text:
    Anya N. URSIN, Linda Ursin, and Sean Long on behalf of his Minor Son, Shemar Long v. Michael E. RUSSELL, Indian River Transport Company, and Continental Casualty Company.
    No. 07-CA-859.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Samuel J. Accardo, Jr., Attorney at Law, LaPlace, Louisiana, for Plaintiff/Ap-pellees.
    Gregory W. Roniger, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ^Defendants appeal a trial court judgment awarding damages to plaintiffs in this personal injury case arising from a motor vehicle accident. For the reasons set forth below, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on December 30, 2005. Anya Ursin was operating her 1998 Honda Civic with her mother, Linda Ursin, as the front seat guest passenger and her one year old nephew, Shemar Long, in a car seat in the back seat. Anya was stopped at the intersection of U.S. 61 (known as Airline Hwy.) and LA 3188 (known as Belle Terre Blvd.) when her vehicle was struck from behind by a tractor/truck driven by Michael Russell while in the course and scope of his employment with Indian River Transport Company. On June 6, 2006, plaintiffs, Anya Ursin, Linda Ursin, and Sean Long, on behalf of |shis minor son, Shemar Long, filed suit against Michael Russell, Indian River Transport Company, and its insurer, Continental Casualty Company, seeking damages as a result of this accident.

Trial of this matter was held on May 14, 2007. At the beginning of trial, the parties made the following stipulations:

1) No claim exceeds the $50,000 threshold amount for a jury trial.
2) Defendants are liable for any damages caused by the accident; the driver, Michael Russell, was in the course and scope of his employment with Indian River Transport Company at the time of the accident; and the liability insurance policy provided by Continental Casualty Company has limits which are in excess of the jurisdictional stipulation that no claim exceeds $50,000.
3) The medical bills and reports for each plaintiff are authentic.

Although the parties stipulated to liability and the authenticity of plaintiffs’ medical bills and reports, defendants argued at trial that the accident was so minor that plaintiffs could not have suffered any damages as result of the accident.

At trial, Anya Ursin testified that she was driving her Honda Civic on December 30, 2005 with her mother, Linda Ursin, and nephew, Shemar Long, as guest passengers. She was stopped at a red light when they were suddenly struck from behind by an eighteen-wheeler. She stated that she had her foot on the brake and that she pushed the brake harder as her vehicle was being pushed forward by the truck. Anya identified her vehicle in photographs taken after the accident. She testified that in addition to the damage to the bumper shown in the photographs, she had “damage under the hood from me hitting on the brakes so hard and the car also being pushed with my foot on the brakes.” Anya asserted that 14the accident had more than a minor impact and that it caused her nephew’s car seat to “fly” into the back of her seat. She further stated that a harness strap on the car seat actually broke during the accident, but no pictures of the broken harness strap were taken and the car seat was later thrown away.

Anya testified that she went to the hospital via ambulance after the accident where she complained of neck and back pain, and she was advised to consult with her doctor. She stated that she was referred to Dr. Dale, a chiropractor, by her attorney, and she treated with him from January 12, 2006 to July 6, 2006, approximately six months, primarily for neck and back pain. She was treated three times per week at first, but then dropped down to two times per week. In the last month and a half of treatment, she usually went one time per week. Anya testified that during her six months of treatment, her pain was a seven or eight on a scale of one-to-ten, with ten being the worst. However, she also testified that she was not restricted from any type of activities during the time that she was experiencing pain as a result of the accident. She testified that as of the date of trial, she still had neck pain at times. Anya indicated that her medical bills totaled $3,325.00.

On cross-examination, Anya testified that in addition to the black mark on her bumper that can be seen in the photographs, her car had scratches and the undercarriage bumper strap was broken as a result of the accident. Anya admitted that her medical records of treatment with Dr. Dale indicate that she and her mother had mostly the same soft tissue injury complaints and that she and her mother stopped treatment within one day of each other. However, she asserted that she and her mother did not talk about their symptoms prior to treating with Dr. Dale. Anya stated that she stopped treating with Dr. Dale because she had to go to college.

| sLinda Ursin testified that on December 30, 2005, she was guest passenger in a vehicle driven by her daughter, Anya Ur-sin, when they were struck by an eighteen-wheeler. She stated that when the accident occurred, Shemar’s car seat went into the back of Anya’s seat and the strap on his car seat broke, though they did not notice the broken strap until a couple of days later. She indicated that after the accident, Shemar was “just staring till they got ready to come get him out of the car and he started screaming and hollering.” Shemar was taken to the hospital by ambulance. Linda stated that as a result of the accident, she suffered injuries to her back, neck, and right shoulder. She testified that she started treating with Dr. Dale three times per week primarily for neck and back pain, and she treated with him until June or July 2006. She stated that she and Anya did not discuss their injuries with each other. She admitted that she and Anya were treated for basically the same injuries and they were discharged within a day of each other.

Linda testified that she saw her family physician, Dr. Turner, on January 3, 2006, and she complained of back pain. She did not tell Dr. Turner that her hip, neck, shoulder or arm were hurting at that time. When she saw Dr. Dale a couple of weeks after the accident, her hip, neck, arm and shoulder had started hurting.

Linda testified that she was in a subsequent accident on February 8, 2006, but she asserted that she did not feel any worse after the second accident. She indicated that the impact in the accident in the present case was greater than the impact in the February 2006 accident. Linda admitted that she went to the hospital as a result of the February 2006 accident, and Allstate paid her $1,500, though she did not make any demand on Allstate for money.

Inette Ursin testified that she is She-mar’s mother and Sean Long is his father. She stated that she noticed that a harness strap on Shemar’s car seat was | (¡broken a couple of days after the accident, so she threw it away. On the date of accident, after Shemar was released from the hospital, they went home. She undressed him to give him a bath and noticed that he had the imprint of the car seat straps on his chest. He was one year old at the time of the accident. After the accident, Shemar was afraid to get into his car seat and would cry, and he sometimes had little “night terrors.” She took him to his pediatrician where he was checked out and she was told that they did not find any bodily injury. Although she was not present at the scene of the accident, Inette testified that Shemar did not immediately cry after the accident, but rather he cried “when everybody started coming around him,” because he got scared. At the conclusion of Inette’s testimony, the parties stipulated that Sean Long is Shemar’s biological father and the proper party plaintiff on She-mar’s behalf, and that if he were called to testify, his testimony would be similar to Inette’s testimony.

The defense called Ross Louque to the stand. Mr. Louque testified that he was an eyewitness to the accident. He stated that both vehicles were stopped and then Mr. Russell looked like he was going to make a right turn and “just bumped them,” and it was a slight bump. He did not see any damage. The driver of the Honda got out of her vehicle, looked at it and got back into the vehicle, but she did not appear to be injured in any way.

Michael Russell testified that he was employed as a truck driver by Indian River Transport Company on the date of the accident and he was in the course and scope of his employment at the time of the accident. He was stopped three to four feet behind a red Honda due to a red light at the intersection of U.S. 61 and LA 3188. He turned his wheel to go to the right turn lane and, as he started to “ease off the clutch” and moved about three feet, he felt a very mild bump. Mr. Russell got out of the truck and asked the driver of the Honda if she was hurt, but she did |7not say anything. He stated that she was checking on the child in the back seat, but the child was not crying and seemed to be fine and content. No one appeared to be hurt. He admitted that the tractor he was driving weighs approximately 17,000 pounds and he believes that a Honda weighs approximately 2,400 to 3,000 pounds.

At the conclusion of trial, the trial judge found that plaintiffs were in fact injured as a result of the accident. She found that Anya Ursin’s chiropractic treatment for six months was caused by the accident, and she awarded Anya Ursin $7,500.00 in general damages plus the $3,325.00 she incurred in medical expenses, as well as $501.00 for property damage. With regard to Linda Ursin, the trial judge noted that she was involved in a subsequent accident six weeks after this accident, and the trial court awarded her $3,500 in general damages and 50% of her $4,488.58 medical expenses, which is $2,244.29. With regard to Shemar Long, the trial judge noted that he was thrown forward during the collision but stated that she was not satisfied that the child suffered any injuries other than a jolt. Shemar Long was awarded $2,500 in general damages as well as $916 in medical expenses. Defendants appeal the trial court’s judgment.

DISCUSSION

On appeal, defendants assert that the damage awards are manifestly erroneous. They do not specify which damage awards they are contesting, so all of the damage awards will be addressed. Defendants contend that the photographs show minimal damage to the Honda Civic driven by plaintiff, and that the evidence does not establish that any injuries at all were suffered by plaintiffs as a result of this accident. Plaintiffs respond that they have never claimed that this was a major accident, but they still suffered soft tissue injuries and are entitled to recover for them. They further contend that the trial judge’s damage awards were not manifestly erroneous or clearly wrong.

| 8Although the parties stipulated to the authenticity of the medical records and referred to plaintiffs’ medical records during trial, we note that the transcript reveals that these exhibits were never admitted into evidence. Accordingly, they are not in the record before us and cannot be considered by us on appeal. Nevertheless, after reviewing the testimony and photographs admitted into evidence, we find no manifest error or abuse of discretion in the damages awarded to Anya Ur-sin and Linda Ursin. However, we find that the general damages awarded on behalf of Shemar Long are excessive and must be reduced.

Defendants assert that the impact in this case was minimal and thus, plaintiffs could not have suffered any injuries as a result of this accident. Whether the accident caused the plaintiffs’ injuries is a factual question that is reviewed under the manifest error standard of review. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991). Under the manifest error standard, a reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Chavers v. Travis, 04-0992, p. 8 (La.App. 4 Cir. 4/20/05), 902 So.2d 389, 394.

The trier of fact is in the best position to determine the extent of the accident and resultant injuries, if any. It is also proper for the trier of fact to consider the minimal nature of an accident in order to determine whether or not injuries have been sustained. Beverly v. Guidry, 04-539, p. 3 (La.App. 3 Cir. 12/1/04), 890 So.2d 654, 656; writ denied, 05-476 (La.4/22/05), 899 So.2d 570.

In the present case, Anya Ursin testified that the impact of the accident was more than a minor impact and her car was pushed forward a few feet by the truck. | flAlthough Ross Louque testified that the impact was minor, the trial judge indicated that she did not give his testimony much weight since he was not involved in the accident and could only speculate as to the impact felt by the parties. Michael Russell testified that the impact was very mild. However, the trial judge apparently believed that the impact was strong enough to cause injury to plaintiffs.

Although the photographs of the minimal damage to Anya’s vehicle suggest that the accident was of low impact, courts have held that soft tissue injuries can occur even in low impact collisions. In Davis v. Martel, 00-1727, p. 7 (La.App. 3 Cir. 7/18/01), 790 So.2d 767, 772, writ denied, 01-2399 (La.11/21/01), 801 So.2d 1087, the Third Circuit cited Seegers v. State Farm Mutual Auto. Ins. Co., 188 So.2d 166, 167 (La.App. 2 Cir.1966), wherein the Second Circuit stated:

It is strenuously urged that the force of impact was so slight it could not have caused the injuries of the nature and extent complained of by the plaintiff, Ms. Seegers. This argument, in part is based upon the evidence and the record to reflect that the only damage to the rear of the Seegers’ automobile was the breaking of the tail pipe bracket and a small dent in the rear bumper requiring a cost of repairs of only $448.88. While it is indisputable [sic] true that the impact as slight, we think it would be dangerous precedent to attempt to measure the degree of injuries in direct proportion to the force of the collision. The testimony of both the medical expert and the lay witnesses established the fact that Ms. Seegers did sustain some injuries and the minimal force of the collision is, therefore, of no material importance.

Considering the testimony and evidence before us, along with the applicable law, we cannot say that the trial court was manifestly erroneous in determining that the impact of the collision was sufficient to cause injuries to plaintiffs. Accordingly, we must now determine whether the amount of the trial court’s damage award to each plaintiff was an abuse of discretion.

General damage awards are reviewed under an abuse of discretion standard. Williams v. Maritime, Inc., 04-625 (La.App. 5 Cir. 11/30/04), 889 So.2d 1055, 1059. Therefore, the role of the appellate court is to review the exercise of 110discretion by the trier of fact, and the adequacy of award should be determined by facts or circumstances particular to the case under consideration. Otillio v. Enter gy Louisiana, Inc., 02-718, p. 4 (La.App. 5 Cir. 12/11/02), 836 So.2d 293, 296. An appellate court may not overturn an award for general damages unless it is so out of proportion to the injury that it shocks the conscience. Moore v. Healthcare Elmwood, Inc., 582 So.2d 871, 879 (La.App. 5 Cir. 06/05/91). Consequently, because of the “great” discretion vested in the trier of fact, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Wilson v. Allstate Ins. Co., 32,890 (La.App. 2 Cir. 3/1/00), 754 So.2d 374, 375.

At trial, Anya testified that she treated with Dr. Dale for approximately six months for injuries primarily to her neck and back. The trial judge found that Anya was injured, requiring six months of treatment, and that she was entitled to her medical bills in the amount of $3,325.00 and $7,500.00 in general damages. In Jimmerson v. Rearden, 98-1120 (La.App. 3 Cir. 3/3/99), 736 So.2d 916, the plaintiff was injured in a minor car accident, and the Third Circuit found that an award of $7,500 for chiropractic treatment for approximately six months was appropriate. See also Dufrene v. Gaddis, 98-1294 (La.App. 5 Cir. 6/1/99), 738 So.2d 75, 81, writ denied, 99-1867 (La.10/8/99), 751 So.2d 220, wherein this Court affirmed a $9,000 award for an eight month soft tissue injury, finding that it was not so high or low in proportion to the injury that it shocks the conscience.

Considering the record before us and the applicable jurisprudence, we find no abuse of discretion in the trial court’s award to Anya Ursin of $3,325 in medical expenses and $7,500 in general damages. Accordingly, we affirm the award of general and special damages to Anya Ursin.

In With regard to Linda Ursin’s damages, the trial judge believed that she suffered injuries as a result of this accident. Linda testified that she treated with Dr. Dale for approximately six months for injuries primarily to her neck and back. However, Linda was in a subsequent accident on February 8, 2006. The trial judge apparently believed that Linda was less severely injured than Anya in this accident and/or that she was injured in the second accident as well.

In Volion v. Henry, 04-294 (La.App. 5 Cir. 10/26/04), 888 So.2d 265, a woman sustained injuries in an automobile accident, and she went to the emergency room where she was given a muscle relaxer. She sought treatment from a chiropractor one week later for neck and arm pain, and she treated with him three to four times per week for nearly four months until she was involved in a subsequent accident. This Court affirmed the trial court’s award of her medical expenses from the date of the accident until the subsequent accident and $6,000 in general damages.

In the present case, Linda testified that she treated with Dr. Dale after this accident until July 7, 2006, but she was involved in another accident on February 8, 2006 during the time of her treatment with Dr. Dale. The trial judge awarded Linda $3,500 in general damages and one-half of her medical bills, which was $2,244.29. Considering the testimony and evidence before us, we find no abuse of discretion in the trial court’s award.

Finally, with regard to Shemar Long, the trial judge found that he suffered a “jolt” as a result of the accident. Anya, Linda, and Inette all testified that Shemar’s car seat strap was broken as a result of the accident. However, no one testified that Shemar seemed injured as a result of the accident, other than Inette who stated that Shemar had strap marks on his chest on the night of the accident and did not want to get into his car seat after the accident. In fact, Inette testified that Shemar’s | ^pediatrician examined him and found no bodily injury. Linda testified that Shemar just stared after the accident and did not cry until they got ready to get him out of the car.

We affirm the award rendered on She-mar’s behalf for his medical bills, because it was reasonable for him to be checked out by a doctor after being involved in an accident. However, considering the testimony in this case, we find that the general damage award on behalf of Shemar Long is excessive and an abuse of discretion, because there is insufficient evidence that he was in fact injured.

An appellate court may reduce an award to the highest reasonable amount, only if articulable reasons are found to show that a reasonable trier of fact could not have awarded so much or so little, under all of the circumstances of the case. Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir. 5/31/05), 905 So.2d 1127, 1136. Considering the circumstances of this case, we reduce the general damage award to $500, finding that this is the maximum amount that could reasonably have been awarded for any minor effect this accident may have had on Shemar.

Finally, with regard to the property damage award of $501.00, we find no error. The trial judge noted that she did not see a figure on the property damage estimate. Although the record before us indicates that defense exhibit number 2 is a property damage estimate, the document in evidence appears to be incomplete as it only consists of one page and does not contain a figure for the estimate of the amount of property damage. Nevertheless, the parties agreed on the record that the property damage estimate was $501.00. The photographs and testimony support this property damage award. Accordingly, we find no error in the property damage awarded to Anya Ursin.

DECREE

113For the reasons set forth above, we reverse the trial court’s judgment awarding $2,500 in general damages on behalf of Shemar Long, and we reduce this award to $500. All other damage awards and in all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . Anya Ursin testified that she was struck from behind by an eighteen-wheeler. Mr. Russell testified that he was driving the tractor portion of the truck, but no trailer was attached. On cross-examination, Anya admitted that she was a little unsure as to whether or not a trailer was attached to the tractor driven by Mr. Russell.

      . Plaintiffs are referred to by their first names due to the fact that Anya and Linda have the same last name.

      . Anya was discharged on July 6, 2006 and Linda was discharged on July 7, 2006.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Cynthia FESCHAREK v. US AGENCIES INSURANCE COMPANY.
    No. 07-CA-843.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Salvador M. Brocato, III, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    John E. Faherty, Jr., Scott A. Cannon, Attorneys at Law, Slidell, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|gIn this automobile accident case, the trial court granted summary judgment in favor of the insurer on the issue of uninsured motorist (“UM”) coverage under the subject policy. Plaintiff now appeals.

Facts

The facts of this case are not in dispute. On April 15, 2006, plaintiff, Cynthia Fes-charek, was involved in an accident with Jason Washington, an uninsured motorist. Plaintiff filed the instant suit against USA-gencies Insurance Company, alleging that defendant issued a policy of insurance to plaintiff which afforded UM coverage for the damages she sustained in the accident with Mr. Washington. USAgencies filed an answer to this petition admitting that it issued a policy of insurance to plaintiff, but denying that the policy included UM coverage.

Thereafter, USAgencies brought a motion for summary judgment on the basis that the subject policy did not provide UM coverage to plaintiff as |aa matter of law. USAgencies attached to its motion a copy of the policy, including an “Uninsured/Un-derinsured Motorist Bodily Injury Coverage Form” signed by plaintiff and an affidavit of Jana Goins, an underwriter for USAgencies, who attested that the policy issued by the insurer did not provide UM coverage to plaintiff for this accident.

Plaintiff opposed defendant’s motion and also brought a motion for partial summary judgment on the issue of coverage. Plaintiff contends that USAgencies provided a policy of insurance which was in effect at the time of the accident herein, and that she did not sign a valid waiver of UM coverage. In support of this motion, plaintiff attached a copy of the same “Uninsured/Underinsured Motorist Bodily Injury Coverage Form” relied on by defendant, but she argues the form is invalid as the name of the insurance company does not appear on the waiver form as required by the holding of the Louisiana Supreme Court in Duncan v. USAA Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544.

By judgment rendered on August 15, 2007, the trial court found that the subject insurance policy did not provide UM coverage to plaintiff because she specifically rejected such coverage on a valid waiver form. The trial court therefore granted summary judgment in favor of defendant, dismissing plaintiffs suit with prejudice. The sole issue presented on appeal is whether, as a matter of law, plaintiff rejected UM coverage under the subject policy in accordance with Louisiana law and jurisprudence.

Law and Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. Duncan v. USAA Insurance Co., 06-363, pp. 3-6 (La.11/29/06), 950 So.2d 544, 546-48. The summary | ¿judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In Louisiana, UM coverage is provided for by statute and embodies a strong pub-lie policy. Roger v. Estate of Moulton, 513 So.2d 1126, 1131 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). The object of UM insurance is to provide full recovery for automobile accident victims who suffer damages caused by a tort-feasor who is not covered by adequate liability insurance. Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992); Henson v. Safeco Ins. Co., 585 So.2d 534, 537 (La.1991); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982).

La.R.S. 22:1406 D(l)(a)(i) mandates that every automobile liability insurance policy issued or delivered in Louisiana shall include coverage, in not less than the limits of bodily injury liability provided by the policy, for the protection of insureds who are legally entitled to recover from owners or operators of uninsured or un-derinsured motor vehicles. Statutory coverage will be read into a policy as if it were in the policy itself. Henson, 585 So.2d at 537. However, the statute also provides that the insured may reject in writing the statutorily mandated coverage or select lower limits. Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213, 1214.

The UM statute is to be liberally construed and a rejection of the coverage provided by law must be clear and unmistakable. Roger, 513 So.2d at 1131. The insurer bears the burden of proof that a rejection of coverage or a selection of lower limits has been legally perfected. Henson, 585 So.2d at 539. A valid rejection must be expressly set forth in writing and signed by the insured or his authorized representative. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Henson, 585 So.2d at 538.

La. R.S. 22:1406 D, as amended by Acts 2003, No. 456, §§ 1 and 2, was redesignat-ed as La. R.S. 22:680 by § 3 of Acts 2003, No. 456. La. R.S. 22:680(l)(a)(ii) governs UM coverage selection and currently reads:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in |fithe limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

In support of her argument that the waiver form executed in this case was invalid, plaintiff relies upon Duncan v. USAA Insurance Co., 06-363, pp. 3-6 (La.11/29/06), 950 So.2d 544, 546-48, which held that by failing to include the policy number in the blank provided on the form prescribed by the commissioner of insurance, the insurer failed to effectuate a valid rejection of UM coverage. Plaintiff contends that the UM waiver form in the present case likewise fails to contain the name of the insurer as required by the bulletin promulgated by the commissioner of insurance, LIRC 98-01., Plaintiff contends that the form does not meet the requirements of law and the rejection of UM coverage is therefore invalid. We disagree.

The “Uninsured/Underinsured Motorist Bodily Injury Coverage Form” submitted by the insurer in this case indicates that it was promulgated by the State of Louisiana pursuant to La. R.S. 22:1406 D. This form contains the name of the insured, Cynthia L. Fescharek, the applicable policy number, and the date, 1/30/2006. The form also contains the signature of the insured, Cynthia L. Fescharek. Although plaintiff contends that the form does not contain the name of the insurance company, the form contains the following on the bottom left-hand corner of the document: LA-USACIC00006 and a bar code. This acronym clearly refers to USAgeneies Casualty Insurance Company, the insurer that provided this policy to plaintiff. Further, plaintiffs initials are placed on the form adjacent to the following language:

I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.

(Emphasis in the original.)

Thus, the form executed by plaintiff and the insurer in this case complies with the formal requirements of law in that there is a clear rejection of UM coverage, the form is signed and dated, and it contains the policy number and the name of the insured. Plaintiffs reliance on the Supreme Court’s holding in Duncan is misplaced. The form in the Duncan case was invalid because it failed to contain the policy number on the designated line, and the facts of that case are distinguishable from the facts presented here where the form is properly completed and complies with all of the formal requirements of Louisiana law.

Conclusion

Accordingly, our review of the record indicates that plaintiff, Cynthia L. Fescha-rek, validly rejected UM coverage on the subject automobile liability policy. As the policy fails to grant UM coverage as a matter of law, we find that the trial court was correct in granting summary judgment in favor of the insurer in this case. The judgment rendered in favor of USA-gencies and dismissing plaintiffs lawsuit with prejudice is hereby affirmed. Plaintiff shall bear all costs of this appeal.

AFFIRMED.


text:
    STATE of Louisiana v. Wray M. ANDERSON.
    No. 07-KA-752.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Joseph E. Roberts, Martin A. Be-langer, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Provino C. Mosca, Attorney at Law, Harahan, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2On April 25, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Wray M. Anderson, ■with theft of U.S. currency valued at over $1000 from the Succession of Austin Anderson, in violation of R.S. 14:67. Defendant entered a plea of not guilty on May 22, 2006. Trial was held on May 15, 2007, and the jury returned a responsive verdict of guilty of unauthorized use of movables in excess of $1,000. On June 22, 2007, the trial court sentenced defendant to three years at hard labor, with credit for time served. The sentence was suspended and defendant was placed on active probation for three years. On July 20, 2007, the trial court ordered defendant to pay $168,830.02 in restitution. Defendant filed a Motion for Appeal, which was granted.

FACTS

Defendant is the son of Austin Anderson, Sr. (“Austin Sr.”) and Lucille Anderson. He has one brother, Austin Anderson, Jr. (“Austin Jr.”), and one sister. | ¡¡On May 14, 1996, defendant’s mother, Lucille, died intestate. Defendant’s father, who was an attorney, became the administrator of her estate. According to Austin Jr., Austin Sr. indicated that Lu-eille’s succession would not be opened until after Austin Sr.’s death. Austin Sr. died on December 29, 2001, leaving an olo-graphic will dated December 26, 2001. In his will, Austin Sr. expressly revoked all prior testaments and named defendant as executor with full seizin and without bond. He left particular legacies of $1000 to defendant’s sister and $3000 to each of defendant’s sister’s children. Defendant was named as the residual legatee.

At trial, Austin Jr. testified that shortly before his father’s death, he discovered that his father had opened his mother’s succession. Austin Jr. asserted that his father, Austin Sr., mishandled his mother’s succession and defrauded him of at least $120,000 in his mother’s succession by failing to list any of her separate property on the descriptive list and listing some of her separate property as community property. Austin Jr. filed a proof of claim in excess of $120,000 in his father’s succession, thereby becoming a creditor in Austin Sr.’s succession. Austin Jr. explained that when there is a creditor in a succession, the creditor is paid prior to any legatees being paid. Austin Jr. further indicated that his cousin, Alfred Nippert, filed a $100,000 proof of claim and a $600,000 proof of claim, “which made a[sic] combined claims in excess of eight hundred thousand dollars against the succession of my father.” Austin Jr. stated that the value of his father’s estate was $540,811 on February 21, 2002. Accordingly, the value of Austin Sr.’s estate was less than the amount being sought by Austin Sr.’s creditors.

Austin Jr. further testified that in June 2002, the court issued an order in his father’s succession proceeding that no debts were to be paid and no assets were to be sold unless defendant obtained creditor and court approval. However, he stated that he learned during defendant’s deposition in the succession proceeding that | ¿defendant had disposed of assets of the estate without authority of the creditors or the court, and that defendant had written checks and made transfers to himself from Austin Sr.’s succession in excess of $100,000. The State introduced into evidence an annual accounting of Austin Sr.’s succession which confirmed that defendant wrote numerous checks to himself from succession funds. Defendant was subsequently removed as the executor of Austin Sr.’s succession.

The State entered into evidence 16 checks written by defendant to himself, drawn on the account of his father’s succession, dating from June 2002 through December 2002. The checks in aggregate amount to approximately $106,000 and range from $1,000 to $30,000 each. The State further entered into evidence records of 13 online transfers from the succession account to the account of defendant, dating from June 2002 through January 2003. These transfers in aggregate amount to approximately $52,600. Dawn Farrell, the auditor and custodian of bank records for Metairie Bank and Trust where the succession account was located, testified to the authenticity of these records. Ms. Farrell testified that she had no knowledge of wrongdoing with regard to the checks and that defendant was the only person with authority to sign checks under the bank account agreement. Farrell further stated that the online transfers could only be accomplished with defendant’s user I.D. and password. Austin Jr. testified that he, as a creditor of the succession, did not authorize these transactions.

The State also entered into evidence defendant’s February 2004 “Response to Motion for Contempt and Confession of Judgment” in the succession proceeding, wherein defendant stated:

Your petitioner admits that he appropriated some $161,600 of funds, primarily from Metairie Bank and Trust, from the Succession of Austin Anderson, without court approval and prior to the proof of and payment of legitimate claims against the Succession of Austin Anderson.

| ¡Austin Jr. identified the signature on this document as defendant’s signature. The State also entered into evidence a descriptive list of the assets of the Succession of Austin Sr., an order removing defendant as executor of the succession, as well as a civil judgment obtained by the succession against defendant and an order assigning the succession’s judgment to Austin Jr.

DISCUSSION

On appeal, defendant asserts the following two assignments of error:

1) The jury verdict was contrary to law and evidence.
2) The evidence was insufficient to convict defendant of any crime.

In State v. Hearold, 603 So.2d 731, 734 (La.1992), the Louisiana Supreme Court stated that, when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. Accordingly, we will address defendant’s second assignment of error first, because it relates to sufficiency of the evidence.

In his second assignment of error, defendant claims that the evidence, viewed in light most favorable to the prosecution, was insufficient to establish guilt beyond a reasonable doubt, because the State failed to prove the requisite criminal intent. The State responds that the evidence was clearly sufficient and argues that defendants intent in this case may be inferred from his actions and the circumstances.

The constitutional standard for testing the sufficiency of the evidence, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Honore, 564 So.2d 345, 351 (La.App. 5 Cir.1990), writ denied, 569 So.2d 968 (La.1990). This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477, p. 6 (La.2/22/06), 922 So.2d 517, 521. The trier-of-fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213, p. 11 (La.1/19/06), 921 So.2d 94, 101.

Defendant was convicted of unauthorized use of movables valued in excess of $1000, in violation of LSA-R.S. 14:68, which provides in pertinent part:

A. Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.

Money is a corporeal movable. Succession of Majoue, 97-710, p. 7 (La. App. 5 Cir. 11/25/97), 705 So.2d 225, 228. A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices. Although it does not require a person to act with intent to deprive the owner permanently of his property, LSA-R.S. 14:68 must reasonably be construed to require the existence of fraudulent intent. State v. Joseph, 05-368, p. 7 (La.App. 5 Cir. 1/17/06), 921 So.2d 1060, 1064; State v. Bias, 400 So.2d 650, 652 (La.1981). The State may produce direct or circumstantial evidence of fraudulent intent in unauthorized use cases. Id. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Davis, 40,382, p. 5 (La.App. 2 Cir. 10/26/05), 914 So.2d 1129, 1133, writ denied, 05-2419 (La.4/17/06), 926 So.2d 512. Though intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. McKinney, 99-395, p. 6 (La.App. 5 Cir. 11/10/99), 749 So.2d 716, 719. State v. Calloway, 07-0012 (La.App. 1 Cir. 11/7/07), 978 So.2d 374.

In the present case, the State offered evidence that defendant engaged in 29 distinct transactions over the course of seven months, which ultimately dispossessed his fathers succession of over $150,000. The State offered evidence that defendant is both the drawer and the payee on each check and that his user I.D. and password were required for each online transfer. The State also presented evidence that defendant lacked authority to engage in these transactions without creditor and court approval, and defendant admitted in his February 4, 2004 pleading, entitled Response to Motion for Contempt and Confession of Judgment, to the appropriation of $161,600 from Austin Sr.’s succession without court approval and prior to the proof and payment of legitimate claims against the succession of Austin Sr.

The jury obviously believed that defendant had the requisite criminal intent to take or use the succession funds without consent or by means of fraudulent conduct or practices. Considering that defendant disposed of succession funds without authority of the creditors and the court, the evidence that defendant wrote checks and made transfers to himself totaling over $150,000, and the fact that he admitted appropriating $161,600 from Austin Sr.’s succession, the jury could easily have inferred the requisite criminal intent from the circumstances.

Viewing the evidence in a light most favorable to the prosecution, we find that the evidence presented at trial was sufficient to establish that the State proved |seach element of the offense of unauthorized use of a movable valued in excess of $1,000 beyond a reasonable doubt. Accordingly, this assignment of error is without merit.

In his first assignment of error, defendant complains that the verdict written by the jury foreman was not responsive to the charge. The State responds that defendant has failed to brief this assignment of error, citing no legal authority and advancing no argument. Therefore, the State claims that this assignment of error should be dismissed as abandoned under Uniform Rules Court of Appeal 2-12.4. In the alternative, the State contends that the assignment is meritless because the jury obviously meant to return a responsive verdict and simply made an inadvertent “slip of the pen.”

In State v. Lauff, 06-717, p. 9 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819, this Court noted that “[r]estating an assigned error in brief without argument or citation of authority does not constitute briefing.” Our review of defendant’s brief reveals that he did not brief this assignment of error. Rather, he states as an assignment of error that “[t]he jury verdict was contrary to law and evidence,” but he does not provide argument or cite authority for his position. Nevertheless, defendant asserts that this issue is an “error apparent of record.” We agree. The verdict is a part of the pleadings and proceedings, and any error therein is reviewable as an error patent. State v. Robinson, 04-964, p. 17 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1127. Thus, we will address this issue in our error patent review.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The only error patent discovered was the error in the jury’s verdict that was set forth in defendant’s first assignment of error.

Defendant was charged with theft of U.S. currency valued over $1,000 under R.S. 14:67. Although the list of responsive verdicts included, “guilty of unauthorized use of movables having a value in excess of $1000,” the jury returned a verdict of “guilty of unautorized [sic] movement of movables in excess of $1000.” The transcript reveals that the clerk read the verdict as written by the jury foreman. However, the prosecutor did not attempt to clarify the charge, defense counsel had no objection, and no poll of the jury was requested.

LSA-C.Cr.P. art. 813 provides:
If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.

The trial court should not have accepted this verdict, because it was nonresponsive. Thus, this Court must determine whether reversible error occurred.

According to LSA-C.Cr.P. art. 810, there shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury. When a verdict is ambiguous, the intent of the jury can be determined by reference to the pleadings, the evidence, the admissions of the parties, the instructions, and the forms of the verdicts submitted. State v. Robinson, 04-964 at p. 17, 896 So.2d at 1128.

In State v. Duke, 625 So.2d 325 (La.App. 3 Cir.1993), writ denied, 629 So.2d 1183 (La.1993), the bill of information charged defendant with aggravated oral sexual battery. The verdict sheet misstated the charge as “indecent behavior with a juvenile,” but correctly listed the responsive verdicts as guilty, guilty of attempted aggravated oral sexual battery, guilty of oral sexual battery, guilty of | inattempted oral sexual battery, and not guilty. The jury returned a verdict of “guilty.” The Duke court noted that the judge read the correct statute to the jury and furnished the jury with a list of the appropriate responsive verdicts and found that the jury was well aware of the elements of the crime charged. The court found that the jury clearly intended to find the defendant guilty of the charged offense rather than the incorrect offense stated on the verdict sheet because the charge was read to the jury and was stated numerous times during trial.

In State v. Froiland, 05-138 (La.App. 5 Cir. 7/26/05), 910 So.2d 956, the defendant was charged with theft of U.S. currency valued over $1,000 under R.S. 14:67, as opposed to the theft of goods under R.S. 14:69.10, but the jury returned a verdict of guilty of theft of goods having a value of $500.00 or more. This Court emphasized, “at the very beginning of trial the jury was informed that the defendant was charged with theft, not theft of goods, by the clerk’s reading of the bill of information, during the trial judge’s preliminary instructions, and in the prosecution’s opening statement.” Likewise, “the first mention of the offense as theft of goods occurred in the State’s rebuttal, where the prosecutor mentioned that the defendant was charged with theft of goods valued at over $500.00.” This Court held that, considering the numerous times that the offense was referred to as theft, the verdict reflected the jury’s intent to find the defendant guilty of theft rather than theft of goods.

In the present case, the record reflects that the trial judge instructed the jury on the definition of theft under R.S. 14:67 and the definitions of the permissible responsive verdicts set forth in LSA-C.Cr.P. art. 814(A)(26). The actual verdict, |n“GuiIty of unautorized [sic] movement of movables in Excess of $1000°°,” is substantially similar to one and only one proper responsive verdict under LSA-C.Cr.P. art. 814(A)(26): Guilty of unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment. The language “unauthorized movement of a movable” is never mentioned in the record until the verdict was read.

After careful review of the record, we find that it is clear that the jury intended to find defendant guilty of unauthorized use of movables in excess of $1,000. The only substantive difference between the proper verdict and the actual verdict is the substitution of movement for use. Because the evidence indicated that defendant moved funds via online transfer and by negotiable instrument from the succession account to his own bank accounts, it is plausible that the jury would associate such transactions with movement and then equate that term with the unauthorized use that is in fact a crime in Louisiana.

Considering the similarity between the jury’s verdict and the responsive verdict of unauthorized use of movables in excess of $1000, along with the applicable law, we find that the intent of the jury was to find defendant guilty of unauthorized use of movables in excess of $1,000. Accordingly, we find that the error on the verdict form was consequently harmless.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . The jury’s verdict actually read: "Guilty of unautorized [sic] movement of movables in Excess of $1000°°.” This issue is discussed in our error patent review.

      . Unauthorized use of movables valued in excess of $1000 is a responsive verdict to the charged offense. LSA-C.Cr.P. art. 814(A)(26).

      . LSA-C.Cr.P. art. 814(A)(26) lists the responsive verdicts that may be rendered when a bill of information charges Theft:
      Guilty of theft of property having a value of five hundred dollars or more.
      Guilty of theft of property having a value of three hundred dollars or more, but less than five hundred dollars.
      Guilty of theft of property having a value of less than three hundred dollars.
      Guilty of attempted theft of property having a value of five hundred dollars or more. Guilty of attempted theft of property having a value of three hundred dollars or more, but less than five hundred dollars.
      Guilty of attempted theft of property having a value of less than three hundred dollars. Guilty of unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment. Guilty of unauthorized use of movables having a value of one thousand dollars or less. Not guilty.


text:
    STATE of Louisiana v. Mona J. MICELOTTI.
    No. 07-KA-700.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Churita Hansell, Assistant District Attorneys, Gretna, Louisiana, for Plain-tifi/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|! Defendant, Mona J. Micelotti, was charged by bill of information with possession of cocaine, a violation of LSA-R.S. 40:967(C). At her arraignment, the defendant pled not guilty. The defendant filed an omnibus motion that included a Motion to Suppress Confession, Identification, and Physical Evidence, which the trial court subsequently denied. After a one-day trial, the defendant was found guilty as charged. The defendant then filed a motion for new trial that was denied. Subsequently, the trial court imposed a sentence of two-and-one-half years at hard labor. The defendant now takes this timely appeal.

FACTS

At the motion to suppress hearing as well as at trial, Deputy Ricardo Ramos, Jr. of the Jefferson Parish Sheriffs Office testified that, on December 16, 2005, he investigated an anonymous complaint of illegal drug activity at 912 North Sibley |2in Me-tairie, Louisiana, which was the defendant’s address. After the sheriffs office received the initial call, Deputy Ramos was dispatched to the complainant’s address and was informed that two named people, whom she described, would be buying narcotics off of David Drive and then returning to the North Sibley address. The complainant also gave Deputy Ramos a description of the vehicle that would be used by the two individuals.

Shortly after his arrival on Sibley Street, Deputy Ramos observed a white male arrive in a small red car. The man “perfectly” matched the description given by the complainant. The red car also matched the description given by the complainant. The male passenger exited the vehicle, after which the vehicle was pulled into 912 North Sibley. The defendant drove the vehicle. She “matched perfectly” the description of the female given by the complainant. Subsequently, she exited the red car. Deputy Ramos identified the defendant in court as the female, whom he saw exiting the vehicle. Deputy Ramos ordered the defendant, Mona Micelotti, to step over to his vehicle. When he saw the white male approaching from a few doors down, Deputy Ramos ordered him to come over to his police car. At this time, Deputy Ramos noticed that the man was staggering. As Deputy Ramos questioned the man, he noticed the defendant place her hands in her pockets as she backed away from his police car. Deputy Ramos previously had ordered the defendant to keep her hands where he could see them for safety purposes, i.e., to prevent the removal and use of a weapon. In response to her actions, Deputy Ramos ordered the defendant to take her hand out of her pocket and return to her original position. As the defendant took her hand out of her pocket, Deputy Ramos saw something fall to the ground. The fallen object, an off-white rock-like object, appeared to be a. crack rock and defendant attempted to step on it. This forced Deputy Ramos to move the defendant and handcuff her before | ^retrieving the rock. The defendant subsequently was arrested for possession of crack cocaine.

At trial, Andrea Travis, a forensic scientist with the Jefferson Parish Sheriffs Office Crime Laboratory, testified that the substance retrieved in connection with the defendant tested positive for cocaine.

DISCUSSION

By this appeal, the defendant argues that the trial court erred in denying her motion to suppress. She claims that she was not free to leave her encounter with the police. Rather, she was subject to the commands of Deputy Ramos in an ongoing detention. The defendant asserts that she was detained without reasonable suspicion or probable cause. She claims that her detention was based on an anonymous tip, and that the tip was that she would be accompanied by a particular person, in a particular car, at a particular location. She contends that any innocent person could have been the subject of this kind of tip, since it lacks specificity, predictability, and corroboration of details. The defendant claims that the abandonment of the property was “improperly triggered.” Therefore, the evidence seized should be suppressed.

The State responds that the tip that the police received was not anonymous. Rather, the tip was from a concerned citizen who wished to remain anonymous. In fact, Deputy Ramos met and spoke to the caller at her residence. The State contends that as a citizen informant with firsthand knowledge of the criminal activity her tip carried high indicia of credibility in the determination of probable cause. Based on the information Deputy Ramos was provided by the informant and his corroboration of the perfect descriptions given of the defendant, the passenger, and the car, the State asserts that Deputy Ramos had a sufficient legal basis to justify an investigatory stop. Furthermore, the State claims that the ^defendant was not under arrest until cocaine fell out of her pockets in plain view of Deputy Ramos.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article 1, § 5 protect individuals from unreasonable searches and seizures. State v. Massey, 03-1166, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops, which permit officers to stop and interrogate a person who is reasonably suspected of criminal activity. State v. Gresham, 97-1158, p. 10 (La. App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes a police officer “ ‘to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense’ and to demand that the person identify himself and explain his actions.” State v. Melancon, 03-514, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229, writ denied, 03-3503 (La.4/23/04), 870 So.2d 297.

The reasonable suspicion necessary for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Melancon, 03-514 at p. 6, 860 So.2d at 229. In making an investigatory stop, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity[,]’ ” which has been interpreted to require the police to point to specific and articulable facts to justify the investigatory stop. State v. Sims, 02-2208, p. 5 (La.6/27/03), 851 So.2d 1039, 1043. (Citations omitted.) Without reasonable suspicion, an investigatory stop is illegal and the evidence seized from that stop is suppressible. State v. Triche, 03-149, p. 6 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 84, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625.

The State has the burden' of establishing the admissibility of evidence seized without a warrant, in a hearing on a defense motion to suppress the evidence. LSA-C.Cr.P. art. 703(D), State v. Manson, 01-159, p. 5 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. The Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view. State v. Freeman, 97-1115, p. 5 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634 n. 1. Therefore, an officer can seize contraband that he believes to be a controlled dangerous substance that inadvertently falls into plain view during a legal investigatory stop when there are exigent circumstances indicate that the defendant will attempt to reclaim it or possibly dispose of it before the officer can obtain a search warrant. State v. Neyrey, 383 So.2d 1222, 1225 (La.1979).

The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. McGee, 04-963, p. 10 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 406, writ denied, 05-0593 (La.5/20/05), 902 So.2d 1050. A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Gagnon, 01-1302, p. 8 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, 171. (Citation omitted.)

The appellate court must consider the totality of the circumstances, while giving deference to the inferences and deductions of trained police officers that might elude an untrained person. Gagnon, 01-1302 at p. 6, 817 So.2d at 170. (Citation omitted.) The appellate court may consider the evidence adduced at the hearing on the motion to suppress, as well as all pertinent evidence given at the trial of the case, in determining whether a motion to suppress ruling was correct. ,State v. Roche, 05-237, pp. 7-8 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 765, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

In the present case, both at the suppression hearing and at trial, Deputy Ramos testified that he received an anonymous call about drug activity. He conducted a face-to-face interview with the complainant. The complainant gave personal knowledge about the two individuals involved in the drug activity including their names and descriptions, the color of the vehicle they used, and the location where they purchased the illegal drugs. Deputy Ramos testified that he went to the address to which the complainant told him that the suspects would return. Shortly after arriving at the location, he observed the small red car, described by the complainant, arrive with the defendant and a white male inside. The white male, described perfectly by the complainant, exited the vehicle. After exiting his vehicle, Deputy Ramos ordered the defendant over to his vehicle and told her to keep her hands out of her pockets for safety reasons. While questioning the defendant’s companion, Deputy Ramos noticed the defendant step away from the police vehicle with her hand in her pocket. When Deputy Ramos ordered her to remove her hand, the defendant tossed an off-white rock-like object to the ground. She immediately tried to step on the object. Deputy Ramos recognized the object as a crack rock. After Deputy Ramos removed and handcuffed the defendant, he retrieved the object that later tested positive for cocaine.

Under certain circumstances, an informants tip can provide reasonable suspicion to detain and question a person. State v. Clay, 06-37, p. 5 (La.App. 5 Cir. 4/25/06), 930 So.2d 1028, 1032. (Citations omitted.) An informant’s tip may create reasonable suspicion necessary to justify an investigatory stop under the totality of the circumstances. Id., 06-37 at pp. 5-6, 930 So.2d at 1032. The “totality of the circumstances approach” applied by the United States Supreme Court | considers an informant’s veracity, reliability and basis of knowledge as highly relevant in determining the value of an informant’s tip. State v. Nelson, 02-65, pp. 6-7 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 801, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627, citing Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983).

In State v. Charles, 95-498 (La.App. 5 Cir. 12/13/95), 666 So.2d 1147, the police received an anonymous call reporting that a black male wearing gold jeans was selling rocks of crack cocaine. The caller also gave the location of the drug transactions. As the officers approached the area, one of the officers observed two black males standing at the location given by the anonymous caller. The defendant was wearing gold jeans and a red shirt. When they saw the police car, the defendant and the other man quickly entered a nearby supermarket. As the officers reached the entrance of the supermarket, the defendant who was leaving quickly raised his hand toward his mouth. One of the officers grabbed the defendant’s arm to prevent the loss of possible evidence. During the struggle, the defendant dropped two small white rock-like objects to the ground, and then the defendant stepped on them. After the defendant was restrained, the substance was field-tested positive for cocaine. Then, the defendant was arrested. The trial court denied the motion to suppress finding that the police acted in response to the call about criminal activity. During the investigation, the police noticed the defendant make a motion that indicated that he was destroying the evidence. When the police seized the defendant’s hand, the evidence was dropped on the ground where the police recovered it. Charles, 95-498 at pp. 3-4, 666 So.2d at 1148-49. This Court found that, although the defendant was not engaged in any kind of activity indicative of drug trafficking, the defendant fit the anonymous caller’s description of the person selling drugs. The defendant was also in the specified location, an area known for drug trafficking. In addition, when the defendant raised his hand to his mouth, the | ^police acted to prevent destruction of the evidence. This Court found that considering the totality of the circumstances, the officers had reasonable cause to make an investigatory stop of the defendant. Charles, 95-498 at pp. 5-6, 666 So.2d at 1150. This Court further noted that because the defendant discarded the drugs during the struggle when there had been no prior unlawful intrusion by the officers, the discarded evidence was lawfully seized. Id., 95-498 at p. 7, 666 So.2d at 1150-51.

We find that like the police officer in Charles, supra, Deputy Ramos’ observations gave him sufficient corroboratory evidence to conduct an investigatory stop. In addition, like the defendant in Charles, supra, we find that the defendant in the present case discarded the drugs when there had been no prior unlawful intrusion by the officers. Therefore, the discarded evidence was lawfully seized. The totality of the circumstances supports the trial judge’s denial of the defendant’s motion to suppress.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals an error patent in this case.

The commitmeni/minute entry indicates that the trial court failed to advise the defendant of the prescriptive period for filing an application for post-conviction relief. In addition, a review of the sentencing transcript also indicates that the trial judge failed to notify the defendant of the two-year prescriptive period for filing an application for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. State v. Mutz, 04-1072, p. 9 (La.App. 5 Cir. 2/15/05), 896 So.2d 1129, 1135. Therefore, we remand the case to the trial court and order the court to inform defendant of the appropriate prescriptive period for filing for post-conviction relief |9by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that the defendant received the notice.

CONVICTION AND SENTENCE% AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . At the suppression hearing, Deputy Ramos testified that the caller also gave the individuals’ addresses.

      . At the motion to suppress hearing, Deputy Ramos testified the defendant also dropped a glass crack pipe.


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

text:
    DELTA CHEMICAL CORP., Lee Mauberet and Ross Heidingsfelder v. Bill LYNCH as the Inspector General for the State of Louisiana, Office of the Inspector General of the State of Louisiana, Louisiana State Racing Commission and Sandra Jones.
    No. 2007-CA-0431.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2008.

      George D. Fagan, Wendy L. Rovira, Leake & Andersson, L.L.P., New Orleans, LA, for Plaintiff Appellant.
    Charles C. Foti, Attorney General, Carey B. Daste, Special Assistant Attorney General, E. John Litchfield, Special Assistant Attorney General, Berrigan Litchfield Schonekas Mann Traína & Bolner, LLC, New Orleans, LA, for Bill Lynch as the Inspector General for the State of Louisiana, Office of Inspector General of the State of Louisiana.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs, Delta Chemical Corp. (“Delta”), Lee Mauberret, and Ross Hein-dingsfelder (hereinafter collectively referred to as “the plaintiffs”), appeal a judgment awarding the defendants, Bill Lynch as the Inspector General (“IG”) for the State of Louisiana and Office of the Inspector General of the State of Louisiana, attorney’s fees and costs in the total amount of $20,000.00. After reviewing the record and applicable law, we reverse the judgment and remand the matter to the trial court for a determination of attorney’s fees consistent with this opinion.

In May 2000, the plaintiffs filed a defamation suit against Bill Lynch as the Inspector General for the State of Louisiana and Office of the Inspector General of the State of Louisiana, the Louisiana Racing Commission (“the Commission”), and Sandra Jones based upon two reports prepared and published by the IG. The reports dealt with the plaintiffs’ attempt to obtain a brand name contract from the Louisiana Office of State Purchasing (“State Purchasing”). The draft and final reports issued by the IG in 1999, concluded, among other things, that Delta’s brand | mame contract had been improperly awarded and recommended that State Purchasing rescind Delta Chemicals brand name contract.

The defendants’ filed a special motion to strike in 2000; it was eventually argued before the trial court on 27 May 2005. Without providing reasons, the trial court rendered judgment, denying the defendants’ motion and awarding plaintiffs reasonable attorney’s fees and costs. The IG and the Commission both filed applications for supervisory writs.

This court granted the supervisory writs, reversed the judgment of the trial court, and dismissed the IG and the Commission from the lawsuit. In addition, we remanded the matter to the trial court to award reasonable attorney’s fees and costs to the IG. The trial court subsequently awarded the sum of $20,000.00. This appeal followed.

The plaintiffs assign five errors for our consideration. First, they argue that our previous rulings were manifestly erroneous and should be reversed. Second, they contend that the award of attorney’s fees to the IG is in derogation of common rights and is inconsistent with the legislative purpose and intent of La. C.C.P. art. 971. Third, they maintain that the trial court made the attorney’s fees award without considering the appropriate factors for making such an award. Fourth, they insist that the trial court failed to consider mitigating factors when | ^determining the amount of attorney’s fees to be awarded. Finally, they assert that the award of attorney’s fees is excessive and not supported by any evidence.

The plaintiffs sell water treatment chemicals for use in commercial/industrial heating, ventilation, and air conditioning systems. In 1998, the plaintiffs sought to acquire a brand name contract from State Purchasing. According to the record, State Purchasing requires three letters of intent from three state agencies in order to establish the demand for a specific product. The IG’s reports quote State Purchasing requirements accordingly: “These letters must include those items that the agency intends to purchase or rent, and the correct packaging, including the anticipated annual usage per item, and letters must be signed by proper administrative personnel.”

Beginning in February 1998, three state agencies prepared five letters for State Purchasing requesting that the plaintiffs be awarded a brand name contract. Hal-bon Terry Sharp, a maintenance foreman at Southeast Louisiana Hospital (“Southeast”), prepared two letters of intent on behalf of the hospital for State Purchasing. The first letter listed nine chemicals along with the hospital’s intended usage amounts. The second letter listed 24 chemicals along with the hospital’s intended usage amounts. Both letters begin accordingly: “Please see that Delta Chemical Corp. is approved to bid on a brand name contract. We anticipate using the following items.” The IG’s reports state:

The hospital has purchased only nine chemicals, of which some were not included on the first list, and not in the quantities anticipated. Mr. Sharp confirmed that Delta Chemical supplied him the information for the two letters. The letters are false as they pertain to the hospital’s usage. Joseph Yinturella, administrator for the hospital, said the proper procedure would have been for |4the purchasing office to have sent any letter of intent to State Purchasing.

Helene Huddleston, site facilitator for Delgado College’s (“Delgado”) Kenner office, also prepared two letters of intent for State Purchasing at the request of the plaintiffs. The first Huddleston letter contained a list of seven chemicals and the respective anticipated usages. The second mirrored the second Southeast letter. The IG’s reports found that Delgado’s Kenner office is leased, performs no maintenance on its air conditioning system, and thus has no use for the plaintiffs’ products. In fact, the reports note that Delgado’s Ken-ner office never bought or used any products from the plaintiffs.

Ms. Huddleston acknowledged preparing the letters of intent to the IG, but disclaimed any knowledge of the chemicals listed or how the usage rates were devised. She told the IG that Delta gave her the list of chemicals and usage rates and stated that she could not remember whether she composed the letters herself or copied them from other sources.

The IG spoke with Joseph Toomy, a Delgado Vice Chancellor, who stated that Ms. Huddleston should not have prepared the letters of intent on Delgado’s behalf. Rather, Mr. Toomy stated that George Gray, the supervisor of heating and cooling systems, was the person who should have sent the letters of intent. The IG spoke with Mr. Gray, who stated that he knew nothing about letters or Ms. Huddleston. Further, Mr. Gray told the IG that Delgado could not have used the amount of chemicals listed in the two letters on all of it’s campuses in a year.

The letter prepared by the Commission contained the same list of 24 chemicals and the same usage amounts as found in Southeast and Delgado letters. Like Delgado, the Commission leases its facility, and thus has no need for Delta byproducts. Sandra Jones, a buyer for the Commission, allegedly signed the Commission’s letter of intent. Ms. Jones denied signing the letter, and an unnamed Commission official asserted that the Commission had no knowledge of the letter. The IG’s reports recount these facts accordingly:

The letter was signed “Sandra Jones, Purchasing Clerk/LSRC.” Ms. Jones stated that she did not sign the letter and has no knowledge of Delta Chemical. She said she would not have identified herself as a purchasing clerk on a letter and instead would have only put “Purchasing” on the title line under her signature. Ms. Jones said she uses a computer when she writes a letter and noted that her name/title were not the same font as the rest of the letter but instead were typed in. Ms. Jones stated that she is currently a buyer for the Racing Commission, but that at the time of the letter she was a clerk 3.
The letterhead was an old style no longer used at the time in early 1998. The undated letter was not stamped received by State Purchasing as were the others, nor was any mailing envelope found in the State Purchasing file.
The IG spoke with plaintiff Mauber-ret. According to the reports, Mauber-ret initially claimed that he dealt with Jones, who he contacted at the suggestion of his sister Catherine, a veterinarian for the Racing Commission. According to the IG’s reports, Mauberret later changed his story and claimed that he spoke with someone at the Racing Commission office but that he did not know whom. The final report attaches the letter in question as well as a document with an undisputed Jones’ signature. Mauberret claimed that he left a list of chemicals with a person there. However, the Inspector General’s reports note that none of the people who would have had contact with him recalled Delta Chemical Corp. is approved to bid on a brand name contract. We anticipate using the following items.” In one column the document states: “Anticipated Annual Usage” and then lists the quantity. The list is the same for all three agencies.

The IG concluded that: (1) the foregoing conditions may be in violation of La. R.S. 14:133, concerning the filing of false public records; (2) Halbon Terry |fiSharp improperly submitted false letters of intent overstating the types and quantities of the plaintiffs’ products used by Southeast; (3) Ms. Huddleston improperly signed and submitted false letters of intent as Delgado’s Kenner office had no need or intent to purchase the plaintiffs’ products; (4) the Commission had no need or intent to purchase products from the plaintiffs; (5) the Commission letter was a forgery, but the IG noted in the final report that he did not know who forged the letter; and (6) the plaintiffs solicited letters of intent to purchase its products from three state agencies, two of which had no use for them, and that Delta provided information that was used in false submissions to State Purchasing.

Accordingly, the IG recommended that: (1) Delgado should take proper disciplinary action concerning Ms. Huddleston; (2) State Purchasing should take appropriate action in regards to the plaintiffs’ brand name contract; (3) State Purchasing should consider “debarment proceedings;” and (4) the District Attorney for East Baton Rouge Parish and the State Board of Ethics should review the IG’s report. The plaintiffs’ petition noted that State Purchasing failed to renew its brand name contract when it lapsed in September 1999; however, the petition also stated that State Purchasing awarded the plaintiffs a new brand name contract in February 2000.

The plaintiffs secured the services of Mary Ann Sherry, a document examiner. Ms. Sherry’s report reveals that she examined photocopies of the Sandra Jones letter of intent as well as several other photocopied documents obtained from the Commission that exhibit undisputedly Ms. Jones’ signatures. Ms. Sherry concluded that the writer of the undisputed signatures also wrote the disputed signature. Accordingly, the plaintiffs sent a copy of Ms. Sherry’s |7conclusion to the IG and asked him to rescind his report. The IG declined the request and the defamation lawsuit followed.

The primary issue before the court concerns the reasonableness of the attorney’s fees and costs awarded to the IG. In this regard, we apply the manifest error/clearly wrong standard of review.

The IG’s office was created 1 April 1988, by executive order of Governor Buddy Roemer, BR 88-10. It was recreated by Governor Edwin Edwards through Executive Order EWE 92-59. The Office was continued by both Governor M.J. “Mike” Foster, Jr. and Governor Kathleen Babi-neaux Blanco. Executive Order BR 88-10 provides in pertinent part:

NOW, THEREFORE, I BUDDY ROEMER, Governor of the State of Louisiana, by virtue of the authority vested in me by the Constitution and Laws of the State of Louisiana, do hereby establish in the Executive Department, Office of the Governor, Division of Administration, the Office of State Inspector General, to examine, investigate, and make recommendations with respect to the prevention, and detection of waste, inefficiencies, mismanagement, and abuse in all the state agencies, boards, commissions, authorities, task forces, departments and divisions of the executive branch of state government. [Emphasis added.]

In its first assignment of error, the plaintiffs urge the court to reconsider its prior rulings in this case that were addressed through the defendants filing of | Rapplications for supervisory writs. The plaintiffs argue that the law of the case doctrine should not apply because the pri- or decisions are erroneous and result in manifest injustice to them.

In Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (La.1972), the Supreme Court stated:

With regard to an appellate court, the “law of the case” refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice. Further, the law-of-the-case principle is not applied so as to prevent a higher court from examining the correctness of the ruling of the previous court.

See also, Zatarain v. WDSU-Television, Inc., 95-2600, p. 10 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181, 1186 (“This court generally applies the ‘law of the case’ doctrine when reviewing an issue decided on supervisory writs as part of the appeal of the case following a trial on the merits, except when it finds either that the previous decision is based on palpable error or that manifest injustice would result.”).

In Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559, the Supreme Court defined defamation as a tort involving the invasion of a person’s interest in his or her reputation and good name. In Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139, the Supreme Court enumerated the following four elements that are necessary to establish a cause of action for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault at least amounting to negligence on the part of the publisher of the information; and (4) resulting injury. The Court also stated that the fault element is often considered in the jurisprudence to be actual or implied malice. Id. The Court also stated that: “The fault requirement is generally referred to in the jurisprudence as malice, actual or implied.” Id.

In Sassone v. Elder, 626 So.2d 345, 353-54 (La.1993), the Supreme Court stated:

Plaintiffs in effect claim defamation by innuendo. In defamation by implication or innuendo, the court must distinguish between statements of opinion and statements of fact. In the case of opinion, if the defendant states non-defamatory facts on which he bases his derogatory opinion, he is not liable for defamation unless the opinion indicates the existence of other facts which are defamatory and would justify the forming of the opinion. Restatement (Second) of Torts § 566 cmt. c (1977). But if the defendant states a derogatory opinion without disclosing the facts on which it is based, he may be liable for defamation if the comment creates the reasonable inference that the opinion is justified by the existence of undisclosed defamatory facts. Id.

The case before us presents a similar situation. We have reviewed the appellate record before us, our prior rulings, and the IG’s reports. We specifically note that the plaintiffs were given an opportunity to refute the IG’s findings of fact and opinions in the draft report before the final report was published on the IG’s website. Although the IG may have arrived at some derogatory opinions, the facts on which those opinions are based are not defamatory; they simply are the facts as discovered by his office. Because the IG cannot issue subpoenas or compel Imtestimony, the office must rely on the cooperation of the covered agencies. We also find, based on a review of the entire record, no evidence of malice, actual or implied, on the part of the IG.

Thus, we do not find sufficient reason to avoid the application of the law of the case doctrine. Therefore, this assignment of error is without merit.

The plaintiffs’ remaining assignments of error involve the trial court’s award of attorney’s fees to the IG. The first argument is that the award to the IG is in derogation of the plaintiffs’ common rights and inconsistent with the intent and purpose of La. C.C.P. art. 971, which states in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

When La. C.C.P. art. 971 was enacted in 1999, Section 2 of Acts 1999, No. 734 (§ 1 of which enacted this article) provided:

Section 2. The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.” [Emphasis added.]

InWe do not find that the plaintiffs’ common rights have been derogated by an award of attorney’s fees to the IG. We reject the plaintiffs’ contention that the article be strictly construed in light of the Legislature’s plain language. We note that had the plaintiffs succeeded, they, too, might have been entitled to an attorney’s fees award.

The plaintiffs also ask that the article be applied only to media-related defendants. In State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, the Supreme Court recently set forth the law regarding statutory interpretation:

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.
|1gThe starting point in the interpretation of any statute is the language of the statute itself. ‘When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” [See, La. C.C. art. 9.] However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.”

Id. at p. 9, 951 So.2d at 130. [Citations omitted; reference added.]

We find no ambiguities in article 971. Had the Legislature intended to limit its application to media-related defendants, it would have done so. In addition, we find no reason to exclude the IG from the article. Finally, we find that the plaintiffs have misconstrued Lee v. Pennington, 02-0381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037. Nothing in that opinion should be read as limiting the scope of the article, but for those entities clearly enumerated therein.

Next, the plaintiffs contend that the trial court should not have awarded attorney’s fees under La. C.C.P. art. 971 B without considering mitigating factors presented in the litigation.

Statutes providing for penalties and attorney’s fees are penal in nature and must be strictly construed. Adams v. Burger King, 04-0146, p. 6 (La.App. 1 Cir. 2/11/05), 906 So.2d 540, 544, citing Langley v. Petro Star Corp. of La., 01-0198, pp. 3-4 (La.6/29/01), 792 So.2d 721, 723. However, we find that the statute does not allow us to consider any mitigating factors, such as the propriety of the original |ialawsuit. Article 971 B states that “a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.” [Emphasis added.] We do not read the statute as allowing the court to determine whether an award of attorney’s fees and costs, in and of itself, is reasonable, only whether the amount awarded is reasonable.

We recognize that prior decisions from this court have looked at mitigating factors when determining whether an award of attorney’s fees is warranted. Mitigating factors are primarily a decision for the trier of fact. However, because of Louisiana’s civilian tradition, this court must begin every legal analysis by examining primary sources of law, consisting of the constitution, codes, and statutes; jurisprudence, even when it arises to the level of jurisprudence constante, is a secondary law source. See Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L.Rev. 1369, 1372 (1988). Judicial decisions are not intended to be an authoritative source of law, and, thus, the civilian tradition does not recognize the doctrine of stare decisis. Doerr. v. Mobil Oil Corp., 00-0947, pp. 13-14 (La.12/19/00), 774 So.2d 119, 128.

We hold that La. C.C.P. art. 971 B mandates an award of “reasonable attorney fees and costs.” We are, however, allowed, and even required, to determine if the amount awarded is reasonable, thereby considering whether “mitigating factors” are applicable.

Recognizing that provisions in the law awarding attorney’s fees and costs are penal in nature and must be strictly construed, we find that the IG can recover only those fees associated with the motion to strike. We do not agree with the IG’s ^position that the IG is entitled to recover the attorney’s fees and costs incurred from the time the suit was filed until the day the trial court made the award. Thus, for example, the IG cannot recover attorney’s fees related to its litigation in this case of the venue issue. Therefore, we find the award of $20,000.00 is excessive and reverse the judgment of the trial court.

We also find the evidence submitted by the IG supporting the attorney’s fees and costs is completely inadequate. Looking at the evidence, this court cannot determine how much time was spent on the article 971 motion or any other aspect of this case. Therefore, we remand the matter to the trial court for a new determination of attorney’s fees and costs incurred only in preparing the article 971 motion, preparing memoranda of law relating thereto, and trying the motion to strike, based on the submission of detailed time records that describe with precision what was done and by whom.

Based on the foregoing, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

REVERSED; REMANDED.

      . Brand name contracts are awarded when a demand is established for a specific brand of product. A manufacturer or supplier has a distinct pricing advantage when bidding on its own brand and is often awarded the contract. The brand name contract gives the sole supplier of a given item the advantage of not having to bid on its products when they are sought by a state agency.

      . The plaintiffs initially filed suit against the defendants on 23 May 2000 in Jefferson Parish. The Commission excepted to venue in Jefferson Parish pursuant to La. R.S. 4:145.1, which provides that the Commission may only be sued in the parish of Orleans. All defendants filed a special motion to strike, as well as a motion to stay discovery, pursuant to La. C.C.P. art. 971. On 26 September 2000, the trial court deferred ruling on the motion to strike, but granted the Commission’s exception and transferred this matter to the Civil District Court for the Parish of Orleans. The plaintiffs unsuccessfully petitioned the Louisiana Fifth Circuit Court of Appeal and Supreme Court for reversal of the transfer order.

      . The granting of a special motion to strike pursuant to article 971 presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Dixon v. First Premium Ins. Group, 05-0988, p. 5 (La.App. 1 Cir. 3/29/06), 934 So.2d 134. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Clements v. Folse ex rel. Succession of Clements, 01-1970, p. 5 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312.

      . Authority for the establishment of the IG’s office is found in La. R.S. 39:7 and 39:8.

      . We note that the Executive Orders 88-10 and 92-59 creating and recreating the IG’s office do not authorize the IG to issue subpoenas in order to perform investigations. See, 12:3 La. Reg. 211 (4/20/88); 14:4 La. Reg. 1042 (8/20/92). Instead, all covered agencies are required to "extend full cooperation and all reasonable assistance to the state inspector general and his designees.”

      . To the extent that the plaintiffs are arguing that La. C.C.P. art. 971 is unconstitutional, that issue is not before us. See, La. C.C.P. art. 1880. In any event, in Lee v. Pennington, 02-0381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, we found the statute constitutional. We decline to revisit the issue here.

      . In 2000, when this suit was filed, article 971 B stated that a prevailing defendant on a special motion to strike "shall be entitled to recover” reasonable "attorney’s fees and cost.” However, a plaintiff could only similarly recover if the court found that "a special motion to strike is frivolous or is solely intended to cause unnecessary delay.” In 2004, article 971 B was amended to state that “a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.” Pursuant to La. C.C. art. 6: "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”
      The difference between a substantive law and a procedural law is that a procedural law merely prescribes a method of enforcing a previously existing right whereas a substantive law creates a new obligation where none existed before. Guste v. Burris, 417 So.2d 445 (La.App. 1 Cir. 1982); reversed on other grounds, 427 So.2d 1178 (La.1983). Because the statute changed the requirements for a plaintiff's ability to recover attorney’s fees, the change in the statute was substantive and has prospective application only.

      . La. C.C.P. art. 971 E states:
      This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.