text:
    GULF RICE MILLING, INC. v. Richard SONNIER.
    No. 05-1432.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 21, 2006.

      John F. Craton, Barousse & Craton, Crowley, Louisiana, for PlaintiffAppel-lant/Appellee, Gulf Rice Milling, Inc.
    Rick J. Norman, Jr., Norman Business Law Center, Lake Charles, Louisiana, for Defendant/Appellee/Appellant, Richard Sonnier.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

11 Gulf Rice Milling, Inc. appeals a jury verdict in favor of Richard Sonnier, a rice farmer in Jefferson Davis Parish, Louisiana, in which the jury determined that Mr. Sonnier did not breach a contract with Gulf Rice Milling, Inc. and awarded Mr. Sonnier damages for its wrongful seizure of his property. For the following reasons, we affirm.

Facts

In November 2003, Gulf Rice Milling, Inc. (Gulf Rice) contacted Mark Tall, a broker with Louisiana Farm Bureau Marketing, seeking to purchase rice. Mr. Tall contacted area farmers and notified them of Gulf Rice’s interest in buying rice at $14.00 per barrel. Mr. Sonnier submitted a sample of his rice to Mr. Tall. After the rice was tested, Gulf Rice told Mr. Tall it would purchase Mr. Sonnier’s rice. A written confirmation was prepared by Mr. Tall and submitted to Gulf Rice which specified that Gulf Rice would pay $14.00 per barrel and that Gulf Rice would pick up Mr. Sonnier’s rice by March 15, 2004.

All rice purchased by Gulf Rice must go through a receiving pit. In February 2004, Gulf Rice experienced a problem with its receiving pit, which took eight days to resolve. As a result, it got behind in its shipping schedule. Mr. Tall testified that he was led to believe Gulf Rice was attempting to pick up the rice by March 15. He also testified that he asked Jay Putt, Gulf Rice’s Director of Operations, about paying a storage fee to farmers whose rice was not picked up by March 15. As late as March 15, 2004, Mr. Putt told Mr. Tall that Gulf Rice would not pay storage fees for rice that it did not pick up by that day.

Mr. Sonnier called Mr. Tall in the afternoon of March 15 asking about Gulf Rice picking up his rice. He told Mr. Tall Gulf Rice had until 5:00 p.m. to pick up lathe rice or “it’s mine.” Mr. Tall relayed Mr. Sonnier’s message to Mr. Putt. Mr. Sonnier testified that he was never told that Gulf Rice would have a problem picking up his rice. Mr. Tall corroborated this testimony, testifying that he only told Mr. Son-nier that Gulf Rice had a problem at the mill, not that it would be late picking up his rice because he did not know himself that Gulf Rice would not pick up his rice as per the confirmation sheet. Mr. Tall also testified that Gulf Rice did not agree to pay storage until after March 15 and that Mr. Putt told him it would only pay storage if asked.

On March 16, Mr. Sonnier contacted another mill about selling his rice. That mill bought his rice on March 22 and began picking it up on March 24. On March 24, Gulf Rice sent a shipping schedule to Mr. Tall which outlined the dates on which it was going to pick up the rice it was to have picked up March 15.

On April 7, 2004, Gulf Rice filed a Petition for Specific Performance and, in the alternative, for Damages and Writ of Sequestration, alleging that it owned the rice stored in bins at Mr. Sonnier’s farm. A writ of sequestration issued, sequestering Mr. Sonnier’s rice. Thereafter, Gulf Rice also obtained a writ of sequestration, sequestering $100,552.58 in the possession of the mill that bought Mr. Sonnier’s rice, which represented the proceeds of Mr. Sonnier’s rice the mill had already picked up.

Mr. Sonnier answered Gulf Rice’s petition, admitting that he had agreed to sell his rice to Gulf Rice. However, he also asserted that the sale was never completed because Gulf Rice did not pick up his rice by March 15 and had not weighed or tested the rice. He reconvened against Gulf Rice, seeking damages for wrongful sequestration of his rice and money. Mr. Sonnier also asserted a claim for attorney fees.

| sAfter a hearing held on May 25, 2004, the trial court issued an order dissolving the writs of sequestration and awarding Mr. Sonnier $1,500.00 in attorney fees for having to obtain a dissolution of the writs of sequestration. On June 17, 2004, Mr. Sonnier received a check from the Jefferson Davis Parish Clerk of Court in the amount of $100,591.81, which represented the sequestered funds plus accrued interest.

The remaining claims were tried before a jury on April 25 and 26, 2005. The jury denied Gulf Rice’s breach of contract claim against Mr. Sonnier and awarded Mr. Son-nier $100,000.00 in damages for Gulf Rice’s wrongful seizure of his rice and his money.

Gulf Rice appealed, asserting it bought Mr. Sonnier’s rice in November 2003. Mr. Sonnier answered Gulf Rice’s appeal, urging he is entitled to attorney fees for the work performed by his attorney preparing for and representing him at the trial and on this appeal.

Sale or Promise to Sell

Gulf Rice contends it became the owner of Mr. Sonnier’s rice in November 2003. The Civil Code provides that a “[s]ale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale.” La. Civ.Code art. 2439. The Civil Code further provides that ownership of the thing purchased is “transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” La.Civ.Code art. 2456. Gulf Rice contends its agreement with Mr. Son-nier satisfies [4the requirements of Article 2456; therefore, ownership of the rice transferred to it when their agreement was confirmed in November 2003.

Mr. Sonnier contends he did not sell his rice to Gulf Rice. He makes two arguments. First, he argues that rice is an agricultural commodity for which title can pass only if there is a written agreement. See La.R.S. 3:3402(1); 3414. Section 3414 requires that “contracts ... in which title shall pass” must be in writing. When the law requires that a contract be in writing, the parties to the act must sign the contract. La.Civ.Code arts. 1832 and 1837. The only writing regarding Gulf Rice’s purchase of Mr. Sonnier’s rice is the confirmation sheet prepared by Mr. Tall. Neither Gulf Rice nor Mr. Sonnier signed the confirmation sheet, and Mr. Sonnier testified that he did not authorize Mr. Tall to sign the confirmation sheet as his representative. Therefore, the confirmation sheet was not a written contract between the parties, and pursuant to the Agricultural Commodity Dealer and Warehouse Law, La.R.S. 3:3401-3425, title to Mr. Son-nier’s rice did not pass to Gulf Rice.

Mr. Sonnier also argues that the sale was never completed because a price for his rice was never fixed as required by Article 2456 and because his rice was never weighed as required by La.Civ.Code art. 2458, which provides:

When things are sold by weight, tale, or measure, ownership is transferred between the parties when the seller, with the buyer’s consent, weighs, counts or measures the things.
When things, such as goods or produce, are sold in a lump, ownership is transferred between the parties upon their consent, even though the things are not yet weighed, counted, or measured.

Mr. Putt testified that the price a mill will pay for rice is not established until the rice is in the mill’s possession and is milled. Milling determines the total rice yield. Mr. Putt explained that milling 100 pounds of rough rice results in 20% rice | fihulls and ten percent rice bran; the remaining 70% is the total yield. The rice is also sampled and tested to determine its actual grade. Mr. Putt explained that the price to be paid goes up or down as a result of milling and testing. The confirmation sheet establishes that staining also affects the price of the rice, as it provides that one lot of Mr. Sonnier’s rice would be discounted $.30 because of stain. After milling and sampling, the rice is then weighed to determine the settling price, the amount to be paid to the farmer.

In Kohler v. Huth Const. Co., 168 La. 827, 123 So. 588 (1929), the supreme court was presented with a situation almost identical to this one. The court determined that a sale of coal at $8.00 per ton was not complete when the barge on which the coal was deposited sank before the coal was weighed. In reaching this determination, the supreme court explained:

The written contract fixed the price at $8 per ton, and the plaintiff testified that the stuff had to be counted, the tools counted, and the coal measured, and everything checked up. He also testified that the coal at Baton Rouge was never measured or weighed after the defendant agreed to buy.
The Civil Code, art. 2458, declares that, when goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller until they be weighed, counted, or measured.
But where the goods, etc., have been sold in a lump, the sale is perfect, though these objects may not have been weighed, counted, or measured. Civ. Code[ ] art. 2459.
The case here falls squarely under the first article quoted. The coal was not sold in a lump at a price for the whole, but the quantity sold was to be determined by weight or measure, and the price was to be $8 per ton for whatever was found to be on hand.
There was no agreement as to the amount of the coal, and there could be no definite agreement as to the price the defendant would owe the plaintiff until the coal was measured. Hence the sale was not perfect, because two essential things were lacking — the agreement as to ¡(¡the amount of coal the defendant was to get, and the total price that would be due plaintiff.

Id. at 829-30, 123 So. at 589. The same is true here: the rice had to be weighed, milled, and tested before the final price Gulf Rice would pay Mr. Sonnier was determined.

Gulf Rice argues an earlier supreme court decision, Penick & Ford v. Waguespack & Haydel, 148 La. 39, 86 So. 605 (1920), conflicts with Kohler and should be applied. The supreme court in Kohler refused to follow the court’s decision in Penick, explaining:

The court held the contract to be a sale which vested the ownership of the molasses in the plaintiff. The reason given by the court for so holding was that a definite method of determining the exact quantity was fixed by the parties.
It will be observed, however, that the question as to whether the contract of sale was by lump or by tale and measure was not an issue. The case went off in the lower court on an exception of no cause of action, on the theory that defendant was required to deliver only such molasses as the plaintiff requested and for which tank cars were furnished.

Kohler, 168 La. at 830-31, 123 So. at 589. However, the supreme court continued, stating:

The molasses contract was clearly a sale, in the sense that the plaintiff had a right to compel specific performance, or to sue for damages for the breach of the contract.
And that would be true in this case if the plaintiff had sold his coal to another person and the defendant had been forced to buy coal at a higher price than $8 per ton. In a suit for the difference in price, the court, following the molasses case, would probably have held the contract to be a sale.

The difference between the two cases is obvious.

Id. at 831, 123 So. at 589. We disagree with this reasoning, as the determination of whether or not a sale has occurred is determined by the facts surrounding the transaction, not the relief a party to the transaction seeks.

As noted by the supreme court in Koh-ler, the case was decided on an exception of no cause of action, not on the merits. Additionally, two justices dissented in Penick, 148 La. 39, 86 So. 605. Justice O’Neill observed that the decision in Penick was in direct conflict with Article 2458 and the decision in Peterkin v. Martin, 30 La.Ann. 894 (La.1878). In Peterkin, the issue was which party bore the risk of damage to the corn grown by the defendant. The defendant contended that he had sold “all the mixed corn he had in the elevator, being six, seven or eight thousand bushels” at sixty-five cents per bushel because it was a “determined lot” and that the corn was at the risk of the purchaser when it was damaged by heat in storage bins. Id. at 895. The court, citing Article 2458, disagreed, explaining:

We apprehend that in a case like this (admitting, for the sake of the argument, it was a purchase of all the mixed corn of Martin in- the elevator, though Peter-kin seems to deny this), where the quantity was stated between six and- eight thousand bushels, at sixty-five cents per bushel, the price was not agreed upon and ascertained in the sense of article 2456.... We think the rule of article 2458 governs this case. That by the very terms of that article a sale “by weight, tale,.or measure,” is not a sale “in lump.” We agree with plaintiffs counsel that there can be no sale in lump, except for a lumping price.... Nothing short of an express agreement, in a case like this, will put the thing before it is weighed at the risk of the buyer.

Id. at 895-96. The court ultimately concluded that “the sale was not perfect until the weighing and delivery” of the corn. Id. at 896.

The evidence established the strong similarities between Kohler, Peterkin, and this case. Mr. Putt’s- testimony established that determination of a final price for the rice was not be determined until after milling, testing, and weighing. We find the | ^decisions in Kohler and Peterkin more accurate interpretations of Article 2458, than the decision in Penick. Applying Article 2458 and the rationale of Koh-ler and Peterkin to the facts of this case, we find no error with the jury’s determination that Mr. Sonnier did not breach a contract with Gulf Rice.

Damages

Gulf Rice had no ownership interest in Mr. Sonnier’s rice; therefore, its seizure of his rice and money was wrongful. La.Code Civ.P. arts. 3506 and 3571. The jury awarded Mr. Sonnier $100,000.00 in damages for Gulf Rice’s wrongful seizure of his rice and money. Gulf Rice urges that this award was abusively high and that it should be reduced.

Mr. Sonnier has farmed for himself for thirty-two years. He farms thirty acres which he owns and 600 acres owned by someone else. He pays the landowner 40% of his net crop for rent. He testified that he has never started a new crop without first paying off the preceding year’s crop loan. On January 3, 2003, he signed a promissory note in the amount of $103,000.00, which accrued interest at the rate of 6% per annum, to finance his 2003 rice crop; it was secured by a commercial security agreement in which Mr. Sonnier granted a security interest in his farm and crops.

Mr. Sonnier testified that he had a good reputation in his community before this lawsuit and was concerned it might be blemished because of Gulf Rice’s actions. In his past experience, the mill that purchased his rice would usually pick it up within a day or two. He testified that Gulf Rice was to pay $1.00 more per barrel money for a later delivery date. When Gulf Rice did not pick up his rice, he did not know there was a problem at the plant or that Gulf Rice would pay storage. He was very worried about, the money that was seized because he could not pay off his 2003 loan and could | anot put in his crops for 2004. He was also concerned about the seized rice perishing, rotting, or spoiling. He was embarrassed because people asked him about the seizure and because he had to go to his banker and explain what was going on. He testified that he was worried he would lose everything if the seized money was not released to him.

Mr. Sonnier’s wife, Gayle, testified that Mr. Sonnier was affected by the seizure of the rice and his money. She explained that he is not an emotional person and does not share his feelings with others. She also testified that after the seizure Mr. Sonnier became quiet and withdrawn in “his own little world.” She, too, was embarrassed by the seizure and testified that they felt like they had done something wrong when they had not.

General damages, including embarrassment, humiliation, mental anguish and worry, are allowed after an illegal seizure. Dixie Sav. & Loan Ass’n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, writ denied, 99-2867 (La.12/10/99), 751 So.2d 855.

The jury determined that Mr. Sonnier did not breach a contract with Gulf Rice and that Gulf Rice’s seizure of Mr. Sonnier’s rice and money caused him embarrassment, humiliation, mental anguish, and worry. The jury learned that Gulf Rice seized much more than it needed to make itself whole. The difference between the price it was to pay Mr. Sonnier for his rice and the price Mr. Sonnier was paid when he sold his rice to another mill would have resulted in Gulf Rice having to pay approximately $22,000.00 more to replace Mr. Sonnier’s rice. The rice and money Gulf Rice seized totaled more than $136,000.00.

|inAn appellate court’s review of a general damage award is guided by Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In Youn, the supreme court noted that the trier of fact has “vast” discretion in awarding damages and that an appellate court should rarely disturb a general damage award. Under Youn and its progeny, “[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260.

Mr. Sonnier lives in an area where agriculture is a way of life for many. Rice farming was his livelihood for thirty-two years. In all likelihood, the jurors were familiar with farming as a way of life and empathized with his situation, realizing that he may have seen himself losing everything he has worked his adult life to achieve. While the award may be higher than what this court would have awarded, we cannot say that under the circumstances it is abusively high. We find no abuse in the jury’s general damage award.

Unfair Trade Practices Act

When the trial court ordered that the writs of the sequestration be dissolved, it awarded Mr. Sonnier $1,500.00 in attorney fees as provided in La.Code Civ.P. art. 3506. Mr. Sonnier sought additional attorney fees at trial. The trial court refused to allow him to present his claim to the jury, and he proffered a statement of the fees his attorney charged after the hearing to dissolve the writs of sequestration.

Mr. Sonnier cites the Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401-1430, in support of his claim. Anyone who has suffered “any ascertainable loss of money or movable property, corporeal or incorporeal, as a result | ^of ... [an] act or practice declared unlawful by R.S. 51:1405” can bring an action for an unfair or deceptive trade practice. La.R.S. 51:1409. If the claimant is awarded “actual damages,” “the court shall award to the person bringing such action reasonable attorney’s fees and costs.” Id. Mr. Sonnier was awarded general damages not “actual damages”; therefore, the trial court did not err in refusing to allow him to present evidence of a claim under this provision.

Disposition

The judgment is affirmed. Costs are assessed to Gulf Rice Milling, Inc.

AFFIRMED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    MADISONVILLE STATE BANK v. Marvin M. GLICK and James P. Conboy and/or the Estate of James P. Conboy.
    No. 05-1372.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Jeffrey Ackerman, Durio, McGoffin, Stagg and' Ackermann, Lafayette, LA, for Plaintiff-Appellant, Madisonville State Bank.
    Warren D. Rush, Charles M. Rush, Rush, Rush and Calogero, Lafayette, LA, for Defendant-Appellee, Marvin M. Glick.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hThe Plaintiff, Madisonville State Bank (“MSB”), appeals the trial court’s judgment dismissing its action to collect under a commercial guaranty agreement pursuant to Marvin Glick’s exception of no right of action. Finding that it was error to use an exception of no right of action to raise affirmative defenses, we reverse and remand for further proceedings.

FACTS

On September 28, 1998, Lafayette South Limited Partnership (“the Partnership”) borrowed money from MSB and executed a promissory note for $2,549,563.50 in MSB’s favor secured by a mortgage of two motel properties (“the property”). Marvin M. Glick and James P. Conboy, Jr. each signed a Commercial Guaranty of the debt. The Partnership filed a petition for bankruptcy. On September 20, 2000, MSB filed a Petition for Sums Due against Glick and Conboy or Conboy’s estate. On November 26, 2001, MSB bought the property from the Trustee in Bankruptcy for $2,300,000.00, less a credit of $37,849.48. The sale document did not contain any reservation of rights against the guarantors of the note. In December 2001, MSB sold the property to Homerooms, Inc. for $2,200,000.00.

Glick filed Peremptory Exceptions of No Right of Action, or No Interest in the Plaintiff to Institute the Suit and of Prescription which it later amended. The trial court held a hearing on the exceptions, granted the exception of no right of action and denied the exception of no interest in the Plaintiff to institute the suit. MSB moved for reconsideration, but the motion was denied. MSB appeals.

| .DISCUSSION

No Right of Action

An exception of no right of action is used to raise the question whether a plaintiff belongs to a particular class in whose exclusive favor the law extends a remedy for which a cause of action exists, or to raise the issue whether plaintiff has the right to invoke a remedy which the law extends only conditionally. Greenbriar Nursing Home, Inc. v. Pitley, 93-2059 (La.5/23/94), 637 So.2d 429; La.Code Civ.P. art. 681.

Robin v. Allstate Ins. Co., 02-689, p. 3 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 44-45, writ denied, 03-1818 (La.10/17/03), 855 So.2d 763.

In his exception of no right of action, Glick asserts that his obligation under the guaranty was extinguished pursuant to La.Civ.Code art. 3062 because MSB failed to make a claim against Glick’s co-surety thereby impairing the security.

La.Civ.Code art. 3062 provides that:

The modification or amendment of the principal obligation, or the impairment of real security held for it, by the creditor, in any material manner and without the consent of the surety, has the following effects.
An ordinary suretyship is extinguished.
A commercial suretyship is extinguished to the extent the surety is prejudiced by the action of the creditor, unless the principal obligation is one other than for the payment of money, and the surety should have contemplated that the creditor might take such action in the ordinary course of performance of the obligation. The creditor has the burden of proving that the surety has not been prejudiced or that the extent of the prejudice is less than the full amount of the surety’s obligation.

Glick alternatively argues that when MSB bought the property from the Trustee in Bankruptcy MSB’s identity of obli-gor became confused with the Partnership’s identity of obligee and that, as a result, his obligation as surety was extinguished through confusion pursuant to La. Civ.Code art.1903 and 1904.

| aIn ruling on an exception of no cause of action, the court considers whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance. It is not appropriate to consider the plaintiffs ability to prevail on the merits or whether the defendant has a valid defense. Falcon v. Town of Berwick, 03-1861 (La-App. 1 Cir. 6/25/04), 885 So.2d 1222.

Although evidence could be considered in determining an exception of no right of action, whether the defendant may be able to defeat the plaintiffs cause of action is immaterial to the determination of an exception of no right of action. Alside Supply Co. v. Ramsey, 306 So.2d 762 (La.App. 4 Cir.1975). Any evidence admitted which does not relate to the plaintiff’s right of action must therefore be referred to the merits of the case. Northwest Ins. Co. v. Carpenters Dist. Council of New Orleans and Vicinity, 470 So.2d 218 (La.App. 4 Cir. 1985). This rule includes affirmative defenses, which may not be raised through the peremptory exception of no right of action. See Comet Drilling Co. v. Tri-State Oil Tool Industries, Inc., 337 So.2d 567 (La.App. 2 Cir.1976).

Wirthman-Tag Const. Co., L.L.C. v. Hotard, 00-2298, pp. 3-4 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 860 (emphasis added). See also Fleet Fuel, Inc. v. Mynex, Inc., 38,696 (La.App. 2 Cir. 6/23/04), 877 So.2d 234; Mason v. Kansas City Southern Ry. Co., 00-208 (La.App. 5 Cir. 9/26/00), 769 So.2d 1249; Selber Bros., Inc. v. Bryant, 406 So.2d 251 (La.App. 3 Cir. 1981).

The arguments urged by Glick in support of his exceptions both rely on extin-guishment of his obligation under the surety agreement and constitute defenses to the merits of the suit. “A defendant may not use an exception of no right of action to raise a defense to the merits of the suit.” Dugas v. Dugas, 01-669, p. 3 (La.App. 3 Cir. 12/26/01), 804 So.2d 878, 880, writ denied, 02-0652 (La.5/24/02), 816 So.2d 307. Therefore, the exception of no right of action should have been denied.

I ¿CONCLUSION

Because Glick used the exception of no right of action to raise affirmative defenses, the trial court erred in granting the exception. Accordingly, the judgment of the trial court is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to the Appellee, Marvin M. Glick.

REVERSED AND REMANDED.

      . We note that: "Fundamentally there is no distinction between the exception of no right of action and that of want of interest.” Wischer v. Madison Realty Company, Inc., 231 La. 704, 709, 92 So.2d 589 (La.1956) (cited in Ralph v. City of New Orleans, 04-1270 (La.App. 4 Cir. 12/14/05), 921 So.2d 988, 995.)

      . La.Civ.Code art.1903 provides that: “When the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion.”
      La.Civ.Code art 1904 provides that: “Confusion of the qualities of obligee and obligor ' in the person of the principal obligor extinguishes the obligation of the surety.”


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Nicholas Demond PITREE.
    No. 05-1513.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Ronald Augustin Rossitto, District Attorney — Calcasieu Parish, Carla Sue Si-gler, Assistant District Attorney — Calca-sieu Parish, Lake Charles, LA, for PlaintiffiAppellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Nicholas Demond Pitree.
    Nicholas Demond Pitree, Angola, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

hThe Defendant, Nicholas Pitree, appeals his jury convictions for aggravated rape, La.R.S. 14:42, and second degree kidnapping, La.R.S. 14:44.1. He asserts that the evidence was insufficient to support the convictions, that he was denied effective assistance of counsel, and that the trial court erred in denying his motion to recuse, his motion for a new trial, and his request for self-representation.

Finding no error in any of these contentions, we affirm.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant challenges the sufficiency of the evidence, pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant’s counsel argues that the victim’s testimony was not credible. He notes that at trial, she admitted that she had made false allegations of sexual misconduct against her stepfather. Defendant’s pro se argument also attacks the victim’s credibility and implies that the victim went with him willingly and that they had consensual sex. Defendant argues that the victim had opportunities to escape, to use her cell phone, or otherwise to call for help.

The general analysis for challenges to the sufficiency of trial evidence has been explained by this court:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and \2there;fore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371 (emphasis added).

Defendant acknowledges that under the jurisprudence “credibility is not ordinarily reviewed, as it lies within the fact finder’s province.” He also observes that the testimony of a single witness can support a conviction. State v. Bailey, 585 So.2d 1245 (La.App. 2 Cir.1991).

As previously noted, Defendant was convicted of aggravated rape and second degree kidnapping. Aggravated rape is defined by La.R.S. 14:42, which states, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

The basic definition of rape is found in La.R.S. 14:41, which states, in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
|SB. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Second degree kidnapping is defined by La.R.S. 14:44.1, which states, in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused;....
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another;....

The victim, B.B., was twelve years old on March 8, 2004. On that date, she left her home at approximately 6:45 a.m. to catch a bus to school. She walked to the bus stop and, as she was waiting, noticed a car circling 'the block. Suddenly, Defendant stopped his car near the bus stop, got out, forced the victim into the backseat, and drove away. The victim began crying, but Defendant instructed her to lie down and be quiet. At some point, he told her to “shut up.” Defendant’s initial seizure of the victim was apparently witnessed by Mikey Barnhardt, a teenager who lived in the area and knew B.B. On the morning of the offense, he was walking to his bus stop at the corner of Fall and Kirkman Streets in Lake Charles to go to school. He started to walk to B.B.’s bus stop, which was at Fall and Center Streets, and saw a girl there. He could not see for certain that it was B.B. Barnhardt saw a blue car Rpull up, and a black male get out and grab the girl. The car then sped away. He testified the girl did not appear to get into the car voluntarily.

Another witness, Leroy Frank, testified that he lived near the intersection of Fall and Center Streets. On the morning of the offense, he saw the victim at the bus stop. While sitting on his back steps drinking coffee, he noticed that a blue car had stopped at the intersection. He could see only the front of the car from his vantage point. He heard two car doors close and heard the car pull away. About ten minutes later, he noticed a book bag on the sidewalk, and the girl was not there. When the bus passed by and she still had not returned, Frank called the police.

According to the victim’s testimony, Defendant pulled into a public park and stopped. He then got into the backseat and told her to disrobe; she did so from the waist down. Then Defendant lowered his pants and inserted his penis into her vagina.

At that point, one of the park’s caretakers, Leo Giovanni, approached the area. Defendant pulled up his pants, returned to the front seat, and drove away. The victim testified that Defendant exited the car and briefly spoke to Giovanni, but Giovanni testified he did not remember seeing Defendant get out of the car.

The victim further testified that Defendant drove to another location, where he again parked, got into the back seat, and inserted his penis into her vagina. The victim testified that it hurt. Eventually, he pulled up his pants and drove away from the second site. B.B. testified she followed Defendant’s instructions to her, because she was scared. Defendant told the victim that he knew her family and told her his name, although she later learned the name he gave was a pseudonym. According to the victim’s testimony, Defendant asked her if she wanted to go home. She responded affirmatively, and he dropped her off at the local mall, near a Sears | ¡^department store. The victim then used her cell phone to call her mother and waited until her mother and police arrived.

During the ensuing investigation, the victim submitted to a rape exam, went to the two crime scenes with investigators, and viewed a photographic lineup. She testified that she identified a picture of Defendant in the lineup. Corporal Franklin Fondel of the Lake Charles Police Department, who worked as a detective in the investigation, testified to further details. On the date of the offense, the victim rode with Fondel and another detective and directed them to each of the crime scenes. At the first site, a public park, the detectives found a tampon. Fondel testified B.B. had previously advised the investigators that Defendant had removed the victim’s tampon at the park and thrown it out through a car window. Fondel’s testimony also corroborated the victim’s account of the photographic lineup. Another detective, Takeisha Weldon Robertson, also corroborated the victim’s account regarding her identification of Defendant’s photo in the lineup.

Fondel explained that he located Defendant and transported him to the detectives division, where Defendant waived his rights and gave a videotaped statement. In response to police questioning, he denied any knowledge of the case. He later gave police a second narrative statement in which he admitted knowing the victim and that she had been in the car with him on the morning of the offense. However, he claimed she entered the vehicle and rode with him voluntarily. Further, he stated the victim wanted to have sex but he did not, and that no sex acts occurred.

The State also adduced testimony from SANE nurse Tammy Bailey. She testified she was unable to complete a “speculum exam” of the victim’s vagina, | ^because the area was too tender. Bailey examined B.B.’s vaginal area with a magnification device called a colposcope, and identified torn tissue. The nurse also took vaginal swabs. Patrick Wojtkwiewicz, director of the North Louisiana Crime Lab, testified that testing of the vaginal swabs revealed epithelial material consistent with the victim’s DNA profile and sperm material consistent with those of the Defendant. Wo-jtkwiewicz testified that “the probability of finding that profile in somebody else is one chance in 22.7 trillion.”

As mentioned earlier, B.B. admitted she had made false, and rather detailed, allegations of sexual misconduct against her stepfather. These allegations led to the stepfather’s being jailed before B.B. recanted. Also, when the victim was in second or third grade, she made various allegations of physical abuse against school personnel, and even her own mother. However, the victim’s account of the rape was corroborated by the evidence adduced from Bailey and Wojtkwiewicz. Their scientific evidence supplied the jury with a reasonable basis to conclude, at the least, that Defendant had forceful vaginal intercourse with B.B. In regard to the conviction for second degree kidnapping, the victim’s testimony that she was seized and taken by force was corroborated in part by the testimony of Mikey Barnhardt. To the extent that B.B.’s credibility was a factor in the case, it was reasonable for the jury to consider her testimony believable.

Regarding Defendant’s pro se observations that the victim made no attempt to escape or call for help, we note that B.B. was twelve years old at the time of the offense and that she was scared. She testified that she wondered “[i]f I was ever going to see my family again.” The jury reasonably could have concluded that the young victim was simply too frightened to try escaping or calling for help.

|7As this court has observed:

It is well-settled that the victim’s credibility is a matter for the fact finder to assess, and that the appellate courts will not second-guess such assessments, absent manifest error. State v. Bourque, 94-291 (La.App. 3 Cir. 11/2/94); 649 So.2d 670. In Bourque, we did overturn such an assessment, but only where the defendant presented credible alibi testimony in the face of questionable eye-witness testimony. (The only witnesses to the crime were a child and an adult who had consumed a large amount of alcohol before witnessing the incident.) In the present case, the victim was not a weak witness. She positively identified Defendant as her attacker ....

State v. James, 99-1858, p. 5 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, 129, writ denied, 00-1595 (La.3/23/01), 787 So.2d 1010.

B.B. was a strong witness, and her testimony was bolstered by corroboration from other sources.

Part of Defendant’s pro se argument implies that the State had to prove that the sex act was nonconsensual, and failed to do so. However, this is clearly erroneous under the terms of the statute. As the record shows that B.B. was under thirteen years of age at the time of the offense, La.R.S. 14:42(4) mandates that consent or resistance is not an issue in the present case.

For the foregoing reasons, the evidence was sufficient for the jury to render verdicts of guilty to the crimes of aggravated rape and second degree kidnapping.

Recusal and Self-Representation

Defendant combines these two assignments, as they both focus on the trial court’s denial of his pro se Motion to Re-cuse on June 16, 2005. Alternatively, he argues the trial court should have allowed him to represent himself.

Recusation of judges is governed by La. Code Crim.P. art. 671, which states, in pertinent part:

|SA. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;

The procedure for handling such motions is set forth at La.Code Crim.P. art. 674, which states, in pertinent part:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial.... If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc,....

The first circuit has explained the application of these two articles:

[T]he defendant asserts that pursuant to La.Code Crim.P. arts. 673 and 674, Judge Erwin was obligated to either recuse himself or refer the motion to another judge for disposition based solely on the defendant’s filing a motion to recuse. This assertion is erroneous. The mere filing of a motion to recuse does not compel a judge to act on that motion. Only when there is a valid ground for recusation in the motion is a judge obliged to act.
Louisiana Code of Criminal Procedure article 671 A provides that a judge in a criminal case shall be recused if he is “biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial.” Further, Article 674 provides “If a' valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”
Construing these articles, the supreme court in State v. Beavers, 394 So.2d 1218, 1229 (La.1981) stated:
Under the jurisprudence interpreting there (sic) articles, a motion for recusal must set forth allegations of fact which state a statutory cause for recusation before the trial judge is required to refer the motion to 19another judge. State v. Collins, 288 So.2d 602 (La.1974). Where, as here, the motion is based on mere concluso-ry allegations, the trial court does not err in refusing to refer the motion to another judge for hearing. State v. Maduell, 326 So.2d 820 (La.1976).
The defendant’s motion to recuse Judge Erwin did not satisfy the statutory provisions regarding the proper recu-sation of a judge. The defendant set forth no valid ground for recusation in his motion to recuse. He did no more than simply assert that the judge was biased or prejudiced or personally interested in the case without any support for the assertion. In the fourth paragraph of his motion to recuse, the defendant alleged a comment made by Judge Erwin that is found nowhere in the record. A motion to recuse a judge must be based on more than mere general con-clusory allegations. State v. Lukefahr, 363 So.2d 661, 663 (La.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). See also State v. Littleton, 395 So.2d 730, 732 (La.1981); State v. Gordy, 380 So.2d 1347, 1353 (La.1980).
The defendant’s motion was not sufficient to warrant consideration and, as such, Judge Erwin was not obliged to hear the motion. Furthermore, on appeal, the defendant has failed to demonstrate prejudice or that any substantial rights were affected because of the trial court’s failure to rule on his motion. La.Code Crim.P. art. 921; State v. Gaddis, 36-661, pp. 11-12 (La.App. 2 Cir. 3/14/03), 839 So.2d 1258, 1267, writ denied, 2003-1275 (La.5/14/04), 872 So.2d 519 [, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005) ].

State v. Maten, 04-1718, pp. 10-11 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 720, writ denied, 05-1570 (La.1/27/06), 922 So.2d 544.

In this case, the trial court held a hearing on the motion on June 16, 2005. The Defendant was upset over an article in a local newspaper. A proffer accepted by the trial court included the relevant article, which stated in part:

Pitree originally became upset with Ware’s representation and tried to hire local attorney Hardy Parkerson, but the deal apparently fell through. Two weeks ago Pitree agreed to have Ware return as lead counsel.
| inPitree is fortunate to have three highly skilled attorneys looking out for him, Ritchie said Tuesday.
‘You’re not Michael Jackson,” he told Pitree. “And you’re not a celebrity.”
The judge told Pitree he hoped the defendant was not ignoring his attorneys’ advice on some false hope drawn from Monday’s acquittal in the pop star’s child molestation trial. And if Pitree is convicted and receives more prison time than the plea bargain offered, Ritchie said he would not want the defendant to claim ineffective counsel.

Ultimately, the trial court stated that the issue of the possible exposure of the jurors to the newspaper article did not form a basis for recusal. However, Defendant also argued the comments related in the newspaper article indicated the judge was biased; this is the sole argument he presents in his pro se brief.

The comments in the newspaper article and acknowledged by the trial judge at the recusation hearing do not facially reflect bias on the judge’s part. The trial judge explained his comments in the following colloquy:

THE COURT:
Okay. Your attorneys have looked at that, Mr. Pitree, and have — and have decided not to adopt your motion, okay. And I’m not going to allow this — anymore time to be, you know, wasted. We’re Thursday morning here, just now about to start this trial, and you’ve got three very good lawyers representing you, and they have read your motion, they have opted not to adopt your motion, okay. That ought to tell you something. I know you’ve been ignoring their advice a lot of the times, that’s why that whole comment got in the paper the other day. Of course, that’s your right to do that, okay, but I — that comment that I made the other day was just — just to — I guess just to make you aware of— oh, well, actually, — well, anyway—
MRS. KILLINGSWORTH [Prosecutor]:
Reality, maybe?
THE COURT:
Well, I’m just — I just wanted you just to — that was just a comment just to kind of make you think for sure about what you were doing, okay. But your attorneys have opted not to adopt that and I’m not going to hear anymore about it, and we need to — we need to proceed. Anything else, Mr. Ware?

The judge’s explanation of his comments is a reasonable characterization of them. Thus, as in Maten, he was not required to refer the matter to another judge for a hearing.

Assuming, arguendo, the motion should have been referred to another judge, we conclude that it fails on the merits. Our brethren on the fifth circuit explained:

On March 19, 2003, defendant filed a motion to recuse Judge Becnel because she stated that the evidence at the preliminary exam supported a more serious charge, which resulted in the State amending the charge against defendant to a more serious charge. Defendant contended Judge Becnel’s statement showed bias and substantially prejudiced him.
Judge Snowdy denied the motion to recuse finding that Judge Becnel’s comments did not remove her from her role as a neutral arbiter. Judge Snowdy explained that the jury was the ultimate trier of fact. He found that her comments were simply an expression of her reaction to the facts she had just heard and that the amended charge was not necessarily related to Judge Becnel’s comments. Judge Snowdy noted that the State could have increased or lessened the charge against defendant based on the facts revealed at the preliminary exam.
LSA-C.Cr.P. art. 671 outlines the grounds for recusing a judge. It states that a judge shall be recused when he “[i]s biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial[.]” LSA-C.Cr.P. art. 671(A)(1). A trial judge is presumed to be impartial. The burden is on the defendant to prove otherwise. State v. Howard, 01-5 (La.App. 5 Cir. 4/24/01), 786 So.2d 174, 183.
In State v. Dooley, 38,763 (La.App. 2 Cir. 9/22/04), 882 So.2d 731 [, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30], the Second Circuit upheld the denial of a motion 11Kto recuse the trial judge where the defendant claimed the trial judge’s comments during the preliminary exam were biased. In Dooley, defendant sought a preliminary exam hearing after her arrest and before the grand jury issued an indictment. After the hearing, defendant requested she be released because of lack of probable cause. The trial judge denied defendant’s request and stated the evidence presented established that she was “ ‘at least guilty of some form of homicide.’ ” Id. at 745. Defendant filed a motion to recuse the trial judge based on his comment which was denied by the trial judge without referring the matter to another judge and without a hearing. The Second Circuit found the trial judge’s comment at the preliminary exam was merely another way of saying there was probable cause to charge her with some form of homicide. The court found defendant failed to show how the trial court’s statement represented impermissible bias.
The Louisiana Supreme Court has stated that while trial judges “have a duty to remain impartial and neutral, judges are not merely umpires or moderators.” State v. Baldwin, 388 So.2d 679, 686 (La.1980). Rather, a judge “ ‘is charged to see that the law is properly administered, and it is a duty which he can not discharge by remaining inert.’ ” Id. at 687-688 (quoting United States v. Marzano, 149 F.2d 923, 925 (2nd Cir. 1945)). In Baldwin, defendant filed a motion to recuse the trial judge on the basis that he was prejudiced because the judge made comments which suggested to the prosecution objections which could be made. The motion was denied and upheld on appeal.
The purpose of a preliminary exam is to determine whether there is probable cause to charge a defendant with a crime and hold him over for trial. LSA-C.Cr.P. art. 296; State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 148, writs denied, 02-0362 (La.12/19/02), 833 So.2d 336, and 02-0209 (La.2/14/03), 836 So.2d 134. In the present case, Judge Becnel’s comments at the conclusion of the preliminary exam were equivalent to saying there was probable cause to hold defendant on some sex offense. In this instance, the more appropriate sex offense was more serious than the one with which defendant was originally charged. Judge Becnel testified that she had no bias against defendant. Her testimony shows that her only concern was the proper application of the law. Based on the foregoing, we find that Judge Bec-nel’s comments after the preliminary exam hearing did not demonstrate partiality or bias against defendant.

State v. Strickland, 04-843, pp. 10-12 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 892-94, writ denied, 05-820 (La.6/17/05), 904 So.2d 683.

The court’s comments in the instant case were milder than those at issue in Strickland, and do not show bias on the judge’s part. Thus, the discussion in Strickland further strengthens our conclusion that the trial court in this case did not err in not referring the motion to another judge for a hearing.

However, some of the trial judge’s comments at the June 16 hearing suggest an outright refusal to rule upon the bias issue, because Defendant was represented by counsel. Such a refusal to rule upon a pro se motion may be erroneous, pursuant to State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466. However, as our analysis indicates that the bias claim was without merit, Defendant was not prejudiced by the trial court’s failure to rule on the issue.

Defendant also complains that the trial court denied his motion for new trial, and refused to rule on his supplemental motion for new trial. In the court below, Defendant’s arguments regarding the motions focused on the issue of possible jury taint; however, his current argument focuses upon allegations the trial judge was biased. Thus, this portion of his argument fails for reasons discussed in relation to his motion to recuse.

Defendant also argues the trial court erred by refusing to allow him to dismiss his three attorneys and represent himself at trial. The following colloquy occurred:

THE COURT:
Well, I’m just — I just wanted you just to — that was just a comment just to kind of make you think for sure about what you were doing, okay. But your attorneys have opted not to adopt that and I’m not going to hear anymore about it, and we need to — we need to proceed. Anything else, Mr. Ware?
luMR. PITREE:
Your Honor, at this time I’m going to waive Mr. Ware, Mr. White and Mr. St. Dizier’s representation and I’m going to ask the Court to move that I proceed pro se.
THE COURT:
No. We’ve been down this road before and I’m not going to allow the process to be manipulated by you, Mr. Pitree. You had your opportunity to do that and you asked to rescind that. As a matter of fact, even when you were representing yourself, you — you requested Mr. Ware, and with his consent, he actually represented you during those prior proceedings, except for those times when you wanted to stand and address the Court, okay. You knew what was coming, you knew this trial was coming, you asked Mr. Ware to — if he could possibly come back in and be re-enrolled as your attorney, and — and I granted that request—
MR. PITREE:
Yes, sir.
THE COURT:
—on Monday.
MR. PITREE:
Yes, sir.
THE COURT:
And at this point it just appears to me that you’re just trying to manipulate the system, you’ve got advice that — that your attorneys don’t believe that your motion has any merit, but because you insist on going forward with it, you’re— now you’re wanting to represent yourself again. We’re not going to do that, okay. You’ve had your chance and we’re going to go forward with this trial. I’m not relieving your counsel at this point.

In making its ultimate ruling on the issue, the court stated:

Everything that you’ve said just supported what I was saying and what I’m about to do, okay. You don’t have a real desire for self-representation, it’s not an unequivocal desire for self-representation. You just want to get out^your argument on that motion to recuse, and so — and I’m not — and let me just cite this case of — 3rd Circuit case, State of Louisiana versus Tyronne [sic] Hypol-ite, docket number — I mean, — well, there’s not even a cite. There’s a Lexis cite, 2005, Louisiana Appellate, Lexis, 1472, it’s a June 1st, 2005 case, that’s why it doesn’t have a docket number. It’s a 3rd Circuit case that basically says your right is not absolute and there’s some similarities in the facts there and in this case, but I think we have a stronger case here than what was in here for the — a stronger set of facts in our — in your case than we did here— than they had in this Hypolite case for denying your — or denying your right to self-representation, and I guess in fact concluding that you have waived your right to self-representation based on the history of what’s transpired in this case and based on your reasons for requesting it at this time,....

On appeal, the State cites State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/01/05), 903 So.2d 1275, which explained:

In the present case, the “Faretta Hearing” was not held until the State was about to call its final witness in its case-in-chief. In proceedings conducted outside the presence of the jury, the court questioned Hypolite with regard to his ability to represent himself. Upon being asked by the court whether he understood that he did not know how to try a ease, Hypolite responded that it “shouldn’t be too hard.” Hypolite stated that he felt he could represent himself, in spite of being informed of the complexities of trying cases. He asserted that he needed to represent himself because his lawyers would not ask the questions he wanted asked. Hypolite opined that all it would take to represent himself would be common sense. The court denied the request....
The State cites State v. Bridgewater, 00-1529, pp. 19-20 (La.1/15/02), 823 So.2d 877, 895, modified on rehearing, 00-1529 (La.1/15/02), 823 So.2d 877 at 909, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), which explained that:
Substantively, defendant’s request to represent himself was not an unequivocal one; |ir,rather, it was an obfuscated request to substitute appointed counsel because of his disagreement with current counsel’s choice of trial strategy. Addressing a similar request, the federal court in [U.S. v.] Frazier-El [204 F.3d 553 (4th Cir.), cert. denied, 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000) ], supra, reasoned:
A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel. The circumstances surrounding Frazier-El’s purported waiver of his right to counsel and the assertion of his right to proceed without counsel in this case suggest more a manipulation of the system than an unequivocal desire to invoke his right of self-representation. Taking the record as a whole, we are satisfied that the district court was justified, when confronted with Frazier-El’s vacillation between his request for substitute counsel and his request for self-representation, in insisting that Frazier-El proceed with appointed counsel.
204 F.3d at 560 (internal citations omitted).
Although the defendant argues that this Court’s decision in State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, is controlling, that case is easily distinguishable. In Santos, supra, the defendant made an unequivocal request to discharge his court-appointed counsel and to represent himself, explaining that he feared “ ‘the Indigent Defender Board is working with the police of St. Bernard Parish to keep me here.’ ” 99-1897 at p. 3, 770 So.2d at 321. Unlike the defendant in Santos who was convinced that no public defender could serve his interests, in this case defendant specifically stated that it was current counsel with whom he was dissatisfied. Two other factors we relied upon in Santos were that the defendant (i) unequivocally asserted his right to represent himself, and (ii) made that request “under circumstances which 117precluded a finding that he was simply engaged in dilatory tactics.” 99-1897 at p. 4, 770 So.2d at 822. Neither factor is present here.
First, defendant’s request was not clear and unequivocal; rather, defendant’s request was, like in Frazier-El, supra, “a manipulative effort to present particular arguments” and vacillated between self-representation and representation by counsel. Second, given that defendant raised similar arguments before (a point discussed below) and that he sought a continuance on the eve of trial, this clearly could be characterized as a “dilatory tactic.”
Bridgeivater also demonstrates an independent basis for rejecting Hypolite’s claims. That basis, the dilatory and manipulative nature of the motion, found in both Bridgewater and this case, distinguishes both of them from Santos.
[Ujnder Bridgewater’s reasoning, a defendant’s attempt to use the right to self-representation as a tool of delay or manipulation puts him outside the protections afforded to genuine attempts to assert the right. This is a long-standing principle in Louisiana jurisprudence. See, e.g., State v. Hegwood, 345 So.2d 1179 (La.1977).
As noted earlier, Hypolite did not move to represent himself until the State’s case-in-chief was nearly complete. Therefore, the timing of the request indicates that it was merely a delay tactic. Much like the defendant in Bridgewater, Hypolite made earlier attempts to obtain substitute counsel, apparently due to disagreements regarding trial strategy. However, he did not clearly ask to represent himself until the State was about to call its last witness in its case-in-chief. As a result, his request appears to be “a manipulative effort to present particular arguments” rather than “a sincere desire to dispense with the benefits of counsel.” Bridgewater, 823 So.2d 877, 895, quoting U.S. v. Frazier-El, 204 F.3d 553, 560 (4th Cir.), cert. denied, 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000). Therefore, we find no error in the trial court’s refusal to allow Hypolite to represent himself.

Id. at 1280-83.

Iisln the present case, Defendant vacillated on the issue of whether he desired the assistance of counsel. The minutes show that Ron Ware represented him at his arraignment on June 14, 2004, and also at a bond reduction hearing on June 16, 2004. On October 8, 2004, Ware again appeared in open court with Defendant, who asked to represent himself. The court denied the request, and Defendant objected. On December 10, 2004, the Defendant argued a “Motion to Recuse the Public Defender’s Office,” which the court granted, although it appointed Ware to assist him. On February 2, 2005, Ware presented a motion to continue on Defendant’s behalf; the minutes of that date do not show that Defendant was present. However, the minutes for February 4 and March 2 clearly state that Defendant was lead counsel and Ware was his co-counsel.

On May 4, Defendant advised the court that he was attempting to secure representation by a private attorney. Ware asked to be relieved as co-counsel, and the court granted the request. Ware advised the court that he would voluntarily assist Defendant for the remainder of that hearing. The court allowed Ware to sit with Defendant, but advised the attorney that he would not be recognized as co-counsel. A Daubert hearing was taken up, apparently in regard to DNA evidence. At that time another attorney, Richard White, voluntarily conducted cross-examination on Defendant’s behalf. On the same date, Defendant filed an objection to a discussion that Ware and an assistant district attorney allegedly had outside Defendant’s presence. It is not immediately clear when that discussion is supposed to have occurred, but it apparently occurred during a hearing, as the court advised Defendant he would receive a transcript. On the same date, a motion to change venue was taken up. Ware asked to defer it to voir dire, but Defendant asked that the motion be taken up, and the court so ruled. However, Defendant agreed to Ware’s arguing the motion on his behalf.

|19On May 6, 2005, Ware again voluntarily appeared to assist Defendant. Ware-made some arguments regarding an admissibility issue, and Defendant adopted those arguments. At the close of the hearing, Defendant again advised the court that private counsel would be taking over his case.

On June 13, the trial court’s colloquy with the Defendant indicated that the Defendant desired the renewed representation of Ron Ware and Charles St. Dizier of the Public Defender’s Office.

The next colloquy relevant to this issue occurred at the recusal hearing quoted earlier in this discussion. The record demonstrates that Defendant vacillated on the issue of self-representation. The day before jury selection began, he willingly accepted the reappointment of Ware and accepted the appointment of two other counsel also. Two days later, just as the jury was to begin hearing evidence, he sought to relieve counsel due to the disagreement over the recusal motion.

Viewed in light of the overall history of Defendant’s maneuvers regarding the issue of self-representation, we conclude that this portion of Defendant’s argument lacks merit.

Ineffective Assistance of Counsel

In his final pro se assignment, Defendant argues he received ineffective assistance of counsel at trial. The analysis for such claims is well-settled:

In Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court set out a two-prong test for proving ineffective assistance of counsel. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, for a defendant to establish that he received ineffective assistance of counsel, he must show (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052.

State v. Montalban, 00-2739, p. 5 (La.2/26/02), 810 So.2d 1106, 1110, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002).

In his pro se argument, Defendant claims his trial counsel were ineffective for failing to object to the State’s amendment of the indictment. On June 14, 2005, the State amended the bill to add a basis for the aggravated rape charge. The original bill charged him under La.R.S. 14:42(A)(1), along with the second degree kidnapping charge. The amendment added La.R.S. 14:42(A)(4) to the indictment. We note an analogous case from the fifth circuit:

In his second assignment of error, the defendant contends the trial court erred by allowing the Bill of Indictment to be amended the day of trial by excluding the Grand Jury’s reference to simple possession of heroin. The Bill of Indictment in this case originally charged the defendant with “possession with intent to distribute heroin,” and cited as the governing statute “R.S. 40:966A & C.” The body of the indictment alleges that the defendant “did knowingly and intentionally possess with intent to distribute a controlled dangerous substance to wit: Heroin ...”
Prior to the commencement of trial, over the defendant’s objection, the trial court allowed the state to amend the bill to eliminate the reference to subsection “C” of the statute, which covers simple possession of heroin.
Louisiana Code of Criminal Procedure article 464 provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
The district attorney has the power and authority to amend grand jury indictments, as to both form and substance. State v. Neslo, 433 So.2d 73 (La.1983). Unless prejudice to the defendant results, the state may correct an erroneous statutory citation in the indictment. State v. Williams, 392 So.2d 619 (La.1980).
]aiIn this case the Bill of Indictment states, in two separate places, that the charge is “possession of heroin with intent to distribute.” Based on this wording, we find the intent of the grand jury was to charge the defendant only under subsection “A” of the statute, which pertains to distribution and the state’s amendment merely corrected a technical error.

State v. Hayes, 98-485, p. 9 (La.App. 5 Cir. 11/25/98), 726 So.2d 39, 43, writ denied, 99-55 (La.5/7/99), 741 So.2d 29.

This court has also taken note of the district attorney’s authority to amend indictments:

The district attorney has complete authority to amend indictments, both as to form and substance, at any time before trial. La.C.Cr.P. art. 487; State v. Guin, 444 So.2d 625 (La.App. 3rd Cir.1983). The amendments in the instant case were made one week before trial and on the morning of trial prior to jury selection, respectively. Therefore, whether the amendments were substantive or formal, they were proper.
Upon defense motion and a showing that the amendment has prejudiced the accused in his defense on the merits, the trial judge shall grant a continuance. La.C.Cr.P. art. 489. The purpose behind the continuance is to protect the accused against prejudicial surprise which could result from an amendment. State v. Brown, 338 So.2d 686 (La.1976). The trial court has broad discretion in deciding whether to grant a continuance and his ruling will not be disturbed unless he arbitrarily and unreasonably abuses that discretion. State v. Davis, 385 So.2d 193 (La.1980).

State v. Jones, 544 So.2d 1209, 1214 (La.App. 3 Cir.1989).

The supreme court has explained:

The indictment as originally drawn charged defendant with the murder of both victims. The amendment merely clarified that there were two counts, more as a matter of form than substance. The record shows that no prejudice was suffered by the defense as is evidenced by the statement made by defense counsel prior to the district attorney’s motion to amend the indictment. Defense counsel stated, “Now, Mr. Sanders is charged with two counts of first degree murder ...” This indicates that both parties believed the defendant had been charged with two | ^counts of first degree murder and that the amending of the indictment was a mere formality.
Under LSA-C.Cr.P. art. 487, the court may at any time cause the indictment to be amended in respect to a formal defect and may order an indictment amended with respect to a defect of substance at any time before the trial begins. Such amendments may include adding a charge or a count to an indictment. State v. Lovett, 359 So.2d 163 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). Trial does not begin for trial purposes until “the first prospective juror is called for examination.” LSA-C.Cr.P. art. 761; Lovett, 359 So.2d at 16[6]. Defendant’s prosecution began with a grand jury indictment, and in conformity with arts. 487, 489 and 761, the state amended the indictment before trial. The district judge found that the amendment did not surprise the defense and made “no difference whatsoever in the preparation or the defense in any way, shape or form.” We find this assignment of error is without merit.

State v. Sanders, 93-01, p. 13 (La.11/30/94), 648 So.2d 1272, 1283, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996) (footnote omitted).

Under the jurisprudence cited above, it is clear the State had the authority to amend the indictment as it did. Defendant’s available remedy was to request a continuance. However, to obtain such relief, he would have needed to show that the amendment improperly prejudiced his case. We believe he would have been unable to do so, as the record indicates he had notice of the nature of the State’s case before the amendment. The original indictment stated that Defendant was charged with the “aggravated rape of a female juvenile, DOB 1/21/92.” Also, as the State points out in its brief, the Bill of Particulars clearly stated that Defendant was being charged with having vaginal intercourse with a twelve-year-old girl and specifically cited both La.R.S. 14:42(A)(1) and (A)(4). The State also argues that on discovery, it provided the victim’s hospital admission sheet, which showed the victim was twelve on the offense date.

| pjjThus, as the State suggests, Defendant had notice of the factual basis of the aggravated rape charge, and thus would not have been able to demonstrate sufficient prejudice to obtain a continuance. Likewise, he fails to demonstrate, or even argue, any specific prejudice, for purposes of the Strickland test.

For the reasons discussed, this assignment lacks merit.

ERROR PATENT

The trial court failed to inform the Defendant of the prescriptive period for filing post-conviction relief. Such notice is required by La.Code Crim.P. art. 930.8(C). Thus, the trial court is directed to inform the Defendant of the prescriptive period by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion. Additionally, the trial court is instructed to file written proof of the notice in the record of these proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

CONCLUSION

Defendant’s convictions and sentences are affirmed. However, the case is remanded, and the trial court is instructed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending him appropriate written notice within ten days of the rendition of this opinion. Additionally, the trial court is instructed to file written proof of the notice in the record of these proceedings.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The minor victim’s initials are used in accordance with La.R.S. 46:1844(W)(l)(a).

      . The distance between Barnhardt and B.B. was not clearly stated in the testimony; however, reference to a city map indicates the distance was one block. The record indicates a map was on display during Barnhardt's testimony, but the Exhibit Index received by this court states that S-l, an enlarged map of Lake Charles, was retained by the district court clerk's office.

      . SANE stands for "Sexual Assault Nurse Examiner.1 ’

      . Bailey explained that a speculum is a device inserted into the vagina to facilitate visual inspection of the cervix and vagina.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), focused on the right to self-representation.


author: GENOVESE, Judge.

text:
    Tracy Lynne HEBERT, et al. v. LAFAYETTE CONSOLIDATED GOVERNMENT, et al.
    No. 05-1452.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 21, 2006.
    Rickey W. Miniex, Simien & Miniex, Lafayette, Louisiana, for Defendant/Appellant, Lafayette Consolidated Government.
    Kenneth D. St. Pé, Lafayette, Louisiana, for Plaintiffs/Appellees, Tracy Lynne Hebert and Kelly Hebert, individually and on behalf of their minor children, Chase Gui-droz and Chaz Hebert.

      Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Defendant, Lafayette Consolidated Government (City), appeals the judgment of the trial court finding it fifty percent at fault for Plaintiffs automobile accident which allegedly resulted from an unreasonably dangerous roadway. For the following reasons, we reverse.

FACTS

This personal injury action arose from a single-vehicle accident which occurred on Lajaunie Road in Lafayette Parish, Louisiana, at approximately 12:50 p.m. on September 8, 2001. In that accident, Plaintiff, Tracy Lynne Hebert (Hebert), was traveling on a wet road in rainy weather with her nine-year-old son, Chaz Hebert, northeast on Lajaunie Road, approaching an “s-curve” in the roadway. Hebert alleges that the roadway contained a water-filled rut which caused her car to jerk to the right. Hebert asserts that she sustained injuries when her vehicle left the roadway, struck two road signs, and hit the guardrail in the curve. Hebert contends that her accident occurred because the roadway contained an unreasonably dangerous condition.

Hebert instituted suit against the City and the State of Louisiana, through the Department of Transportation and Development (DOTD), to recover for her injuries. The DOTD was dismissed from this lawsuit pursuant to motion for summary judgment upon the City’s admission, and the trial court’s determination, that the City was solely responsible for the maintenance of Lajaunie Road.

A bench trial in this matter was held on May 2, 2005. Oral reasons for judgment were given on May 3, 2005. The trial court found Hebert and the City equally at fault for Hebert’s accident and awarded Hebert damages for past medical expenses and pain and suffering. The City timely appealed the judgment, asserting | ?four assignments of error.

ISSUES

On appeal, the City contends that the trial court erred in: (1) finding that there was a rut in the road at the time of the accident; (2) finding that a rut in the road was the cause of the accident; (3) finding that a rut in the road created an unreasonable risk of harm; and (4) allocating fifty percent fault to the City.

LAW AND DISCUSSION

Standard of Review

The standard of review which we must apply in examining the factual conclusions of a trier of fact was articulated by our supreme court in Rosell v. ESCO, 549 So.2d 840 (La.1989), and reiterated in Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882-83 (La.1993):

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
... [T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one....
Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfin-der’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

We have thoroughly examined the record in these proceedings in light of these legally stated principles, and we find from the record that a factual basis does not exist for the trial court’s finding of liability on the part of the City and that said finding is clearly wrong.

Unreasonably Dangerous Condition and Notice

The standard of care owed by the City to drivers on its roads is found in La.R.S. 9:2800. Under this statute, to meet her burden of proof, Hebert must show: L(l) Lajaunie Road was in the care, custody and control of the City; (2) Lajau-nie Road had a vice or defect which created an unreasonable risk of harm; (3) Hebert’s injury was caused by the defect; and (4) the City had actual or constructive knowledge of the dangerous condition. McDaniel v. Carencro Lions Club, 02-1244 (La.App. 3 Cir. 3/12/03), 846 So.2d 837, writs denied, 03-1061, 03-1065, 03-1069 (La.6/27/03), 847 So.2d 1269 (citing Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002).

There is no dispute that Lajaunie Road was in the care, custody, and control of the City; however, the City argues that an unreasonably dangerous condition did not exist in the roadway at the time of the accident at issue herein, and if one did, the City had no prior knowledge of said unreasonably dangerous defect.

The trial court apparently found that Lajaunie Road was unreasonably dangerous on the date of the accident at issue herein; however, in its oral reasons for judgment, the trial court was less than unequivocal, stating “I think the evidence has established the presence of a rut in the road surface, at least some time after, but close enough in time for the [ejourt to conclude that that rut probably existed at the time of this accident” (emphasis added).

The City contends that the evidence presented at trial does not support the trial court’s finding that there was a rut in the road at the time of the accident. The City argues that trial court erred by accepting the testimony of Hebert’s expert witness, Dr. Olan Dart, as sufficient proof that a rut existed in the road on September 8, 2001, the date of the accident. We agree.

Dr. Dart testified that he examined photographs of the location of Hebert’s accident. The photographs were taken by Hebert and her counsel on November 22, 1 ,¡2001 — over two months after the accident — and like on the date of Hebert’s accident, the weather was rainy and the road was wet. Dr. Dart also personally examined the roadway at the site of Hebert’s accident on April 5, 2002, almost seven months after the accident at issue herein. When describing what he observed on April 2, 2002, Dr. Dart stated “[tjhere was a rut in the right-hand wheel path ... measuring] ... approximately forty-five (45) feet long and had a depth of one (1) inch ... [that] began fairly near the beginning of the curve. It looked like it started about ten (10) feet before what I estimated to be the beginning of the curve.” Dr. Dart asserted that he believed the accident occurred “when she [Hebert] got her right wheel, particularly the right front wheel, went into this rut which was filled with water and she ... experienced a retardation.” When questioned about the speed at which Hebert was driving, Dr. Dart conceded that “usually a speed of something close to thirty-five (35) miles-per-hour or higher would probably be necessary to get a significant retardation of force on that right front wheel to cause a vehicle to go to the right. At twenty (20) or twenty-five (25) miles-an-hour, it probably wouldn’t be sufficient.” Dr. Dart also admitted that there was no way he could know whether a rut existed at the time of the accident. When asked how long the rut in the roadway existed, Dr. Dart stated “there’s no way to know exactly, but it had probably been there for several months, maybe a year.” Dr. Dart also conceded that it was conceivable that a depression could be caused by a heavy vehicle passing on an asphalt surface only once.

Corporal Jimmy Richard, a police officer with the Lafayette City Police Department since 1992, was the investigating officer who responded to the accident. Corporal Richard testified that upon arriving at the accident scene, Hebert could not remember how fast she was driving, but did recall her saying that “she was going | fidown the road and instead of — -when she tried to turn her wheel to go with the curve, she continued straight on.” Hebert did not mention to him that she hit a rut or puddle of water on the roadway, nor did she mention feeling a jerking motion before she lost control of her car. Corporal Richard testified that he investigated the scene by checking the roadway for ruts and defects, but found none to exist. After he interviewed Hebert and investigated the accident scene, Corporal Richard concluded that “she was either inattentive or distracted at the time of the accident.” Corporal Richard explained his reasoning for reaching said conclusion as follows:

Being that it was raining off and on, the roadways were wet, and the curve is a sharp curve, and the Department of Transportation concluded that its recommended speed should be twenty-five (25) miles-an-hour to go around the curve. Being that her vehicle — the striking path, the items that she struck, proved to me that she was not able to make a turn. Her vehicle went straight in the direction where she was heading prior to the curve.

Dr. Joseph Blaschke, the City’s expert witness who specializes in traffic engineering, testified that one heavy vehicle could cause a linear depression to develop in asphalt. Dr. Blaschke also agreed with Dr. Dart’s conclusion that Hebert was driving between thirty-five and forty miles-per-hour.

The City also presented its street superintendent, Steve Trumps, and its engineering aide specialist, Ricky Leger, who testified about the City’s inspection procedures. Mr. Trumps testified that the City had no complaints about this particular curve or any notice of a depression, or rut, on the roadway. According to Mr. Leger, he conducts annual inspections of all the roads in Lafayette Parish and, at the location of Hebert’s accident, his inspection in March of 2001 revealed no noticeable defects.

Hebert testified that immediately prior to her accident she did not see anything in the road, including ruts or puddles, nor did she hear water splashing. Despite the |7wet conditions, Hebert admits that she was traveling at least thirty-five miles per hour in a twenty-five mile-per-hour speed zone in rainy weather. Hebert did not communicate to the investigating officer that her vehicle hit a rut in the road or that she felt her vehicle jerk just before she lost control, nor did she relay this version of events to her treating physicians. When asked to describe her accident on the patient information form of the Lafayette Bone and Joint Clinic, Hebert wrote “[t]he roads were very wet and as I was making a curve, my car just started sliding.” In response to Dr. Alan Appley’s patient information form, Hebert described her accident in much the same manner by writing “[t]he roads were wet and as I was taking a curve, my car started sliding and could [sic] not maintain control.” Though Hebert asserts that her accident was a result of the conditions of the roadway, we find this argument unpersuasive and the evidence insufficient in support thereof.

A driver of a motor vehicle has a duty not to drive at a speed greater than is reasonable and prudent under the weather conditions and potential hazards then existing. See La.R.S. 32:64(A). “Extremely adverse driving conditions call for unusual caution on the part of motorists.” Tolbert v. Fireman’s Fund Ins. Co., 98-637, p. 6 (La.App. 3 Cir. 10/7/98), 719 So.2d 738, 741 (quoting King v. King, 253 La. 270, 280, 217 So.2d 395, 398 (La.1968)). Hebert’s speed on a wet roadway upon entering a curve was clearly unreasonable. Further,a thorough review of the evidence in the record fails to establish a sufficient eviden-tiary basis to support the trial court’s finding that Lajaunie Road presented an unreasonably dangerous condition to drivers and that the City had notice of the existence of said defect. Therefore, we find that the trial court was clearly wrong in finding the City liable without a sufficient factual basis to support said finding. Having found that the City | Sis not liable for Hebert’s accident, thereby reversing the trial court’s judgment, this court need not address any remaining issues as these have now been rendered moot.

DECREE

For the above reasons, the judgment of the trial court is reversed. All costs of these proceedings are assessed against Plaintiff/Appellee, Tracy Lynne Hebert.

REVERSED.

      . Louisiana Revised Statutes 9:2800 provides:
      A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
      B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state's benefit and use.
      C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
      D.Constructive notice shall mean the existence of facts which infer actual knowledge.