author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Darnell SAVOY.
    No. KA 06-191.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, LA, for Plaintiff, State of Louisiana.
    Jason Wayne Robideaux, Lafayette, LA, for Defendant, Darnell Savoy.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

_JjOn January 14, 2005, Darnell Savoy was indicted by a grand jury for two counts of second degree murder, a violation of La.R.S. 14:30.1.

On November 16, 2005, following a bench trial, the trial court found Defendant guilty as charged. On that same date, Defendant waived the delay in sentencing, and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for each count.

On November 16, 2005, following the issuance of the verdict and the imposition of sentence, Defendant made an oral motion for appeal and subsequently filed a written motion for appeal. In his appeal, Defendant alleges that the evidence was not sufficient to convict him of the offense of second degree murder. For the following reasons, we affirm Defendant’s conviction.

FACTS:

On November 21, 2004, Defendant had an altercation with several individuals, including Damien “Ed” Richard and Mark Keys, at a night club in Opelousas. After the fight in the club was broken up by police, Richard and Keys, along with several other individuals, went to the home of Roy Berry. Later in the evening, gunshots were fired in the direction of Berry’s house, killing Felicia Comeaux and Roy Berry.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR:

In his appeal, Defendant asserts that the evidence was not sufficient to sustain his conviction of second degree murder.

1 ¿The elements of second degree murder are set forth in La.R.S. 14:30.1, which provides, in pertinent part: “Second degree murder is the killing of a human being: (l)[w]hen the offender has a specific intent to kill or to inflict great bodily harm”

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

At trial, twelve witnesses provided testimony; seven of those witnesses were present at the scene when the events in question occurred.

Vincent Thomas testified that he was at Roy Berry’s home on the night in question, along with Mark Keys, Chris Baker, Desmond Lastrapes, Damien Richard, Darryl Lewis, Roy Berry, and Henry Berry. The group left the Berry residence and went to Added Attraction, a nearby night club. While at the club, Damien Richard and Mark Keys got into an altercation with Defendant. Police entered the night club and used mace to break up the fight.

IsAfter leaving the club, Thomas returned to Berry’s house, along with Keys, Richard, Lewis, and Lastrapes. Two women, Felicia Comeaux and LaShonda Papillion, also returned to Berry’s home.

When Thomas returned to the Berry residence, he sat with Roy Berry on the porch. The two women who accompanied the group were sitting on the hood of Thomas’ car, which was parked in the driveway at the side of the house, facing the backyard. Keys, Richard and Lewis were all in the back yard. Chris Baker, another friend, arrived in his car, and began talking to the two women. Thomas testified that he saw Kevin Coleman pass by the house in his distinctive “candy apple red” Cadillac and then went to the back yard. He testified that Coleman was the only person in the car.

After he reached the backyard, he heard gunshots. At that time, Keys, Lewis, and Richard, were with him in the backyard. None of them were armed; however, a shotgun was in the house. When the first shots were fired, Thomas stated that he “peeped and stayed back behind the house.” He testified that he “looked around” and saw “some fire coming through the gate” of a wooden fence across the street.

At that point, Roy Berry ran to the backyard, saying that he had been hit. Berry was not armed at the time. Thomas then called emergency personnel. Thomas testified that the others went around to the front of the house after Berry came to the backyard. He stated that he never armed himself, nor did he fire any shots. He saw Keys retrieve the shotgun from inside the house. However, he did not see anyone fire any shots.

|4When he returned to the front of the house, Thomas saw Ms. Comeaux lying on the ground in front of his car and Ms. Papillion ducking down in front of it. When he approached Ms. Comeaux, he noticed that there was blood behind her head.

Thomas testified that he did not see Coleman’s red car again, nor did he see Defendant in the area when the shooting occurred. Thomas was asked whether Berry could have been shot by any of the persons gathered in his backyard. He stated that it was not possible because they did not shoot until after Berry had been hit, and that they were shooting across the street.

Following the events, Thomas provided a handwritten statement to police. He testified that he told the police everything he had seen, and that the investigating officer wrote the statement, and he signed it. Although he indicated, in his statement to the police, that he had seen Keys and Coleman exchange words, Thomas testified that he had meant to say that Keys exchanged words with Defendant, rather than with Coleman. Thomas’ statement to police did not include any information about a fight at the club. However, he stated that his memory could have been affected because he had been drinking on the night of the shooting. He further stated that earlier in the evening, at the club, Defendant was fighting with Keys, but mostly with Richard.

Mark Keys was also present at the night club and at the Berry residence on the evening in question. He testified that while at the club, he became involved in an altercation with Defendant, known better to him as “Putt.” He stated that he had had an ongoing “argument” with Defendant, but that initially, Defendant began to fight with Damien Richard. Keys stated that Defendant was hitting Richard in the head with a gun. The fight ended with the arrival of police, and Defendant ran out of the club. Keys testified that he saw Defendant leave the club in a “greenish” Expedition.

|fiUpon leaving the club, Keys returned to Berry’s home, along with the other members of the group. While standing in the backyard with Lewis, he saw Coleman drive by the house in his Cadillac. He testified that Coleman was the sole occupant of the vehicle. From where he was standing, Keys could see Ms. Comeaux standing in front of Thomas’ car in the driveway, facing the backyard and talking with Ms. Papillion. At the time, Roy Berry was sitting alone on the front porch.

A few minutes after Coleman passed, Keys stated that he heard shots fired. He testified that he saw the gunfire from two guns coming from the gate across the street. The two women dropped down between the cars, and he ducked behind the house. He then looked to see where the shots came from; he testified that they came from over and between the gate across the street. He further testified that Defendant was shooting from the gate; he could identify him because he recognized the white shirt and cap worn by Defendant earlier that evening in the club.

Keys testified that, at that point, he ran into the house to get a shotgun and some shells, and then went to the back of the house to load the weapon. He then ran to shoot, but not before Berry ran around the house, saying that he had been hit. Keys stated that he did not fire the first shot until he reached the trailer park across the street from the Berry house and that he did not fire any shots from the Berry house side of the street.

Before shooting, Keys saw Defendant, Coleman, and an unidentified third person running back to a car. He fired at the car three times, but did not hit it. He stated that he, Lewis, and Richard were the only persons to return fire from the trailer park. The car then left the trailer park, and he ran back across the street. When Keys |fireturned to the house, he went to check on Berry. Upon returning, he tried to throw the gun under the house, but it was later found by police.

Following the events, Keys gave a statement to police. At trial, he testified that he signed the statement without reading it. His statement indicates that he told police that he was in the night club with Lewis, Lastrapes, Baker, and Thomas when they “exchanged words with the Defendant and Coleman.” At trial, Keys testified that he did not tell police that Coleman was present at the club when the fighting started. He further denied having made the statement that was read to him in court.

In addition to the initial statement he provided on November 21, 2005, Keys testified that he gave another statement to the police on December 1, 2005, in which he stated that he saw Defendant shoot toward Berry’s house, and then get into the car with Coleman.

At trial, Darryl Lewis also testified. He stated that he has known Defendant for a long time, and that he was also friends with Coleman. On the night in question, he parked his car at Berry’s home and walked to the night club by himself. At the club, he saw Defendant fighting with Richard, and also saw Defendant strike Richard with a gun. When police arrived to break up the fight, he left the night club.

After leaving the club, Lewis returned to Berry’s house, where he talked with Berry and Thomas, who were sitting on the front porch. He recalled that the two women were sitting on the cars and facing the backyard. He saw Coleman’s car pass by, but he stated that he had not seen Coleman at the night club. He then went into the backyard; he was in the back of the house when the shots were fired. Lewis stated that he was not armed at the time, but that he had a gun in his car. When the shooting started, he did not see anyone on the Berry side of the street with a gun. He 17testified that the gunfire was coming from the fence on the other side of the street, but he could not see who was shooting. He then got his gun from his car and shot at the “candy apple red” Cadillac he saw pulling out. He stated that he saw some heads in the car, but he could not identify the people in it.

Desmond Lestrapes testified that he went to the night club with Keys and Richard on the night in question. At the club, he saw the fight break out, and he saw Defendant strike Richard with a gun. After the police broke up the fight, Les-trapes returned to the Berry residence. He spoke to Berry and the two women sitting on the cars, and then began walking to the backyard. It was at that point that he heard the first shots. He immediately dropped down between the house and a car. He saw Ms. Comeaux drop to the ground, and then he heard Berry yelling that he had been hit. He raised up and saw Keys, Richard, and Lewis at the gate on the other side, shooting. He testified that he was unable to see who had fired the initial shots. However, he did testify that none of the persons at the Berry residence were armed. Lestrapes further testified that he did not fire a weapon.

Damien “Ed” Richard testified at trial that on the night in question, he was going to the night club with his girlfriend, Felicia Comeaux. Before walking to the night club, they went to Berry’s house where they parked Ms. Comeaux’s car.

• While at the club, he got into an argument with Defendant during which Defendant hit him in the head with a gun. The fight broke up when the police arrived, and he walked back to the Berry residence. He testified that he did not see Coleman at the club. However, he stated that he saw him later that evening when he passed Berry’s house in his car. Richard testified that when Coleman drove by the house, he was the only person in the car.

I sAfter seeing Coleman pass by, Richard told Ms. Comeaux to remain in the car because “they might try something.” He gave her some money to go to the store, but Ms. Papillion arrived, and the two women began talking. Richard walked to the back of the house to use the bathroom. While they were talking, the women were sitting on the cars and Berry was sitting on his porch.

Richard was in the backyard when he heard the shots coming from across the street and observed that the shots were coming from along a fence. He armed himself with a .357 pistol he had placed under the steps and ran across the street with Keys. There, he saw Defendant, Coleman, and a third unidentified individual running back toward Coleman’s “candy apple red” Cadillac. Richard testified that he did not see a gun in Defendant’s hand.

When he came back across the street, Richard was told that Ms. Comeaux had been shot. Though she was down before he grabbed his gun, he did not realize that she had been hit. Richard concluded by stating that when police arrived, he dropped his gun by the side of the house and fled the scene.

LaShonda Papillion also testified about going to the night club, where she witnessed the fight. However, she stated that she did not see Defendant, because she was in the back of the night club, and the fight had occurred near the front. When police arrived and everyone left the club, she went to Berry’s house. Initially, she waited at the Berry residence for Darryl Lastrapes; when- he did not arrive, she went to the police station, believing that he may have been there. When she returned to the Berry house, Lastrapes,was in the backyard.

She testified that Keys, Lewis, Thomas, Berry, and another unidentified male were also present at the Berry residence on the night in question. When she arrived Rat the house, Ms. Papillion began talking to Ms. Comeaux. While they were talking, the two women were between some of the cars, facing the backyard, where they could see Keys and Richard. Lastrapes approached and asked if they wanted anything from the store. As he walked away, the first shots were fired.

Ms. Papillion testified that when she heard the shots, she grabbed Ms. Co-meaux, and they ducked down. She stated that after the shots were fired, she stood up to see where Lastrapes was. When she turned back, she saw Ms. Comeaux slumped on the ground^ Ms. Papillion stated that she had been holding Ms. Co-meaux, and she did not realize that she had been shot. She testified that she heard Berry say that he had been hit, and after the shooting, she looked up and saw two unidentified people running.

Chris Baker was the last' eyewitness to testify at trial. He was also present at the night club and at Berry’s house on the night of the shooting. In the club, he saw Defendant, with what appeared to be a gun in his hand, fighting with Richard. After leaving the night club, he went to Berry’s house, where he later heard the gunfire. Baker testified- that 'when the shots were fired, he was standing and talking to Ms. Comeaux and Ms. Papillion/ He stated that Ms. Comeaux was facing the back of the house, and when the gunshots started, he saw the fire coming from the fence; He was not able to identify the individuals who were shooting from the fence, nor was he able to state how many persons were shooting. • He, Ms. Comeaux and Ms. Papillion all hit the ground. He testified that he thought-that Ms. Comeaux was hit by one of the first shots fired. He stated that-the other individuals were in the backyard, and when the gunfire started, they ran to the street. At that time, they were armed, and began [inshooting. Baker testified that he raised up after the shooting began and saw Keys across the street shooting.

After the shooting, Baker told Richard that Ms. Comeaux looked as if she’d been hit. The police came immediately, and when they did, Richard told him to look after Felicia, and left the scene, saying “I got to go, I got warrants.”

In his brief, Defendant claims that “[i]t was proven that Felicia Comeaux was shot and killed by a .357 magnum bullet.” We note that at trial, expert witness, Doug Lancon, testified about the bullet removed during autopsy from the’ body of Felicia Comeaux. At least five guns were fired at the scene, and Lancon concluded that due to the damage to the bullet, he could not specify the weapon from which the bullet came. Therefore, we find that this claim is not supported by the record.

In his brief, Defendant also asserts that the State failed to prove that he fired the shots that killed the two victims. We note that of the seven eyewitnesses who testified at trial, five of the witnesses were unable to identify the persons who fired shots toward the Berry residence. However, two of the witnesses, Mark Keys and Damien Richard, stated that they saw-Defendant at the scene when the shooting occurred. Keys stated that he saw Defendant shooting from the area of the gate, and he positively identified the clothing that Defendant was wearing at that time as the same clothing that he was wearing when he saw him in the night club earlier that evening. Richard stated that after the shooting occurred, he ran across the street and saw Defendant running from the scene toward a car. The remaining witnesses did not testify that persons other than Defendant had fired the shots, but rather, were simply unable to identify the perpetrators. It is well settled that the factfinder is free to accept or reject some, none, or all of any witness’ testimony. Pursuant to Kennerson fyand the jurisprudence cited therein, we are unable to conclude that the trial judge was unreasonable in accepting as credible the testimony of the two witnesses who identified Defendant as one of the persons involved in the shooting. We conclude, therefore, that the trial court was not unreasonable in ultimately finding Defendant guilty as charged. Accordingly, the assignment lacks merit.

Defendant also asserts that the State failed to prosecute him as a principal to the offense of second degree murder, and thus, no legal basis exists for finding him guilty as principal. Further, Defendant concludes that, if the testimony of Mark Keys and Damien “Ed” Richard is deemed by the trial court to be credible, the only offense consistent with that evidence is attempted murder, on each count, because no evidence proves that Defendant fired the shots which killed either victim.

The State may prove a defendant guilty by showing he served as a principal to the crime by aiding another. “Persons who aid and abet in the commission of a crime are guilty as principals although they do not directly commit the act constituting the offense.” State v. Sampson, 472 So.2d 337, 339 (La.App. 3 Cir.1985) (quoting State v. Bernard, 441 So.2d 817 (La.App. 3 Cir.1983), writ denied, 445 So.2d 439 (La.1984)). Louisiana Revised Statutes 14:23 classifies the parties to crimes as either principals or accessories after the fact. Principals are defined by La.R.S. 14:24. The statute states, “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre, 93-0893 (La.2/3/94); 631 So.2d 427. Accordingly, under the broad definition of “principals” in Louisiana, thejjjcourt did not have to find that he was the one who fired the shots that killed the victims in order to be convicted of second degree murder. Rather, the court had to find that he was concerned in the commission of a crime, whether he directly committed the act constituting the offense, aided and abetted in its commission, or directly or indirectly counseled or procured another to commit the crime in order to be prosecuted as a principal. In this case, two of the witnesses who testified at trial identified Defendant as part of the group of individuals who were shooting at the Berry house from across the street. One of those witnesses further testified that he could identify Defendant as one of the men shooting from behind the fence across the street.

Regardless of whether Defendant fired the shots that killed the victims, if it is proven that he was involved in the commission of the crime, he may be charged and convicted as a principal. Therefore, considering the evidence and testimony, we do not find that the trial court was unreasonable in finding the evidence sufficient to convict Defendant as a principal for two counts of second degree murder. Accordingly, this contention lacks merit.

CONCLUSION:

Defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Elaine SETLIFF v. ERMA ADAMS, INC.
    No. 06-182.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Ricky L. Sooter, Attorney at Law, Alexandria, LA, for Defendant-Appellee: Erma Adams, Inc.
    S. Aaron Siebeneicher, Valerie M. Thompson, Johnson & Siebeneicher, Alexandria, LA, for Plaintiff-Appellant: Elaine Setliff.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

_JjThe appellant, Elaine Setliff, appeals a judgment of the trial court granting summary judgment in favor of the defendant, Erma Adams, Inc., and dismissing her claims with prejudice.

STATEMENT OF THE CASE

Erma Adams, Inc., a real estate brokerage firm, hired Elaine Setliff as a real estate agent in 1998. During a meeting of the board of directors of Erma Adams, Inc. in December 1998, the following resolution was passed:

The motion was made and passed to change the status of officers and stockholders, amended by the three original three [sic] stockholders and owners of this Corporation.
The ownership and stock is restructured to allow Elaine Setliff to become a partner in the corporation of Erma Adams, Inc. The distribution of ownership, titles and stock as follows:
Erma Adams — President with 51% ownership and 312 + shares.
Michael Adams — Vice President with 16.3% ownership and 100 shares.
James Adams — Treasurer with 16.3% ownership and 100 shares.
Elaine Setliff — Secretary with 16.3% ownership and 100 shares.

The following motion was made:

That the by-laws of the corporation be amended as follows. Add the following provision to Article V, 5.3, Subsection c — Should any shares of the Company be placed on the market, for any reason, the corporation of the Shareholders there of shall have the first right to purchase the stock. The price shall be set as follows: recognizing that this is a closely held corporation, and that the revenues of the corporation derive from personal efforts of the shareholders, the company does not keep a reserve of monies or profits, nor does it acquire assets of substantial value, that each share is valued at TEN DOLLARS ($10.00)
Elaine Setliff will be expected to buy stock in the amount of $10,000 to be paid over a period of 5 to 10 years. Should she ever leave the employment of the company for any reason her shares will be offered to the company at the above value.
In Addition, Life Insurance will be taken out on Elaine Setliff payable to the company in case of her death. Mark Setliff will sign a document stating he has no interest in the company. Elaine Setliff will sign a non-compete employment contract with Century 21 Erma Adams Realty.

12Mrs. Setliff was present at this meeting. She paid $1,000.00 toward the purchase of the stock in January 2000. She made no other payments toward the purchase of the stock. She did serve as Secretary of the corporation as evidenced by the minutes of the meetings of the Board of Directors, and she claims she received a dividend check in 1999. Erma Adams, Inc. also purchased a life insurance policy on Mrs. Setliff.

Mrs. Setliff left the employment of Erma Adams, Inc. in February 2000. She filed this suit on April 26, 2002, seeking a judgment that she be recognized as a shareholder of Erma Adams, Inc. Following discovery, Erma Adams, Inc. filed a Motion for Summary Judgment. The trial court held a hearing on June 13, 2005. The trial court issued written reasons for judgment on August 29, 2005, in which it granted the Motion for Summary Judgment in favor of Erma Adams, Inc., awarded $1,000.00 to Mrs. Setliff as the return of the deposit she made for the purchase of the stock, and otherwise dismissed Mrs. Setliffs claims with prejudice. A judgment conforming to the written reasons was ■ signed on October 27, 2005. Mrs. Setliff now appeals.

ASSIGNMENT OF ERROR

The plaintiff-appellant, Mrs. Setliff, asserts one assignment of error:

The trial court judge erred in ruling that Elaine Setliff had no ownership interest in Erma Adams, Inc.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, [3show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

In this case, Erma Adams, Inc. asserts that Mrs. Setliff never paid the full price for the shares of stock in the corporation, and thus is prohibited from asserting ownership pursuant to La.R.S. 12:52, specifically subsection C. Louisiana Revised Statutes 12:52 states:

A. Par value shares may be issued initially for such consideration expressed in dollars, not less than the par value thereof, as shall be fixed by the board of directors. Shares without par value may be issued from time to time for such consideration expressed in dollars as may be fixed by the board of directors or by the shareholders by a vote of a majority of the voting power present, if the articles reserve to the shareholders the right to fix the consideration; provided however, the consideration for such shares may be initially fixed by the incorporators. Treasury shares may be disposed of by the corporation for such consideration as may be fixed from time to time by the board of directors. All fully paid shares, shall be nonassessable.
B. Shares issued (1) in payment of a stock dividend, (2) pursuant to exercise of conversion rights, (3) in exchange for, or in respect of, outstanding shares pursuant to a reclassification of stock, (4) in a merger or consolidation as provided in the merger or consolidation agreement, or (5) pursuant to the authority of R.S. . 12:41(B)(9)(d) and (e) shall be considered as fully paid when so issued.
C. The consideration for shares issued otherwise than as stated in subsection B of this section, shall be paid in cash or in corporeal or incorporeal property, or services actually rendered to the corporation, the fair value of which is not less than the dollar amount of the consideration fixed for the shares, before the shares are issued.' Upon payment of the consideration fixed therefor, such shares shall be considered as fully paid. Cash consideration for shares may not be paid by the purchaser’s note, secured or unsecured, or uncertified check; and in case of delivery of such a note or check in payment for shares, the shares shall not be issued until the note or check has been paid in full.
D.Solely for the purpose of determining whether shares have been paid for fully, the valuation placed by the shareholders or the directors, as the case may be, upon the consideration other than cash paid therefor shall be conclusive.

|4Erma Adams, Inc. argues that the agreement reached between Mrs. Setliff and the corporation was that Mrs. Setliff would pay cash for her shares of stock, and her failure to pay the entire amount means that the stock cannot be issued pursuant to La.R.S. 12:52(C). Mrs. Setliff argues that this case falls within the exception to subsection C of the statute. Specifically, Mrs. Setliff argues that she is entitled to an ownership interest in the corporation despite her failure to pay for the stock pursuant to the exception to La.R.S. 12:52(C) found at La.R.S. 12:52(B)(5). She argues that her shares of stock should have been issued pursuant to La.R.S. 12:41(B)(9)(d) and (e), which states:

Without limiting the grant of power contained in Subsection A of this Section, it is hereby specifically provided that every corporation shall have authority:
(9)(a) To elect or appoint officers and agents;
(b) To define their duties;
(c) To fix their compensation;
(d) To pay pensions in cash, shares of stock, or property, and establish pension plans, pension trusts, profit sharing plans, and other incentive and benefit plans for any or all of its directors, officers, and employees; and
(e) To establish stock bonus plans, stock option plans, and plans for the acquisition of any or all of its unissued shares, or of shares acquired or to be acquired, by the employees of the corporation, or by employees of subsidiary corporations, or by trustees on their behalf, which plan:
(i) May include the establishment of a special fund or funds for the purchase of such shares in which such employees during the period of their employment or any other period of time may be privileged to share on such terms as are imposed with respect thereto,
| fi(ii) May provide for the payment of any price of such shares in installments, or
(iii) May provide for the delivery of such shares without any payment therefor[.]

Mrs. Setliff argues that the board of directors was empowered to establish a plan to issue stock to her as an employee which would allow for her to pay for shares of the corporation in installments pursuant to La.R.S. 12:41(B)(9)(e)(ii), and said shares could be issued prior to payment pursuant to La.R.S. 12:41 (B)(9)(e)(iii). The critical element missing from Mrs. Setliffs case is any evidence of a plan to allow for the issuance of shares to her before she paid for them. Furthermore, there is no evidence that any stock was ever actually issued to Mrs. Setliff. In fact, the only evidence in the record on this point is an affidavit from C. Michael Adams stating that no stock was ever issued to Mrs. Setliff. While Mrs. Setliff took part in board meetings, she never properly paid for shares, and no shares were ever issued to her. The trial court’s judgment granting the motion for summary judgment filed by Erma Adams, Inc. is affirmed.

AFFIRMED.


author: PAINTER, Judge.

text:
    Joseph WILLIAMS and Stacy Williams v. Mark ROBERTS and McCoy, Roberts, & Begnaud, Ltd.
    No. 06-169.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Rehearing Denied July 5, 2006.

      James B. Gardner, Shreveport, LA, for Defendants-Appellees Mark Roberts and McCoy, Roberts & Begnaud, Ltd.
    Kenneth N. Simmons, Many, for Plaintiffs-Appellants Joseph Williams and Stacy Williams.
    Jack L. Simms, Jr., Leesville, LA, for Plaintiffs-Appellants Joseph Williams and Stacy Williams.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hln this legal malpractice case, Plaintiffs, Joseph Williams and Stacy Williams (“the Williams Brothers”), appeal the trial court’s grant of summary judgment in favor of Defendants, Mark Roberts and McCoy, Roberts, and Begnaud, Ltd. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2003, the Williams Brothers filed suit against Mark Roberts and the law firm of McCoy, Roberts, and Beg-naud, Ltd. The Williams Brothers alleged that Roberts was their attorney in the formation of a Louisiana limited liability company named “Weight Loss Development — Denver, L.L.C.” (“the L.L.C.”). Apparently, the Williams Brothers, along with Thomas C. Litton (“Litton”) and Robert Dockens (“Dockens”), formed the L.L.C. to enter into a franchise agreement with LA Weight Loss Centers, Inc. Litton was to be the managing member. The Williams Brothers alleged that they were under the impression that the L.L.C. would be controlled by fifty-one percent of the membership. The Williams Brothers further alleged that the operating agreement, which was prepared and revised by Roberts, did not provide for fifty-one percent control as they had requested, but instead vested Litton with sole control and contained other provisions that were extremely adverse to the Williams Brothers. The malpractice suit alleged that Roberts had' a fiduciary relationship with them and other members of the L.L.C. The Williams Brothers further contended that because Roberts failed to consult with them and to advise them as to the contents of the operating agreement and the other terms and conditions of the agreements that the Williams Brothers alleged to be severely adverse to them, Roberts committed legal malpractice.

ROn April 20, 2004, Defendants filed a motion for summary judgment which alleged that at no time did Defendants receive a request for representation from Plaintiffs, agree to represent Plaintiffs, or assume the representation of Plaintiffs with respect to any documents prepared for the creation of the L.L.C. or its operation. In support of the motion, Defendants attached the affidavits of Roberts, Litton (managing member of the L.L.C.), and Dockens (a non-manager, investor member in the limited liability company). In opposition to the motion for summary judgment, the Williams Brothers attached their own affidavits.

Written reasons for judgment were read into the record on April 22, 2005, and on July 5, 2005, the trial court signed a judgment granting Defendants’ motion for summary judgment and dismissing Plaintiffs’ suit with prejudice. This ruling was based on the trial court’s finding that there was no express agreement for Roberts to represent Plaintiffs. Plaintiffs then moved for a new trial, which was denied by judgment signed September 19, 2005. This appeal by Plaintiffs followed. On appeal, Plaintiffs assert the sole assignment of error that “the trial court committed manifest error in granting the defendants’ motion for summary judgment.” In sum, Plaintiffs argue that summary judgment was inappropriate in this case because the evidence establishes that the Williams Brothers reasonably believed that Roberts was their attorney.

DISCUSSION

In Sinegal v. Kennedy, 04-299, p. 3 (La. App. 3 Cir. 9/29/04), 883 So.2d 1079, 1081, writ denied, 04-2688 (La.1/7/05), 891 So.2d 683, we stated:

Appellate courts, in determining whether summary judgment is appropriate in a case on appeal, review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Succession of Granger v. Worthington, 02-0433 (La.App. 3 Cir. 10/30/02), 829 So.2d 1108. The determination of materiality of a particular fact can be made only in light of the | .¡substantive law applicable to the case. Rener v. State Farm Mut. Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/5/00), 759 So.2d 214.

Furthermore, in Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730), we explained:

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

Thus, it is for us to determine whethér any genuine issues , of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C).

“To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence.” Costello v. Hardy, 03-1146, p. 9 (La.1/21/04), 864 So.2d 129, 138. In this case, the issue is whether there was an attorney-client relationship between Roberts and the Williams Brothers.

In his affidavit introduced in support of his motion for summary judgment, Roberts stated that he was retained by Litton on October 16, 2002 to create the L.L.C. and that he drafted the articles of organization, the initial report, and the operating agreement and transmitted them to Litton via e-mail. Roberts was aware that Litton was meeting with the Williams Brothers and Dockens, the other member of the L.L.C., in order to execute the documents that he had prepared. On October 25, 2002, Litton requested some additions to the operating agreement, which Roberts made and transmitted to Litton by e-mail. Roberts further stated that at no time did he or his |4firm receive a request from the Williams Brothers to represent them in connection with the creation of the L.L.C. Roberts further stated that he understood, based on information furnished to him by Litton, that the Williams Brothers had their own attorney. Roberts further stated in his affidavit that the first contact he had with the Williams Brothers was when they came to Roberts’ office to sign franchise documents, which neither he nor anyone from his firm prepared. Roberts also stated in his affidavit that he represented the L.L.C. in connection with collection efforts against the Williams Brothers with respect to their capital contributions to the L.L.C.

Litton’s affidavit was also attached to the motion for summary judgment. Litton stated that the Williams Brothers told him that they had their own attorney and that Litton never asked or retained Roberts or his law firm to represent the Williams Brothers in connection with the formation of the L.L.C.

Roberts and his law firm also submitted the affidavit of Dockens in support of their motion for summary judgment. Dockens stated that he did not retain Roberts or his law firm to represent him in connection with the formation of the L.L.C. Dockens also stated that after the addition to the operating agreement requested by Litton was done, all of the documents were executed by Litton, Dockens, and the Williams Brothers on October 25, 2002.

In opposition to the motion for summary judgment, the Williams Brothers each submitted identical affidavits. In these affidavits, the Williams Brothers stated that at no time did anyone tell them that Roberts did not represent them or that they should seek independent legal counsel. The Williams Brothers stated that they believed that Litton had requested for Roberts to represent all of them in the formation of the L.L.C. and that they reasonably believed that Roberts represented them.

| sIn its reasons for judgment, the trial court found that there was no express agreement for Roberts to represent the Williams Brothers. The trial court also relied on Bergman v. New England Ins. Co., 872 F.2d 672 (5 Cir.1989) for the proposition that it is not unusual for one party’s attorney to prepare a document for several parties to sign and that the Louisiana Bar would be stunned to learn that in doing so, an attorney became the attorney for all parties. We agree with the trial court.

There is no dispute that there was no written agreement as to representation between Roberts and the Williams Brothers and that the Williams Brothers never had any conversations with Roberts concerning the drafting of the agreements relative to the L.L.C. The Williams Brothers presented no evidence, other than their affidavits attesting to their belief that Roberts represented them, tending to show the existence of an attorney-client relationship. Moreover, we note that even though whether an attorney-client relationship exists turns largely on' one’s subjective belief that it does, a person’s subjective belief that an attorney represents him must be reasonable under the circumstances. Exposition Partner, L.L.P. v. King, LeBlanc & Bland, L.L.P., 03-580 (La.App. 4 Cir. 3/10/04), 869 So.2d 934. Thus, we find that there was not enough evidence to establish an issue of material fact as to the existence of an attorney-client relationship.

DECREE

After our de novo review of the record in this case, we conclude that the trial court correctly granted summary judgment in favor of Defendants, Mark Roberts and McCoy, Roberts, and Begnaud, Ltd. There are no genuine issues of material fact on the issue of the existence of an attorney-client relationship. The trial court judgment in favor of Defendants on the motion for summary and judgment and dismissing [ (¡Plaintiffs’ suit with prejudice is, therefore, affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants, Joseph Williams and Stacy Williams.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Katrina JOHNSON v. SAFEWAY INSURANCE COMPANY, et al. Eric Washington v. Safeway Insurance Company, et al.
    No. 06-224.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Jeanne R. Perrin, Borne & Wilkes, L.L.P., Lafayette, Louisiana, for Defendant/Appellant, Safeway Insurance Company.
    Barry M. Barnett, LaCroix, Levy & Barnett, L.L.C., Alexandria, Louisiana, for Plaintiff/Appellee, Eric Washington.
    Donald R. Brown, Alexandria, Louisiana, for Plaintiff/Appellee, Katrina Johnson.
    Bradley J. Gadel, Alexandria, Louisiana, for Defendant/Appellee, American Century Casualty Company.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|TIn this personal injury case arising out of an automobile accident, Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the judgment of the trial court in favor of Plaintiffs, alleging error with its fault allocation and quantum assessments. After thorough consideration of the record, applicable law, and the manifest error standard of review, we affirm the judgment of the trial court.

FACTS

On August 9, 2004, Plaintiff, Eric Washington (Mr. Washington), was driving a vehicle owned by Plaintiff, Katrina Johnson (Ms. Johnson). Ms. Johnson was a passenger in the vehicle at the time of the accident. Although there is a conflict in the testimony as to what exactly occurred, just prior to the accident, Mr. Washington and Ms. Johnson were traveling west on Richmond Drive (Richmond), in Alexandria, Rapides Parish, Louisiana. Richmond, at its intersection with West Sandy Bayou Drive (West Sandy), is controlled by a stop sign. West Sandy is the favored street. From Richmond, Mr. Washington turned right onto West Sandy. As Mr. Washington and Ms. Johnson were traveling north on West Sandy, their vehicle was struck, or side-swiped, on the left side by a vehicle also traveling north on West Sandy and being operated by Defendant, Mary Ann James (Ms. James).

Both Mr. Washington and Ms. Johnson filed lawsuits against Ms. James and Safeway, the liability insurer for the James vehicle, seeking damages as a result of said accident. Safeway’s policy limits were $10,000/$20,000. Ms. Johnson later amended her suit to name Mr. Washington and his liability insurer, American Century Casualty Company, as additional Defendants. The two suits were later consolidated.

A bench trial was held on September 14, 2005, at which Ms. James was ^dismissed, with prejudice, pursuant to Safeway’s motion to dismiss for lack of service of process upon her. In its oral reasons for judgment, the trial court held that Ms. James was 100% at fault in causing the accident and awarded Mr. Washington and Ms. Johnson Safeway’s policy limits in the amount of $10,000 each. Judgment was signed on October 3, 2005. Safeway appealed.

ISSUES

In its two assignments of error, Safeway argues that the trial court erred in concluding (1) that Ms. James was solely at fault in causing the accident; and (2) that Ms. Johnson and Mr. Washington were entitled to $10,000 each in damages for the injuries sustained by them as a result of the accident made the basis of this litigation.

LAW AND DISCUSSION

Allocation of Fault

An assessment of fault is a factual determination. Thus, an appellate court reviewing a fact finder’s allocation of fault owes the same deference to that finding as it does to any other factual determination and such determination should not be disturbed on appeal unless it is clearly wrong or manifestly erroneous. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

Safeway contends that the trial court was manifestly erroneous in its assessment of 100% fault to Ms. James. Safeway argues that Mr. Washington should have been found at fault for the accident at issue herein. Safeway argues that Mr. Washington pulled out in front of Ms. James and violated La.R.S. 32:123(B) by Isfailing to stop and/or yield the right of way to Ms. James, who was traveling on the favored roadway. Safeway asserts that the trial court erred in concluding that Ms. James was solely at fault and that Mr. Washington was free from fault. We disagree.

In his testimony, Mr. Washington asserts that, immediately prior to the accident and while his vehicle was stopped at the intersection of Richmond and West Sandy, he observed Ms. James’ vehicle proceeding toward Richmond, and it appeared that Ms. James was slowing down for a speed bump that was at least two houses away from the intersection. Mr. Washington, while at a complete stop, testified that he felt it was safe to proceed and then turned right onto West Sandy. He further testified that after completing his right turn onto West Sandy, he drove a short distance before he noticed in his rear-view mirror that Ms. James’ vehicle was approaching fast. Mr. Washington testified that Ms. James’ vehicle struck, or side-swiped, his vehicle on the left side, at or near the bus stop sign on West Sandy.

Ms. Johnson’s testimony supported Mr. Washington’s version of events. In her testimony, Ms. Johnson asserts that, imr mediately prior to the accident, while Mr. Washington was stopped at the intersection of Richmond and West Sandy, she also saw Ms. James’ vehicle and that it “hadn’t even made it to the speed bump.” Ms. Johnson testified that, after Mr. Washington came to a complete stop on Richmond and completed his right turn onto West Sandy, he proceeded at .“no more than ten miles per hour” before the impact occurred “in front of the second house on West Sandy Bayou from the corner of Richmond.”

In her testimony, Ms. James stated that she was traveling north on West Sandy at approximately twenty-five miles per hour. Ms. James testified that as she drove north on West Sandy she saw Mr. Washington’s vehicle stopped at the stop sign and | ¿that she also saw the eyewitness, Jawanna Jones, playing outside. Ms. James stated “as I got closer I guess they decided they was gonna turn out in front of me and I was going too fast just to stop, to slam on brakes and I wanted to avoid an accident so I swerved to the left.” Ms. James testified that as Mr. Washington turned right, she was traveling approximately twenty-five miles per hour before the collision occurred. She testified that the impact occurred at “the house, we had been past the intersection and we was close to the house.”

Jawanna Jones, then twelve years of age, was an eye-witness to the accident and testified that she observed the entire incident while playing under the carport of her home on West Sandy. Ms. Jones testified that she observed the vehicle being driven by Mr. Washington stopped at the intersection and that Ms. James’ vehicle was approaching from an even further distance than that reported by Mr. Washington and Ms. Johnson. Ms. Jones testified that she observed Ms. James traveling fast and that she did not slow down for the speed bumps. Ms. Jones stated “[Mr. Washington] was going about fifteen and then that is when [Ms. James’] vehicle tried to swerve into [Mr. Washington’s] lane cause [Ms. James] was on the wrong side and [Ms. James] tried to swerve on to [Mr. Washington’s] lane to get in the right side and ... [Ms. James’] car hit [Mr. Washington’s] car and then both of them stopped.”

Finally, when the investigating officer failed to appear in court for trial, the parties agreed to the introduction of the accident report in lieu of his testimony. The report contains Mr. Washington’s version much the same as his trial testimony; however, in the report, Ms. James’ version clearly differs from her testimony at trial. In said report, Ms. James’ claimed that she was traveling north on West Sandy when Mr. Washington “ran the stop sign so to avoid hitting [Mr. Washington’s vehicle Ms. |,James] tried to pass, but [Mr. Washington’s vehicle] came into [Ms. James’] lane and they hit.” At trial, Ms. James denied ever telling the investigating officer that Mr. Washington ran the stop sign.

The standard of review for courts of appeal for reviewing both factual findings and questions of credibility is well-established.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Robin v. Allstate Ins. Co., 03-1009, 03-926, p. 4 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, 406, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted)).

In its oral reasons for judgment, the trial court expressly stated:

I think the case pretty much rests on two specific factors, one which being the testimony of Ms. [Jawanna] Jones who is obviously a disinterested witness had no connection to any of the parties, had no dog in this fight so to speak and she testified she felt that Ms. James was exceeding the speed limit and approached the intersection very quickly and the impact, everybody agrees the impact occurred at least a block or I should say a house down from the intersection on West Sandy after the Washington vehicle made a right hand turn. Also I think Ms. James pretty much solidified everything with her final testimony about the location of the incident and the way she tried to avoid the accident which was to swerve around it rather than to stop. She had sufficient time, she saw the Washington vehicle before the turn, she had sufficient time to stop and could have avoided the accident. I think everything was consistent on that so I find a hundred percent liability on Ms. James and award damages against Safeway Insurance Company since they are the named insured and direct action is proceeding against Safeway at this time.

In this case, it is clear that the trial court made a demeanor and credibility determination based upon the conflicting testimony. Recognizing that the trier of fact Isis in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony, we find that the trial court was not manifestly erroneous or clearly wrong in determining that Ms. James was solely at fault in this accident.

Quantum

Safeway also contends that the trial court’s damage awards are excessive. Safeway argues that the trial court abused its discretion by awarding Mr. Washington and Ms. Johnson total damages in the amount of $10,000 each. Safeway contends that the medical records indicate that Mr. Washington and Ms. Johnson were essentially pain-free soon after the accident and, therefore, the trial court’s damage awards should be reduced.

This court’s review of a general damage award is guided by Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In that case, the supreme court stated:

[T]he discretion vested in the trier of fact is “great,” and even vast so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Id. at 1261.

Mr. Washington testified that he injured his lower back as a result of the accident. Mr. Washington further testified that he received chiropractic treatment for his injuries for two months, but that he also experienced intermittent pain after his treatment ceased. Mr. Washington’s medical bills totaled $1,445.

|7Mb. Johnson testified that she also injured her lower back as a result of the accident. Ms. Johnson further testified that she received chiropractic treatment for her injuries from August 11, 2004, through the date of her discharge on November 17, 2004. Ms. Johnson’s medical bills totaled $2,760.

When assessing the damage awards, the trial court explained:

Ms. Johnson, who is the guest passenger[,] had treatment that lasted for three and a quarter months. Her treatment obviously, her conditions got better over that period of time but she did have a three, at least a three month injury according to the records and the testimony I heard. She had medical bills totaling $2,760.00. Normally I would award more than the $10,000.00 policy limit based on the fact that I am limited to that amount, it is a $10,000.00 award against Safeway Insurance Company and in favor of Ms. Johnson. Eric Washington had treatment that lasted for two and a third months, at the last treatment he still was having pain. He also testified today that he was having some pain here approximately a year later. I found him to be a credible witness, he had no prior claims or any other thing that, anything that I saw that would discredit his testimony so I find him to be a credible witness and again would award more than ten [thousand] in this particular case but he has medical bills of $1,445.00 which I find related to the accident. General damages would be in the neighborhood of eight to ten under my normal awards so with him I also award the sum of $10,000.00 against Safeway limited by the amount of insurance coverage.

The trial court found both Mr. Washington and Ms. Johnson to be forthright regarding their injuries. The trial court was in the best position to judge the credibility, demeanor, and mannerisms of Mr. Washington and Ms. Johnson while in court and while testifying. We find no abuse of the trial court’s discretion in either of these awards.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs are assessed to Defendant/Appellant, Safeway Insurance Company.

AFFIRMED.

      . Louisiana Revised Statutes 32:123. Stop signs and yield signs:
      B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.


author: PICKETT, J.

text:
    Helen Vice PALOMBO and Francis C. Palombo, Sr. v. Frank BACQUE, M.D., et al.
    No. 06-218.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      John A. Bivins, Roy, Bivins, Judice, Roberts & Wartelle, Lafayette, LA, for Defendant/Appellee, Our Lady of Lourdes Regional Medical Center, Inc.
    Alan K. Breaud, Timothy W. Baden, Breaux & Meyers, Lafayette, LA, for Defendant/Appellee, William Dedo, M.D.
    Mel L. Credeur, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, Helen Vice Palombo and Francis C. Palombo, Sr.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, J.

I,The plaintiffs, Helen Vice Palombo and Francis C. Palombo Sr., appeal a judgment of the district court granting a motion for summary judgment filed by the defendants, Dr. William Dedo and Our Lady of Lourdes Regional Medical Center (OLOL), dismissing their suit for damages arising out of an alleged incident of medical malpractice. We affirm the judgment of the district court.

FACTS

This case was previously before this court. We quote from the court’s prior unpublished opinion:

Helen Vice Palombo underwent a surgical procedure conducted by Dr. [Frank] Bacque [a urologist] at Our Lady of Lourdes Medical Center (OLOL) in Lafayette, Louisiana. Pa-lombo and her husband, Francis C. Pa-lombo, allege that Mrs. Palombo began having back and leg problems after the accident as a result of improper positioning during surgery. The Plaintiffs brought the matter before a medical review panel which found that the evidence did not support the conclusion that Dr. Bacque failed to meet the appropriate standard of care. The Palom-bos then filed suit against Dr. Bacque, Dr. William Dedo, and OLOL.
Dr. Bacque filed a motion for summary judgment asserting that the plaintiffs had not produced any competent expert testimony to establish a breach of the standard of care. In response to the motion, the plaintiffs submitted the affidavit of Dr. Jawad Hasnain, an anesthesiologist. The trial court granted Dr. Bacque’s motion finding that Dr. Has-nain is not qualified to testify as to the standard of care for a urologist, with respect to surgical positioning and repositioning.

Palombo v. Bacque, an unpublished opinion bearing docket number 03-7 (La.App. 3 Cir. 4/30/03), 844 So.2d 429, writ denied, 03-1550 (La.10/3/03), 855 So.2d 314. In that proceeding, which bears the same district court number as the case before us, we affirmed the judgment of the trial court. It should be noted that we had the record of that proceeding returned to this court from the Louisiana State University Law Library archives and considered it in our decision herein.

|¡>The case continued and, in due course, the remaining defendants, Dr. Dedo and OLOL, filed motions for summary judgment alleging, that on the basis of the pleadings, depositions, and evidence, there is no genuine issue of material fact and that the defendants are entitled to summary judgment as a matter of law. The trial court granted the motions and this appeal followed.

LAW AND DISCUSSION

In P.G. Diners, Inc. v. CAT Scale Co., 04-757 (La.App. 3 Cir. 11/10/04), 886 So.2d 1253, this court set forth a detailed analysis of the law applicable to summary judgments and the appellate review thereof:

This court reviews summary judgments de novo applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). In Babin v. Winn-Dixie Louisiana, Inc., 00-0078, pp. 3-4 (La.6/30/00), 764 So.2d 37, 39-40, the Louisiana Supreme Court addressed the conditions under which summary judgment should be granted as follows:
A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ. P. art. 966(A)(2). In 1997, the legislature enacted La. Code Civ. P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the mov-ant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, |sor defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Once the motion for summary judgment has been properly supported' by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, unit denied, 97-0281 (La.3/14/97), 690 So.2d 41.

Additionally, in King v. Stranco, Inc., 00-2003, 00-2004, p. 4 (La.App. 1 Cir. 11/9/01), 818 So.2d 48, 50-51, the first circuit explained:

The amended LSA-C.C.P. art. 966 brings Louisiana’s standard for summary judgment closely in line with the federal standard under Fed.R.Civ.P. 56(c). Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 231, quoting Hardy v. Bowie, 98-2821, p. 5 (La.9/8/99), 744 So.2d 606, 610. The federal standard was summarized by the fourth circuit in Huber v. Liberty Mut. Ins. Co., 2000-0679, p. [7] (La.App. 4th Cir.2/7/01), 780 So.2d 551, 555:
Under Fed.Rule Civ.Proc. 56, when the nonmoving party bears the burden of proof at trial, there is no genuine Lissue of material fact if the nonmov-ing party cannot come forward at the summary judgment stage with evidence of sufficient quantity and quality for a reasonable juror to find that the party can satisfy his substantive evidentiary burden. In construing the federal summary judgment rule, the United States Supreme Court held that summary judgment shall be granted where the evidence is such that it would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a defendant in an ordinary civil case moves for summary judgment or a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Id. The Anderson court further held that the mere existence of a scintilla' of evidence on the non-moving party’s position would be insufficient; there must be evidence on which the jury could reasonably find for that party. In Lujan v. National Wildlife, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the court held that Fed.Rule Civ.Proc. 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof. Berzas v. OXY USA Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149, 1152-53; Martello v. State Farm Fire and Cas. Co., 96-2375 (La.App. 1 Cir. 11/7/97), 702 So.2d 1179, 1183-84[, writ denied, 98-0184 (La.3/20/98), 715 So.2d 1215].

P.G. Diners, Inc., 886 So.2d at 1254-55.

Inasmuch as this is a medical malpractice case, “the plaintiffs have the burden of proving the applicable standard of care, the physician’s breach of the applicable standard of care, and the causal connection between the breach and the resulting injuries.” Edwards v. Raines, 35,284, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1187. In Edwards the court went on to state the following:

One of the essential elements of a medical malpractice action is that the plaintiff establish that the conduct of the defendant fell below the applicable standard of care. Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134. The opinion of the Medical Review Panel may be considered by the court when ruling on a summary judgment motion. Id., at 1137. Hinson also holds that a favorable affidavit by the treating physician and a favorable opinion by the Medical Review Panel are sufficient to establish an absence of factual support for the plaintiffs claims. 774 So.2d at 1137.

Id.

This case was originally submitted to a Medical Review Panel consisting of Drs. Deborah Kennedy, Scott M. Neusetzer, and John Martin. On February 1, 2001, the panel issued a unanimous opinion which stated in part:

There is no evidence in the medical records that standard of care was not maintained in the positioning and surgical management of her disease. Furthermore, the administration of epidural and general anesthesia represents the highest level of anesthetic care and postoperative pain management.
The findings present throughout the spine represent chronic degenerative changes. Those findings are not attributable to an acute process specifically epidural anesthesia or surgical positioning.

In the case before us, the plaintiffs fail to carry their burden of proof on two issues: first, that the conduct of any of the defendants fell below the standard of care; and, second, that any action or inaction by any of the defendants resulted in a specific injury to Mrs. Palombo. Since these two issues are so entwined, we will discuss them together.

The record fails to demonstrate either defendant breached their standard of care. The only “proof’ the plaintiffs offer in their attempt to raise a genuine issue of material fact on the standard of care issue are the two affidavits of Dr. Jawad Has-nain. Dr. Hasnain’s affidavits are based solely upon his review of Mrs. Palombo’s medical records; he did not physically examine her. In one affidavit he concludes that Dr. Dedo failed to met the required standard of care in the placement of the epidural catheter and that Drs. Dedo and Bacque and the staff at OLOL failed to adhere to the |fistandard of care in positioning and repositioning Mrs. Palombo, causing injuries to her vertebral column and nerve system. In the other affidavit Dr. Hasnain makes the same allegations except he omits any allegations of improper placement of the epidural catheter. In neither affidavit does Dr. Hasnain state just how the defendants allegedly breached the standard of care nor does he allege Mrs. Palombo was improperly padded. In the second affidavit, without explanation of the evidence he relied upon, Dr. Hasnain concludes, “they placed her in such a position that it changed the natural configuration of her body so severely that it overstretched same and caused injury to her.” Furthermore, Dr. Hasnain fails to state in either affidavit, specifically what injury Mrs. Palombo allegedly sustained by the alleged improper positioning and/or repositioning. Both of his affidavits were executed well before any of the defendants filed motions for summary judgment. They were considered and rejected by the court in the motion for summary judgment filed by Dr. Bacque. Additionally, Dr. Hasnain’s affidavits fail to cite any portion of the medical records of Drs. Robert Mar-tínez, J. Bob Blackloek, or Stephen Gold-ware, the records he allegedly relied upon to reach his conclusion, to support his opinion that the defendants breached the standard of care.

The operative report of Mrs. Palombo’s surgery states that “[s]he was ... placed very carefully in the left flank position. The kidney rest was raised. She was supported both in her axilla and in her legs. Everything was padded. She was on a bean bag....” At the end of the first procedure the operative report states: “[a] very nice incision closure was done and ... she was then turned to the supine position, reprepped, [and] redraped.... ” The report concludes: “[t]he patient went to the 17recovery room awake and in good condition.” There is nothing in the report to suggest even the hint of any problem.

Although Mrs. Palombo alleges she started experiencing leg pain while still in the hospital and reported this to Dr. Bac-que at that time and upon her second postoperative visit, we find no proof of these allegations in the record. Dr. Bacque released her to return to work on December 21, 1998. Two days later, she saw Dr. Dedo in the course of her employment and made the first documented complaint of weakness in her left leg. Dr. Dedo referred her to Dr. Robert Martinez, a neurologist, who is now deceased.

Dr. Martinez saw Mrs. Palombo on January 14, 1999. In his report to Dr. Dedo, Dr. Martinez states that he is “not sure what is going on with her left leg at this point.” He felt that her complaints warranted further investigation and MRI and EMG studies. He referred her to Dr. Stephen Goldware, a neurosurgeon.

In the interim, she had a nerve conduction study performed by Dr. James N. Domingue, a neurologist. The results of this study were normal.

Dr. Goldware initially saw the patient on January 29, 1999. In his notes on her visit on February 23, 1999, he noted that “[t]he MRI of February 3,1999 shows a degenerative cyst at L5-6 on the left. I think that is responsible for her pain” and recommended surgery at her earliest possible convenience because of her complaints. Mrs. Palombo refused the surgery and sought a second opinion.

This second opinion was obtained from Dr. J. Bob Blackloek, a neurosurgeon, at the Baylor College of Medicine in Houston, Texas. All of the patient’s medical studies from OLOL had been forwarded to Dr. Blackloek. Her initial evaluation was 1 ^performed on September 2, 1999. Dr. Blaeklock’s “Chart Note” of September 22, 1999 states as follows (emphasis ours):

Regarding the spine, these films have been further reviewed. The abnormality at L5 appears to simply be a degenerative process; possibly a cyst or possibly no real abnormality at all as it is only seen in one particular image. The bone scan is felt to most likely be degenerative uptake at L5. the thoracic study shows some disc herniations in the mid and upper thoracic spine, but there is no compression at any level.
At this point we do not have an explanation for her gait failure.

Clearly, none of these doctors related Mrs. Palombo’s complaints to her surgery in October of 1998.

Furthermore, the record contains the depositions of two of the doctors on the Medical Review Panel. In his deposition, Dr. Scott Neusetzer, a urologist, and a member of the Medical Review Panel, stated:

[M]y interpretation of how she was positioned and the findings on her MRIs regarding her spine in particular suggested that there was no change in her spine, and any changes that she had appeared to be of a somewhat chronic nature and therefore would not have arisen from her surgical positioning.

Dr. John Martin, an anesthesiologist, and another member of the Medical Review Panel stated: “The findings present throughout the spine represent chronic degenerative changes. Those findings are not attributable to an acute process, specifically epidural anesthesia or surgical positioning.”

Considering the record as a whole, we find that the defendants “point[ed] out to the court ... an absence of factual support for one or more elements essential to the [plaintiffs’] ... claim ... [and that] the adverse party fail[ed] to produce factual support sufficient to establish that [they] w[ould] be able to satisfy [their] evidentia-ry burden of proof at trial.” Hence, we find there is no genuine issue of material fact and that the defendants are entitled to summary judgment as a matter of law.

| ^Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs, Helen V. Palombo and Francis C. Palombo.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    The WEST CAMERON PORT, HARBOR AND TERMINAL DISTRICT v. The LAKE CHARLES HARBOR AND TERMINAL DISTRICT.
    No. 06-496.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Michael K. Dees, Lake Charles, for Defendant/Appellant, Lake Charles Harbor and Terminal District.
    Randall K. Theunissen, Allen & Gooch, Lafayette, for Plaintiff/Appellee, West Cameron Port, Harbor and Terminal District.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

11 Upon receipt of the record, this court issued a rule to show cause why the instant appeal should not be dismissed. Subsequently, plaintiff/appellee, West Cameron Port, Harbor and Terminal District, moved to dismiss the appeal filed by defendant/appellant, Lake Charles Harbor and Terminal District, on the ground that the judgment denying an exception of improper venue was a non-appealable, interlocutory ruling. For the reasons discussed below, we grant the motion to dismiss.

This case arises out of a petition for a declaratory judgment, injunctive relief, and damages. Defendant appealed from the judgment of the Thirty-Eighth Judicial District Court which denied an exception of improper venue. The trial court signed the judgment on March 20, 2006. On the next day, the trial court’s clerk’s office mailed a notice of judgment and filed a certificate of mailing same in the record.

Following the judgment, defendant filed a motion and order for suspensive appeal, which the trial court granted. Additionally, defendant filed notice of intent to apply for supervisory review. Thereafter, a record was compiled and, subsequently, lodged in this court on April 4, 2006.

Upon receipt of the record, this court issued a rule to show cause why the instant appeal should not be dismissed pursuant to the recent amendment to La.Code Civ.P. art. 2083. Plaintiff filed a motion to dismiss, seeking to have the instant appeal dismissed on the same ground.

The Legislature amended La.Code Civ.P. art. 2083 last year, effective January 1, 2006. In its present form, Article 2083 states that an interlocutory judgment is appealable only when expressly provided by law. Thus, the amendment precludes an appeal from a denial of an exception of improper venue, as there is no | ¡¡statute expressly permitting an appeal from such a ruling. Because the instant appeal seeks review of a judgment denying an exception of improper venue, the appeal is not properly before this court. Accordingly, the appeal is dismissed at defendant’s cost. Specifically, defendant, Lake Charles Harbor and Terminal District, is ordered to pay costs in the amount of $458.80.

APPEAL DISMISSED.


text:
    ISLA RESOURCES, LLC, et al. v. Danette Trahan FREY, et al.
    No. CA 05-1607.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Stanford B. Gauthier, II, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants: Isla Resources, L.L.C., Delphin Energy, L.L.C., Louis E. Bernard, Jr.
    D. Reardon Stanford Hoyt, Hodge, & Stanford, L.L.C., Lafayette, LA, for Defendants/Appellees: Lou King-Patin, King-Patin, Ltd.
    Danette Trahan Frey, In Proper Person, Simsport, LA.

      Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

LMr. Louis E. Bernard contacted Ms. Lou King-Patin of King-Patin, Ltd., an employment staffing agency, in July of 2001 in order to locate an individual to work as an “executive assistant” for his companies, Isla Resources, LLC and Del-phin Energy, LLC. Based on the agency’s recommendation, Mr. Bernard hired Ms. Danette Frey. In February of 2002, he discovered that Ms. Frey had embezzled over $31,000.00 from his companies.

Isla Resources, LLC and Delphin Energy, LLC filed suit against Ms. Lou King-Patin and King-Patin, Ltd., alleging that they were liable to them for damages because Ms. Frey was not properly “screened” by the employment agency. Before this matter came to trial, Defendants filed a motion for summary judgment. After the hearing on the motion, the trial court, after examining all the documentary evidence and testimony, determined that there was no genuine issue of material fact and granted summary judgment in favor of Ms. Lou King-Patin and King-Patin, Ltd. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In July of 2001, Mr. Louis E. Bernard, the sole owner and General Manager of Isla Resources, LLC and Delphin Energy, LLC (hereinafter collectively referred to as Bernard) contacted Ms. Lou King-Patin with King-Patin, Ltd., (hereinafter collectively referred to as King-Patin) an employment staffing agency, and requested that she locate an individual to work as an “executive assistant” for both companies. Based upon the recommendations of King-Patin, Bernard hired Ms. Danette Frey.

As “executive assistant,” Ms. Frey was given responsibility for the checking accounts for both Isla Resources, LLC and Delphin Energy, LLC. In February of 2002, Mr. Bernard discovered that Ms. Frey had forged his signature on numerous | {.company checks and had stolen funds from company bank accounts. She had also cashed and retained funds from checks made payable to Isla and Delphin and made unauthorized charges on company credit cards. In total, Ms. Frey allegedly embezzled $31,348.10. She was subsequently terminated on February 28, 2002.

After terminating Ms. Frey, Bernard hired Mr. Russell Ancelet, a licensed private investigator, to perform a background search on her. Mr. Ancelet used Ms. Frey’s name, address, aliases, date of birth, social security number, and residences over the last ten years to determine whether she had a prior arrest, conviction, or was a party in a civil suit. Through his investigation, he found that she had been convicted of criminal offenses in East Baton Rouge Parish, Louisiana, and San Marcos, Texas and New Braun-fels, Texas.

Bernard subsequently bought suit against King-Patin, alleging that Ms. Frey was not properly “screened” and that King-Patin was liable to them for damages incurred as a result of the improper screening. King-Patin, filed a motion for summary judgment. At the hearing, the court, after examining all the documentary evidence and testimony, determined that there was no genuine issue of material fact and granted King-Patin’s motion for summary judgment. Bernard now appeals.

ASSIGNMENT OF ERROR

The trial court erred in granting Defendants’ Motion for Summary Judgment.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary judgment. “It is well established that a summary judgment shall be rendered if the Ispleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc. v. Crane Servs. Inc., 03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 (quoting Shelton v. Standard/700 Assocs., 01-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65); La.Code Civ.P. art. 966(B).

LAW AND ANALYSIS

In determining whether a trial court’s granting of summary judgment was appropriate, appellate courts conduct a de novo review of the record. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. If the evidence presented at trial is subject to conflicting interpretations, then summary judgment is not appropriate. Federated Rural Elec. Ins. Corp. v. Gulf S. Cable Inc., 02-0852 (La.App. 3 Cir. 11/12/02), 833 So.2d 544.

Appellants argue that their claim is a damage claim arising out of a breach of contract, not a tort claim, as the defendants argue in their brief in support of summary judgment. They argue that they entered into a contract with Appellees, and offer the July 30, 2001 letter sent to Mr. Bernard from Ms. King-Patin as evidence of the Appellees’ undertaking relative to the staffing position. The letter states, “This candidate was chosen from a select few for the position ... Because of our high standards at King-Patin, Ltd., we have a rigorous selection process. Each candidate considered for an employment position with one of our clients must undergo extensive interviewing and screening.” However, Ms. King-Patin’s affidavit failed to recite that her staffing agency checked any of the job references listed by Ms. Frey. Further, Appellees argue that there is no evidence that it contractually obligated themselves to ^perform a criminal background check on any of the candidates for employment. They assert that they did not “warrant” anything to Bernard; he simply “assumed” that they would conduct one.

It is clear that King-Patin and Bernard entered into a contract. What is not clear are the parameters of the contract entered into by the parties or the extent of the contractual obligations undertaken by Bernard and King-Patin. Bernard paid King-Patin over $2,000.00 for its services. However, there is a dispute as to the extent of the services for which Mr. Bernard paid. Additionally, there is a dispute as to the quality of services that King-Patin was to provide to Bernard. The parties dispute whether there was an obligation to perform a criminal background search, and whether the one performed was adequate. Additionally, there is a dispute as to whether Ms. Frey was adequately screened by the agency in exchange for Mr. Bernard’s payment. Taking these issues into consideration, we find that the question of what was included in the King-Patin’s services remains an issue of fact that the trial court must determine.

Appellants argue that a material issue of fact exists as to whether there was adequate “screening” of Ms. Frey. As mentioned earlier, Ms. King-Patin’s affidavit fails to state that her staffing agency checked any references before recommending Ms. Frey to Bernard for the position of “executive assistant.” However, in the letter to Mr. Bernard, dated July 30, 2001, thanking him for allowing King-Pa-tin to assist him in his hiring of Ms. Frey, Ms. King-Patin stated that, “Each candidate considered for an employment position with one of our clients must undergo extensive interviewing and screening.”

Appellants introduced the affidavit of Ms. Angela Tauzin, a witness with several years of experience in the staffing agency business, to support their argument. |fiMs. Tauzin was requested by Appellant counsel to review all documents produced by Ap-pellees relevant to the screening process undertaken by King-Patin. In her review of King-Patin’s screening process, Ms. Tauzin had her assistant check the references listed on Ms. Frey’s employment application. From this inquiry, she determined that Ms. Frey had not been employed at two of the three listed references, and that the third reference did not have the supervisor named on the application in their employ.

Ms. Tauzin stated that had she been responsible for the placement of Ms. Frey, she would not have taken the interview process any further at that point. Based on her experience in the staffing business, she opined that the core function of a staffing business is to verify the work history, credentials, appropriateness of placement, and ability of an employment applicant before recommending him to an employer. Ms. Tauzin further stated that it appears that King-Patin did not check out Ms. Frey’s employment history, as her submissions of fraudulent information concerning her work history should have disqualified her from consideration of any nature. In her opinion, the decision of King-Patin to recommend Ms. Frey as an acceptable candidate for any type of position demonstrates a total disregard for the well-being of its client.

Appellees argue that Ms. Tauzin’s testimony is not admissible and should not be considered because it contains hearsay. At the hearing on the motion for summary judgment, counsel for Appellees objected to the evidence. However, the court never ruled on whether the affidavit contained hearsay. Therefore, we have no ruling to review, and the issue of whether this evidence contains hearsay is not before us. Ms. Tauzin’s affidavit was made a part of the record when it was introduced into evidence, and therefore, we consider it in our de novo review of the record.

| ^Appellees assert that Ms. Tauzin is not an expert, and therefore, the affidavit containing her testimony is not admissible, as it states her opinion. Under La.Code Evid. art. 701, a witness who is not testifying as an expert is limited to testifying to opinions or inferences that are rationally based on his perception and which are helpful to a clear understanding of his testimony or the determination of a fact in issue.

They argue that Ms. Tauzin does not meet the standards of Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and therefore, does not qualify to testify as an expert in the staffing industry. They assert that her experience in the staffing business is limited to working only a couple of years in sales with Link Staffing and subsequently running her own employment staffing agency, PNR Personnel, which went out of business after only three years. Further, Appellees point out that Ms. Tauzin was never licensed, was not a member of any professional staffing associations, never wrote any books, reports, papers, or published any kind of documentation regarding the staffing industry or the screening of applicants. She has also never placed anyone as an executive assistant, nor has she screened anyone for such a position. Further, she does not consider herself an expert in the field of applicant screening.

Ms. Tauzin was listed as an expert witness in Appellants’ pre-trial discovery. However, when her affidavit was introduced into evidence, and at the hearing on the motion for summary judgment, nothing was said about her status as an expert witness. We cannot rule on whether Ms. Tauzin is an expert witness, as no determination was made by the trial court on this issue. We note that .the factors listed in Daubert are not requirements that must be met, nor are they applicable to all types of expert testimony. Cleland v. City of Lake Charles, 02-805, 02-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d |7686, writ denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645. In fact, we have held that experience alone is sufficient to qualify a person as an expert. State through Dept. of Transp. and Development v. Wahlder, 94-761 (La.App. 3 Cir. 12/7/94), 647 So.2d 481. Considering Ms. Tauzin’s experience in the staffing business, especially the fact that she owned and ran an employment staffing agency for three years, it is at least arguable that she could have been qualified to testify as an expert witness. While she may not consider herself an expert in the field, and she may not have published any books on the screening of applicants, Ms. Tauzin has spent a number of years in the staffing industry, including several years running her own staffing agency.

Although the court made no determination of whether Ms. Tauzin qualified as an expert witness, Ms. Tauzin’s affidavit was introduced into evidence and was made a part of the record. Accordingly, the testimony of Ms' Tauzin found in the record will be taken into consideration in determining if a factual issue exists as to whether proper screening was performed on Ms. Frey by King-Patin. We find that it does.

Appellants also assert that there is a material issue of fact in dispute regarding whether there was a criminal background search performed on Ms. Frey before the date of her hire. Ms. King-Patin’s testimony indicates that before she provided Mr. Bernard with Ms. Frey’s resume, she contacted Rhino Referral for a background check. However, Mr. Larry Vegas d/b/a Rhino Referral testified that he was first contacted on August 30, 2002, approximately seven months after Ms. Frey’s termination. Despite the clear discrepancy in testimony, Appellees maintain that this is not “material” to the outcome of the case. They counter by arguing that although Mr. Vegas could not corroborate that a background check of Ms. Frey had been | sperformed, the point is moot, because when Rhino Referral ran the criminal background check on Ms. Frey in August of 2002, no criminal history was discovered. Therefore, Appellees assert that even had a criminal background check been performed prior to Ms. Frey’s employment, they would have found nothing to alert them or to prevent them from recommending her to Bernard. Appellees’ argument brings another issue to the surface: was an adequate search performed?

Appellants introduced the testimony of Mr. Russell Ancelet, a licensed private investigator who was employed by Mr. Bernard to perform a criminal background search on Ms Frey shortly after her termination. Using Ms. Frey’s name, date of birth, address, and social security number, Mr. Ancelet obtained Ms. Frey’s resident locations over the last ten years. Mr. Ancelet contacted the appropriate entities in each resident jurisdiction to determine whether Ms. Frey had a prior arrest, conviction, or was a party in a civil suit. From his search, he determined that Ms. Frey had been convicted of criminal offenses in East Baton Rouge Parish, Louisiana, and San Marcos and New Braunfels, Texas.

Appellees argue that the affidavit of Mr. Ancelet contains inadmissable hearsay, and therefore, should not be considered. Although Appellees’ counsel objected to the evidence at the hearing on the motion for summary judgment, the court did not make a ruling on the admissibility of the affidavit. Therefore, we do not have a ruling to review, and the issue of its admissibility is not on appeal before us. However, because the affidavit was introduced into evidence and has been made a part of the record, we consider it in our de novo review.

Additionally, Appellants introduced the testimony of Mr. F. Ray Mercke, Jr., an independent contractor for Kroll Background Investigations, with eight years | nexperience marketing to background investigations to large companies in the Aca-diana area as well as several Fortune 500 companies. Mr. Mercke offered testimony regarding the practice of conducting background investigations. In his affidavit, Mr. Mercke testified that a criminal records search is conducted by running a Social Security trace which provides information such as whether the Social Security Number is validly issued, to whom it belongs, and the current address, as well as other known previous addresses where the individual to whom it belongs resides. Using the information found through the Social Security trace, Mr. Mercke searches the records of the jurisdictions where the individual has resided in the last ten years to determine whether there are any felony or misdemeanor filings. Mr. Mercke testified that King-Patin could have conducted a criminal background search such as this one for the cost of approximately $60.00. Further, he opined that had they conducted a search such as this, the previous convictions of Ms. Frey would have been discovered.

Appellees contend that Mr. Mercke’s testimony is irrelevant to the case at hand because he does not market to staffing companies such as King-Patin. Instead, he markets to large companies, consisting of over 20,000 employees and Fortune 500 companies outside of the Louisiana area. Although Mr. Mercke does not market his services to staffing services such as King-Patin, his testimony is still relevant to the general procedure used in criminal background searches. He has been in the background search business for several years and has personal knowledge about the procedures used in these searches.

Clearly, the testimony of Ms. King-Pa-tin and Mr. Vegas as to whether a background check was performed prior to Ms. Frey’s hiring is not consistent. There |inalso remains a question as to whether the background check performed was adequate and whether Ms. Frey’s criminal background would have been discovered had a proper check been performed prior to her employment with Bernard. Offering the testimony of Mr. Ancelet and Mr. Mercke, Appellants argue that a material issue of fact exists as to whether a properly conducted criminal background search would have revealed her criminal background, as they seemed to find Ms. Frey’s criminal records with relative ease. Although neither of the witness affidavits introduced into evidence were from individuals that marketed to companies exactly like King-Patin, they both described very similar criminal background search procedures. Both testified that the residence addresses over the last ten years were used to determine which jurisdictions in which to search for criminal records.

In her affidavit, Ms. King-Patin stated, “Rhino Referral is the local industry standard for performing such background checks on prospective employees. At the hearing on the motion for summary judgment, counsel for Appellees stated that it was “undisputed that Rhino Referral is the industry standard” in the Lafayette area. However, counsel for Appellant disputed this fact at the hearing, asserting that Mr. Mercke’s affidavit stated otherwise. In Mr. Mercke’s affidavit, he stated, “Mr. Larry Vegas d/b/a Rhino Referral is not the industry standard in Lafayette, Louisiana and is not known by Affiant. The industry standard in Lafayette is Kroll Background, America and other national firms such as Choice Point, Avert, Wells Fargo, and Hire Check.” Clearly, there is a dispute over the issue of whether Rhino Referral is the industry standard. Considering the evidence, we find that there is a material issue of genuine fact that must be determined by the trial court regarding whether a criminal | ^background search was performed on Ms. Frey before she was hired, and whether a properly conducted background search would have revealed her criminal record.

After a review of the record, we find that several genuine issues of material fact remain to be determined in this case. We find that there is a material issue of fact regarding the extent of the contractual obligations undertaken by the parties. A material issue of fact also exists as to whether King-Patin properly screened Ms. Frey, as a simple reference check revealed that she had never been employed at two of the three listed references on her employment application. Further, we find that an issue remains as to whether a properly conducted background search would have revealed her criminal background.

Due to the fact that we have found that there are several genuine issues of material fact that remain undetermined in this case, we cannot affirm the trial court’s granting of summary judgment in favor of Appellees, King-Patin. Therefore, we reverse the decision of the trial court and remand the case to the trial court.

CONCLUSION

The judgment of the trial court is reversed and remanded. Costs of the appeal are assessed against Appellees.

REVERSED AND REMANDED.