text:
    STATE of Louisiana v. Wayne DELAGARDELLE.
    No. 06-KA-898.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ¡¿Defendant, Wayne Delagardelle, Jr., was charged by bill of information with . aggravated burglary, a violation of LSA-R.S. 14:6o. At his arraignment, the defendant pled not guilty. Defendant waived his right to a jury trial and was tried in a bench trial where he was found guilty as charged: Defendant filed motions for new trial and for post-verdict judgment of acquittal, which were denied by the trial court.

The trial court sentenced the defendant to 15 years at hard labor with credit for time served. The State subsequently filed a multiple offender bill alleging that the defendant was a fourth felony offender. The State amended the bill to allege second felony offender status, and defendant admitted to the allegations in thepmultiple offender bill and waived his formal hearing. The trial court accepted the defendant’s admission to being a second felony offender. The trial judge vacated the original sentence and sentenced the defendant to 20 years at hard labor without benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence, which subsequently was denied. On the same day, the defendant filed a timely motion for appeal.

FACTS

Rosemary Turner McDonald testified that she was upstairs in her bedroom when she was alerted to someone breaking into her house in Jefferson Parish on December 4, 2004. When she went downstairs, she saw the defendant, whom she identified in court, outside kicking in her back door. After the defendant did not respond to her command to stop or she would call the police, McDonald ran out of her front door because she was scared. The defendant locked the front door behind her. She did not give the defendant permission to enter her home. McDonald did not reenter her home until the police arrived.

Deputy Dave Jackson of the Jefferson Parish Sheriffs Office testified that he responded to a burglary call in Gretna on that date. He encountered McDonald running down the street screaming that someone was inside her house. Deputy Jackson was unable to enter the front door of the McDonald’s residence because it was locked. When he went to the rear of the house, he saw the kitchen door was kicked open. Upon entering the house, he saw a single trail of muddy footprints that went through the kitchen, into the living room, and up the stairs. He followed the footprints upstairs to the master bedroom where he found the defendant looking at him from the closet. No one else was in the house. Deputy Jackson ordered the defendant out of the bedroom closet. While the defendant was in the closet, Deputy Jackson was unable to see the-defendant’s left hand. When the defendant ^refused to come out, Deputy Jackson grabbed the defendant’s arm and pulled him out. After the defendant was subdued with a taser, Deputy Jackson noticed pills falling from the defendant’s mouth. He opined that the defendant appeared to be on drugs. Later that same day, Deputy Jackson checked the closet where the defendant has hiding, and found a knife with a black “corrugated” handle and an open pill bottle with the victim’s name on it on the floor. The victim’s wallet was found on the defendant.

McDonald identified a photograph of her black handled knives that she kept on her kitchen counter top. She did not bring the knife belonging to her kitchen knife set upstairs and throw it into the closet. The knife also was not in her closet before she ran out of the house. The last time she saw the knife before this incident, it was in the knife block on the kitchen counter. McDonald admitted that she never saw the defendant in possession of the knife, because she ran. When the police returned the knife to her after the incident, she cleaned mud off it.. She also cleaned muddy footprints off her carpeting. She identified photographs of her carpeting taken after the incident that showed the muddy footprints, not made by her, going up to the master bedroom. McDonald also identified several photographs of her bedroom and its closet in disarray that were not in that condition before she went downstairs on the day of the incident. The photograph of the closet depicted a prescription bottle and a knife. The prescription bottle was full and on her dresser before she went downstairs, not in the closet. When the prescription bottle was returned, the majority of the pills were gone, because they were on the floor or swallowed by the defendant, she opined. McDonald’s son lives with her, but he was not home at the time.

\ DISCUSSION

On appeal, the defendant argues that the trial court erred in denying his motion for new trial alleging insufficient evidence. The defendant claimed that the State failed to prove that he had possession of the victim’s knife that was found on the bedroom closet floor. The defendant notes that it is undisputed that McDonald’s son also lived in the house. The defendant also contends that the motion for new trial should have been granted because the verdict is contrary to the law and the evidence, and it would serve the ends of justice.

The State argues that the trial court did not err in denying the defendant’s motion for new trial, because the evidence presented was sufficient to support the defendant’s conviction. The State claims that it proved that the defendant armed himself with a knife after entering McDonald’s residence to the exclusion of any reasonable hypothesis of the defendant’s innocence. The State contends that the defense’s suggestion that McDonald’s son, who was not home, had placed the knife in the closet is not sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

In the present case, the defendant filed a motion for new trial and a motion for post verdict judgment of acquittal. In both, the defendant alleged that the verdict was contrary to the law and the evidence, because there was insufficient evidence to support the conviction. At the motion hearing, as well as on appeal, the defendant alleged that there was no evidence presented to prove the aggravated element of the offense, i.e. that the defendant armed himself upon entering the house and had possession of the knife. The trial court denied defendant’s motions after finding that the most reasonable explanation for how the knife got into the closet where the defendant was hiding was that the defendant brought it with him upstairs. The trial judge found that the State proved beyond a reasonable doubt Ifithat the defendant was armed at the time of his arrest. The trial court also noted that no evidence was presented to show that the defendant was so impaired that he did not know what he was doing.

“[A] motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” LSA-C.Cr.P. art. 851. A trial court shall grant a new trial after a motion from the defendant when the verdict is contrary to the law and the evidence, or the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. LSA-C.Cr.P. art. 851(1) and (5); State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163. The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

In the present case, the defendant suggests for the first time on appeal that a new trial would serve the ends of justice. As this argument was not raised in the trial court, it is not properly before this Court. In any case, LSA-C.Cr.P. art. 851(5) provides that a judgment on these grounds denying the motion is not reviewable by an appellate court. State v. Condley, 904 So.2d at 888-889, citing State v. Terrick, 03-515 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, 1161, writ denied, 03-3272 (La.3/26/04), 871 So.2d 346. An appellate court may review the grant or denial of the motion only for an error of law. LSA-C.Cr.P. art. 858; State v. Condley, 904 So.2d at 888-889. Therefore, the denial of the motion for new|7trial based upon serving the ends of justice would present nothing for this Court to review. State v. Condley, 904 So.2d at 888-889.

In addition, when a motion for new trial is based on the verdict being contrary to the law and the evidence, LSA-C.Cr.P. art. 851(1), there is nothing for review on appeal. State v. Condley, 904 So.2d at 888, citing State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50. However, the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. Id. Therefore, the denial of the defendant’s motion for new trial based on the sufficiency of the evidence is properly before this Court on review. State v. Condley, 904 So.2d at 889.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Spears, 05-964 (La.4/4/06), 929 So.2d 1219, 1222. The evidence may be either direct or circumstantial. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. LSA-R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; instead it serves as a helpful evidentiary guide for the jurors when evaluating circumstantial evidence. State v. Spears, 929 So.2d at 1222.

|sWhen evaluating circumstantial evidence, the trier of fact must consider the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

Id., quoting State v. Chism, 436 So.2d 464, 469 (La.1983).

The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397 (La. App. 5 Cir. 4/30/02), 816 So.2d 363, 365. Constitutional law does not require the appellate court to determine whether it believes the witnesses or that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 929 So.2d at 1222. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Baker, 816 So.2d at 365; State v. Spears, 929 So.2d at 1222-1223. An appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. The reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Barnes, 98-932 (La. App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099.

In the present case, the defendant was convicted of aggravated burglary. “Aggravated burglary is the unauthorized entering of any inhabited dwelling ... where a person is present, with the intent to commit a felony or any theft therein, if the offender, ... [a]fter entering arms himself with a dangerous weapon.” LSA-JR.S.9 14:60 and LSA-R.S. 14:60(2). A knife has been found to be a dangerous weapon. State v. Ellis, 672 So.2d at 1009; State v. Pierre, 98-1123 (La.App. 5 Cir. 4/14/99), 733 So.2d 674, 677. The defendant must have the specific intent to commit either a felony or a theft at the time of his unauthorized entry. See, State v. Lefeure, 00-1142 (La.App. 5 Cir. 1/30/01), 778 So.2d 744, 752, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Hennis, 734 So.2d at 20; State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. The determination of whether the defendant possessed the requisite intent in a criminal case is made by the trier of fact, and a review of the correctness of the determination is guided by the Jackson standard. State v. Kirkland, 798 So.2d at 268.

In the present case, defendant’s sole argument is that the State did not prove that he armed himself with a dangerous weapon upon entering the victim’s house, i.e. that he was in possession of the kitchen knife found in the upstairs bedroom closet where he hid. Since there was no direct evidence establishing that the defendant was armed with a dangerous weapon, the circumstantial evidence had to exclude every reasonable hypothesis of innocence, assuming every fact to be proved that the evidence tended to prove.

Deputy Jackson testified that after entering McDonald’s house through the kitchen, he followed a single trail of muddy footprints that started in the kitchen and went through the house ending in the master bedroom upstairs. Deputy |inJackson found the defendant hiding in the master bedroom closet with his left arm out of view. After Deputy Jackson forcibly removed the defendant from the closet, he found a knife on the closet floor. Deputy Jackson was informed by McDonald that her knives were kept at the kitchen door. McDonald testified that she did not bring the knife upstairs. Rather, her knives were always kept in the kitchen. Furthermore, she testified that the knife was not in her closet before she went downstairs. When the knife was returned to her, it had mud on it. She had seen the defendant outside kicking in the back door. As the trial judge noted, the most reasonable explanation for how the knife got into the closet where the defendant was hiding was that the defendant brought it with him upstairs. Therefore, we conclude that the State proved that the defendant armed himself with a dangerous weapon upon entering the victim’s home.

In State v. Pierre, supra, this Court found sufficient evidence at trial to support a finding that the defendant either had the knife when he broke into the apartment or armed himself with the knife while in that apartment. State v. Pierre, 733 So.2d at 677. In that case, this Court noted that hone of the witnesses testified that they saw the defendant grab a knife from kitchen. The testimony was undisputed that the defendant was not holding a knife when he encountered the occupant of the apartment, after he had kicked in the door. Id. Subsequently, the defendant was armed with a knife that was found, after his arrest, on the kitchen counter in the apartment of one of the other victims. Id.

Viewing the evidence in this case in the light most favorable to the State, we find that a rational trier of fact could have found that the State proved the essential element of aggravated burglary, i.e. that the defendant after entering armed himself with a dangerous weapon, beyond a reasonable doubt under the Jackson standard. ^J^Therefore, we conclude that the trial court did not err in denying the defendant’s motion for new trial based on the sufficiency of the evidence.

This assignment of error is without merit.

ERROR PATENT DISCUSSION

The defendant requests an error patent review, but has not briefed it. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals several errors patent in this case. The following matters were discovered:

The original and habitual offender commitment/minute entries indicate that the defendant was informed of his Boykin rights. However, the defendant was convicted in a bench trial. This Court has previously found that even though clerical errors in the commitment that do not cause prejudice to a defendant’s rights do not merit reversal, the errors should be amended. State v. Quest, 772 So.2d at 788. Therefore, we remand the matter for correction of the original commitment/minute entry to reflect that the defendant was not informed of his Boykin rights upon entering a guilty plea, but rather was convicted in a bench trial. In addition, on remand the trial court is ordered to correct the habitual offender commitment/minute entry to reflect that the defendant was not informed of his Boykin rights upon entering a guilty plea, but rather was informed of his habitual offender rights before admitting to the allegations. State v. Bartley, 03-1382 (La.App. 5 Cir. 3/30/04), 871 So.2d 563, 575, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006.

| iaWe have also discovered that the original and habitual offender eommitment/minute entries state that the State nolle prossed count two of the bill of information charging the defendant with “RECEIVING STOLEN THINGS $300 + .” However, the bill of information indicates that the defendant was charged in count two with illegal possession of stolen things valued at between $300 and $500, a violation of LSA-R.S. 14:69. We remand the matter for correction of the original and multiple offender commitment/minute entries to reflect a correct description of the charged contained in the bill of information. See, State v. Tengase, 02-1009 (La. App. 5 Cir. 2/25/03), 841 So.2d 947, 951.

Finally, a review of the multiple offender sentencing transcript reveals that at the sentencing hearing, the trial court informed the defendant that he had five days to file post conviction relief. However, the commitment/minute entry reflects that the trial court informed the defendant that he had two years after the judgment of conviction and sentence has become final to seek post conviction relief. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732 (La.1983). LSA-C.Cr.P. art. 930.8 states that a defendant has two years after his judgment of conviction and sentence has become final to file for post conviction relief. Therefore, we remand the case to the trial court with an order to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant after the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record. State v. Hutchinson, 02-60 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Defendant was charged in a second count of this bill of information with illegal possession of stolen things valued at between $300 and $500, a violation of LSA-R.S. 14:69, but this charge was severed and subsequently nolle prossed by the State.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eldred JOHNSON.
    No. 06-KA-859.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Jay Adair, Trial Attorney, Ken Dohre, Trial Attorney, Assistant District Attorneys, Gretna, Louisiana, for PlaintifflAp-pellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|2Pefendant, Eldred Johnson, appeals from his conviction by a jury for second degree murder and his sentence to life in prison at hard labor, without benefits of probation, parole or suspension of sentence. We affirm, and remand for correction of patent errors.

The Defendant was arrested and charged by indictment with second degree murder. He was tried on February 14, 2006, found guilty the next day, and sentenced on March 9, 2006. He filed a timely appeal.

The evidence shows that on February 2, 2005, the Jefferson Parish Sheriffs Office (JPSO) responded to a complaint of gunshots being fired at an apartment complex in Jefferson, Louisiana. On arrival, officers found a white woman, Tina Keamer, barely alive from an apparent gunshot wound. The Defendant, a black male, was leaning over her, screaming and shaking the victim. The officers | aarrested the Defendant at the scene. The victim later died. An autopsy showed the cause of death was a gunshot to the right side of the victim’s head.

According to Cherie Dabdoub, the 17 year-old best friend of the victim, and An-nautry Wilkerson, a next door neighbor, the victim and the Defendant were arguing at approximately 6:45 p.m. Dabdoub was on the phone with the victim when she heard the Defendant, referred to as Cal, screaming at the victim in the background. He was drunk and calling the victim ugly names. Dabdoub heard the victim scream back at the Defendant, “No Cal. Cal, stop it.” Then she only heard static from the phone connection. Dabdoub previously had seen a gun in the victim’s apartment.

According to Wilkerson, the Defendant and the victim were arguing about some money he accused the victim of having, which she was vigorously denying. Wilkerson then heard a gunshot. She was in the process of calling 911 when the Defendant banged on her door, yelling for Wilkerson to open her door, all the while cursing her. Wilkerson did not open the door until after the police arrived.

Another witness, Roshondra Lowe, testified that she was parking her car in the apartment’s parking lot when the Defendant, a stranger, came up to her telling her to call 911 because he had just shot his wife. The Defendant appeared disoriented. He was holding a phone, but he was having trouble dialing the numbers due to his agitation. Lowe called 911. The Defendant then went back to the upstairs balcony apartment where he began pleading with the victim to wake up.

The Defendant was tested at the scene for gunshot residue, which was negative. According to Detective Timothy Scanlan, assistant director of the JPSO crime laboratory, and an expert in firearms and tool-mark examination, a negative finding is common, even with people that have recently fired a gun.

I/The police also found a black cordless phone and its battery on the floor of the balcony near the apartment where the victim was shot. Another phone (white) and a revolver were found inside the apartment on the kitchen table. The revolver was cocked and ready to fire. It contained five live rounds and one spent round. The white phone’s battery and a bottle of gin were on the sofa in the living room.

Police investigators determined that the revolver was in working order, and that the victim had been shot with that revolver.

Three children were in the apartment during these events, a two-month old infant, an eighteen-month old child, and a three-year old toddler.

The Defendant made a recorded statement to Detective Eddie Klein at the detective bureau. In his statement, the Defendant said that he and the victim were arguing while the victim was talking on the telephone. He said he retrieved the gun, which was cocked, from a closet. While still arguing, the Defendant and victim went out onto the balcony. They were pushing and shoving each other. The Defendant pointed the gun in the air, but claimed he did not know how the gun fired. He denied pulling the trigger. After, he went back inside the apartment. He put the gun on the table. He then tried to use the black cordless phone, but could not see the numbers without his glasses. He knocked on the neighbor’s door, and then saw a lady in the parking lot. He told her to call 911. The Defendant told the officer that he did not mean for anything to happen to the victim.

On appeal, the Defendant asserts that the trial judge improperly denied his Bat-son challenge. The Defendant also asserts that Captain Scanlan’s testimony should have been limited to the information submitted in his written report.

_|¿BATSON CHALLENGE

The Defendant argues the trial judge erred in denying his Batson challenge on the basis of race discrimination after the State used two of its peremptory challenges to exclude two black prospective jurors, Joan Wade and Ishman Boles. The State excused Mr. Boles because he was inattentive and excused Ms. Wade because of her inability to recall a past criminal trial in which she had been called as a juror. The Defendant asserts the State’s explanation for excluding Mr. Wade was a pretext for racial discrimination because his inattentiveness was a subjective condition only noticed by the prosecutor. Regarding Ms. Wade, the Defendant alleges that two white jurors also could not recall details of their experiences as jurors on prior trials, but neither was peremptorily challenged by the State.

The Equal Protection Clause of the United States Constitution prohibits engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Court established a three part inquiry for the courts to make in determining whether the prosecution engaged in purposeful discrimination in the exercise of its peremptory challenges in jury selection. Batson, 476 U.S. at 89, 106 S.Ct. at 1719. The three-part analysis has been subsequently reaffirmed and described in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006). See also: State v. Snyder, 98-1078, p. 7 (La.9/6/06), 942 So.2d 484, 489 [citing Collins.]

First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of 1 firace. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1712; Collins, 546 U.S. at 338, 126 S.Ct. at 973. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Batson, 476 U.S. at 97-98, 106 S.Ct. 1712; Collins, 546 U.S. at 338, 126 S.Ct. at 973. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Burkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. 1712; Miller-El v. Dretke, 545 U.S. 231, 250-53, 125 S.Ct. 2317, 2331-2332, 162 L.Ed.2d 196 (2005). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 at 768, 115 S.Ct. at 1769; Collins, 546 U.S. at 338, 126 S.Ct. at 974.

A reviewing court owes great deference to the trial judge’s evaluations of discriminatory intent and should not reverse them unless they are clearly erroneous. State v. Draughn, 05-1825, p. 12 (La.1/17/07), 950 So.2d 583, 595, [internal citations omitted.] A single strike based upon race supports a Batson claim and requires reversal no matter how ably the prosecution has defended the other strikes. State v. Elie, 05-1569 (La.7/10/06), 936 So.2d 791, 797, citing Batson, 476 U.S. at 95, 106 S.Ct. at 1722.

In the instant case, nine prospective jurors had been seated, including one black juror, when the State exercised its second and third peremptory challenges to ^excuse Ms. Wade and Mr. Boles. At this point, the Defendant made a Batson challenge, asserting that these two prospective jurors were competent, and concluded that the State must be excusing them because of their race. In response to the judge’s inquiry, the State replied that there had been no pattern of exclusion based on race. The prosecutor pointed out that juror number nine was a black person.

The trial judge stated that he did not observe any negative comments from Ms. Wade or Mr. Boles that would show they would not be fair jurors, but he further stated that he saw a pattern in the exclusions, because there were two challenges in a row of prospective jurors who are black. In conformity with Batson, he asked the State for race-neutral reasons for dismissing the two potential jurors, the second prong of the Batson inquiry.

The prosecutor explained that Mr. Boles was excused because he yawned on several occasions while the prosecutor was questioning the panel, and seemed “somewhat inattentive” and disinterested in the process. The prosecutor did not believe that Mr. Boles would be able to sit through a multi-day trial and concentrate on the evidence and testimony. The prosecutor stated that he was concerned about Ms. Wade’s inability to recall anything at all about the criminal case on which she was an alternate juror several years before this trial.

The trial judge accepted as race-neutral the prosecutor’s reason for excusing Mr. Boles and Ms. Wade. As to Ms. Wade, the judge noted that she said she was angry in the prior trial when she was called back to serve as an alternate after she had been dismissed. But, the trial judge said, he could not tie that in with being called to serve in this case.

Responses by the state qualify as race-neutral unless a discriminatory intent is inherent in the prosecutor’s explanation. Hernandez v. New York, 500 U.S. 352, 8359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). We agree with the trial judge here, that the State’s reasons for excusing Mr. Boles and Ms. Wade are race-neutral and do not appear inherently discriminatory.

The third question in this determination then, is whether the trial judge abused his discretion in finding that the Defendant failed to carry his burden of proving purposeful discrimination.

In Alex v. Rayne Concrete Service, 05-1457, 05-2344, 05-2520, p. 16, (La.1/26/07), 951 So.2d 138, 151, the Louisiana Supreme Court recognized that, in Miller-El, the Supreme Court expanded upon the type and quantum of evidence to be considered in Batson’s third step. See also: Snyder, 98-1078 at p. 12, 942 So.2d at 492. In Snyder, the Louisiana Supreme Court explained:

The Miller-El opinion begins by recognizing Batson’s weakness is its “very, emphasis on the particular reasons a prosecutor might give.” Miller-El, 545 U.S. at 240, 125 S.Ct. at 2325 ... Miller-El, therefore, redirects attention to “Batson’s explanation that a defendant may rely on ‘all relevant circumstances’ to raise an inference of purposeful discrimination,” Id., and to the trial judge’s duty under Batson “to assess the plausibility” of the prosecutor’s proffered reason for striking a potential juror “in light of all evidence with a bearing on it.” (Emphasis supplied.) Id., 545 U.S. at 252, 125 S.Ct. at 2331.

Snyder, 98-1078 at pp. 8-9, 942 So.2d at 490.

Miller-El made it clear that Batson’s admonition to consider all relevant circumstances in addressing the question of discriminatory intent requires close scrutiny of the challenged strikes when compared with the treatment of prospective jurors who expressed similar views or shared similar background circumstances. Elie, 05-1569 at p. 6, 936 So.2d at 796. However, in Collins, the United States Supreme Court admonished reviewing courts from substituting their evaluation of the record for that of the trial judge. Collins, 546 U.S. at-, 126 S.Ct. at 969. See also, State v. Elie, 05-1569 at p. 7, 936 So.2d at 796.

lain this case, the Defendant contends Mr. Boles’ inattentiveness was a pretext for racial discrimination. However, peremptory challenges based on body language have survived Batson challenges, when accepted by the trial judge, who has broad discretion when making the ultimate determination of purposeful discrimination. See, State v. Hoffman, 98-3118, p. 15 (La.4/11/00), 768 So.2d 542, 559-560, and the cases cited therein. See also, State v. Seals, 95-0305, p. 8 (La.11/25/96), 684 So.2d 368, 374-75, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), where the Court noted that body language, the failure to make eye contact and juror inattention have been recognized as important factors when exercising peremptory challenges.

We find no error in regard to Mr. Boles. The prosecutor stated Mr. Boles was struck from the jury due to his inattentiveness. Since Mr. Boles’ body language and inattentiveness was a race-neutral reason for excluding him from the jury, we find that the trial judge did not abuse his discretion in denying the Batson challenge regarding this prospective juror.

The Defendant argues that Ms. Wade was excluded based on race, arguing that the State accepted white jurors, Ms. Sage and Ms. Rogers, neither of whom could recall details of prior trials, yet the State excluded Ms. Wade for that same reason. We find that the exclusion of Ms. Wade was not purposeful discrimination.

Ms. Sage sat on two previous juries. She could not recall the details relating to the jury ten years before. However, she remembered that the jury she was on four years before was a criminal trial involving drugs, that she agreed with the verdict, and that the defendant was convicted.

|1(lMs. Rogers recalled serving on a jury-in Jefferson Parish more than ten years earlier. She could not recall whether the matter was civil or criminal, but she stated it involved a person who was driving while intoxicated. She stated that she and the other eleven jurors agreed with the result. Although she could not remember if money was awarded, she recalled that the matter concerned drinking and driving. She also remembered that she had decided the driver was intoxicated after viewing photographs showing alcohol in the vehicle.

Ms. Wade informed the trial judge that she was on a criminal jury in Orleans Parish approximately 12 years earlier, and served as an alternate. Ms. Wade said she was called to return to court, but she didn’t have to sit through anything, had to wait, and did not participate in deliberations. She did not recall anything about the case, except that she was with the group, and then they put her in a room. When the prosecutor asked her if she recalled the charge or the verdict, she responded that she did not remember anything else, because she was angry about having to serve as the alternate.

There is a noted contrast between the responses of Ms. Wade and the responses of Ms. Sage and Ms. Rogers. Ms. Wade remember few details, but remembered being angry at being recalled as a juror. Ms. Sage and Ms. Rogers remembered more details about their prior jury service, and neither expressed any anger for having to participate in jury service. We find that Ms. Wade’s answers to the questions by the prosecutor and the trial judge exhibited a race neutral reason for excluding her from the jury.

In addition to reviewing the jurors’ statements, we have reviewed the record. The record reflects that there were six blacks in the jury venire. Two were excused for cause after becoming ill. The State used five peremptory challenges, two of which were exercised on Ms. Wade and Mr. Boles. Two black people, Ms. Digs |nand Mr. Rose, served on the jury. There was no evidence of jury-shuffling, or that the prosecutor questioned blacks differently than white jurors. Rather, the prosecutor asked the same questions about past jury service to other jurors in the venire.

Considering that the trial judge was in the best position to determine the prosecutor’s sincerity and credibility, the great deference given the trial judge in making such decisions, and the evidence in the record, we find that the Defendant failed to bear his burden of proving purposeful discrimination. Thus, the trial judge did not err in denying the Defendant’s Batson challenges.

CAPTAIN SCANLAN’S TESTIMONY

The Defendant contends that Captain Scanlan’s expert testimony on gunshot residue testing should not have been allowed, because the State failed to notify the Defendant that Captain Scanlan would be testifying about gunshot shot residue testing. The Defendant claims that Captain Scanlan’s testimony should have been limited to the subjects in his report, which did not contain anything about the test. The report concluded that the projectile in the victim’s head was shot from the gun found at the scene and that the gun was in working order.

The State responds that this Court correctly ruled in a writ disposition in this case that Captain Scanlan could testify about gunshot residue testing, because the Defendant had opened the door to the subject with prior State witnesses. The State urges this Court not to reconsider its prior ruling under the “law of the case” doctrine. Alternatively, the State contends that the Defendant was not prejudiced by the testimony.

Prior to Captain Timothy Scanlaris testimony, the trial judge accepted him as an expert in the field of firearms and tool-mark examination. The Defendant objected to Captain Scanlan’s testimony regarding gunshot residue testing, since |12the report does not refer to it. Although the trial judge concluded that Captain Scan-laris field of expertise included gunshot residue testing, he ruled that Captain Scanlaris testimony was limited to the content of his report. The trial judge found that it was unfair to the Defendant for Captain Scanlan to testify beyond the scope of his report. The State took a writ to this Court, which granted relief in pertinent part:

The State’s application for relief with regard to the trial court’s restriction on the testimony of Captain Timothy Scan-lan is amended to allow the State to question Captain Timothy Scanlan, who has been qualified as an expert in firearms and forensic science, about the accuracy and reliability of gunshot residue tests since that subject matter was raised during the cross examinations of Technician Mike Aiklen and Lt. Don English.

According to the “law of the case” doctrine, an appellate court will generally refuse to consider its own rulings of law on a subsequent appeal in the same case. State v. Hollimon, 04-1195, pp. 3-1 (La.App. 5th Cir.3/29/05), 900 So.2d 999, 1000-1001; State v. Junior, 542 So.2d 23, 27 (La.App. 5th Cir.1989), writ denied, 546 So.2d 1212 (La.1989). It is applicable to all decisions of an appellate court, not solely those arising from full appeal. Junior, 542 So.2d at 27. One reason for imposition of the doctrine is the avoidance of indefinite relitigation of the same issue; but it will not be applied in cases of palpable former error. Id.

In the present case, the Defendant urges that the trial court’s ruling on the limitation of Captain Scanlaris testimony was correct. The Defendant suggests that this Court’s prior disposition was erroneous, because the State referred to Captain Scanlan’s field of expertise in its writ application as “firearms and forensic science,” instead of the “firearms and tool-mark examination.” However, there is no merit to this claim.

The issue before this Court on supervisory writs was whether or not Captain Scanlan could testify on gunshot residue testing, despite the State’s failure to | ^provide notice of this anticipated testimony to the Defendant. The issue was not whether Captain Scanlan was testifying outside of his expertise. Notably, the record reflects that the mistake was brought to the attention of the trial judge, who stated for the record that the State had presented the correct issue to this Court.

On appeal, the Defendant has produced no new arguments or evidence to show that the prior disposition of this Court was patently erroneous. The Defendant’s brief does not cite any statutory or jurisprudential authority to support the position that the State was compelled to inform the Defendant that the State’s firearm expert would testify about other matters within his expertise that were not included in the expert’s report. The Defendant contends he was surprised by the late discovery that Captain Scanlan would testify about gunshot residue testing. However, the record reflects that Defendant cross-examined two of the State’s witnesses, Officer Mike Aiklen and Lieutenant Don English, about the accuracy of gunshot residue testing, neither of whom were qualified as experts in that area. The Defendant only objected when the State attempted to introduce testimony on gunshot residue testing through Captain Scanlan.

The record shows that the Defendant was neither surprised nor unprepared to deal with Captain Scanlan’s testimony. Rather, it shows that the Defendant thoroughly cross-examined Captain Scanlan on this issue, including asking him about studies and different publications on the accuracy of gunshot residue testing. Moreover, it is inconceivable that the Defendant could believe that the State would not have its firearm expert testify about the accuracy of the gunshot residue test, since the Defendant’s gunshot residue test was negative, and since the Defendant questioned the accuracy of the test with two of the State’s previous witnesses. Based on the foregoing, we find that the prior ruling was not patently erroneous and did not produce an unjust result. Furthermore, we find that the Defendant was 114not prejudiced by this testimony at trial. Thus, we decline to reconsider the prior ruling allowing Captain Scanlan’s to testify as an expert about the accuracy and reliability of gunshot residue tests.

ERROR PATENT DISCUSSION

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337, 338 (La.1975); Polizzi, 05-478 at p. 18, 924 So.2d at 315. We find two patent errors.

There is a discrepancy between the minute entry/commitment and the transcript. In the transcript, the trial judge sentenced the Defendant to hard labor, but the minute entry/commitment does not reflect that part of the sentence. When the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Accordingly, we will direct the district court to correct the minute entry/commitment reflecting this change and will direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the Defendant has been sentenced. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

In addition the record reflects that there is a discrepancy between the minute entry and the transcript regarding the State’s exercise of a peremptory challenge. The minute entry reflects that the State exercised a peremptory challenge to excuse “Prospective Juror Chupina,” while the transcript reflects that the court excused Mr. Chupina for cause. We will direct the trial judge to correct the minute entry to correspond with the transcript.

Accordingly, the Defendant’s conviction and sentence are hereby affirmed. The case is remanded to the district court for correction of the minute 115entry/commitment to reflect that the sentence is to be served at hard labor, and to reflect that “Prospective Juror Chupi-na” was excused for cause. The Clerk of Court is directed to transmit the original of the corrected minute entry to the officer in charge of the institution to which the Defendant has been sentenced.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF MINUTE ENTRY/COMMITMENT.

      . See: La.R.S. 14:30.1.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Snyder was on remand from the United Supreme Court to reconsider the decision in light of Miller-El v. Dretke.

      . See also, Alex v. Rayne Concrete Service, 05-1457, 05-2344, 05-2520, p. 12 (La. 1/26/07), 951 So.2d 138, "Errors regarding discrimination in the composition of the grand jury or petit jury are not harmless."

      . Opinion supplemented, 00-1609 (La.6/14/00), 768 So.2d 592, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).

      . Post-conviction relief affirmed on other grounds, 00-2738 (La. 10/25/02), 831 So.2d 828,

      . Because this correction does not affect the Defendant's sentence, it is not necessary for this correction to be transmitted to the institution where the Defendant is confined.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Jill Perry GUTIERREZ v. Mohammad MOEZZI and Birjand International, Inc.
    No. 2006-CA-1395.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2007.

      Christy M. Howley, Bowman & Howley, Gretna, LA, for Plaintiff/Appellee.
    Randall A. Smith, Michael W. Hill, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11 Jill Perry Gutierrez, plaintiff and appellee, filed suit against her former employer, Birjand International, Inc. (Birjand) and its owner and operator, Mohammad J. Moezzi, for breach of a sales commission contract, seeking the balance allegedly due on her commission together with interest, attorney’s fees and costs and reasonable damages.

Ms. Gutierrez alleged that she was employed by Mr. Moezzi and Birjand for a number of years as a salaried and commissioned salesperson. She later entered into a contract with Moezzi and Birjand as “an independent commissioned sales consultant for Birjand International, Inc.”, with compensation fixed at twenty percent of any sale for which she procured the customer and effected the sale of the defendants’ merchandise. Ms. Gutierrez alleges that on or about September 11, 2001, she effected a sale of approximately $75,000 of the defendants’ merchandise. She alleges that at that time Mr. Moezzi was the owner and operator | ^of Birjand. According to the petition, Ms. Gutierrez was owed a commission of $15,000 on the sale.

Ms. Gutierrez alleged that on September 24, 2001, she was given a Birjand check in the amount of $1,000 as partial payment of her commission. She attempted to negotiate the check on September 25, 2001; however, the check was dishonored for lack of sufficient funds in Birjand’s account. She alleges that the defendants replaced the check with $900 in cash.

Ms. Gutierrez alleged that she relied on her working relationship with the defendants to her detriment, that she fulfilled her part of the contract and that the defendants failed to pay the balance of her commission.

Ms. Gutierrez’s petition also seeks return of a rug that she alleges the defendants took from her on consignment.

After appointment of a special process server, the defendants through counsel on October 9, 2003 filed a motion for extension of time, followed on October 30, 2003 by the filing of an answer. The answer incorporates special defenses of failure to state a claim or cause of action, prescription, failure to mitigate damages, equitable estoppel and lack of privity of contract. On November 20, 2003, Mr. Moezzi filed an exception of no cause of action, noting that in her petition, Ms. Gutierrez alleges that she left the employ of the defendants prior to the relevant events giving rise to this lawsuit, and that she was an independent sales consultant only for Birjand. The exception was set for hearing on December |s16, 2003 and continued on Ms. Gutierrez’s motion to January 7, 2004. On January 8, 2004, on the joint motion of the parties, the trial court continued the exception hearing without date.

At a status conference held on March 10, 2006, the court set the case for trial on May 22, 2006. On May 9, 2006, counsel for the defendants filed a motion to continue the trial, alleging that despite diligent efforts, counsel had been unable to locate his clients to give notice of the trial. The trial court denied the motion at the commencement of the trial on the merits.

Following trial on the merits, the trial court rendered judgment against Mr. Mo-ezzi in the amount of $14,100, the balance due under the contract, together with court costs and interest from the date of judicial demand. The trial court held that Mr. Moezzi would be solely liable because (1) he did not reset his exception for hearing before trial; (2) according to the records of the Secretary of State, Birjand’s corporate status was revoked since August 16, 2001; and (3) Mr. Moezzi is the registered agent for service of process, was listed as the director of the corporation, and Birjand’s mailing address was the same as his mailing address. Mr. Moezzi filed a devolutive appeal from that judgment. For the reasons that follow, we reverse the judgment of the trial court.

Ms. Gutierrez testified that in 1999 she began to work for Birjand as manager of Birjand, International, a store located on Royal Street in New Orleans. The store’s merchandise included oriental rugs, tapestries and other textiles. She 14was paid a salary and a five percent commission on her sales. Ms. Gutierrez testified that her background was in sales, home decorating and interior design. She left her job as a salaried and commissioned salesperson and store manager in 2001. Thereafter, she met a childhood friend, Merrick Valentino, who was interested in purchasing oriental rugs.

Ms. Gutierrez testified that in September, 2001, she called Mr. Moezzi and told him she had a client who was interested in purchasing oriental rugs. At that point, Mr. Moezzi agreed to pay her as an interi- or designer. She agreed to work with him on a commission basis, for the industrial standard of twenty percent of the value of the sale. On September 11, 2001, Ms. Gutierrez and Mr. Moezzi took a collection of rugs to Ms. Valentino’s home in Lafayette, Louisiana. Ms. Gutierrez was unable to say how many rugs Ms. Valentino purchased. She testified that Ms. Valentino paid $40,000 for a Persian Serapi rug from the turn of the century, a figure that Ms. Gutierrez characterized as an “overcharge” for a rug valued at between $25,000 and $30,000. Ms. Gutierrez testified that Ms. Valentino purchased “two or three other pieces of Oriental rugs”, paying for the Serapi with a $40,000 check drawn on her husband’s medical practice. According to Ms. Gutierrez, the other pieces were paid for through a furniture trade. Ms. Gutierrez was not present when Mr. Moezzi allegedly picked up the traded furniture.

Ms. Gutierrez testified that Mr. Moezzi gave her a partial payment by a Birjand check in the amount of $1,000. The check was dishonored by the bank for lack of sufficient funds, whereupon Mr. Moezzi gave Ms. Gutierrez a cash Inpayment of $900. Although Ms. Gutierrez asked several times to be paid the balance of her commission, she received no further payments from Mr. Moezzi or Birjand.

Ms. Gutierrez filed a Motion to Dismiss Appeal, contending that counsel for Mr. Moezzi does not have authority to prosecute the appeal on behalf of the absent defendant. The reply brief filed on behalf of Mr. Moezzi does not address the Motion to Dismiss Appeal.

On August 11, 2004, defense counsel served on plaintiff counsel answers to interrogatories in which he gave Mr. Moez-zi’s then current home address as 185 Guava Alala Alabang, Muntinlupa, Metro Manila, Republic of the Philippines. The interrogatory response indicated no work address, no employer and no telephone number.

At the commencement of trial, defense counsel advised the trial court that he had been unable to locate Mr. Moezzi in order to give him notice of the trial. Mr. Moezzi had not been located by the court officers who had attempted to serve him with notice of trial at his last known address. The record contains an order dated February 10, 2006 in which the trial court ordered that “the status conference is reset for March 10, 2004[sie] to allow defendant’s atty. additional time to locate his client.” It appears from the record that a status conference was held on March 10, 2006, at which time trial was scheduled for May 22 2006. On May 9, 2006, defense counsel filed a Motion to Continue Trial Date, alleging that he had been unable to locate or speak with his client despite diligent attempts to do so. In ^support of that motion, counsel ■ submitted his own uncon-troverted affidavit, in which he averred:

1. He is counsel of record for the defendants in this case.

2. Despite his efforts, he has not been able to locate his client, Mohammad Moez-zi, since sometime prior to August 29, 2005, the date Hurricane Katrina made landfall near New Orleans.

3. Since receiving word in February, 2006, that the plaintiff sought to set a trial date, counsel attempted to locate Mr. Mo-ezzi in several ways. He made telephone calls to Mr. Moezzi’s last known phone numbers, and confirmed that the last known address is no longer valid. He performed public record searches utilizing WESTLAW and attempted to contact those persons that might be related to Mr. Moezzi or know his whereabouts. Those efforts were unsuccessful. He performed public record searches to determine whether Mr. Moezzi has, since Hurricane Katrina, purchased or leased rental property, acquired a new telephone number, or taken any other steps that might appear on available credit reports since the hurricane. He did not locate any such information. He also sought out and spoke with people he believed to have been Mr. Moez-zi’s acquaintances, and none of those persons claimed specific knowledge of his current whereabouts, aside from a belief that he is likely out of the country in the Philippines. Counsel had not located anyone claiming to have spoken to Mr. Moezzi since August 29, 2005.

Mr. Moezzi did not appear at the trial of this matter, and the record does not contain any communication directly by him subsequent to the filing of Answers to | ./Interrogatories in 2004. A return in the record dated September 8, 2006 shows that the Constable was unable to serve Mr. Moezzi through counsel with a Judgment Debtor Rule, the Constable having noted: “Agent here unable to serve.”

In support of her motion, Ms. Gutierrez cites La.C.Civ.Pro. art. 2084, which provides in pertinent part:

A legal representative may appeal any appealable judgment rendered against him or affecting the property which he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable.

Ms. Gutierrez argues that because counsel for Mr. Moezzi is not affected by the trial court’s judgment, and because the judgment does not affect any property that counsel is administering, he lacks capacity to prosecute this appeal.

For the definition of “legal representative”, the Official Revision Comment of 1960 refers us to La.C.Civ.Pro. art. 5251, which defines “legal representative” as including “an administrator, provisional administrator, administrator of a vacant succession, executor, dative testamentary executor, tutor, administrator of the estate of a minor child, curator, receiver, liquidator, trustee and any officer appointed by a court to administer an estate under its jurisdiction.” Retained counsel of record does not fit within that statutory definition.

It is clear from the record that defense counsel has not withdrawn from his representation of Mr. Moezzi. Furthermore, there is no evidence in the record to show any of the grounds for mandatory withdrawal set forth in Article 16, rule 1.16, Rules of Professional Conduct. Absent such a showing, we must conclude that defense counsel’s representation of Mr. Moezzi is ongoing, and, concomitant with that representation, counsel’s duty vigorously and diligently to represent Mr. |sMoezzi is likewise an ongoing obligation. Therefore, we deny the Motion to Dismiss Mr. Moezzi’s appeal.

Mr. Moezzi bases his appeal on his contentions that the evidence adduced at trial was insufficient to support the judgment of the trial court. He suggests that the appropriate standard of review in such a case is de novo, citing Rabalais v. St. Tammany School Board, 06-0045 (La.App. 1 Cir. 11/3/06), 950 So.2d 765. However, the Louisiana Supreme Court noted the distinction between general sufficiency of evidence and legal sufficiency of evidence in Hall v. Folger Coffee Co., 03-1734, pp. 9-10 (La.4/14/04), 874 So.2d 90, 98-99:

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.
[T]he only question before the district court was a factual question — i.e., whether Folger submitted sufficient controverting evidence to persuade the trier of fact of the non-existence of the inferred fact that CT Corporation was properly served with service of process. The manifest error standard of review applies to all factual findings, including the district court’s factual finding in this case that the evidence presented by Fol-ger proved, more likely than not, that the Halls’ original petition was never properly served on CT Corporation.
We are aware of the position of the dissenting justices that a “sufficiency of the evidence” challenge involves a legal question to which the de novo standard of review should be applied. It should be noted however that this court has already rejected that argument in Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216 and, more recently, by unanimous vote in Nabors Drilling USA v. Davis, 2003-0136 (La.10/21/03), 857 So.2d 407, 416. In both of those cases, this court held that the manifest error standard of review applies to | sail factual findings, including sufficiency of the evidence challenges. We acknowledge, however, the well-established principle of Louisiana law that legal sufficiency of the evidence challenges, such as those presented by motions for summary judgment, motions for directed verdict, and motions for judgment notwithstanding the verdict, are subject to the de novo standard of review that is used for all legal issues.

The Supreme Court then reiterated the two-part test for reversal of the fact-finder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). The reviewing court must always keep in mind that if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Hall v. Folger Coffee Co., supra at p. 11, 874 So.2d at 99.

Mr. Moezzi contends that Ms. Gutierrez did not establish the amount of commission to which she was entitled. When a written contract is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence. However, if the price or value is in excess of five hundred dollars, as in the instant case, the contract must be proved by at least one witness and other corroborating circumstances. La.C.C. art. 1846. A party to a lawsuit may serve as his own credible witness for the purpose of satisfying this article, and, although the party must show other circumstances which corroborate his claim, only general corroboration is required, not independent proof of every detail of his testimony. Lee Eyster and Associates, Inc. v. Favor, 504 So.2d 580, 582 (La.App. 4 Cir 1987).10 In that case, a realtor sought a commission, and this Court, applying the manifest error standard of review, affirmed the trial court’s award of the commission. The Court noted that the plaintiff produced not only his own testimony of the existence of an oral brokerage contract, but also several pieces of documentary evidence which the trier of fact reasonably could have found to be corroborative.

In Sun Drilling Products Corp. v. Rayborn, 00-1884 (La.App. 4 Cir. 10/3/01), 798 So.2d 1141, a corporation’s minority shareholder reconvened in an action claiming the existence of an oral contract between himself and certain individual investors in the corporation for payment of cash, a promissory note, an employment contract, a royalty contract and chairmanship of the corporation’s board of directors. This Court noted that La.C.C. art. 2232 requires the claimant to prove all aspects of a contract, including its terms. Sun Drilling Products Corp. v. Rayborn at p. 10, 798 So.2d at 1149. Moreover, since the claim was for payment of money above $500 in value, the claimant must prove the contract’s existence and terms by at least one credible witness and other corroborating circumstances, citing La.C.C. art. 1846 and Executive Recruitment, Inc. v. Reed and Carnrick Pharmaceuticals, 474 So.2d 473, 474 (La.App. 4 Cir.1985). The Court recognized that the claimant may serve as the “one credible witness”, and that only general corroborating circumstances are required to support his claim. The trial court relied on Rayborn’s testimony as to the terms of the contract. It found corroboration in an entry in the corporation’s internal books showing that in September 1995 a majority of the corporation’s board of directors resolved that a debt of the corporation in the amount of $1.3 million to Rayborn should be removed from the internal books. This Court reversed, holding that Rayborn had In not offered sufficient proof of a debt owed individually by the corporation’s investor:

Rayborn bears the burden of proving both the existence and terms (including the amount) of the oral agreement. We do not find that the record establishes that Rayborn proved by a preponderance of the evidence that Heller [an investor in the corporation] personally agreed to pay Rayborn $1.3 million. Only Rayborn’s testimony supports the finding that Heller personally agreed to pay Rayborn $1.3 million. Rayborn’s attempts to establish proof of the obligation ... consistently referenced Sun’s indebtedness, as opposed to a debt owed by the individual investors. Other than Rayborn’s conflicting testimony, the record contains no evidence to corroborate the existence and terms of the alleged oral agreement between the individual investors and Rayborn.

Sun Drilling Products Corp. v. Rayborn at pp. 11-12, 798 So.2d at 1150. This Court then reversed the trial court’s judgment insofar as it had awarded damages on the alleged oral contract with the individual investors.

Furthermore, the party who demands performance of an obligation must prove the existence of the obligation. La.C.C. art. 1831.

Ms. Gutierrez testified that she has an oral contract with Mr. Moezzi, not with Birjand. However, it is clear that the corroborating evidence she introduced consisted only of a check drawn on the Birjand corporate account. This evidence, like the corporate bookkeeping entry in Sun Drilling Products Corp. v. Rayborn, proves only that there was an agreement between Ms. Gutierrez and Birjand to pay some unspecified commission. As such, it does not corroborate Ms. Gutierrez’s testimony that she had an oral contract with Mr. Moezzi individually.

Likewise, the copy of the face only of Birjand’s check, without a copy of the reverse of the check, does not support a finding of the existence of an oral agreement between Ms. Gutierrez and Birjand or Mr.. Moezzi. This Court held in 12Carrier Limousine Service, Inc. v. Johnson, 547 So.2d 21, 24 (La.App. 4 Cir.1989):

In order to prove a prima facie case for the existence of the verbal purchase agreement and payment of the purchase price plaintiff was required to offer one credible witness and other corroborating circumstances. La.C.C. Art. 1846. The photocopy of the face of the check does not furnish any corroboration. Absent proof of the defendant’s endorsement, or the testimony of the maker of the check, the check itself is mere hearsay insofar as it was offered to prove that it was issued to JOHNSON and that he received the proceeds.

Ms. Gutierrez’s testimony was not clear as to the number and value of the rugs sold to Ms. Valentino. She testified that there were either two, three or four rugs, and that only the Serapi was sold for cash (a check in the amount of $40,000). She did not specify the .quantity, specific type or value of the furniture that allegedly was bartered for the remaining rug or rugs. As to the value of the other rugs, Ms. Gutierrez testified that one was a Herez, with a value of $10,000 or $15,000 or $20,000. When the computation of commission by the trial court was suggested to be $12,000, and not the $15,000 found in the demand, Ms. Gutierrez testified as follows:

Well, the whole thing is kind of crazy because it turned into a trade. I don’t know. I mean, if he—that’s what I assumed that everything was valued at. I don’t know. It says approximately right here [referring to the petition]. It says approximately.

On cross-examination, Ms. Gutierrez was unable to testify to the amount for which Mr. Moezzi sold the furniture he allegedly took in trade from Ms. Valentino for the balance of the rug or rugs. Ms. Gutierrez was neither offered nor qualified as an expert in the valuation of furniture, and therefore could not place a value on |1sMs. Valentino’s furniture. Furthermore, Ms. Gutierrez offered no evidence at all as to what type or pieces of furniture were bartered for the remaining rug or rugs.

In the absence of corroborating evidence to establish that a claimant procured business or that billings in the amount he claimed actually were made, the claim must be disallowed. See Bacon v. Scofield’s Quality Printers, Inc., 212 So.2d 724 (La.App. 4 Cir.1968).

There is no indication that Ms. Gutierrez made any effort to procure the testimony of Ms. Valentino, who was in a position, arguably, to testify as to the value of the rugs she acquired from either Birjand or Mr. Moezzi and as to the valuation of the furniture she allegedly traded to Birjand or Mr. Moezzi in partial payment for her rugs. Ms. Gutierrez’s incomplete testimony concerning the value of the rugs, the $40,000 check drawn on whichever account, and the furniture barter is totally uncorroborated.

Mr. Moezzi contends that he should not be held liable individually for sales commissions allegedly owed for work performed by Ms. Gutierrez for the benefit of the Birjand corporation. The Louisiana Supreme Court addressed the issue in Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1167-1169 (La.1991)

The general rule that corporations are distinct legal entities, separate from the individuals who comprise them, and that the shareholders are not liable for the debts of the corporation, is statutory in origin and well supported by the jurisprudence. [Citations omitted] The economic purpose underlying this framework of limited liability was expressed by the First Circuit over a quarter century ago: “[Pjrotection from individual liability encourages and promotes business and industry”. [Citation omitted] Additionally, this shareholder liability shield encourages business investments in high-risk areas by enabling investors who utilize the corporate form to make capital contributions. to corporations while insulating their personal wealth from the risks inherent in business. [Citations omitted] No matter the size of the business, incorporation is an optional form for conducting business in Louisiana. In fact, the 1968 revision to the corporation laws now allow a single individual to | ^incorporate. LSA-R.S. 12:21.
Because of the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. [Citation omitted] Moreover, if the plaintiffs do not allege shareholder fraud, they bear a heavy burden of proving that the shareholders disregarded the corporate entity to such an extent that it ceased to become distinguishable from themselves. [Citations omitted].
There are limited exceptions to the rule of non-liability of shareholders for the debts of a corporation, where the court may ignore the corporate fiction and hold the individual shareholders liable. Generally, that is done where the corporation is found to be simply the “alter ego” of the shareholder. It usually involves situations where fraud or deceit has been practiced by the shareholder acting through the corporation. LSA-R.S. 12:95. [Citations omitted] Another basis for piercing the corporate veil is when the shareholders disregard the requisite corporate formalities to the extent that the corporation ceases to be distinguishable from its shareholders. [Citations omitted].
Some of the factors courts consider when determining whether to apply the alter ego doctrine include, but are not limited to: 1) commingling of corporate and shareholder funds; 2) failure to follow statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings. [Citations omitted].
The fact that one individual owns a majority of stock in the corporation does not in itself make that individual liable for corporate debts. [Citations omitted] This is particularly true in the case of a closely held corporation where often corporate business is conducted by the majority, or sole, stockholder.
Louisiana courts are reluctant to hold a shareholder, officer, or director liable for corporate obligations, in the absence of fraud, malfeasance, or criminal wrongdoing. LSA-R.S. 12:93(B); 12:95. [Citations omitted.] ... Furthermore, corporate agents are generally not liable for corporate debts and the burden of establishing the contrary is on the corporate creditor.

Ms. Gutierrez has neither alleged nor proven fraud, malfeasance or criminal wrongdoing. Ms. Gutierrez clearly testified that when she worked at the textile store she worked for Birjand, the corporation. It was her testimony that after she |1Bquit that job, she then worked under an oral agreement as an independent sales consultant for Mr. Moezzi. She admitted on cross-examination that the only evidence she had corroborating her testimony that she and Mr. Moezzi had entered into an oral sales consultancy contract was the $1,000 check, written on Birjand’s account. This evidence contradicts, rather than corroborates her claim that she had a contract with Mr. Moezzi, individually, and not with Birjand. There is no evidence of record to show a basis for taking the radical step of disregarding Birjand’s corporate existence and holding Mr. Moezzi personally liable for the corporate debts. Ms. Gutierrez neither alleged nor offered proof of the elements set out in the Riggins case to justify imposition of individual liability on Mr. Moezzi for an- alleged debt of the corporation. She demonstrated, to the contrary, that the corporation did maintain separate accounts; since the only documentary evidence she offered at trial was a check drawn on a corporate account. Neither is there evidence of record that the corporation did not observe formalities such as regular shareholder and directors’ meetings.

The statement in the trial court judgment that the Secretary of State’s records indicate that the corporation’s “corporate status had been revoked” is not supported by the record. There is no mention of an alleged revocation of Birjand’s corporate charter in the trial transcript or in post-trial memoranda filed by either party. Ms. hfiGutierrez argues for the first time in her appellate brief that Birjand’s charter was revoked for failure to file four annual reports; however, this argument is not supported by any reference to an exhibit of record or to transcribed testimony. Furthermore, page 12 of the trial transcript, cited by Ms. Gutierrez in brief to support her contention, contains no reference to corporate status or charter revocation .

As a court of record, we are limited in our scope of review to evidence that appears in the record of the proceedings. There is no mention of a revocation of the corporate charter in the trial transcript, nor is there any exhibit in the record indicating such revocation. Because of these circumstances, we are compelled to disregard the comment in the judgment concerning revocation of Birjand’s corporate charter.

Ms. Gutierrez contended below that Mr. Moezzi’s absence from the trial gives rise to an inference that his testimony would have been unfavorable to his case, citing Jarrett v. Climatrol Carp., 185 So.2d 63 (La.App. 4 Cir.1966). The uncon-troverted affidavit submitted by counsel for Mr. Moezzi establishes that the latter has not received notice of the trial date and, at last contact, was living in the Republic of the Philippines. Ms. Gutierrez resisted the Motion to Continue the trial filed on Mr. Moezzi’s behalf. Had that motion been granted, the trial would have been continued until such time as Mr. Mo-ezzi had been located and notified 117of the new trial date. Since Ms. Gutierrez insisted that the trial go forward in the absence of notice to Mr. Moezzi, it would be inequitable to allow her to have the benefit of the negative inference of his absence. See Merritt v. Gillentine, 151 So.2d 169 (La. App. 3 Cir.1963).

For the foregoing reasons, we are forced to conclude that Ms. Gutierrez did not bear her burden of proving by a preponderance of evidence that she entered into an oral commission contract with Mr. Mo-ezzi individually, or the value of the sale she made to Ms. Valentino, or grounds for piercing the corporate veil to hold Mr. Moezzi personally liable for any debt to be proven to be owed by Birjand.

REVERSED.

      . Ms. Gutierrez did not introduce evidence showing entitlement to attorney’s fees at trial and did not present argument at trial or in her appellate brief concerning this issue. The trial court’s judgment did not award attorney’s fees.

      . Ms. Gutierrez offered no evidence at trial and no argument in her appellate brief to support this claim.

      . The trial court cast only Mr. Moezzi in judgment; no judgment was rendered against Birjand. Ms. Gutierrez has not appealed the judgment.

      .We find no documentary or testimonial evidence in the record to support this conclusion.

      . During oral argument, counsel suggested that the trial judge had taken “judicial notice” of the Birjand corporation’s delinquency in filing reports with the Secretary of State and the resulting charter revocation. Based upon our review of the applicable provision in the Code of Evidence and jurisprudence thereunder, it is clear that the revocation does not come within the scope of matters as to which the court may take judicial notice. La.C.C. art. 202 B(l)(b) provides that judicial notice may be taken of "Rules of ... agencies of this state that have been duly published and promulgated in the Louisiana Register; or (e) Rules and decisions of boards, commissions, and agencies of ... any state, ... which have been duly published and promulgated and which have the effect of law within their respective jurisdictions.” There is no indication that the revocation was published in the Louisiana Register. The Third Circuit took judicial notice of a bank merger based on a Certificate of Merger found in the records of the Louisiana Office of Financial Institutions in Premier Bank f/d/b/a Guaranty Bank v. Daigle, 90-1305 (La.App. 3 Cir. 5/20/92), 599 So.2d 503. However, in Finnie v. LeBlanc, 03-1013 (La.App. 3 Cir. 3/10/04), 875 So.2d 71, the same court refused to allow judicial notice to be taken of filings in a Bankruptcy case. In Francis v. Texas & P. Rwy. Emp. Hospital Assn., 148 So.2d 118 (La.App. 3 Cir. 1963), the court held that a publication issued by the Secretary of State listing agents for service of process was susceptible of being admissible evidence, but was not the proper subject for judicial notice. This Court refused to allow judicial notice to be taken of the fact that a constitutional amendment had been approved by the voters, instead requiring that the Secretary of State's certificate acknowledging that fact be filed in the record. City of New Orleans v. Grosch, 49 So.2d 435 (La.App.Orleans, 1950). We find the instant case to present circumstances analogous to those in the Francis and Grosch cases, as to which judicial notice was found to be inappropriate. -

      . We note that the record does not contain any order or other statement that the case was to be held open for additional evidence.

      . Mr. Moezzi’s Answers to Interrogatories filed on or about August 11, 2004, listed his address in Manila, Republic of the Philippines. The order setting the case for trial is dated march 10, 2006, and follows an order dated February 10, 2006 in which a status conference was continued to allow counsel additional time to locate his client.

      .Mr. Moezzi has not raised a constitutional argument on appeal.


text:
    Octavia SHELVIN v. INTRALOX, L.L.C.
    No. 2006-CA-1418.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2007.

      Octavia Shelvin, Gonzales, LA, In Proper Person, Plaintiff/Appellant.
    Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee, Intra-lox, LLC.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| plaintiff-appellant, Octavia Shelvin, appeals pro se, the summary judgment dismissal of her workers’ compensation claim against the defendant-appellee, Intralox, LLC. We affirm.

The plaintiff alleges that on July 1, 2003, she attempted to lift a box in the course and scope of her employment as a result of which she sustained a compensable injury to her back.

Plaintiff complains that she hired an attorney who advised her to seek workers’ compensation benefits who she feels let her down by not attending the summary judgment hearing.

The defendant’s answer denied that any compensable accident occurred. The defendant notes that the plaintiff continued to work her usual and customary duties for just over a year after the July 1, 2003 date of her alleged injury.

On April 25, 2006, the workers’ compensation judge proceeded with the hearing on the defendant’s motion for summary judgment. Neither the plaintiff nor her attorney were present. The transcript reflects that the defendant’s attorney argued to proceed with the hearing based on the contention that the hearing had been continued several times and that there was a “green card” (presumably preferring to the postal receipt in the record) showing that service had been received in plaintiffs counsel’s office. At the hearing the defense counsel represented to the court that he had no knowledge of a request for a continuance on behalf of the plaintiff. The plaintiff does not contend otherwise.

Based on the record we find no abuse of the trial court’s discretion in the conduct of its proceedings when it decided to proceed with the summary judgment hearing in the absence of the plaintiff and her counsel.

In June of 2006, the plaintiff received a letter from her attorney informing her that her claim had been dismissed. The plaintiff annexed a copy of that letter to her motion to appeal. In it her attorney explained to her that “as we discussed in our very first meeting” that prescription was a problem and that “secondly that your injury was of an ongoing nature, meaning that there was not one specific incident that occurred but instead a degeneration over time.” The letter went on to mention that the strategy had been to delay the summary judgment hearing as long as possible because of the weakness of the ease in hopes that in the interim a settlement could be reached or the case brought to mediation, but that the court proceeded to trial before those goals could be met.

The letter closes with the information that the plaintiff has the right to appeal the summary judgment dismissal of her case, but that her appeal is without merit. We agree.

At the outset we shall dispose of Intralox’s prescription argument. Plaintiff alleges that her work related accident occurred on July 1, 2003. In her brief to this Court the plaintiff states that she first saw an attorney in connection with this matter on January 11, 2005, well over a year after the occurrence of the alleged accident. That attorney subsequently filed the LDOL-WC-1008 Claim Form on |sthe following day, over a year and a half after her alleged work place accident. Intralox says that that filing was untimely and that her claim has prescribed. We find no exception of prescription filed in the record in either the workers’ compensation proceedings or in this Court. While Intra-lox argues that the plaintiffs claim has prescribed, Intralox never states that it filed an exception of prescription. In a case that is exactly on point regarding Intralox’s prescription argument this Court has held:

Defendants suggest in brief that plaintiffs tort claims have prescribed. No exception of prescription was filed below. An exception of prescription may be filed for the first time in this Court. LSA-C.C.P. art. 2163. However, the defendants have not done so. They have only mentioned the issue in their brief. An exception of prescription presented only in argument either orally or by way of memorandum or brief is not sufficient. Rapp v. City of New Orleans, 95-CA-1638 p. 50 (La.App. 4 Cir. 9/18/96); 681 So.2d 433, 457, writ denied 96-2925 (La.1/24/97); 686 So.2d 868.

Alomang v. Freeport-McMoran, Inc., 97-1349 (La.App. 4 Cir. 3/4/98), 718 So.2d 971, 973.

Even in those instances where prescription is obvious, this Court is powerless to supply the plea ex proprio motu. La. C.C.P. art. 927 B; Scott v. Scott, 92 2378 (La.App. 1 Cir. 6/24/94), 638 So.2d 1206, 1207 FN 2. Therefore, this Court is without authority to consider Intralox’s prescription argument.

The record does not contain a copy of the defendant’s motion for summary judgment, but based on the transcript of the hearing, the judgment of the workers compensation judge, and the reference to the “Motion for Summary Judgment” made by plaintiffs counsel in his letter to the plaintiff dated June 6, 2006, annexed to her motion for appeal, we have no reason to doubt that the lower court |4proceeded on a properly filed motion for summary judgment. The plaintiff does not contend otherwise.

In connection with the motion for summary judgment, Intralox filed a copy of the plaintiffs deposition and medical records. The only evidence in the record is that offered by Intralox. However, the plaintiff has the benefit of her deposition testimony as that is included among Intra-lox’s exhibits.

The plaintiff alleges that on July 1, 2003, she attempted to lift a box in the course and scope of her employment as a result of which she “felt this click, I call it a crick in my back....”

In her deposition plaintiff testified that she had no previous back injury requiring treatment. She claims she reported the incident to the floor supervisor and that for the rest of her shift she experienced back pain. The next night she requested a back brace from the said floor supervisor, but was not furnished with one until October, at least three months after the initial incident.

She testified that she was required to do the same kind of heavy lifting until she was terminated slightly over one year later. She also testified that up until the time she was terminated she had no other occasion to report another incident or accident other than her request for a back brace. Instead, plaintiff testified that she,

... just told my supervisor that I was going to the doctor and that my back was hurting. When she would ask me to do overtime, I would also tell her why I couldn’t do the overtime was because of my back.

Prior to the alleged heavy lifting accident, the plaintiff used overtime on a regular basis, but after the accident she testified that she did little or none. She testified that she asked her supervisor for a week off because of her back, but was told that, “it wasn’t convenient at the time.”

1 sThe plaintiff testified that she received her first treatment for the lifting accident at the Ochsner Emergency room because “her back was really hurting” and she was not able to otherwise schedule an immediate regular orthopedic appointment.

When asked if she told Dr. Williams about the lifting accident when she eventually was able to schedule a regular orthopedic appointment, she testified that:

Basically I just told her, you know, the pain that I was having, it was excruciating pain because it was 24/7; it didn’t let up at all.

The plaintiff next testified that “basically” Dr. Williams was “the one” that helped her manage her pain, not the Ochsner emergency room. Although she thought it likely that she told Dr. Williams about the lifting accident and that she was taking Tylenol and Aleve without success, but she was not absolutely certain.

Although she had no further accidents, because her lifting duties continued after the accident she continued to experience pain, although not as much as in July of 2003: “It was just constant pain,” that never really went away.

She testified that she went to Ochsner on one occasion after awakening one morning and “couldn’t get out of bed.”

When asked about the physician report of January 26, 2004, where it states that she had “complaints of right knee pain and back pain,” but that “she reports that the pain had resolved,” she explained that she was referring to the knee pain. The next paragraph of the report contains the following statement: “She also reports low back , pain for about a week.” The report also noted that she did “quite a bit of lifting with her job.”

|fiWhen defense counsel suggested during the course of the deposition that he inferred that it was not just the lifting that was causing her back problems, she responded: “I never had any problem before [the lifting accident].” After the accident she stated that she experienced problems getting up and down.

Next, defense counsel noted that in the physician report of March, 17, 2004, she was again complaining of leg and back pain.

Plaintiff testified that shortly after the initial incident she took off two or three days and on another occasion a week. She testified that the first time right after the accident she got a slip from the emergency room physician prescribing no work activities, but that the second time, “I was just in so much pain I just went home and stayed for the whole week.”

When asked whether she recalled Dr. Williams ever telling her to stop working she responded:

A. Not that I recall.
Q. Okay.
A. But she would ask me, “Do you think you can work?” And I would say, “I have to work.”
* * * *
A. Well, she would Like suggest to me that maybe if I could change my job, and I said really there was nothing to change to.

The plaintiff testified that her pain had lessened since she stopped working, but that, “If I do a lot, then I get more pain.” She testified that she does not schedule appointments because of her back pain unless it flairs up more intensely, because she feels there is nothing the doctor can tell she doesn’t already know about it. For example, in January of 2005, it got much worse so she went to see the 17doctor about it. She has had no subsequent flair up of the magnitude of the January, 2005 flair up.

Plaintiff testified that after the accident she would ask co-workers to assist with heavy lifting, but she did not go to her supervisor with her problem because she felt that the supervisor would be unresponsive.

She testified that about fifteen other employees were terminated at the same time she was. She stated that when she did job searches while she was receiving unemployment benefits subsequent she searched for a cashier position, a position she had held in the past, and one “that didn’t require any heavy lifting.”

Plaintiff testified that had she not been terminated she would have continued to work unless the pain became too intense. She said that the job was becoming increasingly difficult for her — it had reached a point where she, “would go to work, go home, go to bed ...”

When confronted by defense counsel with the fact that “no doctor as of today has taken you off of work,” she explained that she “would tell them I have to work.” She stated that at the time of the deposition she was still able to engage in the activities she had always engaged in, but she explained that prior to the accident, “I was not very active other than walking, and I can still walk, but not a long distance.” She stated that she could walk normally until “the back pain starts ...” She testified that after the accident she experienced back pain every day at work.

The plaintiff claims that for a week she managed with over the counter pain medications, but that her pain became progressively worse, compelling her to seek medical attention. As her physician had no appointments available for two weeks, he advised her to seek emergency room treatment. Accordingly, she went to the IsOchsner emergency room where she was given pain pills and told to take off three days of work which she did.

Plaintiff states that she continued to work in pain “because of the company’s policy concerning missing work.” Plaintiff alleges that her doctor eventually prescribed steroids and recommended an MRI which revealed a herniated disc. On July 16, 2004, the plaintiffs employment was terminated. The reason given on her termination slip was: “Violated Laitram business policy.” Up to that time plaintiff had made no claim for either weekly compensation benefits or medical expenses. In fact, plaintiff does not dispute the fact that no such claim was made until the following January when her attorney filed the claim that is the subject of this appeal.

In Dupuis v. Picard, Steel Erectors, Inc., 04-172, p. 8 (La.App. 8 Cir. 9/29/04), 883 So.2d 1092, 1097-1098, the court explained how, if her allegations are found to be true, the plaintiff could be considered to have suffered an accident:

Louisiana courts consistently have interpreted the work-related accident requirement liberally. Indeed, it is well-settled in Louisiana that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a prc existing condition.” Moreover, Louisiana courts view the question of whether there was an accident from the worker’s perspective.

Id., quoting Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 360 (La.1992).

However, while the Dupuis court then goes on to note that a worker’s testimony alone may suffice to discharge the burden of proof, it is not quite that simple:

| ¡Although the court looks to see if an accident occurred from the worker’s perspective, the worker still bears the burden of proving there was an accident:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubts upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. ... Corroboration may also be provided by medical evidence.

Id., 04-172, p. 8, 883 So.2d at 1098, quoting Bruno, supra, 593 So.2d at 361.

Plaintiffs deposition testimony does tend to show that she hurt her back on the job in what could be described as a workplace accident meeting the, Bruno standard, supra. However, there is nothing in the record to corroborate her testimony.

This Court reviews summary judgments de novo. It is well settled that manifest error is not the standard of review:

First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333 (La. App. 4th Cir.2/23/00), 757 So.2d 814.

Willis v. Medders, 00-2507, p. 2 (La.2/8/00), 775 So.2d 1049, 1050.

However, where the mover, in this case Intralox, will not bear the burden of proof at trial,

according to La. C.C.P. 966(C)(2), the mover need not negate all essential elements of the adverse party’s claim, action, or defense, but rather need point out to the court |inthat there is an absence of factual support of one ór more elements of the claim. Once the movant negates such a necessary element(s) of the adverse party’s claim, the burden then shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Lozier v. Security Transfer and Inv. Corp., 96-2690 (La.App. 4 Cir. 4/30/97), 694 So.2d 497. The effect of the legislature’s 1996 amendment to La. C.C.P. art. 966 is that the non-moving party is not allowed to rely on the allegations of its pleadings in opposition to 'a properly supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La. App. 4 Cir. 11/13/96), 684 So.2d 488.

Moody v. City of New Orleans, 99-0708, pp. 1-2 (La.App. 4 Cir. 9/13/00), 769 So.2d 670, 671.

The medical records contain no mention of any accident or any reference to work restrictions. This and the fact that the plaintiff continued to work for a year after the alleged accident doing the same work casts uncertainty on the reliability of her testimony. Her own uncon-tradicted testimony alone will not be sufficient for her to bear her burden of proof at trial — she must have corroboration, and there is nothing in the record to show that she could produce such corroboration at a trial on the merits. An affidavit from a coworker might have sufficed; something in the medical records referring to the lifting incident or suggesting work limitations might have created a genuine issue of material fact sufficient to warrant referring the matter to the trier of fact at a trial on the merits. However, none of these or anything equivalent is in the record. As may be seen by the discussion above of the plaintiffs deposition testimony as well as the medical records, this Court has done an exhaustive de novo review of the ree-ord, and found nothing sufficient to create a genuine issue of material fact concerning the plaintiffs ability to ^corroborate her testimony or to dispel the doubtful circumstances were there to be a full blown trial on the merits.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.