author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Jacob Ray GRIFFITH, Appellant.
    No. 41,849-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Daryl Gold, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Jacob Ray Griffith, pled guilty to forcible rape, a violation of La. R.S. 14:42.1, and was sentenced to serve 23 years imprisonment at hard labor, 2 years of which are to be served without benefit of probation, parole, or suspension of sentence. Defendant has appealed his sentence as excessive. Finding no error, we affirm.

Discussion

Defendant was indicted for aggravated rape of his 5-year-old male cousin. Defendant, who was 17 years old, had oral sexual intercourse with the victim. Defendant was allowed to plead guilty to the lesser and responsive charge of forcible rape. The trial court thoroughly advised defendant of his rights as required by Boylcin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and made a diligent effort to determine his competence, literacy, and understanding.

A sentencing hearing was held at which 11 witnesses testified, including family members of both the defendant and the victim. Defendant’s testimony at the sentencing hearing concerned his remorse for the pain he caused, his fear of prison, and his desire to start his own family. Defendant requested that his sentence be short. Before sentencing defendant, the trial court noted that it had considered the guidelines set forth in La. C. Cr. P. art. 894.1, including the age of the victim (five years old at the time of the offense), defendant’s need for a correctional environment that can be best provided by commitment to an institution, and the fact that any lesser sentence would deprecate the seriousness of defendant’s crime. LThe trial court specifically noted that it reviewed the PSI report “numerous times” before sentencing defendant to 23 years imprisonment at hard labor, with 2 of those years to be served without benefit. The trial court advised defendant of the time limitations for appealing and seeking post-conviction relief. Defendant’s timely motion to reconsider sentence was denied by the trial court.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280, writ denied, 04-057 (La.09/24/04), 882 So.2d 1165.

In the instant case, defendant avoided a mandatory life sentence by pleading to a lesser grade of rape. The sentence defendant received was just over half of the maximum possible sentence for forcible rape. The record shows that the trial court enumerated aggravating and mitigating circumstances, thereby complying with La. C.Cr.P. art. 894.1, and tailoring the sentence to this offense and offender. Finding neither abuse of ^discretion, nor that defendant’s sentence is shocking to the sense of justice, we affirm defendant’s conviction and sentence.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . He also fondled the victim's penis and attempted anal penetration.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Michael Kevin HAILEY, Appellant.
    No. 41,897-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Rehearing Denied March 29, 2007.

      Anita D. McKeithen, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, William J. Edwards, Jonathan Thompson, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

|! Defendant, Michael Kevin Hailey, was tried and convicted of the attempted second degree murder of Jeremy Craig and sentenced as a fourth felony habitual offender to 87 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals, urging three assignments of error. For the reasons set forth below, defendant’s conviction and sentence are affirmed.

Discussion

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132.

To be guilty of attempted murder, a defendant must have the specific intent to kill; the mere intent to inflict great bodily harm is insufficient to convict a defendant of attempted first or second degree murder. State v. Davis, 41,245 (La. App. 2d Cir.08/09/06), 937 So.2d 5; State v. Mitchell, 39,305 (La.App. 2d Cir.02/17/05), 894 So.2d 1240, unit denied, 05-0741 (La.06/03/05), 903 So.2d 457.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert, denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 LJEd.2dj> 798 (1990); State v. Ellis, 28,282 (La.App. 2d Cir.06/26/96), 677 So.2d 617, unit denied, 96-1991 (La.02/21/97), 688 So.2d 521.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. It is for the factfinder to weigh the credibility of the witnesses and a reviewing court should not second guess those determinations. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

The incident occurred close to 2:00 a.m. on March 28, 2004, in the parking lot at Tony’s Hilltop Bar in Vivian, Louisiana. The 'victim, Jeremy Craig, testified that he, his wife, Shannon, and a few of their friends were in the bar relaxing. Also at the bar were defendant, Michael Hailey, his brother, Chad Weaver, their mother, Kathy Weaver, and Chad’s girlfriend, Donna Williamson. Neither Craig nor any of his friends were acquainted with defendant, a resident of Atlanta, Texas, prior to this incident.

Defendant got into an argument with a man named Rodney and they went outside and fought. The owner of the bar, Tony Gardner, went outside to monitor the situation, and, according to Jeremy Craig, a female bartender asked him to go outside and help the bar owner. The fight between defendant and Rodney stopped soon thereafter, and defendant and his brother, Chad Weaver, got into their car to leave. However, another bar patron known as “Scooby” reached into the vehicle and slapped Chad. At that point, defendant and Chad got out of the car to fight with Scooby.

|sIn an effort to break up the fight, several patrons grabbed Scooby while Jeremy Craig grabbed Chad. Craig described what happened next:

I was holding Chad back. I just turned around. I seen his brother [the defendant] heading my way. I took my eyes back off of him and looked back that way. You know, the second time I looked around, I seen him swinging at me.... I tried to dodge away from him.... That’s when I noticed I was cut .... [on] my right arm.... It felt like somebody had thrown a drink on me. I felt my arm go numb, and I looked down and blood was shooting out ... of my arm.

Craig’s friend, Angela Polite, and another witness, Teresa Rogers, testified that Craig had been trying to break up the fight between Chad and Scooby when they saw that defendant had something in his hand. They saw defendant pick Craig up then slam him to the ground. Ms. Polite saw blood “gushing” or “spurting” out of Craig’s arm “like somebody had turned on a faucet.” Afterwards, Ms. Polite saw defendant wipe his hands down the front of his pants before putting them both in his pockets. Ms. Rogers described defendant’s look as “raging” or “cold.”

After Gardner pulled defendant off of Craig, a volunteer fireman arrived and began caring for the victim. Shortly thereafter, Caddo Parish Sheriffs Office (“CPSO”) Deputy Eric Lawrence arrived. When Dy. Lawrence saw how badly Craig was injured, the deputy called for the air ambulance. Craig was flown to LSU Medical Center by helicopter ambulance.

Detective Stacy Cowgill interviewed defendant the day after the incident. According to defendant, he threw the first punch at Jeremy Craig but said that it was done in self-defense. Defendant admitted that he slammed Craig to the ground, but denied stabbing him. According to ^defendant, he did not even have a knife. Defendant stated that at the time of his confrontation with Craig, his brother Chad was fighting with two or three other people. Defendant’s mother came into the CPSO the next day and told Detective Cowgill that Jeremy Craig had stabbed her son Chad, so Chad must have been the one who stabbed Jeremy. According to Ms. Weaver, Dy. Cowgill had arrested the wrong person and if anyone should have been arrested, it was Chad.

Both Craig and Angela Polite identified defendant at trial as the man who had cut and stabbed Craig. Teresa Rogers was not able to positively identify defendant. Ms. Rogers said that defendant resembled the Kevin Hailey that she knew.

Defendant’s only witness, Russell Green, who was a friend of defendant’s father, testified that he was running the karaoke machine at Tony’s Hilltop Bar the night of the altercation and witnessed part of the fight between Craig and defendant. Green stated that he helped break up the fight. He said that he helped pull defendant out of the fight, and when he did so, defendant basically “pulled back” and stopped fighting. Green testified that he did not see defendant with a knife.

The victim, Jeremy Craig, testified that he was able to move or dodge out of the way of the first blow that defendant struck with his knife. This first and strongest blow was a thrust, rather than a slash, and was directed toward the victim’s chest. Apparently because the victim was able to move, defendant only struck the victim’s elbow rather than a more vital location. However, witnesses graphically described the gushing flow of blood caused | fiby this injury, saying that blood was “shooting” or “spurting” from the wound. Even so, defendant pressed his attack, and at one point picked the victim up by the throat and slammed him down onto the concrete. Further, the victim’s bloody shirt had five lacerations and the victim suffered other cut wounds to his chest; this demonstrates the sustained efforts of defendant to cut the victim in a vital area.

Defendant might well have been facing a second-degree murder charge rather than an attempted-murder charge but for the fact that others on the scene broke off defendant’s attack and the victim was transported by air ambulance to the hospital.

Also in this assignment of error, defendant challenges the evidence that he was correctly identified as the perpetrator of the offense. In State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047, 1051, the supreme court observed:

[W]hen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations.

(Citations omitted.) Although there were some discrepancies between various witnesses’ descriptions of defendant’s clothing and hairstyle, there was no testimony that the victim fought with or was harmed by any person other than defendant. Indeed, the witnesses unanimously identified | fidefendant as the person with whom the victim was fighting when he sustained the serious stab wound to his arm. There was no substantial question that defendant and not his brother Chad or any other person was the perpetrator of this offense.

This assigned error is without merit.

Denial of Post-trial Motions

On appeal, defendant repeats the arguments he raised in each of his three motions for a new trial in the district court.

Communication by Juror

The first motion for new trial was based upon a conversation that defendant’s attorney had with one of the jurors after the conclusion of the trial. According to counsel, the juror, Troy Trussell, approached defendant’s attorney at a party a few days after the trial. Defense counsel told the court that when counsel asked the juror how the jury found specific intent to kill, the juror responded, “We didn’t, we went on the great bodily harm part.” Further, the juror told counsel that, “We told (the two dissenting jurors who wanted to vote for attempted manslaughter) that if he had just hit him once, it would have been manslaughter, but because he kept hitting him it couldn’t be attempted manslaughter.” Counsel for defendant did not subpoena the juror to testify nor was there a proffer of an affidavit from the juror.

Louisiana Code of Evidence article 606(B) provides:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his |7mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

This article is closely related, at least in criminal cases, to Federal Rule of Evidence 606. See the extended discussion of the history of that rule in Tanner v. U.S., 483 U.S. 107,107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Jurors may not testify with regard to their mental processes in connection with their verdict. State v. Marshall, 04-3139 (La.11/29/06), 943 So.2d 362. There is no allegation that “extraneous prejudicial information” played a part in the jury’s deliberations. Compare State v. Horne, 28,327 (La.App. 2d Cir.08/21/96), 679 So.2d 953, writ denied, 96-2345 (La.02/21/97), 688 So.2d 521.

As this court stated in State v. Wilhite, 40,539 (La.App. 2d Cir.12/30/05), 917 So.2d 1252, at 1261-62, writ denied sub nom State ex rel. Wilhite v. State, 06-1078 (La.11/09/06), 941 So.2d 35:

The prohibition contained in this article, previously set forth in La. R.S. 15:470, is intended to preserve the finality of jury verdicts and the confidentiality of discussions among jurors. State v. Hampton, 27,703 (La.App. 2d Cir.02/28/96), 670 So.2d 1349, writ denied, 96-1063 (La.11/15/96), 682 So.2d 758. Only well-pleaded allegations of prejudicial misconduct violating a defendant’s constitutional rights will require an evidentiary hearing at which a juror may testify. Mere conclusory statements devoid of any specificity are insufficient. State v. Hampton, supra.
Juror misconduct is not grounds for an automatic mistrial; prejudice must also be established. State v. Day, 414 So.2d 349 (La.1982); State v. Richardson, 33,-272 (La.App. 2d Cir£l/01/00),g 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151.
The decision on a motion for new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of abuse. State v. Hampton, supra.

Jurisprudence has recognized that this rule of evidence is limited by the federal and state constitutions and must yield when its application would deny fundamental protections to a criminal defendant. State v. Johnson, 34,902 (La.App. 2d Cir.09/26/01), 796 So.2d 201, citing State v. Graham, 422 So.2d 123 (La.1982). See also State v. Weaver, 05-169 (La.App. 5th Cir.11/29/05), 917 So.2d 600, writ denied, 06-0695 (La.12/15/06), 944 So.2d 1277; State v. Duncan, 563 So.2d 1269 (La.App. 1st Cir.1990), appeal after remand, 593 So.2d 693 (La.App. 1st Cir.1991), writ denied, 594 So.2d 876 (La.1992).

In State v. Duncan, supra, the First Circuit remanded the matter for a hearing to allow the trial court to determine whether the jury’s verdict was unanimous because there was a factual question about the vote of one juror. In other cases, courts have refused to order a remand because the allegations were simply that the jury based its verdict on something that arguably was not in evidence. In the instant case, the allegation is that the jury based its verdict on a misinterpretation or misunderstanding of the applicable law. The record shows that the court correctly instructed the jury on the law. The jury’s understanding of, or failure to understand, the instruction of the court is not an “extraneous” matter but instead is a question about the intrinsic |9workings of the jury, something that has traditionally been beyond the scope of inquiry. See State v. Boyles, 567 N.W.2d 856 (S.D.1997). See also United States v. Jones, 132 F.3d 232 (5th Cir.1998), cert, granted in part on other grounds, Jones v. U.S., 525 U.S. 809, 119 S.Ct. 39, 142 L.Ed.2d 31, affirmed, Jones v. U.S., 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); State v. Mason, 728 N.W.2d 60, 2006 WL 3436470 (Iowa 2006). The record also shows that the evidence was sufficient to support the jury’s verdict of guilty. See, e.g., U.S. v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984):

[W]e note that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. This review should be independent of the jury’s determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.

(Citations omitted.) This argument is without merit.

James Clark / Teresa Rogers Testimony

Defendant next argues that he should have a new trial because he located a witness to the events who could contradict the testimony of Teresa Rogers that she saw the fight between Hailey and Craig and that she saw defendant with a knife. The testimony of this witness, James Clark, was not as conclusive of the issue as defendant argues in brief. Clark admitted that he and Ms. Rogers went outside at some point during the event before |indefendant left the scene and it was his interpretation of the timing of the events that led to his belief that Ms. Rogers could not have seen what she claimed to have observed. Given the testimony of the other witnesses, especially the testimony of the victim himself, it is very unlikely that the testimony of Clark would have led to a different verdict. This argument is without merit.

Pictures of Chad Weaver’s Wounds

Finally, defendant urges that he should have a new trial to allow a jury to see the newly-discovered photos of Chad Weaver’s allegedly self-inflicted wounds. Chad Weaver could not be located at any point in these proceedings and did not testify. Nevertheless, according to all of the witnesses, Chad Weaver was not the one who was fighting with the victim when the victim sustained his stab wounds. As noted above, every witness identified defendant as the only person who fought with the victim. The stab wounds to Chad Weaver were of little relevance to the proceeding and confirmation of their existence could not possibly have changed the verdict. This argument is without merit.

Excessive Sentence

The state charged defendant as a fourth felony habitual offender. Two of defendant’s prior convictions were from Cass County, Texas, for forgery in 1998 and 2000. His third felony was a Caddo Parish, Louisiana, conviction for forgery in 2001. Based upon these prior convictions, the court adjudicated defendant to be a fourth felony offender.

InAt sentencing, the victim, Jeremy Craig, testified about the severe impact the crime had upon him financially and mentally and asked the court to impose the maximum sentence. Defendant asked the court to deviate downward from the sentence specified by the habitual offender law because his prior convictions were all non-violent crimes (forgery) and the Texas convictions were the lowest grade of felony offense in that state. The state noted that defendant also had a burglary conviction and had been charged, without adjudication, with attempted murder (the weapon used was a knife) during his time in the Navy. Finally, the state noted that defendant was the only suspect ever arrested in a 1992 unsolved triple murder in Cass County, Texas; however, defendant was no-true-billed by the grand jury.

Although defendant’s prior convictions for forgery were for non-violent offenses, he more than made up for that with a vicious and unprovoked attack on Jeremy Craig, who, by all accounts, was simply trying to break up a fight and get the combatants to go home. The court appropriately concluded that there was no reason to deviate from the sentence range required by the habitual offender statute. It was also proper that the sentence be without parole as the underlying offense of attempted second degree murder requires any sentence to be served without benefit of parole. La. R.S. 15:529.1(G); La. R.S. 14:27.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW and SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . On remand to the appellate court on an unrelated issue, the defendant in State v. Hughes, supra, had his sentence set aside and the matter was returned to the trial court for re-sentencing. See State v. Hughes, 04-1797 (La.App. 4th Cir.01/24/07), 951 So.2d 1157.

        . Writ denied sub nom, State ex rel. Johnson v. State, 03-2631 (La. 11/08/04), 885 So.2d 1124.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. George William PURLAND, Jr. Appellant.
    No. 41,896-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Louisiana Appellate Project by Paula C. Marx, for Appellant.
    Paul J. Carmouche, District Attorney, Damon Kervin, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

hThe defendant, George William Pur-land, Jr., was convicted by bench trial of simple arson, a violation of La. R.S. 14:52. The state subsequently filed a second offender bill to which Purland entered a guilty plea. The state and Purland then agreed to a 10-year sentence, specifying that Purland could appeal anything other than the habitual offender proceedings and the sentence. The court imposed the 10-year sentence; however, it indicated that the 10-year sentence was without benefit of probation, parole, or suspension of sentence. This appeal followed. We amend the judgment below, and, as amended, affirm.

After imposing the stipulated 10-year sentence, the bailiff asked the court if the sentence would be without benefits and the court responded affirmatively. The court did not articulate what benefit would be denied; however, the minutes indicate that the sentence was to be served without benefit of probation, parole, or suspension of sentence.

Section G of the habitual offender statute requires that all enhanced sentences be imposed without benefit of probation or suspension of sentence. La. R.S. 15:529.1(G). No authority is granted to a court to enhance a sentence by denying benefit of parole. The penalty provision of La. R.S. 14:52 likewise does not restrict parole.

Appellant alleges the sentencing court erred when it imposed a sentence without benefit of parole, citing State v. Benedict, 2004-742 (La.App. 3 Cir. 11/10/04), 887 So.2d 649. In Benedict, the court held that Section G of the habitual offender statute does not authorize the trial court to impose enhanced sentences without benefit of parole. Similarly, in State \9v. Brown, 37,736 (La.App. 2 Cir. 3/12/04), 868 So.2d 289, writ denied, State ex rel. Brown v. State, 04-2216 (La.6/3/05), 903 So.2d 445, the trial court sentenced the defendant to eight years at hard labor, not only without benefit of probation or suspension of sentence, but also without benefit of parole. We noted that La. R.S. 15:529.1(G) does not specify that the sentence be served without the benefit of parole, and we amended the defendant’s sentence and the minutes to delete any reference to service of the sentence without eligibility for parole.

The state agrees that the court should not have imposed the sentence without benefit of parole.

Accordingly, for the reasons stated above, we amend the sentence vacating that part of the sentence imposed without benefit of parole, and we order that the minutes be amended to delete any reference to service of the sentence without eligibility for parole. In all other respects, the sentence is affirmed.

SENTENCE AMENDED; AS AMENDED, AFFIRMED.


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

text:
    William MARKS v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2005-CA-0307.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.

      Eric J. Hessler, Meridian, MS, for Plaintiff/Appellant.
    Joseph V. Dirosa, Jr., Chief Deputy City Attorney, James B. Mullaly, Assistant City Attorney, Penya M. Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   MAX N. TOBIAS, JR., Judge.

1 This case comes before us on remand from the Louisiana Supreme Court to determine the merits of the two remaining issues on appeal. Marks v. New Orleans Police Dept., 06-0575 (La.11/29/06), 943 So.2d 1028. We previously pretermitted a discussion of all assigned errors on appeal, having found one error of law (in particular, the application of La. R.S. 40:2531 B(7)) necessarily mooted consideration of the remaining errors. See Marks v. New Orleans Police Dept., 05-0307 (La.App. 4 Cir. 2/8/06), 925 So.2d 622. The Supreme Court reversed, holding instead that the language in La. R.S.40:2531 B was directory and not mandatory regarding the time limit to investigate charges against an officer. Marks, 06-0575 at p. 13, 943 So.2d at 1037. Insofar as the Supreme Court invalidated our finding that an error of law was committed, we now consider the remaining errors assigned by the appellant, Sergeant William Marks (“Marks”).

On 1 November 2002, Marks, an 18-year veteran of the New Orleans Police Department (“NOPD”), borrowed an unmarked police cruiser assigned to a subordinate officer to drive to Milwaukee, Wisconsin, to pick up his girlfriend, Felicia Edwards (“Edwards”) and a female friend of Edwards who was unknown to Marks. On the return trip to New Orleans, Marks was stopped by an Illinois state Ltrooper for speeding. The trooper became suspicious of Marks and his passengers and searched the vehicle (with Marks’ consent) and its occupants. The trooper’s search of the vehicle revealed a purportedly stolen firearm in the trunk of the cruiser. A narcotics dog also seemingly found a small amount of marijuana in the vehicle. Further, Edwards’ friend had an outstanding warrant for her arrest. During the stop, Marks repeatedly asked the state trooper not to report the stop to the NOPD (“the appointing authority”). Marks claimed that he did not know that one of his passengers was carrying marijuana and further that there was an illegal weapon in the trunk of the car. The trooper declined to press charges against Marks for either the weapon or marijuana violation, but did issue him a speeding ticket and notified the NOPD.

The appointing authority conducted a hearing before Deputy Superintendent Warren Riley, and issued a formal letter of reprimand and termination on 2 October 2003. The appointing authority levied the following disciplinary actions against Marks: (a) for speeding, Marks was suspended for 10 days; (b) for untruthfulness, he was suspended for 30 days; (c) for lack of professionalism, he was suspended for 5 days; and (d) for taking an unmarked New Orleans police car from New Orleans to Milwaukee, he was suspended for 30 days. Additionally, Marks was immediately terminated, the stated cause for which was transporting two civilians in the police cruiser and abuse of position.

| sMarks appealed his termination, citing three errors, two of which remain for our consideration. First, he asserts that he was suspended for violations that were not proven at the civil service hearing. Second, he asserts that the penalty of termination from the department was not commensurate with the conduct in question. First, we look to whether the evidence presented to the City Civil Service Commission (“CSC”) was sufficient to warrant disciplinary action against Marks.

At the hearing, which was held on 3-4 December 2003, a hearing officer viewed the videotape of the stop by the Illinois state trooper, and accepted testimony from Superintendent of Police Eddie Compass, Marks, and Sergeant Michael Harrison (the NOPD’s investigating officer). The videotape (more than two hours in length) showed the entirety of the stop by the state trooper in Illinois. On the videotape, Marks is heard asking the trooper to not report the stop to the appointing authority, because it would mean a lot of trouble for him, specifically because he feared losing his job.

At the hearing, the parties stipulated to a number of facts: Marks was traveling at 74 m.p.h. in a 65 m.p.h. zone in Illinois; Marks took an NOPD vehicle out of state without approval of the appointing authority; and Marks did transport two civilians in the police cruiser. A review of the videotape reveals that Marks did ask the state trooper that made the stop to not report the violation to the appointing authority. It is uncontroverted that a loaded semi-automatic weapon was found in the trunk of the cruiser. However, Marks asserted that he had no knowledge of the illegal weapon found in the trunk, and did not lie about its presence. He further argued that he asked the state trooper not to report him in a 14personal capacity, and not in his professional capacity, and therefore that his asking for leniency was not an abuse of his position.

Following the hearing, the hearing officer issued a lengthy opinion in which he found that Marks’ termination was not justified. He found that the appointing authority did not prove that Marks abused his authority in asking the trooper for leniency, even if it was undisputed that Marks was guilty of improperly transporting civilians out-of-state. The hearing officer opined that Marks’ termination was not justified given the totality of the circumstances surrounding the incident, and further that the Illinois trooper was racially motivated in the way he conducted the stop and ultimately searched the vehicle and its occupants. Specifically, the hearing officer found that Marks asked for leniency from the trooper as any private citizen would do after being stopped for speeding, and not in an attempt to use his position as a police officer to avoid criminal prosecution. Further, he found the suspension for speeding “ludicrous” insofar as Marks was ticketed for traveling 74 m.p.h. in a 65 m.p.h. zone and paid the fine. He upheld, however, the 30-day suspension for taking the police vehicle out of state, insofar as the factual basis of this charge was stipulated to by Marks and required no further proof on the part of the appointing authority.

The CSC rejected the hearing officer’s recommendation, and upheld Marks’ termination by the appointing authority, as well as the other charges of misconduct leading to suspension. In its opinion, the CSC found that “the Appointing Authority has proven its case against [Marks] on all charges and that his conduct | ¿reflects very badly on the integrity and efficiency of the New Orleans Police Department.”

A permanent, classified civil service employee may not be disciplined or terminated except for legal cause and in writing. La. Const, art. X, Sec. 8; Saacks v. City of New Orleans, 95-2074 (La.App. 4 Cir. 11/27/96), 687 So.2d 432. The employee may appeal the disciplinary action to the CSC, and the employer, or the appointing authority, has the burden of proof at the hearing. Specifically, the appointing authority has the burden of proving by a preponderance of the evidence that the complained-of conduct occurred and that it has impaired the efficiency of the public service of the department. Saacks v. City of New Orleans, 95-2074, pp. 48-49 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, 456; Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). Once the CSC has rendered a decision regarding the employee’s appeal of the disciplinary action, we are bound to uphold the decision of the CSC unless it is “arbitrary, capricious, or characterized by an abuse of discretion.” Gant v. Department of Police, 99-1351, p. 4 (La.App. 4 Cir. 1/5/00), 750 So.2d 382, 384, citing, Walters v. Dept, of Police of New Orleans, 454 So.2d 106, 114 (La.1984); Newman v. Department of Fire, 425 So.2d 753 (La.1983).

First, we look to the offenses that were the stated grounds for termination. The appointing authority terminated Marks on the grounds that he violated the departmental regulations concerning transporting civilians and abuse of position. Chapter 41.29 relative to Transporting Civilians provides:

3. Employees shall not transport civilians to provide a convenience to the civilian (unless for the civilian’s safety) nor shall they allow civilians to ride in a Department vehicle while | (¿hey perform their normal duties, unless authorized by the Superintendent of Police.

It is undisputed that Marks transported two civilians across state lines in a police cruiser owned by the appointing authority; indeed, he stipulated to this fact. Therefore, the appointing authority had no factual burden of proof for this charge. The only burden the appointing authority had with regard to this charge was whether the disciplinary action was commensurate with the complained-of behavior. The CSC found that it was.

The facts underlying one of the stated reasons for termination are stipulated to: Marks admits he transported civilians across state lines in a purely personal capacity. This was clearly in violation of departmental regulations. As the appointing authority pointed out, this not only was misappropriation of city property, but it also potentially exposed the appointing authority to liability unnecessarily. Marks has offered no evidence of circumstances that would mitigate his actions other than he was “messed up” at the time and made a serious error in judgment. Therefore, we do not find that the CSC’s decision to uphold the disciplinary action taken by the appointing authority was arbitrary or capricious considering the record before us. Accordingly, the decision of the CSC is affirmed.

Because we are affirming the grounds for termination of Marks, we pretermit a discussion of the remaining disciplinary action. ■

AFFIRMED.

      . Although the search of the vehicle is part of a videotape forming part of the evidence in this matter, the Illinois trooper declined to press charges; the alleged drugs are not visible on the videotape.

      . Although Marks received a 75-day suspension, it was never served in light of his immediate termination per his dismissal letter.

      . The record before us fails to reflect that the Illinois state trooper acted in an inappropriate manner dealing with Marks.


author: COOKS, Judge.

text:
    STATE of Louisiana, in the Interest of D.H. and E.G.F. v. A.E.F.
    No. 2006-1041.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Robert J. Elliott, Department of Social Services, Alexandria, LA, for Appellee, State of Louisiana.
    D. Wayne Bush, S. Christie Smith, IV, The Smith Law Firm, LLP, Leesville, LA, for Appellant A.E.F.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

|.¿STATEMENT OF THE CASE

A.E.F. appeals the judgment of the trial court terminating her parental rights based on La.Ch.C. art. 1015(5). Her attorney filed a motion on appeal to withdraw as counsel of record. For the reasons assigned below, we affirm the decision of the trial court terminating A.E.F.’s parental rights. We grant the motion of S. Christie Smith, TV to withdraw as counsel for A.E.F.

STATEMENT OF THE FACTS

A.E.F. is the mother of D.H., age six and E.G.F., age four. The events leading to the termination of A.E.F.’s parental rights began in November 2003 when an investigation was initiated by the Department of Social Services, Office of Community Services of Vernon Parish, concerning a report of alleged sexual abuse of D.H., then age three, by her stepfather. The child was examined by a physician and the Department requested a meeting with D.H.’s mother to discuss the alleged incident. When the mother failed to appear as requested, considering the seriousness of the allegations, the Department began to inquire as to her whereabouts. She and her two children were eventually located by the Rapides Parish Sheriffs Department in the home of an individual who operated a methamphetamine lab. When she was discovered by deputies, A.E.F. was in the process of cooking methamphet-amines. A.E.F. was arrested and jailed. On November 26, 2003, an Instanter Order was issued removing the children from the custody of their mother and placing them in the temporary custody of the State of Louisiana (State). Thereafter, the children were adjudicated children in need of care and D.H. was placed in a foster home.

The State developed several case plans for the children with input from all | ¿interested parties including A.E.F. The initial goal was reunification of D.H. with her mother. However, because there was no substantial compliance by A.E.F. with the case plans submitted by the State, and considering the fact that D.H. had been in foster care for two years, the State filed a petition for termination of parental rights on October 19,2005. Following a hearing, the trial court terminated A.E.F.’s parental rights. We have reviewed the testimony of the witnesses presented at the hearing and find no error in the judgment of the trial court.

LAW AND DISCUSSION

The grounds for termination of parental rights are provided for in La.Ch.Code art. 1015(5) which provides, in relevant part:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The intervention of the State in the parent/child relationship is only justified under serious circumstances. In order to sever the legal relationship between parent and child, the State has an onerous burden of proof. The State must establish each element of the grounds for termination of the parental relationship by clear and convincing evidence. State ex rel. D.R.B. 00-1321 (La.App. 3 Cir. 12/6/00), 777 So.2d 508. In an involuntary termination proceeding, there are two interests at stake — those of the child and those of the parent. However, “[i]n balancing the parents’ and the child’s interests, the courts of this state have consistently found the interests of |4the child ... [is] paramount over those of the parents.” State ex rel. L.B. v. G.B.B., 02-1715, p. 4 (La.12/4/02), 831 So.2d 918, 921. The Louisiana Supreme Court explained:

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated.(Citations omitted.) As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.

State ex rel. J.A., 99-2905, pp. 8-9, (La.1/12/00), 752 So.2d 806, 811.

The child, D.H., was three when the State obtained an Instanter Order removing her from A.E.F.’s custody and placing her in foster care. Her foster family, the Dauzats, seek to adopt her. During the two year interim, the State prepared several case plans, which were approved by the court, with the goal of reunification. A case plan assessment, prepared shortly after the children were removed, reflect A.E.F.’s pattern of behavior with regard to D.H. The reports states, in part:

Mrs. F. visited with the children twice weekly since the last FTC until January 29. She was out of contact with the office from January 29-February 19. No family members seemed to know where she was. On February 19, she contacted the worker and asked to visit with the children, stating that she has been psychiatrically hospitalized in Lafayette. She failed to produce any documentation of this hospitalization and subsequently did not appear for the February 23 Adjudication Hearing. She has not been in contact with this office since February 19. Reports from law enforcement indicate that she has missed other court hearing[s] and there are warrants for her from Leesville City Police; and Vernon, Rapides, and Lafayette Parish Sheriffs offices. Mrs. F. has completed none of her case plants] other than the visits described above.
Mrs. F. has made no progress on her case plan. Psychological | r,evaluation shows that she will need very long term treatment and her prognosis is very poor.

Sharon Lewis, a child counselor with the Allen Parish Mental Health Clinic, testified at the hearing. Ms. Lewis held a team conference and presented a case plan to A.E.F. with the goal of unification. D.H.’s father was incarcerated and did not attend. Another conference was called several months later to discuss A.E.F.’s noncompliance. Ms. Lewis’ records reflect A.E.F. attended only eleven of the thirty-eight scheduled visits with her child and was out of contact with the agency for six months in 2004. A.E.F. began substance abuse evaluations, but failed to make follow-up appointments. Ms. Lewis stated when she left the agency, Ila Cook took over A.E.F.’s case.

Ms. Cook testified she had limited contact with both parents in the fall of 2004. She scheduled a team conference in October 2004 to discuss a case plan. However, neither parent attended because both were back in jail. A.E.F. was subsequently released but in late January 2005, she was again incarcerated on a drug conviction. D.H.’s father was also incarcerated. During this time, Ms. Cook requested home studies on several family members, but there were no family members willing to take D.H. or the home was rejected as a possible placement. Ms. Cook testified both parents were in and out of jail during the time she handled the case file. The last case plan was prepared by Ms. Cook in October 2005. The goal was changed from reunification to adoption.

Dr. John Simoneaux, a licensed psychologist, testified at trial. He saw A.E.F. on two occasions and conducted clinical interviews, personality testing and a mental status exam. In the first examination, he found A.E.F. had a very serious drug problem and would need very long-term treatment. Dr. Simoneaux found “she was irresponsible, immature and deceptive .... she told me things that contradicted herself Rand contradicted other reports, minimized her drug problems .... she clearly had serious problems, that her judgment was deplorable and there had been no apparent improvement from the time the children were removed because at — by the time I saw her she was in terrible shape.” Dr. Simoneaux testified A.E.F. had “no insight into the concerns regarding parenting... .1 suggested therapy, but I thought it was going to be very, very long-term and I said the prognosis would be very poor.” During the second evaluation, Dr. Simoneaux indicated he saw some change, but concluded: “I thought it was primarily due to the fact that she had been in jail .... because, of course, she didn’t have access to drugs. I said her need for substance abuse treatment was still ‘profound’, was the word I used. Personality problems were still very evident.” With the level of drug use involved, Dr. Simoneaux stated A.E.F. would need a complete lifestyle change and a lifetime commitment to sobriety which, realistically, he did not see happening in the future.

Terri Theaux, a licensed professional counselor with the Psychology Clinic in DeRidder, was called to testify. When allegations of sexual abuse occurred, D.H. was brought to Ms. Theaux for counseling. In the course of her treatment of the child, she saw A.E.F. Ms. Theaux described an early visit with A.E.F., as follows:

I had one in particular in 2004 that I was very concerned about. It was — [A.] had probably been released from an incarceration maybe a day or two. That first went okay. The second one I was really concerned about [A.] She was full of bruises and marks. Her eyes were glazed over. Her speech was slurred. She indicated to me that she had taken Loritab for a back problem and that the person that she was staying was probably not the best person for her to be around and I was really concerned for her safety.
Well, it was difficult for her to attend to the child and I had to encourage the child to come near her mother to engage in an activity with her, one that I chose to structure so that the child would be safe and she was very reluctant to do that at first but she did warm up to her.

During the time Ms. Theaux was counseling D.H., A.E.F. was again jailed on drug 17related charges. D.H. knew her mother was in jail and expressed fear of going to visit her in that setting. Consequently, Ms. Theaux had to arrange to have A.E.F. transported for visits with her child. Ms. Theaux testified when D.H. was initially evaluated there were substantial difficulties with her behavior. She would hit and kick her younger brother. She was aggressive, had nightmares, would scream for hours, and throw temper tantrums. “She was inconsolable, couldn’t stop her crying, became hysterical, would resist even the most simple of commands.... There were problems with bowel control. She would wet the bed and she was basically just very, very anxious and miserable.” Since being placed with the Dauzat family Ms. Theaux testified her behavior has dramatically improved. When questioned as to reasons for the change in her behavior, Ms. Theaux stated:

Her stability and predictability of life. She gets up at a certain time, goes to school, knows when she’s coming home, knows who is going to drop her off, pick her up, is told in advance of doctors appointments and therapy appointment, just — her life is very orderly and predictable for her and we know that young children who have a very predictable lifestyle that they tend to adjust quite well and do very well and I believe that really has contributed to her stability.
I believe at this point in her life that the Dauzats are really her psychological parents. That she has bonded with them.
I think the reunification issue has certainly been complicated by — as previously noted, her drug use and her frequent incarcerations. I don’t have a date of when this current stint will end. The child is five and a half, will be six in October of this year.
I think she’s an anxious enough child she needs for that to be settled so that she can have a sense of direction and a sense of belonging.... She has some future direction and plans and some hopes in her life and, and she’s really in a, in a good place right now.

A.E.F. testified at the hearing. She was twenty-six years old and was currently in the Simmesport Correctional Facility for possession of cocaine. She had been in jail for seventeen months. While in prison, A.E.F. stated she attended parenting, anger management, AA, NA, life skills and freedom classes. She had contacted IsClaire House, a half-way house for mothers and their children. She believes she will be paroled in September 2006 and, if released, plans to seek residency in Claire House with her child, D.H. However, Oliver Michael Medina, an officer with the Department of Public Safety and Corrections, Division of Probation and Parole, stated her full-term release date is not until March 2010 and she has been convicted of a probation violation and there is another probation violation pending. Additionally, D.H.’s counselor, Ms. Theaux, was specifically questioned about whether a half-way house setting would be beneficial for D.H. She responded:

I think the child has made so much progress in foster care and in the Dau-zat home that I think there are potentially more risk to her if she were to be removed from that home and placed in the setting that you and I are discussing. I think potentially there, there is harm to the child.

In reviewing the testimony, we find there was no substantial compliance with the case plan for reunification by A.E.F. from the time the instanter order was issued until the time of trial. Prior to her second incarceration she made no effort to improve her situation or seek treatment for her drug dependency. It was only after she was incarcerated the last time that she expressed an interest in changing her life. D.H. was only three when she was placed in foster care and was experiencing severe emotional trauma. Since that time the Dauzat family has provided a stable, secure environment for her and they seek to adopt her. We find the State has carried its burden of proving there is no reasonable expectation of significant improvement in the A.E.F.’s condition or conduct in the near future. We conclude, considering the child’s age and her need for a safe, stable, and permanent home, the best interest of D.H. is served by terminating the parental rights of A.E.F. and releasing her for adoption. Therefore, we affirm the decision of the trial court.

| .DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court termination the parental rights of A.E.F. We grant the motion of S. Christie Smith IV to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Upon investigation A.E.F. revealed her son’s legal father was not his biological father. DNA testing confirmed J.P. was the biological father of E.G.F. J.P. has custody of his son and therefore E.G.F.'s placement is not an issue in this proceeding. D.H.’s biological father did not appeal the decision of the trial court terminating his parental rights.


author: EZELL, Judge.

text:
    Louise GASPARD v. IBERIA BANK.
    No. CA 06-1459.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Rehearing Denied April 25, 2007.

      Edward C. Abell, Jr., Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee, Iberia Bank.
    Stephen Francis Mestayer, Attorney at Law, New Iberia, LA, for Defendants/Ap-pellees, Michael Comeaux, Mary E.D. Co-meaux, Donald R. Comeaux, Cathy M.C. Koch, Mary B.C. Winmill.
    Lucretia Patrice Pecantte, Peeantte-Burton & Burton, New Iberia, LA, for Plaintiff/Appellant, Louise Gaspard.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

hThis case deals with the same facts and issues as set out in Succession of Comeaux, 06-1454 (La.App. 3 Cir.3/7/07), 951 So.2d 522. In this matter, Louise Comeaux Gaspard (Louise) appeals the decision of the trial court granting summary judgment in favor of Iberia Bank dismissing her claims relating to a certificate of deposit. For the following reasons, we affirm the decision of the trial court.

Ray Comeaux, Louise’s father, was diagnosed with terminal cancer in December of 2003. On January 18, 2004, Ray Comeaux confected an olographic will bequeathing five certificates of deposit (CD) to four of his children and one grandchild. The.CDs were all issued through Iberia Bank in New Iberia. The total value of all five CDs was roughly $68,000. Three of these CDs were made payable to him or the individual child listed on the CD, two were payable upon death. The CD bequeathed to Louise, worth roughly $40,000, was payable on death.

In April of 2004, Ray Comeaux, who was bed-ridden at the time, asked two of his sons, Michael and Rodney, to close out the CDs and place the proceeds into a checking account for the benefit of his wife, Betty. In accordance with their father’s wishes, Michael and Rodney went to Iberia Bank to redeem the CDs. There, Connie Bourque, an officer at Iberia Bank, told them that because their particular CDs were made out in their father’s or their names, they could sign and redeem their own CDs. However, Ray Comeaux would have to sign each remaining CD before redemption was possible.

Michael and Rodney returned to their father’s home, gave him the remaining CDs, and explained to him that the CDs needed to be endorsed. Ray Comeaux then told Michael to have Betty sign his name for him, as he was physically unable to do so. Michael, Rodney, and Betty were all in the room with Ray Comeaux when this | grequest was made, and all four were present when Betty signed the documents for her husband. Michael and Rodney went back to Iberia Bank, where all five CDs were redeemed, and the proceeds were placed into a checking account. Ray Comeaux died in June of 2004.

After her father’s death, Louise went to Iberia Bank to try to redeem the CD. When she was unable, she filed the present action, claiming that Iberia Bank was negligent in allowing someone other than her father to redeem the CD and that the bank’s negligence caused her damages in the previous amount of the CD. Iberia Bank filed a motion for summary judgment which was granted. From this decision, Louise appeals.

On appeal, Louise asserts as her sole assignment of error that the trial court erred in granting summary judgment in favor of Iberia Bank. We disagree.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. The movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id. This court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Champagne v. Ward, 03-3211, pp. 4-5 (La.1/19/05), 893 So.2d 773, 776-77.

As in Succession of Comeaux, 06-1454 (La.App. 3 Cir.3/7/07), 951 So.2d 522, Louise has failed to show any proof whatsoever that Iberia Bank was negligent |3in its actions. To the contrary, the bank and the Comeauxs have established that Ray Comeaux’s wishes were carried out as he intended — that the CDs be redeemed so that his wife, Betty Comeaux, could have access to the funds to live off of after her husband died. While Ray Comeaux did not sign the CDs himself, he directed his wife to do so through his son. She heard this request and fulfilled it in the presence of Ray Comeaux. “Where a person’s name is signed for him at his direction and in his presence by another, the signature becomes his own, and is sufficient to give the same validity to an instrument as though written by the person himself.” See Elmore v. Butler, 169 So.2d 717 (La.App. 2 Cir.1964); Coats v. Guaranty Bank & Trust Co., 174 La. 503, 141 So. 41 (1932). Accordingly, the CD at issue was properly endorsed, and Iberia Bank committed no negligence in redeeming it.

Furthermore, the CD left to Louise was in her father’s name, payable to her only upon his death. In Broussard v. Broussard, 340 So.2d 1309 (La.1976), the supreme court held that the purchase of CDs in the name of a husband and his wife did not effect a manual gift to the wife because there was no actual withdrawal or delivery of the funds. Merely placing two names on the investment certificates did not, either constructively or actually, transfer the funds. Id. (citing Succession of Grubbs, 170 So.2d 256 (La.App. 2 Cir. 1964), unit denied, 247 La. 409, 171 So.2d 666 (1965)). Likewise, in the instant case there was no delivery or transfer of the funds to Louise by the placing of her name upon the CD in question. She simply was not the owner of the money in the CD. The money belonged to Ray Comeaux until he died, and he could do with it as he pleased. He chose to give the money to his wife rather than to his daughter. She was merely a prospective legatee. When Ray Comeaux decided to cash in the CD, Louise’s legacy no longer existed. She has no right to make a claim against Iberia Bank for the value of the CD, as she was never |4its owner.

For the above reasons, the decision of the trial court granting summary judgment in favor of Iberia Bank is hereby affirmed. Costs of this appeal are assessed against Mrs. Gaspard.

AFFIRMED.


author: PETERS, J.

text:
    SLAYTER & SLAYTER, LLC v. Bruce RYLAND.
    No. 2006-1385.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Henry H. Lemoine, Jr., Pineville, LA, for Plaintiffs/Appellants, Slayter & Slay-ter, LLC, Slayter LLC, Aaron Slayter, Sr.
    Charles S. Weems, III, Trevor S. Fry, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for De-fendanVAppellee, Bruce Ryland.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

|, In this litigation, Slayter & Slayter Limited Liability Company, Slayter Limited Liability Company, and Aaron Slayter, Sr. brought suit against Bruce Ryland, seeking to recover a money judgment against him under various theories of recovery. They now appeal the trial court’s grant of a peremptory exception of prescription in favor of Mr. Ryland, dismissing all of their claims against him. For the following reasons, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

PROCEDURAL HISTORY

This litigation began as a suit by Slayter & Slayter Limited Liability Company (Slayter & Slayter LLC) filed against Mr. Ryland on May 30, 2003. In that initial suit, Slayter & Slayter LLC asserted that Mr. Ryland, as a former employee, owed the company $124,451.50. The petition asserted that this total included $47,777.00, which Mr. Ryland took from the company by writing unauthorized checks and overdrawing his personal capital account, and $76,674.50 in unpaid loans from the company. Mr. Ryland responded to the suit on July 7, 2003, with an answer and reconven-tional demand wherein he named Slayter & Slayter LLC, Slayter Limited Liability Company (Slayter LLC) and Mr. Slayter as defendants in reconvention.

Slayter LLC and Mr. Slayter only became party plaintiffs in the litigation on September 30, 2005, when they joined with Slayter & Slayter LLC in filing a cross-claim against Mr. Ryland. In the cross-claim, the three plaintiffs sought to recover | a$41,756.75 from Mr. Ryland because of his alleged negligent failure to timely cancel certain insurance policies when instructed to do so. The amount sought to be recovered represented the cost of the insurance premiums paid after the policies were thought to have been cancelled.

On May 2, 2006, Mr. Ryland filed a peremptory exception of prescription as to all claims asserted against him by Slayter & Slayter LLC, Slayter LLC, and/or Mr. Slayter. After a June 12, 2006 hearing, the trial court granted the exception and dismissed all of the plaintiffs’ claims. The trial court executed a judgment to that effect on June 20, 2006, and the three plaintiffs perfected this appeal.

FACTUAL HISTORY

The trial court based its decision on the testimony of Mr. Ryland, the deposition testimony of Mr. Slayter, and a number of documentary exhibits. Although the trial court did not elaborate on its factual findings in granting the exception, there is little dispute concerning the factual background needed to resolve the issues now before us.

The trial record establishes that Slayter LLC and Slayter & Slayter LLC are member-managed Louisiana limited liability companies with Mr. Slayter as the sole manager of Slayter LLC, and his son, Aaron Slayter, Jr., as the sole manager of Slayter & Slayter LLC. Mr. Ryland was one of the original members of Slayter & IsSlayter LLC and, sometime after its organization, obtained an ownership interest in Slayter LLC.

Mr. Slayter was married to Mr. Ry-land’s mother when Mr. Ryland began working for one of the interrelated companies in the mid 1980’s. Mr. Ryland’s initial employment amounted to nothing more than performing “odd jobs.” However, he ultimately became office manager/comptroller in September of 1992. He held that position in one or more of the interrelated companies until his employment was terminated on July 6, 2001. On that day, Mr. Slayter forwarded Mr. Ryland a letter informing him that, effective that date, he was “relieved and dismissed from all [his] responsibilities and duties from Slayter LLC, Slayter and Slayter LLC, and all companies and properties associated.”

Mr. Ryland’s office manager/comptroller position did not include the duties imposed on the “manager” as named in the organizational documents of the two limited liability companies although it did include personal services to Mr. Slayter. According to Mr. Slayter, “[Mr. Ryland] was in charge of my personal insurances, my personal bills, paying the company bills, seeing that the companies were properly insured, seeing that the taxes were computed correctly.” Additionally, he was responsible for “[preparing paperwork for the people that prepared the taxes [for the |4companies].” Mr. Ryland had check-writing authority for both Mr. Slayter and Slayter & Slayter LLC. Despite this long list of responsibilities, Mr. Slayter strongly suggested that Mr. Ry-land’s job performance was less than satisfactory and that Mr. Ryland had no true responsibility. In his testimony, Mr. Ry-land agreed with Mr. Slayter’s description of his duties, but suggested that he had a number of other non-administrative duties not normally expected of a true office manager/comptroller. The $124,451.50 claimed by Slayter & Slayter LLC in the initial pleading is derived from five separate transactions involving Mr. Ryland while he worked for the company. Slay-ter & Slayter LLC asserts that in 1996, Mr. Ryland borrowed $50,000.00 from the company and never repaid the loan; that in the early part of 1999, he borrowed $26,674.50 from the company to purchase a horse trailer and never repaid the loan; that in April of 2000, he wrote and negotiated a $6,900.00 company check without authorization; that in April of 2001, he wrote and negotiated a $7,300.00 company check without authorization; and that at some point during his employment, he overdrew his personal capital account by $33,577.00.

Mr. Ryland admits receiving the funds at issue, but denies the nature of all but one of the transactions as described by Slayter & Slayter LLC. According to Mr. Ryland, the $50,000,00 was a gift from Mr. Slayter and the two company checks and the withdrawal from his personal capital account were salary related and completely authorized. He does admit that the $26,674.50 at issue was a loan, but asserts that he paid it back, in cash, to Mr. Slay-ter.

The claim asserted against Mr. Ryland by Slayter & Slayter LLC, Slayter LLC, and Mr. Slayter in the subsequently filed cross-claim has as its origins Mr. Slayter’s Ldivorce from Mr. Ryland’s mother. According to the pleadings, Mr. Slayter and Mr. Ryland’s mother were divorced on August 7, 1997, but before the divorce they had entered into certain agreements wherein Mr. Slayter agreed to maintain certain insurance policies to the benefit of his estranged spouse. The pleadings further assert that after Mr. Slayter had completed his obligations under the agreements and was no longer required to provide that insurance coverage, he instructed Mr. Ryland to cancel the appropriate insurance policies, but Mr. Ryland did not follow those instructions. The three plaintiffs argue that, because of Mr. Ryland’s “negligence,” Mr. Slayter and the two companies lost $41,756.75 in premiums for unnecessary insurance. Mr. Ryland did not address this issue in his testimony at the hearing on the prescription exception.

OPINION

The plaintiffs assert that all of the claims are personal actions subject to the ten-year prescriptive period provided for in La.Civ.Code art. 3499. Mr. Ryland asserts that they are subject to either the one-year prescriptive period provided for in La.Civ.Code art. 3492 or the three-year prescriptive period provided for in La.Civ. Code art. 8494. The trial court agreed with Mr. Ryland and dismissed all of the plaintiffs’ claims.

Prescription of Loans at Issue

Louisiana Civil Code Article 3499 provides that “[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” (Emphasis added). One of those legislative exceptions is La.Civ.Code art. 3494(3), which provides that “[a]n action on money lent” is subject to a three-year prescriptive | (¡period. Slayter & Slayter LLC clearly asserts in its pleadings, as did Mr. Slayter in his deposition testimony, that the $50,000.00 transaction and the $26,674.50 transaction were loans. The $50,000.00 transaction occurred in 1996, and the $26,674.50 transaction occurred in January and February of 1999. Mr. Slayter testified that no payments were made on either loan. Suit on this issue was filed on May 8, 2003, or more than three years after the transactions. “[Wjhen the plaintiffs petition has clearly prescribed on its face ... the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted.” Rizer v. Am. Sur. & Fid. Ins. Co., 95-1200, p. 3 (La.3/8/96), 669 So.2d 387, 388. Slayter & Slayter LLC presented no evidence to establish suspension or interruption of the prescriptive period. Thus, these claims have prescribed, and we find no error in the trial court’s grant of the exception of prescription as to these claims.

Unauthorized Withdrawals Issue

With regard to the $44,777.00 at issue in the original petition of Slayter & Slayter LLC, Mr. Ryland contends that the three transactions giving rise to the amount in controversy are subject to the one-year prescriptive period of La.Civ. Code art. 3492 and not the ten-year prescriptive period for breach of fiduciary duties under La.Civ.Code art. 3499. Without acknowledging the truth of the allegations against him, Mr. Ryland points out that the one-year prescriptive period of La.Civ.Code art. 3492 applies to “[djelictual actions,” and that the claims against him are delictual in nature, i.e., theft and embezzlement. Because the alleged acts occurred in 2000 and [72001, he asserts that the claims asserted in Slayter & Slayter LLC’s May 30, 2003 suit have prescribed.

While recognizing the prescriptive period set forth in La.Civ.Code art. 3492, we also note that a suit for breach of fiduciary duties is generally a personal action governed by the ten-year prescriptive period of La.Civ.Code art. 3499. Beckstrom v. Parnell, 97-1200 (La.App. 1 Cir. 11/6/98), 730 So.2d 942. Thus, if a fiduciary relationship existed between Mr. Ryland and Slayter & Slayter LLC in 2000 and 2001, the claims have not prescribed.

In State v. Hagerty, 251 La. 477, 205 So.2d 369, 374-375 (1967), cert, denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 855 (1968), the supreme court, quoting a number of sources, established the meaning of fiduciary as follows:

“The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person, trust or estate. * ⅛ * ” 36A C.J.S. Fiduciary, p. 381.
“One is said to act in a ‘fiduciary capacity' or to receive money or contract a debt in a ‘fiduciary capacity,’ when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part. The term is not restricted to technical or express trusts, but includes also such offices or relations as those of an attorney at law, a guardian, executor, or broker, a director of a corporation, and a public officer. * * * ” Black’s Law Dictionary, Fourth Edition (1951), Fiduciary Capacity. Cf. Oldland v. Gray, 10 Cir., 179 F.2d 408 [(10th Cir.1950)]; Emery & Kaufman, Ltd. v. Heyl, 227 La. 616, 80 So.2d 95 [ (1954) ]; Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188 [(1962)].

| sLouisiana law imposes a fiduciary duty to the corporation on corporate officers and directors. Quartana v. Jenks, 436 So.2d 1335 (La.App. 5 Cir.), writ denied, 441 So.2d 1224 (La.1983). Additionally, La.R.S. 12:91(A) provides, in pertinent part, that:

Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment, and skill which ordinarily prudent men would exercise under similar circumstances in like positions ...

In the matter now before us, the trial court addressed the fiduciary issue and reached the following conclusion:

I do not find that the conduct of Mr. Ryland rose to the level of a fiduciary. I believe he was an at-will employee at best, and a glorified gopher in which he was told what to do and when to do it and how to do it. I believe any actions taken by him would have been short-lived and probably would have been a complete firing and termination at that point.

While we agree with the trial court that some of Mr. Ryland’s obligations were less than administrative, it is not disputed that he held the position of office manager/comptroller at the time he wrote the alleged unauthorized checks and made the alleged overdraft of his capital account. In fact, Mr. Ryland judicially admitted that relationship and is bound by its pleadings in that regard. J.H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972).

A comptroller, or controller, is “the chief accounting officer of a business enterprise whose duties [usually] include responsibility for all accounting, budgeting, costing, and internal auditing functions ...” Webster’s Third New International Dictionary of the English Language, Unabridged 468 & 497 (Philip Babcock Gove Red., 1986). This definition is consistent with the description of Mr. Ryland’s employment position as described by both Mr. Slayter and Mr. Ryland. Mr. Ryland clearly was an officer of Slayter & Slayter LLC and owed a fiduciary duty to the company. That being the case, the ten-year prescriptive period of La.Civ.Code art. 3499 is applicable to his actions, and the trial court erred in granting his exception of prescription as to these claims.

Negligence Issue

Mr. Slayter, Slayter & Slayter LLC, and Slayter LLC filed their cross-claim on the insurance issue, asserting that Mr. Ryland was negligent in failing to cancel the insurance policies, some eight years after the alleged conduct. Even conceding that Mr. Ryland was working in a fiduciary relationship at the time of his alleged negligent acts, his conduct is governed by a one-year prescriptive period. See Young v. Adolph, 02-67 (La.App. 5 Cir. 5/15/02), 821 So.2d 101; dela Vergne v. dela Vergne, 99-364 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271. Thus, their petition had prescribed on its face and the burden shifted to them to prove suspension or interruption of prescription. Rizer, 669 So.2d 887. The plaintiffs presented no evidence to establish that prescription had been suspended or interrupted, and we find no error in the trial court’s determination that the negligence claim had prescribed.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment dismissing the claim of Slayter & Slayter Limited Liability Company against Bruce Ryland for recovery of the unpaid loans in the amount of $76,674.50; we reverse the trial court’s judgment dismissing the claim of Slayter & Slayter Limited Liability Company |inagainst Bruce Ryland for the unauthorized withdrawals in the amount of $47,777.00, and remand that matter for further proceedings; and we affirm the trial court’s judgment dismissing the negligence claim of Slayter & Slayter Limited Liability Company, Slayter Limited Liability Company, and Aaron Slayter, Sr. against Bruce Ryland. We assess one-half of the costs of this appeal to the plaintiffs, Slayter & Slayter Limited Liability Company, Slayter Limited Liability Company, and Aaron Slayter, Sr., and we assess one-half of the costs of this appeal to the defendant, Bruce Ryland.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Mr. Ryland’s pleading is actually a recon-ventional demand as to Slayter & Slayter LLC only. La.Code Civ.P. art. 1061. The claim against Slayter LLC and Mr. Slayter is a third party demand. La.Code Civ.P. art. 1111. However, the specific classification of these parties in Mr. Ryland's responsive pleadings does not affect the disposition of the issues on appeal. Mr. Ryland later amended his recon-ventional demand to add a number of other companies which appear to be interrelated, but the status of these companies is not before us.

      . This filing is not properly a cross-claim as Mr. Ryland is not a "co-party” to any of the cross-claim plaintiffs. La.Code Civ.P. art. 1071. However, as was the case with the reconventional demand issue, this classification does not affect the disposition of the issues on appeal.

      . Despite having attested to the accuracy of the factual allegations in the pleadings filed on behalf of the three plaintiffs, Mr. Slayter’s deposition testimony lent little support for the plaintiffs' assertions, as he professed to have little or no memory of, and/or involvement in, the activities giving rise to the litigation.

      . Slayter LLC was formed effective January 1, 1995, and Slayter & Slayter LLC was formed effective March 30, 1998.

      . His interest was set at one percent in each company.

      . The couple divorced on August 7, 1997.

      . Mr. Slayter owns a number of interrelated companies, some of which preexisted the current litigants.

      . The record does not establish which of the interrelated companies retained his services as office manager/comptroller, but it was obviously neither Slayter & Slayter LLC nor Slayter LLC because those companies had not been created at the time.

      . The individual managers named in the organizational documents have absolute power in the long range and day to day operation of the individual companies.

      . Mr. Ryland suggested that he was required to check the mail each morning, among other less than administrative duties.

      . Neither the pleadings nor the evidentiary record breaks down the losses sustained by each individual plaintiff.

      . The $26,674.50 transaction consisted of the issuance of two checks. The first, for $25,000.00, was issued on January 30, 1999, for the purchase price of the horse trailer and was made payable to the vendor. The second, for $1,674.50, was issued on February 4, 1999, for the payment of taxes and license fees and was made payable to the Department of Public Safety of the State of Louisiana.

      . In his July 7, 2003 answer and reconven-tional demand, Mr. Ryland alleged that "[f]rom approximately September 1992 through July 6, 2001, [he] was employed by [Slayter & Slayter LLC, Slayter LLC and Mr. Slayter] as an officer manager/comptroller."