author:
PAINTER, Judge.
      THIBODEAUX, Chief Judge,

text:
    Maria PALACIOS, et al. v. LOUISIANA & DELTA RAILROAD, INC., et al.
    No. 2005-1168.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 28, 2006.

      Charles Benjamin Landry, New Iberia, LA, for Plaintiffs-Appellants, Maria Palac-ios, et al.
    Leonard L. Levenson, Christian W. Helmke, New Orleans, LA, for Plaintiffs-Appellants, Maria Palacios, et al.
    Leon J. Minvielle, III, New Iberia, LA, for Defendants-Appellees, LIGA and City of Jeanerette.
    Andrew W. Raison, Baton Rouge, LA, for Defendant-Appellee Department of Transportation and Development.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiffs, Maria Palacios, individually and on behalf of her minor children, Jenny Garcia, Jose Garcia, Cynthia Palacios, and Jennifer Palacios, appeal the jury’s finding of no negligence on the part of the City of Jeanerette and the trial court’s denial of their motion for judgment notwithstanding the verdict and/or motion for new trial. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Maria Palacios, individually and on behalf of her minor children, Jenny Garcia, Jose Garcia, Cynthia Palacios, and Jennifer Palacios, filed suit against Louisiana and Delta Railroad, Inc., Mike Pastor, Johnny Sonnier, Kevin McNemar, National Security Fire and Casualty Company, Southern Pacific Transportation Company, Inc., the State of Louisiana through the Department of Transportation and Development (DOTD), the Parish of Iberia, and the City of Jeanerette, alleging that she suffered brain damage and other injuries after the car she was driving was stuck by a train on May 4, 1994 near the intersection of Annie Moore Road and Monnot Road in the City of Jeanerette. The Parish of Iberia was dismissed pursuant to a motion for summary judgment. Louisiana and Delta Railroad, Inc., Mike Pastor, Johnny Sonnier, Kevin McNemar, National Security Fire and Casualty Company, and Southern Pacific Transportation Company, Inc. settled with Plaintiffs prior to trial. The matter proceeded to trial by jury against DOTD and the City of Jean-erette on September 27, 2004. At the close of Plaintiffs’ case, DOTD moved for a directed verdict. The trial court granted DOTD’s motion for directed verdict by judgment signed October 8, 2004. That judgment dismissed Plaintiffs’ case against DOTD with prejudice at Plaintiffs’ costs. Plaintiffs appealed only the award of costs against them, and we affirmed the judgment of the trial court assessing DOTD’s court costs against | ^Plaintiff. See Palacios v. La. & Delta R.R., Inc., 05-590 (La.App.12/30/05), 918 So.2d 561.

With respect to the City of Jeanerette, Plaintiffs argued that it was negligent because of its alleged failure to require and/or install warning lights, signals, and barriers at the crossing; failure to place adequate and sufficient warning devices at the crossing; and failure to maintain the intersection by keeping it free from overgrown vegetation. Following the trial, the jury returned its verdict that the City of Jeanerette was not negligent. Plaintiffs filed motions for judgment notwithstanding the verdict and for new trial. Plaintiffs’ motions were based on their assertions that the jury’s verdict was inconsistent because, even though the jury answered the question as to whether the City of Jeanerette was negligent in the negative, the jury assigned twenty percent of fault to the City of Jeanerette. Apparently, the jury had some question as to whether or not they were to proceed further on the jury interrogatories after they answered that the City of Jeanerette was not negligent and returned to the courtroom for clarification. Both motions were denied by the trial court. This appeal followed.

DISCUSSION

Although Plaintiffs specify nine assignments of error, there are essentially two issues presented. First, Plaintiffs contend that the trial court erred in denying its motions for judgment notwithstanding the verdict and for a new trial based on the testimony of Plaintiffs’ witness, Dr. Olan Dart. Secondly, Plaintiffs contend that the jury rendered an inconsistent verdict.

Plaintiffs contend that the testimony of their expert, Dr. Olan Dart, was uncontradicted, and if accepted as true, reasonable minds could not differ in reaching the conclusion that the City of Jeaner-ette was negligent. Dr. Dart was accepted as an |sexpert in the areas of highway design, traffic engineering, traffic safety, and civil engineering. In sum, Dr. Dart opined that the crossing at issue was under the control of the City of Jeanerette and was unreasonably dangerous due to the faulty placing of warning signs as well as the presence of excessive vegetation.

Plaintiffs contend that Dr. Dart’s testimony was uncontradicted since neither DOTD nor the City of Jeanerette presented any expert testimony. However, the City of Jeanerette contends that it did not need to produce expert testimony because the Plaintiffs failed to meet their burden of proof and that Dr. Dart contradicted himself on cross-examination. The City of Jeanerette points to the following testimony of Dr. Dart on cross-examination:

Q: Ok. So it would be unfair for this jury to believe that she had an obligation to protect her own safety only if she saw a train, because she has that obligation regardless of whether a train is coming or not?
A: If she is aware of the situation she’s in, that’s correct.
Q: Well, she can make herself aware by slowing and looking. That’s her duty, is to show and look, isn’t it?
A: That’s what it says.
Q: Yes sir. And she shouldn’t proceed without looking and being certain that there is not a train coming. That’s the law.
A: That’s correct.
Q: Now, isn’t it true, had she done that, we wouldn’t be here today?
A: If she realized that she was approaching and did that, that’s correct. Q: Right. She had the signs out there, the horn was on the train, the light was on the train. The other two prongs did their part. If she had done her part we wouldn’t be here, would we?
A: That’s correct.

The City of Jeanerette also points to testimony by Dr. Dart that Palacios did not testify that her vision was obscured by brush. Johnny Sonnier, who was in the cab 14of the train at the time of the accident, also testified. According to his testimony, he had a clear sight of the vehicle as it approached the track. He saw the headlights of Palacios’ vehicle, and the vehicle never slowed down or stopped. Furthermore, the City of Jeanerette recites the testimony of the train engineer, Kevin McNemar, that when he exited the train and approached the vehicle after the accident, he heard the car’s radio blaring from six to eight car lengths away.

In Darbone v. State, 01-1196, pp. 3-4 (La.App. 3 Cir. 2/6/02), 815 So.2d 943, 947, writ denied, 02-0732 (La.5/31/02), 817 So.2d 94, this court noted:

In Broussard v. Stack, 95-2508, pp. 14-16 (La.App. 1 Cir. 9/27/96); 680 So.2d 771, 779-81 (citations omitted), the court considered the standards of appellate review for the denial of a motion for JNOV, grant of a motion for JNOV, and denial of a motion for new trial, holding:
In ruling on a motion for judgment notwithstanding the verdict (JNOV) under LSA C.C.P. art. 1811, the trial court is required to employ the following legal standard: A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue. The trial judge must construe the evidence and make inferences in favor of the party opposing the motion. Additionally, in applying this standard, the court cannot weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. If there is substantial evidence opposed to the motion of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion must be denied. Stated more simply, a trial court can grant a JNOV only when a jury’s verdict is one which reasonable people could not have rendered; if reasonable persons could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper.
The standard to be applied by the appellate courts in reviewing the grant or the denial of a JNOV is whether the trial court’s findings in rendering the JNOV were manifestly erroneous.
• • •
The motion for new trial requires a less stringent test than for a JNOV in that such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. In considering a motion for new trial, the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness.

In ruling on Plaintiffs’ motion for judgment notwithstanding the verdict, the trial court was required to determine whether the evidence viewed in the light most favorable to the City of Jeanerette pointed so strongly and overwhelmingly in favor of Plaintiffs that reasonable persons could not arrive at a contrary verdict on the issues of whether the City of Jeanerette engaged in negligent conduct, and whether the railroad crossing at issue was an unreasonably dangerous condition or created an unreasonable risk of harm. The jury did hear testimony that Palacios’ vision was not obscured by brush, that the advanced warning sign and cross buck sign were in place, and that the train’s lights and whistle were operating at the time of the accident. The trial court, in its written reasons for denial of the motion for judgment notwithstanding the verdict, stated that “based upon the testimony at the trial reasonable minds could reach the decision that the Plaintiff did not see the train nor stop for the train and was not obscured and could have seen the train had she looked.” We agree. Given the testimony and other evidence presented herein, there was a reasonable basis for the jury’s findings, and we are not convinced that reasonable persons could not arrive at any verdict other than one in favor of Plaintiffs. Thus, we cannot say that the trial court’s denial of Plaintiffs’ motion for judgment notwithstanding the verdict was manifestly erroneous. For these same reasons, we find no error in the trial court’s denial of Plaintiffs’ motion for a new trial.

| ^Plaintiffs’ remaining assignments of error deal with their contention that the jury’s verdict was inconsistent. This contention is based on Plaintiffs’ assertion that although the jury answered the first two questions on the jury verdict form regarding whether the City of Jean-erette was negligent and whether the crossing was unreasonably dangerous in the negative, they went on to assign twenty percent of the fault to the City of Jean-erette. Plaintiffs argue that judgment should be entered finding the City of Jean-erette twenty percent at fault and awarding damages to Plaintiffs in accordance with such a finding. We find these arguments to be without merit.

Sometime after deliberations began, the jury returned to the courtroom for clarification of the instructions on the jury sheet. The trial court noted, “some of it [the verdict form] is filled out. It’s not signed. And there is a note about whether they have to figure this [the percentages of fault] out.”

The jury verdict form, in pertinent part, read as follows:

1. Did the City of Jeanerette engage in negligent conduct?
YES_ NO_
2. Do you find the City of Jeanerette breached its duty to Maria Palacios because a roadway, signage, or obstruction under its control was defective and created an unreasonable risk of harm?
YES_ NO_
(IF YOU ANSWER “NO” TO ALL QUESTIONS ABOVE, YOU ARE FINISHED. SIGN THE VERDICT FORM AND RETURN TO THE COURTROOM. IF YOU ANSWER “YES” TO ANY OF THE ABOVE, ANSWER THE OTHER QUESTIONS.)

Apparently, when the jury returned to the courtroom, they had answered both of the above questions in the negative but had filled in twenty percent for the City of Jeanerette in response to the question concerning the degree of fault assignable to 17each party. The jury’s question was whether or not it had to complete the form. The judge instructed them to read the instructions after question two. The jury then returned to the jury room and completed the form according to the instructions thereon. At that point, they erased any answers to questions after question two, signed the form, and returned to the courtroom. The verdict was read aloud, and counsel for Plaintiffs requested that the jury be polled. The verdict was found to be unanimous.

Plaintiffs contend that the jury was confused by the verdict form and the concept of negligence such that the verdict rendered by the jury was unreliable and inconsistent with the facts and evidence in this matter. The trial court denied the Plaintiffs’ motions for judgment notwithstanding the verdict and for a new trial based on jury confusion because it did not find that the jurors were confused as to their final verdict after further instructions by the court. We agree.

“[A] verdict based on the interrogatories should not be set aside unless the form prevented the jury from reaching a legally correct verdict.” Chatelain v. Rabalais, 04-28, p. 14 (La.App. 3 Cir. 7/7/04), 877 So.2d 324, 334 (citing Campbell v. Hosp. Serv. Dist. No. 1 Caldwell Parish, 37,876 (La.App. 2 Cir. 12/10/03), 862 So.2d 338, writ denied, 869 So.2d 852 (La.3/19/04)). Misleading or confusing interrogatories may constitute reversible error, but the manifest error standard of appellate review still applies except where the jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3 Cir.1991). From our review of the record, we do not find that to be the case here since the questions on the jury verdict form and the instructions that follow are neither confusing nor misleading. And, furthermore, had the trial judge done more than tell the jury to read the instructions, |Rhe might have run afoul of La.Code Civ. P. art. 1791 which 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.”

DECREE

The judgment of the trial court is affirmed in all respects. Costs of this appeal are taxed against Plaintiffs-Appellants, Maria Palacios, individually and on behalf of her minor children, Jenny Garcia, Jose Garcia, Cynthia Palacios, and Jennifer Pa-lacios.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hMy principal disagreement focuses on the manner in which the trial court handled the inconsistent answers on the jury verdict form. The majority concentrates on the law regarding a deficiency in the jury verdict form. That focus is misplaced. The attorney for the plaintiffs conceded during oral argument that the form was approved and was not defective. It is the procedure followed by the trial court which allowed for this inconsistent verdict.

The cases relied upon by plaintiffs, namely, Parliman v. Kennelly, 520 So.2d 445 (La.App. 5 Cir.1988) and Miley v. La. Farm Bureau Cas. Ins. Co., 599 So.2d 791 (La.App. 1 Cir.1992) are not quite on point but are instructive. In Miley, the jury was given instructions on at least two occasions with regard to the inconsistency and the matter was resubmitted to the jury. After this was done, the jury still attributed ten percent fault to one of the tortfea-sors but failed to find that his conduct was a cause-in-fact of the accident. This inconsistency was error. In Miley, the jury was reinstructed twice. Here, the trial judge simply told the jurors to reread the instruction previously given on the jury verdict form after question number 2. In Parliman the jury verdict form was returned with inconsistent answers and had been | ¡.signed, i.e., completed. In this case, the jurors requested guidance on the form before the final signed copy was given to the trial judge. Nonetheless, in both Par-liman and Miley, the answers to the jury verdict form questions were inconsistent. Similarly, the answers in this case were inconsistent, but we are left to wonder whether the jury attributed twenty percent to Jeanerette before answering questions 1 and 2, or whether those questions were decided first by the jury before the assessment of fault.

Upon determining reversible error in the inconsistent answers on the jury verdict form, I would proceed to a review of the propriety of the denial of the JNOY.

The plaintiffs’ expert testified that excessive vegetation obscured the plaintiffs view and the crossing had inadequate signage. There was nothing to show that the uncontradicted testimony of Dr. Dart, the expert, was unreliable. While Johnny Sonnier testified that he could see the plaintiffs vehicle, his testimony did not demonstrate that the plaintiff could see the train. The testimony by the defendant’s witness shows the plaintiffs negligence and the cross-examination of Dr. Dart shows some negligence on the plaintiff. I do not feel, however, that her negligence was one hundred percent and that Jeaner-ette should be completely exculpated. The City of Jeanerette was at least partially at fault, and twenty percent was a reasonable assessment.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rennada RAMEE.
    No. 05-CA-748.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 9, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Laura Schneidau, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for PlaintiffAppellee.
    Stephen G. Ritterbush, Harvey, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and FREDERICKA HOMBERG WICKER.
   JAMES L. CANNELLA, Judge.

| ¡.The Appellants, Westbank Bail Bonds (WBB) and International Fidelity Insurance Company (IFIC) appeal from a judgment denying their Motion to Set Aside the Judgment for Bond Forfeiture. We affirm.

The Defendant, Rennada Ramee, was arrested and charged with theft of goods, valued between $100 and $500, a violation of La.R.S. 14:67.10. A commercial bond was set in the amount of $3,500. On June 3, 2004, the bond was posted by WBB, agents of IFIC. The Defendant’s address on the bond was 4118 St. Bernard Avenue D, New Orleans, Louisiana. Arraignment was first set for July 19, 2004 and then reset for July 7, 2004. The return on the notice of the hearing date stated “not at this address per occupant.” When the Defendant failed to appear on July 7, 2004, the State filed a motion for forfeiture of the bond. The trial | ¿judge granted the motion, the bond was forfeited, and notice was mailed to the Appellants, postmarked July 13, 2004.

On January 7, 2005, the Appellants filed a Motion to Set Aside the Judgment for Bond Forfeiture. A hearing was held on February 3, 2005. The motion was denied by the trial judge on February 13, 2006.

On appeal, the Appellants argue that the trial judge erred in denying their motion to vacate the judgment of bond forfeiture on the basis that the Appellants failed to pay transportation costs pursuant to La. C.Cr.P. art. 345 D.

In this case, the Appellants sought to have the bond forfeiture set aside based on La.C.Cr.P. art. 345 D, which states:
D. If during the six-month period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion in summary proceeding within the six-month period.
(2) The defendant’s sureties produce to the court adequate proof of defendant’s incarceration, or the officer originally charged with defendant’s detention verifies the defendant’s incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the six-month period at the time the defendant or the surety files the motion, shall be deemed adequate proof of the defendant’s incarceration.
, (3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s | ¿detention prior to the defendant’s return ....
⅝ * * ⅜ ⅜
F. When the defendant has been surrendered in conformity with this Article or a letter of verification of incarceration has been issued to the surety as provided for in this Article, the court shall, upon presentation of the certificate of surrender or the letter of verification of incarceration, order that the surety be exonerated from liability on his bail undertaking and shall order any judgment of forfeiture set aside....

The trial judge denied the motion to set aside the judgment because the Appellant failed to comply with the third requirement of C.Cr.P. art. 345 D. Paragraph (3) requires the surety to pay costs to the officer originally in charge of a defendant, in this case, the Jefferson Parish Sheriffs office, for transporting the defendant to that parish (Jefferson) from another jurisdiction (Orleans Parish). The Appellants argue that it should not have to pay transportation costs since the Defendant was no longer incarcerated in Orleans Parish when the motion was filed, and thus, no transportation costs were incurred.

We agree with the Appellants that transportation costs are not owed when the defendant is not incarcerated, since the original officer in charge did not incur costs to transport the defendant from another parish jail. However, the Appellants are still not entitled to relief because La. C.Cr.P. 345 is not applicable to these facts. The statute applies to circumstances in which a defendant who fails to make a court appearance cannot be surrendered by the surety because the defendant has been subsequently incarcerated and is still in jail. See: State v. International Fidelity Ins. Co, 32-838 (La.App. 2nd Cir.3/1/00), 756 So.2d 565, 566. In the absence of any other applicable defense to the surety’s obligation on the bond, we Ififínd that the trial judge did not err in denying the motion to vacate the bond forfeiture.

Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . This Court dismissed the Appellants’ appeal on February 3, 2006 because there was no written judgment rendered in the case. The Defendant subsequently obtained a written judgment and filed a timely motion for rehearing which we granted. The case was reset on our next available docket.

      . See also La.R.S. 15:85, 15:87 and C.Cr.P. 345 A. La.R.S. 15:85(5) provides that the defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties are also entitled to bring defenses and nullity actions pursuant to C.Cr. P. art. 345 and R.S. 15:87 by use of summary proceedings within six months from mailing the notice of the signing of the judgment of bond forfeiture. R.S. 15:87 A. prohibits the forfeiture of an appearance bond if it is shown the defendant is prevented from attending because of physical disability, illness, injuiy, or he is being detained in the jail or penitentiary of another jurisdiction. La.C.Cr.P. art. 345 A. also releases the surety from any obligation under the bond, if the defendant is surrendered at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond.

      . The Appellants complied with C.Cr.P. art. 345 D, D(l) and D(2). The Defendant was incarcerated for two days, from December 15, 2004 through December 17, 2004, four months after the bond was forfeited. On January 7, 2005, three weeks after the Defendant’s release from incarceration, the Appellants filed its motion to set aside the judgment. Both events occurred within the six month period provided for in C.Cr.P. art 345 D and D(l). In addition, the Appellants satisfied C.Cr.P. art. 345 D(2) by filing a letter from the Orleans Parish Sheriff's Office verifying that the Defendant had been incarcerated for those two days in December of 2004.

      . The incarceration defense in La.R.S. 15:87 relates to the defendant’s failure to appear in court for a court set proceeding because the defendant is in jail on that date. La.C.Cr.P. art. 345 applies to a subsequent incarceration, which bars the surety from bringing the defendant back to the officer originally in charge of the defendant.


author: FREDERICKA HOMBERG WICKER, Judge. ROTHSCHILD, J.,

text:
    Raymond Julius WILDE, Jr. and Lynn Marie Bercegeay Wilde, each Individually and as Members of Community of Acquets and Gains Existing Between Them v. Thomas R. HARRELL, ACME Truck Line, Inc., Zurich American Insurance Company and Progressive Security Insurance Company.
    No. 05-CA-644.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 9, 2006.

      Steven P. Lemoine, Robert H. Schmolke, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Jason A. Bonaventure, Shelly D. Dick, Amanda G. Clark, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

I ¡.In this personal injury case, plaintiffs appeal the grant of a summary judgment filed by defendant, State of Louisiana through the Department of Public Safety. For the following reasons, we reverse.

The underlying action was filed by plaintiffs, Raymond and Lynn Wilde, as the result of an automobile accident. The petition alleges that, at about 11:40 p.m. on May 12, 2001, Raymond Wilde was driving a car westbound on Interstate 10 in St. James Parish. Lynn Wilde was a passenger in the vehicle. The Wildes’ vehicle was struck in the rear by a van driven by Thomas Harrell, leased to Acme Truck Line, and insured by Zurich American Insurance Company. All three were made defendants. In two supplemental and amending petitions, plaintiffs added three more insurance companies, Wandalia Lit-tlefield and the State of Louisiana, [3through the Department of Public Safety and Corrections (DPS). Allegations against the State are that a Louisiana State Police Officer failed to use reasonable care when he blocked both lanes of traffic on Interstate 10 to facilitate the removal of a disabled school bus parked on the side of the road. Plaintiffs allege this negligence was a cause of plaintiffs’ injury.

Extensive discovery was conducted by all parties and ultimately a settlement agreement was reached among plaintiffs and all defendants, with the exception of DPS, on March 17, 2003.

Subsequently, DPS filed a motion for summary judgment. In the motion, DPS refers to the depositions and affidavits of witnesses, both fact and expert, to support its contention that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Plaintiffs opposed the motion, alleging that the issue of whether the State Trooper’s actions were “reasonable” under the circumstances is an issue of genuine fact remaining to be decided. Both parties attached exhibits to the memoranda which are comprised of several volumes of testimony.

After considering the motion and the exhibits, the trial court rendered summary judgment in favor of DPS and dismissed the entire matter “inasmuch as the State of Louisiana through the Department of Public Safety was the last remaining defendant in these proceedings.” It is that judgment which is the basis of this appeal.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of 14Iaw. La. C.C.P. art. 966(B). That article further provides that the party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

As explained by our Supreme Court;

A fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. ‘[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.’ Simply put, a ‘material’ fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits, (citations omitted)
Smith v. Our Lady of the Lake Hosp., Inc., 93-C-2512 (La.7/5/94), 639 So.2d 730, 751.

It is well settled that our review of summary judgments is to be done de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715. A summary judgment is not a substitute for a trial on the merits. Western v. Stoot, 05-186 (La.App. 5 Cir. 10/6/05), 916 So.2d 1195. Thus, it is an underlying principle in consideration of motions for summary judgment that no credibility determinations can be made when conflicting evidence exists. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

The judgment under consideration in this appeal is accompanied by written reasons in which the trial court stated;

| sThe question before this court is not whether Trooper Holley could have acted differently or whether there were better options available to him, but only whether his actions were reasonable given the totality of the circumstances .

The written reasons for judgment provide a review of the facts considered by the trial court and ultimately the court concluded:

Given the facts as stated above, the question before the court is whether it was reasonable for Trooper Holley to close both lanes of Interstate 10 westbound by himself at night, in order to remove the disabled school bus from the shoulder area. The opposition to the motion for summary judgment has presented evidence that alternatives to Trooper Holley’s actions included waiting until daylight to remove the bus from the shoulder of the road, closing only one lane of traffic, using flares to alert to give advance warning to travelers, or to position an additional police vehicle further in advance of where the bus was demobilized in order to give travelers an advance warning to slow down. While the court takes note of the fact that there were other alternatives available to Trooper Holley, this court cannot say from the evidence presented to it, and in light of the Supreme Court’s decision in Syrie v. Achilhab, (sic) that Trooper Holley’s actions were inherently unreasonable in light of the circumstances surrounding the situation, or that the risk of stopping traffic to remove the disabled school bus was any greater than leaving the stranded vehicle on the shoulder of the road until daylight. The court therefore finds that Trooper Holley acted in a reasonable manner in stopping both lanes of Interstate traffic on the night in question .

We find it clear that the trial court made inappropriate factual determinations in its consideration of the motion for summary judgment. The issue before the trial court was simply whether a genuine issue of fact was still undetermined, not whether the trooper acted reasonably. Whether a duty is owed is a question of law. However, whether defendant has breached a duty owed is a question of fact. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993).

The case relied upon by the trial court is Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. In that case the Supreme Court reversed a finding by the appellate court on the factual issue of negligence on the part of a state trooper in an automobile accident. That case, while instructive in the ultimate decision to be made by the trier of fact, is inapplicable here on a motion for summary |ftjudgment. It was an appeal from a full trial on the merits with a different standard of review, where the trial court makes a finding of fact that may not be set aside in the absence of manifest error.

For the foregoing reasons, the trial court’s judgment is reversed and the matter is remanded.

REVERSED AND REMANDED.

ROTHSCHILD, J., dissents with reasons.

ROTHSCHILD, J.,

dissenting.

lil have considered the opinion of the majority and I strongly disagree. After reviewing the record and the pertinent caselaw, I do not believe that there are any genuine issues of material fact in dispute, thus requiring credibility determinations and precluding summary judgment. The parties do not dispute the facts of how Trooper Holley stopped the traffic or how the accident occurred. Rather, my reading the arguments of the litigants indicates that they disagree as to whether the undisputed facts show that Trooper Holley’s actions were reasonable or unreasonable under the circumstances.

Plaintiffs contend that when an officer is not making an arrest or 4th Amendment seizure and is not faced with exigent circumstances, the trial court should consider what safer or better alternatives were available to the officer, in order to determine if the officer’s actions were reasonable under the “totality of the circumstances.” However, this assertion is not supported in the law.

A law enforcement officer has a duty to regulate traffic and to exercise this obligation reasonably under the circumstances to protect the public. In Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1177, the Louisiana Supreme Court stated that the scope of an officer’s duty does not extend so far as to require that the officer choose the best method of approach, so long as his actions are reasonable under the totality of the circumstances.

In the present case, after the tow truck driver advised him that it would take both traffic lanes to remove a bus from the shoulder of the road, Trooper Holley decided to halt both westbound lane of I — 10. In Trooper Holley’s deposition, he testified that a trooper is permitted to stop traffic on an interstate alone, and no evidence was presented to the contrary. Trooper Holley also testified that he believed the broken bus needed to be removed from the shoulder because it posed a hazard. Plaintiffs expert admitted that it “could be a possible hazard.”

Trooper Holley slowed traffic and then stopped it with his blue bar lights flashing. Drivers of vehicles behind the trooper’s unit testified that the trooper’s flashing lights and the brake lights of the stopped vehicles were clearly visible. There was no evidence presented that Trooper Holley’s actions were not in conformity with accepted traffic control practices or regulations. Although alternative methods of removing the bus may have been available, I believe that the undisputed facts show that Trooper Holley’s actions in stopping both lanes of traffic by himself at night were not unreasonable.

Under LSA-C.C.P. art. 966(C)(2), if the movant does not bear the burden of proof at trial, the movant can satisfy its burden on a motion for summary judgment by pointing out to the court that there is an absence of factual support for plaintiffs’ claims. In this case, at the very least, DPS has shown an absence of support for plaintiffs’ claims against DPS, because the undisputed facts do not establish that Trooper Holley’s actions were [.-¡unreasonable. Accordingly, I believe that the summary judgment granted in the trial court in favor of DPS should be affirmed.

      . The insurance companies added were Progressive Security Insurance Company, Great American Assurance Company, and Zurich American Insurance Company of Illinois. Wandalia Littlefield is alleged to be the actual owner of the vehicle Harrell was driving.


text:
    STATE of Louisiana v. Byron L. DAVIS.
    No. 05-KA-987.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 9, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Ken Dohre, William C. Credo, Assistant District Attorneys, Parish of Jefferson, Gret-na, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   JAMES L. CANNELLA, Judge.

bThe Defendant, Byron Davis, appeals from his conviction of second degree murder and sentence to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we reverse and remand.

On January 30, 2003, the Jefferson Parish Grand Jury indicted the Defendant with the second degree murder of Kem-mione Lee (Lee) in violation of La. R.S. 14:30.1. The Defendant was arraigned on February 5, 2003 and pled not guilty. The Defendant’s motion to suppress evidence, statement, and identification was heard and denied on June 4, 2004.

On July 14, 2004, a Prieur hearing was held after which the trial court denied the State’s motion to introduce evidence of other crimes. On November 15, 2004, the trial court granted the State’s motion to admit the victim’s dying 13declaration and denied the Defendant’s motion in limine to exclude photographs. The Defendant filed a writ application with this Court regarding the denial of his motion in li-mine which was denied on December 2, 2004. On January 11, 12, and 13, 2005, the case was tried by a 12-person jury.

At trial, Dr. Fraser MacKenzie, a forensic pathologist with the Jefferson Parish Coroner’s Office and an expert in the field of forensic pathology, testified that Lee died on January 16, 2000 at 3:00 a.m. of a gunshot wound to the right chest with perforating wounds to the liver and stomach.

Jarvis Wells (Wells) testified at trial that, on January 15, 2000, at approximately 10:00 p.m., he and Lee ran some errands, including a stop at a house on Wilker Neal Street. Afterwards, they went to Lee’s mother’s apartment on Idaho Street in Kenner so Lee could get some clothes to take to his girlfriend’s house. Wells went into the apartment with Lee, but later left to wait for him in the car. When Wells got to the car, a man with a chrome gun came from behind the bushes, grabbed him, told him, “[c]ome here; don’t move,” and asked him for his brother’s whereabouts. Wells told the man that he did not know what he was talking about, and the man then escorted him back through the gate. Wells testified that, when they got back to the apartment, the man and Lee made eye contact, and Lee said, “[b].. tch,” “like he knew who it was.” Wells further testified that Lee tried to run back into the house, but that the man shot Lee one time, threw him (Wells) to the ground, and ran. Wells lay there until Lee told him to go and call an ambulance and the police.

Wells testified that the man who shot Lee was dressed in black and had a black rag tied around his head. He explained that he could see the man’s face, but |4that he was not really paying attention because he was being held at gunpoint. Wells testified that the only thing he could see was that the man had “two golds [teeth] in his mouth spaced apart.”

Wells testified that he ultimately looked at five separate photographic lineups containing six pictures in each lineup. Although he could not identify anyone in the first four lineups, he tentatively identified the Defendant in the fifth photographic lineup on February 17, 2000. On the back of the fifth photographic lineup, Wells wrote, “[t]his may be the person that shot Kemmy.” Wells indicated to Detective Shaun Watson that he would have been more certain of his identification if he could have seen the gold teeth. Wells looked at the Defendant in the courtroom and noted that he did not have any gold teeth.

Officer Adolph Federico of the Kenner Police Department testified that he responded to a shooting that was approximately a block away. He arrived at the scene and saw Lee lying on his back, noting that he was bleeding from an abdominal wound. Officer Federico asked Lee several times who shot him, and Lee repeatedly responded that it was “a dude in a white escort.”

Joshua Williams (Williams) was called by the State as a witness at trial; However, he asserted his Fifth Amendment privilege not to testify.

Vincent Paciera, Jr. (Paciera), a Jefferson Parish assistant district attorney, testified that, on January 13, 2003, he was present at a court proceeding in which Williams pled guilty. Paciera indicated that Williams had also been charged with second degree murder in this case, but that he pled guilty to manslaughter and gave a note of evidence under oath. Paci-era testified that, as part of this guilty plea, Williams was given five years imprisonment and had agreed to testify truthfully against the Defendant.

| HPadera testified that Williams stated during the plea colloquy that he was with the Defendant (who was also known as “Head”) on January 15, 2000, and that he went with the Defendant to an Idaho Street address. According to Paciera, Williams stated that he and the Defendant went to buy drugs from Lee, that they were in a white car, and that when they got to the Idaho Street address he stayed in the car and used heroin while the Defendant got out of the ear to go and see Lee. Paciera also testified that Williams said that he heard one shot and then saw the Defendant run back to the car. When the Defendant got back to the car, Paciera testified that Williams said that the Defendant told Williams that he had shot Lee and that the Defendant had a gun with him before he got out of the car and when he came back to the car.

Paciera explained that if he thought anything in the transcript of the plea was false, he would tell the jury. He added that he would not be allowed by law to take false testimony.

The State called several witnesses who provided background information surrounding the events of January 15, 2000: Stella Womack (Womack), Timothy Rainwater (Rainwater), Timothy Ivey (Ivey), and Viva Henderson (Henderson).

Womack testified that, on January 15, 2000, she was dating Williams. She stated that she saw Williams between “7:00 and 8:00,” leave the “Washington area” with people she knew as “Head” and “Baby Pooch,” and that Williams told her that they were going to his brother’s house on Idaho Street. She did not know “Head’s” real name but described him as having gold teeth on both sides of his mouth. Womack was shown a photographic lineup and positively identified the Defendant as the person she knew as “Head.”

Rainwater testified that he was also known as “Baby Pooch.” He stated that, on January 15, 2000, Williams told him that he was going by “his people’s house” _[gin Kenner. Rainwater wanted to catch a ride, so he got into a white car with Williams and two other men. Williams told Rainwater that he could not ride with them, so Rainwater exited the vehicle and caught a bus to Kenner, where he later saw the same men in a white car drive by at about 7:00 p.m. He positively identified the Defendant in court as the person he knew as “Head.”

Ivey testified that, on January 15, 2000, he was outside on Wilker Neal Street with other people between 10:00 p.m. and 11:00 p.m. when he saw Lee drive up in a car with another man. Lee got out of the car, dropped $600 of drugs, picked them up, and went inside the house. Williams went inside the house. Ivey further testified that he saw a man dressed in black standing by a white car on Wilker Neal Street.

Henderson testified that she was the Defendant’s former girlfriend, the mother of his child, and that she allowed the officers to search her residence at 3721 Thalia Street, Apartment D. Detective Shaun Watson of the Kenner Police Department testified that, during the search of Henderson’s apartment, evidence was recovered, including three photographs showing the Defendant holding a gun, that were found on a dresser in the bedroom. Detective Watson also found a box of .45 caliber ammunition in Henderson’s closet and two black leather jackets. Henderson contradicted testimony by the Defendant’s mother regarding being in Florida with the Defendant on the day of the shooting. She also testified that the Defendant had gold teeth on both sides of his mouth.

Detective Watson testified that, on February 14, 2000, he advised the Defendant of his rights and interviewed him, but did not take a recorded statement. He asked the Defendant if he knew “Josh,” and the Defendant told him that name did not sound familiar, but that did not mean he did not know him. The Defendant also told him that he had never been to Ken-ner. Detective Watson stated that, on 17August 2, 2002, he took another statement from the Defendant. The Defendant told him that he had read about the homicide in Kenner, but he denied ever being in Kenner, and he also denied knowing Williams and Womack.

Detective Watson testified that he showed Wells a photograph seized from Lee’s mother, and that Wells identified Ivey in the photograph as a person that he saw on Wilker Neal Street. He further testified that Wells told him in a second interview that he had seen Ivey talking to the man dressed in black on Wilker Neal Street.

Tim Scanlan (Scanlan), a forensic scientist for the Jefferson Parish Sheriffs Office crime laboratory and an expert in the field of forensic science and firearm examination, testified that he examined the casing recovered from the crime scene and the projectile recovered from Lee. He indicated that the casing was a Remington Peters .45 caliber auto fired cartridge case, and that it was consistent with being fired from a .45 caliber semi-automatic pistol. He determined that the jacket of the projectile was consistent with .45 caliber class ammunition, and that the projectile was most likely fired from a Ruger.

Scanlan reviewed enlargements of the photographs showing the Defendant holding a gun and testified that the gun shown was consistent with a Ruger semi-automatic pistol. He explained that the gun in the photographs could have been a 9 millimeter, a 40 millimeter or a .45 caliber weapon. Scanlan testified that the ammunition used in the shooting and the ammunition seized from Henderson’s apartment were the same caliber and manufacturer (Remington Peters) but were two different models.

After the State rested its case, the defense called as a witness, Louise Walzer (Walzer), the assistant director and senior firearms examiner for the Jefferson |sParish Crime Lab and an expert in the field of ballistics and firearm identification, who testified that, after examining the casing found at the scene, the projectile taken from Lee, and the photographs Scanlan had enhanced, she agreed with Scanlan’s findings. Walzer also believed, as Scanlan did, that the gun shown in the photograph was probably a Ruger; however, she, like Scanlan, was unable to determine the caliber of the gun.

Jennifer Davis (Davis), the Defendant’s mother, provided an alibi for the Defendant. She testified that she lived in Jacksonville, Florida, and that the Defendant and Henderson visited her there from January 14, 2000 to January 21, 2000. She explained that they were there to visit because her mother was ill and for a birthday party for her grandson.

Shantell Arnold (Arnold) testified that she was the Defendant’s aunt, and that she was formerly employed at Metro Security as a security guard. She claimed that the gun that the Defendant was holding in the photographs was a 9 millimeter Ruger that belonged to her, that it was issued to her in connection with her duties as a security guard, and that she asked the Defendant to show her how to clean it, although she could not remember when that was. Arnold testified that she was present when the Defendant was cleaning the gun and when one of the photographs was taken, and that the Defendant did not have her gun on January 15, 2000.

After hearing the testimony and considering the evidence, the jury found the Defendant guilty as charged. The Defendant’s motion for post-verdict judgment of acquittal was denied on January 13, 2005. On February 4, 2005, the Defendant’s motion for new trial was denied. On that same date, the Defendant waived sentencing delays, and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On February 1 fl22, 2005, the Defendant filed a motion for appeal that was granted. On appeal, the Defendant assigns three errors.

All of the Defendant’s assignments of error relate to the admission into evidence of an alleged co-defendant’s, Joshua Williams’, statements made in a separate proceeding when he pled guilty to manslaughter as part of a plea agreement in exchange for a five year sentence. The evidence was admitted by three different methods over the objections of defense counsel.

First, Williams was called to the stand by the State and he immediately asked the court for an attorney. The trial court refused the request. The prosecutor asked Williams if he pled guilty to manslaughter for the killing of Lee. Williams refused to respond. Williams indicated that he would like “to plead the fifth.” After two more similar exchanges the trial court instructed Williams to answer the questions. He again refused. Then, out of the presence of the jury, the trial court advised Williams that he would be held in contempt if he refused to answer the questions.

Williams told the trial court that he was not going to answer the questions without a lawyer being present. The prosecutor then pointed out that he did not believe Williams understood that he did not have the right to an attorney because he was not incriminating himself. He noted that all of the questions regarding Williams’ conviction were in public records, and that he would get those records and show those to Williams. The prosecutor further stated that every time Williams did not answer a question he would move for a contempt order and add six months to Williams’ current sentence.

The trial judge again told Williams that he had to answer the questions. Williams refused, saying he needed a lawyer. The trial judge repeated that he did not have a constitutional right to a lawyer in this situation. Defense counsel stated |10that the witness deserved counsel since he invoked his right to the Fifth Amendment. The trial judge told Williams that he was not being asked any questions where he would be incriminating himself. Williams stated that he was going to refuse to answer any question that was asked of him that day. The trial judge said that they would take a recess in order to find an Indigent Defender Board (IDB) lawyer. After more discussion, the prosecutor asked for a recess to speak to Williams, which the trial judge granted.

After the recess, the trial judge ordered Williams, at the prosecutor’s request, to answer the questions under La.C.Cr.P. art. 439.1 , without the jury present at first, to see which questions he would answer. The prosecutor asked Williams if he was going to answer questions and Williams responded again that he wanted to “plead the Fifth and get a state lawyer.” Williams said that it was his intention not to answer any further questions by the State and that he was going to disobey the trial judge’s order. The prosecutor then asked the trial judge to take judicial notice of the pleadings in State v. Joshua Williams, 00-5112, Division “K” of the 24th [nJudicial District Court. Defense counsel argued that, if Williams was invoking the Fifth Amendment, then he was being denied the right of confrontation if that statement was admitted into evidence and that he had no way to cross-examine Williams because he was not present when that statement was taken.

The trial judge said that he did not think the prosecutor was going to introduce that statement into evidence. The prosecutor responded that he was going to ask Williams questions from his prior testimony, and the trial judge agreed he could do so. The jury was then brought back into the courtroom. Williams testified that he did not intend to answer any questions. The trial judge granted the prosecutor the right to treat Williams as a hostile witness. Then, the prosecutor again asked Williams whether he was the same individual who had pled guilty to manslaughter in case number 00-5112 in Division “K” of the 24th Judicial District Court. Williams did not respond and told the trial judge he refused to answer the question. Defense counsel objected to this line of questioning, noting that he had no way of confronting the witness, and that the inferences being drawn by his taking the Fifth Amendment could be harmful to the Defendant.

The prosecutor responded that defense counsel’s right of confrontation was not being denied, and that he had the right to ask Williams questions. The trial judge agreed. The prosecutor then asked the trial court for an opportunity to research this issue, and the trial judge refused, stating that it had taken too long to get where they were. The prosecutor noted his objection and continued questioning Williams. At this point, the prosecutor began questioning Williams about his personal involvement and his knowledge of the Defendant’s involvement in the shooting of Lee, by reading each line of what was said at the guilty plea proceedings, and asking Williams after each sentence whether he denied making the statement. Williams refused to answer each question. Defense counsel’s | ^attempts to cross-examine Williams were met with the same refusal to respond as were the State’s attempts to question him. Williams refused to answer any questions.

After numerous questions had been posed, the trial judge told counsel to approach, and that there had to be a point at which he could not give Williams any more “contempts.” After the jury was excused for the day, the trial judge found Williams in contempt of court and sentenced him to 20 counts of contempt with six months on each count to run consecutively to each other and to whatever sentence he was presently serving.

Next, the prosecutor requested that he be allowed to introduce the transcript from Williams’ guilty plea proceedings into evidence. The trial court allowed the introduction of the transcript into evidence. The trial judge stated that it was for evi-dentiary purposes only and not for publication and was, therefore admissible.

Finally, on the morning of the next day of trial, the prosecutor advised the defense that, based on the events of the previous day, he intended to enlarge his witness list to include Vincent Paciera (Paciera), among others. Defense counsel objected, arguing that he had no right of confrontation if these additional witnesses were allowed to testify regarding hearsay statements made by Williams. The prosecutor responded that there were two bases for the admission of the transcript and publication to the jury.

First, he contended that, under La. C.E. art. 801D(l)(a), as amended by Act 694 in 2004, the statement could now be used as substantive evidence. Second, the 11sprosecutor argued that, under Crawford v. Washington and case law interpreting Crawford from other states, since Louisiana case law had not yet addressed the issue, Williams’ statements were admissible because a co-defendant’s confessions are testimonial, Williams was unavailable to testify, and he was subject to prior cross-examination.

Defense counsel noted that he did not cross-examine Williams during that prior plea and he had not even been appointed to represent the Defendant at that time. He further argued that he could not cross-examine Williams at trial because Williams asserted his Fifth Amendment right. The prosecutor argued that Williams may not have been cross-examined at the time of the plea or at trial, but he was subject to cross-examination and that was sufficient. The trial judge stated that he did not think the law said that the witness had to be subject to cross-examination by the current Defendant’s attorney. The trial judge further stated that Williams was subject to cross-examination by the district attorney, his attorney, and by anyone else who was available at the time of the plea. The trial judge thought that Crawford was silent as to who had to be there to cross-examine the witness. The trial judge then ruled as follows:

I’m going to find that it fits under 801, under the definition of 801, that it fits under “Crawford,” because it is testimonial, it’s definitively testimonial. It’s not just a statement taken by police officers not under oath. And he was subject to cross-examination at the trial. Consequently, it’s going to be admissible.

Defense counsel noted his objection and moved for a mistrial based on the trial judge’s ruling. The trial judge denied the motion, stating that his ruling might be grounds for reversal but it was not grounds for a mistrial. Afterwards, the prosecutor called Paciera as a witness.

114Paciera was the assistant district attorney who took Williams’ plea. He testified regarding the substance of Williams’ prior plea agreement and note of evidence. As stated above, Paciera then proceeded to relay the note of evidence taken during the entry of Williams plea, most pertinent here, repeating Williams’ assertions that he and the Defendant were at the scene of the shooting, at the time of the shooting and that the Defendant, upon returning to Williams’ car told Williams that he shot Lee. Paciera then went on to vouch for the veracity of Williams’ statements as did the prosecutor in this case during closing arguments.

The Defendant argues on appeal that it was reversible error to admit this evidence before the jury in any and all of the three forms that it was admitted. He contends that this violated his constitutional right of confrontation and requires a reversal.

The State, on appeal, concedes that because the Defendant did not have a prior opportunity to confront Williams, the trial court erred by allowing into evidence the testimonial note of evidence taken during the entry of Williams’ guilty plea. However, the State argues that the errors were harmless in view of the other evidence of the Defendant’s guilt.

The defense disputes the State’s position, arguing that the erroneous introduction of this evidence cannot be viewed as harmless where, as here, it was admitted three separate times at trial, was combined with the prosecutor’s assurances of its accuracy, and is the only direct evidence in the case linking the Defendant to the crime.

1 ^Confrontation errors, such as the ones here, are subject to a harmless error analysis and the verdict may stand if the reviewing court determines that the guilty verdict is surely unattributable to the error. La.C.Cr.P. art. 921; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081-82, 124 L.Ed.2d 182 (1993); State v. Everidge, 96-2665 (La.12/2/97), 702 So.2d 680; State v. Quatrevingt, 93-1644 (La.2/28/96), 670 So.2d 197, 206; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102. Factors to be considered include the importance of the evidence to the State’s case, whether the testimony was cumulative, the presence or absence of additional corroboration of the evidence, the extent of cross-examination permitted and the overall strength of the State’s case. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Louviere, 00-2085 (La.9/4/02), 833 So.2d 885.

An erroneous trial ruling shall not require reversal of the conviction by an appellate court unless a substantial right of the accused has been affected. A reviewing court must determine whether there is a reasonable possibility that the complained-of error might have contributed to the verdict, that is, whether the court can declare a belief that the error is harmless beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291; State v. Green, 493 So.2d 1178 (La.1986). In other words, for the error to be considered harmless, the reviewing court must find beyond a reasonable doubt that the erroneously admitted evidence could not have affected the jury’s verdict. State v. Everidge, 96-2665 (La.12/2/97), 702 So.2d 680; State v. Sanders, 93-0001 (La.11/20/94), 648 So.2d 1272, 1291.

| Applying these precepts to the case before us, we cannot conclude beyond a reasonable doubt that the erroneously admitted evidence and the references made thereto by the prosecutor did not affect the jury’s verdict. The admission of the hearsay statements of Williams, introduced through Paciera’s testimony, questioning of Williams by the prosecutor as Williams repeatedly refused to answer under the Fifth Amendment, and the admission of the transcript of Williams’ guilty plea proceedings, without the cross examination of Williams by the defense counsel, was trial error. This note of evidence was crucial evidence against the Defendant because it was the only direct evidence against him linking him to the commission of the crime. It was not cumulative, nor directly corroborated, defense counsel was denied the ability to cross examine the witness and the overall strength of the State’s case without it was not compelling. Based on our consideration of the entire record, we cannot conclude beyond a reasonable doubt that the erroneously admitted evidence could not have affected the jury’s verdict or that the verdict was surely unattributable to the error. Therefore, we find that the errors were not harmless and that reversal of the conviction, vacation of the sentence and remand for retrial is mandated.

Accordingly, for the reasons stated above, the Defendant’s conviction is reversed, his sentence are vacated and the case is remanded to the trial court for a new trial.

REVERSED AND REMANDED.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . State v. Davis, 04-K-1373 (La.App. 5th Cir. 12/2/04) (unpublished).

      .It is noted that Jarvis Wells was 14 years old at the time of the incident.

      . Lee’s mother, Jarutha S. Lee, later testified that, in January of 2000, Lee sometimes lived with her at 2336 Idaho Street, Apartment C.

      . Wells testified that the man in the picture talked to Lee and could have talked to the man who shot Lee.

      . La.C.Cr.P. art. 439.1 provides as follows:
      A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
      B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment
      (1) the testimony or other information from such individual may be necessary to the public interest; and

        (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.
      C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
      D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.

      . La. C.E. art. 801D(l)(a) provides in pertinent part:
      D. Statements which are not hearsay. A statement is not hearsay if:
      (1) Prior statement by witness. The declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
      (a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness' attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement.

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . The State's concession is well supported by law since it has been consistently held that testimonial hearsay is only admissible when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross examine the declarant. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Smith, 04-3140 (La.6/24/05), 906 So.2d 391; State v. Lewis, 05-170 (La.App. 5th Cir. 11/29/05), 917 So.2d 583.

      . Absent the erroneously admitted evidence, the only non-hearsay record evidence against the Defendant was that he was in the area of the crime three hours earlier in a white car, he had gold teeth as did the perpetrator, and Lee stated that he was shot by "a dude in a white escort.” Also the State produced an inconclusive, undated, picture of the Defendant holding a gun that was like the one used in the crime. The Defendant had witnesses that stated that the gun in the picture was not the same caliber as that used in the crime and that the Defendant was in Florida at the time of the crime.

      . Any other errors assigned on appeal and not addressed in this opinion or rendered moot by our determination on this issue and will not be addressed.


author: GASKINS, J.

text:
    DELTA AMERICAN HEALTHCARE, INC., Plaintiff-Appellant v. Tory BURGESS and John Warner Smith, Secretary of Labor, Louisiana Department of Labor, Defendants-Appellees.
    No. 41,108-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Cook, Yancey, King & Galloway, by Charles W. Penrod S. Price Barker, Shreveport, for Appellant.
    Tory Burgess, in Proper Person.
    Douglas E. Horner, Norbert C. Rayford, Baton Rouge, J. Jerome Burden, for Ap-pellee, Louisiana Department of Labor Legal Division.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

hThe issue in this appeal is whether a claimant who was fired for sleeping on the job is disqualified from receiving unemployment benefits. Delta American Healthcare, Inc. (“Delta”) appeals from a judgment of the trial court affirming the decision of the Louisiana Board of Review for the Office of Regulatory Services (“board of review”) to allow the claimant, Tory Burgess, to receive unemployment benefits. Finding that the claimant is not disqualified under the circumstances of this case, we affirm the trial court’s judgment.

FACTS

From October 2001, to July 2004, the claimant was employed by Delta at a group home for the physically and mentally disabled in Delhi, Louisiana. Earning minimum wage, he was a full-time “direct care” worker responsible for the physical care of the facility’s residents. On July 15, 2004, the claimant was at work and on-duty. During this time, he was seen sleeping in a chair by other employees. The next day, Delta fired him for sleeping on the job.

Delta policy, like the applicable federal Medicare regulations, forbids direct care employees from sleeping on the job. Delta’s policy provides:

Any employee of the facility may be subject to immediate dismissal, without notice or hearing, if the employee willfully engages in conduct which is detrimental to the welfare of the facility and/or the residents or employees. The following are examples of such conduct:
S. Sleeping while on duty.

hThe claimant subsequently filed a claim for unemployment benefits; Delta opposed the claim on the grounds that it fired the claimant for misconduct relating to his employment. The Department of Labor agreed and rejected his claim for benefits. The claimant appealed, and the matter was tried before an administrative law judge on August 26, 2004. The claimant and two Delta representatives testified.

According to the claimant, he has taken prescription medicine, Clonidin, for his blood pressure for about two years. He said that he takes the medicine twice a day, once in the morning and once at night; he did not normally take the medicine while at work. Delta was evidently unaware of the claimant’s condition or the fact that he took medication.

The claimant explained that as he worked on July 15, 2004, he had a headache, so he decided to take a dose of Clonidin. He did not ask to be relieved or to go home, which he could have done; he explained, “I’m not the type that just calls in every time that I’ve got a headache or a stomachache.” He then gave his explanation for why he fell asleep:

I had nodded out after taking medication. I had, it was another lady working with me. Another direct care worker. And I told her that I wasn’t feeling very well and I was going to sit down for a minute. And she said that was fine, go ahead. And I, because I told her, I said I just took my medicine because I had a bad headache.... And I was just going to sit down for a minute until things got better. She said okay. And at that time I just kind of nodded out. It probably wasn’t even fifteen or twenty minutes.

When asked if the medicine had ever made him sleepy before, the claimant responded:

LNo, sir. Well, just normally, it, maybe at home, when I’m going to sleep. Because I normally take it at bedtime and when I wake up in the morning.

After hearing the witnesses, the judge decided that the claimant’s conduct was employment-related misconduct and so affirmed the agency determination.

The claimant appealed that decision to the board of review. The five-member board, with two members dissenting, reversed the decisions below. It held that the claimant’s behavior did not rise to the level of misconduct because he did not intentionally violate the “no sleeping” policy and did not expect the Clonidin to induce drowsiness.

Thereafter, Delta appealed the board’s decision to the district court. It affirmed, holding that the board’s decision was based on sufficient competent evidence and was correct as a matter of law. In its oral reasons for judgment, the trial court noted that “Apparently, this young man had not suffered prior writeups for behavior that would be disqualifying misconduct type behavior in the past,” and that “because of the prior successful employment that this particular young man has enjoyed or had enjoyed with this employer, that was one of the deciding factors to me in this case.... ” Delta now appeals that judgment to this court.

LAW

Appeals from district court judgments reviewing decisions of the board of review are governed by La. R.S. 23:1634, and proceed in the same manner as in other civil cases “but not inconsistent with the provisions of [Chapter 11 of Title 23].” The scope of judicial review by the courts is |4Iimited to questions of law and to the question of whether the decision is supported by “sufficient evidence.” Bowman v. State, Office of Employment Security, 403 So.2d 825 (La.App. 2d Cir.1981). Specifically with regard to the district court, La. R.S. 23:1634(B) provides, in pertinent part:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record.

In Lafitte v. Rutherford, House, Inc., 40,395 (La.App. 2d Cir.12/14/05), 917 So.2d 684, this court observed:

Based on this statutory provision, the jurisprudence has defined judicial review in cases such as this one as requiring a determination of whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the action taken. Judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts. [Citations omitted.]

INTENTIONAL OR NEGLIGENT ACT

Delta contends that the trial court erred by requiring a finding of an intentional act, rather than an act of mismanagement or neglect, to disqualify the claimant from unemployment benefits.

La. R.S. 23:1601 provides, in part:

An individual shall be disqualified for benefits:
| fi(2)(a) If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others. ... [Emphasis added.]

The emphasized language was added to the statute by Acts 1990, No. 750. Prior to the addition of this language, the jurisprudence had fashioned the requirements of proving misconduct:

For a claimant to be disqualified from benefits because of “misconduct connected with his employment” under La. R.S. 23:1601(2), the “misconduct” must have resulted from willful or wanton disregard of the employer’s interest, from a deliberate violation of the employer’s rules, or from a direct disregard of standards of behavior which the employer has the right to expect from his employees .... The type of behavior which is considered “willful misconduct” is intentional wrong behavior.... Because of the beneficial purpose of unemployment compensation, the term “misconduct” should be construed so as to favor the awarding of benefits rather than disqualification.

Charbonnet v. Gerace, 457 So.2d 676 (La.1984), citations omitted. However, since the 1990 amendment, the jurisprudence in this circuit has continued to require that an employer prove misconduct by a showing of either intentional wrongdoing or negligence to such an extent as to manifest culpability or a showing of intentional and substantial disregard of the employer’s interest. See, e.g., Lafitte v. Rutherford House, Inc., supra. Likewise, the other courts of appeal in this state have maintained the strict pre-amendment standard requiring proof of willful misconduct. See Lockett v. Forster, 2004-0171 (La.App. 4th Cir.6/23/04), 879 So.2d 323; St. Tammany Parish School Board v. State, Department of Labor, Office of Employment Security, 2001-0757 (La.App. 1st Cir.5/10/02), 818 So.2d 914; Harsco Corporation v. Victoria, 2001-1486 (La.App. 3d Cir.3/20/02), 812 So.2d 871; Taco Bell Corporation v. Perkins, 95-225 (La.App. 5th Cir.9/26/95), 662 So.2d 34; Gobert v. Louisiana Department of Employment Security, 94-1018 (La.App. 3d Cir.3/8/95), 651 So.2d 508. We also note that the Delta policy indicates that an employee is subject to dismissal when he “willfully engages in conduct which is detrimental to the welfare of the facility and/or the residents or employees,” (emphasis added) including the “no sleeping” policy.

In light of the purpose of unemployment compensation, we conclude that the legislature’s addition to La. R.S. 23:1601 was intended to be illustrative and was not intended to substantively change the law by deleting the requirement of proving deliberate misconduct. Thus, we hold that the trial court applied the appropriate standard of review.

DISQUALIFYING MISCONDUCT

In three other assignments of error, Delta argues that the trial court erred by finding that, as a matter of fact and law, the claimant — by sleeping on the job — did not intentionally engage in disqualifying misconduct under La. R.S. 23:1601. It also argues that the trial court erred by relying on his “prior successful employment” as a reason for finding that he did not engage in disqualifying misconduct, as that fact is nowhere in the record.

With regard to the trial court’s consideration of the claimant’s “prior successful employment,” we observe that the record showed that the claimant had worked for Delta for more than two and one-half years and had |7taken Clonidin twice per day for approximately two years. This record contains no evidence that the claimant had been observed sleeping on the job prior to July 15, 2004. To that extent, the trial court’s comments are in accord with the evidence in the record and we find no reversible error in its consideration of the little evidence that existed regarding the claimant’s work record.

In Brandon v. Lockheed Martin Corp., 2003-1917 (La.App. 4th Cir.4/14/04), 872 So.2d 1232, the Fourth Circuit discussed four factors instructive in determining those instances where sleeping on the job amounts to disqualifying misconduct:

1. the nature of the employee’s job responsibilities;
2. the location in which the employee was found sleeping;
3. the presence (or absence) of a written rule prohibiting sleeping on the job and prior warnings for sleeping on the job; and
4. any other aggravating or mitigating circumstances.

We find these illustrative factors to be useful and consider the claimant’s conduct in light of them. First, the claimant was a direct care employee, responsible for the immediate needs of the residents of the Delta facility. Sleeping on the job in similar circumstances, without any mitigating factors, has been found to be disqualifying misconduct. Avery v. St. Patrick Hospital of Lake Charles, 551 So.2d 837 (La.App. 3d Cir.1989). The area where he fell asleep is not well-described in this record and it is not apparent whether this area is a public or private area of the facility. The claimant’s conduct was plainly a violation of a Delta written rule prohibiting sleeping on the job, the willful violation of which was listed as justification for immediate termination.

| sHowever, the board and the district court both found that the mitigating circumstance of medication-induced drowsiness was sufficient to overcome the other factors in this case, and we agree. In other cases, mitigating circumstances have resulted in the claimant being allowed benefits. In Pilgrim Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3d Cir.1976), a nurse’s aide was called in to work the night shift on her day off. Her act of falling asleep was found not to be disqualifying conduct for this employee of three and a half years. Similarly, in Brandon, supra, the court found that the employer failed to carry its burden of proving that the employee was intentionally napping on the job; rather, the court opined that, at worse, the claimant, an employee for 21 years, negligently took a nap due to a sinus headache. We contrast this with the Avery case where a registered nurse caring for more than a dozen seriously ill patients was disqualified for benefits after she was caught sleeping. See also Allen v. Sumrall, 398 So.2d 108 (La.App. 3d Cir.1981), where the employee was an Attendant I charged with observing patients who was disqualified for his second offense of sleeping on the job.

In the instant case, the claimant attributed his drowsiness to his ingestion of Clonidin and stated that the medication had not made him sleepy in the past except perhaps at bedtime. In the absence of proof that the claimant knew that the medication would make him sleepy, the employer failed to prove that his conduct was willful or intentional to the degree necessary to disqualify him from unemployment benefits. The 1 aevidence did not reveal any aggravating factors or evidence that he meant to fall asleep. The evidence tends to show that the claimant’s nap was neither intentional nor willful, so he is not disqualified from receiving unemployment benefits.

CONCLUSION

The judgment of the trial court is affirmed. Costs are assessed to the appellant.

AFFIRMED.

      . While the claimant in Avery, supra, was a registered nurse, the claimant in the instant case is an unskilled, minimum wage earner.


author: WILLIAMS, Judge.

text:
    LOUISIANA BAIL BONDS, INC. and International Fidelity Insurance Company (Surety for Debra Lynn Mathis) PA# 1W-39462, Plaintiff-Appellant v. STATE of Louisiana, Defendant-Appellee.
    No. 41,091-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Donald Weathersby, II, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   WILLIAMS, Judge.

_Ljn this bond forfeiture case, the plaintiffs, Louisiana Bail Bonds, Inc. and International Fidelity Insurance Company, appeal a judgment in favor of the defendant, State of Louisiana. The trial court dismissed the 'plaintiffs’ petition to annul the judgment of bond forfeiture. For the following reasons, we affirm.

DISCUSSION

In October 2003, Louisiana Bad Bonds, Inc. and International Fidelity Insurance Company placed a bond on behalf of Debra Lynn Mathis, who subsequently failed to appear for her December 8, 2003 court date. Upon the state’s motion, the court issued a bench warrant and ordered a bond forfeiture; however, no judgment of bond forfeiture was signed, and no notice of judgment was mailed to the surety. On May 17, 2004, the court recalled the bench warrant and set aside the bond forfeiture. Subsequently, Mathis again failed to appear in court as ordered on May 26, 2004, and upon the district attorney’s motion the court issued a bench warrant and ordered a bond forfeiture. A judgment of bond forfeiture was signed on June 23, 2004, and notice was mailed to the surety on June 29, 2004.

In February 2005, the plaintiffs, Louisiana Bail Bonds, Inc. and International Fidelity Insurance Company, filed a petition to annul the judgment of bond forfeiture. Following a trial, the district court denied the petition to annul the judgment, and this appeal followed.

The plaintiffs contend the trial court erred in refusing to annul the judgment of bond forfeiture. Plaintiffs argue that they were released from all obligations under the bond because the state did not mail notice of | ¿judgment within 60 days of the accused’s failure to appear on December 8, 2003.

LSA-R.S. 15:85 states in pertinent part: All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(2) Signing of the judgment of bond forfeiture. Following the defendant’s failure to appear, the court shall sign a written judgment of bond forfeiture.
(3) Notice of judgment.
(a) After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture....
(b) After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.
(c) Failure to mail proper notice of the signing of the judgment within sixty days after the defendant’s failure to appear shall release the sureties of any and all obligations under the bond.

In support of their position that the prosecution was required to provide notice within 60 days of the first failure to appear, plaintiffs cite 1 State v. Rotramel, 95-1074 (La.App. 3rd Cir.1/31/96), 670 So.2d 378. In that case, Rotramel failed to appear as ordered and several days later the state moved to forfeit the bond. After a hearing, the court issued an arrest warrant, ordered the bond forfeited and subsequently signed a judgment of bond forfeiture. Plaintiffs rely on the court’s language summarizing the statute as providing that the failure of the clerk “to mail the proper notice to the parties within 60 days after the defendant’s failure to appear releases the surety of its obligation under the bond agreement.”

However, LSA-R.S. 15:85 requires that the “proper notice” to be mailed is “notice of the signing of the judgment of bond forfeiture.” Thus, as this court noted in State v. Murphy, 40,485 (La.App. 2d Cir.12/14/05), 917 So.2d 769, the language of the statute requires notice to be mailed within 60 days of the nonappearance date for which a written judgment of bond forfeiture is ultimately rendered. The Murphy case involves a similar factual situation to the present case in that the accused failed to appear, the court issued a bench warrant and ordered the bond forfeited, but no written forfeiture judgment was ever signed and approximately five months later, the bond forfeiture order was set aside. When Murphy failed to appear a second time, the court ordered the bond forfeited, signed a written judgment of bond forfeiture and timely notice was mailed to the surety.

In Murphy, supra, this court stated that although the district court orally ordered the bond to be forfeited after the first failure to appear, the court later set that judgment aside, and since a judgment set aside is a judgment that never existed, the district court was not required to notify the Rsurety of such a judgment. Furthermore, we stated that the 60-day period for notice of the first nonappearance would have begun to run only if a signed and executable bond forfeiture judgment had been entered. See also State v. Anaya, 29,843 (La.App. 2d Cir.9/24/97), 699 So.2d 1158; State v. Jones, 29,365 (La.App. 2d Cir.4/2/97), 691 So.2d 1370.

Consequently, pursuant to the express terms of the statute, the clerk of court in this case was not required to mail any notice to plaintiffs until a forfeiture judgment was signed. Because the initial failure to appear herein did not result in a signed forfeiture judgment, there was no failure to mail notice and plaintiffs were not relieved of their obligations under the bond agreement. Thus, the district court did not err in refusing to annul the bond forfeiture judgment. The assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Louisiana Bail Bonds, Inc. and International Fidelity Insurance Company.

AFFIRMED.