRk & Marshall, A Treatise on the Law of Crimes 248-49 (Marian Quinn | ¡.Barnes, ed., Callaghan & Co. 7th ed.1967) (1927).

In the instant case, defendant committed no act directly tending toward carrying out the crime of armed robbery. He made no threats toward anyone, he never demanded anything of value.from anyone, he did not produce or brandish the gun inside the banks. Defendant never acted in a way suggesting he intended to rob either bank. In fact, eyewitnesses were uncertain whether defendant was going to rob the bank. The majority speculates that “defendant left each bank after entering and ascertaining each bank was crowded,” At 661, but the state submitted no evidence suggesting that defendant was concerned by the number of people present in the bank or that he went to the second bank in hopes it would be less crowded.

The evidence presented by the state shows only that defendant made preparations to commit armed robbery. Defendant’s actions of removing his license plate, leaving his truck running in the parking lot, loading and concealing the gun, carrying a plastic bag, and wearing a baseball cap and sunglasses constitute preparation to rob a bank. None of these actions tend directly towards the commission of armed robbery.

Because the totality of the circumstances do not establish beyond a reasonable doubt that defendant committed an act in furtherance of committing the crime of armed robbery, I do not believe a rational juror could have concluded defendant was guilty of attempted armed robbery. Consequently, I dissent from the majority’s decision to reverse the judgment of the court of appeal.

      . The bill of information named as victims the individual bank employees with whom Ordodi came into contact. Thus, in count 1, the defendant was charged with attempted armed robbery of Marla Hebert and/or Marella Gui-dry, the employees at Regions Bank. In count 2, the defendant was charged with attempted armed robbery of Shelly Hughes and/or Tiffany Thibodeaux, the employees of Bank One. See Vol. 1, p. 25.

      . Vol. 2, p.322.

      . Vol. 2, p. 337.

      .Vol. 2, p. 339. _

      . The transcript reveals that the trial judge included in his jury instructions the erroneous language from Pollard:

      Preparation has generally been defined as the devising or arranging of the means necessary for the commission of the crime, while an attempt requires an act which tends directly towards the commission of the crime, and which apparently results in its commission unless frustrated by extraneous circumstances. Vol. 3, p. 442.
      As this court stated in Porter,. supra, the emphasized portion of the instruction is not a correct statement of the law. However, inclusion of this language in the jury instructions did not prejudice the defendant, since any inference from this erroneous language would be favorable to the defendant. Even with this language favorable to the defense, the jury found the defendant guilty on both counts of attempted armed robbery.

      . Defendant was not charged with the crime of illegally carrying a weapon.


source: Caselaw Access Project

license: Public Domain

text:
    In re Marcie S. KOCH.
    No. 2007-B-0063.
    Supreme Court of Louisiana.
    Jan. 12, 2007.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Marcie S. Koch, and the Office of Disciplinary Counsel,

IT IS ORDERED that Marcie S. Koch, Louisiana Bar Roll number 25266, be and she hereby is suspended.from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


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

text:
    Theresa K. LEWIS v. Joseph BUSBY.
    No. 2005 CA 2242.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      Ben Clayton, Slidell, for Plaintiff/Appellant, Theresa K. Lewis.
    Tammy M. Nick, Slidell, for Defendant/Appellee, Joseph Busby.
    (Court composed of Judge JAMES McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   MAX N. TOBIAS, JR., Judge, Ad Hoc.

| Theresa K. Lewis, the plaintiff, appeals a judgment of the Twenty-Second Judicial District Court for the Parish of St. Tammany that dismissed her suit on a motion for summary judgment against Joseph Busby, ordered her to pay court costs and attorney’s fees, and overruled her exceptions. For the reasons that follow, we affirm the dismissal of her suit and the award of court costs against her, but reverse the award of attorney’s fees and the trial court’s overruling of the exceptions. Facts.

Theresa Lewis alleges that on 20 November 2004 she was employed as a cashier at Danny and Clyde’s Food Store (“Danny & Clyde’s”) in Slidell when the defendant, Joseph Busby, robbed her at gunpoint. She alleges that Mr. Busby, who she and another subsequently identified as the perpetrator in a photographic line-up, pointed a gun at her, cocked the hammer of the gun, and threatened that if she told anyone he would return and kill her. As a result, she maintains that the incident exacerbated her pre-existing psychiatric condition, causing her emotional harm that resulted in “panic, anxiety, mental trauma, fear, depression, nightmares and the like.”

|2The Louisiana Safety Association of Timbermén — Self Insurance Fund intervened in the suit alleging that it was the workers’ compensation insurer of Ms. Lewis’ employer, Danny & Clyde’s, and that in the event of a recovery by Ms. Lewis, it was entitled to recover as a priority creditor such sums as it may pay or have paid in workers’ compensation benefits to Ms. Lewis. However, it does not appear from the record before us that Ms. Lewis ever made a claim against Danny & Clyde’s workers’ compensation insurer or that workers’ compensation benefits were ever paid.

Mr. Busby answered Ms. Lewis suit denying her allegations and asserting an affirmative defense of mistaken identity. He further asserted a reconvention demand against Ms. Lewis, alleging that she was maliciously prosecuting her civil suit, causing him mental and physical pain, humiliation, and embarrassment. He alleged that the state had refused to charge him with the crime because he presented exculpatory alibi evidence consisting of witnesses, fingerprints, and a surveillance video, all of which established that Ms. Lewis had no probable cause to continue her suit. Additionally, he requested La. C.C.P. art. 863 sanctions because her suit was no longer warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and was interposed for the improper purpose of extorting money from him and to cause needless litigation.

Ms. Busby filed a dilatory exception of prematurity and a peremptory exception of no cause of action to Mr. Busby’s recon-ventional demand, asserting that her claim had to be resolved first (Mr. Busby had to obtain a dismissal of her claims) before his claim of malicious prosecution could be properly pleaded. She further denied the allegations of- Mr. Busby’s reconventional demand and asserted that the district attorney’s refusal to | ^charge Mr. Busby did not establish his innocence of the crime because the standard of proof in a civil case is different from that of a criminal ease.

Approximately two months after Ms. Lewis filed suit and less than a month after he filfed his answer and reconventional demand, Mr. Busby filed a motion for summary judgment, praying that Ms. Lewis’ suit be dismissed. In his motion and documented by exhibits and affidavits Mr. Busby asserted that Ms. Lewis had identified him from a mere photographic line-up, that he had videotape evidence from a bar in Lafayette, Louisiana that established that he was at the bar at the same time the robbery was committed, that Slidell police had authenticated the videotape from the bar, that fingerprints of the perpetrator taken from the scene of the crime were not his, that Ms. Lewis’ description of the perpetrator from the night of the robbery varied materially from the physical characteristics of him, and that Slidell was more than two and one-half hours away from Lafayette where he was videotaped entering the bar and remaining there for about thirty-six minutes.

Ms. Lewis filed an opposition to the motion, asserting that Lafayette was indeed more than two and one-half hours from Slidell by motor vehicle (implying that other faster means of transportation existed), that a customer in Danny & Clyde’s at the time of the robbery had also picked out Mr. Busby from a photographic line-up as the perpetrator, that discovery was incomplete for Mr. Busby had not yet responded to interrogatories and requests for production of documents that Ms. Lewis had submitted, and that the videotape attached to Mr. Busby’s- motion was not authenticated. Simultaneously with the filing of the opposition, Ms. Lewis filed a motion to | ¿compel answers to her discovery and requested additional discovery. Ms. Lewis submitted no affidavit or other evidence with her opposition to the motion for summary judgment.

Mr. Busby responded to Ms. Lewis’ opposition by furnishing additional affidavits from various individuals including police officers and the manager of the Lafayette bar, all of which were filed less than fifteen days prior to the hearing on the motion for summary judgment.

Following a hearing, the trial court granted Mr. Busby’s motion for summary judgment, dismissing with prejudice, Ms. Lewis’ suit, awarded court costs and attorney’s fees on the motion for summary judgment, overruled Ms. Lewis’ exceptions of prematurity and no cause of action, and denied the cross motions for sanctions filed by both Mr. Busby and Ms. Lewis.

On appeal, Ms. Lewis assigns three errors: (1) the trial court erred in granting the motion for summary judgment; (2) the trial court erred in awarding court costs and attorney’s fees in favor of Mr. Busby; and (3) the trial court erred in overruling the plaintiffs exceptions to the defendant’s reconventional demand.

Discussion.

Assignment of Error No. 1: The trial court erred in granting the motion for summarg judgment.

A court of appeal reviews the ruling of a trial court on a motion for summary judgment de novo under the same criteria that govern the trial |ficourt’s determination of whether the summary judgment should be granted. Adams v. Arceneaux, 00-1440, pp. 3-4 (La.App. 1 Cir. 6/22/01), 809 So.2d 190,194.

The record on appeal reflects that Ms. Lewis filed no affidavit alleging facts that would contradict the affidavits attached by Mr. Busby to his motion. Moreover, Ms. Lewis filed an opposition memorandum that asserted by way of argument that material facts existed that preclude summary judgment, to-wit, that both Ms. Lewis and a store customer picked Mr. Busby out in a photographic line-up, that discovery had just begun and that responses to discovery requests were received the week before the hearing, and that certain affidavits were transmitted to counsel for the plaintiff less than fifteen days prior to the hearing in violation of Rule 9.9, Subsection A, of the Uniform Rules of District Court.

La. C.C.P. art. 967 B provides as follows:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Thus when a motion for summary judgment is “made and supported as provided above,” a party may not rely upon his pleadings but must by “affidavit, or as otherwise provided, set forth specific facts showing that there is a genuine issue for trial.” The inverse implication is that if an unsupported motion for summary judgment is made, then the opposing party may rely upon his pleadings. Sheppard v. City of Baton Rouge, 02-2421, p. 3 (La. App. 1 Cir. 9/17/04), 897 So.2d 25, 27.

| (¡Viewing only the original motion for summary judgment and without considering the newspaper articles that were attached to the motion and the unauthenticated (at the time) videotape purportedly showing Mr. Busby in Lafayette at the time of the crime, we find Mr. Busby’s affidavit, self-serving though it may be, was sufficient to shift the burden of proof to Ms. Lewis to come forth with evidence that would have created a genuine issue of material fact whether Mr. Busby was the perpetrator of the crime. On that basis, we do not find that the trial court erred in granting the motion for summary judgment. Ms. Lewis’ failure introduce evidence requires this appellate court to affirm the trial court for we have no evidence as to an error of law or a clear abuse of a trial court’s vast discretion. Further, we do not find that the trial court abused its vast discretion in proceeding to hear the motion for summary judgment although minimal discovery had been completed and the motion for summary judgment had been filed within approximately two months after the plaintiff filed suit.

Based upon the record before us, we conclude that Ms. Lewis’ first assignment of error is without merit.

Assignment of Error No. 2: The trial court erred in awarding court costs and attorneg’s fees to Mr. Busby and against Ms. Lewis.

We find no error in or abuse of discretion by the trial court in its award of court costs to Mr. Busby and against Ms. Lewis. La. C.C.P. art. |71920 specifically permits the trial court to award court costs to the prevailing party in the judgment rendered.

As a matter of law, attorney’s fees are not recoverable when a trial court grants a motion for summary judgment. La. C.C.P. arts. 966-969. Although attorney’s fees may be awarded when a trial court finds that sanctions under La. C.C.P. art. 863 are appropriate, we specifically note that the trial court denied the motion for sanctions sought by the parties. Therefore, the trial court erred in awarding attorney’s fees to Mr. Busby.

Accordingly, we find that a part of the plaintiffs second assignment of error is without merit and a part has merit.

Assignment of Error No. 3: The trial court erred in dismissing Ms. Lewis’ exceptions of prematurity and no cause of action.

Ms. Lewis asserts that the trial court erred in overruling her exceptions of prematurity and no cause of action raised to Mr. Busby’s reconventional demand for malicious prosecution. In substance, both exceptions raise the same issue: if Mr. Busby’s reconvention for malicious prosecution is premature, then he also presently fails to state a cause of action for malicious prosecution.

In Robinson v. Goudchaux’s, 307 So.2d 287, 289 (La.1975), quoting Eusant v. Unity Industrial Life Ins. Ass’n., 195 La. 347, 196 So. 554 (1940), the Court stated:

An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the-present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for | Ssuch proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff.

Applying these standards to the case at bar, we find that Mr. Busby’s reconven-tional demand is in fact premature until the underlying civil suit that Ms. Lewis filed has been disposed of. Because the criminal prosecution of Mr. Busby has been, so to speak, terminated because the St. Tammany Parish district attorney has refused charges does not conclusively prove that Mr. Busby might not for civil suit purposes be liable to the plaintiff. The standards of proof for criminal and civil cases are different: beyond a reasonable doubt in the former and a preponderance of the evidence in the latter. Further, if additional evidence later comes to the attention of law enforcement that implicates Mr. Busby in the robbery of 20 November 2004, the district attorney may well again charge Mr. Busby with committing the crime.

We therefore reverse the judgment of the trial court overruling the exceptions of prematurity and no cause of action. The assignment of error has merit, but of course, once the decision of this court in this case becomes definitive, Mr. Busby may once again file suit for malicious prosecution if he finds that he might prevail. But see La. R.S. 14:50(2); cf., La. C.C.P. art. 863.

Conclusion.

For the foregoing reasons and based upon the errors assigned, we affirm the granting of the motion for summary judgment, affirm the award of court costs to the defendant/appellee, reverse the trial court’s award of attorney’s fees to the defendant/appellee, reverse the trial court’s overruling of the exceptions of prematurity and no cause of action, and render judgment |9dismissing without prejudice the defendant/appellee’s recon-ventional demand.

AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART.

      . We do not address the admissibility of certain evidence (documentation), which consists primarily of newspaper articles that state that the district attorney had refused to accept charges against Mr. Busby. See La. C.E. arts. 802, 803 and 902.

      . We note that Ms. Lewis' original petition was not verified, being merely signed by her counsel.

      . The record before us does not demonstrate that the intervenor was noticed for the hearing and was apparently not present.

      . In her-brief on appeal, Ms. Lewis asserts, as she did in the trial court, that she was not served with the motion for summary judgment as required by law. We do not find in the record before us evidence that the motion was served in the manner' proved by law. Nevertheless, Ms. Lewis did not assign as error the lack of service of the motion for summary judgment as required by Rule 2-12.4 of the Louisiana Uniform Rules of the Courts of Appeal. Accordingly, we deem the issue of inadequate service waived, having not been specifically assigned as error. Cf., La. C.C.P. art. 2129

      . In oral argument before the trial court, counsel for Mr. Busby advised the court that she had previously communicated with Ms. Lewis’ counsel about other evidence that she had that Mr. Busby was not the perpetrator of the robbery. ' Counsel for Ms. Lewis does not dispute the oral communications, which were corroborated in part by the late filed affidavits.


author: EDWIN A. LOMBARD, Judge.

text:
    Peterson M. YOKUM v. COURT OF TWO SISTERS, INC.
    No. 2006-CA-0732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Stuart H. Smith, Kimberly W. Rosenberg, Smith Stag, L.L.C., New Orleans, LA, and Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Charles L. Stern, Jr., Alan M. Cohen, The Steeg Law Firm, L.L.C., New Orleans, LA, and Eric J. Halverson, Jr., Hal-verson and Hooker, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY, Judge Edwin A. Lombard).
   EDWIN A. LOMBARD, Judge.

hThe defendant/appellant, Jos. Fein Caterer, Inc., d/b/a Court of Two Sisters “(Fein”), appeals the trial court judgment granting a preliminary injunction and ordering the defendani/appellant “to comply with the City of New Orleans Noise Ordinances Section 66-02.” After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court, but remand to the trial court for the plaintiffs/appellees to post bond.

Relevant Facts and Procedural History

On December 8, 2004, the plaintiff/appel-lee, Peterson M. Yokum (“Yokum”), filed a petition for damages and declaratory and injunctive relief against the defendant/appellant, a restaurant, alleging that the music played for the restaurant’s jazz brunch exceeded the city noise ordinances and violated both zoning regulations prohibiting live music and state statutes prohibiting unreasonably intrusive music by a licensed retail dealer of alcoholic beverages. In supplemental and amending petitions, the plaintiff requested a preliminary injunction enjoining the defendants from violating the applicable city ordinances |2and state laws pertaining to noise and nuisance and added as plaintiffs Polly Elizabeth Anderson, French Quarter Citizens for Preservation of Residential Quality, and Vieux Carre Property Owners, Residents and Associates, and as defendant, Nick Karno, owner of the property leased by defendant Fein, as a defendant.

At the preliminary injunction hearing on February 25, 2005, the parties introduced affidavits from their respective expert audiologists. The plaintiffs’ expert stated that based on tests he conducted in the Yokum residence the music emanating from the restaurant was in excess of 80 decibels and therefore in excess of the limits set by the applicable city ordinances. An expert for the defendants asserted, however, that based on her scientific sound level measurements the noise levels recorded on Yokum’s porch were well within the limit levels set by the city noise ordinance.

On March 11, 2005, the district court issued its judgment granting the plaintiffs’ request for a preliminary injunction and ordering Fein to comply with the applicable city noise ordinance, City of New Orleans Noise Ordinances Section 66-202.

| ^Applicable Law

To obtain a preliminary injunction, a petitioner must (1) demonstrate he would suffer irreparable injury, loss, or damage without the injunction; (2) show entitlement to the relief sought; and (3) make a prima facie showing that he is likely to prevail on the merits. Saunders v. Stafford, 05-0205, p. 5 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754.

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction .... ” La.Code Civ. Proc. art. 3612. This court reviews the trial court’s granting of a preliminary injunction to determine if the trial court committed an error of law or if the granting was manifestly erroneous or clearly wrong. Ellis Construction, Inc. v. Vieux Carre Resort Properties., L.L.C., 05-1109, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 206, 209 (citation omitted); see also Oliver v. Cal Dive International, Inc., 02-1122, p. 7 (La.App. 1 Cir.4/2/03), 844 So.2d 942, 947 (inadequacy in the record is imputable to the appellant).

Discussion

Fein raises three assignments of error: (1) the trial court erred in granting a preliminary injunction because it granted the plaintiffs’ application for a preliminary injunction without evaluating the evidence to determine whether the plaintiffs satisfied their burden of proof; (2) the trial court erred in granting a preliminary injunction without describing in reasonable detail the restrained act or acts; and (3) the trial court erred in granting the preliminary injunction without requiring the plaintiffs to post security. Fein’s claims in assignments of error 1 and 2 are without merit.

14First, because the record lodged in this case contains neither the hearing transcript nor a joint written and signed narrative by the parties or by the trial judge pursuant to La.Code Civ. Proc. arts. 2130 & 2131 nor the judge’s written reasons for judgment or a minute entry indicating his reasons for judgment, we must presume that to the extent the trial court’s judgment depended on facts, the judgment was supported by competent evidence and should be affirmed. See Oliver, 02-1122 at p. 8, 844 So.2d at 947.

Next, to the extent that Fein’s complaint is that the trial judge erroneously failed to make a final determination as to the evidence presented, to interpret the applicable ordinances in light of the conflicting expert opinions, or to craft a final resolution for the dispute between the parties, the defendant misapprehends the purpose of a preliminary injunction. A preliminary injunction is only an interlocutory procedural device designed to preserve the existing status quo pending a trial of the issues on the merits of the case.

Moreover, the preliminary injunction in this case merely requires Fein to adhere to the city’s noise ordinance and thus maintains the status quo pending resolution of the matter after a trial on the merits. Requiring Fein to adhere city noise regulations neither harms nor inconveniences Fein, particularly in light of Fein’s claim that the volume of the music played at the restaurant’s jazz brunch does not exceed the applicable city ordinance. The trial judge’s specific reference to a particular noise ordinance adequately informs the defendant, pursuant to La.Code Civ. Proe. art. 3605, of the act “sought to be restrained” by the preliminary | injunction. Clearly, a final determination concerning the differing expert’s conclusions in conjunction with the appropriate interpretation of the applicable statutes and regulations would be premature at this point in the proceedings.

Fein is correct, however, in claiming that the trial judge erred as a matter of law by failing to require the plaintiffs to furnish security in connection with issuing the preliminary injuction. La.Code Civ. Proc. art. 3610 (“A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law-”). This court strictly construes Article 3610 to require the posting of security for preliminary injunctions. Yokum v. Van Calsem, 05-0797, p. 5 (La.App. 4 Cir. 6/21/06) 935 So.2d 736, 739.

Under the facts of this case we find no applicable law that dispenses with security and, therefore, the trial judge erred in granting the application for preliminary injunction without requiring the plaintiffs to post security. Accordingly, we may either remand the case to the trial court with directions that security be furnished or reverse the judgment of the trial court granting the preliminary injunction. Id. at 6, 935 So.2d at 739 (citation omitted). Clearly, dissolving the injunction serves no useful purpose in this case and concomitantly remanding the case to the trial court for the posting of bond serves the interests of justice and judicial efficiency. Therefore, the case is remanded to the trial court with instructions to fix the amount of the bond.

| Conclusion

For the foregoing reasons, we affirm the judgment granting the preliminary injunction and remand the case to the trial court with instructions to fix security in accordance with the law.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

      . As noted infra, the plaintiffs/appellees added Nick Karno, the premises owner, as a party defendant.

      . Louisiana Code of Civil Procedure Article 2131 provides, "If the testimony of the witness has not been taken down in writing, the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join it in any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.” La.Code Civ. Proc. Art. 2131 (West 2006).

      . See People’s Enterprise Inc. v. Labbe, 542 So.2d 784, 786 (La.App. 3 Cir. 1989) (law does not authorize a party to unilaterally narrate the alleged facts for the benefit of the appellate court).


author: PATRICIA RIVET MURRAY, Judge.

text:
    Jonathan CARROLL v. DEPARTMENT OF POLICE.
    No. 2006-CA-0726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Rita K.. Akehurst, II, Rita Akehurst & Associates, Harvey, LA, for Plaintiff/Appellant.
    James P. Rogers, Law Clerk, Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO, JR.).
   PATRICIA RIVET MURRAY, Judge.

_jjThis is the third appeal by the plaintiff, Jonathan Carroll, in this civil service case. On his first appeal, we found that the New Orleans Police Department (“NOPD”) wrongfully terminated him from his job as a police officer. We ordered that he be granted back pay from the date of his suspension through the date of his reinstatement and awarded him all costs and attorney’s fees. Carroll v. City of New Orleans Police Dep’t, 02-2230 (La.App. 4 Cir. 3/26/03), 844 So.2d 148.

On his second appeal, we affirmed the Civil Service Commission’s finding that Officer Carroll was owed back pay less the applicable offset to the Appointing Authority (the NOPD) for all monies Officer Carroll received from other employment during his separation from the NOPD. We also affirmed the Commission’s denial of Officer Carroll’s claim for. sergeant’s pay. We remanded the issue of overtime to the Commission. Finally, we awarded Officer Carroll $39,286.57 in costs and attorney’s fees. Carroll v. City of New Orleans Police Dep’t, 04-0122 (La.App. 4 Cir. 9/29/04), 885 So.2d 636.

On remand, the parties reached a settlement on the issues of back pay, offset, and overtime. At the June 7, 2005 hearing before the Commission, the parties agreed on the record that Officer Carroll was entitled to $4,000 in overtime, that |2the NOPD was entitled to an offset of $45,863.07, and that Officer Carroll was entitled to back pay of $68,906.51.

On February 2, 2006, the Finance Department of the City of New Orleans issued a check to Officer Carroll in the net amount of $19,020.80, which was calculated as follows:

Gross amount of back pay $ 68,821.6s
Offset amount - 41,863.07
Pension Deduction - 5,961.59
Federal Tax Deduction - 10,290.81
State Tax Deduction - 1,805.98
Medical .Tax Deduction - 545.56
’Net Amount of Check $ 19,020.80

Claiming the deductions for employment withholding taxes (federal, state, and medical taxes) and retirement (pension) were improperly taken, Officer Carroll filed a Motion to Enforce Judgment. On April 17, 2006, the Commission denied that motion. This appeal followed.

On appeal, Mr. Carroll asserts the following four assignments of error:

1. The Commission erred in not awarding him the full amount of the settlement to which the parties agreed;
2. - The Commission failed to recognize that a consent judgment is binding once placed on the record;
3. The NOPD failed to replenish Officer Carroll’s retirement benefits even though they were ordered to do so by this Court; and
4. The NOPD erred in deducting funds from Officer Carroll’s settlement check that were not agreed to by the parties.

IsThe gist of Officer Carroll’s assignments of error is that the NOPD erroneously took deductions from his back pay that were not agreed to by the parties. He disputes two. categories of deductions: (i) the three deductions for employment withholding taxes, which total $12,642.35; and (ii) the retirement (pension) deduction for $5,961.59. He thus seeks an additional award of $18,603.94. He also seeks attorney’s fees and costs for this appeal.

The NOPD counters that the Finance Department takes similar deductions from all paychecks it issues to NOPD officers. In support, the NOPD relies on an affidavit from its personnel director, Stephanie Landry, who attested to the following:

• The purpose of giving back pay to a wrongfully discharged NOPD officer is to put that officer in a position identical to the position the officer would have been in had the officer been employed during the time of discharge.
• All NOPD officers are required to contribute a percentage of their salary to the Municipal Police Employees’ Retirement System (“MPERS”).
• Federal and state taxes are deducted from the salaries of all NOPD officers based on W-4 tax forms computed by employees when hired.

The NOPD argues that back pay constitutes retroactive wages and that it thus was legally required to withhold employment taxes. It further argues that the pension deduction it took was for the personal pension contribution that Officer Carroll, as a participating MPERS member, is required to make. The NOPD thus contends that it complied with the terms of the settlement agreement by issuing the check for the net amount. Because it complied with the agreement, the NOPD contends that attorney’s fees are not warranted. The NOPD also contends that it is entitled to frivolous appeal damages.

In resolving the issues presented, we turn first to the Louisiana Civil Code articles on transaction or compromise. Addressing the scope of a compromise | ¿agreement, the articles provide that such agreements “regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed.” La. C.C. art. 3073. In this case, we find that the deductions at issue for employment withholding taxes and MPERS are the necessary consequence of the expressed agreement regarding the payment of back pay to an NOPD officer who is a participating MPERS member.

Back pay is a form of wages. Social Sec. Bd. v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946)(holding that for Social Security purposes back pay awards are a form of wages); see also Amalgamated Transit Union Local v. NJ Transit Bus Operations, Inc., 385 N.J.Super. 298, 897 A.2d 357 (2006)(citing Nierotko and holding that an employer could deduct taxes from an arbitration award of back pay). Indeed, a back pay award is defined as “[a] judicial or quasi-judicial body’s decision that an employee or ex-employee is entitled to accrued but uncollected wages or benefits.” Bryan A. Garner, Black’s Law Dictionary 148 (8th ed.2004). Under both federal and Louisiana law, an employer is required to withhold certain employment taxes from the wages it pays its employees, and an employer may be penalized for failing to do so. See 26 U.S.C.A. § 3402; La. R.S. 47:112. Because a back pay award is a form of wages, a necessary consequence of an agreement to pay back pay is that deductions can be taken for appropriate state and federal employment withholding taxes.

Turning to the MPERS deduction, it is undisputed that Officer Carroll is a participating MPERS member. Under the terms of the MPERS Member Handbook, an employee’s required contribution is defined as “7.50% of earnable compensation.” Earnable compensation is defined to exclude overtime, but to |5include regular base salary, state supplemental pay, millage and tenure pay, longevity pay, and salary paid during a period while on sick leave or vacation. Given that a back pay award is a form of wages, it is earnable compensation. The NOPD thus' did not err in taking the pension deduction for Officer Carroll’s personal contribution to MPERS.

Summarizing, we find that the deductions at issue, albeit not expressly stated as part of the settlement agreement, are a necessary consequence of the agreement and that the deductions thus are proper. La. C.C. art. 3073. In light of our finding that the deductions are proper, Officer Carroll is not entitled to attorney’s fees or costs. The NOPD’s claim for frivolous appeal damages is procedurally barred because it failed to file an answer to Officer Carroll’s appeal. La. C.C.P. art. 2133 (providing that an appellee must file an answer to the appeal in order to demand damages against the appellant).

DECREE

For the foregoing reasons, the Civil Service Commission’s decision is affirmed.

AFFIRMED.

      . Although at the hearing the amount of back pay was stated to be $68,906.51, it was agreed that "these are the best possible numbers” that could be calculated and that "Finance, who cuts the actual checks,” would make its own independent calculation, which "may be off $ 100 either way.” When Finance cut the check, it calculated the back pay due to be $68,821.68. The difference between these amounts ($68,906.51 and $68,821.68) of $84.83 is not disputed.

      . The overtime pay that was agreed to by the parties of $4,000 was deducted from the offset amount.


author: COOKS, Judge.

text:
    Delton AUGUSTINE, Jr. v. Johnny GRIFFIN, et al.
    No. 06-568.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 29, 2006.
    Rehearing Denied Feb. 7, 2007.
    John T. Bennett, John T. Bennett Law Offices, Marksville, LA, for Plaintiff/Appellant, Delton Augustine, Jr.
    S. Aaron Siebeneicher, Johnson & Sie-beneicher, Inc., Alexandria, LA, for Defendant/Appellant, Republic Vanguard Insurance Company.
    Michael W. Adley, Judice & Adley, APLC, Lafayette, LA, for Defendant/Ap-pellee, M & C Insurance, Inc.
    Michael J. Juneau, Sue Nations, Juneau Law Firm, APLC, Lafayette, LA, for Defendant/Appellee, National Union Fire Insurance Company of Pittsburgh.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   COOKS, Judge.

| defendant-appellant, Republic Vanguard Insurance Company, appeals the trial court’s judgment granting the motions for partial summary judgment filed by M & C Insurance, Inc. and National Union Fire Insurance Company of Pittsburgh, PA and dismissing Republic’s third:party demand with prejudice. For the following reasons, we affirm.

ANALYSIS

Plaintiff, Delton Augustine, Jr., sustained serious injuries in a vehicular accident that occurred on December 4, 2003. Plaintiff was a passenger in a 1996 Ford F-350 truck owned and driven by Paul Lewis d/b/a Paul Lewis Paving Contractor. Plaintiff was in the left rear seat of the truck when it was suddenly struck from behind by a 1999 Chevrolet Cavalier driven by Johnny Griffin.

Plaintiff filed suit against Griffin and his insurer, GEICO, for damages sustained in the accident. The limits of Griffin’s GEI-CO policy was $10,000. Claiming his damages exceeded $10,000, Plaintiff asserted a claim against Republic Vanguard Insurance Company, seeking underinsured motorist benefits. Republic provided UM coverage for the Ford F-350 truck owned by Lewis. Republic’s policy had liability limits of $1,000,000; however, the UM liability limits was $50,000.

Plaintiff filed a motion for partial summary judgment alleging the UM limits of the Republic policy should be equal to the limits of liability because the UM selection form, which indicated limits of $50,000, was invalid. The motion was denied. During discovery, Plaintiffs attorney determined that Republic failed to offer to its insureds UM coverage limits in the same amount as the liability limits of the policy as required by statute. Plaintiffs attorney filed a second motion for partial summary judgment seeking a declaration that Republic’s policy of insurance provided | ¡>UM coverage in the amount of $1,000,000 rather than $50,000. At the hearing on the motion, the trial court found Republic’s admitted practice of refusing to offer UM coverage in the same amount as the liability limits was contrary to- Louisiana law. Louisiana Revised Statute 22:680 mandates that an insurer offer UM coverage in the same amount as the liability limits. That statute does provide for a party to select lower limits, but the insurer must offer the insured the option of obtaining UM coverage in an amount equal to the liability limits of the policy.

The trial court ruled Republic’s violation of La.R.S. 22:680 prevented the insured from making a knowing and informed selection of UM coverage limits. Thus, the trial court voided the $50,000 UM selection form and held the Republic policy provided UM coverage of $1,000,000. Republic filed an application for supervisory writs with this court, which was denied. Republic then applied for writs to the Louisiana Supreme Court, which was denied as untimely.

Earlier in the proceedings, Republic filed a third party demand against M & C Insurance, Inc., the insurance agency that submitted the application for insurance on the Ford F-350, and its errors and omissions carrier, National Union Fire Insurance Company. The third party demand sought indemnification in the event it was determined M & C had done or failed to do something that caused Republic’s policy to provide $1,000,000 UM coverage rather than $50,000. After the trial court ruled the Republic policy provided $1,000,000 UM coverage, M & C filed a motion for summary judgment on the grounds it did nothing to cause the Republic policy to provide $1,000,000 UM coverage. M & C contended the increase in UM coverage occurred solely because of Republic’s refusal to comply with La.R.S. 22:680, and was not the result of any error or omission on M & C’s part.

The trial court rendered a written judgment on December 29, 2005, granting [ sthe motion for summary judgment filed by M & C and National Union and dismissed the third party demand filed by Republic. Notice of the signing of this judgment was mailed to the parties on January 4, 2006. For some reason, a second identical judgment was signed by the trial court on January 3, 2006. Notice of this judgment was mailed to the parties on January 4, 2006.

Republic filed a motion and order for a devolutive appeal on February 9, 2006 seeking to appeal the judgment signed on January 3, 2006. The trial court granted the motion for appeal on February 14, 2006. The plaintiff also filed a motion and order for a devolutive appeal on February 27, 2006 seeking to appeal the judgment signed on January 3, 2006. The trial court granted this motion for appeal on February 27, 2006. Neither Republic nor the plaintiff appealed the signed judgment of December 29, 2005.

M & C and National Union filed motions to dismiss the appeal in this court, alleging that the judgment sought to be appealed was null and void. They also argued the judgment of December 29, 2005 had become final and definitive and could not now be appealed. National Union also claimed plaintiffs appeal must be dismissed because he lacked standing to challenge the trial court’s ruling dismissing the third-party demand to which he was not an aggrieved party. National Union noted that Plaintiff did not sue it or M & C, thus did not have any interest in the judgment that dismissed the third-party demand.

This court in an unpublished opinion rendered on July 5, 2006, Augustine v. Griffin, 06-568 (La.App. 3 Cir. 7/5/06), 934 So.2d 312, 2006 WL 2223877, denied the motion to dismiss the appeal filed by Republic. However, the motion to dismiss the appeal filed by Plaintiff was granted. Thus, the appeal filed by Republic is the only appeal still before this court. Republic asserted the following lone assignment of error:

Ul. The trial court erred in granting the Motion for Summary Judgment prayed for by M & C Insurance, Inc. and National Union Fire Insurance Company of Pittsburgh, PA, as both motions for summary judgment were premature and granted based on a non-final ruling of this Court as to coverage of the Republic Vanguard policy.

ANALYSIS

An appellate court reviews summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Lamoco, Inc. v. Hughes, 02-1498 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, writ denied, 03-2603 (12/12/03), 860 So.2d 1156. Summary judgment is appropriate when “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.Code Civ.P. art 966(B). A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Trent v. PPG Indus., Inc., 03-1068 (La.App. 3 Cir. 2/4/04), 865 So.2d 1041. Further, the summary judgment procedure is favored and is “designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(B).

At the hearing on Plaintiffs motion for partial summary judgment the trial court determined that Republic had violated public policy as set forth in La.R.S. 22:680, and that violation precluded the insureds (Paul and Joanne Lewis) from making a knowing and informed selection of UM limits on the Republic policy. Thus, the trial court found the UM selection form was null and void, and held the Republic policy provided $1,000,000 in UM coverage.

In response to this, M & C and National Union filed a motion for summary judgment seeking a dismissal of Republic’s third-party demands against them. The trial court ruled, while Republic’s insurance policy did provide $1,000,000 in UM | .¡coverage, this fact was not caused by any error or omission by M & C, but rather from Republic’s refusal to comply with La. R.S. 22:680, which requires an insurer to offer UM limits in the same amount as the liability limits. La.R.S. 22:680 specifically provides as follows:

The following provisions shall govern the issuance of 'uninsured motorist coverage in this state:
(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Subsection unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; ...

At the hearing on the motion for summary judgment, counsel for Republic noted that M & C’s motion for summary judgment was well founded. The following colloquy took place:

BY MR. ADLEY [counsel for M & C]: You [the trial judge] recently ruled that the Republic Vanguard policy provides a $1,000,000.00 in coverage not $50,000.00 but you did that based on Republic’s fault and not anything M and C did.... So the entire basis for bringing M and C into this is gone now. There’s nothing M and C did or failed to do that increased Republic’s exposure here. This was Republic’s own fault for their refusal to follow Louisiana law. •
BY MR. SIEBENEICHER [counsel for Republic]:
Your Honor, I will say as an officer of the Court, Mr. Adley’s argument concerning the first issue based upon your ruling [that UM coverage was $1,000,000 based on Republic’s fault and not anything M and C did], I think that that is probably a valid argument.... I would ask that this Court defer it’s ruling concerning M and C’s Motion for Summary Judgment until the Third Circuit or whatever Court that issue is finally disposed of ...

| ^Republic's counsel put forth no factual or legal argument against the granting of the summary judgment, but instead requested that the trial court defer its ruling. After hearing argument about the costs that would be incurred by M & C if the court deferred its ruling, the trial court rejected Republic’s request to defer the ruling and granted the motion for summary judgment.

Republic argues on appeal that the grant of the partial summary judgment was premature. As it did below, Republic contends the trial court should have deferred ruling on that motion pending the resolution of Republic’s challenge of the trial court’s ruling that the Republic policy provides $1,000,000 in UM coverage rather than $50,000.

Louisiana Code of Civil Procedure article 966(A)(1) provides that a “defendant’s motion [for summary judgment] may be made at any time.” Finding M & C’s and National Union’s summary judgments were well founded, the trial court granted the motion to facilitate the just, speedy and inexpensive determination which the summary judgment procedure was designed to provide. Thus, the trial court’s grant of the motion for summary judgment was in conformity with the dictates of La. Code Civ.P. art. 966.

Further, the amount of UM coverage afforded by the Republic policy is not at issue in the judgment that is currently being appealed. The issue was whether any act or omission on M & C’s part required that it indemnify Republic for any increase in coverage limits. National Union notes that Republic’s appeal rests on the notion that reversal of the earlier judgment on UM limits would also require a reversal of the judgment now being appealed. This notion is not sound. This Court is not being asked to review the amount of UM coverage afforded by Vanguard’s policy; but is requested to review the trial court’s rulings on the motions for summary judgment 17filed by M & C and National Union. The only issue is whether M & C and National Union owed indemnity to Republic because the UM limits had been increased. That issue was properly decided by the trial court.

DECREE

For the foregoing reasons, the judgment of the trial court granting is affirmed. All costs of this appeal are assessed against appellant, Republic Vanguard Insurance Company.

AFFIRMED.