author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Jerry L. WILLIAMS, Appellant.
    No. 42,914-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    Paul J. Carmouche, District Attorney, William Jacob Edwards, Tommy J. Johnson, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, PEATROSS & MOORE, JJ.
   PEATROSS, J.

PDefendant, Jerry L. Williams, appeals from his convictions for second degree murder and attempted second degree murder. On appeal, Defendant does not contest the sufficiency of the evidence to convict him; he raises issues concerning the admissibility into evidence of certain expert testimony and of the murder weapon. For the reasons set forth below, we affirm the convictions and sentences of Defendant.

FACTS

Ms. Sara Mims Payton lives in Shreveport in a home near the corner of Looney Street and Pierre Avenue. Ms. Payton’s 24-year-old son, Alonzo Mims, also resided at Ms. Payton’s house. On October 13, 2005, Ms. Payton and her son decided to go to a nearby grocery store. The two walked across the vacant wooded lot between her house and the store. After making their purchases, Ms. Payton and Alonzo started to walk back across the same vacant lot towards her home.

As they walked, they met Defendant, who was sitting on bricks in the vacant lot. Ms. Payton recognized Defendant because she had known Defendant and his family since before Alonzo was born. Defendant and his younger brother, Jason Williams, had been occasional visitors at Ms. Pay-ton’s home, and Defendant had been to Ms. Payton’s house the night before when he retrieved a jacket that he had left there.

Ms. Payton spoke to Defendant, who spoke back to her. Defendant then began speaking with Alonzo. Ms. Payton kept walking toward her house while Alonzo spoke to Defendant. Ms. Payton then noticed another man she described as “squatting” behind a tree across from Defendant. |2Ms. Payton looked back toward her son, and, because he had the keys, she asked him to let her into the house. At trial, Ms. Payton testified:

He [Alonzo] turned toward me to answer me. When he turned towards me to answer me, that’s when I seen Jerry go in his pants right here, pull the gun out, put it to the side of my baby head and shot (sic) him. I said, “Oh, my God, he done shot my damn baby.” So I broke out and I start running.

Ms. Payton further testified that Defendant chased her until she fell to the ground near her house. Defendant then shot her in the upper shoulder as she lay on the ground. The bullet passed through her shoulder and neck into her mouth, and she spit the spent bullet out of her mouth onto the ground. Defendant and the other man left the scene. Paramedics arrived and transported Ms. Payton and Alonzo to the hospital. Alonzo later died as the result of the gunshot wound to his head. A bullet fragment was later recovered from his head.

At the hospital, Ms. Payton could not remember Defendant’s name, but she told police that the shooter was one of two brothers who lived on Ziegler Street in Shreveport (a street that is only one block long) and who had “cat eyes.” In a photo lineup, Ms. Payton later positively identified Defendant as the shooter. Further, on the morning of the shooting prior to the event, a local pastor had spotted Defendant riding his bicycle and carrying a black handgun near the scene of the crime. Defendant was arrested for the shootings.

Shreveport police officers twice combed the crime scene, which was littered with trash and leaves, and recovered two fired cartridge cases and a spent bullet. One of the spent cartridge cases and the spent bullet were |srecovered from the area where Ms. Payton was shot. The other spent cartridge case was found near where Alonzo was shot. No weapon was recovered from the scene.

On November 22, 2005, Shreveport police officers were present at the home of Mr. Ervin Armstrong, an acquaintance of Defendant. The police were investigating Mr. Armstrong on an apparently unrelated matter and arrested Mr. Armstrong at his home. The lead detective in the case against Mr. Armstrong was not available to testify because he is serving in the military in Iraq, but several detectives who assisted in that investigation did testify. The details of the offense involving Mr. Armstrong, however, were not disclosed to the jury. After receiving consent to search the residence, police seized a Hi-Point .380 ACP handgun from Mr. Armstrong’s home.

Police sent the spent cartridge cases, the spent bullet and the firearm to the North Louisiana Crime Lab. At the lab, firearms section supervisor Richard Beigh-ley examined the evidence. Mr. Beighley, who has a college degree in biology, has worked in the crime lab as the lab’s firearms examiner since 1988. He is a member of several professional organizations, including the Louisiana and International Associations for Identification, the Association of Firearm and Tool Mark Examiners and the Southern Association of Forensic Science. Mr. Beighley had testified as an expert witness in his field more than 300 times in parishes all over Louisiana and in Federal court.

Mr. Beighley testified about the procedures he used to examine evidence, particularly the process he used to determine whether the |4submitted spent cartridges and the bullet were shot from the firearm recovered in Mr. Armstrong’s house. Defense counsel questioned him in detail and in particular about the lack of a potential error rate:

Q (Defense counsel): Whenever you measure anything in science like the distance from the Earth to the Moon, you have a plus and minus error rate and you can measure it with a certain accuracy depending upon your equipment. .... In this firearms identification, do they have any type of an established accuracy or error rate that can be given with the conclusion?
A (Witness): As far as — I’m not familiar with any type of error rate as far as percentage or I’d say the chance of error in this particular case I feel would be zero.
Q: You’re talking about this particular ease you come here to testify?
A: Yes.
Q: But what I’m asking you about is in this field, is there a standardized word or term that refers to errors in the field?
A: No, there is not that I’m aware of.
Q:.... To the best of your memory, do you ever recall any of the journal articles that talked about errors in the field or error rates or anything like that?
A: Not that I’m familiar with, no.

On redirect examination by the prosecutor, Beighley explained further:

Q: And about the questions regarding error rates, is there a difference in the analysis that you do as to firearm analysis and there be (sic) something along the lines of, let’s say, under DNA analysis where you have statistics which come (sic) a part of DNA analysis?
A: My analysis is mainly a visual analysis under the microscope. My results are based on my experience and my opinion. As far as percentages, they’re trying to attempt to assign percentages to striations, but in particular at this time there is no sound scientific method that I’m aware of about assigning percentages to striation.

IsThe court accepted Mr. Beighley as an expert witness over the objection of Defendant.

Mr. Beighley determined by visual inspection that both cartridge cases had been fired from the same gun. A bullet was test-fired from the seized Hi-Point pistol, and Mr. Beighley used a forensic comparison microscope to compare that bullet with the bullet recovered from the crime scene. After performing the comparison, Mr. Beighley concluded that the bullet at the crime scene was fired from the pistol. He explained that this visual comparison process was the method generally accepted in the forensic scientific community and has been so accepted since about 1925. Further, the comparison method is subject, both generally and specifically, to peer review; the comparison testing is based on well-understood physical properties of materials and is repeatable and non-destructive.

Mr. Beighley explained that the barrel of the firearm, being harder than the bullet, leaves marks or striations on the bullet as the bullet passes through the barrel. Mr. Beighley also explained that these marks are unique to each gun. A 6" x 8" color photo of the bullets taken through the microscope confirms that the striations on the bullets match each other. Mr. Beighley was not able to positively match the bullet fragment taken from Alonzo’s head to the recovered Hi-Point pistol because of the damage to the bullet fragment, but he noted that the bullet fragment had similar general, or class, characteristics as a bullet fired from the seized gun. The trial court allowed Mr. Beighley’s testimony into evidence over the objection of Defendant to the relevance and undue prejudice of the | fitestimony. Defendant opted for a jury trial. In addition to the evidence related above, the State offered many other witnesses to describe the course of the investigation. The principal evidence against Defendant, however, was the testimony of Ms. Payton. At trial, Ms. Payton again identified Defendant as the person she saw shoot her son and then stand directly over her and shoot her. Defendant opted to testify; he denied his involvement in the shooting and testified that he was at a residence one street away from the event and heard the shooting.

The jury chose to credit the testimony of Ms. Payton and discredit that of Defendant. The unanimous jury convicted Defendant as charged of one count of second degree murder and one count of attempted second degree murder. The court denied Defendant’s motion for post-verdict judgment of acquittal. The court later imposed the mandatory life sentence without benefit of probation, parole or suspended sentence for the second degree murder and, for the attempted crime, sentenced Defendant to serve 37 years’ imprisonment at hard labor without benefits to run concurrently. Defendant now appeals arguing that the trial court erred in allowing Mr. Beighley to testify as an expert and also erred in allowing the firearm to be introduced into evidence because it was irrelevant, confusing and highly prejudicial.

DISCUSSION

Expert Testimony

Defendant urges that the trial court erred in admitting the testimony of Mr. Beighley which proved that the spent bullet found at the crime scene 17was fired from the Hi-Point pistol seized by police. Defendant argues that the failure to present any error rate in his firearm identification demonstrates that the testimony of Mr. Beighley failed to meet the Daubert criteria and was, therefore, insufficiently reliable to be admitted.

The Louisiana Supreme Court explained the test for admissibility for expert testimony at trial and the standard of review on appeal in State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, fn. 42:

As a general matter, under the standards set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which this Court explicitly adopted in State v. Foret, 628 So.2d 1116, 1121 (La.1993) (Louisiana’s La. C.E. art. 702 “virtually identical to its source provision in the Federal Rules of Evidence ... [Rule] 702”), the trial court is required to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. In performing this function, a trial court must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. Kumho Tire Company, Ltd., v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999). While Daubert specifically addressed scientific evidence, Kumho made clear that the trial court’s essential gatekeeping function applies to all expert testimony, including opinion evidence based solely on special training or experience. Id., 526 U.S. at 148-49, 119 S.Ct. at 1174-75. In the end, “the trial judge must determine whether the testimony has ⅛ reliable basis in the knowledge and experience of [the relevant] discipline.’” Id., 526 U.S. at 149, 119 S.Ct. at 1174 (quoting Daubert, 509 U.S., at 592, 113 S.Ct. at 2796.) “Whether Daubert’s specific factors are, or are not, reasonable measures of reliability ... is a matter that ... the trial judge [has] broad latitude to determine,” and a decision to admit or exclude is reviewed on an abuse-of-discretion standard. Id., 526 U.S. at 153, 119 S.Ct. at 1176.

| sUnder Daubert, supra, and State v. Quatrevingt, 93-1644 (La.2/28/96), 670 So.2d 197, cert. den., 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996), relevant factors determining whether scientific evidence is reliable include:

(1) The “testability” of the scientific theory or technique;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error; and
(4) Wfiiether the methodology is generally accepted in the scientific community-

State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, cert. den., 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).

The use of expert testimony to identify spent cartridge cases or bullets to a particular firearm has a long history in Louisiana and elsewhere and has been the subject of Daubert challenges in other jurisdictions. See, e.g., U.S. v. Diaz, 2007 WL 485967 (N.D.Cal.2007) (“No reported decision has ever excluded firearms-identification expert testimony under Daubert.”); U.S. v. Monteiro, 407 F.Supp.2d 351 (D.Mass.2006) (collecting cases). The Monteiro case discusses the available literature and evidence regarding the error rate in firearms examination and identification and observes that the extant information about examiner error is limited in its usefulness by the methodology of the studies so far conducted on that topic.

In the instant case, the reliability of Mr. Beighley’s testimony is established by the expert’s documentation of the process he used to reach his conclusion. In particular, the comparison microscope photograph of the | fltwo projectiles provides a particularized record of the expert’s methodology. The photo shows dozens of striations on both projectiles, and those striations are identical across the groove in the projectiles cut by the rifling in the barrel. Nothing in our review of the testimony of the expert witness and our visual comparison of the photographs of the two projectiles suggests in any respect that the trial court should have pursued further inquiry into the potential for error. Nothing in the record suggests that the trial court abused its discretion in allowing this testimony. We find, therefore, that this assignment of error is without merit.

Admission of Firearm

Defendant also argues that the trial court should not have allowed the firearm itself to be introduced into evidence because it could have misled the jury into thinking that Defendant was connected to another shooting. Defendant notes that police recovered the gun from Ervin Armstrong, a suspect in another shooting. Further, the State suggested that Defendant could have given the gun to Armstrong after the instant crime because there was evidence to show that Defendant was acquainted with Armstrong. Defendant urges that the prejudice to him created by the evidence of this connection outweighs the probative value of the handgun as evidence.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. La. C.E. art. 403 states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the Imdanger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” The trial judge determines whether evidence is relevant by deciding whether it bears a rational connection to the fact which is at issue in the case. State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276, cert. den., 528 U.S. 826, 120 S.Ct. 75, 145 L.Ed.2d 64 (1999). Likewise, the trial court’s determination that evidence is more probative than prejudicial is entitled to great weight, and that determination will not be overturned on appeal in the absence of a clear abuse of discretion. Green v. Claiborne Elec. Co-op., Inc., 28,-408 (La.App.2d Cir.6/26/96), 677 So.2d 635.

In the case sub judice, the handgun entered into evidence was shown to be the murder weapon through the testimony of Mr. Beighley, discussed above. The details of the recovery of the gun were not, in and of themselves, incriminating of Defendant. The jury did not hear the details of the crime of which Mr. Armstrong was accused; that evidence was only offered to explain the location from which the murder weapon had been recovered. The evidence tended to show that Defendant was acquainted with Mr. Armstrong, but the State offered no proof that the two were closely linked or were co-perpetrators of any offense. The weapon itself was relevant to the case in that it was shown to be the murder weapon and matched generally the description of the weapon given by Ms. Payton and by the pastor who saw Defendant with a weapon prior to the shooting. The trial court correctly concluded that any prejudice created by the introduction I nof the firearm and the details of its recovery was outweighed by the probative value of the evidence. This assignment of error is without merit.

CONCLUSION

For the reasons set forth above, the convictions and sentences of Defendant, Jerry L. Williams, are affirmed.

AFFIRMED.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. 113 S.Ct. 2786. 125 L.Ed.2d 469 (1993).


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Murphy J. WHITE, Plaintiff-Appellant, v. BOARD OF DIRECTORS OF ST. ELIZABETH BAPTIST CHURCH, et al., Defendant-Appellees.
    No. 42,903-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Murphy J. White & Assoc, by Murphy J. White, Mansfield, for Appellant.
    R. Lane Pittard, Benton, for Appellees.
    Before BROWN, PEATROSS and MOORE, JJ.
   MOORE, J.

| Murphy J. White appeals a judgment that rejected his claims for declaratory judgment, injunctive relief and damages, and that further appointed a special master and ordered the defendants, the board of directors of St. Elizabeth Baptist Church, to hold a directors’ election. For the reasons expressed, we affirm.

Factual Background

This is the third suit by Murphy White, an attorney appearing pro se, seeking to remove Moses Hughes as pastor of St. Elizabeth, a nonprofit corporation domiciled in Mansfield, Louisiana. The first suit, filed in April 2005 and seeking injunc-tive relief, was dismissed on an exception of no cause of action and not appealed. The second suit, filed in May 2005 and seeking to nullify allegedly ultra vires acts and obtain injunctive relief, was also dismissed on exceptions of no cause of action. This court affirmed in an unpublished opinion, White v. Hughes, 40,864 (La.App. 2 Cir. 5/17/06), 929 So.2d 297 (table).

The instant suit, filed in June 2006, recited a litany of accusations against Rev. Hughes. Specifically, Hughes charged lumber at Ivey Lumber on the church’s account, without authority and for his personal use; he stole money from the collection pan and removed furniture from the church; he brought a guest speaker to the church, a Mr. Granville, representing him as a California lawyer when in fact he was not a lawyer; he brought a guest preacher to St. Elizabeth, a Rev. Howard, who brandished a knife from the pulpit and threatened to cut anybody who “messed with” Hughes; he solicited the congregation to give him $1,000 to buy into a pyramid scheme; |2and he ran up outstanding arrest warrants for criminal nonsupport and NSF checks. Despite this damning conduct, the church’s board of directors never took up White’s motion to terminate Hughes. In fact, the board held a meeting-in December 2005, authorizing an additional person to sign checks on the church’s account and paying Hughes for providing music at two services; however, only eight of the 12 board members were present, and White was adamant that the four absent members, who had been vocal in calling for Hughes’s ouster, never received notice of the meeting.

White sought diverse relief: (1) a declaration that the described conduct was ultra vires and the transactions null and void; (2) a declaration enjoining Hughes from committing similar acts in the future; (3) a declaration that the board mismanaged the corporation; (4) an injunction barring Hughes from serving as pastor of St. Elizabeth; (5) a judgment ordering the church secretary, Donald Davenport, to refund all money disbursed to Hughes or others for his ultra vires transactions; (6) general damages for the board’s breach of fiduciary duties; (7) general and special damages for Hughes’s ultra vires acts; (8) a reservation of rights to submit the file to law enforcement authorities; and (9) general and equitable relief.

Hughes filed an exception of no cause of action on grounds that he was not a member of the board. The district court sustained it, and White has not appealed this partial final judgment. The board filed exceptions of res judicata, no cause of action, and vagueness, which the court denied.

The matter came to trial in March 2007. The witnesses related, in great detail, each event chronicled in the petition. Two board members ^aligned with Hughes, Walter White and Charlie Dinkins, insisted that Murphy White, as well as all board members wishing to oust Hughes, received proper notice of meetings. The church’s secretary and clerk, Donald Davenport, also insisted that proper notice was sent to all board members, but admitted he did not personally send notices. These witnesses were generally noncommittal about the allegations against Hughes. They said they “heard about” the unauthorized charges at Ivey Lumber, but they were not convinced this was illegal since Hughes was trying to initiate an outreach program and needed supplies. They seemed generally willing to forgive their pastor’s shortcomings, and Davenport stated directly that it was in the church’s best interest to retain Hughes as pastor.

Two witnesses were aligned with Murphy White: Rutha White and Robert White. Ms. Rutha, Murphy White’s sister and the church’s former assistant secretary, testified that the charges at Ivey Lumber, though small (totaling under $100), were illegal, and the church had no outreach program. Robert White, Murphy White’s father, insisted he did not receive notice of the December 2005 board meeting and, in his view, that meeting was illegal. He felt it was against the peace and dignity for a guest preacher to brandish a knife in the sanctuary. He added that whenever the subject of Hughes was broached, tensions flared and on one occasion a board meeting had to be dissolved because of loud argument.

Murphy White testified in a narrative, relating that St. Elizabeth had been in existence for 140 years but was not incorporated until he drafted its charter in 1994. He developed his allegations and stated that it was not in |4the church’s best interest to retain a pastor with an arrest record, a jail record, and history of dipping into the collection pan. He also testified that church membership had plummeted under Hughes’s tenure, but admitted that many of the names of lapsed members he provided in discovery had died, left town for other employment, or were actually still attending St. Elizabeth. He admitted threatening to call the law to a board meeting when tempers flared over the subject of Hughes. On examination by the court, White stated that the charter called for an annual election of the board of directors, but no election had been held since 1996.

The court ruled from the bench that the board was not properly constituted according to its charter. It therefore ordered an election within 60 days. It also appointed a special master, Richard Johnson, to oversee the election, and to assure that the legal board’s first action was to vote on retaining Hughes. By written judgment, the court also ruled that White failed to meet the requisite burden of proof to support the claims asserted and the relief requested. White has appealed, raising five assignments of error.

Discussion: Declaratory and Injunctive Relief

By his first assignment of error, Hughes urges the district court erred in failing to render declaratory judgment that Hughes committed certain acts and that these acts were not in the church’s best interest. He lists five acts: (1) theft from the church; (2) assisting in the unauthorized practice of law at the church; (3) facilitating his friend and agent, Rev. Howard, to come to the church and threaten members with a knife; (4) soliciting members , to | ^participate in an illegal pyramid scheme; and (5) having a number of outstanding arrest warrants on his record. The argument is chiefly factual, but it contends that by misrepresenting Mr. Granville as an attorney, Hughes was a principal to the unauthorized practice of law, a violation of La. R.S. 37:212; the pyramid scheme that Hughes promoted during a church service subjected members to “possible” prosecution for interstate transportation of stolen goods, a violation of 18 U.S.C. § 2314; and that criminal nonsupport made Hughes “worse than an infidel,” 1 Timothy 5:8.

By his second assignment, White urges the district court erred in failing to render declaratory judgment that the board breached its fiduciary duties by retaining Hughes as pastor. White contends that the fiduciary duty imposed by La. R.S. 12:226 A is a duty to act in the best interest of the corporation. Guidry v. Bank of LaPlace, 94-1758 (La.App. 4 Cir. 9/15/95, 661 So.2d 1052), units denied, 95-2498, 2490, 2477 (La.1/5/96), 666 So.2d 295, 296. White urges that the case is virtually identical to Mary v. Lupin Foundation, 609 So.2d 184 (La.1992), which recognized that a dissenting shareholder has a cause of action against the board of a nonprofit corporation for an alleged breach of fiduciary obligation under R.S. 12:226.

By his third assignment, White urges the district court erred in failing to enjoin Hughes’s employment at St. Elizabeth because of his acts contrary to the church’s best interest. White concedes there is no direct authority for an injunction to terminate a pastor, but contends that misappropriation from an employer warrants termination. Sim v. Beauregard Elec. Coop. Inc., 322 So.2d 410 (La.App. 3 Cir.1975).

| r,The board responds that the relief sought by White does not fit the procedure of the declaratory judgment as it will not remove uncertainty or terminate the dispute. La. C.C.P. art. 1876; Williams v. City of Baton Rouge, 2002-0339 (La.App. 1 Cir. 2/14/03), 848 So.2d 9. As a nonprofit corporation, the church is managed by its board of directors; as long as the board decides matters rationally, honestly, and without a disabling conflict of interest, its decision will not be reviewed by the courts. Atkins v. Hibernia Corp., 182 F.3d 320 (5 Cir.1999). The board submits that the record simply does not prove bad faith, criminal acts, fraud, or willful or wanton misconduct. Moreover, the choice of a pastor is an ecclesiastical matter not subject to civil review. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); LeBlanc v. Davis, 432 So.2d 239 (La.1983). Finally, the board submits the testimony was equivocal and does not support White’s interpretation of the various incidents.

Under the Code of Civil Procedure, a court has the jurisdiction to declare rights, status, and other legal relations whether or not further relief is or could be claimed. La. C.C.P. art. 1871. The purpose of the procedure is to settle and afford relief from uncertainty and insecurity with respect to those rights, status and other legal relations; the articles should be liberally construed and administered. La. C.C.P. art. 1881. The scope of the procedure is nevertheless limited:

Art. 1876. Court may refuse declaratory judgment
The court may refuse to render a declaratory judgment or decree where such judgment, if rendered, would not terminate 17the uncertainty or controversy giving rise to the proceeding.

A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and the declaratory judgment will remove the uncertainty or terminate the dispute. Williams v. City of Baton Rouge, supra, and citations therein. The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. Id.

The suitability of a declaratory judgment requires us to analyze the true nature of the case. The thrust of White’s action is to remove Hughes as pastor of St. Elizabeth. A declaration that some of Hughes’s acts were ultra vires or illegal, or a declaration that the board has relinquished its duty by failing to terminate him, would not terminate the real controversy; it would be an advisory opinion without practical effect.

Moreover, the selection of a pastor strikes us as an inherently ecclesiastical matter. The First Amendment of the U.S. Constitution and La. Const. Art. 1, § 8, both guarantee religious freedom and are interpreted to forbid courts from interfering in the ecclesiastical matters of religious groups. Serbian Eastern Orthodox Diocese v. Milivojevich, supra; Hawthorne v. Couch, 41,162 (La.App. 2 Cir. 9/21/05), 911 So.2d 907, and citations therein. This prohibition extends to matters of religious discipline, faith or custom. LeBlanc v. Davis, supra; Fluker Community Church v. Hitchens, 419 So.2d 445 (La.1982). White’s argument, suffused as it is with references to morality, church stewardship, and the biblical injunction |sof family support, only underscores that the true issue here lies deep "within the protected sanctum of the First Amendment. We perceive no manifest error in the district court’s decision to refuse the declaratory judgment.

For the same reasons, the court properly denied White’s request for injunc-tive relief. To bar Hughes from performing his duties would be to interfere in peculiarly ecclesiastical matters and trample on the traditional protection of religious groups. Moreover, an injunction is warranted only in “cases where irreparable injury, loss, or damage may otherwise result to the applicant.” La. C.C.P. art. 3601 A. The evidence presented at trial, while perhaps not flattering to Hughes or to certain members of the board, falls far short of the statutory standard. In short, the district court did not abuse its discretion in denying the injunction.

These assignments of error lack merit.

Board Election and Special Master

By his fourth assignment of error, White urges the court erred in appointing a special master without the consent of the plaintiff, in violation of La. R.S. 13:4165. By his fifth assignment, he urges the court erred in ordering an election of the board of directors when other remedies (injunction and declaratory relief) were available to the court and neither party requested an election. White contends that the order is tantamount to a mandamus, which is not proper if any other remedy is available at law. Wiginton v. Tangipahoa Parish Council, 2000-1319 (La.App. 1 Cir. 6/29/01), 790 So.2d 160, writ denied, 2001-2541 (La.12/7/01), 803 So.2d 971.

|flThe board responds that injunction and declaratory judgment were emphatically not available, for the reasons discussed in the first three assignments of error. The board cites White’s own admission that St. Elizabeth had not held an annual election for the board in over 10 years; hence, the order was reasonable and necessary to resolve the issues. Further, it argues that at trial, White was “relatively agreeable” to the appointment of the special master, and should not now be allowed to challenge it. Finally, it submits that the appointment was proper under the “exceptional circumstances” provision of R.S. 13:4165.

As noted above, courts will not interfere in purely ecclesiastical matters. Hawthorne v. Couch, supra, and citations therein. However, not all church disputes are purely ecclesiastical. The court has authority to determine whether a church board of trustees was legally constituted in accordance with the church’s charter, and to issue any orders necessary to enforce compliance. Smith v. Riley, 424 So.2d 1166 (La.App. 1 Cir.1982); Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1 Cir.1980). The court may even act when, pursuant to a church charter or bylaws, the congregation dismisses a pastor who refuses to relinquish his post. LeBlanc v. Davis, supra; Rose Hill Baptist Church v. Jones, 425 So.2d 348 (La.App. 3 Cir.1982).

The hiring or retention of a pastor was a function of St. Elizabeth’s board of directors. Murphy White testified that the charter required an annual board of directors’ election, but that no such election had been held since 1996. The current conflict over Hughes could be quickly obviated by |inthe action of a properly constituted board. On the showing made, the district court was entitled to find that the election of a board of directors in accordance with the charter was a prerequisite to resolving the controversy. An order to that effect was appropriate to enforce compliance. Smith v. Riley, supra; Wilkerson v. Battiste, supra. We perceive no abuse of the court’s discretion in fashioning this remedy.

White correctly shows that under the statute, the appointment of a special master requires “the consent of all parties.” La. R.S. 13:4165; Judson v. Davis, 2004-1699 (La.App. 1 Cir. 6/29/05), 916 So.2d 1106, writ denied, 2005-1998 (La.2/10/06), 924 So.2d 165. However, this record shows that corporate formalities had been disregarded for over a decade, and resolution of the issue required stringent adherence to the charter. In these circumstances, the appointment of a special master was reasonable and necessary to effectuate the remedy. Clement v. Four Winds Tribe-La., 2005-652 (La.App. 3 Cir. 12/30/05), 921 So.2d 193, writ denied, 2006-0672 (La.5/6/06), 930 So.2d 32. Moreover, when the district court announced the appointment of Mr. Johnson as special master, White stated:

Your honor, for the record, I have no objection to the selection of Mr. Johnson. I just maybe have a soft objection to the procedure but I have no objection to the selection.

In the context of the entire case, we must construe this ambivalent statement as a tentative consent to the special master appointment. The dispute over Hughes was festering and intractable, and corporate formalities had been long disregarded. In short, the appointment was reasonable and necessary to effectuate the remedy crafted by the court. We perceive no Inabuse of discretion. These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment rejecting Murphy White’s demands for declaratory judgment and injunctive relief, and ordering an election for the St. Elizabeth’s Baptist Church board of directors under the guidance of special master Richard Johnson, is affirmed. Costs are to be paid by the appellant, Murphy White.

AFFIRMED.


text:
    Toni Ford McCOY, Plaintiff/Appellant, v. Alton ROBBINS & Loretta Born, Defendants/Appellees. Alton Robbins, Plaintiff/Appellee, v. Toni Ford McCoy, Et Vir., Defendant/Appellant.
    Nos. 42,901-CA, 42,902-CA.
    Court of 'Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Murphy J. White & Associates by Murphy J. White, Mansfield, for Appellant, Toni Ford McCoy.
    Bethard & Bethard, L.L.P. by Robert E. Bethard, Coushatta, for Appellees, Alton Robbins & Loretta Born.
    Before CARAWAY, PEATROSS & DREW, JJ.
   PEATROSS, J.

Lin this consolidated appeal, the primary issue concerns the effect of a purported buy/sell agreement for the sale of approximately 13 acres and home located thereon in Mansfield, Louisiana, by and between Alton Robbins, through his power of attorney, Loretta Born, as seller, and prospective purchaser, Toni Ford McCoy. The trial court entered judgment ordering Ms. McCoy to vacate the home as requested by Ms. Born. Ms. McCoy appeals. For the reasons stated herein, we affirm.

FACTS

Mr. Robbins, through his daughter and power of attorney, Loretta Born, and Ms. McCoy executed a buy/sell agreement whereby Mr. Robbins would sell and Ms. McCoy would purchase approximately 13 acres of land and home located at 1302 Maple Street in Mansfield. The agreement provided for the payment of a $500 deposit by Ms. McCoy, which she paid. The agreement further provided for a purchase price of $60,000, but the agreement did not provide for any payments, nor did the agreement provide for a closing date. After the agreement was executed, Ms. McCoy made several unsuccessful attempts to secure financing for the purchase of the home. According to Mr. Robbins, Ms. McCoy occupied the residence for about five months while remodeling it and paid no rent or payments during that time because she was bearing the remodeling expenses. Thereafter, Mr. Robbins agreed to accept $200 per month “rent” until Ms. McCoy was able to obtain financing. Three and a half years passed, however, and the parties never closed the sale on the home.

12Mr. Robbins ultimately decided to have Ms. McCoy vacate the premises and provided her with notice to vacate. This prompted Ms. McCoy to file a “Petition for Injunction W/TRO” which sought to prevent Mr. Robbins from selling the property. Mr. Robbins, through his agent, Ms. Born, then filed a “Dilatory Exception of Unauthorized Use of Summary Proceedings” followed by a “Petition for Eviction and Possession of Premises.” The matters were consolidated and Ms. McCoy’s petition was dismissed as an improper use of summary proceedings. After a brief trial, Mr. Robbins’ petition for eviction was granted and Ms. McCoy was ordered to vacate the premises and to leave certain items there that were owned by Mr. Robbins. This appeal ensued.

DISCUSSION

La. C.C. art. 2440 states:

A sale or promise of sale of an immovable must be by authentic act or by act under private signature, except as provided in Article 1839.

Article 1839 provides that an oral transfer is valid when the property has been delivered and the transferor recognizes the transfer when interrogated under oath.

In the case sub judice, Mr. Robbins submits that the sale of the property was never closed and title was not transferred to Ms. McCoy because she was unable to secure financing. It is not disputed that Ms. McCoy paid a $500 deposit, but never paid the remaining $59,500 of the purchase price. In addition, Mr. Robbins did not admit under oath a transfer of the property. To the contrary, he argues that, in order to | ¡¡accommodate Ms. McCoy, he agreed to accept $200 per month rent on a month-to-month basis following her renovations of the property while she tried to obtain financing of the purchase price. Ultimately, she was unable to do so and he chose to have her vacate the premises.

The testimony reveals that Ms. McCoy was current with the $200 payments and that there were notations of “house note” on various payment instruments including cancelled checks and money order receipts. Ms. McCoy maintains that this indicates that the payments were house payments to be applied against the purchase price. Ms. Born, however, testified that she agreed as agent for her father to this modification of the memo on the checks out of sympathy for Ms. McCoy because Ms. McCoy had told her ailing mother, who was suffering from cancer, that she was purchasing the home rather than renting it. Ms. Born maintained that the relationship was a month-to-month rental arrangement. She testified that $200 per month was well below the rental value of the home and that, at that rate, it would take over 24 years to pay the purchase price, and with no interest. Mr. Robbins suggests that Ms. McCoy is attempting to salvage a failed buy/sell agreement by turning it into a bond for deed arrangement.

A bond for deed is defined as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941. Under this special contract to sell, possession of the immovable is delivered immediately to the prospective purchaser prior to the payment of the bond for deed [ ¿installments. Thomas v. King, 35,857 (La.App.2d Cir.4/3/02), 813 So.2d 1227. The bond for deed has been interpreted by the jurisprudence as a device to circumvent the normal prohibition against conditional sales, i.e., sales under which passage of title is postponed until payment of the price. Lyons v. Pitts, 40,733 (La.App.2d Cir.3/8/06), 923 So.2d 962; Seals v. Summit, 03-0873 (La.App. 1st Cir.9/17/04), 887 So.2d 91; David Levingston, Bond for Deed Contracts, 31 La. L.Rev. 587 (1971); F. Hodge O’Neal, The Conditional Sale in Louisiana, 2 La. L.Rev. 338 (1940).

Significantly, however, there is no evidence in this record of any written modification of the buy/sell agreement providing for installment payments toward the purchase price of the property. Likewise, there is no evidence of any credit sale deed or bond for deed arrangement for $200 per month or any other amount per month. We can find nothing in this record that indicates the written confection of any credit arrangement between the parties affecting this immovable property. The notations of “house payment” on some of the payment receipts are insufficient to support such a finding, especially in light of Ms. Born’s explanation of these notations as explained above.

In summary, we find no error in the trial court’s conclusion that the sale of the property was never confected according to the buy/sell agreement between Mr. Robbins and Ms. McCoy. Further, we find nothing in this record that supports a bond for deed arrangement; rather, the arrangement following the execution of the agreement was a verbal month-to-month lease at a rental rate of $200 per month, which lease can be terminated at | sany time by proper notice. La. C.C. art. 2727, et seq; La. C.C.P. art. 4701, et seq. Mr. Robbins properly notified Ms. McCoy to vacate and the trial court was correct in ordering the eviction.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of Toni Ford McCoy.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Sheila E. JENKINS, Appellant.
    No. 42,897-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Peggy Sullivan, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   GASKINS, J.

|TThe defendant, Sheila E. Jenkins, was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. She now appeals. The defendant’s conviction and sentence are affirmed.

FACTS

The defendant and the victim, Henry Jackson, both worked at Yount’s Appliance Store in Minden, Louisiana. They were also romantically involved. On December 29, 2005, the victim was heard yelling and cursing outside of the appliance store. Witnesses who were in the tobacco store next door could not initially see another person involved in the argument. However, one witness saw that he was talking on a cell phone. A green truck driven by the defendant turned into the parking lot at a fast speed, and accelerated toward the victim. The victim tried to avoid being hit by the vehicle, but, according to the witnesses, the defendant swerved to hit him. After impact, the victim fell to the ground and hit his head on the pavement.

The victim was transported to Minden Medical Center where he was stabilized before being transported to LSUMC, the regional trauma center. Several days later, the victim died as a result of his head injuries.

The defendant was indicted on a charge of second degree murder. Following a jury trial, she was found guilty as charged and sentenced to the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

The defendant now appeals her conviction.

JjLAW

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to the judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Morrison, 40,852 (La.App.2d Cir.4/12/06), 927 So.2d 670.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, units denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404,158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371; State v. Dorsey, 41,418 (La.App.2d Cir.9/20/06), 939 So.2d 608, writ denied, 2006-2686 (La.6/1/07), 957 So.2d 174. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Brown, 618 So.2d 629 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1222 (La.1993).

|4Second degree murder is “the killing of a human being:' (1) When the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1.

EVIDENCE

Two employees from the tobacco store located next to Yount’s testified that they could hear the victim outside “cussing and screaming.” According to the female witness, the victim yelled, “I don’t need this s — . F — her.” The male witness testified that the victim said, “F — you, bitch. I don’t need this s — .” From her vantage point, the female witness was able to see that the victim was talking on a cell phone. Both eyewitnesses testified that the green truck entered the parking lot and accelerated. Both were steadfast in their testimony that the defendant swerved to hit the victim with the truck. Then the truck stopped. The female witness testified that she heard the brakes slammed on after the impact. The male witness testified that he was in a position to see the rear brake lights; they did not come on until after the truck hit the victim.

The eyewitnesses stated that the victim appeared to have been hit by the right front side of the truck. The female witness thought that he had been struck around the leg area; the male witness believed that he was hit in the chest or abdomen. A police officer on the scene testified that the victim was bleeding from the back of the head. The detective assigned to the case stated that it appeared the victim had been hit by the rearview mirror on the passenger side of the truck.

| ¡¡The female witness testified that after the incident she heard the defendant make several different, contradictory statements about what happened: “He jumped out in front of me”; “I don’t know who was driving my truck”; and “My brakes went out.” According to the first police officer to arrive on the scene, the defendant initially said she didn’t see the victim and that she accidentally hit her boyfriend. When she was in the back seat of a patrol car, she also made statements that the brakes probably went out and that she thought the victim was “playing” once he was hit. She also told the officer that she and the victim had argued the day before because he was jealous of her “sugar daddy.”

The detective who investigated the incident testified that the defendant recounted leaving the victim, who was her boyfriend, in the parking lot while she went nearby to meet her “sugar daddy.” She told the detective that when she returned to the parking lot, the victim was “playing around” and “jumping around”; when the truck hit him, she thought he was still “just playing.”

The doctor who treated the victim at the Minden hospital and the Webster parish coroner both testified about the victim’s injuries. He sustained a large laceration to the back of head and ultimately died of cranial cerebral trauma. The defense questioned these witnesses about whether the victim had injuries to the legs or torso; the eyewitnesses to the incident had indicated that the truck possibly struck the victim in these jareas. According to the emergency room doctor, the victim had some abrasions to the trunk, the sacrum and the right hip.

The defendant presented the testimony of the tow truck driver who removed the truck from the crime scene. He stated that he noticed the brake pedal “drifting] slowly to the floor” when he moved the vehicle. He testified that he mentioned this to one of the police officers; the officer did not recall the statement. When the detective called the tow truck driver two weeks later, he told the detective that the brakes were not out but there was a problem.

The owner of the truck testified that about a week before the incident, he had the brakes worked on. After the truck was returned following the incident, he noticed a problem with the brakes “going down.” He had a new master cylinder installed. The defendant’s father also testified that after the incident, he had to pump the brakes to stop the truck.

In rebuttal, the state called the owner of the auto repair center where the truck was examined on January 3, 2006, at the owner’s request. He stated that the brakes were “a little spongy,” like they had air in them. He determined that the master cylinder needed to be replaced. However, he testified that a normal driver would have been able to stop the truck. He also noted that when a driver applies the brakes, the brake lights come on; the master cylinder has nothing to do with the lights.

Also testifying for the state was the owner of the auto repair center who had repaired the brakes on December 22, 2005; he examined the truck again on January 3, 2006. He testified that there was no problem with the |7brakes after he worked on them; however, he said a master cylinder can go out at any time. As to his examination of the truck after the incident, he characterized the brakes as having a “little bit of a sponge to the pedal.” Nonetheless, he testified that the vehicle would still stop. He also stated that when the brake lights come on is a good indicator of when the brakes are applied.

Also testifying for the defendant was a female coworker who stated that the defendant and the victim had a loving relationship and that they had just become engaged. However, after admitting that she did not know that the defendant had a “sugar daddy,” she conceded that she might not have known as much about the defendant and victim’s relationship as she thought.

DISCUSSION

The defendant argues the state failed to prove she had the requisite intent to kill or inflict great bodily harm and that the incident was an accident mainly attributed to the faulty brakes on the truck she was driving. The state contends that the record supports the defendant’s conviction as it presented sufficient evidence to satisfy all elements of the charged offense.

Viewing the evidence in the light most favorable to the prosecution, we find that the state presented sufficient evidence to convict the defendant of second degree murder. Based on the eyewitnesses’ testimony, the state established that the victim was heard yelling and cursing loudly into his cell phone, and shortly thereafter, the defendant was seen driving a truck into the parking lot where the victim was standing. The defendant was traveling |sat a rate of speed greater than would be normal for a parking lot. Upon seeing the truck moving toward him, the victim attempted to avoid being hit, but the defendant accelerated and swerved toward the victim, striking him with the vehicle. After the victim was hit by the truck, he fell to the ground and struck his head on the pavement, causing the fatal injury. The brake lights did not come on until after the truck hit the victim, indicating that the defendant did not brake before that point. Notably, the truck did not hit the building. Had the brakes not been working, the defendant would have struck the building after entering the parking lot at an accelerated speed.

The evidence presented by the state, through the testimony of the two eyewitnesses, was sufficient to establish that the defendant’s actions in driving the truck into the parking lot and striking the victim were intentional. The jury was provided with ample testimony and evidence from which it could infer that the defendant — by her actions of accelerating, swerving, and then hitting the victim — intended to kill or inflict great bodily harm against the victim. Factual conclusions reached by this jury based on credibility determinations of the witnesses should not be disturbed by this reviewing court.

Even considering the minor inconsistencies in the eyewitnesses’ testimony regarding which part of the truck actually struck the victim and which part of his body was impacted, the state met its burden of proof in this case. The jury, after being presented with the defendant’s theory, apparently chose to disbelieve her assertions that the vehicle she was |fldriving had faulty brakes or that there was some other type of mechanical failure. This determination by the jury is reasonable in light of the fact that the mechanics who worked on the truck before and after the incident indicated that it was possible for the truck to stop despite any problem that may have been present at that time.

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . When the detective asked for clarification, she said that her "sugar daddy” was a man who bought her "various things.” (Additional testimony during the trial revealed that this man also owned the green truck.)


author: BROWN, Chief Judge.

text:
    Augusta Gale WILLIAMS, Eula Mae Freeman, Henry T. Hicks, and Felton Hasson, Jr., Plaintiffs-Appellees, v. SUSTAINABLE FORESTRY 2000, L.L.C., Defendant-Appellant.
    No. 42,895-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.
    Wiener, Weiss & Madison by M. Allyn Stroud, Shreveport, for Appellant.
    Michael S. Coyle, Ruston, William A. Jones, Jr., for Appellees.
    Before BROWN, PEATROSS, and MOORE, JJ.
   BROWN, Chief Judge.

| Appellant, Sustainable Forestry L.L.C., appeals from a trial court decision granting summary judgment in favor of Augusta Williams, Felton Hasson, Jr., Henry Hicks and Eula May Freeman, and denying its motion for summary judgment. For the following reasons we affirm.

Facts

In the Fall of 2005, appellant, Sustainable Forestry L.L.C., reached an agreement with Augusta Williams, Felton Has-son, Jr., Henry Hicks, and Eula May Freeman (“Sellers”) to purchase and sell approximately 150 acres of immovable property owned by Sellers and located in Jackson Parish, Louisiana, for $1,000 per acre. This agreement was memorialized in a document entitled “Agreement to Purchase and Sell Immovable Property.”

Sustainable Forestry is a Louisiana Limited Liability Company whose principals reside in Louisiana. All of the individual sellers are non-Louisiana residents. The agreement was drafted by the buyer and circulated by mail to each of the four sellers. The four sellers who lived in different states signed the agreement on August 2, 2005, August 9, 2005, and August 11, 2005, and then the agreement was mailed back to appellant. On September 1, 2005, Sustainable’s representative signed the agreement.

The agreement provided that “[a] deposit of two-thousand and no/100ths ($2,000.00) Dollars shall be made with Augusta Williams with the signing of this agreement.” According to the L.L.C., on September 2, 2005, Debra Cardwell, acting on behalf of the L.L.C., sent a $2,000 check to Ms. Williams by U.S. mail. Ms. Williams, however, claims she never received the check.

|aOn November 2, 2005, the L.L.C. received a facsimile letter from an attorney for Ms. Williams stating that Ms. Williams had not received the $2,000 deposit. The fax letter further stated that the L.L.C. was “in default” and that Sellers were “voiding” the contract.

On November 2, 2005, the same day as receiving the fax, Debra Cardwell mailed another check for $2,000 to Ms. Williams. Ms. Williams, through her attorney, refused to accept the check tendered by appellant.

Sellers filed suit in Lincoln Parish seeking a declaratory judgment that the Agreement was null and void. The L.L.C. filed an answer and reconventional demand seeking specific performance to compel Sellers to honor the Agreement.

Sustainable Forestry L.L.C. filed a motion for summary judgment to dismiss the principal action and grant its reconventional demand. Sellers also filed a motion for summary judgment seeking declaratory relief as to the alleged invalidity of the Agreement and dismissal of the reconven-tional demand.

The trial court heard arguments on both motions and issued written reasons granting Sellers’ motion and declaring the agreement to purchase and sell invalid.

Summary Judgment

A motion for summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. hart. 966(B). Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Gleason v. State Farm Mut. Auto. Ins. Co., 27,297 (La.App.2d Cir.08/23/95), 660 So.2d 137, writ denied, 95-2358 (La.12/15/95), 664 So.2d 454. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); THH Properties Ltd. Partnership v. Hill, 41,038 (La.App.2d Cir.06/02/06), 930 So.2d 1214.

Discussion

Plaintiffs (sellers) submitted the affidavit of Augusta Williams in support of and in opposition to the motions for summary judgment wherein she states that she did not receive the $2,000 deposit, required by the agreement, prior to the November 2, 2005, fax letter voiding the contract.

Sustainable Forestry L.L.C. filed the affidavit of Debra Cardwell which states that she mailed the $2,000 deposit check to Augusta Williams on September 2, 2005, and upon learning that the check was not received, she sent another $2,000 check on November 2, 2005.

|4Louisiana Civil Code article 1990 provides:

When a term for the performance of an obligation is either fixed, or is clearly determinable by the circumstances, the obligor is put in default by the mere arrival of that term. In other cases, the obligor must be put in default by the obligee, but not before performance is due.

The language of La. C.C. art.1990 is clear. If the term is fixed or clearly determinable by the circumstances, then the obligee is not required to request performance, that is, to put the obligor in default. The obli-gor is automatically in default by the arrival of that term.

If, on the other hand, the term was not fixed or clearly determinable by the circumstances, then the obligee must put the obligor in default by making a request for performance in conformity with La. C.C. art.1991. See La. C.C. art.1990; see also La. C.C. art.2015, concerning notice to perform. The notice provided for in La. C.C. art.2015 is subject to the requirements governing a putting of the obligor in default.

A term for performance of an obligation is fixed when a certain date, a particular occasion, or a particular time period is set. Furthermore, a term for the performance of an obligation may be determinable by the circumstances, even though it is not fixed and is uncertain. Regardless, whether the term is certain, or uncertain but determinable, the obligor is put in default by the mere expiration of that term. See Saul Litvinoff, 6 La. Civ. L. Treatise: The Law of Obligations, (2d ed.2001) § 1.21.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation |smay be made in search of the parties’ intent. La. C.C. art.2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art.2047.

The portion of the contract currently at issue provides: “[a] deposit of two-thousand and no/100ths ($2,000.00) Dollars shall be made with Augusta Williams with the signing of this agreement.” Looking at this term, the parties’ common intent is clear and explicit, Ms. Williams was to be given a deposit of $2,000 when the agreement was signed.

The words of the contract are clear and explicit except as to whether the deposit was to be paid when the sellers had signed or when all the parties had signed. In either case, however, no payment was made. Whether the check was actually sent or what happened to the check we are unable to say. The only requirement was that the deposit was to have been delivered to Ms. Williams with the signing of the agreement. When the agreement was signed by Ms. Williams on August 11, 2005, and then on September 1, 2005, by the L.L.C., Ms. Williams had not received the $2,000 deposit. This could have been easily accomplished in a number of ways, such as enclosing a bank draft with the agreement or by electronic deposit to her bank.

Accordingly, we find that the term for the performance of an obligation, paying the $2,000 deposit, was fixed or clearly determinable by the circumstances, and that appellant failed to perform timely. Thus, we find that appellant was automatically in default, and the Sellers had the right to void the agreement.

| (¾ Conclusion

For the reasons stated above, we affirm the trial court’s ruling granting summary judgment in favor of Sellers, and denying appellants motion for summary judgment. Costs are assessed against Sustainable Forestry L.L.C.


text:
    STATE of Louisiana, Appellee, v. William Stephen CARTER, Appellant.
    No. 42,894-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    William Stephen Carter, in Proper Person.
    Schuyler Marvin, District Attorney, Dale Montgomery, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS and MOORE, JJ.
   MOORE, J.

_JjWilliam Stephen Carter, a/k/a “Chill Will,” was charged by bill of information with distribution of methamphetamine, a Schedule II CDS, in violation of La. R.S. 40:967. He proceeded to trial in which the jury found him guilty as charged. The court then sentenced him to 20 years at hard labor. He now appeals, raising by pro se brief three issues surrounding the jury’s rejection of his entrapment defense, and through appointed counsel the claim of excessive sentence. We affirm.

Factual Background

In early 2006 a confidential informant (“Cl”) told Bossier City Police Officer Chasen Swan that Carter was “moving meth,” so Swan and the Cl called him to arrange a controlled buy. The deal was set, with Officer Swan to work the transaction undercover.

On February 1, Carter drove to the appointed location, the Circle K on Hamilton Road at Barksdale Blvd., where Officer Swan and the Cl were waiting. Carter voiced some concern about selling to Swan, whom he did not know, but the Cl convinced him that Swan was “cool.” Carter let Swan into his Monte Carlo and drove with him to the parking lot of a warehouse on Cox Street. Carter then took out a plastic bag containing a small amount of white powder and asked Swan for $45. Swan replied it was not that much meth; he offered $40. Carter agreed, taking the $40 and giving Swan the bag. Carter added that this was “fire dope,” and he should call him again. Carter then drove Swan back to the Circle K and dropped him off.

Another officer, Louis Smith, conducted surveillance and confirmed that Swan got into Carter’s car, drove away, and returned a short while later 1¡¡with a bag of meth. Although Swan was “wired,” Smith did not record the transaction and could not recall anything he heard over the wire. Lab analysis confirmed that the powder in the bag contained methamphetamine. Officer Swan testified that he did not give the meth to Carter, and he did now know where Carter obtained it.

Carter testified in his own defense, admitting that he sold the meth to Swan for $40. He also admitted two 1995 convictions for property crimes and a 2005 conviction for possession of meth. However, he felt he had been pressured into the latest deal. He identified the Cl as Josh Morehead, a friend who worked sweeping parking lots and sidewalks for businesses after hours. He testified that Josh, along with two women named Tina and Christi, had been trying to get him to sell dope to Josh’s boss, whom he later learned was Swan. Josh told him that if he (Carter) would sell some “ice” to Swan, Swan would give him a job too. Carter finally agreed, as he was in financial trouble and badly needed a job. He testified that Josh gave him the meth that he later sold to Swan. He insisted that he never would have done this but for the inducement of Josh, who was working for Officer Swan.

On cross-examination, Carter testified that Josh was now out of state, perhaps in Kentucky, and that Tina and Christi still lived in Shreveport, but he did not subpoena them because he did not know their full addresses. He also testified that Officer Swan was lying about where Josh got the meth. Finally, he admitted that when Swan counteroffered $40, he could have backed out of the sale, but failed to do so.

|3By an 11-1 vote, the jury found Carter guilty as charged. The court sentenced him to 20 years at hard labor and this appeal followed.

Assignments Pertaining to Entrapment

By his first and fourth pro se assignments of error, Carter urges the district court erred in denying his motions for new trial and post verdict judgment of acquittal. He contends that the evidence clearly shows a confederation of two state agents, Officer Swan and the Cl, Josh Morehead, to induce him into a crime he would not otherwise have committed. He also argues that once evidence of the source of the CDS was introduced, the burden shifted to the state to prove beyond a reasonable doubt that the informer did not supply it, but the state failed to do so. United States v. Silver, 457 F.2d 1217 (3 Cir.1972); United States v. Bueno, 447 F.2d 903 (5 Cir.1971). He concludes that no conviction may be based on a sale of CDS which a government informer supplied to the accused for sale to an undercover agent. United States v. Bueno, supra.

The constitutional standard of review for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. It is not the|4function of a reviewing court to assess credibility or reweigh evidence. State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50.

Carter does not contest that he committed every essential element of the offense of distribution of a Schedule II CDS, but rather that he did so only by entrapment. Entrapment occurs when a state agent, to obtain evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting an offense when he is not otherwise predisposed to commit such an offense. State v. Brand, 520 So.2d 114 (La.1988); State v. Presson, 39,688 (La.App. 2 Cir. 4/6/05), 900 So.2d 240. The entrapment defense comprises two elements: (1) an inducement by a state agent to commit an offense, and (2) lack of predisposition to commit the offense on the part of the defendant. State v. Brand, supra; State v. Presson, supra. Entrapment is an affirmative defense which must be raised by the defendant and supported by a preponderance of the evidence. Id. Once the defendant meets this burden, the state has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992); State v. Brand, supra. Whether a government agent induced an otherwise innocent person into committing a crime is a question to be resolved by the trier of fact. State v. Brand, supra. On appeal, claims of entrapment are reviewed under the Jackson v. Virginia standard. State v. Presson, supra.

On this record, the claim of entrapment falls far short of undermining the jury’s verdict. Officer Swan began this investigation upon reliable | ^information that Carter was “moving meth,” and Carter admitted one prior conviction for possession of meth. These facts prove his involvement in the drug trade and strongly suggest a predisposition to sell. Against this showing, Carter advanced the self-serving claim that he had never sold drugs before, a contention the jury was entitled to disbelieve. Further, Officer Swan flatly denied suppling the Cl with any meth; Carter’s claim to the contrary was based on hearsay from Josh and Tina, whom he did not call to testify. The jury was entitled to reject Carter’s theory that the meth originated with Officer Swan, thus distinguishing the case from United States v. Bueno, supra. Carter’s admitted financial difficulties and prospect of quick cash would appear to be sufficient inducement for selling meth.

In short, the evidence was sufficient to prove beyond a reasonable doubt that Carter was predisposed to commit the offense and that Officer Swan did not induce him to do so. These assignments of error lack merit.

By his third pro se assignment of error, Carter urges the district court erred in denying his proposed jury instruction on entrapment, which allegedly included a definition of “predisposition.” He concedes that the court has substantial latitude in tailoring instructions as long as they fairly and adequately cover the issues presented by the case, but contends that the instructions given did not adequately cover the complex issues of affirmative defense, predisposition, actions of government informers, and public policies.

The court is required to charge the jury as to the law applicable to the case. La. C. Cr. P. art. 802. The state and defendant have the right before | ^argument to submit to the court special written charges for the jury. La. C. Cr. P. art. 807. This article further provides,

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

State v. Tate, supra; State v. Spears, 39,-302 (La.App. 2 Cir. 9/27/06), 940 So.2d 135, writ denied, 2006-2704 (La.8/31/07), 962 So.2d 424. Failure to give a requested jury instruction is reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. Id.

The district court refused the requested jury charge, as the general charge was “taken pretty much from the treatise on jury instructions.” The charge explained the concept of predisposition as follows:

A defendant is entrapped when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit. Entrapment is shown when it appears that an officer or his agent instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing. It is not entrapment if the defendant already had the reckless criminal intent and the officer or his agent merely furnished the defendant with the opportunity to commit the offense. The fact that an opportunity is furnished or that the defendant is aided in the commission of a crime which he was predisposed to commit or originated in his own mind is no defense.

This general charge closely tracks the explanation of predisposition found in State v. Brand and State v. Presson, supra. In at least two cases, courts have approved this precise formulation as an adequate jury- charge of entrapment. State v. Garrison, 400 So.2d 874 (La.1981); State v. Simpson, 2001-1850 (La.App. 4 Cir. 10/16/02), 829 So.2d 650, writ denied, 2002-3120 (La.9/19/03), 853 So.2d 634. We likewise find that the given charge adequately explains the concept of predisposition and the other elements of entrapment. The district court did not err in refusing Carter’s special jury charge. This assignment of error lacks merit.

By his second pro se assignment of error, Carter urges the district court erred in “not acknowledging” his motion to quash, which advanced “point, facts and situations establishing entrapment.” He contends that failure to address this motion was a denial of due process.

On close review, we do not find that Carter objected to the district court’s failure to rule on his motion. This waives the claim on appeal. La. C. Cr. P. art. 841; State v. Woodfox, 291 So.2d 388 (La.1974); State v. Griffin, 2002-1703 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, writ denied, 2003-0809 (La.11/7/03), 857 So.2d 515. Moreover, the motion to quash is a mechanism by which to raise pretrial pleas which do not go to the merits of the charge. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998); State v. Thomas, 28,790 (La.App. 2 Cir. 10/30/96), 683 So.2d 1272, writ denied, 96-2844 (La.4/25/97), 692 So.2d 1081. A motion to quash raising the factual defense of entrapment would be inevitably denied. State v. Thomas, supra. This assignment of error lacks merit.

Excessive Sentence

Through appointed counsel, Carter urges the 20-year sentence is excessive. He concedes he had three prior felony and 10 prior misdemeanor |sconvictions, but urges that two of the felonies predated 1994. He also argues that the district court “totally disregarded” the substantial evidence of entrapment, and that a shorter sentence would better achieve the dual objectives of punishment and rehabilitation.

The state responds that the court adequately considered all relevant sentencing factors. It concludes that in light of Carter’s significant criminal history, the 20-year sentence was no abuse of discretion.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Woods, 41,-420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writs denied, 2006-2768, 2781 (La.6/22/07), 959 So.2d 494. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130.

Referring to a presentence investigation, the court found Carter’s lengthy criminal history to be “very disturbing,” beginning with a 1992 misdemeanor conviction for theft and including nine other misdemeanors and three felonies. Carter was technically a fourth felony offender who had 1drawn probation for a prior CDS conviction. The court noted that Carter was 31 years old at the time of this offense, was married with one child, and had obtained a GED and CNA certificate. However, the court also noted that this offense resulted from circumstances that were likely to recur, and that the jury had rejected the claim of entrapment. Carter does not show that any of the court’s findings are wrong, and we discern adequate compliance with Art. 894.1.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The district court has wide discretion in the imposition of sentences within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710.

Distribution of methamphetamine carries a sentence of 2 to 30 years at hard labor and a fine of up to $50,000. La. R.S. 40:967 B(l). At two-thirds of the maximum, Carter’s sentence is long but is not out of proportion |into the offense and offender. Carter’s record shows a strong proclivity for criminal activity. His prior felony conviction for possession of Schedule II CDS resulted in a suspended sentence; he completed parole in December 2005, less than two months before the instant offense. The PSI discloses subsequent arrests for distribution of cocaine and meth. On this record we do not find any abuse of the court’s wide sentencing discretion. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Carter’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Debra JACKSON and Billy Ray McMahon, Jr., Plaintiffs-Appellants, v. BARD ACCESS SYSTEMS, The State of Louisiana through The Louisiana Health Care Authority or Louisiana State University Health Sciences Center, Shreveport, and Celeste Hollands, M.D., Defendants-Appellees.
    No. 42,890-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      J. Patrick Hennessy, Patrick A. Stegall, Shreveport, for Appellants.
    Ernest Paul Gieger, Jr., Rachel G. We-bre, New Orleans, for Appellee, Bard Access Systems.
    Jerald Lee Perlman, Baton Rouge, for Appellees, State of Louisiana, Health Care Authority; Louisiana State University Health Sciences Center, Shreveport; and Celeste Hollands, M.D.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ¶ This product liability and medical malpractice action was filed by the parents of Braimian McMahon, who was born at Louisiana State University Health Sciences Center (“LSUHSC”) in Shreveport on January 14, 1999, and died December 18, 1999. Because his gestational age was 26 weeks and he weighed 922 grams at birth, Braimian was placed in the neonatal intensive care unit where he remained for 158 days. His initial diagnoses were, but not limited to (1) respiratory distress, (2) renal insufficiency, (3) sepsis, (4) meningitis, (5) intracerebral hemorrhage, and (6) seizures.

While Braimian was in the neonatal care unit, in April of 1999, Dr. Celeste Hollands inserted a Broviac catheter to provide a stable access site. A few weeks later the tip of the catheter, which was manufactured by defendant, Bard Access Systems (“Bard”), broke off and migrated to Brai-mian’s heart. The migrating part was retrieved through a non-invasive radiological procedure. Braimian died seven months later.

Plaintiffs filed suit on March 30, 2000, alleging that the failed catheter resulted in Braimian’s condition weakening, contributing to his death. Furthermore, plaintiffs alleged that the catheter failed because, either when implanted it was defective or because the LSUHSC or Dr. Hollands committed a negligent act, or because of a combination of the two.

The LSU defendants filed an exception of prematurity and as to them, the matter was referred to a medical review panel. On September 6, 2000, in response to Bard’s motion to produce, the LSU defendants placed the catheter into the registry of the trial court. The catheter remained in the court record until plaintiffs filed a motion on August 4, 2005, to remove the ^evidence from the court record. Plaintiffs’ motion started a year-long process of trying to establish a protocol, agreeable to all parties, for testing the catheter. The parties finally agreed to a testing protocol. Testing by experts for both plaintiffs and Bard began on September 21, 2006. The LSU defendants waived its presence at testing.

At the conclusion of the initial testing, both experts agreed that additional testing, via electron microscope, would be necessary to determine the cause of the catheter’s failure. However, before this additional testing could take place, LSUHSC and Dr. Hollands filed a motion for summary judgment. Plaintiffs and Bard opposed the motion for summary judgment, arguing that it was premature, as the testing had not yet been completed. Although recognizing that testing of the catheter was ongoing, the trial court granted the motion for summary judgment in favor of the LSU defendants, LSUHSC and Dr. Hollands, on the basis that plaintiffs could not sustain their burden of proof “in showing causation of damages.” In particular, the trial court said, “[TJhat (based on the supporting affidavits) the child had sustained serious debilitating brain injury before this catheter was put in the vessel or vein ...” Plaintiffs then filed a motion for a new trial, which the trial court denied. Plaintiffs have appealed. In brief, Bard joined in plaintiffs’ request that this court reverse the ruling of the trial court. We reverse and remand for further proceedings.

| ^Discussion

Appellate courts review summary judgments de novo under the same criteria as governs the trial court. Schroeder v. Board of Supervisors of LSU, 591 So.2d 342 (La.1991).

Under La. C.C.P. art. 966(C)(1), a motion for summary judgment is appropriate only after “adequate discovery.” Petch v. Humble, 41,301 (La.App.2d Cir.08/23/06), 939 So.2d 499. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

Plaintiffs argue that the granting of the motion for summary judgment was premature because there is conflicting' evidence that the catheter did harm Braimian and testing of the catheter had not yet been completed. Plaintiffs further assert that once completed, the results of the testing could be instructive as to fault.

|4The record contains the affidavit of Dr. Edwards Gustavson. Dr. Gustav-son’s affidavit states that the failure of the catheter resulted in a blood clot going to Braimian’s brain, causing serious harm. Dr. Gustavson used the following unequivocal language: “[Tjhere could be no other cause for the deterioration of Braimian’s condition other than a defect in the catheter and its resultant migration and removal.” Dr. Gustavson did not opine that the LSU defendants violated any standard of care.

In his affidavit, Dr. Thomas Butler, an expert for the manufacturer, stated that the breaking of the catheter may have been caused by the negligence of Dr. Hollands and/or LSUHSC. Dr. Butler believed that an inspection with an electron microscope would be helpful in determining fault.

There are genuine issues of material fact concerning causation. Because the electron microscopic inspection was in progress and may be instructive as to fault, discovery was not completed and the granting of summary judgment was premature. La. C.C.P. art. 966; Adams v. Asbestos Corp. Ltd., 39,952 (La.App. 2 Cir. 10/28/05), 914 So.2d 1177.

| BConclusion

For the reasons set forth above, the trial court’s judgment granting the motion for summary judgment, dismissing Louisiana State University Health Sciences Center and Dr. Celeste Hollands, M.D., from this action is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

      . LSUHSC and Dr. Hollands correctly note that this action had been pending six years at this point; however, we note that the medical review panel did not file its results until 2003.

      . Dr. Gustavson’s affidavit was attached to plaintiffs’ opposition to the motion for summary judgment filed by Bard in 2003. It was not attached to their opposition to the motion for summary judgment filed by LSUHSC and Dr. Hollands; however, it was in the record and was referenced in plaintiffs' memorandum in opposition to the motion for summary judgment filed by LSUHSC. Recently, in Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La.App.2d Cir.04/04/07), 954 So.2d 883, writ denied, 07-1146 (La.09/14/07), 963 So.2d 1001, this court held that the trial court erred in refusing to consider an affidavit which was originally submitted in opposition to a prior summary judgment motion and incorporated by reference in an earlier opposing memorandum; therefore we find that Dr. Gustavson's affidavit, being part of the record, should be considered in a discussion of the matter at hand.

      . We are told that the testing has been completed, and a report is now available. In brief, Bard's attorney indicates that the report places blame on the LSU defendants. This assertion is beyond the evidence and is not considered.