text:
    Michael Wayne NELSON, Plaintiff-Appellee v. Marion Savain NELSON, Defendant-Appellant.
    No. 42,697-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Anita D. McKeithen, Shreveport, for Appellant.
    Michael Wayne Nelson, In Proper Person.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

11 This case involves a divorce action pursuant to Civil Code Article 103. The wife appeals the trial court’s refusal to grant her a continuance of the divorce trial date to allow her to obtain evidence showing that insufficient time had elapsed from the date of the parties’ separation to the filing of the divorce petition. As a result of the trial, and after the trial court’s further review of the wife’s arguments in her motion for new trial, the trial court granted a divorce based upon the husband’s testimony regarding the parties’ date of separation. For the following reasons, we affirm the trial court’s ruling.

Facts

On April 12, 2006, Michael Nelson instituted divorce proceedings against Marion, his wife of five years. The divorce was sought pursuant to La. C.C. arts. 103 and 103.1(l)(a) which require one-hundred-eighty days of living separate and apart prior to the filing of the petition. In his petition Michael alleged that in August 2005, upon the couple’s evacuation from New Orleans due to Hurricane Katrina, they established a temporary matrimonial domicile in Shreveport. He further contended that on or about October 7, 2005, Marion moved out of their Shreveport home and back to the New Orleans area.

In her answer filed in July 2005, Marion alleged that the two did not separate until November 2005. However, she agreed with paragraph V of Michael’s petition, which alleged his entitlement to an absolute divorce from Marion. Likewise, in the final paragraph of her answer, Marion | ¿requested that the divorce be denied only until community property issues were addressed. Both parties filed all pleadings in proper person and were unrepresented by counsel.

On September 1, 2006, upon oral motion of Michael on August 16, 2006, the trial court issued an order setting the case for trial on September 13, 2006. The order was filed in the record on September 7, 2006. A letter from the Caddo Parish Clerk of Court to Marion, dated and filed into the record on September 5, 2006, notified her of the impending court date. Marion concedes to receipt of the letter in her New Orleans residence on September 8, 2006. She also appeared for the trial which occurred on the scheduled date of September 13, 2006.

At the trial, both parties (still unrepresented by counsel) answered questions from the court. Michael testified that the two separated on October 7, 2005. Marion contested this fact, urging that she did not leave the matrimonial domicile in Shreveport until November 13, 2005, only five months prior to the filing of suit. Marion also maintained that because of the short notice of trial, she did not have enough time to obtain cell phone records and store receipts which she contended would show the parties ^separated in November. The trial court accepted Michael’s testimony that the parties separated on October 7, 2005 and granted a divorce to the parties.

Shortly after trial, Marion obtained counsel. On September 18, 2005, counsel submitted a Motion for New Trial on behalf of Marion urging that Marion should have been granted a continuance due to inadequate notice and the inability of her counsel to be present at the trial. Counsel also argued that the trial court erred in accepting only Michael’s testimony regarding the date of the parties’ separation. The trial judge summarily denied the motion for new trial on January 23, 2007.

On January 26, 2007, counsel filed a Request for Reconsideration of Motion for a New Trial. The court heard arguments on the motion on February 21, 2007, and denied the motion on March 16, 2007. This appeal ensued.

On appeal, Marion argues that the trial court erred in denying her motion for new trial. She also claims her entitlement to a continuance of the trial date which would have allowed her to obtain evidence to refute that she and Michael had been physically separated for six months.

Discussion

La. C.C. art. 103 provides for divorce in pertinent part as follows:

Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
(1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed.

La. C.C. art. 103.1 provides the time periods required for the granting of a 14divorce as follows:

The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows:
(1) One hundred eighty days:
(a) Where there are no minor children of the marriage.

The immediate divorce under La. C.C. art. 103 is obtainable as an ordinary action requiring appropriate citation. Rando v. Rando, 31,366 (La.App.2d Cir.12/9/98), 722 So.2d 1165.

The living separate and apart contemplated as a ground for divorce under La. C.C. art. 103 must be voluntary on the part of at least one of the parties and continuous for the period required. Gibbs v. Gibbs, 30,367 (La.App.2d Cir.4/8/98), 711 So.2d 331. From the point in time that a party evidences an intent to terminate the marital association, when coupled with actual physical separation, the statutorily required separation period begins to run. And that is so regardless of the cause of the initial physical separation. Id.

Due process at a minimum requires deprivation of life, liberty or property be preceded by notice and an opportunity to be heard at a meaningful time. Armstrong v. Mamo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Patrick v. Patrick, 227 So.2d 162 (La.App. 2d Cir. 1969), writ refused, 255 La. 238, 230 So.2d 91 (1970); Zachary Taylor Post No. 378⅛ v. Riley, 481 So.2d 699 (La.App. 1st Cir. 1985). The notice given must be reasonably calculated under all the circumstances to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objection. Armstrong, supra.

La. C.C.P. art. 1571 requires district courts to prescribe the procedure |Rfor assigning cases such that all parties receive adequate notice of trial. The First Judicial District Court Family Law Divisions Rules provide for the assignment of trial for divorce cases under La. C.C. arts. 102 and 103 as follows:

TRIALS ON THE MERITS AND C.C. 102 DIVORCE RULE TO SHOW CAUSE HEARINGS
1. Trials on the merits and rule to show cause hearings for a divorce under C.C. 102 shall be fixed for trial on Thursday, or on another date at the discretion of the judge to whom the case is assigned. No case shall be placed on the docket for trial except by written order of the court granted upon written motion by a party. Said motion (similar to that attached and identified as Exhibit C) shall be signed by the attorney for the mover, who shall certify that counsel for all parties have conferred to determine if the case is ready for trial on its merits, the available trial dates, and if counsel have agreed on the trial date selected. If counsel are unable to agree on a trial date, the judge will fix the trial date after consultation with all counsel. No conference is required with any party appearing in proper person.
******
3. Whenever motion is made to fix a case for trial, the judge may call a pretrial conference on a date and at a time to be set by him, upon reasonable notice by the judge to all counsel of record. After the pre-trial conference is concluded, the judge may then set the case for trial. If the judge in his discretion believes a pre-trial conference is unnecessary or inadvisable, he may set the case for trial without a pre-trial conference.
4. Trials shall be fixed at least two (2) weeks in advance. Subject to the judge’s discretion, a trial may be fixed as far in advance as counsel may agree. Cases shall be docketed for trial during the Monday motion hour. Cases will be docketed and heard in the order that they are fixed for trial.
5. The clerk shall prepare a regular trial docket for those cases fixed two weeks in advance and an advance trial docket for those cases fixed three weeks in advance. The clerk shall keep a docket showing the date on which cases are assigned for trial, the docket number and title, and the names of all counsel engaged therein. The regular trial docket and the advance trial docket shall be published by the clerk of court.
|fi6. In any matter in which a litigant is not represented by an attorney of record, notice of the trial date shall be mailed by the clerk of court to the litigant to his address as shown by the record.

Regarding deviation from the local rules enacted for district courts, La. Dist. Ct. R. 1.4 reads as follows:

An individual judge may, in the interest of justice and upon notice to all parties, permit deviations from these rules in a particular proceeding. Any such deviation shall be noted on the record in open court in the presence of all parties or by written order filed into the record of the proceedings and mailed to all parties or their counsel of record.

Trial courts are vested with authority to grant new trials on either peremptory or discretionary grounds as follows:

Art.1972. Peremptory grounds A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.
Art.1973. Discretionary grounds A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

The standard of review of a denial of a motion for new trial on discretionary grounds is that of abuse of discretion. Drapcho v. Drapcho, 2005-0003 (La.App.

1st Cir.2/10/06), 928 So.2d 559, writ denied, _Jj2006-0580 (La.5/5/06), 927 So.2d 324; Smith v. Alliance Compressors, 2005-855 (La.App. 3d Cir.2/1/06), 922 So.2d 674.

The determination of how long parties have lived separate and apart is based upon factual issues depending upon the credibility of witnesses. Such factual and credibility determinations are entitled to great weight and will not be reversed on appeal absent a showing of abuse of discretion. See Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404 (1945); Bishop v. Bishop, 98-59 (La.App. 5th Cir.5/27/98), 712 So.2d 697.

Initially, we note that the rules of court of the First Judicial District Court were not followed in setting the trial. The case was docketed in less than two weeks from the issuance of the order fixing the trial date. Such fixing was not the product of a written motion, which itself would afford additional notice to the defendant pursuant to La. C.C.P. art. 1313. The clerk’s mailing of the notice of trial and Marion’s receipt of such notice occurred within the last week before trial. Due process as articulated by the court’s own rules barely survived, being saved only by Marion’s appearance at trial. Nevertheless, while we do not condone the process for fixing of trial in this case, the trial court more than accommodated Marion’s concerns by its additional review of her claims and evidence offered in support of her motion for a new trial.

In her argument for new trial, Marion explained to the trial court that she was unable to produce phone records showing that Michael made a phone call to his girlfriend while he and Marion were at a Home Depot in New Orleans in late October or early November. Further, she argued that lsshe was precluded from presenting other text messages sent to her from Michael on or near November 13, 2005 regarding the location of his wedding ring. Also attached to her motion for new trial were receipts from various Shreveport retail locations, dated from October 13, 2005 through November 12, 2005, which she argued proved that she and Michael were not separated until November 13, 2005.

The transcripts of both the trial and the hearing on the motion for new trial reflect that the trial court heard and considered Marion’s testimony regarding all of these matters although all documentation of these events was not introduced into evidence. Specifically from their original trial testimony, the court accepted Marion’s testimony that the Home Depot event occurred and that Michael sent Marion a text message regarding his ring on November 13, 2005. Likewise, at the hearing on Marion’s request for a new trial, the court addressed the receipts submitted in support of the new trial. The court determined, however, that none of these events served to clearly demonstrate whether Marion was living with Michael or was physically separated from him. Michael undisputedly resided in Shreveport in October and November. Therefore, the parties’ activities in New Orleans and certain communications between them do not seriously contradict Michael’s testimony, accepted by the trial court, that their relationship ended by separation in early October. Accordingly, the entirety of the trial and new trial proceedings reflect that due process was afforded Marion, and her defense, having been duly considered, could be rejected by the trial court.

18Finally, we also note that while the Article 102 divorce is deemed to be an absolute nullity under La. C.C.P. art. 3953 when less than one-hundred-eighty days of the parties’ separation have elapsed at the time of the initiation of the action, we find no similar rule for the Article 103 divorce filed prematurely. Prematurity is dealt with generally as a dilatory exception and can be waived. La. C.C.P. art. 926. By the time of the trial in September 2006, Marion acknowledged that the parties had been living separate and apart for ten months. There is no argument now made by Marion that she was prejudiced, even if Michael’s petition was premature; nor does she articulate an important policy of our .family law that requires the view that an absolute nullity results from a premature action for the Article 103 divorce.

Conclusion

In summary, finding no prejudice to Marion in the conduct of the overall proceedings, including the new trial hearing, and no substantial evidence disputing Michael’s testimony of the parties’ separation date, wé affirm the trial court’s judgment of divorce. Costs of appeal are assessed to appellant.

AFFIRMED.

      . After Marion's answer on August 1, 2006, Michael filed a form document which purports to be an affidavit for a defendant accepting service and waiving formal citation. The form document was captioned "Affidavit of Acceptance of Service and Waiver of Rights in Civil Code 103(1) Divorce Proceeding Pursuant to Code of Civil Procedure, and Answer and Consent to Set for Trial Without Further Notice.” This may have been intended to relate to Marion’s separate petition for the "division of community property” which she also filed at the time of her answer to the petition for divorce. However, the document literally shows that Michael inappropriately attempts to waive citation and service of process and answer his own divorce petition. Accordingly, we credit this pleading only as it relates to Marion’s separate demand regarding the ancillary issue of community property. Moreover, the parties raised no issue regarding the effect of this service document at any time during the proceedings.

      . The hearing on August 16 apparently pertained to Michael’s attempted confirmation of default which was aborted upon the court's discovery of Marion’s answer.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Doyle Wayne BOYD, et ux, Plaintiffs-Appellants v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee.
    No. 42,701-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Anthony J. Bruscato, Monroe, for Appellants.

      Wilkinson, Carmody & Gilliam, by Bobby S. Gilliam, Misty M. Futrell, Shreveport, for Appellee, Farmers Insurance Exchange.
    Nelson, Zentner, Sartor & Snellings by George M. Snellings, IV, Monroe, for Ap-pellee, State Farm Mutual Automobile Insurance Company.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

h Following a collision of vehicles, appellants timely sued the negligent driver and soon reached a settlement with the driver and her liability carrier. Within two years of the dismissal of the first action, appellants sued their uninsured motorist (“UM”) carrier, who raised the exception of prescription. The trial court granted the exception and dismissed the suit against the UM carrier. Finding error in that ruling, we reverse.

Facts

On September 3, 2003, Doyle W. Boyd was injured when he was rear-ended at a stop light by Ginna M. Ezell. Boyd was driving a pick-up truck owned by Teddy R. Taylor, Jr., whose UM carrier is State Farm Automobile Insurance Company (“State Farm”). Ezell’s vehicle was also insured by State Farm. Farmers Insurance Exchange (“Farmers”) was the UM carrier for Boyd.

Boyd and his wife sued Ezell and State Farm in district court on August 11, 2004 (hereinafter the “First Suit”). In this First Suit, although Ezell and State Farm never answered the petition, an attorney for those parties later contacted the Clerk of Court on December 23, 2004, giving the following directives:

Enclosed are an original and one copy of a “MOTION AND ORDER OF VOLUNTARY DISMISSAL WITH PREJUDICE.” Please file the original and return the copy, certified, to me in the enclosed self-addressed, stamped envelope. As you can see, counsel for plaintiffs reserves rights against all parties except Ginna Morris Ezell and State Farm Mutual Automobile Insurance Company (solely in its capacity as Ms. Ezell’s liability carrier).
| gAlso enclosed is our firm’s check in the amount of $154.26 in payment of court costs incurred up until any amended petition naming plaintiff’s uninsured motorist carrier. That is, my clients are paying costs incurred by Plaintiffs in connection with the filing of the original petition and activities since then, but not for any amended petition naming the UM insurer. Counsel for Plaintiffs will presumably address costs with that Defendant at a later time, if any amended petition is filed.

The “Motion and Order of Voluntary Dismissal with Prejudice” referenced in this letter was signed by the Boyds’ attorney only. Thereafter, on December 30, 2004, the judgment of dismissal was signed, “reserving unto Plaintiffs, all claims and causes of action against all remaining defendants.”

Although the above letter and the reservation of rights language in the dismissal contemplated that other defendants might be added to the First Suit, that never occurred. However, one week prior to the dismissal, on December 22, 2004, the Boyds filed this suit (hereinafter the “Second Suit”) against their UM carrier, Farmers.

Fifteen months after initiating the Second Suit, on March 1, 2006, Boyd filed an amended petition adding as a defendant State Farm in its capacity as Taylor’s UM carrier. State Farm moved for dismissal on the basis of prescription because 2½ years had elapsed since the accident.

At the hearing on the exception of prescription, in support of his argument that prescription had been interrupted, the Boyds’ counsel submitted a copy of the record from the First Suit into evidence. The Boyds’ argument was that the First Suit interrupted prescription within two years of State Farm’s inclusion in the Second Suit. Nevertheless, the trial court ruled that the action had prescribed and dismissed the suit. The Boyds appeal the judgment.

\zDiscussion

The two-year prescription applicable to uninsured motorist coverage is set forth in La. R.S. 9:5629, as follows:

Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.

Our insurance code also addresses the multiple coverage of the two UM carriers involved in this action in La. R.S. 22:680(l)(c), as follows:

(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subpara-graph (l)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recovery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

[l] The sequence of procedural events bearing on the issue of prescription in this case involves successive suits in which the tortfeasor |4and two UM carriers were made defendants at different phases in the litigation. The basic principles of Civil Code Articles 3462 and 3503-that interruption of prescription results from the pen-dency of suit in a competent court with proper venue and that the interruption is effective against all solidary obligors — are not questioned by the parties. Likewise, Civil Code Article 1795 provides that “[ujnless the obligation is extinguished, an obligee may institute action against any of his solidary obligors even after institution of action against another solidary obligor.” The First Suit, naming the tortfeasor and her liability insurer, was filed within one year of the accident, and therefore interrupted prescription. Whether that interruption was lost by the application of the second sentence of Civil Code Article 3463 and dismissal of the First Suit is the primary question presented. Additionally, the existence of a solidary relationship between the tortfeasor and UM insurers and between the UM insurers themselves has been discussed in the arguments of the parties.

This court has recently addressed these issues in Dark v. Marshall, 41,711 (La. App.2d Cir.12/13/06), 945 So.2d 246. There, we cited Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982), for its holding that the UM carrier and the tort-feasor are obligated for the same thing and are therefore solidary obligors. State Farm overlooks this principle by arguing that “[t]he only way the suit could be timely is if the UM carrier and the liability carrier are solidary obligors.” Admittedly, Rizer v. American Surety \ Fidelity Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387, held that those two carriers are not soli-dary obligors and an initial suit against the liability carrier has no effect on the running of prescription on the UM claim. Nevertheless, in the present case, unlike the facts in Rizer, the tortfeasor was also sued timely in the First Suit, along with the tortfeasor’s liability carrier, so as to interrupt the two-year UM prescriptive period. Therefore, the principle of Hoefly governs, interruption of prescription concerning State Farm’s UM obligation occurred during the pendency of the First Suit, and the Rizer ruling has no application.

Nevertheless, State Farm further argues that the pleading for the dismissal of the First Suit was labeled as a “voluntary dismissal with prejudice,” which therefore implicates the nullifying effect on the First Suit’s interruption of prescription as provided in the second sentence of Civil Code Article 3463. That provision states:

Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

Regardless of the technical label placed on the motion for dismissal of the First Suit, the letter of the tortfeasor/defen-dant’s attorney quoted above indicates that a settlement of the First Suit occurred and that the Boyds would proceed with further litigation against a UM carrier. Indeed, in oral argument before this court, State Farm’s attorney acknowledged that the Boyds’ dismissal of their claims in the First Suit against the tortfeasor, Ezell, resulted because of the settlement between the parties.

|fiIn Dark v. Marshall, supra, we interpreted the second sentence of Article 3463 after reviewing the amendment to that article that occurred after the Louisiana Supreme Court’s important holding in Hebert v. Coumoyer Oldsmobile-Cadillac GMC, Inc., 419 So.2d 878 (La.1982). We further reviewed the Code of Civil Procedure articles pertaining to the dismissal of an action. La. C.C.P. arts. 1671, et seq. The suit dismissal addressed in Dark resulted, as in this case, from an initial settlement with a tortfeasor who had been timely sued and was likewise a dismissal with prejudice. Our holding in Dark, which we now repeat, requires the reversal of the prescription ruling in this case:

Now under the amended article, any dismissal without prejudice, “either before the defendant has made an appearance of record or thereafter,” may be considered a voluntary dismissal for purposes of Article 3463 so as to negate the interruption of prescription that otherwise occurs during the pendency of the action.
In contrast to the setting in Hebert v. Cowmoyer, the voluntariness of a plaintiffs action resulting in dismissal of the suit with prejudice (the present setting) is never a vital or relevant measure concerning prescription between the parties to the suit as clearly shown by Article 1673 of the Code of Civil Procedure. That article provides that dismissal with prejudice has the effect of a final judgment and bars another suit between the parties on the same cause of action. Thus, as recognized in revision comment (b) to Civil Code Article 3463, “if the suit is dismissed with prejudice, the interruption of prescription is immaterial because of res judicata.” That observation is correct as between the parties to the suit. Nevertheless, prescription and its interruption remain material under the general principle of Article 3463 regarding a second suit against a different solidary obligor, but likewise the volun-tariness of the prior dismissal with prejudice has no meaningful application to such dismissal.
Unlike Hebert v. Cowmoyer, another Hebert case decided by the Louisiana Supreme Court addressed a prescription claim in a dismissal setting identical to the case at hand. Hebert v. \7Poctors Memorial Hospital, 486 So.2d 717 (La. 1986) (hereinafter “Doctors Hospital”). The dismissal of the suit against the first tortfeasor in Doctors Hospital was the result of a 1982 settlement agreement, yet the judgment of dismissal with prejudice was entered belatedly almost two years later, in 1984. The second tortfeasor was sued 19 months after the settlement and more than eight years after the accident. After the judgment of dismissal of the first tortfeasor with prejudice, the second tortfeasor raised prescription, and in defense, the plaintiff claimed interruption of prescription under Article 3463. The issue, as addressed by the Louisiana Supreme Court, rested entirely on the general principle of the first sentence of Article 3463 and the choice for when the time for the running of prescription recommences after settlement with the first tortfeasor. The court held that an interruption arising from the pendency of a suit against the first tortfeasor ends only at the time of the judgment of dismissal, not on the date of actual settlement. The significant implication of the Doctors Hospital’s ruling is that it would not have been necessary if a dismissal with prejudice triggered the application of the second sentence of Article 3463. Instead, the dismissal of the first tortfeasor with prejudice because of the settlement was clearly not a voluntary dismissal which negated the interruption of prescription caused by the initial action.
In summary, the dismissal of a suit with prejudice after both parties to the action have settled the dispute cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone. In Doctors Hospital, the court observed that proof of a valid settlement to the trial court will support either “litigant’s effort to dismiss a then pending lawsuit with prejudice.” Hebert v. Doctors Memorial Hospital, supra at p. 720. The court recognized both the plaintiffs and the defendant’s right to seek dismissal after settlement. Thus, it cannot be said that such dismissal after settlement results unilaterally from plaintiffs voluntary election, which then negates the prior interruption of prescription pursuant to the second sentence of Article 3463. Reaching the same conclusion, the First Circuit in Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1st Cir.2/16/05), 906 So.2d 605, 610, writ denied, 05-0567 (La.4/29/05), 901 So.2d 1071, also rejected the characterization that a plaintiff alone voluntarily dismisses the action by virtue of settlement since both parties “resolved it by transaction or compromise.”

Id. at 945 So.2d 250, 251.

Is Conclusion

In this case, prescription was timely interrupted by the First Suit against the tortfeasor. The dismissal of the First Suit ■with prejudice following settlement with the tortfeasor in December 2004 did not nullify the interruption of prescription visa-vis other solidary obligors with the tort-feasor who were not defendants in that action. The second sentence of Civil Code Article 3463 had no effect because the dismissal of the First Suit with prejudice is not considered a voluntary dismissal under Article 1671 of the Code of Civil Procedure and the jurisprudence interpreting Article 3463. The addition of the UM carrier, State Farm, into this Second Suit on March 1, 2006, was within the two-year prescriptive period that began running again after December 2004 and therefore was a timely action. Accordingly, the trial court’s dismissal of this action against State Farm on its grant of the exception of prescription is reversed.

Costs of appeal are assessed to appellee.

REVERSED.

      . Since we determine that prescription was interrupted by the filing of the First Suit against the tortfeasor, we need not consider the question of whether the two UM carriers were solidarily liable. If so, this suit against Farmers within two years of the accident also interrupted prescription before State Farm was added as a defendant.


author: MOORE, J.

text:
    Ricky Lee WHITTEN, et al., Plaintiff-Appellants v. Elizabeth Cook MOORMAN, et al., Defendant-Appellees.
    No. 42,704-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      The Young Firm, by Timothy J. Young, New Orleans, for Appellants.
    D. Scott Brown, Mansfield, for Appel-lees.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

hThe plaintiffs, Ricky Lee Whitten, Richard Whitten Jr. and Kenneth Whitten (“the Whitten children”), appeal a judgment that sustained an exception of prescription and dismissed their claims against the defendants, Elizabeth Cook Moorman, Patsy Ruth Branch, Linda Whitten Edmondson and James Donald Whitten (“the Whitten siblings”). For the reasons expressed, we affirm.

Procedural Background

The case involves the ownership of two tracts of land. T.W. Whitten owned a 24-acre tract, and his wife Esther Whitten separately owned a 118-acre tract, in De-Soto Parish. They had five children: the Whitten siblings and Richard Whitten Sr.

According to the petition, T.W. Whitten died in 1972, but there is no evidence that his estate was ever probated. Instead, Richard Sr. executed a cash deed in favor of his mother, Esther Whitten, conveying to her all his interest in his father’s property (actually, a short-form description of his DeSoto tract), for $10 “cash in hand paid, receipt of which is hereby acknowledged.” By separate act, the Whitten siblings executed an identical cash sale deed in favor of their mother, conveying to her all their interest in their father’s property on the same cash terms.

Esther Whitten died in 1985; her will distributed her property to her five children “share and share alike, or their descendants per stirpes.” In October 1985, Richard Sr. executed a quitclaim deed in favor of the Whitten siblings conveying all his interest in his mother’s estate for a consideration of $10 “and other good and valuable considerations to me in hand paid.” laThis deed described the 118-acre tract. A subsequent judgment of possession conveyed an undivided 1/5 interest to Richard Sr. and each of the Whitten siblings, subject to the quitclaim deed.

Richard Sr. died intestate in 1986, survived by the Whitten children, the plaintiffs herein. According to their petition, they had no inkling that Richard Sr. had any estate to leave them. However, that changed in 2004.

According to a memorandum filed in the district court, in September 2004, Ricky-Cone of the Whitten children) received a letter from his aunt, Elizabeth (one of the Whitten siblings), together with “a set of pleadings which appear to be the defendants’ attempts at probating Richard Sr.’s Louisiana estate.” In the Whitten children’s view, this “was the first time any of the plaintiffs learned that their father held any interest in any real property in Louisiana.” Only then did they discover that between 1988 and 2004, the Whitten siblings had granted oil, gas and mineral leases, as well as timber contracts totaling $45,650, on their two tracts in DeSoto Parish.

The Whitten children filed the instant suit in January 2006, alleging that the Whitten siblings committed fraud and misrepresentations regarding their ownership rights and thereby denied the Whitten children their 1/5 interest in their grandparents’ estate. They prayed to be placed in possession of their share of the property and for damages representing their share of the revenues it had generated.

The Whitten siblings responded with the peremptory exception of prescription. They contended that the Whitten children were trying, in essence, to nullify the 1972 cash deed and the 1985 quitclaim, but the action Um nullity was subject to prescription of 10 years (under former La. C.C. art. 2221, effective until January 1, 1985) or 5 years (under current La. C.C. art. 2032, effective since then). They also urged the case was virtually identical to Moore v. Shell Oil Co., 228 So.2d 205 (La.App. 3 Cir.1969), writ refd, 255 La. 278, 230 So.2d 587 (1970), which interpreted a similar claim as a suit to nullify quitclaim deeds and barred by prescription.

By reply memorandum, the Whitten children conceded they were trying to annul the 1972 cash deed and 1985 quitclaim, but contended these instruments were relative nullities for two reasons. First, they were the result of coercion, as Richard Sr. was incarcerated in Texas when he signed both instruments, “consistently unemployed throughout his life and had no other assets.” Second, the fact that the Whitten siblings asked one of the Whitten children to sign off on succession papers indicated that Richard Sr. must have retained some property rights. From these circumstances, the Whitten children argued they were lulled into a course of inaction, thus suspending prescription under the theory of contra non valentem until 2004. By supplemental memorandum, they urged that the 1985 quitclaim was a relative nullity because it was neither an authentic act nor an act under private signature, La. C.C. arts. 1833 and 1837, and that the 1972 cash deed was “irrelevant” to the proceedings.

At a hearing in December 2006, the Whitten siblings offered into evidence certified copies of the 1972 cash deed and the 1985 quitclaim. They conceded that both were relative nullities, but argued that any action to nullify them was prescribed under Art.2032 and its predecessor Art. |42221. The Whitten children argued that prescription was suspended until they got the letter asking them to sign an act of possession in 2004. They also argued that Richard Sr. received no consideration for either of the conveyances. However, they called no witnesses and offered no documentary evidence of their own.

The district court sustained the exception “for the reasons stated in brief.” This appeal by the Whitten children followed.

The Parties’ Contentions

By one assignment of error, the Whitten children urge the district court erred in finding their claims had prescribed, even though C.C. arts.2032 and 2221 state that prescription does not run in the presence of fraud. They contend they are entitled to de novo review owing to legal error that interdicted the fact-finding process; also, prescriptive statutes must be strictly construed. On the merits, they contend the quitclaim was not in proper form, both instruments were executed under circumstances that strongly suggested coercion, and there was no evidence that Richard Sr. ever received consideration for selling his inheritance rights. They did not discover these facts, which disclosed fraud, until 2004. Thus they were “lulled into a course of inaction * * * by reason of some concealment or fraudulent conduct on the part of the defendant or because of his failure to perform some legal duty whereby plaintiff has been kept in ignorance of his rights.” Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261. Finally, they urge the district court should have considered the allegations of fraud on the face of the petition; the Whitten siblings failed to introduce | Bany evidence to counter these. In support, they cite only La. C.C.P. art. 931, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” They submit that grounds of fraud plainly appear in the petition.

The Whitten siblings respond that because the action to nullify was prescribed on its face, the burden of proof was on the plaintiffs to show that it had not prescribed. Carter v. Haygood, supra. They urge that the Whitten children offered no evidence whatsoever to show fraud or lack of consideration, and instead relied on the allegations in the petition. They reiterate that the prescriptive period began when the instruments were filed in the conveyance records, not when the plaintiffs first became aware of grounds of nullity. Moore v. Shell Oil Co., supra. Finally, they submit that contra non valentem cannot apply because the Whitten children offered no evidence that they were unable to exercise their cause of action when it arose. Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2 Cir.1993), writ denied, 93-2655 (La.1/7/94), 631 So.2d 445.

Discussion

The parties agree that the action is one to annul the 1972 cash deed and 1985 quitclaim. The prescriptive period for this action is fixed by La. C.C. art.2032, which provides in pertinent part:

Action for annulment of an absolutely null contract does not prescribe.
Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was [ r,discovered, as in the case of error or fraud.

Claims of fraud and coercion are grounds of relative nullity. Reed v. Thomas, 355 So.2d 277 (La.App. 2 Cir.), writ denied, 357 So.2d 1153 (1978); Currie v. Matson, 33 F.Supp. 454 (W-D.La.1940).

The procedural requirements for pleading and proving prescription were summarized in Carter v. Haygood, supra, as follows:

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Carter v. Haygood, supra at 8-9, 892 So.2d at 1267 (internal citations omitted).

The instant suit, filed in January 2006, was obviously more than five years after the acts it sought to nullify — a 1972 cash deed and a 1985 quitclaim. Thus the burden fell to the plaintiffs to show their action had not prescribed. Carter v. Hay-good, supra. Notably, at the hearing on the exception, the Whitten siblings filed into evidence certified copies of the cash deed and quitclaim, while the Whitten children offered no evidence. We therefore review the judgment for manifest error.

|7We understand the Whitten children’s argument to be that their father, Richard Sr., was chronically unemployed, had no appreciable assets, and was in prison in Texas when he executed these documents; and that he would not have signed over a valuable inheritance in the absence of coercion, duress or fraud.

While that is a fair hypothesis, we cannot dismiss the equally reasonable one that Richard Sr.’s acts were voluntary and prudent. He may not have wanted an undivided 1/5 interest in his parents’ estates to fall into the hands of his creditors, resulting in licitation of a sizable estate. He may have understood that as a long-term prisoner in Texas, he would never enjoy his share of the inheritance. He and his siblings may simply have wanted to avoid the expense of probate. This is a reasonable interpretation of the contested acts. To be sure, the Whitten children offered no evidence — only argument — that their father’s signature was coerced or obtained by fraud. We find no manifest error.

Moreover, the jurisprudence applies the prescriptive period to bar nullity actions based on precisely these kinds of claims. In Moore v. Shell Oil Co., supra, the plaintiffs sued in 1965 to annul several 1915 quitclaim deeds. Against an exception of prescription, they urged the quitclaim deeds were null for lack of consideration, failure to disclose fraud and illegality in prior transactions, and improper signature by an agent. The court, through Judge Tate, held that the prescriptive period cured these claims:

Thus it may be seen that the lawmakers in their wisdom have deemed it to the interest of society to interpose a statute of repose by fixing a time limit (10 years), after which the parties at interest, by their silence and inaction, are conclusively | ^presumed to have acquiesced in and ratified the act, and to have renounced such right as they may have had to attack it.

Id., 228 So.2d at 209-210; see also Fried v. Bradley, 219 La. 59, 52 So.2d 247 (1951).

In Reed v. Thomas, supra, the plaintiffs sued in 1973 to annul á 1936 deed that conveyed a 160-acre tract in Bienville Parish for $75. They claimed that the grantor had been misled into thinking she was selling only a particular pine tree for that sum, and offered some documentary evidence in support. The district court rendered judgment nullifying the deed, but this court reversed. After finding that the documentary evidence was inadmissible hearsay, we stated:

Even should we agree, however, that the finding of fraud is supported by exceptionally strong and convincing evidence or even a preponderance, the plaintiffs’ demands are nonetheless prescribed by C.C. art. 2221. Through astute counsel, plaintiffs deftly contend that because of the assumed fraud, Mrs. Ellis did not know the content of the deed which she signed and under these circumstances, no contract ever existed[.] ⅜ * * The 2221 prescription for fraud, according to plaintiffs, applies only to cases where the content of the contract was known by the vendor. We cannot agree.

Id., 355 So.2d at 281 (internal citations omitted).

In short, the courts apply the prescriptive period to bar actions in nullity that are based on fraud and illegality, error, and lack of consideration-precisely the grounds raised by the Whitten children in this case. The five-year prescription of Art.2032 is equally applicable here.

Finally, the Whitten children urge prescription was suspended by the equitable principle of contra non valentón until they “discovered” the fraud in 2004. Specifically, they contend the Whitten siblings “continuously misrepresented the validity of the quitclaim deed which was obtained ^fraudulently from the plaintiffs’ father.”

A jurisprudential doctrine in Louisiana, contra non valentón is applied to suspend the running of prescription in four situations:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from' suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Carter v. Hay good, supra at 11-12, 892 So.2d at 1268, and citations therein.

In London Towne Condo. Ass’n v. London Towne Co., 2006-401 (La.10/17/06), 939 So.2d 1227, the court held that when an obligee seeks to annul an act of the obligor, “the relevant date for prescriptive purposes is the date the obligee knew or should have known of the act, and * * * the date of recordation of the act does not, standing alone, commence the running of prescription.” However, when the plaintiff is aware of all the facts surrounding the act, prescription begins to run when it is recorded. Kilpatrick v. Kilpatrick, supra.

The record shows that the cash deed was filed in the public records of DeSoto Parish on August 24, 1972, and the quitclaim filed on October 15,1985. The Whit-ten children have not alleged that they were unaware that (1) their father executed these documents, (2) he was in prison when he did so, or (3) he was impoverished at all applicable times. In short, they always had sufficient notice of the facts that would alert them to coercion, duress or |infraud, but they took no action until 2004. The only thing that changed in 2004 was that the Whitten siblings apparently tried to remove clouds from the title caused by earlier efforts to avoid probate. Prior to that, the Whitten siblings did nothing effectually to prevent their nephews from pursuing any cause of action. The district court was not plainly wrong in refusing to apply contra non valentón.

Conclusion

For the reasons expressed, the judgment is affirmed. Appellate costs are to be paid by Ricky Lee Whitten, Richard Whitten Jr. and Kenneth Whitten.

AFFIRMED.

      . Prior to amendment by 1984 Acts No. 331, § 1, the substance of this article was designated as La. C.C. art. 2221 and provided a 10-year prescriptive period. The new five-year period has been applied, however, to actions filed after January 1, 1985, the effective date of Act 331. Daigle v. Clemco Indus., 613 So.2d 619 (La. 1993); Cajun Elec. Power Coop. Inc. v. Gulf States Util. Co., 848 F.Supp. 71 (M.D.La.1994).


author: PEATROSS, J.

text:
    Arlin SPRAGGINS and Katie Spraggins, Plaintiffs-Appellants v. Clyde LAMBETH, Jr., Defendant-Appellee.
    No. 42,693-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    David L. White, APLC, Bossier City, for Appellants.
    Jeff R. Thompson, APLC, Bossier City, for Appellee.
    Hilburn & Hilburn, P.C. by Cary Allen Hilburn, Shreveport, for Acadiana for Aea-diana Inc.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| ^his appeal arises from a summary judgment granted in favor of Defendant, Clyde M. Lambeth, Jr. (“Lambeth”), and dismissing the claims in redhibition of Plaintiffs, Arlin and Katie Spraggins (“Spraggins”). For the reasons stated herein, we affirm.

FACTS

The Spraggins purchased a home located in Bossier City from Lambeth on June 30, 2005, for a purchase price of $132,000. Within a couple of months of moving into the home, the Spraggins began experiencing problems with the roof due to damage from Hurricane Rita. During the repair process, the Spraggins discovered additional damage of which they were not previously aware, including separation of the beams in the attic, inadequate bracing and unconnected rafters. The Spraggins then hired an engineer to inspect their home, who found significant foundation problems that were causing the house to sink. The Spraggins then filed this suit in redhibition seeking rescission of the sale or, alternatively, seeking a reduction in purchase price due to alleged latent defects that existed prior to the sale and which were not disclosed to them.

Lambeth answered the suit, denying all of the redhibitory allegations. He attached to the answer a copy of a “Property Condition Disclosure Form” completed by him and provided to the Spraggins prior to the closing of the sale. Lambeth subsequently filed a motion for summary judgment, arguing that the Spraggins had the benefit of the disclosure form, on which |2he had made full disclosure of his knowledge of the condition of the property and which had been initialed by the Spraggins. Lambeth further argued that the Sprag-gins had elected not to have the property inspected prior to the sale. The Spraggins opposed the motion, arguing that, although they were aware of cracks in the patio and floor of the home, they accepted the explanations of the presence of the cracks given them by their realtor and a representative of their mortgage company. In addition, the Spraggins submitted that their realtor told them that they did not need a home inspection; and, as first-time home buyers, the Spraggins accepted the assurances. For these reasons, the Spraggins urged that this matter was better suited for a trial on the merits rather than summary judgment. The trial court disagreed, reasoning that a prudent person having seen the visible cracks in the floor and patio and armed with a disclosure form that specifically noted the cracks and indicated that the seller had no knowledge of any foundation issues would have sought out further inspection of the property prior to purchasing it. Accordingly, the trial court granted summary judgment in favor of Lambeth and this appeal ensued.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and | ¡¡admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church ofRuston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

Initially, the movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634.

The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley, supra.

The warranty against redhibitory defects is contained in La. C.C. art. 2520:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
14A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521.

To determine whether a defect is apparent, courts consider whether a reasonably prudent buyer, acting under similar circumstances, would discover it through a simple inspection of the thing sold. A simple inspection is more than a casual observation; it is an examination of the article by the buyer with a view of ascertaining its soundness. Stuck v. Long, 40,034 (La.App.2d Cir.8/17/05), 909 So.2d 686, unit denied, 05-2367 (La.3/17/06), 925 So.2d 546, citing Amend v. McCabe, 95-0316 (La.12/1/95), 664 So.2d 1183. Whether an inspection is reasonable depends on the facts of each case and includes such factors as the knowledge and expertise of the buyer, the opportunity for inspection and the assurances made by the seller. Stuck, supra; Morrison v. Allstar Dodge Inc., 00-0398 (La.App. 1st Cir.5/11/01), 792 So.2d 9, unit denied, 01-2129 (La.11/2/01), 800 So.2d 878. If the defect is apparent and could have been discovered by simple inspection, a plaintiff has a duty to make a | ^further investigation. A failure to do so waives the right to sue in quanti minoris. Doge v. Obed, 40,414 (La.App.2d Cir.12/14/05), 917 So.2d 713.

The material facts in the case sub judice are not in dispute. In support of his motion for summary judgment, Lam-beth provided his affidavit and the disclosure form, which expressly listed in Section 3: Structure, that “defects” existed in the floor, porch and patio. Lambeth wrote “cracks in each” as a description of the “defects.” Also on the disclosure form, Lambeth marked the box labeled “no knowledge” for any defects in the foundation of the home. In addition, the Sprag-gins acknowledge that they saw the cracks in the floor and patio. This visual inspection revealed apparent and observable defects which would have put a reasonably prudent buyer on notice that further investigation was warranted. For various reasons, the Spraggins elected not to conduct further inspection or investigation.

In some circumstances, a cracked foundation may be truly hidden, creating liability for the seller. Nesbitt v. Dunn, 28,240 (La.App.2d Cir.4/3/96), 672 So.2d 226; Collins v. Curtis, 97-2348 (La.App. 4th Cir.9/30/98), 719 So.2d 679, unit denied, 98-2755 (La.12/18/98), 734 So.2d 641. We note, however that a crack or separation in the outer brick has been held to be readily apparent to the buyer, satisfying art. 2521. See Pickerel v. Long, 286 So.2d 430 (La. App. 2d Cir.1973). While we are sympathetic to the Spraggins as first-time home buyers, we conclude that their failure to make further inspection constitutes a waiver of any complaints of redhibitory defects in the foundation of the home. Doge, supra.

I «CONCLUSION

For the foregoing reasons, the summary judgment in favor of Defendant, Clyde M. Lambeth, Jr., and dismissing the claims of Plaintiffs, Arlin and Katie Spraggins, is affirmed at Plaintiffs’ costs.

AFFIRMED.

      . As mentioned by the trial court in its "Opinion/Order,” all of the problems noted in the home, including the problems with the roof and specifically the separation of beams in the attic, were ultimately found to be related to the condition of the foundation.


text:
    STATE of Louisiana, Appellee v. Rodney L. ROSS, Appellant.
    No. 42,687-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Peggy J. Sullivan, Monroe, for Appellant.
    Rodney L. Ross, Pro Se.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, John Ford McWil-liams, Jr., Dhu Thompson, William Jacob Edwards, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

I,The defendant, Rodney L. Ross, was convicted of second degree murder. He was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, questioning the sufficiency of the evidence and the admission of certain evidence at trial. For the following reasons, the conviction and sentence are affirmed.

Facts

The incident occurred during the evening of January 27, 2006, when the defendant fired two gunshots at the victim, Jackie Ray Morris, killing him. Larshan-dra Davenport, the victim’s sister, resided in the home where the shooting occurred. Davenport and Tawanna Jackson were trying to obtain Ecstasy, a Schedule I Controlled Dangerous Substance. Jackson called defendant and asked him to deliver the contraband to Davenport’s house.

Ross arrived at the house and both women went outside to speak with him and complete the buy. Jackson gave the defendant $40 ($10/pill) and went back inside. Ross headed back to his car, parked in front of the house, and yelled back that Jackson owed more money, demanding that she come back outside. Ross contended he had paid $15 each for the pills, and he needed twenty more dollars.

Jackson went back outside and, at some point, Davenport went into the house. While Jackson and Ross were outside, Jackson’s boyfriend, RJackie Morris, came onto the porch. He told Jackson not to pay $15/pill because he could buy them elsewhere for $10 each. Jackson gave the pills back to Ross, and Ross gave her the money back. Thereafter, an argument occurred between Ross and Morris.

The argument consisted of a verbal altercation, and there was no physical contact between defendant and the victim. Morris stood on the porch, at the front door, and the defendant remained in the front yard. No one saw Morris in possession of a weapon or heard him threaten the defendant.

As Morris turned around to re-enter the house, Ross drew a 9mm handgun and fired multiple shots at him. Two of the bullets hit Morris’ back. Three eyewitnesses testified that they saw Ross shoot Morris in the back, and another two witnesses testified they saw defendant holding a gun after Morris was shot. Another occupant of the house fired several shots from a sawed-off shotgun as Ross fled.

After investigating, police obtained an arrest warrant for the defendant. They apprehended Ross and took him into custody after a brief stand-off. When questioned concerning the whereabouts of the 9mm handgun, the defendant admitted firing the gun, but said he dropped it.

The crime scene investigation yielded four 9mm shell casings from the front yard, three 9mm hollow-point bullets, and several shotgun shells near the street. Richard Beighley, a firearms expert with the Northwest Louisiana Criminalistics Laboratory, tested the bullet recovered from the victim. Based on the bullets and the nature of Morris’ wounds, Beighley 1 (¡concluded that the bullet from Morris’ body was fired from a 9mm handgun, not the shotgun. He also concluded that all the 9mm casings and bullets were fired from the same handgun.

Subsequently, the defendant was charged with second degree murder. He did not testify at trial, and other than cross-examining the state’s witnesses, the defense did not present any additional witnesses. A jury found defendant guilty as charged by an 11-1 vote, rejecting the assertion that the defendant shot Morris under sudden passion or heat of blood. The district court imposed the mandatory life sentence at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals.

Discussion

Ross argues that the evidence presented at trial was not sufficient to convict him of the second degree murder of Jackie Morris, and that sufficient provocation existed to negate the element of specific intent to kill. He asserts that at most, the evidence supports a manslaughter conviction rather than a conviction for second degree murder, because he believed Morris was going back inside the house to retrieve a weapon.

When sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable |4to the prosecution, could now reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency claim, as set forth in Jackson v. Virginia, supra, is not legislatively embodied in La.C.Cr.P. art. 821. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, unit denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422.

Relative to the facts of this case, in order to prove the crime of second degree murder, the state’s burden was to prove beyond a reasonable doubt that the defendant acted in accordance with the circumstances listed in La. R.S. 14:30.1(A), which provides in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.
* * * *

The main crux of the defendant’s argument is that, at most, the evidence is sufficient to support a conviction of manslaughter, rather than a | ^conviction of second degree murder. Thus, the primary issues in this matter are whether the defendant possessed the requisite specific intent to kill or inflict great bodily harm upon Jackie Morris and whether sufficient provocation existed to negate specific intent.

Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert, denied, Lindsey v. Louisiana, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent can be formed in an instant. State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, cert, denied, Harris v. Louisiana, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382. Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, unit denied, 02-2634 (La.9/5/03), 852 So.2d 1020. Specific intent may be established by circumstantial evidence alone if every reasonable hypothesis of innocence is excluded. State v. Cousan, supra. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Hill, 42,025 (La. App.2d Cir.5/9/07), 956 So.2d 758; State v. Jasper, 28,187 (La.App.2d Cir.6/26/96), 677 So.2d 553, unit denied, 96-1897 (La.2/21/97), 688 So.2d 521.

|fiThe discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert, denied, Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30; State v. Brooks, 36,855 (La.App.2d Cir.3/5/03), 839 So.2d 1075, unit denied, 03-0974 (La.11/7/03), 857 So.2d 517.

Manslaughter is defined, in relevant part, as a “homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31(A)(1). A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, unit denied, 00-0989 (La.3/23/01), 787 So.2d 1008. In addition, provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert, denied, - U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, 1260, cert, denied, Deal v. Louisiana, 537 U.S. 828, 123 S.Ct. 124,154 L.Ed.2d 42 (2002). “If a man unreasonably permits his impulse and passion to obscure |7his judgment, he will be fully responsible for the consequences of his act.” State v. Leger, supra (quoting Reporter’s Comment to La. R.S. 14:31).

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986).

After reviewing the record in the case, we find the evidence is sufficient to support the defendant’s conviction for second degree murder. It is undisputed that defendant pointed a loaded 9mm pistol at Morris and fired multiple shots, hitting Morris in the back twice. The crime scene investigation revealed that the gunshots were all aimed toward the front door of the house where Morris was standing when he was shot.

The only issue as stated to the jury in closing argument was “whether or not this crime was committed under the heat of blood or sudden passion in this matter.” With regard to provocation, the evidence indicates that the defendant and Morris were arguing over a mere $20 cash and that this occurred after the return of the contraband which was the subject of the disputed sales price. While the witnesses’ testimony had some contradictions as to the exact nature of the words spoken between the two men (witnesses reported racial slurs and profanity by the victim), it is clear that Morris’ utterances to the defendant were unaccompanied by threatening conduct toward him. See, State v. Mitchell, 39,202 (La.App.2d Cir.12/15/04), 889 So.2d 1257, writ denied, 05-0132 (La.4/29/05), 901 So.2d | S1Q63 (“Mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.”) Moreover, the testimony revealed a significant size disparity between the two men: Morris was “short and skinny,” weighed 150 lbs. and was 5' 7" in height, while the defendant was “way bigger.” Even though Morris reportedly stated, as he turned to re-enter the house, “I’ll be right back,” there was no evidence that an imminent hostile act by the victim was even in the offing when the defendant opened fire. The jury could have reasonably concluded that Morris’ conduct was not sufficient to deprive an average person of his self-control and cool reflection.

This assignment is therefore without merit.

In his second assignment, defendant argues the trial court erred in denying the motion in limine and permitting the introduction into evidence of assault rifles seized from the home of a third party at the time of Ross’ arrest. Ross argues that evidence regarding the assault rifles found in the home in which he was hiding should have been excluded because such evidence was irrelevant and highly prejudicial. The defendant asserts that the rifles were admittedly not used in connection with this crime, and the state provided no evidence at trial showing that the rifles were owned by defendant or that defendant was even aware of their existence.

The police found two assault rifles, along with several magazines with ammunition, inside a bedroom of the residence where defendant was arrested. This residence was owned by Athena Gibson. Defense counsel | afíled a motion in limine seeking to exclude evidence regarding the assault rifles (among other items) because such evidence was irrelevant and unduly prejudicial. It is undisputed that these assault rifles were not used in this particular crime. The 9mm handgun that defendant used to shoot Morris was never located.

During the hearing on the motion in limine, the state argued that the presence of the assault rifles was relevant to defendant’s knowledge of his guilt because, unlike the assault rifles which were not hidden, defendant apparently disposed of the 9mm handgun he used to shoot Morris. The trial court denied the motion for the reasons urged by the state.

At trial, Shreveport Police Department Officer Chad Denham testified that he was aware that two assault rifles were found. The jury also heard the following testimony through Shreveport Police Detective Jeff Brown:

Q: And were any handguns located in the residence [where defendant was arrested]?
A: No, sir.
Q: But were there in fact guns present at that location?
A: Yes, sir.
Q: And can you describe to the ladies and gentlemen of the jury what type of guns were present at that location?
A: There were two rifles located in one of the bedrooms of the residence.
Q: Okay. And can you describe what type of rifles they were?
A: They were what I call assault rifles with extended, large capacity magazines.
|10Q: Let me show you what the state has marked as exhibit S-60 and exhibit S-61 [photographs of the rifles] and ask you if you can identify these exhibits.
A: This is one of the rifles. It was located in one of the rear bedrooms of the residence.
Q: And for the record, that’s S-60. And S-61?
A: This is another rifle. This one was in a gun case that when closed has a bunch of pockets on the outside of it, and had — I forget how many magazines — several magazines with ammunition in them. And this one has a tactical scope on the top for what law enforcement and military would use for close-quarter battle.
Q: So there was no effort, apparently, to hide these two rifles inside the residence?
A: No, sir.

The state did not elicit any further testimony or evidence concerning the assault rifles.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

A trial judge is vested with wide discretion in determining the relevancy of evidence; her ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Jackson, 30,473 (La.App.2d Cir.5/13/98), 714 So.2d 87, writ denied, 98-1778 (La.11/6/98), 727 So.2d 444.

| ,, Considering the facts and circumstances of the instant case, and especially the state’s failure to establish at trial that the assault rifles were owned by defendant or in his possession (actual or constructive), there was minimal probative value in the testimony concerning the rifles. However, assuming defendant owned the rifles or was at least aware of their presence, which was circumstantially indicated, the fact that defendant made no effort to hide or otherwise dispose of them is probative of whether defendant acted in self-defense (which was still at issue at the time the motion in limine was presented). See, State v. Mims, 97-1500 (La.App. 4th Cir.6/21/00), 769 So.2d 44, writs denied, 00-2255 (La.6/22/01), 794 So.2d 781, and 00-2270 (La.6/22/01), 794 So.2d 782; State v. Wallace, 612 So.2d 183 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1253 (La. 1993). If the defendant shot Morris in self-defense, it would be reasonable to assume that he would have notified police or at least preserved and not lost the evidence. Instead, the defendant fled the scene and effectively disposed of the 9mm handgun.

Moreover, any abuse of the trial court’s discretion in this evidentiary ruling was harmless beyond a reasonable doubt. It is clear that the jury knew that the two assault rifles at issue played no role in the death of Morris. The evidence was clear that Morris was shot and killed by a 9mm handgun. Thus, the guilty verdict rendered in this case was surely | i2unattributable to the admission of the testimony about the additional, unused assault rifles.

This assignment is without merit.

Conclusion

For the above reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Ecstasy is the street name for 3, 4 — methy-lenedioxymethamphetamine under La. R.S. 40:964.

      . In this case, there is no contention that the defendant was engaged in the perpetration of any of the felonies enumerated in La. R.S. 14:30.1(A)(2) at the time of the offense.

      . There is no record testimony concerning defendant’s weight and height, but the jury was able to observe his relative size.

      . Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational factfinder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Haddad, 99-1272 (La.2/29/00), 767 So.2d 682, cert, denied, Louisiana v. Haddad, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).