author: THOMAS F. DALEY, Judge.

text:
    Yvette MORGAN v. Eve LAURENT and State Farm Mutual Automobile Insurance Company.
    No. 06-CA-467.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Christopher J. Bruno, Bruno & Bruno, New Orleans, LA, for PlaintiffiAppellant, Yvette Morgan.
    Michael S. Futrell, Connick and Con-nick, L.L.C., Metairie, LA, for Defendant/Appellee, Parish of Jefferson.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| j>,The plaintiff, Yvette Morgan, has appealed the summary judgments granted in favor of the Parish of Jefferson and the State of Louisiana. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY:

Yvette Morgan was allegedly injured when she was struck by a car driven by the defendant, Eve Laurent. Ms. Morgan filed suit against Ms. Laurent and her insurer. In her deposition Ms. Laurent explained that at the time of the accident, she was working as a law clerk for the Second Parish Court of the Parish of Jefferson. She testified that she was working on the construction project for the new courthouse that was being built to house Second Parish Court and at the time of the accident was going to a technology presentation by a company hoping to furnish the technology equipment in the new building. Following this deposition, plaintiff filed a supplemental petition alleging that at the time of the accident, Ms. Laurent was in the course and scope of her employment with the Parish of | ¾Jefferson. The Parish responded with Exceptions of Lack of Procedural Capacity, No Right of Action, and No Cause of Action. In these exceptions, the Parish argued that Second Parish Court is an agency of the State of Louisiana and as a court employee, Ms. Laurent was a state employee. Plaintiff then filed a third supplemental petition adding Second Parish Court, an agency of the state of Louisiana, as a defendant, alleging that at the time of the accident Ms. Laurent was in the course and scope of her employment with the Second Parish Court, an agency of the State of Louisiana. Based on the Parish’s assertion that Ms. Laurent was an employee of the state rather than the Parish, plaintiff dismissed the Parish from the suit without prejudice. The state then moved for summary judgment, claiming Ms. Laurent was an employee of the Parish. Attached to the motion was an affidavit from the payroll officer for the Parish attesting that Ms. Laurent was a part-time employee of the Parish. This prompted the plaintiff to file a fourth supplemental petition adding the Parish as a defendant. The Parish re-urged its Exceptions of Lack of Procedural Capacity, No Right of Action and No Cause of Action. All judges of the Twenty-fourth Judicial District recused themselves stating the Parish was attempting to classify the judicial employees as employees of some entity other than the Parish of Jefferson and they had “an interest in the outcome of that issue”. A retired judge was appointed by the Supreme Court to handle this case.

The exceptions and motion for summary judgment were set for hearing. At the hearing, the trial judge stated that he was “converting” the Parish’s exceptions to a motion for summary judgment. He allowed time for the Parish to file an actual motion for summary judgment, if it so desired and allowed time for the plaintiff to respond to the motion. The trial judge then orally granted the state’s motion for summary judgment. At the conclusion of the hearing, the trial judge ruled that |4Second parish Court is not a juridical entity and it was dismissed on that basis. The trial judge then stated that he “can’t rule on whether or not she’s [Ms. Laurent] a state employee at this juncture” but dismissed the state from this suit because even if Ms. Laurent were found to be a state employee, the state was not responsible for her alleged negligence based on R.S. 42:1441 and R.S. 13:5108.1. The trial judge' rendered two written judgments. In the judgment signed July 18, 2006, the trial judge granted the motion for summary judgment filed by the Parish. In written reasons, the trial judge stated that Second Parish Court is part of the judicial branch of the government of the state of Louisiana and Ms. Laurent’s deposition and the affidavits show there is no issue as to her employer. The trial court concluded her employer was not the Parish of Jefferson. In the judgment signed July 20, 2006, the trial judge ordered Second Parish court be dismissed because it was not a juridical body that can sue or be sued, that Second Parish Court and the State of Louisiana cannot be held vicariously liable for any acts of Ms. Laurent in this matter, and granting the state’s motion for summary judgment. The plaintiff has timely appealed both judgments.

SUMMARY JUDGMENT IN FAVOR OF THE PARISH OF JEFFERSON:

The plaintiff contends that the judgments are .contradictory, arguing that Eve Laurent must be either the employee of the Parish of Jefferson because Second Parish Court is a sub component of the political subdivision the Parish of Jefferson, or she must be the employee of the State of Louisiana because Second Parish Court is part of the Judicial Branch of Government of the State of Louisiana. Plaintiff interprets the judgments to hold that Ms. Laurent is an employee of neither. Plaintiff points out that at all times relevant to this suit, Ms. Laurent was employed as a law clerk to the two judges of Second Parish Court. Plaintiff contends that Issince these judges perform parish functions and have an employer-employee relationship with the parish in which the parish exercises control over their functions, the parish should be held liable for the torts of the judge’s employees. Plaintiff then argues in the alternative that if the Parish is not Ms. Laurent’s employer, then the State must be her employer.

In its motion for summary judgment, the state argued that Ms. Laurent was not an employee of the state and therefore the state cannot be held liable for her negligence. Attached to the motion is an affidavit from Geralyn Savoie, the payroll officer for the Parish of Jefferson, who attests that Ms. Laurent is a part-time employee of the Parish. Ms. Savoie explained that due to her part-time status, Ms. Laurent is not a part of the parish retirement system but contributes to a voluntary deferred compensation plan sponsored by the Parish.

The Parish takes the position that Second Parish Court is part of the judicial branch of state government. The Parish argues that all employees of courts provided for in Article V of the constitution are unclassified state employees under Article X § 2(B) of the Constitution. Attached to the Parish’s opposition to the state’s motion were affidavits from the Personnel Director and the Finance Director of the Parish. The Personnel Director, Martin Schwegmann, attests that Ms. Laurent is not a classified employee of the Parish and does not meet the enumerated list of unclassified employees of the Parish, therefore she is not a Parish employee. The Finance Director, Nancy Cassagne, attests that she is the supervisor of Ms. Savoie, who previously provided an affidavit stating Ms. Laurent was a part-time parish employee. Ms. Cassagne attests that Ms. Savoie was incorrect and that Ms. Laurent is not a parish employee.

| (Appellate courts review summary judgments de novo using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180. Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The movant bears the burden of proof. La.Code Civ.P. art. 966(C)(2).

The state presented the affidavit of Ms. Savoie attesting that Ms. Laurent was a part-time employee of the Parish, while the Parish presented the affidavit of Ms. Cassagne attesting that Ms. Savoie was wrong and Ms. Laurent was not an employee of the Parish. Given the conflicting affidavits, we find the trial court erred in granting summary judgment in favor of the Parish holding that Ms. Laurent was not an employee of the Parish.

SUMMARY JUDGMENT IN FAVOR OF THE STATE:

In its Motion for Summary Judgment, the state argues that LSA-R.S. 42:1441.1 provides that the state is not liable for the offenses of any person who is not expressly specified by LSA-R.S. 13:5108.2. The state notes that the list of specified employees for which the state may be held vicariously liable is now found in LSA-R.S. 13:5108.1 since LSA-R.S. 13:5108.2 has been repealed. LSA-R.S. 13:5108.1(E)(l)(c) lists covered individuals of the judicial branch for whom vicarious liability is extended stating:

In the state supreme court or in the office of the clerk thereof or office of judicial administrator thereof, in one of the circuit courts of appeal or in the office of clerk there of, or in any of the family, juvenile, or judicial district courts of the state or in the offices of the judicial administrators thereof.

|7The state contends that even if Ms. Laurent was to be found a state employee, there could be no vicarious liability for her actions since she is not one of the enumerated employees. We agree. The summary judgment rendered in favor of the State of Louisiana is affirmed. There can be no vicarious liability on the part of the state for the acts of Ms. Laurent because she is not included in R.S. 42:1441.1.

IS SECOND PARISH COURT A JURIDICAL PERSON?

In its Motion for Summary Judgment the state submits that Second Parish Court is not a juridical person that can sue or be sued. In support of this position, the state points to Louisiana Civil Code Article 24, which provides that “a juridical person is an entity to which the law attributes a personality, such as a partnership or corporation.” The state contends that Second Parish Court is not a corporation, partnership or any other type of legal entity that would make it a juridical person capable of suing and being sued. The state contends that given the framework of the creation of Second Parish Court, there is no grant of power to institute a lawsuit on its own motion. The state concludes that as a matter of law, Second Parish Court must be dismissed from this lawsuit.

In Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048 (La.3/21/94) 634 So.2d 341, 346, the Louisiana Supreme Court addressed the legal capacity of a governmental entity and held:

The important determination with respect to the juridical status or legal capacity of an entity is not its creator, nor its size, shape, or label. Rather the determination that must be made in each particular case is whether the entity can appropriately be regarded as an additional and separate government unit for the particular purpose at issue. In the absence of positive law to the contrary, a local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it|sthe legal capacity to function independently and not just as the agency or division of another governmental entity, (citations omitted)

Roberts thus instructs that in order to determine if Second Parish Court is a separate governmental unit we must review “the particular purpose at issue”. The purpose here is to determine vicarious liability under master-servant/respondent superior tort theory for a judicial law clerk.

LSA-R.S. 42:1441.3, entitled “Determination of master of officer of political subdivision for purposes of Civil Code Article 2320 and other master-servant tort liability laws”, states in pertinent part:

A. The master of an individual who is an ... employee of a political subdivision, under the meaning and purpose of Civil Code Article 2320 and other laws imposing liability on a master for offenses and quasi offenses of his servant, is the particular political subdivision of which such individual is a ... employee.
C. Determinants of which political subdivision may be liable as master for the offenses and quasi offense of a public employee of a political subdivision under Civil Code Article 2320 and other laws imposing such master-servant liability and for finding an employer-employee relationship, shall include all of the following:
a. The public officer or governmental body that exercises the power of selection and engagement of the public employee.
b. The public officer or governmental body politic that supervises or has the right to control closely the daily time and physical activities of such public employee in carrying out his public duties.
c. The public officer or governmental body politic that exercises the power of disciplinary actions and dismissal of the public employee.
d. The source of the funds used for the payment of salaries or wages of the public employee.
E. As provided in R.S. 42:62, the term “political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions; in addition, for the purposes of this Part, mayor’s courts, justice of the peace courts, district attorneys, sheriffs, clerks of court, coroners, tax assessors, registrars of voters, and all other elected parochial officials shall be separate political subdivisions.

| flThis statute, which was enacted to ensure that a public officer of a political subdivision who hires, controls and supervises the employment of an employee of the said public officer is responsible for the actions of the employee, gives us four objective criteria to determine when political subdivisions may be held vicariously liable. Subsection E suggests courts are separate political subdivisions for the purpose of determining master-servant liability. Applying the four factors set forth above to the case at bar, we look to the authority of the judges of Second Parish Court granted by R.S. 13:2562.22. This statute gives the Judges of Second Parish Court, acting en banc, the authority to hire, supervise, control the daily activities of, and fire Ms. Laurent.

The clear meaning of R.S. 42:1441, 42:1441.1, 42:1441.2, and 42:1441.3 is to restrict master-servant liability to traditional boundaries of control and economic benefit. These statutes attempt “to establish a comprehensive theory of vicarious liability for the torts of local officials and those who work for them.” The statutes were adopted in response to a series of controversial Louisiana Supreme Court decisions which, “held that the state, rather than any local governmental unit, was the entity responsible for the tort of a city clerk, a deputy sheriff, a constable and a parish coroner.” LSA-R.S. 42:1441.3 C directs the political subdivision that hires, supervises, disciplines, and fund the salary of an employee will be considered the employees master. Subsection E defines “political subdivision” for the purpose of master-servant tort liability. The language of Subsection E allows for the | ^compartmentalizing of parochial officials and offices within governmental entities. Appellant’s argument that Ms. Laurent can only be an employee or servant of the State or Parish ignores the clear import of LSA-R.S. 42:1441.3 E, which provides that a political subdivision (at least for master-servant tort criteria) will be divided into functional governmental units and will not be limited to Parish or Municipal units.

■ While we recognize that nothing in the statutes creating and governing the operation of Second Parish Court specifically state it is a juridical entity, we note that R.S. 13:2562.22 creates ,a judicial expense fund over which the court has jurisdiction and gives the judges of the court control over this fund and disbursements made from this fund. This statute further gives the judges authority to appoint court reporters, secretarial, clerical, research, administrative, and other personnel that the judges deem necessary to conduct the business of the court. The judges have the authority to fix the salaries of such personnel which are paid from the monies in the judicial expense fund. The fund is also available to purchase equipment for the court. The general function of the expense fund is to be used for any purpose connected with, incidental to, or related to the proper function of the court and the judges. Our reading of the statutes creating and organizing Second Parish Court indicates that the court functions independently over the criminal and civil matters over which it has jurisdiction. Further, it generates funds for its own operating expenses. Thus, using the factors set forth in Roberts, supra, we find in master-servant liability matters Second Parish Court for the Parish of Jefferson is a juridical entity and as such can be named as a defendant in this lawsuit. In Accordingly, the portion of the trial court judgment finding Second Parish Court not to be a juridical entity is reversed.

This conclusion is supported by the Third Circuit opinion Johnson v. City of Pineville, 2005-1054 (La.App. 3 Cir. 3/1/06), 924 So.2d 443, wherein a former employee of the city court’s clerk’s office brought suit against the city, the clerk of court, and the city court for damages arising from her discharge. The Third Circuit held that determination of whether a political subdivision is the master of a public employee for the purposes of vicarious liability is to be determined by looking at the statutory factors enumerated in R.S. 42:1441.3. The Court granted the city’s Exception of No Cause of Action because the pleading did not allege that the City of Pineville exercised any of the four control factors identified in LSA-R.S. 42:1441.3 C(l — 4). The court did allow the employee an opportunity to amend the petition in an attempt to state a cause of action imposing vicarious liability on the city court, part of the city government, but presumptively a separate political subdivision for master-servant tort recovery from the Clerk and City Court.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of the Parish of Jefferson is reversed. The judgment of the trial court dismissing Second Parish Court from this lawsuit is reversed. The judgment of the trial court granting summary judgment in favor of the State of Louisiana is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . LSAConst. Art. X § 2 deals with Civil Service Classification both State and City and does not directly answer the legal question of who the master of judicial law clerks are. Article X § 2(B) does state that all offices provided for in Article V are unclassified, but Jefferson Second Parish Court is not mentioned in Article V of the Louisiana Constitution.

      . See LSA-R.S. 42:1441.3 E, which specifically identifies mayor's courts and justice of the peace courts as separate political subdivisions for the purpose of master-servant determination. Parish courts are not specifically identified, but is an "other unit of local government ... authorized by law to perform governmental functions" and as such can operate as a separate political subdivision under the language of Subsection E.

      . See Kenneth M. Murchison, Local Government Law, 46 La.L.Rev. 491, 523 (Jan.1986) (commenting that, "the Legislative solution seems consistent with effective risk management because it transfers liability to the local official with the ability to control.”).

      . See David W. Robertson, Tort Liability, of Governmental Units in Louisiana, 64 Tul.L.Rev. 857, 873 (March 1990)

      . LSA-R.S. 42:1441.3 B sets forth a criteria for determining the master of an elected or appointed official. The criteria focuses on territorial issues and differs substantially from the factors in subsection C, which sets forth criteria for employees.

      . There has been at least one other instance in which a court in this circuit has been a defendant in a lawsuit. Beevers v. Jefferson Parish Juvenile Court, 552 So.2d 1317, (La.App. 5th Cir. 1989).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    SUCCESSION OF Dr. Marion A. LANASA.
    No. 06-CA-561.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Raymond P. Ladouceur, Ladouceur and Ladouceur, L.L.P., Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee, Barbara Lanasa.
    Jack M. Alltmont, April L. Watson, Sessions, Fishman & Nathan, L.L.P., Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellants, Marion A. Lanasa, Jr., and Anthony V. Lanasa, M.D.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| ¡.This is a succession proceeding involving a contest over the validity of a will. We reverse the trial court’s determination that the will was invalid.

FACTS

Dr. Marion A. LaNasa, Sr. died on November 14, 2004. At the time of his death he was married to and living with his second wife, Barbara Parham LaNasa. His first marriage had ended with the death of his first wife, by whom Dr. LaNa-sa had five children (all majors by the time of his death). Dr. LaNasa had no other children.

On December 6, 2004 Dr. LaNasa’s children petitioned to file and execute a notarial will dated November 6, 2003. In that will Dr. LaNasa left particular legacies to his grandchildren, great-grandchildren, and his son Marion A. LaNasa. He left the remainder of his estate to be divided in equal portions among his five children. He stated further, “It is my specific desire that my present wife, Barbara LaNasa, get nothing from my estate. This includes but is not limited to any interest in my portion of community property, any usu-fructs or separate property.” He named his two sons to be executors of his estate.

|oOn December 7, 2004 the district court ordered that the will dated November 6, 2003 be filed and executed, that the estate be administered by independent administration, and that Marion A. LaNasa, Jr. and Anthony V. LaNasa be confirmed as independent co-executors.

On January 28, 2005, Mrs. Barbara La-Nasa filed a Petition to Annul Probated Testament. She alleged that the testament of November 6, 2003 is invalid because Dr. LaNasa was physically unable to read due to infirmity and, therefore, any testament by him must conform to the requirements of La.C.C. art. 1579. Article 1579 requires that where the testator is unable to read due to physical impairment, the purported testament must be read aloud in the presence of the testator, the notary, and two competent witnesses, and prescribes other formalities to be observed. Because the testament dated November 6, 2003 does not include a declaration that the formalities prescribed by Article 1579 had taken place, Mrs. La-Nasa alleged it is invalid.

Mrs. LaNasa further alleged that about the time the November 6, 2003 document was prepared and signed, she and Dr. LaNasa were quarreling; that Dr. LaNa-sa’s children encouraged his anger toward her, thus causing Dr. LaNasa to resent her; that Dr. LaNasa’s children seized upon his anger towards Mrs. LaNasa and drove him to an attorney with whom the decedent had no prior relationship for the purpose of having him execute a testament disinheriting his wife; that the actions and influences of Dr. LaNasa’s children resulted in the November 6, 2003 document whereby Dr. LaNasa disinherited Mrs. La-Nasa completely, in favor of his children. Mrs. LaNasa asserted that the alleged November 6, 2003 testament was the product of undue influence exerted by Dr. LaNa-sa’s children and should be declared null.

LThe executors opposed the petition to annul the testament. They admitted that Dr. LaNasa suffered from macular degeneration, but they asserted that he could read with the assistance of a reading machine, a device that magnifies documents onto a television screen. The executors contended that if a testator is able to read with magnification, the attestation clause is not necessary and, moreover, if a testator has the ability to read, his failure to actually read the will does not invalidate the will.

After a trial at which a number of witnesses testified, the district court took the matter under advisement and later rendered judgment finding the will invalid, as follows:

[I]n light of the fact that Dr. LaNasa did not have his or any other reading machine with him at the execution of the November 2003 will, the notarial testament should have been executed in accordance with the formalities of La.C.C. art. 1579. The Court finds that the November 2003 will does not meet the requirements of La.C.C. art. 1579 in that the testament was not read aloud assuring Dr. LaNasa, the notary and the witnesses that the instrument Dr. LaNa-sa signed was the instrument he intended to sign as his testament. Considering that the November 2003 will was not read aloud by the notary to Dr. LaNasa and the witnesses and considering Dr. LaNasa was impaired to the extent that he could not read without his reading machine, the Court finds the November 2003 will to be invalid.

The executors appeal. They contend the trial court erred in determining that Dr. LaNasa’s November 2003 will required a sight-attestation clause in conformance with La.C.C. art. 1579, and in failing to grant judgment in favor of the executors. They frame the issues as whether a will must be executed in conformance with La. C.C. art. 1579 if the evidence is undisputed that the testator was able to read with magnification at the time the instrument was executed, and whether a testator who has the physical ability to read with the assistance of | ¡^instrumentality (ieeye-glasses, reading machine, etc.) must read the instrument prior to its execution in order for the vdll to be valid.

At trial the evidence concerned Dr. La-Nasa’s vision problems, the possible reasons he wished to disinherit his wife and, to a limited extent, possible bias of the witnesses to the signing of the will. The trial judge decided the case on the legal issue of whether the will was in the proper form for a person unable to read due to physical impairment. Mrs. LaNasa has not appealed the trial court’s failure to address the issue of undue influence. We limit our discussion of the evidence accordingly.

Dr. Rudolph Franklin, an ophthalmologist who specializes in diseases of the retina, testified he began treating Dr. LaNasa for severe macular degeneration in November 2000. By November 20, 2001,. Dr. LaNasa’s vision had deteriorated so much that he was “legally blind”: the vision in his best eye (the left eye) was 20/400, while the vision in his right eye was so poor he could not see fingers held in front of him farther than one foot away. By September 9, 2003 — the visit closest to the date of execution of the contested will — Dr. La-Nasa’s visual acuity in one eye was so poor eye that when shown fingers he was unable to even tell whether it was one or two fingers, although he could tell there were hand motions in front of him. In the other eye he could count fingers at two feet. Dr. Franklin agreed Dr. LaNasa would have been considered legally blind on that date.

When Dr. Franklin next saw Dr. LaNa-sa, on December 23, 2003, he could see hand motions with the right eye, but a little later during the examination was able to count fingers at three feet, which is better vision than hand motions. With the left eye he could count fingers at four feet. Dr. Franklin said Dr. LaNasa would also be considered legally blind on that date. There was no reason for Dr. Franklin | fito think that Dr. LaNasa’s vision would have improved markedly between September 9, 2003 and December 23, 2003.

Dr. Franklin emphasized that due to poor visual acuity, Dr. LaNasa could not have read the will dated November 9, 2003, even with regular eyeglasses, but he may have been able to read it by use of a reading machine. Dr. Franklin recalled that Dr. LaNasa had told him he had purchased and used a reading machine at his home.

John M. Coman, Jr. testified he had been Dr. LaNasa’s attorney for many years and had prepared several testaments for him over the years: He identified a will Dr. LaNasa executed on October 8, 1997, and another will he executed on September 21, 1999. In each of those testaments Dr. LaNasa made significant bequests to Mrs. LaNasa.

Coman also identified another document, which he stated was an unexecuted will drafted in 2004, following a lengthy conference at Coman’s office attended by both Dr. LaNasa and Mrs. LaNasa. Dr. La-Nasa told Coman to mail him a draft and he would read it at home. Coman was aware that Dr. LaNasa could not read without the assistance of a magnifying machine. He mailed a draft of the will to Dr. LaNasa on or about October 25, 2004, with a note that said, “Please read and give me a call.”

Coman telephoned Dr. LaNasa seven to ten days later and asked him whether he had received and read the will. Dr. LaNa-sa replied that he had. Coman |7asked him whether he wanted any changes, to which Dr. LaNasa replied no. When Co-man inquired when they could get together to execute it, Dr. LaNasa did not give him an answer. According to Coman, the conversation terminated with the understanding that Dr. LaNasa would call Coman back, rather than Coman pursuing the matter.

Coman never heard from Dr. LaNasa again; Dr. LaNasa died approximately a week after Coman’s last conversation with him. Coman was not aware until long after Dr. LaNasa died that Dr. LaNasa had executed another will in November 2003.

Thomas Corrington testified he is an attorney and that he drew up the will at issue. He has known the LaNasa family for years because he is close friends with Peter Ascani, one of Dr. LaNasa’s grandsons; they own property together, and Ascani works as a legal assistant in Cor-rington-’s office. In addition, Ascani’s girlfriend, Catherine Babin, works for Cor-rington and was one of the witnesses to the will.

Corrington said that Dr. LaNasa phoned him on the morning of the date the will at issue was executed. Dr. LaNasa told him he wanted a will drawn up, and told him what he wanted. Corrington said Dr. La-Nasa told him his wife had not come home the evening before, he was frustrated with their relationship, and how she treated him, and he wanted to write a will that effectively wrote her out.

Corrington said he understood Dr. La-Nasa called him because he felt dominated by his wife and wanted to get the will done that day, before his wife came home. The conversation took place early in the morning. Dr. LaNasa dictated the basic terms of the will and Corrington drafted it, then call Dr. LaNasa back and read it to him. Dr. LaNasa made some minor changes, which Corrington |Reffected. Corrington then re-read the will to Dr. LaNasa and then gave a copy of it to Peter Ascani to take to Dr. LaNasa. Ascani took the document to Dr. LaNasa, then brought Dr. LaNasa back to Corrington’s office to execute the will.

Corrington said he did not recall reading the will aloud after Dr. LaNasa was in his office. Corrington testified he understood that Dr. LaNasa could read with difficulty because of his eye condition and he knew Dr. LaNasa had a reading machine.

Corrington asked Dr. LaNasa whether he had read the will and Dr. LaNasa told him he did. Then they went through the process of executing the will with the witnesses. Corrington did not read the will aloud because he did not feel it was required.

On cross examination Corrington acknowledged a discrepancy relating to the date on the will. The will is dated November 6, 2003 and in deposition Corrington stated the will was executed on Thursday, November 6, 2003. At opposing counsel’s request, however, he checked the document’s properties on his computer and learned that the document had been created on November 7, 2003 at 8:54 a.m., and that it was last modified on that same day at 4:12 p.m. Corrington said it was his error in typing the wrong date on the document, and that the document was definitely done on November 7th. He said he also erred in the date he handwrote on the document above his signature as notary.

Peter Ascani, Jr., Dr. LaNasa’s grandson,’ testified that his grandfather called him about wanting to do a will and asked him to put him in touch with the attorney he works for. After Corrington spoke to his grandfather and drafted the will, Asca-ni brought his grandfather the will. His grandfather was outside his home waiting for Ascani and when Ascani arrived and gave him the will, Dr. LaNasa took it and went inside. He came outside again after a few minutes, got into 1 sAscani’s car, and they went to Corrington’s office. Ascani said they did not discuss the will and he was not present when it was executed.

According to Ascani, everything that happened on. the day he picked up his grandfather to make the new will occurred “very fast.” When he brought the will to his grandfather, he knew his grandfather was going back inside to read it on his machine. Ascani admitted that he could not say for sure that his grandfather had read the will.

Mrs. Barbara LaNasa testified that on the night of November 5, 2003 she had gone to dinner with a friend, Marilyn Guercio. When they returned to Guercio’s home, both had had too much to drink, so Mrs. LaNasa decided to stay there. Mrs. LaNasa talked to her husband, who seemed to accept her decision to stay at Guercio’s. The next morning, however, when Mrs. LaNasa arrived back at home around 9:00 or 9:30 a.m., she found her key would not unlock the front door. She went in through the garage and found her husband was furious and had a workman there changing all the locks. Mrs. LaNasa said she did not leave the home for several days thereafter, because Dr. LaNasa would not give her a key to the new locks.

Mrs. LaNasa said Dr. LaNasa could not use his reading machine over that period of time because it had been unplugged and he could not connect it himself. She refused to connect it for him because of the key incident — “He did it to me, I did it to him,” she stated. Thus, Mrs. LaNasa testified, Dr. LaNasa could not have used his reading machine to .read the will drafted by Thomas Corrington. Mrs. LaNasa did not reconnect the reading machine until the following Sunday, which was two to three days after the day on which the will was confected.

Mrs. LaNasa was not aware that Dr. LaNasa had made a new will. She knew that his grandson Peter came by the house once or twice, and she knew that |inDr. LaNasa left for a while, although she did not know where he went. She said the grandsons never came into the house when they came by to see their grandfather. She testified she stayed in the house all day and night for several days until she finally was given a key, and during that time she never observed Dr. LaNasa using his reading machine because the machine remained unplugged.

On cross examination, Mrs. LaNasa admitted her memory of staying in the house from Thursday through Sunday without leaving was faulty, when shown a restaurant bill indicating that she and Dr. LaNa-sa had gone out to dinner on the Friday evening during that period.

LAW AND ANALYSIS

There are now two forms for wills in Louisiana: olographic and notarial. La. C.C. art. 1577 prescribes the requirements of form for the notarial testament:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this _day of_,_”

La.C.C. article 1579 provides additional requirements where the testator is unable to read, as follows in pertinent part:

When a testator does not know how to read, or is physically impaired to the extent that he cannot read, 11 whether or not he is able to sign his name, the procedure for execution of a notarial testament is as follows:
(1) The written testament must be read aloud in the presence of the testator, the notary, and two competent witnesses. The witnesses, and the notary if he is not the person who reads the testament aloud, must follow the reading on copies of the testament. After the reading, the testator must declare or signify to them that he heard the reading, and that the instrument is his testament. If he .knows how, and is able to do so, ,the testator must sign his name at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: “This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses [, and the notary if he is not the.person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the .end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this _ day of_,-”

A notarial testament does not need to be proved. La.C.C.P. Art. 2891. “Upon production of the testament, the court shall order it filed and executed and this order shall have the effect of probate.” Id. “The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” La.C.C. art. 1578. In an action to annul a notarial testament, the plaintiff always has the burden of proving the invalidity of the testament. La.C.C.P. art. 2932(B).

A testator’s ability to read is an element of testamentary capacity. Succession of Graham, 01-676, p. 5 (La.App. 5 Cir. 11/27/01), 803 So.2d 195, 197. Whether a testator has the ability to read is a question of fact. Id. In the event that the trial court finds that the testator cannot read, the testament will only be valid if it comports with the procedures governing notarial testaments. In re Succession of Sandifer, 2005-860 (La.App. 3 Cir. 3/1/06), 923 So.2d 862.

In Succession of Maquar, 2003-0041, p. 9 (La.App. 4 Cir. 6/4/03), 849 So.2d 773, 778, writ denied, 2003-1873 (La.11/21/03), 860 So.2d 544, the Fourth Circuit stated that the additional formalities and requirements imposed by La.C.C. art. 1579 are to insure that the testator knows of the contents of the testament when he executes it, to protect him and his intended heirs from fraud or mistake. Thus, the requirement that the will be read aloud in the presence of the testator and that the witnesses and that.the attestation reflect that this was done, are directed at the problem of the testator who is unable to read the will himself, either through illiteracy or sight-impairment. ■ ■ ,

In Succession of Dugas, 400 So.2d 333, 334 (La.App. 4 Cir.1981), writ denied, 404 So.2d 1257 (La.1981), the court held that a testatrix was not disqualified from making a statutory will by her need for a magnifying lens to read. Similarly, a testator who can only read his will with glasses is “able to read;” within the meaning of the statute providing that those who are not able to read cannot make statutory wills. Succession of Harris, 329 So.2d 493, (La.App. 4 Cir.1976), writ denied, 332 So.2d 862 (La.1976).

There is a strong public policy in favor of. maintaining the will of the testator. “The intent of the testator controls the interpretation of his testament.” La. C.C. art. 1611(A). “A disposition should be interpreted in, a sense in which it can have effect, rather than one in which it can have none.” La.C.C. art. 1612. There is a presumption that a testament is valid, which can be rebutted only with compelling proof. Succession of Smith, 01-930 (La.App. 5 Cir. 1/15/02), 806 So.2d 909, 911, writ denied, 2002-0633 (La.5/3/02), 815 So.2d 105.

The evidence established that Dr. LaNa-sa initiated contact with the attorney, Thomas Corrington; Dr. LaNasa dictated the contents of the will to Corrington; Dr. LaNasa indicated to the witnesses in Cor-rington’s office that he had read the will 11sand agreed with its contents. Further, his grandson brought the will to Dr. LaNa-sa’s home and Dr. LaNasa took the will inside the house for several minutes before returning outside with it in order for Asca-ni to take him to Corrington’s office.

The testimony establishes that, from the time the will was delivered to Dr. LaNasa by his grandson Peter Ascani until the time it was executed at Thomas Corring-ton’s office, it was never out of Dr. LaNa-sa’s possession. When Corrington asked Dr. LaNasa whether he had read the will, Dr. LaNasa replied in the affirmative, stating it was what he wanted.

Although Dr. LaNasa was unable to read with the naked eye or with glasses due to his severe macular degeneration, he could read by using a reading machine, and he had such a machine at his home.

We conclude that because Dr. LaNasa could read with magnification, the formalities of La.C.C. art. 1579 were not required. The testament dated November 6, 2003 complied with the formalities of La.C.C. art. 1577; therefore, it is valid.

For the foregoing reasons, the judgment of the district court is reversed and the petition to annul the probated testament is dismissed. Costs are assessed against the appellee, Barbara LaNasa.

REVERSED.

      . The children are Marion A. LaNasa, Jr., Anthony V. LaNasa, Marietta Eileen LaNasa Ascani, Gloria LaNasa Azzarello, and Elaine LaNasa Yuratich.

      . Dr. Franklin said "legally blind” refers to vision that cannot be corrected to 20/200 or better. He stated that "legally blind” is a legal rather than a medical term.

      .In the will executed in 1997, Dr. LaNasa bequeathed to Mrs. LaNasa the right to be buried in the family tomb; $25,000.00; a 1993 Cadillac; lifetime usufruct of 550 Aris Avenue in Metairie; and directed that his estate pay the mortgage note on that home until and unless she were to remarry. He also left her $700.00 a month until she is able to collect his Social Security or other Social Security benefits.
      In the will executed in 1999, Dr. LaNasa directed that his estate pay off the mortgage loan on 550 Aris Avenue in Metairie "to enure to the benefit” of his wife. He also bequeathed to Mrs. LaNasa $100,000.00; the right to be buried in his tomb; and usufruct of his boathouse until her remarriage. Further, he ordered that his estate pay Mrs. La-Nasa $1,000.00 per month until she reaches age 65 and that "after being married ten years, beginning with the eleventh year,” his executor and estate pay Mrs. LaNasa $10,000.00 per year, to terminate on her 65th birthday.

      . In the unexecuted 2004 will, Dr. LaNasa left his wife $100,000.00, to be paid first out of the estate; usufruct over their jointly-owned property at 550 Aris Avenue and 801 Rue Burgundy Street, Apartment 314, for five years after his death; the right to be buried in his tomb; and the right to remove her personal belongings from the boathouse within six months.

      . The date on the will is November 6, 2003, but Corrington remembers the date on which they confected the will as being November 7, 2003.


text:
    STATE of Louisiana v. Jarmar BUTLER.
    No. 06-KA-645.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Andrea F. Long (Appellate Counsel), Donald A. Rowan, Jr. (Trial Counsel), Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Margaret S. Sollars, Louisiana Appellate Project, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant, Jamar Butler.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| ¾ Jar mar Butler appeals his conviction of unauthorized entry of an inhabited dwelling and the five-year sentence imposed. We affirm the conviction and the sentence, and remand the matter for correction of a patent error.

On August 10, 2004, the Jefferson Parish District Attorney filed a three-count bill of information against Jarmar Butler, comprising Count 1, violation of La.R.S. 14:56 (simple criminal damage to furniture and clothing in excess of $500), and Counts 2 and 3, violations of La.R.S. 14:62.3 (unauthorized entry of an inhabited dwelling). At arraignment the defendant pleaded not guilty.

On January 5, 2005, the defendant proceeded to trial on Count 3 before a six-person jury. Count 3 charged the defendant with unauthorized entry of an inhabited dwelling located at 1113 Tallowtree Lane, Apartment B, belonging to Shandra-ka Antoine. The jury found the defendant guilty.

On February 4, 2005, the trial court sentenced the defendant to imprisonment at hard labor for a term of five years, with credit for time served. On the same date the prosecutor dismissed the other two counts.

IsThe defendant subsequently filed a motion to reconsider sentence, which the trial court dismissed after neither the defendant nor his attorney appeared at the hearing. The defendant’s attorney failed to make either an oral or a written motion for appeal, but the defendant filed a pro se application for post-conviction relief seeking an out-of-time appeal, which the trial court granted.

On May 15, 2006, the defendant filed a pro se “Motion For Modification Of Sentence And/Or Amendment Of Sentence,” seeking to amend his sentence to home incarceration, but the trial judge denied the motion.

FACTS

On April 14, 2003, Shandraka Antoine filed a restraining order against the defendant, who is the father of her five-year-old daughter. Nine days later, on April 25, 2003, Antoine was inside her apartment at 1113 Tallowtree Lane around 12:00, when she saw the defendant standing in the hallway of the apartment. Antoine testified that they tried to talk, but started arguing. She told the defendant to leave and threatened to call the police.

The defendant went downstairs and returned with a knife. Antoine testified she believed the defendant had picked up the knife just to scare her so that she would not call the police. When she told him she was on the phone with the police, he went downstairs and dropped the knife on the kitchen floor. When asked by the prosecutor if she had let the defendant inside, Antoine replied, “Not that night.”

| ¿Deputy Thomas Cutri of the Jefferson Parish Sheriffs Office responded to the 911 call. Upon arrival, Deputy Cutri found Antoine at the apartment alone. She was angry, upset and frightened. She said she wanted to press charges.

Deputy Cutri found a butcher knife with a black handle and a 12-inch blade in the kitchen. Deputy Cutri took Antoine’s statement, which was introduced into evidence. In it Antoine said the defendant came to her residence in violation of the restraining order and opened her door without her permission. She told.him to leave and that she was calling the police.

When she told him she was on the telephone with the police, he ran upstairs to where Antoine was located and grabbed the phone from her. He had a knife in his hand and he asked if she had called the police. When she answered affirmatively, he “jabbed” the knife at her, ran downstairs, dropped the knife on the kitchen floor, and fled the apartment. When asked if she thought the defendant intended to harm her when he thrust the knife at her, she answered affirmatively.

At trial, Antoine testified she had tried to drop the charges before trial and that she thought the event had been blown out of proportion. Antoine testified that she and the defendant planned to be married sometime during the next summer and that she did not want to see the defendant go to jail. However, she acknowledged that everything contained in her statement was true.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment, the defendant contends the evidence at trial was insufficient to support a conviction for unauthorized entry of an inhabited dwelling. He claims the State failed to show that he did not have the authority to enter Antoine’s apartment because of his history of unrestricted access to her apartment prior to the restraining order. According to the defendant, Antoine made his entry authorized by not asking him to leave immediately.

|sThe State responds that the evidence shows beyond a reasonable doubt that the defendant entered the apartment without authority.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Unauthorized entry of an inhabited dwelling is defined by La.R.S. 14:62.3 A as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” An unauthorized entry is an entry without consent, express or implied. State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 224, citing State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 931, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). In the case of a private residence, a person must have the consent of the occupant or an occupant’s agent to constitute a defense to unauthorized entry. Id.

In State v. Spain, 99-1956 (La.App. 4 Cir. 3/15/00), 757 So.2d 879, the court rejected an argument similar to that advanced by the defendant here. The Spain court found that the evidence supported the defendant’s conviction for unauthorized entry of an inhabited dwelling, even though the defendant was the father of the victim’s child, and had previously entered the victim’s home on social occasions.

In Spain, the victim was in her kitchen when the defendant suddenly appeared and pushed her. He struck her arm with a hammer. He then attempted to strike the victim’s boyfriend, who was in another room visiting with friends. 757 [ fiSo.2d at 881-882. In rejecting the defendant’s claim that his entry was authorized, the Spain court pointed out that, even though the victim’s consent was broad, it was conditioned on her expectations of non-aggressive, civilized behavior. The court concluded a rational juror could have found beyond a reasonable doubt that the terms of the victim’s consent for the defendant to enter were exceeded under these circumstances. 757 So.2d at 884.

Similarly, in State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, the victim found the defendant inside the hallway of her home one morning after hearing noises during the night. The victim, the defendant’s ex-wife, ordered him to leave, retrieved a pistol, and after some discussion, the defendant left. This Court held the evidence was sufficient to support the defendant’s conviction for unauthorized entry into an inhabited dwelling. 735 So.2d at 691.

In the case before us, the defendant contends his entry was authorized, because Antoine did not ask him to leave right away. While Antoine acknowledged she did not immediately ask the defendant to leave, she testified she did not authorize the defendant’s entry into her home. In addition, there was a restraining order against the defendant at the time of his entry into Antoine’s apartment. When Antoine told the defendant she was calling the police, he armed himself with a 12-inch butcher knife. Antoine demonstrated for the jury at trial how the defendant held the knife. It was only after Antoine told him she had called the police that the defendant dropped the knife in the kitchen and left.

Credibility determinations are for the jury, and it is not the function of the appellate court to assess the credibility of the witnesses. See, State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 966, writ denied, 99-2551 (La.2/18/00), 754 So.2d 964. Considering the evidence in the light most favorable to the prosecution, we find the evidence was sufficient for a rational trier of fact to |7conclude beyond a reasonable doubt that the defendant intentionally entered the Antoine’s home without authorization.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, the defendant asserts that the bill of information on which the sentence is based is invalid. He contends his conviction was nullified by the prosecutor’s written amendment to the bill of information that dismissed Counts 2 and 3 of the bill of information. According to the defendant, the bill of information was defective, rendering his sentence invalid because he was sentenced on a count that was dismissed.

The State contends that the inadvertent post-sentencing dismissal of Count 3 did not nullify the defendant’s conviction on that count.

The record in this case reflects that Count 3 of the bill of information charged the defendant with unauthorized entry into an inhabited dwelling belonging to Antoine. The record reflects that the defendant proceeded to trial on Count 3 and was convicted of Count 3. After the judge sentenced the defendant on Count 3, the trial court’s clerk asked the prosecutor what he intended to do with the other two charges. The prosecutor responded that he would “dismiss the other two.” The minute entry/commitment reflects that Counts 1 and 2 were dismissed. However, the prosecutor wrote on the bill of information that Counts 2 and 3 were dismissed.

La.C.Cr.P. art. 691 provides that a prosecutor may dismiss a charge as follows:

The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of 1 scourt. The clerk of court shall cause the dismissal to be entered on the minutes of the court.

La.C.Cr.P. art. 692 provides for the dismissal of charges after a conviction:

After conviction, the district attorney is authorized to dismiss an indictment or count thereof only:
(1) When a new trial has been granted.
(2) When a motion in arrest of judgment has been sustained.

The State may nolle prosequi a case after the verdict has been rendered and before sentencing with the trial court’s permission. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99.

The Johnson court cited this Court’s decision in State v. Hoyal, 516 So.2d 146 (La.App. 5 Cir.1987). In Hoyal we addressed the prosecutor’s authority to dismiss an indictment after the defendant was convicted and before sentencing as follows:

[0]ur jurisprudence indicates that the district attorney’s office can enter a nolle prosse after the verdict has been rendered and before sentencing as long as he has the trial court’s permission. ... We note the trial judge granted the district attorney’s motion to nolle prosse the indictment for aggravated rape. We suggest that a reading of La. C.Cr.P. art. 692 in pari materia with art. 691 and the jurisprudence interpreting it makes it apparent that the limitations in art. 692 were meant to apply to the district attorney’s authority to nolle prosse a case without the consent of the court. [Emphasis in original; citations and footnote omitted].

Hoyal, 516 So.2d at 149.

State v. Knight, 526 So.2d 452 (La.App. 5 Cir.1988), is similar to the present case. There, the defendant proceeded to trial on one count of a two-count indictment. After he was convicted and sentenced on that count, the district attorney dismissed both counts of the indictment. The record reflected there was a notation on the bill of information, as well as the minute entry, indicating that the district attorney dismissed both counts, not just the one that was not prosecuted.

| nBased on the reasoning in Hoyal, supra, the Knight court held that the prosecutor had no authority to dismiss the indictment, stating as follows:

Noting specifically that the record does not reflect that the trial judge gave the district attorney permission to dismiss the indictment, statutory law and this Court’s policy as stated in State v. Hoyal, supra, cause us to find the district attorney had no authority whatsoever to dismiss the indictment once the conviction had taken place.

Knight, 526 So.2d at 455.

As in Knight, this record does not reflect that the trial judge gave the district attorney permission to dismiss Count 3 of the bill of information after the defendant was convicted. In fact, the transcript of the defendant’s sentencing reflects that the prosecutor orally dismissed Counts 1 and 2. Even though the bill of information reflects that the prosecutor dismissed Count 3, the prosecutor had no authority to dismiss Count 3 once the conviction had taken place. Therefore, there is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant asserts the trial court erred by not giving reasons for its excessive sentence. Specifically, the defendant contends his five-year sentence at hard labor is constitutionally excessive for a first-felony offender.

According to the defendant the sentence, which is one year shy of the maximum term, is unjustified because the matter arose out of a domestic dispute where the victim wanted to drop the charges, and because he is a good father. The defendant also complains that the trial judge failed to provide reasons to support the sentence. The State responds that the trial judge did not abuse his discretion in sentencing defendant.

110In this case, the defendant filed a motion to reconsider sentence, asserting among other things, that the sentence was excessive because of his background and because the victim tried to drop the charges. However, the motion was dismissed after the defendant and his attorney did not appear for the hearing.

The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is excessive if it is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, or if it imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). The trial judge has wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Thompson, 02-333 (La.4/9/03), 842 So.2d 330, 338.

A conviction of unauthorized entry of an inhabited dwelling carries a maximum sentence of six years, with or without hard labor, and the possibility of a one thousand dollar fine. The defendant, who was twenty-four years old at the time of sentencing, received a five-year sentence of imprisonment at hard labor without a fine.

In the present case, the trial court did not provide specific reasons for the sentence imposed. However, the trial court is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Uloho, 04-55 11(La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04) 888 So.2d 192.

The defendant’s conduct cannot be excused merely because his behavior was rooted in a domestic dispute. In Holmes, supra, this Court held that the trial court did not abuse its discretion in sentencing a defendant convicted of unauthorized entry of an inhabited dwelling to three years at hard labor. The defendant in Holmes had claimed that the sentence was excessive because he had no prior serious involvement with the law, the matter involved a domestic dispute with his ex-wife, and no one was injured. 735 So.2d at 689, 691-692.

See also, State v. Grimes, 527 So.2d 1079, 1081 (La.App. 1 Cir.1988), writ denied, 533 So.2d 15 (La.1988), where the court held a maximum six-year sentence was not excessive for a first felony offender convicted of unauthorized entry into an inhabited dwelling.

We distinguish State v. Pike, 426 So.2d 1329 (La.1983), cited by the defendant in support of his argument. Pike was a simple burglary case in which the Louisiana Supreme Court held that a three-year sentence at hard labor was “apparently severe” because the record did not contain “adequate explanation or justification” for the sentence. The court remanded the case for compliance with La.C.Cr.P. art. 894.1.

In Pike, the victim discovered her neighbor hiding in her closet after he came inside to obtain a “joint.” 426 So.2d at 1331. There was evidence that the defendant had been to the victim’s house on social occasions. However, Pike is distinguishable, because in the instant case the defendant entered the house of his girlfriend in violation of a restraining order and armed himself with a knife while inside.

[ 72Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315 (La.1982). Although the trial court did not provide specific reasons for the sentence, the record reflects that the judge was aware the defendant previously had been convicted of a similar offense in Georgia.

At the sentencing hearing, the prosecutor told the judge that the State had intended to use the Georgia conviction to charge the defendant as a multiple offender, but had discovered that Georgia had “charged him with the lesser offense of the misdemeanor.” The trial'judge asked if the Georgia conviction involved a similar type of offense, and the' prosecutor responded affirmatively.

The evidence at trial showed the defendant entered the victim’s home despite the restraining order and without her authorization, confronted her with a butcher knife, and left only because she had called the police. The restraining order and supporting documents show that the defendant had a propensity toward violence to the victim. Finally, the prosecutor stated at sentencing that the defendant had a similar conviction (a misdemeanor in the State of Georgia), without contradiction from the defendant.

The Louisiana Supreme Court has stated that the question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Thus, the sentence should only be set aside if the panel finds that the trial judge abused his broad sentencing discretion.

h ¿ERROR PATENT DISCUSSION

Our patent error review, conducted pursuant to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990), reveals two patent errors.

First, the jury returned a verdict of “guilty,” without specifying the offense upon which the guilty verdict was based. There were three possible verdicts, each of which was listed on the other side of the verdict form.

Because the verdict is a part of the pleadings and proceedings, any error therein is reviewable as an error patent. State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1127. In Robinson, the defendant was charged with possession of cocaine, and the jury was instructed that the single word “guilty” was a responsive verdict. The jury was further instructed that another responsive verdict was “guilty of attempted possession of cocaine.” This Court held that a review of the record as a whole reflected that the jury clearly conveyed its intention to find the defendant guilty as charged when returning a verdict of “guilty” without specifying the verdict upon which the offense was based. We concluded that, if the jury had intended to find defendant guilty of the lesser offense of attempted possession of cocaine, they were instructed to find the defendant “guilty of attempted possession of cocaine,” as opposed to “guilty.” 896 So.2d at 1129.

As in Robinson, the trial judge here instructed the jury that they could return three verdicts in the case:

One is guilty, which is guilty of unauthorized entry of an inhabited dwelling;
Two, guilty of attempted unauthorized entry of an inhabited dwelling;
And three, not guilty.

|14In addition, the verdict form in this case conforms to the trial judge’s instruction to the jury. If the jury in this case had intended to find the defendant guilty of a lesser offense, it would have returned a verdict of “guilty of attempted of unauthorized entry of an inhabited dwelling,” as opposed to “guilty.”

The second patent error involves the court’s advice to the defendant regarding his post-conviction rights. The minute entry for the defendant’s hard-labor commitment states that the defendant has two years after his conviction and sentence becomes final to file for post-conviction relief. The transcript for that same date, however, indicates that the trial judge informed the defendant that he had “... two years to file post conviction relief applications.”

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Accordingly, the defendant received an incomplete advisal of his rights.

To remedy the error, we will follow our usual procedure and remand the case to the trial court with instructions for correction. See, State v. Tran, 05-518 (La.App. 5 Cir. 12/27/05), 919 So.2d 787, 795.

For the foregoing reasons, the conviction and sentence are affirmed and the ease is remanded. The trial court is ordered to inform the defendant of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant within fifteen days after the rendition of this Court’s opinion, and to file written proof in the record that the defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTION

      . The prosecutor wrote on the bill of information, "Dismissed on Ct. 2,3 only [signed] Donald A Rowan Jr ADA 2-4-05” The effect of the prosecutor’s writing "3” rather than "1” is discussed infra under Assignment of Error Number Two.

      . This is the second time this case is before this Court. The prior appeal was lodged as No. 06-KA-466. In reviewing the record we determined that the jury verdict was ambiguous and the record did not contain enough information to determine the jury's intent. On July 21, 2006, we dismissed the appeal, remanded for completion of the record, and ordered that when completed, the record be re-lodged with this Court. When re-lodged on August 31, 2006, the appeal was designated No. 06-KA-645 and the previous appellate record, 06-KA-466, was included as an exhibit to the current record.

      .It is not clear from the testimony whether the incident occurred during the day or the night. Antoine said she did not let the defendant in "that night.” However, the police report reflects that police responded at 11:55 a.m.

      . The record reflects that the prosecutor wrote on the bill of information on the same day of sentencing, but it does not reflect, a time. Therefore, it is unknown precisely when the prosecutor made the written amendments.


author: DALEY, Judge.

text:
    DICTOGUARD, INC. and Edgar M. Rea v. Jean Michel LOPEO, Eagle Security Systems, Inc. and Eagle Electronic Security Systems, Inc.
    No. 06-CA-631.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    John A. Stewart, Jr., Hulse & Wanek, New Orleans, LA, for Plaintiffs/Appellees.
    M. Claire Durio, Susan M. Caruso, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   DALEY, Judge.

12Pefendants, John Michel Lopeo, Eagle Security Systems, Inc., and Eagle Electronic Security Systems, Inc., appeal the trial court’s grant of a Motion to Confirm Arbitration Award filed by plaintiffs, Dic-toguard, Inc. and Edgar M. Rea. Defendants argue that the trial court erred in entering an award that does not conform to the express ruling of the arbitrator. They argue that the judgment awards relief in addition to and beyond the scope of the arbitrator’s express ruling. Specifically, defendants assert that the arbitrator’s ruling awarded Dictoguard certain damages against Mr. Lopeo, individually, but the trial court’s judgment confirming the award rendered judgment in favor of Dic-toguard against Lopeo and Eagle in soli-do. We find merit in defendants’ position, and accordingly, reverse the judgment of the trial court, and render judgment confirming the arbitration award as written by the arbitrator.

|3In 1993, Dictoguard, as buyer, entered into a purchase agreement with Eagle, as seller, and Mr. Lopeo, as shareholder of Eagle, to purchase the assets of Eagle’s alarm security business, referred to as the Asset Purchase Agreement. This agreement is signed by Mr. Rea in his capacity as President of Dictoguard, and by Mr. Lopeo in his capacity as President of Eagle, and also again by Mr. Lopeo as Shareholder. In connection with the sale, Dictoguard and Mr. Lopeo, as “consultant,” entered into a Consulting Agreement under which Mr. Lopeo was to provide certain consulting services to Dictoguard. This Consulting Agreement was signed by Mr. Rea in his capacity as President of Dictoguard, and by Mr. Lopeo, individually, as “consultant.”

As of 1999, disputes between the parties regarding the two contracts arose and escalated, and the parties agreed to submit the matters to binding arbitration for resolution. The arbitrator issued his ruling on April 28, 2005, which reads in its entirety as follows:

Arbitrator’s Ruling
Following review of what record there is of the evidence taken before my appointment as arbitrator, study of memoranda of the parties, consideration of the argument of the parties, and conducting research (including King James Version of the Holy Bible (1 Kings 4,16-28)), I rule as follows:
Dictoguard sustained damages in the amount of $108,000 as a result of Jean-Michel Lopeo’s violation of the non-competition provisions of the Consulting Agreement and it is hereby awarded $108,000 from Jean-Michel Lopeo, plus judicial interest from the date arbitration was begun, September 7, 1999, and all expenses of arbitration which have been advanced by Mr. Edgar Ray [sic] and Dictoguard on behalf of the Lopeo or Eagle interests for expenses related to the arbitration.
The Eagle and Lopeo interests are awarded $17,000 from the Dictoguard interests for breach of the Asset Purchase Agreement, plus judicial interest from the date the arbitration began, September 7,1999.
The Omni Bank is ordered to release the Martin Mediation Group whatever remains in the arbitration escrow account established in |41998, to be distributed by Martin Mediation Group to the parties entitled to such based upon this and prior rulings.

On January 24, 2006, Dictoguard and Mr. Rea filed the Motion to Confirm Arbitration Award and for Judgment According to the Award and for Release of Escrow Funds. The motion directly references the Arbitrator’s Ruling, but asks that the “Court render judgment pursuant to the award in their favor and against [Eagle] and Jean Michel Lopeo, in solido, ...” (emphasis added)

Eagle and Lopeo did not file an opposition to the Motion to Confirm Arbitration Award. On March 22, 2006, in open court, and without any substantive argument, the trial court granted plaintiffs’ Motion. On March 30, 2006, defendants filed a Motion for New Trial, arguing that the judgment rendered on March 22, 2006 was contrary to the law and evidence in that it awarded judgment in favor of Dicto-guard and Rea and against Lopeo and Eagle in solido. The motion further points out that the arbitrator’s award was in favor of Dictoguard only and not Rea. The motion further suggests that defendants’ failure to oppose the motion or appear at the hearing was based upon possible settlement discussions. The trial court denied the motion on June 6, 2006, after which defendants filed this appeal.

On appeal, defendants argue that the trial court had no legal authority to render a judgment against Lopeo and Eagle in solido, as this grants relief beyond that in the arbitrator’s express ruling. Defendants also argue that the trial court erred in denying their Motion for New Trial.

Plaintiffs argue that the ruling is correct, because counsel for Lopeo has expressed that he is insolvent and may not be able to pay a judgment against him, and that under the principles of solidarity, Eagle and Lopeo are obligated to the |5same thing, because Lopeo is Eagle’s sole shareholder. They also argue that under the “veil piercing” theory, Eagle can be found solidarity liable with Lopeo for Lopeo’s breach of the Consulting Agreement. Finally, they argue that fairness dictates the trial court’s result, since the award of $17,000 in favor of Lopeo and Eagle was for a breach of the Asset Purchase Agreement by Dictoguard to which Lopeo was not a party, and that if Lopeo can take advantage of the award of $17,000.00 without being a party to the Asset Purchase Agreement, then why should Eagle escape liability for the award of $108,000.00?

Arbitration proceedings are governed by LSA-R.S. 9:4201 et seq. R.S. 9:4209 provides that the trial court may only confirm the award as written. Robert S. Robertson, Ltd. v. State Farm Ins. Companies/State Farm Fire and Cas. Companies, 05-435 (La.App. 5 Cir. 1/17/06), 921 So.2d 1088. The statutory grounds for vacating or modifying an arbitration award in whole or in part are found in LSA-R.S. 9:4210 and 4211. Unless grounds for vacating, modifying, or correcting the award are established, the award must be confirmed. Id. at 1091.

The trial court’s judgment confirming the award actually awards relief not awarded by the arbitrator. The trial court exceeded its authority when it awarded damages to Dictoguard against Lopeo and Eagle in solido when the arbitrator’s award was against Lopeo alone. The reasons advanced by plaintiffs as to why this award should be in solido, and that the trial court had authority to make an in solido award when the arbitrator did not, go to the merits of the dispute and involve interpretation of facts not before the trial court, and thus is clearly in excess of the trial court’s statutory authority as per LSA-R.S. 9:4209 and 4212.

Plaintiffs argue that counsel for Lopeo has represented in the past that he is insolvent, and thus not awarding the judgment against Lopeo and Eagle in solido | fiWould deprive plaintiffs of their award. There is no evidence in the record that Lopeo is insolvent.

Plaintiffs also argue that the solidary obligation arises, not only from an expression of the parties, but from operation of law, quoting LSA-C.C. art. 1796. But plaintiffs failed to include the first sentence of that article, which states that solidarity of obligation shall not be presumed. Plaintiffs make the sweeping con-clusory statement that “despite the claim of Lopeo and Eagle that they are separate and distinct parties, solidary liability is imposed by operation of law. They are both obligated to the same thing. C.C. Art. 1794.” Plaintiffs argue that Eagle is liable, under the terms of Asset Purchase Agreement, for Lopeo’s breach of the Consulting Agreement, even though Eagle was not a party to the Consulting Agreement. The arbitrator, however, apparently did not come to such a conclusion, since he awarded plaintiffs damages for the breach of the Consulting Agreement against Lo-peo alone. The place for plaintiffs to have made this argument was to the arbitrator, since it involved interpretation of facts and of the various contracts’ terms. The trial court clearly erred in its judgment.

Plaintiffs also argue that Eagle is liable in solido with Lopeo under the “piercing of the corporate veil” theory, since Lopeo and Eagle are a “single business entity.” The support for such a statement, they hold, comes from the fact that Lopeo was Eagle’s only shareholder, and its president, registered agent, and director, and thus are one and the same for the “present purposes.”

Plaintiffs actually are arguing a theory of “reverse” veil piercing. To “pierce the corporate veil” or find that a corporation is an alter ego of an individual, the courts traditionally look to five factors that, when considered with the totality of the evidence, indicate that the individual and the corporation were not actually |7separate entities: (1) commingling of corporate and shareholder funds; (2) failure to follow statutory formalities required for incorporation and for the transaction of corporate affairs; (3) undercapitalization; (4) failure to provide separate bank accounts and bookkeeping records; and, (5) failure to hold regular shareholder or director meetings. Riddle v. Simmons, 40,000 (La.App. 2 Cir. 2/16/06), 922 So.2d 1267. “Reverse piercing” occurs when, through a legal action, assets of the corporate entity are reached to satisfy the obligations of a controlling alter ego. The alter ego may be a corporate shareholder or officer. Id. at 1280. The involvement of a sole or majority shareholder in a corporation, however, is not sufficient alone to establish a basis for disregarding the corporate entity. Id. at 1279.

The point of the above discussion is to show that the trial court clearly exceeded its authority when, in the guise of confirming an arbitration award, it awarded plaintiffs relief against Lopeo and Eagle in solido. Such theories as plaintiffs argue here for the correctness of the trial court’s judgment depend upon facts and evidence not in this record and that were clearly not before the trial court. The trial court cannot assume that any factual grounds existed for reverse veil piercing.

Accordingly, the trial court’s judgment confirming the arbitration award must be reversed. We hereby render judgment confirming the arbitration award as written by the arbitrator, as noted above.

REVERSED AND RENDERED.

      . Eagle Electronic Security Systems, Inc. and Eagle Security Systems, Inc. will be referred to collectively as "Eagle.”

      . Defendants make clear that they do not appeal the arbitrator’s award, but rather the judgment of the trial court purporting to confirm that award as per LSA-R.S. 9:4209 et seq.

      . Counsel for defendants asserts in brief that her failure to oppose the Motion to Confirm arose out of an apparent "understanding” the parties reached regarding amending the motion to delete the request for in solido relief.

      . P. 7 of plaintiffs' brief.


text:
    STATE of Louisiana v. Ronnie P. WHITE.
    No. 06-KA-665.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Martin A. Belanger, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

| ¡.Defendant, Ronnie P. White, appeals his conviction of one count of simple burglary, a violation of LSA-R.S. 14:62. He was found guilty as charged in a bench trial. He argues that the evidence was insufficient to support his conviction.

Initially, we note, as part of this Court’s error patent review, that the record does not show that White executed a valid waiver of his right to a trial by jury. The only evidence of a jury waiver appears in a minute entry. The parties to this appeal were notified of this deficiency in the record and were given the opportunity to brief the issue prior to oral argument, and to supplement the record with evidence of the jury waiver, if such existed. The State and defendant both conceded, in brief, that the transcript is silent as to the jury waiver, there are no untranscribed portions of trial, and that no supplementation of the record is possible.

|sIn accordance with the procedure set forth in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, we hereby remand the matter to the district court for an evidentiary hearing to determine whether the defendant executed a valid waiver of his right to trial by jury. If the evidence shows that relator did not make a valid waiver of his right to a jury trial, the district court must set aside his conviction and sentence and grant him a new trial. Relator may appeal from any adverse ruling on the waiver issue, in addition to appealing the merits.

REMANDED FOR EVIDENTIARY HEARING.

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


text:
    Marie POMACINO and Scarlett McAnespy, Natural Tutrix of Lawren Pomacino and Emzy Pomacino, Jr., minor children of Emzy Pomacino v. Osvaldo BENITO, Alejandro Madrigal, Paul Poon, Lafitte Frozen Foods Corporation, Fred Loya Insurance Agency, L.P., and/or Fred Loya Insurance Services, GP, LLC, Old American County Mutual Fire Insurance Company and ABC Insurance Company and State of Louisiana, through the Department of Transportation and Development.
    No. 06-CA-607.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    R. Glenn Cater, Attorney at Law, New Orleans, LA, and Alfred Barrera, Attorney at law, Avondale, LA, for Appellants, Marie Pomacino, et al.
    Andre C. Gaudin, Meredith M. Miceli, Attorney at Law, Metairie, LA, for Appel-lee, Lafitte Frozen Foods Corporation.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. ■ McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|sPlaintiffs appeal the trial court’s grant of summary judgment in favor of defendant. For the following reasons, we affirm.

Facts

On July 18, 2004, plaintiff, Emzy Poma-cino (“Pomacino”), was critically; injured when an oncoming vehicle traveled into his lane and struck his vehicle on Jean Lafitte Boulevard in Lafitte, Louisiana. Pomacino later died from his injuries. The oncoming vehicle was driven by defendant, Osvaldo Benito Medrano (“Medrano”) and owned by defendant, Alejandro Madrigal (“Madrigal”). On July 18, 2004, both Medrano and Madrigal were employed by defendant, Lafitte Frozen Foods Company (“LFFC”), as laborers.

Pomacino’s widow and the natural tutrix of his children filed'suit against, inter alia, Medrano, Madrigal, Paul Poon, LFFC, and their insurers on July 14, 2005. Plaintiffs alleged that LFFC was liable for the actions of its employees, Medrano and Madrigal, under the theory of respondeat superior. Plaintiffs Lspecifically alleged that Medrano was “under the direction and control of Paul Poon” at the time of the accident. Moreover, plaintiffs specifically alleged that Medrano was the “defacto agent” of LFFC because LFFC employed and housed Medrano.

LFFC filed a Motion for Summary Judgment on the basis that there is no genuine issue of material fact that its employees, Medrano and Madrigal, were not acting within the course and scope of their employment on the night of the accident at the center of this litigation. The trial court granted LFFC’s Motion on February 3, 2006. This timely appeal followed. Law and discussion

A Motion for Summary Judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 04-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2). If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the Motion for Summary Judgment, the mover need only 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. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden | not proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

To determine whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In its Motion for Summary Judgment, LFFC acknowledged that it was Medrano and Madrigal’s employer, but stated that it was not liable under respon-deat superior because defendant, Medra-no, was not within the course and scope of his employment when he was driving the vehicle that collided with Pomacino’s. vehicle.

In support of its Motion for Summary Judgment, LFFC submitted time card records and personnel files for Medrano and Madrigal certified by LFFC’s records custodian, Patti Alexie; affidavit of Patti Alexie; and affidavit of LFFC’s President, Paul Poon. LFFC later supplemented its original documentation by submitting a certified copy of Paul Poon’s deposition taken January 5, 2006. Our review of these documents indicates (1) that Medra-no and Madrigal were employed as shrimp packers by LFFC on July 18, 2004; (2) shrimp packers, like Medrano and Madrigal, were offered housing on LFFC premises as a benefit of their employment; (3) Medrano’s and Madrigal’s time cards reveal that they did not work on Sunday, July 18, 2004; (4) Medrano’s time cards reveal that he did not work later than 7:00 p.m. during July of 2004; (5) Medrano was not driving a vehicle owned by LFFC during the accident; (6) shrimp packers like Medrano did not run errands or drive as part of their job and Medrano’s job duties were limited to work at LFFC’s facilities; and (7) the accident in question did not occur on LFFC property.

| ^Plaintiffs filed their Memorandum in Opposition to the Motion for Summary Judgment without supporting documentation but contending that “Mr. Poon’s deposition seriously calls into question the facts attested to in the affidavit he signed.” On this basis, plaintiffs asked the trial court to deny the motion for summary judgment to afford-the petitioners the opportunity to conduct further discovery. When a Motion for Summary Judgment is made and accompanied by supporting documents, the opposing party may not rest on his allegations and denial; rather, he must come forth with affirming evidence to show there is a genuine issue of material fact. Sims v. Cefolia, 04-343 (La.App. 5 Cir. 11/30/04), 890 So.2d 626, 633, writ denied, 05-0005, (La.3/11/05), 896 So.2d 73. Thus, plaintiffs were unable to rebut LFFC’s contention that Medrano was not in the course and scope of its employment when he was involved in the automobile accident. Accordingly, we find that the trial court correctly granted summary judgment in favor of LFFC.

On appeal, plaintiffs re-urge their argument that summary judgment was granted prematurely as discovery is not complete. Our review of the record indicates that suit was filed on July 14, 2005. Service was requested on LFFC as well as seven other defendants. The record indicates that LFFC answered the lawsuit on November 18, 2005. There is no indication in the record regarding plaintiffs’ requests for discovery or defendant’s responses. The record is void of any motions to compel or any other documents in which plaintiff attempted to pursue remedies provided by the Code of Civil Procedure to compel defendants to comply -with discovery requests. Further, LFFC filed its Motion for Summary Judgment on December 5, 2005. Paul Poon’s deposition was taken on January 5, 2006. LFFC’s motion was heard on January 23, 2006. There is nothing in the record to indicate that plaintiff attempted to obtain further discovery from defendants during the time the Motion for Summary Judgment was pending. Thus, |7we find plaintiffs argument that the motion was premature because discovery was still pending is without merit.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to appellants.

AFFIRMED.

      . In their brief, plaintiffs aver that Medrano was arrested for driving while intoxicated at the scene of the accident. Neither plaintiffs nor defendants have been able to locate Me-drano since the night of the accident.

      . The record reflects that Madrigal was not in the vehicle during the accident. Neither plaintiffs nor defendants have been in contact with Madrigal since July 24, 2004.

      .According to its president, Paul Poon, LFFC is a company that peels and packs shrimp for shipment to other areas of the country.


author: CLARENCE E. McMANUS, Judge.

text:
    Louie SCHEXNAYDER, Sr. and Michael J. Fernandes v. Roy and Norma “Rena” GISH, Rhondalyn Singh Tanwar and Allstate Mortgage Corporation.
    No. 06-CA-579.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    Cary B. Bryson, Angela S. Bryson, Attorneys at Law, Lafayette, Louisiana, for PlaintiffiAppellant.
    Charles J. Neupert, Jr., Charles Neu-pert & Associates, Shreveport, Louisiana, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2The plaintiffs, Louie Schexnayder, Sr. and Michael J. Fernandez, appeal from a decision of the trial court that granted an exception of no right of action filed by defendants, Roy and Norma Gish, dismissing them from plaintiffs’ action. For the reasons that follow, we vacate the judgment of the trial court and we remand for further proceedings.

The plaintiffs filed suit for damages as a result of breach of contract, alleging that they were owed a real estate commission stemming from a sale of real property. Named as defendants were Roy and Norma Gish, (hereinafter “Gish”), the owners of the property, Allstate Mortgage Corporation, and its employee Rhondalyn Singh Tanwar.

Gish initially filed an exception of improper venue, on the basis that Gish was a resident and domiciliary of Caddo Parish, the immovable property that was the subject of the sale was located in Caddo Parish, and the real estate commission agreement was executed in Caddo Parish. In the exception, Gish states that plaintiffs filed the identical suit in the 1st Judicial District Court for the Parish of Caddo. (Attached to the memorandum in support is a copy of the petition.)

1 ¡¡Prior to a ruling on the exception of improper venue in this case, Gish filed an exception of no right of action. Gish also filed an exception of no right of action in the First Judicial Court. That court granted the exception of no right of action before it and dismissed plaintiffs suit pending in the 1st Judicial District Court against Gish on April 1, 2004. The parties have admitted that there is currently an appeal pending in the Court of Appeal for the Second Circuit from that decision.

In its opposition to the exception of no right of action filed by plaintiffs in this proceeding, the plaintiffs argued the merits and also requested that the proceedings be delayed pending decision by the Second Circuit. The trial court held a hearing on the exceptions filed by Gish, and on June 14, 2006 it rendered judgment granting the exception of no right of action and declaring the exception of improper venue moot. The plaintiffs filed this appeal from that decision.

In this case, Gish first filed the declina-tory exception of improper venue, and then filed a peremptory exception of no right of action. Thus, Gish properly placed the issue of venue before the trial court. A declinatory exception of improper venue must be tried before a peremptory exception filed before or at the same time. Favorite v. Alton Ochsner Medical Foundation, 537 So.2d 722 (La.App. 4 Cir.1988), Bennett v. Giarrusso, 583 So.2d 607 (La.App. 4 Cir.1991). An exception of improper venue should be ruled on prior to a peremptory exception because if it is later necessary to transfer the suit, the transferee court should not be bound by a decision of a co-equal court from another parish. Favorite, supra at 728-4. This is especially true in this case where there are two identical and simultaneous lawsuits. We therefore find that the trial court erred rendering the exception of improper venue moot, and in ruling on the exception of no right of action prior to a ruling on the merits of the exception of venue.

|4For the above discussed reasons, we vacate the judgment of the trial court and remand this case for proceedings consistent with the views expressed herein.

JUDGMENT VACATED; CASE REMANDED.

      . Allstate has filed a motion for summary judgment which was still pending in the record before us.