author: THIBODEAUX, Chief Judge.

text:
    MELANCON EQUIPMENT, INC. v. NATIONAL RENTAL CO., LTD.
    No. 2007-1008.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2008.
    Rehearing Denied April 16, 2008.

      Robert E. Fruge, Grand Couteau, LA, for Plaintiff/Appellee, Melancon Equipment, Inc.
    Paul Gonsoulin Moresi, III, Abbeville, LA, for Third-Party/Appellee, Mark Goodyear.
    Christopher Joseph Piasecki, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant/Appellant, National Rental Co., Ltd.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

| defendant, National Rental Company, Ltd. (National Rental) appeals the trial court’s judgment which awards attorney fees and costs, both with interest, to the plaintiff, Melancon Equipment, Inc. (Me-lancon), as a result of unpaid services on an open account. National Rental contends that the trial court judge erred because, by virtue of the lease agreement entered into by Mark Goodyear (Mr. Goodyear), the third party defendant in the main demand, and National Rental, Mr. Goodyear is the proper party to hold liable for Melancon’s attorney fees and court costs.

For the following reasons, we amend and affirm as amended the trial court’s judgment.

I.

ISSUE

We shall consider whether the trial court erred in assessing all attorney fees and court costs, both with legal interest, against National Rental, as opposed to Mr. Goodyear, the third party defendant.

II.

FACTS

National Rental leased a John Deere tractor to Mr. Goodyear, the third party defendant, pursuant to a lease agreement. The tractor was damaged while in Mr. Goodyear’s possession. As a result thereof, National Rental took the tractor to Melancon, a mechanical work supplier, for an estimate for all necessary repairs. National Rental and Melancon had a business relationship which was predominantly based upon an open account.

Melancon made the estimate and, upon its receipt, National Rental allegedly' authorized Melancon to carry out such repairs. Melancon performed the |2repairs on the tractor, but National Rental never tendered payment. Thus, Melancon sent National Rental a demand letter by registered mail to no avail. National Rental refused to pay for the repairs, maintaining that Mr. Goodyear was the party responsible for the outstanding debt because it was him who authorized the repairs, thereby becoming Melancon’s customer.

As a result of National Rental’s refusal to pay the debt, Melancon instituted the main lawsuit against National Rental, claiming that it owed Melancon the sum of $2,418.62 on open account for the mechanical work performed on the tractor, in addition to reasonable attorney fees for the collection of its claim. Subsequently, National Rental filed a third party demand against Mr. Goodyear.

At trial, the judge ruled against National Rental and awarded Melancon $2,418.62 for the outstanding debt on open account, in addition to attorneys fees in the amount of $3,637.50, and court costs. With regards to the third party demand, the trial judge ruled against Mr. Goodyear, awarding National Rental $1,963.62, which constituted the cost of the repairs after deducting $455.00 for National Rental’s failure to mitigate damages. At trial, it was established that had National Rental performed the repairs in house, it would have saved $455.00 off Melancon’s quoted price. Mr. Goodyear, however, was not ordered to pay attorney fees and costs on the third party demand of National.

III.

LAW AND DISCUSSION

Standard of Review

“In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in | flight of the record reviewed in its entirety.” Cencac v. Public Access Water Rights Association, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). “In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one.” Tidwell v. Premier Staffing, Inc., 05-500, p. 2 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194, 1196 (citations omitted). Therefore, appellate courts may only reverse factual determinations if they find from the record that (1) no reasonable basis exists for the finding and (2) the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Likewise, the court of appeal may not reverse, even if convinced that had it been sitting as a trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Accordingly, we will review the record in its entirety to determine whether the trial court’s factual findings were reasonable, considering the evidence presented.

A.

Did the Trial Court Err in Assessing All Attorney Fees and Court Costs Against National Rental?

None of the parties is contesting the validity of the judgment whereby National Rental is compelled to pay Melancon $2,418.62 for the unpaid debt on open account. Rather, National Rental is challenging the validity of the judgment wherein it assesses Melancon’s attorney fees and court costs against it. Specifically, National Rental argues that the trial judge committed error because, pursuant to the Lease Agreement entered into by National Rental and Mr. Goodyear, the latter is responsible for indemnifying National Rental for “any and all claims, actions, ^expenses, damages, and liabilities.” In support of this argument, National Rental cites sections 13 and 15 of the lease agreement.

In response to National Rental’s argument on appeal, Mr. Goodyear asserts that he should not be held liable for Me-lancon’s attorney fees because “the Third Party Demand did not include a claim for attorney fees under the rental contract, and counsel for National Rental stated at the beginning of trial that his law firm was not charging a legal fee and that it was not being sought in the Third Party Demand.” Furthermore, Mr. Goodyear argues that “the Third Party Demand does not contain any language which suggests that Goodyear is responsible to National Rental under the rental contract or under general Louisiana lease law. As such, National Rental is not entitled to recover anything more from Goodyear other than the amount awarded by the trial court.” We disagree.

It is settled law that “[ajgreements have the effect of law between the parties, and the courts are bound to give effect to all such contracts according to the true intent of the parties.” Green v. TACA Intern. Airlines, 304 So.2d 357, 361 (La. 1974). Thus, the lease agreement entered into by National Rental and Mr. Goodyear governs the disposition of this dispute. Section 13 of the agreement categorically addresses the issue of attorney fees and court costs under the factual circumstances of this case.

With regard to attorneys fees, Section 13, in pertinent part, states as follows:

Section 13: “... in addition, Lessee shall pay Lessor all costs and expenses incurred by Lessor in exercising any of its rights or remedies hereunder, including reasonable attorney’s fees to be fixed at not less than 25% of the amount in default of $250.00, which ever is more.”

| sThis section clearly and unequivocally stipulates that Mr. Goodyear is to be held liable for attorneys fees for breach in an amount of 25% of the amount at issue, but no less than $250.00. Accordingly, National Rental is entitled to recover $490.90 in attorney fees from Mr. Goodyear, which constitutes 25% of the $1,963.62 awarded to Melancon on its Third Party Demand.

The fact that National Rental’s Third Party Demand did not include a specific claim for attorney fees under the rental contract is irrelevant. Louisiana Code of Civil Procedure Article 862 states that:

“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such a relief in his pleadings and the latter contain no prayer for general and equitable relief.”

See also Pottinger v. New Orleans Heating & Cooling Specialists, Inc., et al., 06-701 (La.App. 5 Cir. 1/30/07), 951 So.2d 1224, 1226.

[T]he thrust of ... [article 862] ‘is to permit courts to render substantive justice on basis of facts pleaded and to refuse to permit a denial of substantive rights (where the party has timely filed pleadings alleging the factual basis of his claim) because of technical defects of language or of some mechanical ‘theory of the case’ characterization defeating a recovery otherwise allowable under facts pleaded ... ’ (citations omitted). Jackson v. Zito, 314 So.2d 401, 404 (La.App. 1 Cir.), writ denied, 320 So.2d 551 (La. 1975).

Therefore, as long as the facts constituting the claim are alleged, a party may be granted any relief to which he is entitled under the pleadings and evidence. Western Dev. Group, Inc. v. Shlosman, 32-343 (La.App. 2 Cir. 9/22/99), 744 So.2d 197.

Likewise, National Rental is entitled to recover court costs associated |fiwith the Third Party Demand. Again, Section 13 of the lease agreement between Mr. Goodyear and National provides specifically that Lessee shall pay all costs incurred by Lessor in exercising any of its rights or remedies hereunder....”

The court costs associated with the Third Party Demand fall squarely within the ambit of Section 13 because this liability is related to the leased equipment as it derives, albeit indirectly, from the mechanical work performed on the leased tractor.

It is clear from the record that the lease agreement entered into by National Rental and Mr. Goodyear is the governing document between both parties. The lease agreement and the third party demand, taken as a whole, contain sufficient factual allegations to afford fair notice to Mr. Goodyear of the relief sought by National Rental. For these reasons, we affirm the trial court judgment, but amend it to hold Mr. Goodyear liable to National Rental for Melancon’s attorney’s fees in the amount of $490.90, as well as for the court costs incurred by National Rental as a result of the Third Party Demand filed by National.

IV.

CONCLUSION

For the foregoing reasons, we amend and, as amended, affirm the judgment of the trial court.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Art. 1703. Scope of Judgment
      A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    WASTE MANAGEMENT OF LOUISIANA, L.L.C., Plaintiff-Appellee v. LABOR FINDERS INTERNATIONAL, Ft. Pierce, Inc. and ABC Insurance Company, Defendants-Appellants.
    No. 43,052-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2008.
    Davenport, Files, & Kelly, by Michael J. Fontenot, Monroe, for Appellants.

      Taylor, Wellons, Politz, <& Duhe, by Paula M. Wellons, New Orleans, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

ItD efendant/appellant, Labor Finders International, Ft. Pierce, Inc., d/b/a Labor Finders (Monroe) (“Labor Finders”), appeals from the grant of summary judgment in favor of plaintiff/appellee, Waste Management of Louisiana, L.L.C. (“Waste Management”). For the following reasons we reverse and remand.

Facts and Procedural Background

In April 1999, Waste Management and Labor Finders entered into a Temporary Personnel Supply Agreement. This contract required Labor Finders to maintain insurance on behalf of Waste Management and its affiliates, as well as to provide for the defense and indemnification of costs for actions arising from the work to be performed by Labor Finders and/or costs arising from or caused by Labor Finders’ breach of the agreement. Based upon the language of the contract, Waste Management filed suit against Labor Finders for reimbursement of its litigation costs associated with the defense of tort and workers’ compensation actions brought by Cedric McGinnis, an employee of Labor Finders.

The underlying facts are set forth in McGinnis v. Waste Management of Louisiana, L.L.C., 40,330 (La.App. 2d Cir. 10/26/07), 914 So.2d 612, 613:

Cedric McGinnis appeals a judgment dismissing his personal injury action against Waste Management of Louisiana, L.L.C., its general liability insurer and one of its employees, Edward Bryant. The district court found that McGinnis’s exclusive remedy is in workers’ compensation. We affirm.
Factual Background
Waste Management is a provider of solid waste collection services. In April 1999, it signed a “temporary personnel 12supply agreement” with Labor Finders of Monroe, a temporary employment agency, for Labor Finders to provide personnel to Waste Management. The agreement provided that no personnel supplied by Labor Finders shall be employees of Waste Management. The agreement further provided that Labor Finders was an independent contractor vis-á-vis Waste Management and responsible for maintaining workers’ compensation insurance for its own personnel. Labor Finders paid its workers’ salaries according to a weekly time sheet provided by Waste Management. The agreement did not specify the type of work that temporary workers would be performing for Waste Management. Waste Management employed Edward Bryant, who is McGinnis’s uncle, as a garbage truck driver in Ouachita Parish; Bryant was not employed by Labor Finders. In April 2003, Bryant was shorthanded on his route so he asked McGinnis to join the crew, instructing him to apply for a job at Labor Finders. McGinnis did so and was accepted; Labor Finders sent him to work for Bryant at Waste Management as a Labor Finders employee.
On the morning of June 20, 2003, Bryant and McGinnis were collecting garbage on Rowland Road in Ouachita Parish when Bryant, who was driving, backed up the truck into the front end of a Ford Mustang that was waiting behind the truck. McGinnis (who was riding on the back of the truck) was unable to escape his position before the crash; his right leg was pinned between the car and the truck. McGinnis’s knee actually smashed out one of the Mustang’s headlights. He was taken to North Monroe Hospital and treated for serious injuries.

Waste Management defended the personal injury lawsuit and initially defended the workers’ compensation claim. Sometime after the conclusion of the tort action, Labor Finders assumed the defense of McGinnis’s workers’ compensation action.

During the discovery phase of this breach of contract action, Labor Finders admitted that it had no insurance policies in force and effect on June 20, 2003, in which Waste Management or its affiliates were named insureds. Based upon this admission, Waste Management filed its motion for summary judgment.

LThe trial court granted Waste Management’s motion, finding that Waste Management had not waived its right to recover from Labor Finders, that Labor Finders had breached its duty to provide insurance in favor of Waste Management and its affiliates, and that Waste Management incurred damages as a result of Labor Finders’ breach. From this judgment Labor Finders has appealed.

Discussion

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kelly v. City of Bossier City, 41,705 (La.App. 2d Cir.12/13/06), 945 So.2d 229. 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. art. 966(B). The mover has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt on this score should be resolved against granting the motion. Security Nat. Trust v. Kalmback, 613 So.2d 664 (La.App. 2d Cir.1993). If the moving party’s supporting documents are insufficient to resolve all material factual issues, then summary judgment must be denied. Id.

Waste Management argued that Labor Finders breached the agreement and, as a result, it was entitled to indemnification for the costs and expenses sustained in defense of the actions brought by McGin-nis. To support its argument Waste Management relied upon the following | contractual provisions (“Company” refers to Waste Management and “Agency” refers to Labor Finders of Monroe):

ARTICLE VII — Agency’s Indemnity
The Agency agrees to defend, hold harmless and unconditionally indemnify the Company, and all of its Affiliates (defined below), and all of their respective officers, directors and employees, against and for all liabilities, costs, expenses (including attorney’s fees and expenses of investigation), claims and damages which the Company may at any time suffer or sustain or become liable for by reason of accidents, damages or injuries (including injuries resulting in death) either to the persons or property, or both, of the Agency or Company, or employees of either party, or to other parties, in any manner caused by or resulting from the Agency’s breach of this Agreement or acts or failure to act by the Agency or its employees or agents in the performance of this Agreement, or in any manner arising from the work to be performed by the Agency, (including injuries or damages in whole or in part by the negligence of the company).
ARTICLE VTII — Insurance
The Agency agrees that at all times during this Agreement to maintain in full force and effect Employers’ Liability, Workers’ Compensation, Public Liability, Professional Malpractice, where applicable, and Property Damage, including contractual liability coverage for the above hold harmless provisions, and other insurance as specified by the Company ... all of such policies shall be endorsed to name the Company, and all of its Affiliates, as additional insured and such insurance shall be by insurers and for policy limits acceptable to the Company and before commencement of performance hereunder....

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 may be made in search of the parties’ intent. La. C.C. art. 2046.

| sClearly, Waste Management set up the insurance requirement of its subcontractor, Labor Finders, to pass on to the subcontractor’s insurer any liability for the negligence of the subcontractor’s employee(s).

A review of the contract, specifically Article VIII, supra, establishes that Labor Finders was to maintain liability insurance naming Waste Management as an additional insured. In fact, Labor Finders admits that if it did not do so, this failure would have been a breach of the agreement. Waste Management supported its summary judgment motion with the admission by Labor Finders that it had no liability insurance on the day of McGinnis’s accident that named Waste Management as an insured.

The trial court was correct in concluding that Labor Finders clearly breached the contract by failing to provide insurance. However, that does not end the inquiry. Even if Labor Finders had provided the insurance required by the agreement, would that insurance have covered McGinnis’s personal injury claim? The real issue in this case is the duty to defend. McGinnis’s tort claim alleged injury caused by the direct negligence of Waste Management’s employee, Edward Bryant. In particular, McGinnis asserted that Bryant backed the garbage truck into a vehicle which had stopped behind it, and as a result, McGinnis, who was on the back of the truck, was crushed between the two vehicles.

Article VII imposes a duty “to defend, hold harmless and unconditionally indemnify (Waste Management)” for all liabilities, costs, expenses, claims and damages “in any manner caused by or resulting from (Labor Finders’) breach of this agreement or acts or failure to act by (Labor Finders) employees or agents in the performance of this agreement or in any | ^manner arising from the work to be performed by (Labor Finders).” Further, a phrase that would include coverage for injuries or damages caused by the negligence of Waste Management or its employees was marked out and therefore not part of the contract. Why this clause was marked through remains an issue of fact. It appears, however, to show an intent not to provide coverage for negligent acts of Waste Management employees. Since coverage for an additional insured (Waste Management) is typically limited to liability arising out of the named insured’s (Labor Finders’) work or operations, Waste Management would have had to prove that Labor Finders had a duty to defend McGinnis’s allegations of negligence on the part of Waste Management and its employee.

A court must examine the well-pleaded allegations of the plaintiffs petition to determine whether the plaintiffs allegations create a duty to defend. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.04/12/05), 907 So.2d 37. Plaintiffs petition states that the sole cause of the injury was the negligence of Waste Management’s employee, Edward Bryant.

Obviously, Labor Finders had an obligation to provide insurance arid to defend and/or indemnify Waste Management for any claims arising from the negligent acts of Labor Finders’ employees. Equally obvious, Labor Finders would owe no such duty to supply Waste Management insurance or | indemnification for the damage caused to the Ford Mustang that was negligently backed into by Waste Management’s employee. Likewise, Labor Finders had no obligation to provide coverage or indemnity for the negligence of Waste Management’s employee in pinning McGinnis between the truck and vehicle.

We further find that because McGinnis was Labor Finders’ employee, his workers’ compensation claim would fall under the contractual requirement for Labor Finders to defend and indemnify.

Conclusion

For the reasons stated herein, we reverse the trial court’s grant of summary judgment in favor of Waste Management of Louisiana, L.L.C., and remand for further proceedings in accordance with this opinion.

Costs are assessed to plaintiff/appellee, Waste Management of Louisiana, L.L.C.

Reversed and Remanded.

      . This last phrase in parentheses was scratched through in the parties’ contract.

      . See 3 Couch on Insurance 3d § 40:25.

      . See American County Ins. Co. v. James McHugh Const. Co., 344 IIl.App.3d 960, 280 Ill.Dec. 86, 801 N.E.2d 1031 (2003) (holding that where a complaint alleges negligence only on the part of the, additional insured, the insurer did not have a duty to defend or indemnify the additional insured).


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Chadwick WRIGHT, Appellant.
    No. 42,956-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2008.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.
    Robert W. Levy, District Attorney, A. Shawn Alford, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Chadwick Wright, was convicted by a jury of second degree murder and the trial court sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

Defendant, Christopher Hill and Mon-jeral Foster met at the Lincoln Motel where Foster was staying because they had planned to commit a home invasion and armed robbery at the residence of Freddezzio Ferguson. Two weeks earlier, Defendant bought drugs from Ferguson. They decided to target him because they expected him to have drugs and money and because they did not think he would be able to report them to police due to his own illegal activities. During the early morning hours of January 22, 2003, the three men drove in a pickup truck to Ferguson’s house in Bernice and walked around the house looking through windows to see if anyone was awake. Defendant was armed with a Colt .45 caliber semiautomatic pistol, Hill was armed with a 9-mm rifle and Foster was armed with a 12-gauge shotgun. After putting on masks and gloves, Defendant kicked in the front door and yelled, “police, get down, get down.” Ferguson had fallen asleep in the living room while looking through catalogs when the three armed gunmen burst into his house. Adrianne Andrews, Ferguson’s girlfriend, was asleep in their bedroom with their one-year-old child, and a three-year-old and six-year-old were also asleep in another bedroom. Hill came into the bedroom with a pistol and told Adrianne not to move while Defendant and ^Foster were kicking and punching Ferguson. Ferguson asked them, “What did I do, man, what did I do?” The gunmen kept saying that they wanted it all and asked for Ferguson’s cell phone and gun; Ferguson told them he did not have a gun because he was on probation. Adrianne then realized that the gunmen were not actually police.

As Defendant and Foster brought Ferguson back to the bedroom at gunpoint, they knocked him to the ground and demanded drugs and money. Ferguson told Adrianne to give them all the money in the closet, which was approximately $1,500 that was kept in a jacket pocket, and Adrianne gave it to them; Ferguson told them he did not have any drugs. The older children were allowed to join Adrianne in the bed, and the gunmen were yelling at her to keep them quiet because they were crying. The gunmen continued beating Ferguson with their weapons, telling him it was not enough, while Ferguson was begging them not to hurt his family. Ferguson offered to take them to another location where they could get more money and drugs, and the gunmen agreed. Defendant and Foster then left with Ferguson in Ferguson’s car while Hill stayed with Adrianne and the children to make sure she did not call the police. Defendant and Foster told Hill that, if they were not back in 20 minutes, he knew what to do. At this point, Hill and Foster switched guns so that Hill now had the 12-gauge shotgun and Foster had the 9-mm rifle; Hill sat on a stool with a shotgun across his lap while waiting for them to return.

Foster drove Ferguson’s car while Ferguson and Defendant rode in the back seat; Defendant was armed with the Colt .45 caliber semiautomatic |spistol, and Ferguson was giving Foster directions of where to go. While Foster was driving, Ferguson grabbed Defendant’s gun and they wrestled over it. Foster testified that he pulled the car over and turned around to help Defendant, but that, when he swung around his 9-mm rifle, Ferguson grabbed the barrel of the rifle. Foster testified that, when he and Ferguson were wrestling over the 9-mm rifle, it went off and shot Defendant. At one point, Ferguson was struggling with both Foster and Defendant over both guns. Foster testified that he and Ferguson continued to struggle over the 9-mm rifle, and Ferguson was halfway out of the car at that time. Foster testified that, in the meantime, Defendant was trying to unjam his pistol and was beating Ferguson with the pistol. While Defendant was beating Ferguson with the pistol, the pistol discharged and wounded Foster. Foster testified that soon after getting shot, he lost consciousness; Foster testified that Defendant woke him and told him to move over and then Defendant drove them back to Ferguson’s house.

When Defendant and Foster returned in Ferguson’s car, Defendant beat on the door, told Hill to “come on,” and all three left in a truck. The three men first went to Rodney Young’s house in Ruston, where they called an ambulance for Foster, who was taken to Lincoln General Hospital. Foster testified that, when he woke up in the hospital, he originally told police he had been wounded in a drive-by shooting and gave them a false name because he knew he was wanted for a parole violation. In the meantime, Hill left the truck at an apartment complex in Grambling and hid the guns in an abandoned trailer on his parents’ property. Rodney Young, |4who had originally agreed to participate in the robbery but backed out because he was friends with Ferguson, took Defendant to a hospital in Shreveport.

After the gunmen left, Adrianne called her mother and went to Ferguson’s car, where she saw his shoe and blood all over the car; Adrianne then called police. At approximately 5:00 a.m., Kathy Tucker, the owner of C.D.’s Restaurant in Bernice, noticed as she pulled into the driveway of the restaurant that a grease barrel had been overturned and then noticed a body lying behind it. After flagging down a neighbor and telling him what she saw, the neighbor went to look; the neighbor came back and told her to call 911 because it was Ferguson and that police had been looking for him. An autopsy later revealed that Ferguson died from a combination of multiple gunshot wounds to the chest and abdomen and blunt force trauma to the head that caused three skull fractures. Dr. James Traylor, a forensic pathologist, testified that Ferguson sustained 11 wounds to his head and that, with the exception of the graze wound to his arm, the gunshot wounds were sustained outside the car.

Bernice Police Officer Eric Henderson secured the scene, and officers from the Union Parish Sheriffs Office collected evidence and photographed the crime scene, which contained four spent .45 caliber shell casings, projectiles, blood and skid marks. When Ferguson’s body was removed from the scene, a malfunctioned .45 caliber round was found underneath his body. Two spent 9-mm cartridge cases were recovered from inside Ferguson’s vehicle. The weapons used by Defendant, Hill and Foster were | ¡^recovered at 436 Garr Road in Grambling, with two of them being found inside the house and one being found behind the house. An expert in firearms identification from the North Louisiana Crime Laboratory determined that the bullet recovered from Ferguson’s body was fired by the Colt .45 caliber semiautomatic pistol, which was admitted as State’s Exhibit 14; that the .45 caliber bullet recovered from Ferguson’s car had also been fired by the Colt .45 caliber semiautomatic pistol; and that the two spent 9-mm cartridges recovered from Ferguson’s car were fired by the 9-mm rifle, which was admitted as State’s Exhibit 16.

Detective Trey Fulton testified that evidence at the crime scene indicated that more than one person had been shot. Detective Fulton testified that Erica Mayfield went to see Foster at the hospital, and she gave them information that led to the discovery of Foster’s real name and Hill’s involvement with Foster. The investigation ultimately developed Defendant as a suspect, and Detective Fulton learned that Defendant had sustained a gunshot wound and that Defendant had turned himself in to Shreveport Police. Defendant gave a statement to Detective Fulton, and this statement was played for the jury. In this statement, Defendant said it was a “big accident.” Defendant admitted to the robbery and home invasion being planned, that he was armed with a .45 automatic, that everybody got shot when they were all fighting over the guns, that Ferguson fell out of the car and that they drove away. Defendant stated that he did not intend to kill Ferguson, but that Ferguson would not “stop the struggle.” Defendant | (¡stated that the robbery was his idea, his plan and that he was the main shooter, but that the shooting was an accident.

Defendant admitted at trial that he had three prior felony convictions and that he had participated in the home invasion at Ferguson’s residence. Defendant testified that he did not plan to shoot Ferguson or to take him away from his house and that the only reason they took him was because Ferguson offered to take them to another place for drugs. Defendant further testified that he fell asleep in the back seat and that Ferguson went after his gun at that time, which led to them wrestling over the gun. According to Defendant, Ferguson got the gun and tried to fire it, but it did not fire because it was not cocked. Defendant testified that he then threw up his hands, but that Ferguson cocked the gun. Defendant maintained that it was not necessary for Ferguson to shoot him, that he could have just talked to him, but that he started fighting back at that point. He explained that, when Foster turned around to help him fight off Ferguson, Foster accidentally pointed the gun at Defendant’s chest; Defendant also testified that it was he, not Ferguson, who was wrestling with Foster over the 9-mm rifle when it shot Defendant. Defendant ultimately related that he did not know how Ferguson got shot, but that he thought the pistol discharged when they were struggling over it and that he “lost control” after getting shot and that it was possible for Foster to have shot Ferguson. Defendant claimed that he did not tell investigators about Ferguson taking the gun from him and trying to shoot him because they did not ask him that question; Defendant testified that he told investigators that the shooting was an accident.

|7Christopher Hill later pleaded guilty to attempted armed robbery. Monjeral Foster pleaded guilty to armed robbery, and his conviction was affirmed by this court in State v. Foster, 42,212 (La.App. 2d Cir.8/15/07), 962 So.2d 1214. As previously stated, based upon the evidence presented, the jury unanimously convicted Defendant of second degree murder.

DISCUSSION

Assignment of Error Number One (verbatim): There is insufficient evidence to prove the guilt of Defendant for the offense of second degree murder beyond a reasonable doubt.

Defendant argues that the evidence is not sufficient to support his conviction because the State did not prove beyond a reasonable doubt that he did not act in self-defense. Conceding that there is no question regarding the fact that he shot and killed Ferguson, Defendant argues that he withdrew from the conflict when Ferguson gained control of his gun and he put his hands in the air. In the alternative, Defendant argues that conviction should be reduced to manslaughter because the shooting occurred in “sudden blood heat of passion” because Ferguson was fighting for the gun. The State argues that Defendant’s claim of self-defense is self-serving and absurd in light of the evidence.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have | «been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.2d 1333. 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, supra. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434, citing State v. Ford, 28,724 (La. App. 2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

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. 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. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, unit denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, unit denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,-903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223, citing State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, supra. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Barakat, supra, citing State v. Anderson, 36,969 (La. App. 2d Cir.4/9/03), 842 So.2d 1222. To convict a defendant based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. State v. Barakat, supra, citing La. R.S. 15:438.

La. R.S. 14:30.1(A) provides, in pertinent part:

Second degree murder is the killing of a human being: (1) when the offender has the specific intent to kill or to inflict great bodily injury; or (2)(a) When the offender is engaged in the perpetration or attempted perpetration of ... aggravated hnburglary, aggravated kidnapping, second degree escape, ... armed robbery, first degree robbery, second degree robbery, simple robbery, ... even though he has no intent to kill or to inflict great bodily harm.

The trial court instructed the jury on both intentional murder and murder committed during the perpetration of an aggravated burglary, armed robbery or aggravated kidnapping. According to La. R.S. 14:10(1), “specific intent” is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Further, the specific intent to kill may be inferred by the trier of fact from the circumstances, such as discharging a firearm at close range to the victim. State v. Wilson, 40,767 (La.App. 2d Cir.8/23/06), 938 So.2d 1111, writ denied, 06-2323 (La.4/20/07), 954 So.2d 159, cert. denied, — U.S. -, 128 S.Ct. 275, 169 L.Ed.2d 201 (2007).

The projectile recovered from Ferguson’s body was fired by Defendant’s gun, and Foster had already passed out from his own gunshot wound at the time Ferguson was shot. Thus, the State presented sufficient evidence from which a reasonable jury could determine that Defendant shot Ferguson. Given the evidence of the armed home invasion where Defendant and his accomplices were seeking money and drugs and the subsequent taking of Ferguson to another location, the State presented evidence from which a reasonable jury could determine that Defendant intentionally shot Ferguson or that he did so while engaged in an aggravated burglary, armed robbery or an aggravated kidnapping. Thus, the State presented sufficient evidence from which a reasonable jury could determine l^that Defendant committed second degree murder when he shot and killed Ferguson.

Defendant also concedes that there is no question regarding the fact that he shot and killed Ferguson. Even so, Defendant argues that he was acting in self-defense when he did so. When self-defense is raised as an issue by a defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App. 2d Cir.9/8/05), 913 So.2d 874, writ denied, 05-2567 (La.5/26/06), 930 So.2d 19. Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20 B(l); State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30; State v. Cotton, 25,940 (La.App. 2d Cir.3/30/94), 634 So.2d 937. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey, 38,243 (La.App. 2d Cir.5/12/04), 874 So.2d 352; State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

|1gFurther, as set forth in La. R.S. 14:21, “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, citing State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. When a defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Wilson, 42,440 (La.App. 2d Cir.9/19/07), 965 So.2d 992, citing State v. Matthews, 464 So.2d 298 (La.1985).

In the case sub judice, Defendant alleges that he withdrew from the.conflict when Ferguson gained control of the gun and he put up his hands and that the killing was then done in self-defense. Defendant and his accomplices were unquestionably the aggressors in this offense. Defendant did not tell investigators that he tried to withdraw from the conflict by putting his hands up when Ferguson gained control of the gun; rather, the only evidence of this supposed withdrawal was his own self-serving testimony. The fact that Ferguson fought back against two armed gunmen and may have temporarily gained control over a firearm does not constitute a withdrawal on the part of Defendant; Although both Defendant and Foster were shot during the struggle with Ferguson, it was Defendant and Foster |1swho shot each other through their own ineptitude; Ferguson did not actually shoot them. Ferguson was actually struggling with Foster over the 9-mm rifle when Defendant was beating Ferguson in the head with the .45 caliber pistol and, later, Defendant shot Ferguson twice with that same pistol. Since Defendant was the aggressor and there is no evidence that Defendant withdrew from the conflict in good faith and in such a manner that Ferguson would have known his intention to withdraw, Defendant is not entitled to claim self-defense.

In the alternative, Defendant argues that the conviction should be reduced to manslaughter because he killed Ferguson in “sudden blood heat of passion” when Ferguson was fighting for the gun. In pertinent part, La. R.S. 14:31(A)(1) defines manslaughter as a “homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” State v. Ellis, 42,286 (La.App. 2d Cir.7/11/07), 961 So.2d 636, writ denied, 07-1641. (La.1/25/08), 973 So.2d 753. “Sudden passion” and “heat of blood” are mitigating factors in the nature of a defense; and, when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Baker, 41,555 (La.App. 2d Cir.8/15/07), 962 So.2d 1198, citing State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert, denied, - U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The burden is on the defendant to prove by a preponderance of the evidence -that he acted in “sudden passion” 114or “heat of blood.” State v. Robinson, 32,794 (La.App. 2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008. The defendant is not obligated to establish the factors affirmatively; the jury may infer them from the evidence presented. State v. Ellis, supra, citing State v. Jackson, 34,076 (La.App. 2d Cir.12/6/00), 774 So.2d 1046.

Provocation shall not reduce a homicide to manslaughter if the jury finds that the defendant’s blood had. actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. State v. Ellis, supra. “If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act.” State v. Leger, supra. Questions of provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person. with ordinary self-control. State v. Leger, supra, citing State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Ellis, supra, citing State v. Lombard, 486 So.2d 106 (La.1986); State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), units denied, 508 So.2d 64, 65 (La.1987). Even so, mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La.App. 2d Cir.12/15/04), 889 So.2d 1257, unit denied, 05-0132 (La.4/29/05), 901 So.2d 1063, citing State v. Massey, 535 So.2d 1135 (La.App. 2d Cir. 1988).

|1ñAlthough Defendant had been shot during the struggle with Ferguson, he was actually shot by his accomplice, Foster. Further, when a victim is fighting back against two armed gunmen, actions of self-defense are not provocation to reduce a charge of second degree murder to manslaughter. Defendant fatally shot Ferguson during the perpetration of an aggravated burglary, armed robbery and aggravated kidnapping. Neither the fact that Ferguson acted in self-defense, nor the fact that Defendant was shot by his accomplice constitutes provocation to reduce the charge of second degree murder to manslaughter. Defendant, therefore, did not meet his burden of proving that he killed Ferguson while acting in “sudden passion” or “heat of blood;” and, thus, he is not entitled to a reduced verdict of manslaughter.

This argument is, therefore, without merit.

Assignment of Error Number Two (verbatim): Defendant’s confession was not freely and voluntarily given.

Defendant argues that his statement to police was not freely or voluntarily given because detectives made statements leading him to believe that he would receive assistance with his charges, that the officers would contact the district attorney on his behalf and that he would be able to put all of it behind him if he made a statement. The State simply argues that this claim has no merit.

Shreveport Police Detective Kevin Goodwin was interviewing Defendant on January 31, 2003, at the Caddo Correctional Center in regard to a burglary in Shreveport. Detective Goodwin testified that he advised Defendant of his Miranda rights and that Defendant waived them and gave a statement in regard to the burglary. Detective Goodwin testified that, after | ^concluding the statement on the burglary, he asked Defendant why people in Union Parish wanted to talk to him and that Defendant told him he “got in a mess up there.” After reminding Defendant of his rights, Detective Goodwin testified that he listened to Defendant briefly and then contacted detectives from Union Parish. Union Parish Detectives Trey Fulton and Don McClanahan drove to Shreveport to conduct an interview. Detective Fulton testified that he again advised Defendant of his Miranda rights and that Defendant indicated that he wanted to talk to them without a lawyer. Detective Fulton and Detective Goodwin testified that Defendant did not appear to be on drugs or alcohol and that no promises, threats or other coercion were used to obtain the statement.

The transcript of the statement indicates that Detective Fulton explained the Miranda rights to Defendant and that Defendant was willing to talk to them. At the beginning of the interview, the following exchange transpired:

Unknown: Hey Chad, let me interrupt you for just a second. Remember what we talked about earlier?
CW: About our case?
Unknown: Yeah, about our case. And, I talked to you about a little bit of something on the side? Help yourself right now; let him know what went down, okay.
TF: I’m not talking about this past week. I’m talking about the week before.
Unknown: I mean Chad, get this mess over, okay. Do you know where it’s leading, okay, if you don’t? Let’s get it over with; be honest with the guy. Tell him what you told me; don’t be afraid. You’re a man. You gotta deal with it. If not, you know what you are looking at. And, I don’t want to see you go down like that. You’re smarter than that man, |17alright? That Tuesday night in Ruston, where did y’all stay at? Where were you staying?
TF: I’ve talked to Monjeral, okay. And, he has told me.
Unknown: Get all this stuff behind you. There ain’t no sense in getting in a bind.
CW: Just don’t know how to explain it.
TF: The truth.
Unknown: You ain’t got to explain it cause we can’t, you can’t explain it. Tell the truth. What you told me. Now these guys are trying to see where they can help you.
TF: I believe, Monjeral told us what happened — his version, okay. I believe there is someone else involved other than you and Monjeral also. And, we want to identify that person, okay? But, I need to know, you’re [sic ] version of how that happened, okay.

(State’s Exhibit 24). Detective Goodwin continued to encourage Defendant to tell the truth. After Defendant stated that he would tell them the truth on one condition, Detective McClanahan informed Defendant that they could make him no promises:

CW: You know what? I’m gonna be straight with ya’ll.
Unknown: Okay.
CW: But, it’s only on one condition might I tell ya’ll what you want to know, on one condition.
McClanahan: Okay. I’m not going to lie to you; I can’t make you any promises, okay. I mean, I’ll do what I can, but I can’t make you a bunch of promises. So, go ahead and ask me what you want to know.
CW: All I want to know is, you know what I’m saying, is this a mercy on me and my cousin, you know what I’m saying? Cause the whole thing wasn’t nothing but a big accident.
McClanahan: Okay. Okay. We want to know. Let me tell you the truth. Do you want me to lie to you or tell you the truth? Is that correct?
CW: Sure.
11sMcClanahan: Okay, Look at me straight in the face. Look at me. I cannot promise you anything. None of these men can promise you anything. I will say this to you, that mercy, first, when this is all over with first thing you need to do it [sic] make it right with God; you know what I’m saying. You believe that don’t you?
CW: Uh huh.
McClanahan: And, ask God for mercy in this situation. Amd, you always have the option to ask the courts for mercy, okay. But, I’m not going to sit up here and tell you something that I cannot deliver. You know what I’m saying to you? The first thing, when this is all over with, you need to make it right with God. And, you know that I’m telling you the truth, don’t you? The only way you can get through this thing, and you know this as well as I do, is to tell the truth. That’s the only thing, is to tell the truth. And, tell us. I think you mentioned it was an accident or whatever. Well we want to know the details as to how it came about and everything. So that’s what I’m trying to explain to you.

(State’s Exhibit 24). Defendant went on to give a statement to the detectives.

Defendant testified that Detective Goodwin told him that he would talk to the district attorney for him, that Detective Goodwin told him that it was not as if he killed a preacher or anyone valuable to the community and that the detectives talking about God made him open up because he grew up in church. Defendant admitted that his rights were explained to him, but testified that he did not pay attention to it. Defendant testified that the detectives got inside his head and changed his emotions and that he was powerless. Defendant also testified that, just before detectives turned on the tape recorder, he told them that he did not want to talk about this.

11flDetective Goodwin denied offering to speak to the district attorney on Defendant’s behalf and explained that he told Defendant to help himself by telling the truth because he believes a person can feel better by being honest. Detective Goodwin also stated that, when he told Defendant that the other detectives were trying to help, he meant that they would try to help if he had not done anything wrong.

In State v. Ross, 42,399 (La. App. 2d Cir.8/29/07), 965 So.2d 610, this court set forth the general law in regard to reviewing a trial court’s pretrial ruling on a motion to suppress a statement:

In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Young, 39,546 (La.App.2d Cir.03/02/05), 895 So.2d 753, citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116.
At a hearing on a motion to suppress a confession the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. See La. C. Cr. P. art. 703.
Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Roddy, supra.
The question of voluntariness of a confession, including a determination of the defendant’s state of mind, must be resolved from the facts and circumstances of the particular case. State v. Demming, 40,033 (La.App.2d Cir.9/21/05), 911 So.2d 894.
The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be ovér-turned on appeal unless not supported by the evidence. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, U.S. cert. denied; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir.1992). Also, State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Thibodeaux, supra; State v. Roddy, supra. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra; State v. Henderson, 31,986 (La. App.2d Cir.8/18/99), 740 So.2d 240.

As a matter of federal constitutional law, any confession must be considered involuntary and inadmissible if it is obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. State v. Demming, supra.

In analyzing whether statements made by police were promises that render a statement involuntary, this court has previously stated the following:

A confession obtained by direct or implied promises, however slight, or by the exertion of any improper influence must be considered involuntary and inadmissible. State v. Morvant, 384 So.2d 765 (La.1980). A remark by the police telling the defendant that the officer will “help” or “do what he can or things will go easier” will not negate the voluntary nature of the confession. State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000[-]1427 [,] (La.5/11/01), 791 So.2d 1288; State v. English, 582 So.2d 1358 (La.App. 2d Cir. 1991), unit denied, 584 So.2d 1172 (La.1991). Further, informing a defendant that the district attorney will be advised of any cooperation is insufficient to overcome the free and voluntary nature of a confession. State v. Vernon, 385 So.2d 200 (La.1980); State v. Jackson, 523 So.2d 251 (La.App. 2d Cir.1988), writ denied, 530 So.2d 565 (La.1988).

State v. Holloway, 37,021 (La.App. 2d Cir.5/16/03), 847 So.2d 200, writs denied, 03-1720 (La.12/19/03), 861 So.2d 558 and 03-1929 (La.12/19/03), 861 So.2d 560. This court has also held that “statements by | ⅞! police to a defendant that he would be better off if he cooperated are not ‘promises or inducements designed to extract a confession.’” State v. Allen, 41,548 (La. App. 2d Cir.11/15/06), 942 So.2d 1244, unit denied, 07-0530 (La.12/7/07), 969 So.2d 619, citing State v. Petterway, 403 So.2d 1157 (La.1981); State v. Dison, 396 So.2d 1254 (La.1981). Further, “a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will ‘do what he can’ or ‘things will go easier,’ will not negate the voluntary nature of a confession.” State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, — U.S.-, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Statements of this sort are not considered improper promises or inducements because they “are more likely musings not much beyond what this defendant might well have concluded for himself.” State v. Demming, supra.

The record in the case sub judice clearly shows that Defendant was expressly told that the officers could make him no promises. The statements encouraging Defendant to help himself out by telling the truth are permissible as mild exhortations to tell the truth, not improper promises as Defendant alleges. Thus, there is no merit to Defendant’s claim that his statement was rendered involuntary due to promises made by investigators.

Assignment of Error Number Three (verbatim): The sentence imposed is excessive for this offense and this offender.

Defendant argues that his life sentence without benefit of parole, probation or suspension of sentence is constitutionally excessive for his conviction of second degree murder, despite it being the mandatory minimum sentence for the offense, because it is grossly disproportionate to Lathe offense and serves no purpose other than the needless imposition of suffering. We disagree.

Since Defendant failed to file a motion to reconsider sentence, he is limited on appeal to a bare claim that the imposed sentence is unconstitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993). In reviewing claims of excessive sentence, generally, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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 infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). Even so, when there is a mandatory sentence, such as a sentence of life imprisonment without benefit of parole, probation or suspension of sentence for a conviction of first degree murder, there is no need for the trial court to justify a sentence under La. C. Cr. P. art. 894.1 when it is legally required to impose that sentence. State v. Wilson, 938 So.2d at 1146. Further, the mandatory life provisions of La. R.S. 14:30 have consistently been upheld as constitutional and do not violate the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. State v. Sims, 32,461 (La.App. 2d Cir.10/27/99), 745 So.2d 151, writ denied, 99-3384 (La.5/12/00), 762 So.2d 11, citing State v. Toomer, 395 So.2d 1320 (La.1981).

| ¡>aBy arguing that the mandatory life sentence is excessive, Defendant is essentially arguing that the trial court should have made a downward departure from the mandatory sentence required by La. R.S. 14:30.1. In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court explained the circumstances in which a downward departure from the mandatory minimum habitual offender sentence is warranted, finding that it is rare and only warranted under exceptional circumstances. In those cases, the sentencing judge must begin with the presumption that the mandatory minimum sentence is constitutional. State v. Johnson, 709 So.2d at 676, citing State v. Dorthey, supra. The court may only depart from' the minimum sentence if it finds that the defendant presented “clear and convincing evidence” to rebut that presumption of constitutionality, which requires a showing that “ ‘[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.’” State v. Johnson, 709 So.2d at 676, quoting State v. Young, 94-1636 (La. App. 4th Cir.10/26/95), 663 So.2d 525, unit denied, 95-3010 (La.3/22/96) 669 So.2d 1223 (Plotkin, J., concurring).

Applying the reasoning from State v. Johnson, supra, to the present case, there is no justification for a sentence less than life imprisonment without benefit of parole, probation or suspension of sentence. Defendant did not present any evidence at the sentencing hearing to show that his circumstances were exceptional or that he was the victim of the legislature’s 124failure to assign sentences meaningfully tailored to his culpability, to the gravity of his offense or to the circumstances of his case. After imposing sentence, the trial court noted that the mandatory life sentence was especially appropriate under the facts of the present case:

Even though the sentence is mandatory under the law, it is most [sic] than justified by the particularly heinous facts of this case, by your extensive criminal record and by your lack of remorse. You invaded someone’s home while armed with a gun and threatened a man, his wife and several children. The victim was beaten about the head. The criminal activity of robbery and home invasion was deliberately planned in advance. Your family understandability [sic ], in the letters that they submitted, request mercy for you but I note that you showed no mercy for Mr. Ferguson. You deprived Mr. Ferguson’s ■ wife and children and his parents and other relatives of the support and companionship of their loved one. You placed, at risk more than one person by your activity, were armed with a dangerous weapon and it appears that you have a history of criminal behavior with at least three prior felonies. So when I consider all of this, I find that this sentence — a lesser sentence would deprecate the seriousness of the offense and is warranted in every respect.

Since Defendant has not shown that his case is exceptional and warrants a rare departure from the mandatory minimum sentence under La. R.S. 14:30.1, the sentence was not excessive, and the trial court properly sentenced Defendant to life imprisonment without benefit of parole, probation or suspension of sentence. This assignment is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Chadwick Wright, are affirmed.

AFFIRMED.

      . A transcript of this recording was admitted into evidence as State’s Exhibit 24.

      . Detective Goodwin testified that he was the person identified as "Unknown” in the transcript.


author: AMY, Judge.

text:
    Lamonteanson CHENEVERT v. William Earl HILTON, Sheriff, et al.
    No. 2007-1223.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Paul Boudreaux, Jr., Boyce, LA, for Defendant/Appellee, Premier 1 Centre, Inc.
    H. Bradford Calvit, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, APC, Alexandria, LA, for Defendants/Appellees, Sheriff William Earl Hilton, Glenn E. Whiddon, Juvenal Maldanado.
    Roger D. Phipps, Phipps & Phipps, New Orleans, LA, Larry B. Minton, Alexandria, LA, for Plaintiff/Appellant, Lamonteanson Chenevert.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

hThe plaintiff was knocked to the ground by an unknown third person outside a hotel lounge while he was being arrested by reserve deputy officers employed as the lounge’s security guards. He alleged injuries as a result and filed suit against the deputies, the Sheriff of Rapides Parish, and the premises owners, among others. The matter proceeded to a bifurcated trial on the plaintiffs negligence claims against the defendants. The plaintiffs claims were dismissed upon the granting of motions for involuntary dismissal and directed verdict. The plaintiff appeals. The defendants answer the appeal, seeking attorney fees and expenses associated with a civil rights claim, dismissed earlier in the proceedings. The defendants also seek dismissal of the plaintiffs appeal. For the following reasons, we deny the motion to dismiss appeal and affirm the trial court’s ruling.

Factual and Procedural Background

The plaintiff, Lamonteanson Chenevert, was a patron of the lounge at the Ramada Inn in Alexandria on the evening of December 26, 1992, as was his former wife, Glenda Mayeaux Chenevert. After Mr. Chenevert approached her, Ms. Chenevert notified the lounge’s security guards that she was in possession of a restraining order issued against her former husband. The record reflects that the security guards, Glenn Whiddon and Juvenal Mal-danado, were Rapides Parish Sheriffs Reserve Deputies. They asked Mr. Chene-vert to leave the premises. Mr. Chenevert contends that, because he had been drinking throughout that evening, he did not have a way to return home.

Later in the evening, Deputies Whiddon and Maldanado observed Mr. Chenevert outside of the lounge’s back door. According to Mr. Chenevert, the deputies ran outside, told him that he was under arrest, and took hold of his arm. He |2alleged that when they did so, and as they were attempting to handcuff him, he observed a “guy from a good little distance” who ran toward them and knocked the group to the ground. Mr. Chenevert alleged that he sustained a broken collarbone in the fall and that he was not provided with medical assistance until later in the evening.

Mr. Chenevert filed suit in December 1993, alleging various causes of action related to the incident, naming numerous defendants, and seeking damages assoeiat-ed with his injuries. When the matter reached a bifurcated trial in March 2007, only a negligence claim remained against Deputies Whiddon and Maldanado as well as against Premier 1 Centre, Inc., the franchisee of the premises. Pursuant to a cross claim filed by the premises defendants, Sheriff William Earl Hilton also remained a party to the suit. At the close of the plaintiffs case, the trial court granted motions for involuntary dismissal and directed verdict, citing a lack of proof as to duty and breach of duty. The plaintiffs claim and all incidental demands were dismissed with prejudice.

The plaintiff appeals, assigning the following as error:

1. On March 1, 2007 the Trial Court granted Defendants, Maldanado and Whiddon’s, Motion to Strike Jury Trial,' that judgment which is contrary to the law and evidence, should be reversed and this matter remanded for a jury trial on the merits.
2. On March 9, 2007 the Trial Court granted Defendants, Maldanado and Whiddon’s, Motion for Involuntary Dismissal with full prejudice; that judgment, which is contrary to the law and evidence,, should be reversed and this matter remanded for a jury trial on the merits.
3. On March 8, 2007 the Trial Court granted Defendant, Premier 1 Cen-tre, Inc.’s, Motion for Directed Verdict with full prejudice; |3that judgment, which is contrary to the law and evidence, should be reversed and this matter remanded for a jury trial on the merits.
4. On March 6, 2007 the Trial Court made certain evidentiary rulings concerning admissibility/inadmissibility of certain documents and witnesses discussed in Mr. Chenevert’s Pre-trial Memorandum, those rulings (judgments) are contrary to the law and evidence, should be reversed. Evidentiary rulings objected to at trial by Mr. Chenevert are contrary to the law and evidence, should be reversed.
5. The Trial Court required Mr. Chenevert who had been permitted to proceed in forma pauperis certain costs for the appeal which the Louisiana Code of Civil Procedure Art. 5185(1) & (4) provide he should not have been required to pay.

The defendants filed a motion to dismiss the plaintiffs appeal, asserting that the appeal was inappropriate as it was taken from interlocutory judgments. Consideration of the motion was deferred until review of the appeal.

The defendants also answered the appeal, seeking attorney fees, expenses, and costs for defense of the civil rights claim initially pursued by the plaintiff. They also offered alternative assignments of error in the event of a reversal of the dismissal of the plaintiffs claim below.

Discussion

Motion to Dismiss

The defendants first seek dismissal of the plaintiffs appeal as the Order of Appeal and Notice of Appeal designate judgments of March 1 and 8, 2007 as those appealed. As pointed out by the defendants, however, those dates relate to the granting of the motion to strike jury and the granting of the motions for involuntary dismissal and directed verdict. The defendants contend that the March judgments were interlocutory and that the trial court did not enter a final, appealable judgment until April 12, 2007. In this latter judgment, the trial court combined the issues and | rendered its Judgment of Dismissal With Full Prejudice. The defendants note that the April 12, 2007 judgment was not included in the order or notice of appeal.

Louisiana Code of Civil Procedure Article 2083 provides, in part:

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
C. An interlocutory judgment is ap-pealable only when expressly provided by law.

Having reviewed the judgments, we find no merit in the contention that the orders of March 1 and 8, 2007 were not final judgments. They not only identified the parties and granted the relief sought, but the plaintiffs claims against the moving parties were “dismissed, with full prejudice, at Plaintiffs cost.” To the extent that the defendants allege deficiencies in these judgments, any such deficiencies were resolved by the subsequent April 12, 2007 dismissal. Therefore, we deny the defendants’ motion to dismiss appeal and turn to consideration of the plaintiffs assignments.

Motion to Strike

The trial court granted the motion to strike jury trial filed by Deputies Whiddon and Maldanado pursuant to the Louisiana Governmental Claims Act, La.R.S. 13:5101, et seq. The plaintiff contests this determination on appeal, asserting that the deputies were acting in their capacity as security guards and not as deputies.

Louisiana Revised Statutes 13:5101(B) indicates that the Louisiana Governmental Claims Act applies to any suit for injury against “an officer or employee of a political subdivision arising out

of the discharge of his official duties or within the course and scope of his employment.” A sheriff is included within the | ¡jdefínition of “political subdivision.” See La.R.S. 13:5102(B)(1). In Simmons v. Turner, 04-374 (La.App. 3 Cir. 11/17/04), 888 So.2d 357, writ denied, 04-2994 (La.2/4/05), 893 So.2d 884, a panel of this court considered this definition in its determination that sheriffs deputies are employees of a political subdivision for purposes of the Louisiana Governmental Claims Act. Accordingly, deputies are able to avail themselves of La.R.S. 13:5105(A), which provides that: “No suit against a political subdivision of the state shall be tried by jury.”

We find no merit in the defendant’s contention that the above provision is inapplicable to reserve sheriffs deputies such as Whiddon and Maldanado. The plaintiff correctly states that the deputies were paid by the lounge to work as security guards for the evening. However, deposition excerpts supplied by the plaintiff in opposition to the motion to strike indicate that they were assigned to the lounge detail as part of their work as reserve deputies and that they received their training in the reserve deputy program. Furthermore, it is clear that the incident, which occurred during the plaintiffs arrest, arose out of the discharge of the deputies’ official duties or within the course and scope of their employment as is required by La. R.S. 13:5101(B).

This assignment lacks merit. Involuntary Dismissal

The plaintiff contests the trial court’s granting of the deputies’ motion for involuntary dismissal insofar as he contends that the deputies had a duty to protect him from the third party who knocked him to the ground while he was being detained, yet they failed to do so.

| Negligence claims arise under La. Civ.Code art. 2315(A), which provides that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Pursuant to the duty-risk analysis used for analyzing such a claim, a plaintiff must prove that (1) the conduct in question was the cause-in-fact of the resulting harm; (2) the defendant owed a duty of care to the plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of protection afforded by the duty breached. Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289 (La.1993).

With regard to involuntary dismissal, La.Code Civ.P. art. 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

A trial court’s granting of an involuntary dismissal is reviewed for manifest error. Basic Home Care Serv., Inc. v. Dore, 06-1036 (La.App. 3 Cir. 12/6/06), 945 So.2d 861. Our review of the record reveals no such manifest error.

As noted by the trial court, the plaintiffs case lacks proof that any duty owed |7by the deputies was breached. Rather, the plaintiffs description of the ■events is one of a sudden, unforeseeable act by a third party. The plaintiff described the deputies’ arrest of him and stated that they:

[B]oth grab my arm, they take it to the back, and they’re, they’re holding, gonna handcuff me, and the next thing you know, I’m looking up and you see this guy coming from a good little distance, he’s coming, runs right into us.” I mean he just smacked us, I mean, just knocked us all down.

No other evidence was presented indicating that the deputies could have or should have foreseen this occurrence. Nor did the plaintiff prove that any action/inaction by the deputies was unreasonable in light of the circumstance. In fact, it is unclear how the plaintiff would have had the deputies alter their actions so as to prevent his alleged injuries. In short, the plaintiff established only an occurrence and an alleged breach of duty. This type of allegation does not sustain his burden of proof. The trial court’s involuntary dismissal was not manifestly erroneous.

Directed Verdict

The plaintiff also contests the granting of Premier l’s motion for directed verdict as he contends the establishment owed a duty to protect him under The Alcoholic Beverage Control Law,. La.R.S. 26:1, et seq. Specifically, La.R.S. 26:90(A) provides, in part:

A. No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
(13) Permit any disturbance of the peace or obscenity, or any lewd, immoral, or improper entertainment, conduct, or practices on the licensed premises.

| sLouisiana Code of Civil Procedure Article 1810 provides as follows with regard to a motion for directed verdict:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is ■ not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

On review of a directed verdict, an appellate court considers the evidence presented and determines whether reasonable persons could have arrived at a contrary verdict. Hebert v. BellSouth Telecommunications, Inc., 01-223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, writ denied, 01-1943 (La.10/26/01), 799 So.2d 1145.

As with the other defendants, the plaintiff failed to present evidence as to a duty owed by Premier 1 under these circumstances and a breach of that duty. At the time of the incident, the plaintiff had not left the premises after being told to do so and was under arrest. No evidence was presented indicating that the establishment knew or should have known that the unidentified third party posed a risk or what further action would have been required of the premises’ owner under the circumstances. In light of these allegations, unsubstantiated by proof, no reasonable persons could have concluded that the plaintiff established Premier l’s negligence. Accordingly, the trial court did not err in entering the directed verdict, dismissing the plaintiffs claim.

| ⅜Evidentiary Rulings

The plaintiff next contests the trial court’s determination that records related to his alcohol treatment were admissible. He argues summarily that the records were confidential and should have not been introduced.

Louisiana Code of Evidence Article 401 defines relevant evidence as “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.” While relevant evidence is generally admissible pursuant to Article 402, it may “be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403. A trial court’s determination as to the relevance and admissibility of evidence will not be disturbed on • appeal absent an abuse of discretion. Johnson v. First Nat. Bank of Shreveport, 00-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, writ denied, 01-2770 (La.1/4/02), 805 So.2d 212, writ denied, 01-2783 (La.1/4/02), 805 So.2d 213.

We find no abuse of discretion in the trial court’s ruling. Rather, the plaintiff placed his physical condition at issue by the filing of suit. The records were also relevant insofar as the plaintiffs recollection or reporting of the events leading up to his injury to medical personnel may have differed from his testimony at trial.

|inIn an additional argument, which is unsupported to an extent so as to subject it to abandonment, the defendant also questions the trial court’s refusal “to permit the Administrative Law. Judge who had determined Mr. Chenevert was qualified to receive social security disability payments from testifying to this fact.” We do not address this argument as it is related to damages and has been rendered moot by the previous finding as to liability.

Costs

The plaintiff next questions the assignment of costs related to his devolu-tive appeal as he had been permitted to proceed informa pauperis. However, the parties’ briefs on this point indicate that review would entail documents and court rulings that were not designated as part of the record. Instead, the plaintiff attaches the documents to his brief. It does not appear that a separate application for review of the trial court’s ruling as to the costs, whether by writ application or by appeal, has been made. It is well settled that an appellate court renders judgment upon the record on appeal, that briefs and/or attachments to the briefs are not a part of the record, and that new evidence cannot be received on appeal. See C & B Sales & Serv., Inc. v. Slaughter, 04-551 (La.App. 3 Cir. 10/20/04), 885 So.2d 683. Accordingly, we do not review this assignment.

Answer

In an answer to the appeal, the defendants observe that the plaintiff originally pursued claims under 42 U.S.C. §§ 1983 and 1985, but that these claims were dismissed by the trial court upon their successful motions. Although the defendants Inpursued recovery of attorney fees and other costs pursuant to § 1988, the trial court denied their claim finding an absence of bad faith on the part of the plaintiff. The defendants again assert their claim before this court.

42 U.S.C. § 1988 provides, in part:

(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964, or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c) Expert fees
In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.

While a trial court has discretion to award fees to a prevailing defendant under § 1988, it may do so only “ ‘upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40, ftnt 2 (1983)(quoting, in part, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)).

Having reviewed the record, we find no indication that the plaintiffs initial claim was so frivolous, unreasonable, or lacking in foundation that the trial court was required to award fees under § 1988. Accordingly, we find no abuse of discretion and do not disturb the trial court’s determination.

^JjjDECREE

For the foregoing reasons, the motion to dismiss appeal is denied. The judgment of the trial court is affirmed. The defendants’ request for attorney fees is denied. All costs of this proceeding are assessed against the plaintiff-appellant, Lamontean-son Chenevert.

MOTION TO DISMISS APPEAL DENIED. AFFIRMED.

      . Although the premises owner was also named as a defendant, the petition was not amended subsequent to his death to substitute his succession as a defendant. •

      . In oral reasons for ruling, the trial court addressed both the motion for involuntary dismissal and the motion for directed verdict, stating:

        I’ve reviewed my notes extensively; paid attention throughout the trial. Reviewed the pretrial memos, considered the law governing this case, and ... I can’t come up with, with a duty. And if I did come up with a duty and accepted your premise that there was a duty to protect Mr. Chenevert, even though, I think the testimony has proven that he was not a patron at the time and he should [not have] been around the bar, I don't, I can’t come up with any way that duty would [have] been breached, because he was not being detained and all of the [sic] sudden a third party, criminal or not, intervened and engaged in activity that, based upon the Plaintiff’s testimony, caused an injury. But during the course of that event, everybody was knocked down, I just, I can't come up with a duty and breach of that duty. So, I'm gonna grant the Motion for Directed Verdict and Motion for Involuntary Dismissal.

      . During the course of proceedings, the plaintiff filed a motion to quash subpoenas related to discovery of the information related to alcohol treatment. The motion was denied by the trial court due to a determination that the filing of the plaintiffs lawsuit placing a physical or mental condition at issue constituted good cause for the discovery of the privileged treatment records. The plaintiff's subsequent writ application on the issue was denied. See Chenevert v. William Earl Hilton, Sheriff, 97-1156 (La.App. 3 Cir. 9/30/97). Accordingly, review of this issue is controlled by the law of the case doctrine. However, the plaintiff’s brief appears to focus on the admissibility of the information at trial.

      . Rule 2-12.4 of the Uniform Rules-Courts of Appeal provides, in part, that "[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”


text:
    Lisa JOHNSON, et al. v. Ashley CITIZEN, et al.
    No. 2007-1209.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellants Safeway Insurance Company of Louisiana Alex Savoy Eugene Savoy.
    Dominic J. Ovella, Hailey, McNamara, Hall, Larmann <& Papale, L.L.P., Metairie, LA, for Defendant/Appellee Enterprise Leasing Company of New Orleans.
    Dawn L. Morris, Preis & Roy, Lafayette, LA, for Plaintiff/Appellee Lisa Johnson.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

h The plaintiff filed suit against her uninsured motorist insurer, among others, following an automobile accident. Both the plaintiff and the insurer filed motions for summary judgment regarding the validity of a uninsured motorist coverage waiver. The trial court granted summary judgment in favor of the plaintiff, finding the waiver ineffective due to the form’s lack of a policy number. The insurer appeals. The plaintiff answers the appeal, asserting that the trial court erred in denying her request for penalties and attorney fees due to the insurer’s failure to tender its UM policy limits. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Lisa Johnson, alleges that her minor son was injured in an April 3, 2004 automobile accident. She filed the instant matter, naming Safeway Insurance Company of Louisiana as a defendant in its capacity as her uninsured motorist insurer. Safeway asserted that the plaintiff waived uninsured motorist coverage at the time she completed the application for her policy, February 25, 2004.

The plaintiff filed a motion for summary judgment seeking a determination that the UM coverage waiver urged by Safeway was ineffective due to Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, wherein the Louisiana Supreme Court determined that an insurer’s failure to include a policy number on the UM coverage waiver form rendered the waiver invalid. The plaintiff also sought penalties and attorney fees for Safeway’s refusal to tender the UM policy limits. Safeway filed a counter motion for summary judgment, arguing that Duncan is inapplicable where the | ^policy number had not been assigned at the time the UM coverage waiver form was executed.

Following a hearing, the trial court granted the plaintiffs motion for summary judgment, finding the UM coverage waiver invalid pursuant to Duncan. The trial court denied the request for penalties and attorney fees. The trial court also denied Safeway’s motion for summary judgment. The trial court designated the judgment granting the plaintiffs motion for summary judgment as a final judgment and expressly determined that there was no just reason for delay.

Safeway appeals, assigning the following as error:

The trial court erred in concluding that the rejection of uninsured motorist coverage by Safeway Insurance Company of Louisiana’s named insured was invalid due to the fact that there was not a policy number placed on said form, as there was not a policy number available to place on said form when it was executed by the named insured, since it was executed at the same time that the application for said form was completed, a point in time when a policy number had not yet been assigned.

The plaintiff answered the appeal and again seeks penalties and attorney fees.

| ¡¡Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) provides that a summary judgment shall be entered “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.” A trial court’s determination as to a motion for summary judgment is reviewed de novo on appeal. Supreme Services v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634.

Merits

In Duncan, 950 So.2d 544, the supreme court addressed whether the Uninsured/Underinsured Motorist Bodily Insurance Coverage Form, designated for selection of UM coverage by the Commission of Insurance, must contain the insurance policy number in order for a waiver to be effective. The supreme court ultimately found that the “failure to fill in the policy number on the form prescribed by the commissioner of insurance invalidates the UM waiver, and consequently, the UM coverage is equal to the liability limits of the policy.” Id. at 554.

The plaintiff in this case supported her motion for summary judgment with the UM coverage waiver at issue. Dated February 25, 2004, the form contains the inscription “TBD” in lieu of a policy number.

In its counter motion, Safeway asserted that Duncan was inapplicable as the supreme court case contains no information regarding the availability of a policy number at the time of the execution of the form under consideration. Safeway submitted the affidavit of Cynthia Balthazar, an employee of the insurance agency Lthat accepted the Safeway policy application, who explained that she assisted the plaintiff and that:

[T]he only reason why a policy number was not placed on the Uninsured/Under-insured Motorist Bodily Injury Coverage Form is that there was not a policy number assigned by Safeway Insurance Company of Louisiana at the time that the Uninsured/Underinsured Motorist Bodily Injury Coverage was completed, as it was completed in connection with the application for a policy with Safeway Insurance Company of Louisiana and at that time no policy number had been assigned. Accordingly, the initials “TBD” (to be determined) were placed on said form for the policy number.

Paula Thibodeaux, an underwriting manager for Safeway, also explained by affidavit that, at the time of the signing of the application and UM coverage form, the policy number was unavailable and “was not assigned by Safeway Insurance Company of Louisiana until receipt of the application for insurance[.]” Ms. Thibodeaux stated that:

Safeway Insurance Company of Louisiana has, at all times, relied upon the instructions provided by the office of the Louisiana Commissioner of Insurance with regard to the proper execution of Uninsured/Underinsured Motorist Bodily Injury Coverage Forms, including Bulletin LIRC 98-03 which states, in pertinent part, “The policy number should be shown at the lower right hand corner of the UM Form. In the case where a policy number is not available, the space for the policy number may be left blank or a binder number may be inserted.” [ ]

A copy of Bulletin 98-03, referenced above, was included with the submission.

In opposition to Safeway’s motion, the plaintiff submitted her previously cancelled Safeway policy and argued that “absent a policy number on a UM waiver, no presumption of valid waiver can attach because it cannot be known to which policy such a UM waiver refers.”

The trial court rejected Safeway’s arguments and relied on Duncan in granting summary judgment in favor of the plaintiff. However, in the period of time between | Bthe order of appeal and this court’s briefing period, the supreme court granted a writ application from a first circuit ruling, and stated:

Granted. The judgment of the trial court is reversed and Imperial’s motion for summary judgment is granted for the reasons assigned by the dissenting judge in the court of appeal. We also note this case is factually distinguishable from Duncan v. USAA Ins. Co., 06-0363 (La.11/29/06), 950 So.2d 544, because-the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time [the] UM waiver form is completed.

Carter v. State Farm Mut. Auto. Ins. Co., 07-1294 (La.10/5/07), 964 So.2d 375, 376.

In ■ our review, we consider the parties’ submissions in light of both Duncan and Carter. Although Carter was not available to the trial court, it now fully reveals that the present matter is factually distinguishable from Duncan. It is unquestioned that the UM coverage form lacked a policy number. However, as in Carter, Safeway’s submission indicates that the policy number may not have existed at the time the UM coverage form was completed. For these reasons, the granting of summary judgment in favor of the plaintiff, and finding the waiver ineffective, was in error and must be reversed. This determination renders moot the plaintiffs answer to the appeal, wherein she requests penalties and attorney fees for Safeway’s failure to tender the UM policy limits pursuant to Duncan.

As only the granting of the summary judgment in favor of the plaintiff is before this court on appeal, we do not consider whether summary judgment should have been entered in favor of Safeway. Rather, we remand this matter for further proceedings in light of Carter, 964 So.2d 375.

| (¡DECREE

For the foregoing reasons, the summary judgment entered in favor of the plaintiff, Lisa Johnson, is reversed. This matter is remanded for further proceedings. All costs of this appeal are assessed to Ms. Johnson.

REVERSED AND REMANDED.

      . Although Safeway was also named as a defendant in its capacity as the insurer of the driver of another vehicle involved in the accident, this latter capacity is not at issue in the matter now before the court.

      . The trial court explained at the hearing;
      The Court will deny the Motion for Summary Judgment on behalf of Safeway and grant the motion on behalf of die plaintiff. The Court finds that it must adhere to the Duncan decision. As indicated, by both counsel, the issue of whether or not the policy number needs to be placed on the— on the rejection form at the time of execution by the insurer — insured without there presently being a policy number was not addressed in Duncan. However, this Court is without any information by reading the Duncan decision as to whether or not there was, in fact, a policy number at the time that the rejection form was signed. In that respect, this Court finds that it must follow the Supreme Court case of Duncan.

      As to the penalties and attorney’s fees, the Court will deny same in that the Court feels that this was not arbitrary and capricious on behalf of Safeway....