author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Torius SCROGGINS, Appellant.
    No. 40,746-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 22, 2006.

      John Cucci, Jr., Shreveport, for Appellant.
    Paul J. Carmouehe, District Attorney, Catherine M. Estopinal, Edward M. Bros-sette, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

hTorius Scroggins was found guilty following a jury trial of armed robbery. He was sentenced to serve 27½ years at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals his conviction only. For the reasons that follow, we affirm his conviction and sentence.

FACTS

Scroggins was charged via a bill of information with armed robbery in connection with the December 23, 2000, robbery, rape, and homicide of Vickie McGraw. The record establishes that he was in a vehicle with three other men when the victim was spotted driving alone. They followed her to an apartment complex and parked beside her white 1996 Chevrolet S-10 Blazer. Two of the men, Aaron Wilson and Derrick “Monster” Bouya, got out of the vehicle and Wilson held a pistol to her head. Scroggins and the fourth man, Leon “Fat” Bagley, left and went to wait at Bagley’s residence. About an hour later, Bouya and Wilson arrived at Bagley’s residence. The men went outside to look at the vehicle that had been taken, and Scroggins saw a purse and credit cards in the vehicle. Bouya and Wilson told Bagley and Scrog-gins that they raped the victim and that they shot her since she had seen their faces. The men left Bagley’s residence to take Scroggins home. On the way, they stopped to withdraw funds from an ATM, and Scroggins was given some of the money. The victim’s vehicle was later recovered from an apartment complex where Scroggins was living and his fingerprints were found on the vehicle.

| ^Following a trial, the jury voted 11-1 to convict Scroggins of armed robbery, and he was sentenced to serve 27½ years at hard labor without benefit of parole, probation or suspension of sentence. A motion to reconsider sentence was filed and denied and this appeal followed.

DISCUSSION

Insufficiency of Evidence

Scroggins alleges that the state failed to produce sufficient evidence to sustain a conviction of armed robbery. He further argues that the bill of information does not inform him that he is alleged to be a principal and that the only proof of his being near the crime committed on the victim was that he was a passenger in the automobile that brought the co-defendants to their victim. The state argues that Scroggins’ own statement establishes his guilt as a principal when he admitted that when he joined the group he knew that they were wanting to “hit a lick” and gave details of the activities as they searched for a victim. The state further argues that once the robbery began, Scroggins did nothing to distance himself from the crime and received a small amount of cash for his part in the offense. Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

La. R.S. 14:64 defines armed robbery as:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the ^immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

The law of principals found in La. R.S. 14:24 reads:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

La. R.S. 15:438, regarding use of circumstantial evidence, provides:

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.

La. R.S. 14:10 defines criminal intent as follows:

(1) 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.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the Rfact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The audiotaped interview with Scroggins shows that he was advised of his rights before being questioned on December 28, 2000. The recorded interview shows that the appellant made the following admissions:

1. Scroggins was picked up from Monster’s house at around 7:30 p.m. on December 23, 2000, by the other three men who were in Fat’s vehicle. He said, “They just came and got me and said they wanted to hit a lick or something.” He further explained that “hit a lick” meant they were “gonna take something from somebody.” Scroggins also stated that it was “more than one person’s idea” to take something and that he knew that Aaron had a handgun with him.
2. They went to Super Wal-Mart at the corner of Bert Kouns and Your-ee Drive where they spotted a red Expedition with 20" rims in the parking lot. He stated that “Aaron was gonna take it if somebody would have came (sic) to it. Didn’t nobody (sic) come to it.”
3. Aaron took a rifle out of the trunk. They were driving down 70th Street when “they were saying man, get that woman right there” referring to the victim driving a white SUV. He said they followed her and “she pulled up in the apartments” and parked.
4. The men parked beside the victim, and Aaron and Monster, who were both on the passenger side of the vehicle, got out. He said he saw Aaron put a gun to her head and that he and Bagley left at that point. When asked what the plan had been, he said they were going to “take the woman and put her in the backseat.” He said that idea had been either Monster’s or Aaron’s.
5. He said the two men showed up without the woman and told them that they had shot her because she had seen their faces. He said weapons were brought in and that he went out to the vehicle and saw a purse and several credit cards.
6. Scroggins said he asked to be taken home and that on the way to drop him off they went to an ATM on Hearne Avenue and |fiused the victim’s card to withdraw money. He said he got only $20.00, but he thought the men had gotten about $500.00 in cash. The group then went to the Circle K near his house and bought gas. He stated he got home at “about one, two, something like that.”
7.Scroggins admitted that the men came by his house the next morning. He answered yes when asked if he could have used the credit cards.

These admissions by Scroggins during this interview are corroborated by supporting evidence. For instance, testimony from a bank officer showed that there were several withdrawals of money from an ATM on December 23, 2000, shortly before midnight on the night in question. The investigating officer’s testimony showed that the victim’s vehicle was found at the same apartment complex where Scroggins was residing and that his fingerprints were found on the vehicle. While the law of principals does not require that the jury had to find that Scrog-gins actually participated in the act of the armed robbery itself, the issue to be resolved is whether or not there is sufficient evidence for the jury to have concluded from Scroggins’ behavior that he had the intent to be involved in this crime. The law regarding principals in an armed robbery conviction has been explained well in State v. Tolliver, 35,930 (La.App. 2d Cir.5/8/02), 818 So.2d 310, when this court stated:

Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427. Mere presence at the scene is not enough to “concern” an individual in the commission of the offense. Id.; State v. Knowles, 392 So.2d 651 (La.1980). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, supra; State v. Holmes, 388 So.2d 722 (La.1980).
LThe state may prove a defendant guilty by showing that he served as a principal to the crime by aiding another. La. R.S. 14:24; State v. Smith, 513 So.2d 438 (La.App. 2d Cir.1987). Under this theory, the defendant need not actually take anything to be found guilty of the crime. Also, a defendant convicted as a principal need not have personally held a weapon to be guilty of armed robbery. State v. Dominick, 354 So.2d 1316 (La.1978). A person, who aids and abets another in a crime, is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). Armed robbery is a general intent crime, requiring that the defendant, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. State v. Battieste, 597 So.2d 508 (La.App. 1st Cir.), vacated in part on other grounds, 604 So.2d 960 (La.1992); La. R.S. 14:10(2).
A critical inquiry in robbery cases involving principals is whether or not the alleged principal had knowledge that the crime was going to take place. For example, in State v. Smith, supra, this Court affirmed the defendant’s conviction for armed robbery, holding that he could be convicted as a principal to armed robbery, or to a lesser included offense, based on the fact that he stood by during two armed robberies. This Court held that the jury could reasonably infer that he intended to aid and abet by acting as a lookout.
Those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre, supra. Further, the state must prove that defendant’s participation was sufficient to convict him as a principal. Knowledge that a crime will be, or has been committed, is insufficient by itself.
(Emphasis added.)

In State v. Bates, 495 So.2d 1262 (La.1986), the court found that the defendant was a principal in an armed robbery although it could not determine from the facts exactly what role he played in the crime. That court stated:

Defendant was present at the time of the robbery, either outside the car and immediately beside Clark and Shirley, or seated inside the car when Shirley used the gun and fired warning shots at Clark. He was certainly present at all times during the robbery but did nothing and said nothing to prevent the robbery. He accepted the clothes of 17the victim from Shirley and went through the wallet. Items from the victim’s wallet were later found in Bates’ wallet and Clark’s wallet was found in the defendant’s possession when he was arrested. He therefore shared in the proceeds of the robbery. The robbery occurred with the use of Bates’ gun and his car. It is true there is no evidence that Bates and Shirley planned the robbery in advance. Nor did anyone testify Bates held the gun on Clark during the first confrontation on the bridge or that he threatened Clark at that time or forced the removal of his wallet or clothing. Nevertheless, we find ample evidence to conclude Bates was a principal to the robbery of Clark ...
In Bates’ case, he was either inside or outside the car at the time of the robbery. He did nothing to stop the crime or to tell Shirley that his actions were wrong, or to take his gun from Shirley. Bates kept possessions of Clark that were taken during the robbery. There is sufficient evidence to find Bates was a principal to the armed robbery of Clark, even though there is no evidence to show Bates held the gun during the robbery phase of this crime.

Scroggins’ involvement with this group was from 7:30 p.m. until the wee hours of the next morning. The group made several stops along the way before it accomplished what this defendant knew it had clearly set out to do — “hit a lick.” A person who did not want to be involved in an armed robbery would not have continued to get back into the vehicle with a group of men who were specifically looking for a victim to rob. Since the group of men made so many stops during the course of the evening, Scroggins had several chances to leave the group. The incriminating evidence is derived only from Scroggins’ admission to his actions that evening and does not include a confession of any culpability. However, his intent to participate in this crime can be inferred from his actions of staying with the men after he knew their plans and knew they were armed, as well as his action of waiting on Aaron and Monster to return to Fat’s house. The evidence supports a finding that the circumstances indicate that the offender, in the ordinary | ^course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

Even if the evidence is considered to be only circumstantial, the evidence is sufficient to convict in that it meets the requirements of La. R.S. 15:438 which states:

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.

The record shows that the jury was instructed that if the conviction was based solely on circumstantial evidence, the evidence must exclude every reasonable theory or hypothesis of innocence. A review of the tape shows that during this event, there was nothing to indicate that the defendant was afraid of these three men or that they forced him to be with them during their hunt for a vehicle to steal. We find that there is enough information in the admissions made by Scroggins to support the jury’s finding that he was a willing participant in this armed robbery.

We note that the appellate counsel did not actually brief the argument that the state did not allege or inform the defendant in particular that he is alleged to be a principal. As also noted by the state, no motion to quash the bill of information was filed; therefore, this argument has not been preserved for review on appeal.

Further, the state correctly argues that there is no requirement that the charging instrument make this distinction. In State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728, we stated:

[ 9There is no requirement that an indictment explicitly name the accused as “principal.” That the accused is indicted for the offense itself, and not charged as an accessory after the fact, irrefutably evidences that he is charged as a principal. State v. Peterson, 290 So.2d 307 (La.1974).

Motion for Mistrial

Scroggins argues that the trial court erred by failing to declare a mistrial after a member of the jury venire stated the defense counsel and his partner did not “defend anybody that’s not guilty.”- He argues that this prejudicial remark prevented him from receiving a fair trial.

The state argues that Scroggins was not entitled to a mistrial and that the defense counsel did not request an admonition. The record further shows that the trial court took steps to insure that this potential juror had not expressed this opinion to others in the venire and gave the defense counsel an opportunity to question the remaining jury pool. The state also notes that while the trial court did not quash the venire, it did order a new panel before proceeding. The following statutes provide guidance. First, La. C. Cr. P. art. 770 reads, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An Admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, |inrequests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Next, La. C. Cr. P. art. 771 reads, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Finally, La. C. Cr. P. art. 775 reads, in part:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(6) False statements of a juror on voir dire prevent a fair trial.

When the prosecutor asked his first question during voir dire, whether or not anyone knew him, the defense counsel or the defendant, prospective juror, Candace O’Neill, replied:

I know who Daryl Gold is in business with, Flowers, and my partner in business, and my best friend is someone— your partner defended Inthat Janathan Dagenhart, and I don’t think you guys defend anybody that’s not guilty, after that.

The defense counsel immediately stated that he needed to make a motion outside the presence of the jury panel. He then stated that her remark had “poisoned this venire” and sought to quash the 'venire. After the state responded that there was no vehicle for quashing the venire and that there had been no showing of prejudice or that the jury venire has been contaminated in any manner, the defense counsel moved for a mistrial under La. C. Cr. P.‘ art. 775.

The trial court denied the motion and gave the defense counsel an opportunity to “question any of the prospective jurors from the panel.” The attorney questioned Ms. O’Neill and asked if she had discussed the Dagenhart case with any of the other members of the venire. She replied, “Not anymore. As a matter of fact a woman asked me, “What did you say up there?’ And I said — she goes, ‘Can you say?’ And I said, ‘I’m not saying anything else.’ ” The defense counsel opted not to question any other members of the prospective jurors because that would bring more' attention to the situation.

Under the provisions of La. C. Cr. P. arts. 771 and 775, the trial court is given the discretion of deciding whether or not such a remark is so prejudicial that a mistrial is merited. In State v. Butler, 615 So.2d 496 (La.App. 3d Cir.1993), writ denied, 94-0634 (La.6/28/96), 675 So.2d 1107, a prospective juror made a disparaging remark about the defense counsel’s veracity. The trial court found that because it was possible none of the other h ¿jurors had even heard the comment, no mistrial or admonition was necessary.

Here, the record does not show whether or not the other members of the panel heard the remark. When given the opportunity to do so, the defense counsel chose not to question any of the other members of the jury venire to see if they heard the comment or to establish any other facts to show prejudice. The record reflects that the instructions to the jurors regarding the presumption of innocence which were given at the beginning of the case and at the close of the case are adequate to cure any influence that the- prospective juror’s comment would have had on the jury venire. The record supports a finding that the trial court did not abuse its discretion by denying the motion for mistrial. It is evident from the record that the remark, both by its content and the rest of the safeguards regarding the presumption of innocence, did not make it impossible for the defendant to obtain a fair trial. This assignment lacks merit.

Jury Charges

Scroggins argues that the trial court erred in failing to include the special jury charge regarding specific intent. The state argues that the trial court did not err since armed robbery is a general intent crime. La. C. Cr. P. art. 807 reads: ■

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has- begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly 11scorrect and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

The record shows that the defense counsel filed a written request for jury instructions and asked the following paragraphs be added:

Principal. All persons concerned in the commission of a crime are principals and are guilty of the crime charged if, whether present or absent, they directly commit the act constituting the offense, aid and abet in it’s (sic) commission, or directly or indirectly counsel or procure another to commit the crime.
In deciding whether the defendant had a specific intent to commit a crime you must find that the defendant had a specific intent. You may not find specific intent from the mere fact that a defendant knew of his co-conspirators (sic) intent.

The trial court did not include the second portion of the requested language. The instructions did include the definitions of specific and general intent and that attempt was defined as having a specific intent to commit a crime. After the instructions had been read to the jury, the defense counsel objected to the omission of his requested language stating that he offered that instruction to the court since some of the possible verdicts in this case required specific intent. He stated he had gotten the instructions from a treatise which cited State v. West, 568 So.2d 1019 (La.1990). The trial court stated that he understood that the defense counsel was “being specific, but I’m doing it specifically and generally.” It should be noted that West, supra, is a first degree murder case. The defense counsel was correct in noting that the responsive verdict of the attempted armed robbery and the lesser included crimes would require specific intent. However, as worded, the requested jury instruction did not make that distinction and since armed | urobbery is only a general intent crime, the requested language could have been misleading.

In the instant case, the trial court appropriately instructed the jury on the law of principals and intent. In order to use the instructions requested by the defense, the trial court would have had to give additional instruction to limit and explain this additional instruction. The appellate counsel has not shown how the failure to include this additional clause has prejudiced Scroggins since he was found guilty of a general intent crime. This assignment lacks merit.

Abandoned Arguments

Lastly, Scroggins claims that the fact finder failed to give proper consideration to available evidence. However, appellate counsel has not briefed this issue. Assignments of error which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990). This assignment is deemed abandoned.

CONCLUSION

The evidence adduced, is sufficient to support the jury’s finding that the appellant is guilty of armed robbery. The other issues regarding trial errors lack merit. Thus, the conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Danny R. JACKSON.
    No. 05-KA-923.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied May 3, 2006.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Anne Wallis, Assistant District Attorneys, Appellate Counsel, Donald A. Rowan, Assistant District Attorney, Trial Counsel, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee, State of Louisiana.

      Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Danny R. Jackson.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

| ^Defendant, Danny R. Jackson, appeals his convictions and sentences on drug charges. For reasons that follow, we affirm.

Defendant was charged by bill of information with one count of possession with intent to distribute marijuana, in violation of La. R.S. 40:966 A, one count of possession with intent to distribute cocaine in violation of La. R.S. 40:667 A, and one count of being a convicted felon in possession of firearms in violation of La. R.S 14:34. Defendant entered a plea of not guilty at arraignment, and in due course was tried by a jury. Count three, relating to the possession of firearms was dismissed and defendant went to trial on the two remaining drug charges. At the conclusion of the trial, defendant was found guilty as charged as to both drug charges. He was sentenced to serve 20 years at hard labor on each count to run concurrently. On the same day, the State filed a multiple offender bill of information alleging that defendant is a second felony offender. Defendant denied |sthe allegations of the multiple offender bill of information. He filed a timely motion for appeal which was granted, and a motion to reconsider sentence, which was denied as untimely.

FACTS

The record shows that the investigation of the crimes which form the basis for the charges began with Chad Bridges, an informant. Bridges testified at trial that he informed police officers that he had bought cocaine in the past from defendant and co-defendant, McFarland (a female), at their residence on Park Manor Drive in Metair-ie. Bridges further testified that those officers arranged a drug buy with him. Officers gave Bridges money and told him to purchase cocaine from defendant again. Bridges explained that he subsequently called defendant, went over to his residence, and purchased cocaine from him for approximately $60.00.

Bridges further testified that he only bought cocaine from defendant that one time, but that he had purchased it at other times in the past from both defendant and McFarland simultaneously and one time from McFarland alone. He never saw defendant smoke marijuana, nor did he ever smell marijuana smoke or see any paraphernalia that would be used to smoke marijuana in defendant’s residence. He admitted to having a drug addiction and a conviction for possession of diazepam in 1996.

Sergeant Robert Gerdes of the Jefferson Parish Sheriffs Office (JPSO) testified that he prepared and executed a search warrant at 6500 Park Manor Drive. During that search, Sgt. Gerdes recovered approximately 600 grams of marijuana from inside a FUBU jacket inside the closet in the master bedroom, and some miscellaneous paperwork addressed to defendant and co-defendant at 6500 Park Manor Drive. Sgt. Gerdes also took photographs of evidence found inside the | residence including the marijuana located inside the FUBU jacket, size triple extra large, other packages of marijuana, a package of purple bags which the sergeant explained were often used to package drugs, invoices, four firearms, a large amount of ammunition, a cell phone, a safe, contents of the safe that included packaging material, marijuana, and cocaine, currency, and two digital scales.

In the course of that search, Sgt. Gerdes advised defendant of his rights. After-wards, defendant told the sergeant that there were only three ounces of marijuana inside the residence for his personal use. Defendant also admitted to Sgt. Gerdes he knew the weapons were inside the residence, but that he was holding them for someone else. When Sgt. Gerdes asked defendant who owned those weapons, defendant refused to answer. Sgt. Gerdes testified that, although he and the other officers searched defendant’s residence thoroughly, they could not find any drug paraphernalia such as rolling papers, pipes, or bongs, or any evidence to suggest that marijuana had been smoked in that residence. Sgt. Gerdes further testified that, when defendant was arrested, he had no drug paraphernalia on his person.

JPSO Detective Danny Jewel, who was also involved in the search, testified that he recovered a .380 pistol from a basket at the bottom of a bedside table next to the bed. He believed that the gun was fully loaded with eight rounds. He also recovered a fully loaded Taurus .22 pistol from defendant’s residence. He indicated that the FUBU jacket obviously belonged to defendant, because of its extra large size. Co-defendant, McFarland, was only about four feet tall. Two other firearms were also recovered from defendant’s residence.

Charles Krone, a JPSO forensic scientist who was qualified as an expert in the field of drug identification, testified that he examined a small Ziploc bag removed from defendant’s residence and found cocaine. He further testified that | she examined one Ziploc bag containing vegetative material, with a net weight of 79.85 grams, and another containing the same material, with a net weight of 642.98 grams. Both material tested positive for marijuana.

JPSO Lieutenant Bruce Harrison, who was qualified as an expert in the field of the use, packaging, distribution, and value of narcotics, testified that there were three factors the police looked at in narcotics cases to determine whether a person should be charged with simple possession or possession with intent to distribute: (1) the quantity of the drugs (in simple possession cases, he would expect the quantity to be very small); (2) the manner in which the drugs are packaged, i.e., for personal consumption or retail sale; and (3) the value. Lt. Harrison explained that, in simple possession cases, he also looked for user paraphernalia because, if that person was a user, he would have drug paraphernalia on his person, in his residence, and/or in his vehicle. The lieutenant explained that people who used marijuana had the smell of smoke in their clothes, drapes, and/or mattresses. He further testified that if he did not see any user paraphernalia and there was no marijuana odor, he would conclude that that person did not use marijuana.

Lt. Harrison explained that in possession with intent to distribute cases, he also looked for additional packaging material; communications devices (used by drug dealers so they could communicate with their customers), a log book (used by drug dealers to record how much they took in and who owed them money), scales (used by drug dealers to weigh drugs), some type of assets such as currency, electronics equipment, nice homes and cars, and weapons (used by drug dealers to protect themselves from thieves and the police).

Lt. Harrison testified that, in this case, the street value of the approximately one- and-a-half pounds of marijuana recovered was approximately $1,100.00 to $1,400.00. It was his opinion that that value was not consistent with personal use. | ^After considering the State’s evidence, Lt. Harrison opined that this was a possession with intent to distribute case.

After the State rested, defendant testified that he used marijuana every day, all day, except when he was working. He explained that, on the days he was working, he would smoke marijuana before work, during his break, and after work, and that he kept the marijuana in his car. Defendant asserted that, at home, he would use different pipes he owned to smoke the marijuana, one of which was glass that looked like a vase that he kept stored in a shoebox, and another one that was wooden and needed assembling. He also asserted that he had another pipe that he kept on his key chain. He testified that he bought the marijuana that was found in his house for $500.00, that the marijuana was for his personal use, that it would take him approximately a month-and-a-half to smoke it, and that he bought a larger quantity because it was less expensive. Defendant denied selling drugs to anyone, and stated that he never had any intention to distribute the drugs.

Defendant further provided explanations regarding the evidence recovered from his house. He explained that he used the small plastic baggies to store jewelry and marijuana in, that he intended to use the large scale for a mail order service business but decided against it, and that the cell phone and the firearms (except for the old collectible German gun) belonged to McFarland. Defendant testified that he was an assistant mechanic at Tire Kingdom, that he worked fifty hours per week, and that he made $7.75 an hour plus commission. He pointed out that he owned a 1991 Caprice Classic worth approximately $1,300.00, and that he did not own a house. Defendant testified that he pled guilty to aggravated battery in 1996.

Defendant asserted that Bridges was lying when he said that he bought cocaine from him, and that he did not know why Bridges did so. He remembered ^Bridges and his girlfriend, Kelly (who was McFarland’s friend), coming by the apartment one time, but he did not remember seeing Bridges on his own without McFarland being there. Defendant denied telling the police officers that he only had three ounces of marijuana in the apartment and that he was holding guns for someone else.

LAW

In brief to this court, defendant assigns two errors. In the first, he argues that the trial court erred in denying his motion in limine and allowing evidence of other criminal activity into evidence at trial. Defendant claims that the other crimes evidence was prejudicial, lacked sufficient probative value, and only served to depict him as a bad person. He specifically contends that the trial court erred by allowing Chad Bridges, the informant, to testify that he purchased drugs from defendant on prior occasions. Defendant argues that the informant’s trial testimony was contrary to the testimony of Officer Daniel Jewel at the motion hearing in that the informant told the officer that defendant was not at home and that he bought drugs from the co-defendant. Defendant notes that the State failed to provide him with written or reasonable notice of the other crimes evidence, and that no Prieur hearing was held outside the presence of the jury. He concludes by stating that the error in admitting this other crimes evidence was not harmless.

The State responds that the trial court did not err in allowing the introduction of other crimes evidence, as this evidence was relevant to prove an element of the offense, namely, defendant’s intent to distribute drugs. As such, the evidence was relevant for a purpose other than to show that defendant committed the charged offense, or that he was simply a bad person. The State notes that defendant did not complain of untimely notice in the court below and, therefore, he has waived any | Rargument with respect to that issue. Moreover, the State notes that a pre-trial Prieur hearing was held and that defendant was aware of the informant and evidence of the previous drug sales prior to trial. Alternatively, the State contends that even if notice was untimely, defendant was not prejudiced, as he failed to show how his trial strategy would have changed, and because there was evidence of intent to distribute other than the informant’s testimony. Finally, the State concludes that any error in the admission of the other crimes evidence was harmless.

The record shows that defendant filed several motions, including a motion for discovery requesting other crimes evidence. A few days later, the trial court ordered the State to provide defendant discovery. Defendant was subsequently appointed new counsel who filed several motions, including another motion for discovery. The trial court denied new counsel’s motion for discovery as moot, noting that discovery had been provided to prior defense counsel and was deemed satisfactory by her, and that moving counsel had “acknowledged receipt thereof.”

Subsequently, defendant’s motions to suppress the evidence and statements that defendant had filed along with the motion for discovery were heard. At that hearing, Officer Daniel Jewel testified that Sergeant Robert Gerdes had met with an untested informant who informed the officer that he had firsthand knowledge of narcotics distribution by a subject known as “Danny” and a female subject known as “Nell” at 6500 Park Manor. The officer further testified that the informant then took part in a controlled purchase. He explained that after the purchase, the informant turned over crack cocaine and informed him that “Nell” was the person who sold him the narcotics.

Sergeant Gerdes confirmed at that hearing that he had initial contact with the informant, and provided additional details regarding the search of defendant’s 19residence. It is noted that during the cross-examination of Sergeant Gerdes, defense counsel asked questions regarding the informant. At that point the prosecutor objected, arguing that the response “may tend to reveal the identity of the informant.” The trial judge overruled the objection and the questioning continued. After listening to the testimony and hearing arguments of counsel, the trial court denied defendant’s motions to suppress the evidence and the statements.

On the day of trial, defense counsel argued in an oral motion in limine (after the jury was chosen, but outside the jury’s presence) that any testimony related to alleged prior drug purchases by the informant from defendant was prohibited under La. C.E. art. 404, because the State was attempting to show that defendant acted in conformity with his past actions, and that such testimony would be prejudicial under La. C.E. art. 403. The prosecutor responded that any prejudicial effect was outweighed by the probative value, and that he should be allowed to use the informant’s testimony regarding his prior purchases of drugs from defendant to establish defendant’s intent to distribute in this case.

The prosecutor stated that he first informed the defense on the day of trial that Chad Bridges, the informant, would testify; however, defense counsel was first made aware of the informant’s existence when discovery was turned over, since the search warrant discussed the informant and the informant’s assertion that defendant and co-defendant (a female) were jointly involved in the retail distribution of cocaine. Defense counsel admitted that he had the information that the prosecutor described, but argued that the State did not provide him any information regarding the identity of the informant, nor whether the drug purchases involved marijuana or cocaine or both. Defense counsel also indicated that the last-minute notice he was given that the.State intended to introduce the testimony in question and his lack of information prior to trial was unfair.

hnAfter hearing extensive argument from counsel, the trial judge denied the motion, stating in pertinent part:

... [i]n this particular case, the evidence that they are seeking to introduce in my opinion goes not to show motive and opportunity and plan and lack of mistake, they go to show an element of the crime which is intent. For that reason, I’m not going to grant your motion.

Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. La. C.E. art. 404 B(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1065, writ denied, 02-0481 (La.3/14/03), 839 So.2d 26.

La. C.E. art. 404 B(l) provides:

Other crimes, wrongs, or acts. (l)Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In order for other crimes evidence to be admitted, certain requirements must be met. Under Prieur, the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. One of the factors enumerated in La. C.E. art. 404(B)(1) must be at issue, and have some independent relevance or 'be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La.1993); State v. Maise, 99-734 (La.App. 5 Cir. 3/22/00), 759 So.2d 884, 893, writ granted, 00-1158 (La.9/14/01), 795 So.2d 1219, judgment aff'd, 00-1158 (La.1/15/02), 805 So.2d 1141. Prieur further requires that the State show that the defendant committed the other crimes.

Additionally, the probative value of the extraneous evidence must outweigh its prejudicial effect. State v. Maise, supra, 759 So.2d at 894. The burden is on the defendant to show that he was prejudiced by the trial court’s admission of other crimes evidence. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159.

In the matter before us, defendant was charged with possession with intent to distribute cocaine and marijuana. Thus, the State was required to prove that defendant knowingly and intentionally possessed those drugs with the specific intent to distribute them. La. R.S. 40:966 A and 40:967 A; State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 442, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213; State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761, writ denied, 01-2269 (La.9/20/02), 825 So.2d 1156. As such, intent is an element of the crimes charged. It is noted that intent was also a contested issue at trial.

Although the State and the defense discussed Prieur evidence at the hearing on the motion in limine and in their briefs to this Court, Prieur was not the basis for the evidence being admitted. The trial judge denied the motion in limine because he concluded that the evidence was offered to establish an element of the crime, the intent to distribute drugs.

Previous attempts to distribute may be considered in establishing intent. State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709, writ denied, 02-0234 (La.1/31/03), 836 So.2d 58 citing State v. White, 98-91 (La.App. 5 Cir. 6/30/98), 715 So.2d 714, 717, writ denied, 98-2043 (La.11/25/98), 729 So.2d 577. Thus, evidence of defendant’s involvement in prior drug deliveries is clearly | ^an exception to the general prohibition against evidence of other crimes. Temple, supra.

Nevertheless, even if the evidence was improperly admitted, an improper reference to other acts evidence is subject to the harmless error rule. State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 852 (citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 101-102). The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Id.

In the instant case, we find there was ample evidence, other than the prior transactions, that defendant intended to distribute the drugs found in his residence. Lt. Bruce Harrison was qualified as an expert in the field of the use, packaging, distribution, and value of narcotics. Lt. Harrison indicated that, based on the quantity of drugs (one-and-a-half pounds), the value of the drugs seized ($1,100.00-$1,400.00), the fact that no drug user paraphernalia such as rolling papers or pipes were found in defendant’s residence or on his person, and the fact that items associated with being a drug dealer were found in defendant’s residence (scales, baggies, weapons, cell phone, currency), defendant was involved in distribution of narcotics and not possession for personal use. Additionally, the evidence presented at trial established that the odor of marijuana was not present in defendant’s residence or on his clothing.

In light of the foregoing, we find that the trial court did not err in denying defendant’s motion in limine to exclude other crimes evidence.

In the second assignment of error, defendant argues that his original sentences are excessive. After conviction and sentence on the drug charges that are the focus of this appeal, defendant was found to be a second felony offender. Accordingly, the trial court vacated the original sentence on count 2, and sentenced 11sdefendant to imprisonment at hard labor for 35 years to be served concurrently with the sentence on count 1. Although the multiple offender proceeding did not affect the sentence on count 1, it did affect the sentence on count 2. This renders this issue moot. State v. Hanson, 00-1168 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45.

Defendant requests an error patent review. This Court' routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. That review reveals no errors patent which would require corrective action in this case.

For the foregoing reasons we affirm the sentences and convictions in this matter.

AFFIRMED.

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


text:
    Tina Fremin, Wife of/and Henry FREMIN v. Norma Cabral, Wife of/and Steven CABRAL.
    No. 05-CA-932.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied May 3, 2006.
    Sidney J. Angelle, Brandt J. Cacamo, New Orleans, Louisiana, for Defendant/Appellant.
    David E. Walle, Michael F. Bollman, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|zNorma and Steven Cabral (Cabrals), appeal a judgment of the trial court that granted a Motion for Summary Judgment filed by third-party defendant, Audubon Insurance Company (Audubon). For reasons that follow, we reverse.

The underlying action arises from a dispute between neighbors that allegedly became violent. The Fremins filed a petition for injunctive relief and damages alleging that their neighbors, Norma and Steven Cabral (Cabrals), “attacked” Henry Fre-min. According to the petition, there has been strife between the families for several years caused by Henry Fremin parking his Entergy bucket truck on the street. The Fremins allege that Steven Cabral hit Henry Fremin with his fists, and struck him on the back of the head with a brick. It is also alleged that Steven Cabral successfully encouraged his eleven-year-old daughter to participate in the attack.

1 sThe trial court issued a temporary restraining order in favor of the Fremins, and ultimately a preliminary injunction, preventing the Cabrals from going within twenty-five feet of the Fremins or any of their property. The Cabrals filed an answer denying the allegations made by the Fremins, and a reconventional demand asserting that the Fremins cursed and intimidated their minor daughter when she was alone at home.

The reconventional demand presents the Cabrals’ view of the fight between the two families. It is alleged that the Fremins accused the Cabrals’ daughter of throwing a rock at the Fremins’ car. Steven Cabral maintains that when he went outside to investigate the incident, Mrs. Fremin went into the Cabrals’ home and began hitting Mrs. Cabral with a telephone. Mrs. Fre-min wrestled Mrs. Cabral to the ground and continued hitting her in the face and kicking her in the stomach and legs. Although Mrs. Cabral was able to get free from Mrs. Fremin and run out of the house, Mrs. Fremin followed Mrs. Cabral and continued to beat her. Mrs. Cabral began to defend herself from the attack. According to the Cabrals, it was at this point that Mr. Fremin grabbed Mr. Cabral and put him in a “head lock.” Mr. Cabral had recently undergone neck surgery and was reluctant to fight back. The Cabrals’ daughter began screaming, “stop hitting my Daddy,” and jumped on Mr. Fremin’s back to help her father. Mr. Fremin threw the child off of his back and punched her. At this point, Mr. Cabral punched Mr. Fremin. The fight escalated.

The Fremins answered the reconven-tional demand with a general denial and re-asserted the facts in their original-petition.

The Cabrals filed a third party demand against their homeowner insurance carrier, Audubon Insurance Company (Audubon), for failure to provide a defense and indemnity in the action. Audubon answered the petition admitting it was the carrier for the Cabrals’ homeowner’s policy, but asserting the basis of the lawsuit l4was an intentional act specifically excluded by the terms of the policy. Subsequently, Audubon filed a motion for summary judgment on the same basis.

After a hearing, the trial court granted the motion for summary judgment in favor of Audubon, dismissing the Cabrals’ claims against Audubon. It is from that judgment that defendants, Steven and Norma Cabral, appeal.

At issue in this appeal is whether the exclusionary clause for intentional acts of the insured in the insurance policy precludes the Cabrals from coverage, and by extension, precludes a defense to the suit filed by the Fremins. The Audubon policy provides that, when “a claim is made or a suit is brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies,” it will “(p)rovide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.” Audubon asserts the claim made against the Cabrals in this suit is an excluded intentional act and is not an ‘occurrence’ to which coverage under the policy applies.

The exclusionary clause used as the basis of Audubon’s argument reads as follows;

1. COVERAGE E — Personal Liability and Coverage F- — Medical Payments to Others do not apply to ‘bodily injury’ or ‘property damage’:
a. Which is expected or intended by one or more ‘insureds’ even if the ‘bodily injury’ or ‘property damage’:
(1) Is of a different kind, quality, or degree than initially expected or intended; or
(2) Is sustained by a different person, entity, real or personal property, than initially expected or intended.

The clause in the policy continues to provide that;

| ¡-.However, this Exclusion La. does not apply to ‘bodily injury’ resulting from the use of reasonable force by one or more ‘insureds’ to protect persons or property.

(emphasis ours)

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). Appellate courts review summary judgment de ■ novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385, 387. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. art. 966(A)(2). Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

As explained by the Louisiana Supreme Court;

.The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties. Obviously, the initial determination of the parties’ intent is found in the insurance policy itself. In analyzing a policy provision, the words, often being terms of art, must be given their technical meaning. When those technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written.
Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, 123-124; rehearing granted for correction only, 00-0947 (La.3/16/01), 782 So.2d 573.

In the matter before us the meaning of the relevant clauses in the insurance contract is clear. Intentional acts are not covered, unless they are performed to defend person or property.

The Cabrals argue that the exclusion does not apply because their actions were defensive in nature. They argue they were protecting themselves and their | ^property from the aggression of the Fre-mins, making the exclusion for intentional acts inapplicable.

Audubon argues that the underlying suit seeks damages for injuries resulting from the intentional batteries committed by the Cabrals. Audubon further argues that there are “no allegations in the Fremin petition that the Cabrals were defending themselves.” Therefore, Audubon reasons that the exclusion for intentional actions is applicable.

We are not persuaded by Audubon’s argument and reasoning. It is unlikely that the Fremins, in a petition for damages caused by an attack, would allege the attackers were acting in self defense. The answer and reconventional demand filed by the Cabrals must also be considered in deciding whether a material issue of fact remains to be decided by the trier of fact. The narrative in the reeonventional demand contradicts the presentation of facts set forth in the original petition, and asserts that the Cabrals acted in self defense. These are factual issues material to the decision of whether the exclusionary clause is applicable. Therefore, we find a summary judgment releasing Audubon from the suit at this point is inappropriate, and the trial court erred in rendering judgment. We remand the 'matter to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.


author: SULLIVAN, Judge. SAUNDERS, J.,

text:
    Herbert P. RICHARD and Bridget Richard v. METRO BINGO OF LAFAYETTE, INC., et al.
    No. CW 05-293.
    Court of Appeal of Louisiana, Third Circuit.
    March 29, 2006.

      Melvin A. Eiden, Rabalais, Hanna & Hebert, Lafayette, Louisiana, for Defendants/Appellants Metro Bingo of Lafayette, Inc., Western World Insurance Company.
    Robert M. Kallam, Jennifer A. Wells, Jonathan L. Woods, Preis, Kraft & Roy, Lafayette, Louisiana, for Defendants/Ap-pellees Lafayette Athletic Association of the Deaf, Inc., Alea London Limited.
    Allen R. Ingram, Lafayette, Louisiana, for Plaintiffs Herbert P. Richard, Bridget Richard.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

_JjAll Defendants in this slip-and-fall litigation filed .motions for summary judgment. The motion filed by Defendants, Metro Bingo of Lafayette (Metro Bingo) and its insurer, Western World Insurance Company (Western World), was denied, while the motion for summary judgment filed by Defendants, Lafayette Athletic Association of the Deaf (LAAD) and its insurer, Alea London Limited (Alea), was granted. Metro Bingo filed a writ application, seeking reversal of the trial court’s denial of its motion for summary judgment, and appealed the trial court’s grant of summary judgment in favor of LAAD and Alea. The two matters were consolidated by order of this court. For the following reasons, the writ application is denied, and the judgments of the trial court are affirmed.

Facts

On Sunday, June 15, 2003, Herbert Richard drove his mother to Metro Bingo in Lafayette for her to play bingo. He escorted her into the establishment, carrying her bingo supplies, which he placed upon the table where she was going to sit. While he was in the establishment, one of his feet slipped in water on the floor, and he fell, hitting the floor. Mr. Richard’s back and right leg were injured in the incident. All parties agree this occurred at approximately 1:15 p.m.

Metro Bingo owns the building where Mr. Richard was injured. It leases the building to various charitable and nonprofit organizations to operate bingo games; LAAD is one of its lessees. Metro Bingo prepared the lease with LAAD. It is responsible for maintenance of the leased premises, and its manager is in charge of the building at all times. The manager controls access to the building; he opens the doors which allows the public to enter the building for bingo games.

|gThe day of Mr. Richard’s accident LAAD had two leases with Metro Bingo. One lease was for the period from 10:30 a.m. to 2:30 p.m. “every Tuesday of each week during the years stated.” The second lease was for the period from 1:30 p.m. to 5:30 p.m. on Sunday, June 15, 2003. LAAD’s rent is $675.00 per bingo session. On June 15, 2003, LAAD could not begin selling tickets until 1:30 p.m., or it would have been in violation of the charitable gaming license it was issued to operate bingo games. Its bingo games for that day did not begin until 2:30 p.m.; they were the first games of the day.

Mr. Richard and his wife filed suit against Metro Bingo and LAAD and their insurers, seeking damages. Metro Bingo and Western World filed a cross claim against LAAD and Alea for defense and indemnity. Metro Bingo alleged that, pursuant to its lease agreement with LAAD and the Additional Insured endorsement of an insurance policy issued in favor of LAAD by Alea, LAAD and Alea owed it indemnity for the Richards’ claims and for its own defense costs and attorney fees.

LAAD and Alea filed a motion for summary judgment, asserting that Alea’s policy did not provide coverage to Metro Bingo and that LAAD was not liable for the Richards’ damages. Metro Bingo and Western World then filed a motion for summary judgment, asserting that Alea owes it a defense and indemnity. The trial court granted LAAD and Alea’s motion for summary judgment but denied Metro Bingo and Western World’s motion for summary judgment.

Standard of Review

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This | ¡¿nquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751, (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)).

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Discussion

In its writ and appeal, Metro Bingo argues the trial court erred in finding that it was not entitled to additional insured status and coverage under the Alea policy for |4the claims of Mr. Richard and that Alea did not have a duty to defend it in this litigation. In its appeal, Metro Bingo contends the trial court erred in determining that LAAD did not have independent or concurrent tort liability and that it was not an additional insured under Alea’s policy.

LAAD’s Liability and Alea’s Coverage

The trial court determined that LAAD had no liability herein and that Metro Bingo was not an additional insured under Alea’s policy. Metro Bingo argues that, pursuant to the terms of LAAD’s lease and Alea’s policy, Mr. Richard’s incident “arises out of’ LAAD’s use of the premises; therefore, LAAD has liability for the Richards’ claims, and it is an Additional Insured under Alea’s policy.

Metro Bingo’s lease agreement obligates LAAD as follows:

Lessee has inspected the leased premises thoroughly and agrees that the bingo hall is suitably equipped and in safe and proper condition for the safe conduct of Lessee’s bingo sessions and agrees to provide Lessor with certificates of insurance in an insurance company carrying Comprehensive General Liability with $500,000.00 and which names Lessor as an additional insured, and further which policy will hold Lessor harmless against any and all claims for bodily injury and/or property damage, including cost of attorney fees for defending and all claims arising out of Lessee’s occupation of the Leased premises and the conduct of their bingo sessions.

LAAD purchased a policy from Alea which named Metro Bingo as an Additional Insured. The Additional Insured endorsement reads:

“WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions:

This insurance does not apply to:

1. Any “occurrence” which takes place after you cease to be a tenant in that premises.
|b2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule.

The trial court determined that because LAAD’s lease with Metro Bingo did not begin until 1:30 p.m. and Mr. Richard was injured at 1:15 p.m., no lease was in effect, and Mr. Richard’s arriving early to drop off his mother for a bingo game did not “aris[e] out of’ LAAD’s use of the premises; therefore, LAAD has no liability for the Richards’ damages and Alea’s policy did not provide coverage to Metro Bingo for the accident.

Metro Bingo focuses its argument on the “arising out of’ phrase in the Additional Insured provision. It asserts that because Mr. Richard was at the Metro Bingo facility to bring his mother to the bingo games operated by LAAD, his accident arises out of LAAD’s activities on the premises, even though his accident occurred before LAAD was lessee of the premises. It also argues that, if Alea wanted to limit its coverage under the Additional Insured endorsement to LAAD’s four-hour lease period, it could have but did not.

Metro Bingo cites three cases in support of its position. The first is a workers’ compensation case in which it was determined that an employee’s fall in her employer’s parking lot fifteen minutes before her shift began was an accident arising out of her employment and covered by workers’ compensation. Francisco v. Harris Mgmt. Co., 94-126 (La.App. 3 Cir. 10/05/94), 643 So.2d 386. In Francisco, this court observed that an accident on the employer’s premises before the employee’s shift began was an exception to the general rule that an employee is not in the course and scope of employment and her injuries do not arise out of her employment when | ^traveling to and from work. The other two cases cited do not involve a temporal element; therefore, we find them inapplicable to the facts herein.

Metro Bingo seeks to extend the broad interpretation of workers’ compensation law to contract law. However, leases and insurance policies are contracts between the parties and have the effect of law between them. La.Civ.Code arts. 9-13 and 2045-2057. “The intention of the parties is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety.” Fleniken v. Entergy Corp., 99-3023, 99-3024, p. 6 (La.App. 1 Cir. 2/16/01), 790 So.2d 64, 68, writs denied, 01-1269, 01-1295 (La.6/15/01), 793 So.2d 1250, 1252. <fWhen the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy- piust be given.” Robinson v. Heard, 01-1697, p. 3 (La.2/26/02), 809 So.2d 943, 945.

The lease requires LAAD to purchase insurance to indemnify and hold Metro Bingo harmless against claims for bodily injury; it does not obligate • LAAD to indemnify and hold Metro Bingo harmless. The lease also does not obligate or. transfer responsibility for maintenance of the premises or liability for the premises, to LAAD.

The-Additional Insured endorsement in Alea’s policy contemplates the existence of a lease for there to be coverage, providing in part: “WHO IS AN INSURED ... is amended to include [Metro Bingo] but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you.” No lease was in effect at the -time of Mr. Richard’s accident. Accordingly, we- find no error with 17the trial court’s conclusion that Metro Bingo was not an additional .insured under Alea’s policy.

We also find no error with the trial court’s conclusion that LAAD has no liability for the Richards’ claims. As the "trial court observed, if LAAD’s liability -under the lease is extended béyond the terms of the lease based on the “arising out of’ phrase, the question becomes where does its liability end. Metro Bingo prepared the lease and controlled LAAD’s and the public’s access, to its premises at all times. It allowed LAAD.employees and members of the public - onto its premises - before LAAD’s lease became effective. LAAD was not responsible for maintenance of the premises under the lease. We agree with the trial court that there must be a bright line to determine when LAAD’s liability-under the lease began and ended and that bright line is the lease itself.

Alea’s Duty to Defend

Metro Bingo also urges that the trial court erred in denying its claim for Alea to provide it a defense. In American Home Assurance Co. v. Czarniecki, 255 La. 251, 269, 230 So.2d 253, 259 (1969), the supreme court outlined an insurer’s duty to defend, explaining:

Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App.1967).
Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining' whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. Benoit v. Fuselier, ibid.

|sThe only evidence that can be considered in a duty to defend claim is the petition and the policy. Czarniecki, 255 La. 251, 230 So.2d 253. Therefore, we can only consider the allegations in the Richards’ petition and the Additional Insured endorsement of Alea’s policy. An insurer has a duty to defend “whenever the pleadings against its insured discloses even a possibility of liability under the policy.” Steptore v. Masco Const. Co. Inc., 93-2064, pp. 8-9 (La.8/18/94), 643 So.2d 1213, 1218.

The Richards’ petition states in pertinent part:

Petitioners aver that the negligence of the defendants, METRO BINGO OF LAFAYETTE, INC., WESTERN WORLD INSURANCE COMPANY, LAFAYETTE ATHLETIC ASSOCIATION OF THE DEAF, INC., ALEA LONDON LIMITED, and/or their agents, employees, servants and representatives, either individually or collectively, consists of the following, though non-exclusive acts of omission or commission:
1) having knowledge of the vice or defect in the roof of the building in question;
2) having knowledge that the roof of the building in question was leaking and thereafter failing to adequately maintain and/or make repairs to it, thereby placing patrons in a dangerous situation;
3) being inattentive in their responsibilities to provide a safe environment to patrons of the bingo hall in question;
4) all other acts of omissions or commission constituting negligence, which will be proven at a trial of this matter.

As previously discussed, Alea’s Additional Insured endorsement contemplates the existence of a lease. The Richards do not allege the existence of a lease. And as previously discussed, LAAD’s lease for June 15, 2003, did not begin until after Mr. Richard fell. Thus, assuming all of the above allegations to be true, there is no | gbasis for coverage under Alea’s policy. The trial court’s denial of Metro Bingo’s demand for a defense by Alea was not error.

Disposition

For the foregoing reasons, the trial court’s grant of the motion for summary judgment filed by LAAD and Alea and its denial of the motion for summary judgment filed by Metro Bingo and Western World are affirmed. All costs of this appeal are assessed to Metro Bingo and Western World.

WRIT DENIED; JUDGMENTS AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

11 DISSENT

I respectfully disagree with the majority. I believe that the language “with the respect to liability arising out of the ... use ...” is broader than the interpretation given by the majority and cannot be limited to a four hour period as those things which happen prior to or after the four hour period may give rise to liability. This is clear as, the exclusionary language stating that “any occurrence which takes place after you cease to be a tenant in that premises” does not relieve Metro Bingo of liability as the tenancy does not end until 5:30 and the party injured at 1:15 was not injured “after you cease to be a tenant in that premises[.]” Accordingly, the broad language of liability “arising out of ...” would apply, not the specific exclusionary language, as the injured party went to play bingo and would not have been on the premises otherwise.

Furthermore, moving to the second issue as to whether a defense is owed I note the language that “whenever the pleadings against its insured disclose even a possibility of liability under the policy[.]” Based upon this language, I believe that coverage is owed as there is a very strong possibility of liability and, in fact, I contend that liability is clear.


text:
    Herbert P. RICHARD and Bridget Richard v. METRO BINGO OF LAFAYETTE, INC., et al.
    No. 05-1304.
    Court of Appeal of Louisiana, Third Circuit.
    March 29, 2006.
    Melvin A. Eiden, Rabalais, Hanna & Hebert, Lafayette, Louisiana, for Defendants/Appellants, Metro Bingo of Lafayette, Inc., Western World Insurance Company.
    Robert M. Kallam, Jennifer A. Wells, Jonathan L. Woods, Preis, Kraft & Roy, Lafayette, Louisiana, for Defendants/Ap-pellees, Lafayette Athletic Association of the Deaf, Inc., Alea London Limited.
    Allen R. Ingram, Attorney at Law, Lafayette, Louisiana, for Plaintiffs, Herbert P. Richard, Bridget Richard.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

hFor the reasons discussed in the companion case in this consolidated matter, Richard v. Metro Bingo of Lafayette, Inc., 05-293 (La.App. 3 Cir. 3/29/06), 926 So.2d 83, the trial court’s grant of the motion for summary judgment filed by LAAD and Alea and its denial of the motion for summary judgment filed by Metro Bingo and Western World are affirmed. All costs of this appeal are assessed to Metro Bingo and Western World.

WRIT DENIED; JUDGMENTS AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

I,DISSENT

I respectfully disagree with the majority. I believe that the language “with the respect to liability arising out of the ... use ...” is broader than the interpretation given by the majority and cannot be limited to a four hour period as those things which happen prior to or after the four hour period may give rise to liability. This is clear as, the exclusionary language stating that “any occurrence which takes place after you cease to be a tenant in that premises” does not relieve Metro Bingo of liability as the tenancy does not end until 5:30 and the party injured at 1:15 was not injured “after you cease to be a tenant in that premises!!.]” Accordingly, the broad language of liability “arising out of ...” would apply, not the specific exclusionary language, as the injured party went to play bingo and would not have been on the premises otherwise.

Furthermore, moving to the second issue as to whether a defense is owed I note the language that “whenever the pleadings against its insured disclose even a possibility of liability under the policy!.]” Based upon this language, I believe that coverage is owed as there is a very strong possibility of liability and, in fact, I contend that liability is clear.


author: SAUNDERS, Judge.

text:
    Debbie B. STEWART v. RHEEM MANUFACTURING CO., et al.
    No. CA 05-726.
    Court of Appeal of Louisiana, Third Circuit.
    March 29, 2006.

      Henry Adolph Bernard, Jr., William Martin Hudson, III, Lawrence Edward Marino, Kimberly M. Bernard, Oats & Hudson, Lafayette, LA, Edgar Dean Gankendorff, Provosty, Sadler, et al, New Orleans, LA, Lawrence Jerome Goldstein, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants, Ryan Stewart, Kelly Stewart Shreve, Kyra Stewart, Debbie B. Stewart.
    Michael Gonzales Durand, Timothy John McNamara, Brent Gerard Sonnier, One-bane Law Firm, Lafayette, LA, Michael Wayne Landry, Law Offices of Harold Toscano, Lake Charles, LA, for Defendant/Appellee, Duracell International, Inc.
    L. Albert Forrest, Attorney at Law, New Iberia, LA, for Defendants/Appellees, Glenn Keith Menard State Farm Fire & Casualty Co.
    Paul Joseph Hebert, Ottinger Hebert, Lafayette, LA, for Defendant/Appellee, Keith Menard.
    Ralph Shelton Hubbard, III, Attorney at Law, New Orleans, LA, Celeste D. Elliott, Lugenbuhl, Wheaton, Peck, Rankin, & Hubbard, New Orleans, LA, Carolyn Bate-man Hennesy, Attorney at Law, New Orleans, LA, for Defendani/Appellee, Travelers Indemnity Company of Illinois.
    J. Reginald Keogh, Stephen R. Wilson, Keogh, Cox, & Wilson, Baton Rouge, LA, Stephen M. Whitlow, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Rheem Manufacturing Co.
    Bruce C. Waltzer and Joel Waltzer, Pro se.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

110ccupants of a leased home brought suit to recover damages for exposure to polychlorinated biphenyls (hereinafter referred to as “PCBs”) occurring when a capacitor in the home’s air conditioning unit ruptured. The homeowner, unit manufacturer, and capacitor manufacturer filed motions for summary judgment. The homeowner’s motion was denied and the manufacturers’ motions were granted on the basis of federal preemption. Plaintiffs appealed the granting of those motions. We reverse.

FACTS AND PROCEDURAL HISTORY

Debbie Stewart and her three children were living in a home leased from Keith Menard on May 20, 1990. On that date, the Stewarts smelled a burning odor and noticed that the home’s air conditioning unit, manufactured by Rheem Manufacturing Company (hereinafter referred to as “Rheem”), was not functioning properly. A serviceman was called and he determined that the unit’s capacitor, manufactured by defendant Duracell’s predecessor in interest Mallory Capacitor Company (hereinafter referred to as “Duracell”), ruptured and burned releasing PCBs. The Stewarts breathed the PCBs and allegedly suffered adverse health effects as a result.

The Stewarts filed suit and Duracell, Rheem, and Mr. Menard filed motions for summary judgment. The trial court denied Mr. Menard’s motion but granted those by Duracell and Rheem concluding that federal law, namely the Toxic Substances Control Act (TSCA), preempted the Stewarts’ claims as to those defendants. The Stewarts then filed this devol-utive appeal.

ASSIGNMENTS OF ERROR

1) The trial court erred in finding that the TSCA preempts the Stewarts’ suit for personal injuries under the Louisiana Products Liability Act (LPLA).
|⅞2) The trial court erred in finding that the leaking capacitor at issue qualified as “totally enclosed” under the TSCA regulations.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary judgment. Alfred Palma, Inc., v. Crane Servs. Inc., 03-0614 (La.App. 3 Cir. 11/5/03), 858 So.2d 772. “It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Id. at 774 (quoting Shelton v. Standard/700 Assocs., 01-507, p. 5 (La.10/16/01), 798 So.2d 60, 64-65); La.Code Civ.P. art. 966.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, plaintiffs argue that the trial court erred in finding that their claims against Duracell and Rheem are preempted by the TSCA. The preemptive language upon which the trial court based its ruling is found in 15 U.S.C.A. 2617. That statute provides that:

(a) Effect on State law
(1) Except as provided in paragraph (2), nothing in this chapter shall affect the authority of any State or political subdivision of a State to establish or continue in effect regulation of any chemical substance, mixture, or article containing a chemical substance or mixture.
(2) Except as provided in subsection (b) of this section—
(A) if the Administrator requires by a rule promulgated under section 2603 of this title the testing of a chemical substance or mixture, no State or political subdivision may, after the effective date of such rule, establish or continue in effect a requirement for the testing of such substance or mixture for purposes similar to those for which testing is required under such rule; and
I S(B) if the Administrator prescribes a rule or order under section 260⅛ or 2605 of this title (other than a rule imposing a requirement described in subsection (a)(6) of section 2605 of this title) which is applicable to a chemical substance or mixture, and which is designed to protect against a risk of injury to health or the environment associated with such substance or mixture, no State or political subdivision of a State may, after the effective date of such requirement, establish or continue in effect, any requirement which is applicable to such substance or mixture, or an article containing such substance or mixture, and which is designed to protect against such risk unless such requirement (i) is identical to the requirement prescribed by The Administrator, (ii) is adopted under the authority of the Clean Air Act [1*2 U.S.C.A. § 71*01 et seq.] or any other Federal law, or (iii) prohibits the use of such substance or mixture in such State or political subdivision (other than its use in the manufacture or processing of other substances or mixtures).
(b) Exemption
Upon application of a State or political subdivision of a State the Administrator may by rule exempt from subsection (a)(2) of this section, under such conditions as may be prescribed in such rule, a requirement of such State or political subdivision designed to protect against a risk of injury to health or the environment associated with a chemical substance, mixture, or article containing a chemical substance or mixture if—
(1) compliance with the requirement would not cause the manufacturing, processing, distribution in commerce, or use of the substance, mixture, or article to be in violation of the applicable requirement under this chapter described in subsection (a)(2) of this section, and
(2) the State or political subdivision requirement (A) provides a significantly higher degree of protection from such risk than the requirement under this chapter described in subsection (a)(2) of this section and (B) does not, through difficulties in marketing, distribution, or other factors, unduly burden interstate commerce.

14Because this case does not involve creation of testing requirements, 15 U.S.C.A. 2617(a)(2)(A) is inapplicable. Accordingly, preemption must be based upon 15 U.S.C.A. 2617(a)(2)(B), which requires that two conditions be satisfied. The first is that there be a regulation imposed by the Environmental Protection Agency (EPA) that binds defendants. 15 U.S.C.A. 2617(a)(2)(B). The second condition is that the state action constitutes a non-exempt requirement designed to protect against a risk of injury.

Plaintiffs argue that, because there was no requirement that PCBs be used in the capacitor, the first condition is not satisfied. We agree that the first condition is not satisfied, albeit for different reasons. The trial court noted that, while their manufacture was banned in 1976, PCBs could be distributed if done so in a totally enclosed manner and deemed this to be a rule or order under 15 U.S.C.A. 2605(e)(2)(B). A totally enclosed manner is defined by 15 U.S.C.A. 2605(e)(2)(C) as “any manner which will ensure that any exposure of human beings or the environment to a polychlorinated biphenyl will be insignificant as determined by the Administrator by rule.” 15 U.S.C.A. 2605(e)(2)(C). Significant exposure is defined as:

any exposure of human beings or the environment to PCBs, as measured or detected by any scientifically acceptable analytical method, may be significant, depending on such factors as the quantity of PCBs involved in the exposure, the likelihood of exposure to humans and the environment, and the effect of exposure. For purposes of determining which PCB Items are totally enclosed, pursuant to section 6(e)(2)(C) of TSCA, since exposure to such Items may be significant, the Administrator further finds that a totally enclosed manner is a manner which results in no exposure to humans or the environment to PCBs.

|fi40 C.F.R. 761.20. A reading of these statutes indicates that the EPA regulates the permissible risk of exposure to PCBs, not the specific manner in which that risk is minimized. There are no requirements, such as design or use of particular materials, provided in the regulations. The lack of such language indicates that the act does not seek to regulate these considerations, leaving that task to the states. Accordingly, we conclude that preemption in that regard is not intended.

Rather, if, despite the lack of language on the issue, these statutes are construed as regulating the same behavior covered by the LPLA, they must also be deemed to be in harmony with that same act. Indeed, the TSCA specifically allows a state to prohibit the use of PCBs. If a state may prohibit their use, it must also be allowed to govern their permissible use given the lack of specific federal regulations on the subject.

We believe that Congress recognized a serious problem and attempted to remedy it in an economically feasible manner without abrogating traditional state powers. Federal lawmakers, recognizing the extremely harmful effect PCBs have on humans and the environment, banned their manufacture. These effects, however, were weighed against the economic realities facing those who had already manufactured PCBs and a balance was struck. The previously manufactured PCBs could be distributed but only in a manner that would not allow them to be exposed to humans or the environment. While the legislature attempted to avoid an excessively onerous financial burden on those who previously manufactured these chemicals, it clearly sought the elimination of the risk of PCB exposure. No time limit was placed upon this protection.

lRThe trial court concluded that the intent of the act was not to hold manufacturers indefinitely liable. It was further determined that the fact that the capacitor did not leak for twelve years equates to compliance with the totally enclosed requirement. While we do not hold it was intended that PCB containing items outlast the great pyramids, we believe that it is reasonable to expect that such component parts should not leak for the life of the unit into which they are incorporated. This interpretation is supported by the definitions of significant risk and totally enclosed as well as the permissible state ban on PCB usage. The part at issue here leaked and exposed the Stewarts and the environment to PCBs. This is precisely the type of injury the TSCA seeks to avoid. That act, however, does not specifically provide for the means of accomplishing that end. Those means, therefore, must be governed by the LPLA. Accordingly, we find that plaintiffs’ claims are not preempted and reverse the trial court’s judgment. Because of this finding, plaintiffs’ second assignment of error is rendered moot at this stage of the proceedings.

CONCLUSION

The judgment of the trial court is reversed and the case is remanded. Costs of this appeal are assessed to defendants.

REVERSED AND REMANDED.


author: GREMILLION, Judge.

text:
    Julie Simon ALBARADO, et al. v. STATE FARM MUTUAL AUTO INS. CO., et al.
    No. CA 05-1084.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Gregory B. Dean, Dean Law Office, Opelousas, LA, for Plaintiffs/Appellants Julie Simon Albarado, Barry J. Albarado.
    Jackson B. Bolinger, Lafayette, LA, for Defendants/Appellees State Farm Mutual Auto Ins. Co., Jared C. Wooten.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

h The plaintiffs, Julie and Barry Albara-do, appeal the trial court’s grant of summary judgment in favor of the defendants, Jared C. Wooten and State Farm Mutual Automobile Insurance Company, finding that the Albarados’ claims against the defendants had been settled pursuant to an Agreement and Release executed by Julie and State Farm on December 3, 2002. For the following reasons, we reverse and remand for further proceedings.

FACTS

Julie suffered an injury to her neck after the vehicle Barry was driving was rear-ended on October 25, 2002. The accident occurred after Wooten’s vehicle rear-ended a vehicle stopped in traffic. This led to a chain reaction of -three vehicles hitting the vehicles in front of them. The Albarados’ vehicle was the fourth vehicle impacted. Julie was treated at an émergency room, but was released after x-rays were taken. She sought follow-up treatment from her family physician and a chiropractor and eventually underwent four to six weeks of physical therapy for probable pulled muscles in her neck.

On December 3, 2002, Julie met with Heath Mills, an adjustor for State Farm, Wooten’s automobile insurer. As a result of this meeting, she signed a “Release,” whereby she settled her claims with Wooten and State Farm in exchange for the sum of $8,291.34. A second document, entitled “Agreement and Release,” was also purportedly executed by the parties on December 3, 2002. This document which superceded the first agreement, settled Julie’s claims for $8,291.34 and required Wooten and State Farm to pay all reasonable and necessary medical | ¡¡expenses not previously paid up to the amount of $3000. Shortly after the agreement was reached, Julie learned that she had suffered two herniated discs in her neck as a result of the accident.

On April 28, 2003, the Albarados filed suit against Wooten and State Farm alleging that Julie’s prior settlement agreements were null and void as neither party was aware of the seriousness of her injuries at the time the agreement was reached. In response, Wooten and State Farm filed an answer and request for a jury trial, as well as a motion for summary judgment arguing Julie’s claims were settled. The Albarados filed a motion for summary judgment alleging facts calling into question the validity of the two documents. Following a hearing on the motions, the trial court granted summary judgment in favor of Wooten and State Farm finding that Julie had compromised her claim via the two documents. It denied the Albara-dos’ motion for summary judgment and their request for new trial. This appeal by the Albarados followed.

ISSUES

On appeal, the Albarados argue the correctness of the trial court’s judgment in favor of Wooten and State Farm.

SUMMARY JUDGMENT

The standard of review pertaining to summary judgment is well established, as provided by La.Code Civ.P. art. 966. Thus, an appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the | .-¡movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). Accordingly, we will undertake a de novo review of the matter.

After reviewing the record and the evidence, we find that a settlement was reached between Julie and State Farm on December 3, 2002, with the execution of the “Release.” However, we find that a novation of this obligation occurred when the parties executed the “Agreement and Release” shortly thereafter. Although the “Agreement and Release” is also dated December 3, 2002, both Julie and Mills testified that it was confected at a later date.

In Scott v. Bank of Coushatta, 512 So.2d 356 (La.1987), the supreme court explained that a novation occurs when a new obligation is substituted for an existing obligation which, in effect, extinguishes the prior obligation, citing La.Civ.Code art. 1879.

Planiol notes that every novation presupposes: (1) the existence of a debt to be extinguished; (2) the creation of a new debt; (3) a difference between the two successive obligations; (4) the will to extinguish the first; and (5) the capacity to dispose of the credit. Planiol, Traite Elementaire De Droit Civil 1 § 532 (1959). The extinguishing effect of the novation is comparable to that of the defense of payment. Id. at § 548.
A novation may never be presumed. La.Civ.Code Ann. art. 2190 (West 1952) [current art. 1880][.] Accordingly, the burden of proof for establishing a novation is on the person who asserts it.
The most important factor in determining whether a novation has been effected is the intent of the parties. Thus, a novation may occur where the intent of the parties, the character of the transaction, the facts and circumstances surrounding the transaction and the terms of the agreement reveal a desire to ef-feet a novation. “Although novation does not take place as a necessary consequence of a creditor’s taking a new note in substitution of one which he returns to the debtor, novation does take place in such a case if the circumstances surrounding the transaction show ... that the parties intended to extinguish the existing |4debt and to substitute a new one in its place.” White Co. v. Hammond Stage Lines, 180 La. 962, [971,] 158 So. 853, 356 (1934).

Id. at 360-61 (citations omitted).

Mills, testifying in deposition, stated that the second settlement agreement was reached after Julie contacted him concerning the need for further medical treatment for her neck. Sympathizing with her, he agreed to execute a medical release instead of a full and final release of her claim. This document, the “Agreement and Release,” paid her the same amount of damages, plus up to an additional $8000 for any medical expenses not previously paid. Once the “Agreement and Release” was signed, Mills testified that the original “Release” was no longer valid.

Considering this evidence, we find that all of the elements of a novation have been satisfied. The original “Release” existed which settled Julie’s claims. Her need for further medical treatment arose, so she and State Farm reached a second agreement; thus, the later “Agreement and Release” extinguished the obligations set out in the “Release.” Accordingly, we find that the “Agreement and Release” is the only settlement agreement existing between Julie and State Farm. We will now consider this document.

AGREEMENT AND RELEASE

Louisiana Civil Code Article 3071 provides that a “transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.” Article 3071 further provides that a compromise | Rmay either be in writing or be recited in open court and capable of being transcribed from the record of the proceedings. As a written document is contemplated, jurisprudence also requires that the documentation evidencing the agreement be signed by both parties. Felder v. Georgia Pac. Corp., 405 So.2d 521 (La.1981); Ocwen Fed. Bank, FSB v. Hawkins, 03-1622 (La.App. 1 Cir. 5/14/04), 879 So.2d 759.

After reviewing the evidence, we find that a genuine issue of material fact exists as to whether a valid compromise was executed. The “Agreement and Release” explains the terms of the compromise; it was signed by Julie; and was witnessed by Kathi Courts, a receptionist for State Farm. Also included on the document is a signature which purports to be that of Mills; however, he testified that he did not sign the document nor could he recall if he was present when it was signed by Julie. The record is devoid of evidence indicating who wrote Mills’ signature on the document. Thus, we find that the formalities for a valid compromise have not been met; thus, a genuine issue of material fact still exists. Accordingly, the trial court’s grant of summary judgment in favor of Wooten and State Farm is reversed and the matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed to the defendants-appellees, Jared C. Wooten and State Farm Mutual Automobile Insurance Company.

REVERSED AND REMANDED.