author: CARAWAY, J.

text:
    Terry Randall WHITEHEAD and Tabitha Renee Bartlett Whitehead, Plaintiffs-Appellants v. Matthew Dale HUMPHREY, Defendant-Appellee.
    No. 42,078-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Rick Fayard, Bossier City, for Appellants.
    Kitchens, Benton, Kitchens & Black, by Paul E. Kitchens, Minden, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

| -i This is a redhibition ease involving the sale of a home. The plaintiffs claimed various latent defects in the house that were discovered in the nineteen months between the sale and delivery of the home and their filing of suit. The defendant raised the one-year prescription for redhi-bitory defects applicable to residential im-movables and challenged the plaintiffs’ delay in filing suit after the time of their discoveries of the alleged defects. The trial court ruled that claims regarding certain defects were prescribed but awarded a diminution in the purchase price for the cost of repairs for other defects in the home. The plaintiffs appeal seeking a complete rescission of the sale and, alternatively, asserting error in the trial court’s ruling on prescription. We affirm the trial court’s ruling but amend the amount of the judgment, awarding attorney’s fees because of the seller’s prior knowledge of the particular defect which served as the basis for the trial court’s ruling.

Facts

Terry and Tabitha Whitehead purchased a $67,000 home in rural Webster Parish from Matthew Humphrey on February 25, 2004. Humphrey paid $44,000 for the property about six months earlier and had partially renovated it. His mother, Laura Humphrey, is a licensed real estate agent and owns LA State Realty, the listing agency for the home. The Humphreys employed Chad Callender for the renovation work on the home.

After execution of a purchase agreement in January 2004, the Whiteheads inspected the property four or five times prior to the closing. 12The mortgage lender’s appraiser inspected the dwelling on February 4, 2004, and required some minor repairs. The appraiser noted the “toilet does not function properly in the rear bath.” The termite inspection occurred prior to closing, on February 18, 2004.

Humphrey’s renovations prior to the sale included replacing rotten wood underneath the new bedroom window, work on the deck such as putting Styrofoam around the bottom, replacing all the handrails, re-leveling the porch, and work on the stairs and the septic system. Callender’s work consisted of interior painting, replacing sheetrock, tearing out a wall, installing a replacement window and digging up 80 feet of field line for the septic system, as well as replacing some rotten wood.

At the closing on February 25, 2004, Humphrey signed the papers separately from the buyers. The Whiteheads and their agent did not meet Matthew Humphrey until the trial.

A few months after the Whiteheads moved into the home, difficulties with the master bathroom plumbing started. Later on, the air conditioning unit required attention. They also discovered the fireplace was not functioning properly. In the process of starting to remodel the master bath in the spring of 2005, Terry Whitehead discovered rotted wood behind the ceramic tile, and the faulty plumbing/septic system issue again emerged in the other bathroom. When the Whiteheads consulted a professional licensed contractor, they learned of more rotten wood around the front porch.

The Whiteheads filed suit against Humphrey on October 5, 2005, seeking the rescission of the sale for alleged redhibitory defects and |3damages. Humphrey answered and urged a peremptory exception of prescription on the ground that the sale occurred more than one year before the Whiteheads filed suit. A ruling on the exception was deferred until trial.

After receiving testimony from both Tabitha and Terry Whitehead, the trial court ruled that the problems with the air conditioner and plumbing/septic system were discovered by them more than one year before they filed suit in October, 2005, and on that basis, those claims were prescribed. Nevertheless, plaintiffs put on several more witnesses to testify concerning air conditioning repairs. The trial court later reiterated its ruling in favor of defendant’s exception.

At the conclusion of trial, the trial court ruled from the bench, finding that a redhi-bitory defect existed in the fireplace and that the Whiteheads were entitled to an award of $1,675 to repair it. No issue is raised regarding this ruling. The court also awarded $7,695 of the Whiteheads’ claim for $21,774 for rotten wood within the structure. The judgment against Humphrey for $9,370 plus legal interest from October 5, 2005, and costs, was signed at the close of trial. The Whiteheads appeal the judgment.

Law of Redhibition

Louisiana Civil Code Article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
14A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

A defect is not hidden, and therefore not redhibitory, when the buyer knows of it either because it was disclosed by the seller or because the buyer discovered it himself. La. C.C. art. 2521, Official Revision Comment (b). The standard of diligence that must be exercised by the buyer in determining whether the thing purchased is defective is that of a prudent administrator. La. C.C. art. 2521, Official Revision Comment (c). The buyer must make more than a casual observation of the object; he must examine the thing to ascertain its soundness. La. C.C. art. 2521, Official Revision Comment (d). Testimonial proof concerning the seller’s declaration of defects to the buyer, or of the buyer’s knowledge of the defects, may be received. The seller need not respond for defects in the thing of which the buyer was aware, irrespective of the gravity of the defects. La. C.C. art. 2521, Official Revision Comments (e) and (f).

The warranty against redhibitory defects covers only defects that exist at the time of delivery. To make out a prima facie case of redhibition the buyer need not prove the underlying cause of the red-hibitory defect involved, but only that the defect existed. The nature of a defect may allow the court to draw an inference that it existed at the time of delivery even if it appeared after three days from that time. La. C.C. art. 2530 and Official Revision Comments (b) and (c).

[ ¡¡Regarding prescription of the redhibition action, La. C.C. art. 2534 provides, in pertinent part, as follows:

A. (2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

A buyer may choose to seek only reduction of the price even when the redhi-bitory defect is such as to give him the right to obtain rescission of the sale. In an action for rescission because of a redhi-bitory defect the court may limit the remedy of the buyer to a reduction of the price. La. C.C. art. 2541. The price reduction that may be demanded under this Article is the difference between the sale price and the price that a reasonable buyer would have paid if he had known of the defects. La. C.C. art. 2541, Official Revision Comment (b). A principal element in formulating a reduction of the purchase price is the cost of repairs. Sanders v. Earnest, 34,656 (La.App. 2d Cir.7/24/01), 793 So.2d 393; La. C.C. art. 2541, Official Revision Comment (d). In sales of immov-ables, the amount to be awarded is the amount necessary to convert an unsound structure into a sound one. Id.

Article 2545 provides for the liability of a seller who knows of a hidden defect:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by |fithe sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees-

Discussion

I.

The Whiteheads argue broadly that rescission of the sale with return of their $67,000 purchase price was the appropriate remedy instead of the $9,370 diminution of the sales price which the judgment awarded. We will defer consideration of that issue for last and focus on the facts of the two major defective items which are alternatively raised by appellants’ arguments.

First, the appellants argue that the trial court erred in excluding their redhibitory claim for the plumbing and sewer problem on the basis of prescription. The two rules of prescription under Civil Code Article 2534(A)(2) and (B), supra, turn on the seller’s knowledge of the defect at the time of the sale. If the seller did not know of the hidden defect of the residential immovable, the action for redhibition prescribes after one year regardless of the buyer’s lack of discovery during that year. La. C.C. art. 2534(A)(2). Humphrey’s knowledge of the alleged plumbing defects is a critical inquiry for prescription in this case since the -Whiteheads filed suit nineteen months after the sale and delivery of the home. If Humphrey knew of the defect at the time of the sale, the claim for redhibition would not prescribe until the lapse of one year from the time of the Whiteheads’ discovery. In this case, our review of the record indicates that factual [7disputes surrounded both the issue of Humphrey’s knowledge of the redhibitory defect in the sewer system and the time of the Whiteheads’ discovery of the problem.

After the purchase agreement was signed by the parties, but before closing, an FHA appraiser inspected the house on February 4, 2004, and noted as a “mechanical system problem,” that the “[tjoilet does not function properly in rear bath and water on hot water side of lavatory does not turn on.” Two weeks later, in response to the State Health Department’s requirement for installation of 80 feet of field line for the Sewer system, Humphrey hired Davis Contracting, Inc. which “replaced 80 feet of drain line to the septic tank and retied in the field line.” Before Davis could work on the septic system, the septic tank had to be pumped out on February 1Ó, 2004. A State Department of Health and Hospitals inspection of the septic system occurred three days before closing.

Terry Whitehead testified that when they were looking at the house to buy, the yard was a mess because all of the field lines for the sewer system had been dug up. However, he did not realize at that time that the septic tank was located under the driveway. As part of her pre-inspection of the house, Tabitha Whitehead testified that she flushed both of the toilets and they both worked.

The Whiteheads’ initial problem concerned the master bathroom and began three or four months after they moved into the house. When the water backed up in the main bathroom in the spring of 2004, Tabitha called Roto-Rooter to correct the flow. It was then that she learned the septic tank |8was located under the driveway. This meant that the traffic across the driveway could cause problems with the tank and lines.

In May 2005, Terry Whitehead started to remodel the master bath and tore out the shower and ceramic tile. The Whiteheads then began using the rear bathroom and experienced the same backing-up problem. At that time, the Whiteheads consulted Cook’s Plumbing which provided the Whiteheads with an estimate totaling $12,000 which included relocation of the septic system and correction of other problems.

This evidence reveals that prior to the sale, the vendor and vendee were alerted to an issue regarding the sewer system. Corrective actions were taken, and no problems concerning the flushing of the toilets and flowage through the underground system prevented the Whiteheads from completing their purchase. From this evidence, the ruling of the trial court on prescription can be upheld from the view that neither side understood that a latent defect remained unresolved. If so, Humphrey, as a “seller who did not know of the existence of the defect,” could receive the benefit of the one-year prescriptive period.

Specifically, however, the trial court’s ruling rested upon its interpretation of the notice received from the initial plumbing problems of the Whiteheads in May 2004. This was over sixteen months before they filed suit. The Whiteheads argue that obtaining the services of Roto-Rooter at that time was merely a routine plumbing service matter which did not alert them to the magnitude of what was later realized as a redhibitory defect. Nevertheless, in view of the plumbing problems in advance of the | flsale, the trial court could determine that the May 2004 episode with the plumbing gave the Whiteheads sufficient notice of the redhibitory defect.

Accordingly, we find no manifest error in the trial court’s factual determination that the Whiteheads discovered that the sewer system remained a problem with their residence in the spring of 2004, and therefore their failure to have filed suit within one year of that discovery caused prescription to run against that claim.

On the other hand, the trial court expressly found that Humphrey had knowledge of the rotten boards or sills underneath the house which were improperly repaired by Humphrey prior to the sale. The trial court ruled that this claim had not prescribed after the lapse of one year from the sale because of Humphrey’s knowledge and was subject to the discovery rule under Article 2534(B). The evidence showed that the Whiteheads first discovered this problem in May 2005, five months prior to suit.

In their next assignment of error, the Whiteheads argue that the trial court’s determination for prescription purposes that Humphrey was a “seller who knew of the existence of the defect,” placed him in the category of the so-called bad faith seller entitling them to attorney’s fees under Civil Code Article 2545. While this contention is correct, Humphrey counters by pointing out that the Whiteheads’ petition did not seek attorney’s fees and the trial court was never required to rule on the issue of attorney’s fees. Humphrey raises URCA Rule 1-3 which provides that “[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the Iminterest of justice clearly requires otherwise.” Also, we note in considering this situation that La. C.C.P. art. 2164 directs the appellate court to “render any judgment which is just, legal, and proper upon the record on appeal.” Official Revision Comment (a) to Article 2164 states, in part, that “the purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by -the court below. This article insures that the ‘theory of a case’ doctrine ... is not applicable to appeals under this Code.” See, Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir.1977), writ denied, 350 So.2d 1223 (La.1977).

In this case, while it is true that a prayer for attorney’s fees was never made and the trial court was never directed to such claim,' the trial court expressly addressed and decided the factual issue of Humphrey’s knowledge of the rotten sills upon which hinge both prescription and the enhanced remedies against the “bad faith” seller. Once that factual determination was made, the remedy of the award of attorney’s fees against the so-called bad faith seller is not discretionary under Article 2545 and was the just, legal and proper remedy under the decided facts. Since the trial court would have discretion in fixing the amount of reasonable attorney’s fees and was never asked to so decide, we will award the minimum for attorney’s fees for the trial of this case in the amount of $2,500.

_LuH.

The trial court’s judgment refused to rescind the sale and awarded a reduction in price based upon the cost of repairs of the defects in the fireplace and the wooden sills. From our review of the nature of these two defects, we find that the court properly used its discretion in rejecting rescission, and appellants’ assignment of error seeking rescission and return of the sale price is without merit.

In Sanders v. Earnest, supra, this court compared the remedies of rescission and reduction of the purchase price in a case where a persistent defect in a home presented a much closer question. Nevertheless, the court affirmed the trial court’s award of the remedy of reduction in the purchase price based upon the trial court’s discretionary allowance for such remedy under Civil Code Article 2541. In this case, the defects which were found not to have prescribed could be repaired with relative ease, and no issue was made regarding the Whiteheads’ ability to completely correct the problems. .The costs of those repairs were a small fraction of the sale price. Accordingly, we find no abuse of discretion, and the ruling of the trial court refusing to rescind the sale is affirmed.

Conclusion

We affirm the trial court’s conclusions concerning the'various redhibitory defects affecting the home purchased by appellants. The trial court’s damage award for these defects involved vices known to the seller which entitle appellants to an award for attorney’s fees. We therefore 11?.amend the judgment to include a $2,500 award for attorney’s fees. Costs of appeal are assessed equally to the parties.

JUDGMENT AMENDED AND AFFIRMED.

      . La. C.C. art. 2534(B)’s reference to the "presumed” knowledge of a seller would not be applicable here. ’ The codal scheme indicates that the seller is presumed to know the defect of the thing sold when he is a manufacturer of that thing. La. C.C. art. 2545.

      . Had there been any unaddressed fact controversy about the entitlement to attorney’s fees, consideration of an initial award at the appellate level would be improper. See, Aguilar v. Transit Management of Southeast Louisiana, Inc., 04-1027 (La.App, 5th Cir.3/1/05), 900 So.2d 65.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lloyd FUSLIER.
    No. 06-1438.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      James E. Burks, Lake Charles, Louisiana, for Defendant/Appellant, Lloyd Fuslier.
    Douglas L. Hebert, Jr., District Attorney, Thirty-third Judicial District, ADA Sherron Ashworth, Oberlin, Louisiana, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

h Lloyd Fuslier (Fuselier) was charged by Bill of Information on March 4, 2005 with one felony count of first degree vehicular negligent injuring, a violation of La. R.S. 14:39.2; one misdemeanor count of vehicular negligent injuring, a violation of La.R.S. 14:39.1; one misdemeanor count of operating a vehicle while intoxicated, first offense, a violation of La.R.S. 14:98; and, one misdemeanor count of driving left of center, a violation of La.R.S. 32:71. On May 17, 2006, pursuant to bench trial, the trial court found Defendant guilty as charged on all four counts.

On September 1, 2006, Defendant was sentenced as follows:

1. Pursuant to the felony conviction for first degree vehicular negligent injuring, Defendant was sentenced to four years at hard labor, with all but six months suspended. Following release, Defendant was placed on four years supervised probation with general and special conditions of probation, fees, and court cost. Defendant was also ordered to pay restitution to the victim of two thousand two hundred eighty-three dollars and thirty-eight cents;
2. Pursuant to the misdemeanor conviction for vehicular negligent injuring, Defendant was sentenced to serve six months in the parish jail, to run concurrently with the previously imposed sentence;
3. Pursuant to the misdemeanor conviction for operating a vehicle while intoxicated, first offense, Defendant was sentenced to six months in the parish jail, to run concurrently with the two ^previous sentences, plus a fine of five hundred dollars; and,
4. Pursuant to the misdemeanor conviction for driving left of center, Defendant was ordered to pay a fine of one hundred dollars within three months of his release from jail, or serve an additional ten days.

Defendant has timely perfected an appeal, asserting there was insufficient evidence to sustain two of the misdemeanor convictions and the one felony conviction as presented to the trier of fact. After a complete review of the record, we find that the evidence was sufficient for the trier of fact to determine beyond a reasonable doubt that Defendant was guilty as charged on the misdemeanor offenses; and, due to error patent, we pretermit adjudication as to the felony offense of first degree negligent injuring pending a hearing, after remand, on the issue of whether or not Defendant knowingly and intelligently waived his right to counsel on said felony offense.

FACTS

On a rainy evening, December 3, 2004, at approximately ten o’clock, Defendant, alone at the time, was driving his truck in a westerly direction on Highway 190 toward Kinder, Louisiana. The victims, A.C. and L.F., both fifteen years old at the time, were traveling in a Chevy Impala in an easterly direction toward Elton, Louisiana, with A.C. driving. Defendant’s truck crossed the centerline of the roadway and struck the Chevy Impala. A.C. received severe injuries. L.F. received minor injuries. It was later determined that Defendant’s blood/alcohol concentration was 0.12 percent.

| .PROCEDURAL ISSUE

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent. Upon reviewing the record, we find one error patent and one procedural issue. The error patent will be addressed in the errors patent section of this opinion. We will first discuss the procedural issue as it addresses whether Defendant’s misdemeanor convictions are properly before this court for review.

Because these charges were not triable by jury, the normal mode of appellate review for these offenses is an application for writ of review rather than an appeal. La.Code Crim.P. art. 912.1(C). In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant’s appeal of two felony convictions. This court ordered the “defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court.” Id. at 289.

In Turner, the court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. In the present case, however, Defendant’s attorney attacks Defendant’s convictions for the felony and two of the three misdemeanors on the grounds of insufficiency of the evidence. Since Defendant’s brief covers the felony and only two of the three misdemeanor convictions, we will not sever the misdemeanor convictions; rather, in the interest of judicial economy, we will address them in the present appeal. We note that the first circuit has stated the following in a similar circumstance:

This appeal relates to both defendant’s felony convictions and his 14misdemeanor convictions. Normally, misdemeanor convictions would not be appealable. Instead, defendant could petition an appellate court for a writ of review. However, when the charges in the two bills of information were consolidated, they became a single “case.” Because defendant was entitled to a jury trial, upon conviction he was entitled to appeal the “case.” See La. Const. art. I, § 17; La. C.Cr.P. arts. 706 and 912.1(B); State v. Comeaux, 408 So.2d 1099, 1103, 1104 (La.1981).

State v. Swan, 544 So.2d 1204, 1206 n. 3 (La.App. 1 Cir.1989). Considering the foregoing, though the proper legal procedure is to apply for a writ of review, not file an appeal, we will address these two misdemeanor convictions in the present appeal.

As will be discussed below in the errors patent section of this opinion, it is impossible to determine from the record in the present case whether Defendant’s waiver of his right to a jury trial on the felony charge of first degree vehicular negligent injuring was knowingly and intelligently made. However, this court must first consider whether there is any merit to Defendant’s assignment of error in which he challenges the sufficiency of the evidence. See State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental filing, 98-1180 (La.9/25/98), 726 So.2d 2 and State v. Morris, 615 So.2d 327 (La.1993).

ASSIGNMENT OF ERROR

As his sole assignment of error, Defendant asserts that the evidence was insufficient to sustain the convictions. Specifically, Defendant argues there was insufficient evidence to establish that it was his vehicle that crossed over the centerline of the roadway.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the | r,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 therefore, 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.

Defendant was charged with first degree vehicular negligent injuring. This offense is described, in pertinent part, as follows:

A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
C. For purpose of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ or a mental faculty, or a substantial risk of death.

La.R.S. 14:39.2.

Vehicular negligent injuring is defined as:

A. Vehicular negligent injuring is the inflicting of any injury upon Rthe person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

La.R.S. 14:39.1.

The offense of operating a vehicle while intoxicated occurs when the operator of a vehicle “is under the influence of alcoholic beverages; or (b) [when] [t]he operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.” La.R.S. 14:98.

Finally, a driver is mandated to drive on the right side of the roadway unless “passing another vehicle proceeding the same direction under the rules governing such movement,” or “[w]hen the right half of a roadway is closed to traffic,” or “[u]pon a roadway designated and signposted for one-way traffic.” La.R.S. 32:71. The State of Louisiana (State) alleged Defendant illegally drove his vehicle into the left lane.

Both victims testified at trial. A.C., who was eighteen at the time of trial, testified she was driving her mother’s Chevy Impala. She stated that she and her best friend, L.F., had gone to a church function in Kinder. At approximately 9:30 p.m., they left and went to Market Basket for a few minutes. She then drove along Highway 190 toward Elton to take L.F. home. A.C. has no recollection of the accident. Although she recalled it being a rainy night and seeing oncoming traffic, she did not recall seeing Defendant’s truck. A.C. testified that one moment she was talking with L.F., and the next moment she woke up in the hospital. She testified that |7the orbital bones in her face were broken in several places and her jaw was crushed. She had to have a tracheotomy in order to breathe. She has had at least ten operations to reconstruct her face. A.C. identified pictures taken of her shortly after the accident. She stated that besides being permanently scarred, she had to have a shunt placed from her left eye to her nose to allow drainage because her eye no longer drains properly, and she appears to be crying all the time.

L.F.’s testimony corroborated A.C.’s testimony. L.F., who was seventeen at the time of trial, also did not see Defendant’s truck. She stated she was looking out the passenger side window when the accident occurred. She said she suffered a bruised hip and knee, and has had no continuing problems from the injuries.

At the time of the accident, Roy Dean Strother, since retired, was a “Master Trooper” with the Allen Parish Sheriffs Office. He was an accident investigator and was the lead investigator in this case. Since retirement, he has worked as a consultant for the sheriffs office in accident reconstruction. He was accepted by the trial court as an expert in crash scene investigations. Strother testified that it had been raining on and off all day and into the evening. He was called to the scene about 10:09 p.m. He identified pictures he had taken that night of the condition of the roadway and of the truck and the car. He testified that the truck had crossed the center and struck the victims’ car. He explained that the two vehicles impacted approximately two feet south of the centerline, which would have made the point of impact in the eastbound lane. He stated that he determined where the point of impact occurred by the distribution of the debris left from the car and truck as a result of the impact, the type of damage done to the two vehicles, the final resting place of the vehicles, and from what he identified as a gouge in the roadway, which was approximately two feet |ssouth of the centerline.

Strother stated that after he took pictures that night, he went to the hospital to see if he could speak with Defendant and the victims. He said that upon encountering Defendant, he detected a strong odor of alcohol and had the nurse take a sample of Defendant’s blood for a blood/alcohol concentration test. The results of the laboratory examination indicated that at the time of the extraction of the sample, Defendant’s blood contained “0.12 gram percent of ethyl alcohol.”

Strother testified that he did not ask either Defendant or the victims what had happened. Defendant would not speak to him, and the victims could not recall the accident. He stated he did not mark the point of impact or the final resting places of the vehicles with paint the night of the accident because the paint would have been washed away by the rain. He admitted a gouge in the roadway could not be seen in any of the pictures he took the evening of the accident. Moreover, he did not return to the accident site the next day to take pictures. He stated he had marked the location by noting in his report that the point of impact was at the 74-mile post marker.

Jason Fontenot, a patrolman with the Kinder Police Department, was one of the first officers’ to arrive at the accident scene. His testimony essentially corroborated Strother’s. He described the position of the vehicles in relation to the roadway and the debris field left from the collision that was in the middle of the eastbound lane.

Roger Thomas, an accident reconstruc-tionist for the Calcasieu Parish Sheriffs Office, testified as to how, in his opinion, the accident occurred. He was accepted as an expert in accident reconstruction. Thomas testified that on April 25, 2006, he visited the crash site with Roy Strother, who described for him the scene on the night |3of the accident. He reviewed Strother’s reports, diagrams of the site, and photographs. He stated Strother pointed out to him the gouge mark in the roadway at the supposed point of impact in the eastbound lane.

After somewhat long and somewhat confusing testimony, Thomas concluded Defendant’s truck crossed the centerline at approximately nine degrees off the central axis of the westbound lane and struck the victim’s car.

Okay. So, number one [Defendant’s truck] is at a greater speed, heavier vehicle, going much further after post impact distance than vehicle two [victim’s car] did, westbound, veers slightly, about approximately ten degrees, nine or ten degrees, across the yellow line, into the — partially into the east bound lane of 190 at which time the left front area — and I haven’t looked at photo on [sic] number one, — but looking at this one I can almost tell you where this one would be — but, left from area, okay of vehicle one impacted the [sic] right there at the front, the left front, right behind the bumper area, left front side car panel of number two at initial impact. And of course I can tell that by, again, by the angle, and again by the — where the vehicles ended up, they would have come out of the east bound lane of 190.

Thomas arrived at this conclusion after considering the assumed point of impact, the weight of the two vehicles, the final resting place of the two vehicles after impact, and the distance of each vehicle from the point of impact. The truck ended up in the ditch off the south side of the eastbound lane, and the car stopped part way off the road in the westbound lane. He considered the damage done to the vehicles. The truck had damage to its left front bumper and fender, while the damage to the car extended from its left front bumper and fender down to and along the driver’s side door panel. He also considered the location of the debris on the roadway, which was scattered in a southwesterly manner from the point of impact.

On cross-examination, Thomas admitted he did not see a photograph of the damage done to the truck, but relied only on Strother’s description. He further agreed that there was no way to know for certain whether the gouge he saw in the eastbound 11 Jane at the alleged position of the point of impact was the gouge left by this particular event.

Finally, Zachary J. Lee, a private investigator from Lake Charles, Louisiana, testified on behalf of Defendant as an accident reconstructionist. He stated he went to the accident site in March 2005. He stated he visited the crash site using, as a guide, Strother’s report indicating the point of impact at mile post seventy-four. He testified he saw nothing to indicate that the accident had occurred in the location Roy Thomas’s report indicated. Lee primarily addressed inconsistency in Thomas’s report. He pointed out, as inconsistent, certain distances of the vehicles from the alleged point of impact to where each vehicle was alleged to have come to rest. He stated there was no way to conclusively establish a point of impact from the photographs or Strother’s report and Thomas’s report. He stated, “Mr. Thomas, he makes several statements to irrefutable facts and provable facts, but I have not seen any proof.”

On cross-examination, Lee admitted he never talked with Strother regarding the accident scene on the night of the accident. He stated he did not do an accident reconstruction. However, he testified he did not agree with Thomas’s hypothesis that if the truck hit the car at a nine-degree angle from the central axis of the westbound lane, the vehicles would have come to rest in the positions shown in the photographs. Although, he did state the damage to the car was indicative of another vehicle “coming in at a nine degree angle.”

Defendant’s entire argument of insufficient evidence is premised primarily on the assertion that there was no conclusive evidence that it was Defendant who crossed the centerline. This court finds that the evidence was sufficient, however, to allow Inthe trier of fact to conclude beyond a reasonable doubt that Defendant did cross the centerline, thus causing the collision between his truck and the victims’ vehicle. Patrolman Fontenot and Roy Strother both testified as to the position of the vehicles after the accident and that the debris field which resulted from the collision was located in the eastbound lane, indicating Defendant left his lane of travel and entered the victims’ lane. Pictures of the damage to the car were submitted, which tended to indicate that the truck turned into the car. Moreover, the evidence that Defendant was under the influence of alcohol at the time of the collision was not refuted.

While Defendant’s expert witness testified that there was no evidence to suggest that it was Defendant who crossed the centerline, he did not conduct any accident reconstruction, and he agreed that the damage sustained by the car as depicted in the photograph was consistent with the truck coming into the eastbound lane of travel and hitting the car at a nine-degree angle.

This court finds that the State met its burden of proving all of the necessary elements of the misdemeanor offenses of vehicular negligent injuring and driving left of center beyond a reasonable doubt.

ERRORS PATENT

In our error patent review, we note one error patent. Defendant in this case was charged in a single bill of information with the felony charge of first degree vehicular negligent injuring and the misdemeanor offenses of vehicular negligent injuring, operating a vehicle while intoxicated, first offense, and driving left of center. The offense of vehicular negligent injuring is punishable by a fine of not more than one thousand dollars or imprisonment for not more than six months, or both. La.R.S. 14:39.1(C). For operating a vehicle while intoxicated, first offense, the punishment 11⅞⅛ a fine of not less than three hundred dollars nor more than one thousand dollars and imprisonment for not less than ten days nor more than six months. La.R.S. 14:98(B). Finally, driving left of center carries a fine of not more than one hundred seventy-five dollars, or imprisonment for not more than thirty days, or both. La.R.S. 32:71 and La.R.S. 32:57(A). Accordingly, Defendant was not entitled to a jury trial on any of these three misdemeanor offenses. La.Code Crim.P. art. 779(B). Because Defendant was entitled to a jury trial for the felony charge of first degree vehicular negligent injuring, and was not entitled to a jury trial on the misdemeanor charges, the offenses were not triable by the same mode of trial and should not have been charged in the same bill of information. See La. Code Crim.P. art. 493. However, because Defendant failed to file a motion to quash the information based on the misjoinder, he waived any objection to the error. La. Code Crim.P. art. 495; State v. Mallett, 357 So.2d 1105 (La.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979). Accordingly, we find that the issue of misjoinder is waived.

However, the record is not clear as to whether Defendant knowingly and intelligently waived his right to a jury trial. Defendant was entitled to a jury trial on the felony charge of first degree vehicular negligent injuring. In the record, there is a written motion requesting a bench trial filed on May 11, 2006. The motion is signed by defense counsel, but not Defendant. The motion was granted by the court the same day. There is no indication in the court minutes that May 11, 2006 was a court day in this case.

To determine whether there was a discussion in open court of the waiver of jury h atrial, we have examined the court minutes and found no reference to the waiver of the right to a jury trial. Accordingly, we requested information from the lower court concerning any discussion of the waiver of this right and were informed that there are no minute entries concerning a discussion of Defendant’s waiver of a jury trial. Additionally, we were informed by the trial court that after reviewing all recordings and notes relative to pretrial hearings, trial, and sentencing, the trial court was unable to locate “testimonial evidence regarding defendant’s waiver of right to a jury trial.”

Thus, the issue in this case is whether a written waiver signed by defense counsel, but not Defendant, was sufficient to waive Defendant’s right to a jury trial.

In State v. Morris, 607 So.2d 1000 (La.App. 3 Cir.1992), judgment set aside on other grounds & remanded, 615 So.2d 327 (La.1993), this court was faced with this very issue. Setting forth the general law regarding waiver of a defendant’s right to a jury trial, this court stated:

Our Louisiana Constitution of 1974, Art. I, section 17 entitles an accused to a trial by jury which he may relinquish except in capital cases. La.C.Cr.P. art. 780 repeats this right and provides that a defendant “may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment the defendant in such cases shall be informed by the court of his right to waive trial by jury.” While one who is entitled to a jury trial may waive that right, such waiver shall not be presumed but must be established by a contemporaneous record setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the accused. |14State v. Smith, 447 So.2d 4 (La.App. 3 Cir.1984). The denial of this fundamental right constitutes an error patent. State v. Salata, 479 So.2d 660 (La.App. 3 Cir.1985).

Id. at 1001.

In Morris, a written motion to waive jury trial signed by defense counsel, but not the defendant, was filed. In concluding this was not sufficient for a valid waiver, this court reasoned:

Although the Supreme Court has permitted a waiver to be made by defense counsel, in such instances the defendant was present in court with his attorney when the waiver was made, and his failure to object at that time was construed to be a waiver by him. State v. Phillips, 365 So.2d 1304 (La.1978); State v. Kahey, 436 So.2d 475 (La.1983). Here the record does not show that the defendant was in court when the waiver was filed. He had no opportunity to object to the action of his attorney, therefore the motion filed by the attorney cannot be considered as a knowing and intelligent waiver by the defendant.
In State v. McCarroll, 337 So.2d 475 (La.1976) quoted with approval by State v. Williams, 404 So.2d 954 (La.1981) the court stated:
Although the right to a jury trial may be waived in a non-capital case, Art. I Section 17 requires that the waiver be “knowingly and intelligently” made. Therefore we must indulge every reasonable presumption against waiver of this fundamental right.
If nothing in the record shows the defendant knowingly and intelligently waived his right to trial by jury, the presumption against waiver is not rebutted. In the instant case there is no indication that the defendant was informed by the court or his counsel of his right to trial by jury and that he knowingly and intelligently waived that right.

Id. at 1001.

As a result of the error, this court vacated the defendant’s conviction and sentence and remanded the case to the trial court for further proceedings. See also |15State v. Arnold, 30,282 (La.App. 2 Cir. 1/21/98), 706 So.2d 578, where the second circuit reached the same conclusion under similar circumstances, but remanded the case for an evidentiary hearing instead of reversing the defendant’s conviction. Specifically, the second circuit stated:

The defendant’s convictions for murder and attempted murder are conditionally vacated and remanded to the trial court for a hearing to determine whether the defendant knowingly and intelligently waived his right to a jury trial. The defendant’s conviction for possession of a firearm by a convicted felon is reversed and remanded because of the inadequate procedure surrounding his “guilty plea” at the trial.

Id. at 588.

This court has also chosen to remand a case for an evidentiary hearing under somewhat similar circumstances. In Clark, 711 So.2d 738, this court found patent error resulted when the defendant was tried by a judge after having initially requested a jury trial, absent any subsequent written or oral waiver of the previous request. However, instead of reversing the defendant’s conviction and sentence, this court opted to follow the procedure adopted by the first and fifth circuits, and approved by the supreme court in State v. Nanlal, 97-786 (La.9/26/97), 701 So.2d 963, and remanded the case with instructions to the trial court as follows:

(1) conduct an evidentiary hearing within thirty days of this date to determine whether defendant knowingly and intelligently waived his right to trial by jury and (2) re-lodge the appellate record, supplemented with a transcript of the hearing, within fifteen days of the hearing. The State and defendant will be given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing.

Clark, 711 So.2d at 742.

|1fiIt is impossible to determine from the record in the present case whether Defendant’s waiver was knowingly and intelligently made. Therefore, following Clark, we remand the case to the trial court with instructions that the trial court conduct an evidentiary hearing within thirty days to address and rule on the issue of whether Defendant knowingly and intelligently waived his right to trial by jury. The appellate record, supplemented with a transcript of the hearing, shall be re-lodged within fifteen days of the hearing. The State and Defendant are given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing. Thereafter, this court will address Defendant’s appeal of his felony conviction and all issues pertinent thereto.

CONCLUSION

Defendant’s misdemeanor convictions and sentences for vehicular negligent injuring and driving left of center are affirmed. This case is remanded to the trial court with instructions that the trial court conduct an evidentiary hearing within thirty days and render a ruling on the issue of whether Defendant knowingly and intelligently waived his right to trial by jury on the felony charge of first degree vehicular negligent injuring. The appellate record, supplemented with a transcript of the hearing, shall be re-lodged within fifteen days of the hearing. The State and Defendant shall be given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing. Thereafter, this court will address Defendant’s appeal of his felony conviction and all issues pertinent thereto.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

      . This court notes that throughout the record, Defendant's name is alternately spelled "Fuselier” and “Fuslier.”

      . As required by La.R.S. 46:1844(W), the victims' names are replaced with initials to protect their identity.

      . We note that Defendant’s conviction for D.W.I., first offense, is not before this court on appeal, as Defendant does not specifically challenge this conviction.

      . The supreme court remanded the case to this court for reconsideration of its order in light of its receipt of a supplemental transcript. This court’s opinion on reconsideration of the case is reported at State v. Clark, 97-1064 (La.App. 3 Cir. 11/25/98), 735 So.2d 649.

      . We note the last sentence of Paragraph (2) of La.R.S. 32:71(B) provides a different penalty for a violation of that particular Paragraph. It does not appear from the bill of information that this particular Paragraph was at issue in this case.

      . The supreme court set aside the judgment of this court because it had pretermitted a ruling on the sufficiency of the evidence. On remand of the case to this court, the defendant’s conviction for third offense DWI was reversed and the case remanded for retrial on the lesser offense of first offense DWI. State v. Morris, 619 So.2d 184 (La.App. 3 Cir.1993).
      We note that the supreme court, in a footnote in Monis, stated, “The state has not sought review of this decision, and we therefore do not consider whether the appellate court’s treating the jury waiver issue as an error patent was appropriate in the absence of an assignment of error or argument by relator. Cf. State v. Skipper, 387 So.2d 592 (La. 1980).” In Clark, 711 So.2d 738, this court acknowledged the supreme court’s footnote in Morris, but felt that remanding the case for an evidentiary hearing to determine whether the defendant executed a knowing and intelligent waiver was a "prudent safeguard of this fundamental right.” Id. at 742.

      . We note that in State v. Dorsey, an unpublished opinion bearing docket number 98-610 (La.App. 3 Cir. 12/9/98), appeal after remand, 00-114 (La.App. 3 Cir. 6/7/00), 768 So.2d 109, after the defendant was informed of his right to a trial by jury or a bench trial and given fifteen days to make his choice, defense counsel filed a Motion to Request Bench Trial. The motion was not signed by the defendant and there was no indication that the order granting the motion was signed in open court. This court held, "An attorney-filed motion alone does not satisfy the "knowing and intelligent” standard. Arnold, 706 So.2d 578. However, where there is some indicia in the record that the defendant may have waived his constitutional right to a jury, the case should be remanded for an evidentiary hearing on this issue. Having found some indication that the defendant intended to waive trial by jury, we find an evidentiary hearing is in order.” This court remanded the case with instructions that the trial court conduct an evidentiary hearing to determine if the defendant knowingly and intelligently waived his right to a jury trial.


author: PETERS, J.

text:
    STATE of Louisiana v. Claudius FORD, Jr.
    No. 06-1435.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Michael Harson, District Attorney, Keith A. States, Assistant District Attorney, Fifteenth Judicial District, Lafayette, LA, for Appellee State of Louisiana.
    Alfred F. Boustany, II, Attorney at Law, Lafayette, LA, for Defendant/Appellant Claudius Ford, Jr.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   PETERS, J.

hThe defendant, Claudius Ford, Jr., pled guilty to vehicular homicide, a violation of La.R.S. 14:32.1. Thereafter, the trial court sentenced him to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals both his conviction and sentence.

DISCUSSION OF THE RECORD

The defendant’s conviction arises from an accident which occurred on October 29, 2004, on Sixteenth Street in Lafayette, Louisiana, when his motor vehicle struck McDaniel Landry, who was riding a bicycle. The defendant, who had been smoking marijuana earlier in the day, fled the scene and was arrested later. Mr. Landry died from the injuries he sustained.

The defendant was initially charged by the State of Louisiana (state) with one count of vehicular homicide, a violation of La.R.S. 14:32.1; one count of hit-and-run driving, a violation of La.R.S. 14:100; one count of operating a vehicle while intoxicated, a violation of La.R.S. 14:98; and one count of operating a vehicle without a valid driver’s license, a violation of La.R.S. 32:52. Pursuant to a plea agreement whereby the state dismissed the remaining charges, the defendant entered a guilty plea to the single count of vehicular homicide.

After the trial court sentenced the defendant, he filed a motion to reconsider his sentence wherein he stated that the trial court “failed to order [him] to participate in a court-approved substance abuse program,” and that the trial court had failed to consider several mitigating factors in imposing sentence. The trial court clarified its sentence, stating that “the Court recommends the Defendant be confined to a facility where he can receive substance abuse treatment.” The trial court denied the motion in all other respects. Thereafter, the defendant filed a motion to vacate his guilty plea. 12After a hearing, the trial court also denied this motion. The defendant then perfected this appeal, asserting four assignments of error.

OPINION

Assignment of Error Number One

In his first assignment of error, the defendant asserts that the trial court failed to advise him during the plea proceedings that he had the right, through compulsory process, to compel witnesses to appear at his trial. This error, according to the defendant, precluded a knowing and voluntary guilty plea.

Although the defendant’s right to compulsory process in a criminal proceeding is guaranteed by U.S. Const, amend. VI, an inquiry of the understanding of that right has not been required for a knowing and intelligent waiver of rights in a guilty plea proceeding. La.Code Crim.P. art. 556.1; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Lane, 40,816 (La.App. 2 Cir. 4/12/06), 927 So.2d 659, writ denied, 06-1453 (La.12/15/06), 944 So.2d 1283.

However, even assuming that the trial court is required to inquire as to the defendant’s understanding of the right of compulsory process, a colloquy between the trial court and the defendant is not indispensable when the record contains an affirmative showing of proper waiver. State v. Nuccio, 454 So.2d 93 (La.1984). Here, the record establishes that the trial court informed the defendant that he had the right to call witnesses in his defense, and that by pleading guilty he was waiving that right. However, the trial court did not inform the defendant that he had the right to compel these witnesses to appear as provided for in U.S. Const, amend. VI.

Although the trial court did not emphasize the right of compulsory process, the defendant’s written plea agreement specifically did. In that plea agreement, signed Dby the defendant and his attorney and entitled “PLEA OF GUILTY/NOLO CONTENDRE,” the defendant acknowledged that he had been informed of, and understood, among other rights, “[his] right to have compulsory process to require witnesses to testify.” The preprint-ed form also contains the notation that the defendant has a tenth grade education and can read and write. Furthermore, the defendant responded to the trial court’s questions at the plea hearing by stating that he could read and write the English language, that he read the preprinted form before signing it, and that he understood its content.

Thus, we need not consider the trial court’s failure to advise the defendant of his right to compulsory process because the record contains adequate evidence of his waiver of that right. Therefore, we find no merit in this assignment of error.

Assignment of Error Number Two

The defendant asserts that the trial court failed to inform him that causation was an essential element of vehicular homicide and that, because of this failure, the trial court should have granted his motion to vacate his guilty plea. This error, according to the defendant, also precluded a knowing and voluntary guilty plea.

In a felony guilty plea proceeding, La. Code Crim.P. art 556.1 requires the trial court to address the nature of the charge against the defendant. Before accepting a felony guilty plea, the trial court must address the defendant “personally in open court and [inform] him of, and [determine] that he understands ... [t]he nature of the charge to which the plea is offered.” La. Code Crim.P. art. 556.1(A)(1).

Here, the state charged the defendant with the offense of vehicular homicide as defined by La.R.S. 14:32.1(A)(3). That statute specifically provides:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation |4of ... any motor vehicle ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
(3) the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

(Emphasis added.)

Thus, causation is an essential element of the offense.

The record of the plea proceedings establishes that the trial court informed the defendant that he was charged with vehicular homicide, but did not inform him of the nature of the charge by explaining its elements. Thus, the trial court failed to comply with its obligations pursuant to La.Oode Crim.P. art. 556.1(A)(1). However, in State v. Longnon, 98-551, p. 7 (La.App. 3 Cir. 10/28/98), 720 So.2d 825, 829, writ denied, 98-2969 (La.3/19/99), 739 So.2d 781, this court concluded that because the requirement of La.Code Crim.P. art. 556.1(A)(1) “is a statutory requirement rather than a constitutional requirement (as is the requirement that the trial court inform the Defendant of the three Boykin rights)” it is subject to a harmless error analysis. See also 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; State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283; State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797. In reviewing the record before us, we find that the trial court’s failure to comply with La.Code Crim.P. art. 556.1(A)(1) is not harmless error. The record contains nothing that would give notice to the defendant of the specific elements of the offense for which he was charged. In fact, the only other reference in the record to the nature of the offense is found in an inadequate factual basis presented by the Instate to the trial court during the plea proceedings. That factual basis presented is as follows:

The State would prove, on October 29th, 2004, [the defendant] was the operator of a motor vehicle in the approximate 200 block of 16th Street, in Lafayette. Also in and around that area was a bicycle being operated by McDaniel Landry.
Mr. Ford collided with and struck the bicycle being maneuvered by Mr. McDaniel Landry. The impact caused Mr. Landry to travel across the top of the defendant — Mr. Ford’s vehicle. He landed face down in the roadway about 25 feet away.
Mr. Ford was — had been smoking marijuana and was smoking marijuana at the time of the crash. This, he admitted to Officer Chad Fontenot. Mr. Landry died as a result of the injuries that were suffered during the course of this accident.
No question that the accident was proximately caused by the operation of that motor vehicle while he was under the influence of marijuana.

This factual basis established only that an accident involving the defendant and the victim occurred on October 29, 2004, and that the victim died as a result of the injuries he sustained therein. It is silent as to the particulars of the accident and does not impart knowledge of the elements of the offense to the defendant. That is to say, the record contains nothing to suggest who caused the accident, As pointed out by the defendant.on appeal, this factual basis coupled with the trial court’s failure to inquire into his understanding of the nature of the charge would lead the defendant to conclude that he was guilty of vehicular homicide by having been involved in an accident which resulted in a fatality after having smoked marijuana sometime in the immediate past. Such an understanding does not address who caused the accident as is a required element of La.R.S. 14:82.1.

LWe find merit in this assignment of error. The noncomphance with La.Code Crim.P. art. 556.1(A)(1) requires that we vacate the defendant’s conviction and sentence and remand this matter to the trial court for further proceedings.

Assignments of Error Number Three and Four

Both of these assignments of error address the sentence imposed. Because we have found merit in the defendant’s second assignment of error and have vacated his conviction and sentence, we need not consider these assignments of error.

DISPOSITION

For the foregoing reasons, we vacate the defendant’s conviction and sentence and remand this matter to the trial court for further proceedings.

CONVICTION AND SENTENCED VACATED, AND REMANDED.

      . The last comment of the state concerning causation is nothing more than an unsubstantiated conclusion if based on the factual basis presented.


author: DECUIR, Judge.

text:
    Peter OLIVIER v. AFTER CRASH, INC.
    No. 06-1481.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      H. Douglas Hunter Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant: After Crash, Inc.
    Kevin L. Camel Cox, Cox, Filo & Camel, Lake Charles, LA, for Secondary Plaintiff/Appellant: Peter Olivier.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

|Jn this workers’ compensation case, the claimant, Peter Olivier, Sr., appeals the denial of his motion to accelerate benefits. The employer, After Crash, Inc., and its insurer, Louisiana United Business Association and Self-Insured Fund, also appeal, alleging error in the denial of their motion to amend the judgment awarding benefits to the claimant and in the award of penalties and attorney fees. For the following reasons, we affirm.

Mr. Olivier was injured on October 12, 1998 while in the course and scope of his employment with After-Crash, Inc. Its insurer, LUBA, has paid compensation benefits to Mr. Olivier since the accident and the parties stipulated that he is totally and permanently disabled. In 2002, Mr. Olivier began receiving Social Security benefits. LUBA took a statutorily authorized reverse offset and reduced benefits based on the amount of Social Security payments. The parties disagreed on the appropriate amount of the offset. Mr. Olivier filed a disputed claim with the Office of Workers’ Compensation, requesting benefits in the amount of $952.00 per month and past due benefits of $24,349.83. On May 4, 2005, this court rendered a decision affirming a judgment, dated August 4, 2004, which awarded the claimant $221.40 per week, or $952.00 per month, in total and permanent disability benefits, as well as past due benefits, penalties, and attorney fees. See Olivier v. After-Crash, Inc., 04-1655 (La.App. 3 Cir. 5/4/05), 901 So.2d 1214.

Several weeks after this court’s judgment became final, LUBA increased Mr. Olivier’s weekly benefits to only $219.69, rather than $221.40, and paid a portion of the past due amounts awarded in the judgment. A balance of $2,142.74 remained on the past due amount. On August 1, 2005, Mr. Olivier filed a disputed claim seeking penalties and attorney fees pursuant to La.R.S. 23:1201(G) and moved for an acceleration of benefits under La.R.S. 23:1338. In November of 2005, LUBA ^converted Mr. Olivier’s benefits from weekly payments to monthly payments of $952.00. The motions for acceleration of benefits and for penalties and attorney fees were heard on December 8, 2005, and taken under advisement. The following year, on June 5, 2006, LUBA filed a motion to modify the August 4, 2004 judgment, arguing for the first time that the trial court erred in its calculation of the offset; LUBA proposed that the proper amount of benefits is actually $912.00 per month.

The trial court issued its ruling on July 27, 2006. The court denied the claimant’s motion for acceleration of benefits and LUBA’s motion for modification of the 2004 judgment. The court ordered LUBA to pay the past due amount of $2,161.55 owed under the 2004 judgment. The claimant was also awarded a $5,843.55 penalty and attorney fees of $7,000.00. Both Mr. Olivier and LUBA have appealed.

LUBA’S APPEAL

LUBA seeks a modification of the 2004 judgment awarding benefits to Mr. Olivier. He was awarded a monthly benefit of $952.00; LUBA contends the proper amount should have been $912.00 per month. LUBA bases its position on an error in the paperwork from 2001 when the Office of Workers’ Compensation and the Social Security Administration were calculating the ratio of benefits to be paid to Mr. Olivier. The alleged error was never corrected, and LUBA asserts that, as a result, the judgment contains a mere error in calculation which can be corrected by amendment at any time. To the contrary, the workers compensation judge characterized the error as substantive and declined to amend the judgment as requested.

We agree with the decision rendered below. The amount awarded by the trial court, $952.00 per month, was a figure discussed by the parties, contained in ^numerous documents, never objected to by the defense when approving the form of the proposed judgment, and reviewed by this court on appeal. While it may well be that an error occurred at some point in the completion of certain paperwork, there is no indication that an error of calculation exists in the judgment itself.

Similarly, we find no error in the workers’ compensation award of past due benefits of $2,161.55, a penalty of $5,843.55, and a $7,000.00 attorney fee. The record clearly reflects LUBA’s inexplicable delay in initiating payment under the judgment and its blatant disregard for accuracy, timeliness, and responsibility; hence, we find no error in these awards.

CLAIMANT’S APPEAL

Nevertheless, we decline to grant Mr. Olivier’s motion for acceleration of benefits. La.R.S.23:1333(A) provides in part, “If the employer against whom an award awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the award shall immediately become due and exigible and the award shall become execu-tory for the whole amount.” The courts have interpreted this provision to require a willful refusal to pay benefits. Wyble v. Tunica Biloxi Gaming Econ. Dev., 00-0534 (La.App. 3 Cir. 11/2/00), 776 So.2d 501, citing Duncan v. State of Louisiana, Dep’t of Transp. and Development, 615 So.2d 305 (La.1993).

Finding insufficient proof of a willful refusal to pay benefits, the trial court held that this case was not “the sort of situation that the jurisprudence, taken as a whole, suggests an acceleration is the proper remedy or response.” We agree. While the record clearly reflects inattention and neglect in the handling of Mr. Olivier’s file, it does not reflect a willful refusal to pay benefits. In fact, LUBA has consistently paid benefits, albeit in the wrong amount. We, therefore, affirm the denial of Mr. ROlivier’s motion to accelerate benefits.

As an appellant, Mr. Olivier has asked for attorney fees for work performed in defending LUBA’s appeal. Because he has successfully defeated that appeal and has properly requested relief, we award attorney fees in the amount of $1500.00. For the above and foregoing reasons, the judgment before us is amended so as to award attorney fees in the amount of $1500.00 to Peter Olivier. The judgment is otherwise affirmed in all respects. Costs of this appeal are assessed to the defendants.

AFFIRMED AS AMENDED.


author: WILLIAMS, J.

text:
    LOUISIANA AG CREDIT, PCA, Plaintiff-Appellee v. LIVESTOCK PRODUCERS, INC., et al., Defendant-Appellant.
    No. 42,072-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.

      William H. Hallack, Jr., Dennis W. Hal-lack, West Monroe, for Appellant.
    Michael A. Stroud, Roger J. Naus, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

h Livestock Producers, Inc., Mary Alice Stratton and George Ronald Stratton (collectively referred to as “Livestock Producers”) seek reversal of the district court’s ruling granting summary judgment in favor of Louisiana AG Credit, PCA (“PCA”). For the reasons that follow, the judgment of the district court is hereby reversed and we remand this matter for further proceedings.

FACTS

Livestock Producers was in the business of operating a cattle-sale barn. PCA is a farm credit association. On or about October 21, 1999, Livestock Producers executed a revolving credit promissory note in favor of PCA in the principal amount of $800,000, plus interest at a variable rate as provided in the note. The promissory note required Livestock Producers to pay the note on demand at PCA’s discretion. If no demand was made, Livestock Producers was required to pay all advances made by PCA pursuant to the revolving credit note, plus interest following each cattle auction conducted by Livestock Producers. The revolving credit note further required Livestock Producers to make regular monthly payments of accrued unpaid interest to PCA.

Over the next five years, PCA continued to provide financing to Livestock Producers on substantially the same terms and conditions set forth in the original promissory note. During the course of the lending relationship, Livestock Producers executed other revolving credit promissory notes in favor of PCA. The last note and loan agreement were executed on February 28, 2005.

| sFrom the time the initial loan agreement was made, Livestock Producers issued checks made payable to PCA following each cattle auction, and PCA advanced additional funds. On or about March 10, 2005, following an auction, Livestock Producers issued four checks, totaling $446,733.23, payable to PCA, toward the amount owed under the revolving credit agreement. In turn, PCA advanced an additional $447,379.40 in principal to Livestock Producers. Soon thereafter, Livestock Producers placed stop payment orders on the four checks.

On April 29, 2005, PCA instituted an action to recover the monies owed. On September 7, 2005, PCA filed a motion for summary judgment, alleging it was entitled to a judgment against Livestock Producers in the amount of $893,466.46, plus court costs and attorneys’ fees. Livestock Producers opposed the motion for summary judgment, submitting a 13-page joint affidavit from George Ronald Stratton (“Ronnie”) and Mary Alice Stratton (“Mary”).

On October 6, 2005, Livestock Producers filed a “First Amended Answer, Reconven-tional Demand and Third Party Demand,” asserting a reconventional demand against PCA for lender liability. Livestock Producers also asserted a third-party demand against James B. Smith (“Smith”), President and Chief Executive Officer of PCA, and Leotis Hyde, Jr. (“Hyde”), PCA’s Senior Vice President and Chief Credit Officer, for intentional interference with contractual relations. An additional third-party -demand was asserted against Hyde for intentional infliction of emotional distress.

|sOn October 19, 2005, the district court granted summary judgment against Livestock Producers and awarded $893,466.46, plus legal interest, to PCA pursuant to LSA-R.S. 9:2782.2(A). The district court also rendered judgment against Livestock Producers, Ronnie and Mary in solido, for indebtedness owed to PCA under a revolving credit note in the principal amount of $791,320.21, plus interest and attorneys’ fees. The district court did not address any of the incidental demands asserted by Livestock Producers. The judgment was not appealed.

On May 16, 2006, PCA filed a motion for summary judgment with regard to the claims asserted in Livestock Producers’ reconventional and third-party demands. In response, Livestock Producers filed a memorandum in opposition which “incorporated by reference” the joint affidavit from Ronnie and Mary previously submitted with the opposition to the motion for summary judgment in the principal action. No new affidavits or other evidence was introduced in opposition to the motion.

In the affidavit, the Strattons attested, inter alia, that the lending relationship between PCA and Livestock Producers began without problems. Mary would call the bank to request funds and a check would be issued to her when she arrived at the bank. However, on August 8, 2002, when she arrived at the bank, Mary was told by bank employees that Hyde had instructed them not to issue a check. Ronnie called Smith, who authorized the funds. The following day, the Strattons attended a social event at which Hyde and his wife were in attendance. At some point during the event, Hyde approached Mary and rubbed his finger down her arm, | commenting that he “sure would like to have sex” with her and she “would be surprised how he could make any problems with the Livestock Producers loan disappear.” Mary declined Hyde’s offer, and he told her that she “really needed to think about it.”

The Strattons stated that the lending relationship between Livestock Producers and PCA began to deteriorate after Mary rebuffed Hyde’s sexual advance. Hyde changed the paperwork required to obtain the weekly advances against the line of credit, making the process increasingly difficult. Whether the funds would be advanced and in what amount was within Hyde’s sole discretion. In 2004, Hyde began to require weekly meetings with regard to the renewal or extension of the line of credit, and Mary’s presence was always requested at the meetings. During one of the meetings held in February 2005, Hyde stated that he had a “Plan B” with regard to the lending relationship between PCA and Livestock Producers. While alluding to the alternate plan, Hyde looked directly at Mary and refused to explain what he meant to the meeting’s other attendees. Later that month, Hyde went to Livestock Producers’ auction barn and approached Mary, telling her that he still thought the two of them could “work this out.”

In July 2004, the three-year line of credit was due for renewal. Hyde began to issue renewals or extensions on a month-to-month basis only, causing Livestock Producers to face a monthly note in excess of $800,000. PCA also “tightened the screws” by causing unscheduled audits of Livestock Producers’ custodial account by both Packers and Stockyard 1 ¡¡Administration and the Louisiana Department of Agriculture. . The Strattons further attested that Mary began treatment for “stress-related medical problems” as a result of Hyde’s conduct.

Following a hearing, the district court granted summary judgment in favor of PCA and dismissed the reconventional and third-party demands with prejudice. The district court refused to consider the joint affidavit submitted, stating:

I really don’t think that I can consider the stale affidavit submitted in a completely different motion. I think that it would have had to have been resubmitted and updated as an opposition to the motions that are before the Court this morning. So I think for that reason that the motions for summary judgment are entitled to be granted as a matter of law.

The district court further stated:

[I]f I had considered the prior affidavit of the original defendants in this case that because on the first cause of action, the lender liability, I would find that the Henning [Construction, Inc. v. First Eastern Bank & Trust Co., 92-0435 (La.App. 4th Cir.3/15/94), 635 So.2d 273, writ denied, 94-1544 (La.9/30/94), 642 So.2d 870] case is applicable. On the-with regard to the tortous [sic] interference, I think the 9 to 5 [Fashions v. Spurney, 538 So.2d 228 (La.1989) ] factors are so limited that they would not be applicable in this case and I would have granted summary judgment on that ground as well. And on the intentional infliction of emotional distress, I find that that cause is not under these facts a continuing tort and therefore, has — has prescribed.

Livestock Producers filed the instant appeal.

DISCUSSION

Livestock Producers contends the district court erred in refusing to consider the affidavit and in granting summary judgment. According to Livestock Producers, the Code of Civil Procedure makes no distinction | (¡between “fresh” and “stale” affidavits.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.04/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(2) and (B).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion' does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise |7provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

The Affidavit

In the instant case, in opposition to PCA’s motion for summary judgment, Livestock Producers filed an opposing memorandum and “incorporated by reference” the joint affidavit of Ronnie and Mary, which had been filed in opposition to PCA’s motion for summary judgment in the principal action.

Documents may be considered in support of a motion for summary judgment if they are attached to a pleading that is in the record. Hunt v. Petroleum, Corp. v. Texaco, Inc., 2004-0729 (La.App. 4th Cir.12/1/04), 891 So.2d 36; Broadbridge v. Perez, 565 So.2d 1090 (La.App. 4th Cir.1990). Written motions for summary judgment constitute “pleadings” under LSA-C.C.P. art. 852.. Written documents may be attached to pleadings and made part thereof. See, LSA-C.C.P. art. 853; Arnette v. NPC Services, Inc., 2000-1776 (La.App. 1st Cir.2/15/02), 808 So.2d 798.

In Palmer v. Ameriquest Mtg. Co., 41,-576 (La.App. 2d Cir.12/13/06), 945 So.2d 294, the defendants argued that references to a deposition should not be considered by this court because the plaintiff failed to attach a copy of the deposition to his motion for summary judgment. Conducting a de novo review of the record, this court ruled that the deposition would be considered, stating:

Counsel for [plaintiff] attached a complete copy of [defendant’s] deposition to the “omnibus motions” filed |sinto the record on June 20, 2005. He did not attach it to this motion for summary judgment, but at the hearing he referred to the deposition and advised the court that it was in the record. This was sufficient to direct the court’s attention to a deposition that was already on file within the meaning of art. 966 B.... Under the circumstances, the deposition was on file and its existence was clearly pointed out to the court.

Id. at 300-01 (emphasis in original).

We find that the district court erred in refusing to consider the affidavit on the basis that it had been “submitted in a completely different motion.” The affidavit was attached to the memorandum in opposition to the initial motion for summary judgment and was a part of the record.

We also reject PCA’s contention that the affidavit is inadmissible because one of the affiants, Ronnie, died before the current motion for summary judgment was filed. According to PCA, because the affidavit is a “joint affidavit” submitted by both Ronnie and Mary, it does not comply with the requirements of LSA-C.C.P. art. 967, which provides in pertinent part:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein....

It is clear that Ronnie is an unavailable witness, as defined by LSA-C.E. art. 804(A)(4). However, the joint affiant, Mary, “is competent to 19testify to the matters stated” in the affidavit. In fact, the reconventional and third-party demands are primarily centered around allegations made by Mary. The allegations pertain to alleged conduct by Hyde which Ronnie did not witness. Therefore, the district court should have considered the joint affidavit which was a part of the record and incorporated by reference in support of the opposition to the motion for summary judgment.

Reconventional and Third-Party Demands

The district court further concluded that even if it had considered the affidavit, summary judgment in favor of PCA is still proper. For the following reasons, we reverse that ruling.

Lender Liability

In its reconventional demand, Livestock Producers alleged that PCA was negligent and failed to act in good faith during the lending relationship. Citing Henning Construction, Inc. v. First Eastern Bank & Trust Co., 92-0435 (La.App. 4th Cir.3/15/94), 635 So.2d 273, unit denied, 94-1544 (La.9/30/94), 642 So.2d 870, PCA contends it did not owe a duty of good faith to Livestock Producers.

At the time this action was filed, LSA-R.S. 10:1-203 provided:

Every contract or duty within this Title imposes an obligation of good faith in its performance, and [^enforcement. . The standard of good faith performance required under this Title shall be based upon Civil Code Articles 1983, 1996, and 1997.

Contracts must be performed in good faith. LSA-C.C. art. 1983. An obligor in good faith is liable for the damages that were foreseeable at the time the contract was made. LSA-C.C..art. 1996. An obli-gor in .bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform. LSA-C.C. art. 1997.

The .decision to, request payment of a demand instrument does not fall within the good faith connotations of LSA-R.S. 10:1-203 and 1-208. Bespress, Inc. v. Capital Bank of Delhi 616 So.2d 795 (La.App. 2d Cir.1993); Commercial National Bank in Shreveport v. Audubon Meadow Partnership, 566 So.2d 1136 (La.App. 2d Cir.1990); Henning Construction, supra.

In the instant case, our examination of the language of the promissory notes reveals that they are unquestionably demand notes. However, Livestock Producers does not allege that PCA acted in bad faith in demanding payment of the notes. Rather, it contends the bank failed to act in good faith in the following manner, inter alia:

1. Hyde structured the lending relationship in such a manner as to require Livestock Producers to face a demand note of over $800,000 each month;
2. Hyde made sexual advances towards Mary in Inexchange for leniency with the loan;
3. After Mary rebuffed his advances, Hyde caused the lending relationship to become increasingly onerous;
4. PCA caused unscheduled audits with Packers and Stockyard Administration and the Louisiana Department of Agriculture;
5. PCA, knowing Wednesday was Livestock Producers’ auction day, caused the petition and discovery requests to be served on Wednesdays and attempted seizure of cattle to take place on a Wednesday in the presence of hundreds of customers;
6. One of , PCA’s executives told one of Livestock Producers’ customers that she should not sell her cattle through Livestock Producers because it was a “bad risk;”
7. PCA sent an employee to all of the banks doing business with Livestock Producers to persuade the other banks to join PCA’s lawsuit;
8. Hyde told other members of the banking community that Livestock Producers had submitted inaccurate financial statements which excluded the debt owed to PCA;
9. Smith and other PCA executives shared the details of the lending relationship between Livestock Producers and PCA with others;
10.PCA attempted to persuade other banks to stop doing business with Livestock Producers.

Thus, it is clear from the language of Livestock Producers’ reconventional demand that the claims asserted with regard to lender Lability do not center around PCA’s decision to request payment of the note. Therefore, the cases relied upon by the district court and PCA do not apply.

Black’s Law Dictionary defines “good faith” as “an intangible and abstract quality with no technical meaning or statutory definition, and it | ^encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual’s personal good faith is a concept of his own mind and inner spirit....” Black’s Law Dictionary defines “bad faith” as follows:

The opposite of “good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Term ‘bad faith’ is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App. 2d Cir.4/07/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. One reason is'that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App. 2d Cir.8/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.

After reviewing the record in this case, we conclude that the affidavit | ]Ssubmitted by Livestock Producers raised a genuine issue of material fact with regard to whether the actions of PCA and its.employees were prompted by a “dishonest purpose or moral obliquity” and/or “furtive design or ill will.” It is clear that the purpose of the initial lawsuit filed by PCA was to recover funds owed by Livestock Producers. However, the motives and/or intent of PCA and Hyde with regard to the restructuring of the lending relationship and the other alleged conduct remain unclear. Consequently, the district court erred in granting PCA’s motion for summary judgment.

Interference With a Contract

We also conclude that summary judgment is inappropriate for the disposition of the third-party demand for tortious interference with a contract. In one of the third-party demands, Livestock Producers alleged Smith and Hyde tortiously interfered with its contract with PCA. The district court concluded that summary judgment was appropriate pursuant to the factors set forth in 9 to 5 Fashions v. Spurney, 538 So.2d 228 (La.1989). In that case, the Supreme Court held that an action against a corporate officer for intentional and unjustified interference with contractual relations requires proof of the following:

1. The existence of a contract or a legally protected interest between the plaintiff and the corporation;
2. The corporate officer’s knowledge of the contract;
3. The officer’s intentional inducement or 'causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome;
4. Absence of justification on the part of the officer;
|u5. Causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

In this case, it is undisputed that a contract existed between Livestock Producers and PCA, and Smith and Hyde had knowledge of the contract. Whether Smith and Hyde intentionally induced or caused PCA to breach the contract or intentionally rendered the performance of the contract impossible or more burdensome, without justification, are questions of fact to be determined by a trier of fact. As stated above, summary judgment is rarely appropriate when subjective facts are at issue.

Intentional Infliction of Emotional Distress/Prescription

Finally, with regard to the third-party demand against Hyde for intentional infliction of emotional distress for sexual harassment, we reject PCA’s contention that the continuing tort doctrine does not apply under the facts of this case. Therefore, we reverse the district trial court’s determination that the intentional infliction of emotional distress claim has prescribed.

Delictual actions are subject to a liberative prescriptive period of one year commencing from the day the injury or damage is sustained. LSA-C.C. art. 3492. Prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. Bustamento v. Tucker, 607 So.2d 532 (La.1992); Fuller v. Baggette, 36,952 (La.App. 2d Cir.5/6/03), 847 So.2d 26, unit denied, 2003-2076 (La.11/7/03), 857 So.2d 498. Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read|1fiin such manner as to maintain the action. Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518 (La.9/5/01), 795 So.2d 1153; Lima v. Schmidt, 595 So.2d 624 (La.1992); Fuller, supra.

When tortious conduct and resulting damages are of a continuing nature, prescription does not begin until the conduct causing the damages is abated. Bustamento v. Tucker, 607 So.2d 532 (La.1992); Stett v. Greve, 35,140 (La.App. 2d Cir.2/27/02), 810 So.2d 1203. The principle of a continuing tort applies only when continuous conduct causes continuing damages. Stett, supra. The continuous nature of the conduct complained of has the dual effect of rendering such conduct tor-tious and of delaying the commencement of prescription. Bustamento, supra; Stett, supra. The conduct becomes tor-tious and actionable because of its continuous, cumulative, synergistic nature and prescription does not commence until the last act occurs or the conduct is abated. Id.

In Bustamento, supra, the plaintiff filed a tort action for intentional infliction of emotional distress against her employer and certain fellow employees, alleging that one of her co-workers had subjected her to almost daily incidents of sexual harassment over a two-year period. The Supreme Court stated:

While each incident alleged by Ms. Bus-tamento may not necessarily be classified as “outrageous,” when her allegations are viewed properly as a whole, consisting of a continuing flow of related acts, by the same actor, stretching across a two-year span, the cumulative effect of them could serve to render such actions “outrageous” and actionable under White [v. Monsanto Co., 585 So.2d 1205 (La.1991) ]. Moreover, the last act, just as previous acts of harassment, does not have to be in and of itself actionable, but rather need only be an act in furtherance hfiof the continuing pattern of harassment so as to indicate that the harassment has not abated.

Id. at 543 (footnote and citations omitted).

In this case, Mary stated in the affidavit that Hyde approached her and suggested engaging in a sexual relationship with her on August 9, 2002. Soon thereafter, he began to make changes to the method by which funds were disbursed to Livestock Producers. The next alleged related incident took place in February 2005, when during a meeting, Hyde allegedly looked at Mary and stated that he had a “Plan B” with regard to the lending relationship. Finally, in February 2005, Hyde allegedly went to Livestock Producers’ auction barn, where he stated to Mary that the two of them could “work this out.” The third-party demand was filed on October 6, 2005.

It is apparent from the record before us that the relationship between PCA and Livestock Producers concerned the advancement of funds on a frequent basis. It is undisputed that Hyde’s duties, as chief credit officer, included management of the loan. Once Mary refused to enter into a sexual relationship with Hyde, as he allegedly first suggested in August 2002, the relationship between PCA and Livestock Producers began to deteriorate, with Hyde making the lending process increasingly difficult.

In our view, the alleged incidents with Hyde and Mary cannot be disunited from Hyde’s alleged conduct in causing or contributing to the deterioration of the lending relationship with Livestock Producers. Hyde’s actions cannot justly be classified as separate acts of negligence. Therefore, we conclude that if proven, the series of acts by Hyde would have continued to compound Mary’s damage. The continuous negligent acts by the same |17party, Hyde, coupled with the cumulative nature of the damages, make this case a continuing tort, for which prescription did not begin to run until the last act occurred, February 2005. Accordingly, we reverse the district court’s conclusion that the claim for intentional infliction of emotional distress has prescribed.

CONCLUSION

For the foregoing reasons, the summary judgment rendered in favor of Louisiana AG Credit, PCA is hereby reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to the appellee, Louisiana AG Credit, PCA.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . LSA-C.E. art. 804(A)(4) provides:
      A. Definition of unavailability. Except as otherwise provided by this Code, a declar-ant is "unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
      * * *
      (4) Is unable to be present or to testify at the hearing because of death....

      . A promise or order is "payable on demand” if it (i) states that it is payable, on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state any time of payment. LSA-R.S. 10:3-108(a). A provision for monthly installments does not destroy the demand nature of a note. Henning Construction, supra; Johnston v. Johnston, 568 So.2d 567, 568 (La.App. 5th Cir.1990), writ denied, 571 So.2d 655 (La.1990); Blanchard v. Progressive Bank & Trust Co., 413 So.2d 589, 591 (La.App. 1st Cir.1982).