text:
    Gerald Wayne JEANE and Carol Ann Jeane v. RAPIDES HEALTHCARE SYSTEM, L.L.C., et al.
    No. 2006-CC-1912.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Hooter, Ward II Dr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 222,040; to the Court of Appeal, Third Circuit, No. CW 06-00532.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Henry SAUVIAC III v. James Michael DOBBINS, etc., et al.
    No. 2006-CC-1915.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Hartford Casualty Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 518-009; to the Court of Appeal, Fifth Circuit, No. 06-C-479.

Denied.


text:
    Fay Thibodeaux DANOS, et al. v. AVONDALE INDUSTRIES, INC., et al.
    No. 2006-CC-1916.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Okonite Company; Rockbestos-Surprenant Cable Corp.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2003-15723; to the Court of Appeal, Fourth Circuit, No. 2006-C-0756.

Denied.


text:
    Briggitte Yvette ARDOIN v. Brian Craig ARDOIN.
    No. 2006-C-1925.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Ardoin, Brian Craig; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 66079-A; to the Court of Appeal, Third Circuit, No. 06-245.

Denied.


text:
    STATE of Louisiana v. David M. JOHNSON.
    No. 2006-KK-1929.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Johnson, David M.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, Nos. 05-318, 05-319; to the Court of Appeal, Fifth Circuit, No. 06-K-446.

Denied.


text:
    Joshua A. SURRENCY, Individually and on Behalf of the Minor Child, Raven Pearl Surrency v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Rickey Colligan, Jr., Lawrence Krava, and the State of Louisiana, Through the Department of Social Services.
    No. 2006-CC-1944.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Krava, Lawrence; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 35,211; to the Court of Appeal, First Circuit, No. 2006 CW 0593.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Jorge MARTELL.
    No. 2006-KK-1946.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Martell, Jorge; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 12-04-391; to the Court of Appeal, First Circuit, No. 2006 KW 1001.

Denied.


text:
    David LAMBERT v. PYTHON CORPORATION.
    No. 2006-CC-1965.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Lambert, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 6, No. 05-03765; to the Court of Appeal, First Circuit, No. 2006 CW 1018.

Denied.


text:
    Mrs. Regina Allen DUMACHEST, et al. v. Mr. Johnathan J. ALLEN, et al.
    No. 2006-CC-1967.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Allen, Christopher; Dumachest, Regina Men; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 2005-4629; to the Court of Appeal, Third Circuit, No. CW 06-00534.

Denied.


text:
    Fonda Kay AUTIN v. Mark IVORY, et al. Sandra A. Whittington v. Alton Jack, et al. Holly Gaylynn Wade v. Mark Ivory, et al. Misty Clark v. Alton Jack, et al.
    No. 2006-CC-1982.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re LCS-Basile LLC; LCS-Pine Prairie LLC; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, Nos. 65,662-A, 66,507-B, 66,893-A, 66,080-A; to the Court of Appeal, Third Circuit, No. CW 06-00636.

Denied.


text:
    Jennifer CAUSEY v. Robert PIERCE and Gosselin Express.
    No. 2006-CC-1983.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Gosselin Express; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 465,-075; to the Court of Appeal, First Circuit, No. 2006 CW 0777.

Denied.


text:
    STATE of Louisiana v. Robert L. SCIORTINO.
    No. 2006-KK-1986.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Sciortino, Robert L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. A, No. 03-2448; to the Court of Appeal, Third Circuit, No. KW 06-00652.

Denied.


text:
    Sylvia POPLEON v. LONE STAR STEAKHOUSE & SALOON OF LOUISIANA, INC. and Liberty Mutual Fire Insurance Company.
    No. 2006-C-1988.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Lone Star Steakhouse & Saloon of Louisiana Inc. et al.; Liberty Mutual Fire Insurance Co.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 510,298; to the Court of Appeal, First Circuit, No. 2005 CA1029.

Denied.

TRAYLOR, J., would grant.


text:
    David and Ilonka BAND v. AUDUBON PARK COMMISSION.
    No. 2006-C-1990.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Band, David et al.; Band, Ilon-ka; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2004-4221; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0937.

Denied.


text:
    CAMERON PARISH POLICE JURY v. Honorable James M. WELSH, Commissioner of Conservation and Assistant Secretary of the Department of Natural Resources of the State of Louisiana.
    No. 2006-C-1992.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Cameron Parish Police Jury;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 520,550; to the Court of Appeal, First Circuit, No. 2005 CA 0966.

Denied.


text:
    HOFFMAN, SIEGEL, SEYDEL, BIENVENU & CENTOLA, APLC, Petitioners v. Delbert LEE, Elana Lee, First Bank and Turst Company, and Paychex, Inc., Defendants.
    No. 2006-C-1995.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Hoffman, Siegel, Seydel, Bienvenu & Centola, APLC; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 04-18029; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1491.

Denied.

KNOLL, J., would grant.


text:
    Mel MCDANIEL v. CARENCRO LIONS CLUB, et al.
    No. 2006-C-1998.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Gullett, John; J.G. Enterprises Inc.; Global Telemedia Inc.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 974017; to the Court of Appeal, Third Circuit, No. 05-1013.

Denied.


text:
    Tracy FREDERICK v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al.
    No. 2006-CC-1999.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re St. Paul Fire & Marine Insurance Company et al.; Sensat, Albert; Calcasieu Parish Office of the District Attorney;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. F, No. 2005-3765; to the Court of Appeal, Third Circuit, No. CW 06-00622.

Denied.


text:
    Mark REED, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al.
    No. 2006-C-2000.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Reed, Riki; Reed, Mark et al.;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 04-C-2134-B; to the Court of Appeal, Third Circuit, No. 05-1532.

Denied.


text:
    Cindy Lynn PARDEN v. Rosalind Manalla LAMARQUE, et al.
    No. 2006-CC-2003.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Pelican Plastering L.L.C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 89-501; to the Court of Appeal, Fourth Circuit, No. 2006-C-0841.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES SUPPORT ENFORCEMENT SERVICES o/b/o Sherome Green v. Jason J. BARKER.
    No. 2006-CC-2021.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Louisiana State of; Social Services Department of; Support Enforcement Services; Green, Sherome; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. NS-05-0459; to the Court of Appeal, First Circuit, No. 2006 CW 0912.

Denied.

KIMBALL, J., would grant.

WEIMER, J., would grant.


text:
    Elaine ACKER et al. v. PEARL RIVER POLYMERS, INC.
    No. 2006-CC-2023.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Acker, Elaine et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2005-10949; to the Court of Appeal, First Circuit, No. 2006 CW 0746.

Denied.

KIMBALL, J., would grant.


text:
    Sandra Jean WADE v. TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA.
    No. 2006-C-2024.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Wade, Sandra Jean; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 496,950; to the Court of Appeal, First Circuit, No. 2005-CA-1590.

Denied.

KIMBALL, J., would grant.


text:
    STATE of Louisiana, DEPT. OF SOCIAL SERVICES SUPPORT ENFORCEMENT SERVICES o/b/o Dezella Peters v. Dewright PETERS.
    No. 2006-CC-2028.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Louisiana State of; Support Enforcement Services; Social Services Department of; Peters, Dezella; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, No. 93,085; to the Court of Appeal, First Circuit, No. 2006 CW 0913.

Denied.

KIMBALL, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    G. Gregory GIDMAN and Sandra L. Gidman v. VENUS CONSTRUCTION CORPORATION Patrick L. Colvin and Venus Construction Corporation v. Sandra L. Gidman.
    No. 2006-CC-2029.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Venus Construction Corporation et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, Nos. 2002-0988, 2002-4838; to the Court of Appeal, Third Circuit, No. CW 06-00666.

Denied.

VICTORY, J., would grant.

KNOLL, J., would grant.


text:
    In re EDC CONTRACTOR INSURANCE LITIGATION.
    No. 2006-CC-2091.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Colonia Insurance Company;— Other; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 98-1984; to the Court of Appeal, Third Circuit, No. CW 06-00655.

Denied.


text:
    William C. OVERTON, Jr. v. SHELL OIL COMPANY, (a/k/a Shell Offshore, Inc.) Floyd Landry, and Dennis A. Pilney.
    No. 2006-C-2093.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Shell Offshore Inc.; Shell Oil Company a/k/a et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 99-9470; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1001.

Denied.


text:
    Valerie Smith, Wife of/and Albert SMITH, Jr., Individually and on Behalf of Their Minor Children, Regique Smith and Cortez Smith v. Michael LEBLANC, Allstate Insurance Company, James Robinson, Waste Management, Inc. and Continental Casualty Company.
    No. 2006-CC-2094.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re Clarendon National Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 566-123; to the Court of Appeal, Fifth Circuit, No. 06-C-484.

Denied.

VICTORY, J„ would grant.

TRAYLOR, J., would grant.


text:
    The BOARD OF COMMISSIONERS OF the HAMMOND AREA ECONOMIC and Industrial Development District v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF the CITY OF HAMMOND and of the Hammond Area Economic and Industrial Development District and Non-Residents Owning Property or Subject to Taxation in Said City or District, and all other Persons Interested in or Affected in any way by the Issuance of not to Exceed $15,000,000 of Taxable Revenue Bonds, (Louisiana Hospital Center, L.L.C.), Series 2004, for the Purpose of Financing the Acquisition, Construction and Equipping of A Hospital.
    No. 2006-OC-2426.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   In re North Oaks Medical Center; Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 2005-001527; to the Court of Appeal, First Circuit, No. 2006 CA 1832.

Denied.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Jamie METZLER.
    No. 2005-KA-1148.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney New Orleans, LA, for Plaintiff/Appellant.
    Sheila C. Myers, Tulane University Criminal Law Clinic New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR.).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

On July 1, 2004, under case number 449-864, the State filed a bill of information charging the defendant-appellee, Jamie Metzler, with one count of possession of heroin, a violation of La. R.S. 40:966. Arraignment was scheduled for July 21, 2004, but the defendant did not appear, and the court ordered her bond forfeited. The court also issued an alias capias for her arrest. The defendant was arrested on the capias on September 4, 2004. She entered a not guilty plea on September 10, 2004. On October 29, 2004, the court found no probable cause and ordered her released when the State witnesses did not appear for the motion hearing. On December 16, 2004, the State entered a nolle prosequi.

On December 21, 2004, the State reinsti-tuted the prosecution under case number 454-772, the instant case. Arraignment was set for January 10, 2005, but the defendant did not appear then or at the next scheduled date, January 24th. She was finally arraigned on February 16, 2005, at which time she entered another not guilty plea. The court then set February 28, 2005 as the date for determination of counsel, a motion hearing, and trial. On that date the defendant appeared without counsel, and the matter was reset on defense motion to March 3rd. On the 3rd, the 12court appointed the Orleans Indigent Defender Program to represent the defendant and rescheduled trial and the motion hearing for March 15, 2005. The defense filed a motion to quash on the 15th, to which the State filed an opposition on the 17th. The court granted the motion to quash on March 18, 2005.

On March 23, 2005 the State filed a written notice of intent to take an appeal which the court granted.

STATEMENT OF THE FACTS

We dispense with a recitation of the facts of the alleged offense since the error complained of is a pre-trial procedural one pertaining to the granting of the Motion to Quash.

ASSIGNMENT OF ERROR NUMBER 1

The first assignment of error asserted by the State is that the defendant was not denied her constitutional right to a speedy trial and thus the trial court erred when it quashed the bill of information. Although the court gave no reasons at the time it ruled, it later issued a per curiam, which actually related to over twenty-five cases, including the instant one, explaining that it granted the motion to quash because the State had earlier entered a nolle prosequi when the court had denied a motion to continue which failed to conform with La. C.Cr.P. art. 707. In his written motion, the defendant had averred that this action by the State had violated his constitutional right to a speedy trial. However, in its per curiam the trial court specifically noted that it denied the motion to quash which was based upon the violation of the defendant’s speedy trial right contained in La.C.Cr.P. art. 701(D)(4). Instead, it quashed the bill of information for failure of the State to 1 ocomply with La.C.Cr.P. art. 707. since the trial court actually ruled in favor of the State on this assignment, we pretermit a discussion of the assignment.

ASSIGNMENT OF ERROR NUMBER 2

By its second assignment of error, the State avers that the trial court should not have quashed the bill of information as a sanction for the State’s failure to comply with the requirements of La.C.Cr.P. art. 707, which provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial. The State does not dispute that it orally moved for a continuance on December 16, 2004 because an essential witness was not present, and when the motion was denied, the State nolle prosequied the case. The State argues, however, that its failure' to comply with La.C.Cr.P. art. 707 was unavoidable because of the surprise non-appearance of its witness, and thus it did not intentionally circumvent the rules of procedure as suggested by the trial court in its per curiam. It also suggests that the trial court’s most drastic remedy for the State’s failure to comply would have been the action taken at the time, denying the continuance, and not quashing a subsequent bill of information.

Moreover, the State takes the position that the trial court’s statement in the per curiam that the State should not be allowed take advantage of a rule of procedure which is not available to the defense overlooks the fact that, in this case, the defense orally moved for continuances and that they were granted. The State suggests that it is just as unfair to make it strictly comply with La.C.Cr.P. art. 707, but not the defendant.

|4The State is correct that there is no provision for quashing the bill of information for a failure to comply with the mandates of La.C.Cr.P. art. 707. Undoubtedly the trial court was frustrated with the State’s failure to have its witness appear for trial, including in a situation such as this one where the only witnesses were police officers and that they also did not appear for the motion to suppress hearing. However, this frustration cannot serve as a valid basis for quashing the bill of information in this case where neither the defendant’s statutory nor constitutional speedy trial right was violated by the State’s failure to comply with the requirements of La.C.Cr.P. art. 707.

This assignment of error has merit.

CONCLUSION

For the above reasons we reverse the trial courts granting of the defendant’s motion to quash and remand this matter for further proceedings.

REVERSED AND REMANDED.

      . There is no indication from the record or allegation by the State that it sought to have instanter subpoenas issued to the police officers or requested that the court sanction the officers for not appearing pursuant to subpoenas.


text:
    Marianne Cortez GRANIER v. AVONDALE INDUSTRIES, INC. (formerly Avondale Shipyards, Inc.), and its Executive Officers, J. Melton Garrett, Steven Kennedy, Albert Bossier, and Peter Territo and their Insurers, Onebeacon America Insurance Company, et al.
    No. 2005-CA-1085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Angelique R. Duhon, Roussel & Rous-sel, LaPlace, LA, for Plaintiffs/Appellants.
    R. Dean Church, Jr., Forrest Ren Wilkes, Forman Perry Watkins Krutz & Tardy, LLP, New Orleans, LA, for Defendant/Appellee, (O-I formerly known as “Owens-Illinois, Inc.”).
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

hln this asbestos exposure claim the plaintiffs, Marianne Cortez Granier, individually and as widow of Joseph Granier, and Dwight Granier, Betty Granier Morales, JoAnn Granier Becnel, Jody Granier, and Pauline Granier Bennett, children of Joseph Granier, appeal the judgment of the trial court granting the motion for summary judgment of defendant, Owens-Illinois, Inc. (hereinafter “Owens-Illinois” or “O-I”) on the grounds that they attached sufficient evidence raising genuine issues of material fact and making the granting of summary judgment inappropriate. Further, plaintiffs argue that Owens-Illinois, as mover, attached five (5) exhibits which were not competent evidence in support of a motion for summary judgment.

On July 15, 2003, Marianne Granier, filed a petition for damages to recover for injuries resulting from exposure to asbestos and naming as defendant, Owens-Illinois. She alleged that as a homemaker, she had extensive exposure to asbestos carried home on the clothes and persons of her husband, Joseph Granier, and son, Dwight Granier, who worked as insulators at Avondale Shipyards, Inc. One of the | ^products to which Marianne Granier was exposed was Kaylo, a product allegedly manufactured and designed by Owens-Illinois. On or about May 23, 2003, Mrs. Granier was diagnosed with asbestosis, and her petition alleges a causal connection between the exposure and Mrs. Granier’s developed asbestosis.

Mr. Joseph Granier, was diagnosed with asbestos-related lung cancer, and he died from this disease. On November 17, 2003, Mrs. Granier filed a first supplemental and amending petition, and on November 25, 2003, plaintiffs’ filed a second supplemental and amending petition, adding and supplementing as plaintiffs Marianne Granier (as the widow of Joseph Granier) and Dwight Granier, Betty Granier Morales, JoAnn Granier Becnel, Jody Granier, and Pauline Granier Bennett, (as the children of Joseph Granier), to recover for damages which resulted from Joseph Granier’s occupational exposures to asbestos-containing products designed and manufactured by Owens-Illinois. Plaintiffs’ petitions allege that the fault of Owens-Illinois was a significant contributing cause of Marianne Granier’s asbestosis and Joseph Granier’s lung cancer.

On February 14, 2005, Owens-Illinois filed the underlying summary judgment, arguing that no genuine issues of material fact exist that either Joseph or Marianne Granier were ever exposed to any asbestos-containing material manufactured, distributed or sold by Owens-Illinois. The defendant attached five (5) exhibits which were purported to be competent evidence, in support of its motion for summary judgment. Specifically, Owens-Illinois attached Exhibit 1, which purports to be an agreement to sell the Kaylo Division of Owens-Illinois to | ¡¡Owens-Corning dated in 1958. Exhibit 2 purports to be a document from 1962 in which Owens-Corning Fiberglass Corporation reports on a Kaylo improvement program. Much later, defendant attempted to authenticate Exhibit 1 with the affidavit of Susan Gibbons, which was filed late. Gibbons’ affidavit states that she works for Owens-Illinois, which precludes her from authenticating Exhibit 2, which purports to be an internal document of Owens-Corning. Exhibits 3, 4, and 5, are all copies of Judgments from unreported cases.

In its hearing on numerous motions of several defendants, the trial court granted Owens-Illinois motion for summary judgment dismissing it from the case and designated it a final judgment. The trial court then, addressing plaintiff’s counsel, gave oral reasons, to wit:

Except for when they developed the product, and then it got to Avondale in the years after 1958, it was changed by Owens-Corning. I am going to grant the Motion for Summary Judgment as relates to Owens-Illinois.
* # *
Let me tell you why on the record, because the Court makes a finding as a matter of law that Owens-Illinois, now known as O-I, there has not been sufficient evidence that the plaintiff can carry the burden to show any liability on behalf of Owens-Illinois, now known as O-I.
There has not been a sufficient showing in the Court’s opinion to establish that any Kaylo asbestos-containing product that was used in — at Avondale prior to Mr. Granier’s employment there which began in 1964, in which he said in his testimony that the old ships came in for repair and contained Kaylo. And there was evidence to suggest that there was no way to know the names of whose Kaylo it was that they were taking apart.
So for those reasons, the Court will now rule that based on the evidence that they have presented, that they |4can carry their burden at trial. Therefore, it is a final judgment as it relates to Owens-Illinois, now known as O-I. I will sign the judgment and designate it as a final judgment as relates to Owens-Illinois, now known as 0-1.

STATEMENT OF THE LAW

The appellate court review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 2005-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16. “An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appell[ee] is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. We are also guided by the Legislature’s admonition that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action” and that “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C. Civ. Pro. art. 966 A(2). Nonetheless, in deciding a motion for summary judgment “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at p. 27, 639 So.2d at 751.

If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment shall be rendered. La. C. Civ. Pro. art. 966 B. The moving party has the burden of establishing that there are no genuine issues of material fact. La. C. Civ. Pro. art. 966 C(2). However, Article |fi966 C(2) now provides that if the disposi-five issue is one on which the nonmoving party will bear the burden of proof at trial, then the moving party is not required to negate every essential element of the non-moving party’s claim. The moving party may satisfy its burden merely by “pointing out” the absence of support for one or more essential elements of the nonmoving party’s claim. “This ‘pointing out’ should be more than a bare assertion, as the mover still bears the burden of proof, which includes the burden of persuasion.” Lee v. Wall, 31,468, p. 1 (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1047 (Norris, C.J., concurring) (citing David W. Robertson, Summary Judgment and Burden of Proof: Effects of the 1996 Amendment, 45 La. B.J. 331, 333 (1997)).

In Williams v. Memorial Medical Center, 2003-1806, pp. 14-15, (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, we stated:

In meeting the burden of proof, unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; “merely stapling them to a motion for summary judgment” does not “magically” transform such documents into competent summary judgment evidence. Schully v. Hughes, 2000-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222.

This being the law, the trial court erred in not granting plaintiff’s motion to strike the exhibits, and in considering the attached exhibits.

Moreover, we note that even if the trial court had not abused its discretion in allowing the defense exhibits, some of those same exhibits contain the patent number of Kaylo and identify “Kaylo” as a trade name of Owens-Illinois. The date Ison which the ownership of these rights were transferred, if ever, by the United States Patent Office should be considered.

Finally, the trial court in its oral reasons for judgment states that the product, i.e., Kaylo, “was changed by Owens-Corning.” There is absolutely nothing in the record that makes Exhibit 2, the purported change by Owens-Corning document, competent summary judgment evidence.

For the aforementioned reasons, we reverse the granting of summary judgment and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . La. C. Civ. Pro. art. 966 C(2) provides:
      The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.


author: Judge LEON A. CANNIZZARO, Jr.

text:
    STATE of Louisiana v. Wayne ANDERSON, Phyllis West, Trina Johnson, Phillip Seifert and Yancy Roberts.
    No. 2005-KA-1116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 2006.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, Counsel For Appellant, State of Louisiana.
    Sheila C. Myers, Tulane University Criminal Law Clinic, New Orleans, LA, Counsel For Defendants/Appellees, Wayne Anderson, Trina Johnson, Yancy Roberts, Phillip Seifert and Phillis West.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. MCKAY, III, Judge LEON A. CANNIZZARO, JR.
   Judge LEON A. CANNIZZARO, Jr.

hThe defendants, Wayne Anderson, Phyllis West, Trina Johnson, Phillip Sei-fert, and Yancy Roberts, filed a motion to quash the bill of information against them. The district court granted the motion, and the State of Louisiana is appealing the judgment granting the defendants’ motion.

STATEMENT OF THE CASE

On October 25, 2004, Mr. Anderson was charged in a bill of information with one count of possession of crack cocaine with the intent to distribute it. Ms. West, Ms. Johnson, Mr. Seifert, and Mr. Roberts were each charged in the same bill of information with possession of crack cocaine. Mr. Anderson, Ms. Johnson, and Mr. Roberts each entered a plea of not guilty at their arraignments on November 12, 2004. Ms. West and Mr. Seifert did not appear at the arraignment, and warrants were issued for their arrests. On November 30, 2004, Mr. Seifert appeared for arraignment and pled not guilty. A preliminary hearing was held on December 3, 2004, but the district court judge found no probable cause to hold the defendants, and he set a trial date for January 6, 2005. Mr. Anderson did not | ?appear at the preliminary hearing, and a warrant for his arrest was issued. Mr. Anderson was arrested on December 17, 2004, and he was notified of the January trial date when he appeared in court on December 21, 2004.

On January 6, 2005, all of the defendants appeared for trial, but the State entered a nolle prosequi with respect to the charges against each of them, and the district court judge ordered the defendants released. The next day, the State reinstituted the original charges against all five of the defendants pursuant to La.C.Cr.P. art. 691. On January 31, 2005, Mr. Anderson, Ms. Johnson, and Mr. Roberts appeared for arraignment, and each again pled not guilty. Ms. West and Mr. Seifert failed to appear at the arraignment. The district court judge set February 28, 2005, as the date for motion hearings and for trial. All of the defendants appeared on February 28, 2005, and Ms. West and Mr. Seifert were arraigned and pled not guilty. On that same date, all of the defendants filed a motion to quash the bill of information. The district court judge set the matter for hearing on March 14, 2005, but the hearing date was reset for March 18, 2005. The State filed its opposition to the motion to quash on March 17, 2005, and on March 18, 2005, all of the defendants appeared in court, but they all appeared without counsel.

|ROn March 18, 2005, the district court granted the defendants’ motion to quash the reinstituted bill of information. The State has appealed the district court’s ruling.

STATEMENT OF THE FACTS

There are no transcripts in the record before us, but the facts of the case are contained in the narrative of the police report that is in the record. According to the police report, police officers, who were on routine patrol in a marked police car, noticed that Mr. Anderson and another man were conversing on the corner of St. Andrew Street and Baronne Street in New Orleans. As the officers watched, they observed an unknown man hand Mr. Anderson what appeared to be money. They then saw Mr. Anderson reach into a zippered part of his jeans, obtain an object, and hand it to the unknown man. The officers believed that they had witnessed an illegal drug transaction, and they drove to the intersection where Mr. Anderson and the unknown man were standing. When they saw the police car, both men fled in opposite directions. The officers saw Mr. Anderson discard a clear plastic bag before he fled toward a residence that was directly behind him.

One of the officers retrieved the bag that Mr. Anderson had discarded. The bag contained several pieces of what appeared to be rocks of crack cocaine. The officers ordered Mr. Anderson to stop, but he entered the residence instead. The officers then followed Mr. Anderson into the residence, and they called two more officers to the scene to assist them. Mr. Anderson was apprehended and arrested in the front room of the house. When the officers searched him after his arrest, they found one five-dollar bill and thirteen one-dollar bills. They also found a second plastic bag in the zippered compartment of Mr. Anderson’s jeans. The plastic bag | contained several items that appeared to be rock cocaine as well as powder that appeared to be broken pieces of cocaine.

The officers also discovered Ms. West and Mr. Seifert lying on the floor of the room where Mr. Anderson was arrested. They observed Mr. Seifert drop a crack pipe from his left hand while 'his right fist was clenched. Ms. West attempted to conceal an object in her clothing. The officers handcuffed and frisked Ms. West and Mr. Seifert. They seized the crack pipe that Mr. Seifert had dropped and two pieces of what appeared to be crack cocaine that were in his clenched fist. They found in Ms. West’s clothing one piece of what appeared to be crack cocaine and a crack pipe. Both Ms. West and Mr. Seifert were arrested.

When the officers entered the back part of the residence, they found Mr. Roberts and Ms. Johnson kneeling on a mattress. They also saw two pieces of what appeared to be crack cocaine on the mattress. Additionally, as the officers walked into the room with the mattress, they observed Mr. Roberts and Ms. Johnson attempting to conceal something under the mattress. Mr. Roberts and Ms. Johnson were handcuffed, and the officers found more pieces of what appeared to be crack cocaine under the mattress. Finally, the officers found a crack pipe under Ms. Johnson’s feet. Both Mr. Roberts and Ms. Johnson were arrested.

DISCUSSION

Although there is no transcript of the hearing at which the district court judge quashed the bill of information, the judge did write a per curiam opinion later to explain why he granted the motion to quash in the defendants’ case and in a number of similar cases. The district court judge explained in the per curiam that he granted the motion to quash, because after he denied the State’s motion to continue the case on the grounds that the motion did not conform to the | ¡¡requirements of La.C.Cr.P. art. 707 et. seq., the State had entered a nolle prose-qui. Article 707 provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial. This had the effect of giving the State the continuance it sought but had been denied, and it was for this reason that the trial court judge granted the motion to quash.

There is nothing in the record other than the per curiam opinion to indicate that the State had filed a motion for a continuance that had been denied prior to the State’s entering the nolle prosequi. The State, however, contends in its assignments of error that the quashing of a bill of information is not a permissible legal sanction for the failure of the State to comply with La.C.Cr.P. art. 707. Therefore, the State has apparently conceded that the reason that the motion to quash was granted was that the nolle prosequi was filed in response to the district judge’s failure to grant the State a continuance.

The State argues that granting the defendants’ motion to quash was not a permissible response to the State’s failure to comply with La.C.Cr.P. art. 707. La.C.Cr. P. art. 532 sets forth the general grounds upon which a motion to quash can be granted. That article provides:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
|fi(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

La.C.Cr.P. art. 534 sets forth the special grounds for a motion to quash a bill of information. La.C.Cr.P. art. 534 provides:

A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.

There is nothing in the record to indicate that the defendants’ motion to quash asserts any of the grounds enumerated in La.C.Cr.P. arts. 532 or 534 as a basis for quashing the bill of information against them. Additionally, the Louisiana Code of Criminal Procedure does not provide for quashing a bill of information for failure to comply with the mandates of La.C.Cr.P. art. 707 et. seq. Although the district court judge may have been frustrated by the State’s failure to be prepared for trial, we find no valid basis upon which he could quash the bill of information in this case.

Although the State has raised as an assignment of error the district court’s improperly granting the motion to quash on the grounds that the defendants’ right to a speedy trial had been violated, we need not address this assignment of error. |7The district court judge specifically stated in his per curiam that the denial of the right to a speedy trial was not the basis upon which the defendants’ motion to quash was granted. We also note that the record does not indicate that a motion for a speedy trial was ever filed by the defendants. The sole basis upon which the motion to quash was granted was the State’s failure to comply with La. C.Cr.P. art. 707 et. seq. in moving for a continuance and its using a nolle prosequi to obtain indirectly the continuance that had been denied by the district court.

The State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case, such as this one, where doing so will not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578 and where the time limits set forth in La.C.Cr.P. art. 576 for reinstitut-ing the case are observed. Therefore, considering the circumstances of this case, the district court judge abused his discretion in quashing the bill of information.

CONCLUSION

The judgment of the district court granting the defendants’ motion to quash the bill of information is reversed. The case is remanded to the district court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED

      . The record does not indicate whether or not Ms. West appeared at the preliminary hearing.

      . Article 691 gives the district attorney the discretionary power to dismiss a charge against a defendant, and the permission of the court is not required. La.C.Cr.P. art. 693 provides that the dismissal of the charge is not a bar to subsequent prosecution except in certain instances not applicable in the instant case.

      . La.C.Cr. P. art. 578 provides that no felony trial, except in a capital case, shall commence after two years from the date of institution of the prosecution. The two-year time limit in this case had not expired.


author: DREW, J. STEWART, J.,

text:
    STATE of Louisiana, Appellee v. Sam Larry SMITH, Appellant.
    No. 41,263-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.
    Louisiana Appellate Project by Paula Corley Marx, Lafayette, for Appellant.
    Paul Joseph Carmouche, District Attorney, J. Dhu Thompson, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.

      Before BROWN, STEWART and DREW, JJ.
   DREW, J.

LThe defendant, Sam Larry Smith, pled guilty as charged to aggravated second degree battery upon the state’s agreement not to file an habitual offender bill of information. The court imposed a sentence of seven years at hard labor and denied a timely motion for reconsideration. Smith now argues the sentence is excessive and that the trial court failed to consider the factors listed under La. C. Cr. P. art. 894.1. We affirm the conviction and sentence.

Smith and Edric Hills argued outside the Variety Club on Hollywood Avenue in Shreveport. Smith pulled a gun from the console of his vehicle and shot Hills in the face. Hills identified Smith as the shooter. Smith confessed and pled guilty.

Our law on excessive sentences is clear.

Here, the state argued before the court that the seriousness of the offense and the injury suffered by the victim as a result of the crime necessitated a sentence of 10 to 15 years. The defendant argued that Smith was acting out of character and was under the influence of alcohol when he | ^committed the crime, and noted his age and prior criminal history of less serious offenses, including DWI and traffic violations. The trial court considered the arguments and stated that the sentencing guidelines of La. C. Cr. P. art. 894.1 were reviewed before imposing sentence.

The trial court reviewed the PSI report and letters submitted by both the state and defense, including letters written by Smith and the victim. The court noted Smith’s extensive criminal history dating back to 1975, then sentenced Smith to seven years at hard labor, further ordering him to pay $4,000 restitution to the Crime Victims Reparations Board. This seven-year sentence is clearly not shocking.

DECREE

Both the conviction and sentence are AFFIRMED.

STEWART, J., concurs with written reasons.

STEWART, J.,

concurring.

hi agree that the sentence is not excessive; however, the order of restitution is error patent.

A trial court may not order a defendant to pay restitution to a victim unless the imposition or execution of sentence is suspended. See La. C. Cr. P. arts. 895 & 895.1; State v. Clark, 93-1470 (La.App. 3d Cir.10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.2/9/95), 649 So.2d 418; State v. Matthews, 572 So.2d 250 (La.App. 1st Cir.1990), writ denied, 575 So.2d 387 (La. 1991). The defendant was sentenced to serve seven years imprisonment. The sentence was neither suspended nor probated. Therefore, the trial court could not impose restitution. This portion of his sentence should be vacated.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641.
      Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.
      A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

      . But shooting someone in the head over virtually nothing is, in truth and fact, extremely shocking. It is sheer blind luck that this prosecution was not for murder.


author: SUSAN M. CHEHARDY Judge.

text:
    Frank HENRY and Mary Henry, Individually and on Behalf of their Minor Children v. SOUTH LOUISIANA SUGARS COOPERATIVE, INC.
    No. 06-CA-71.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Rehearing Denied Oct. 30, 2006.

      Robert I. Siegel, Brendan P. Doherty, Geiger, Laborde & Laperouse, L.L.C., Attorneys at Law, New Orleans, Louisiana, for Third-Party Defendant/Appellant, Audubon Insurance Company.
    Rufus C. Harris, III, Alfred J. Rufty, III, Harris & Rufty, L.L.C., Attorneys at Law, New Orleans, Louisiana, for Defen-dani/Appellee, South Louisiana, Sugars Cooperative, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.
   SUSAN M. CHEHARDY Judge.

|2This appeal arises in a personal injury suit, specifically out of a third party demand that seeks a determination of insurance coverage for the accident made the basis of the original suit. The trial court granted a summary judgment finding coverage under the policy of the third-party defendant. We affirm.

In the main demand, Frank Henry seeks damages for injuries he sustained on July 9, 2003 at the South Louisiana Sugars Cooperative, Inc. (“SLSC”) facility in St. James Parish. Henry, an employee of Quality Liquid Feeds, Inc., was loading molasses from a barge owned by SLSC onto an adjacent cargo barge. SLSC’s barge had been moored in the Mississippi river in front of SLSC’s facility since 1997, serving as a “dock barge” to assist in loading operations. The dock barge was secured to the riverbed by posts on both sides, making it stationary in lateral or forward movement, but allowing it to rise and fall with the level of the river. The cargo barge was connected to the SLSC barge by a gangplank affixed to the SLSC barge. Henry alleged the accident occurred as he was walking on the gangplank to the cargo barge, and the gangplank suddenly “slipped and dropped to the barge decking with great force,” causing Henry to fall onto his back on the cargo barge.

|sAt the time of the accident, SLSC was insured under a comprehensive general liability (“CGL”) policy issued by Audubon Indemnity Company (“Audubon”).

Audubon sent a letter to SLSC denying coverage based on a watercraft exclusion in the CGL policy. As a result, SLSC filed a third party demand against Audubon, alleging that Audubon’s policy provided coverage to SLSC for the Henry claims and that Audubon acted arbitrarily and in bad faith in denying coverage.

Audubon and SLSC filed cross-motions for summary judgment. Audubon sought summary judgment dismissing the claims against it, on the ground that the Audubon policy excludes the claims and liabilities associated with the alleged accident and injuries of Frank Henry. Audubon asserted its coverage denial was based on a clear and unambiguous watercraft exclusion in its policy, and submitted evidence demonstrating that the barge was floating in the Mississippi River at all times pertinent.

SLSC’s motion for summary judgment sought a ruling that Audubon owes it coverage and a defense, as well as attorney’s fees and damages pursuant to La.R.S. 22:658 and 22:1220. SLSC contended the watercraft exclusion does not apply, because the policy has an exception to the watercraft exclusion where the watercraft is “ashore on premises owned or rented by the insured.” SLSC argued that the vessel at issue was “ashore” at premises belonging to the insured at the time of the accident, since it was permanently moored and was connected to shore by a conveyor affixed to the shore that extends out over the water to the barge.

LThe trial court granted both motions for summary judgment in part and denied both in part. The court granted Audubon’s motion with respect to statutory penalties, but denied it as to the exclusion, finding coverage under Audubon’s policy. The court granted SLSC’s motion for summary judgment as to the coverage issue, but denied it as to penalties and attorney’s fees. The court did not issue reasons for judgment. Audubon has appealed the ruling.

On appeal Audubon asserts the trial court erred in denying Audubon’s motion for summary judgment and in granting summary judgment in favor of SLSC because the barge upon which Frank Henry was allegedly injured was a “watercraft,” and the watercraft, which was floating in the Mississippi River and surrounded by water, was not “ashore on premises” owned or rented by SLSC.

The water craft exclusion contained in the Audubon policy provides as follows, in pertinent part:

2. Exclusions
This insurance does not apply to:
(g) Aircraft, Auto or Watercraft “Bodily Injury”... arising out of the ownership, maintenance, use or en-trustment to others of any ... watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”.
This exclusion does not apply to: (1) A watercraft while ashore on premises you own or rent.

There is no dispute that the barge is a watercraft or that the accident arose out of its “ownership, maintenance, use or en-trustment to others.” At issue is ^whether exception (1) to the exclusion applies because SLSC’s barge was “permanently moored” and was used as a dock by SLSC.

Audubon contends that the “permanent mooring” is irrelevant, because the dock barge was floating on the Mississippi River, with water around all four sides of it. Audubon argues the barge cannot be considered to be “ashore” because the barge was in the river, and “ashore” equates to “on land.” Alternatively, if any connection between the barge and land can be considered to make the barge “ashore,” Audubon asserts the barge nevertheless was not “ashore on premises” owned by or rented to the insured, because only the state owns the bottoms of navigable waterways.

SLSC argues the trial court was correct in determining that coverage existed under the Audubon policy. SLSC contends the court implicitly found that the vessel was “ashore” when it was serving as a dock while permanently affixed at the shore of the insured’s premises without having been moved for at least seven years.

Alternatively, SLSC argues that the exclusion in the Audubon policy is ambiguous as to the meaning of “ashore,” because Audubon did not define “ashore” in its policy, and dictionaries define “ashore” to include being “along,” “alongside of,” and “adjacent to” the shore. SLSC argues the variety of meanings mandates an interpretation favoring the insured.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B). An appellate court reviews a grant or denial of a motion for summary judgment de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

| fiThus, we ask the same questions as the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945.

The rules for interpretation of insurance policies were summarized by the Louisiana Supreme Court in a recent case, as follows:

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes.
If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. That strict construction principle, however, is subject to exceptions. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. [Citations omitted.]

Bonin v. Westport Ins. Corp., 2005-0886 (La.5/17/06), 930 So.2d 906, 910-11.

We find a variety of definitions of “ashore”: “ashore ...: on or to the shore”; “ashore ... 1. To or onto the shore: driven ashore by the wind. 2. On land: spent the day ashore.”

_[rjBlack’s Law Dictionary does not define “ashore,” but defines “shore” as follows:

Shore. Strictly and technically, lands adjacent to the sea or other tidal waters. The lands adjoining navigable waters, where the tide flows and reflows, which at high tides are submerged, and at low tides are bare.... The space bounded by the high and low water marks.... And this is also true even though the lands may lie along nonnavigable bodies of water.
Under the civil law the “shore line” boundary of lands adjoining navigable waters is the line marked by the highest tide.
In connection with salvage, “shore” means the land on which the waters have deposited things which are the subject of salvage, whether below or above ordinary high-water mark.

Black’s Law Dictionary 1236 (5th ed.1979).

The meaning of “ashore” as it is used in the standard exception to the watercraft exclusion has been little-discussed in jurisprudence. The parties cite cases that favor the interpretations of both sides.

In Blair v. Suard Barge Services, Inc., 2004 WL 325428 (E.D.La.2004), where the watercraft exclusion was applied, the barges were many feet from the shore. In H.C. Price Co. v. Compass Ins. Co., 483 F.Supp. 171, 174-175 (N.D.Tex.1980), the court found a vessel that was partially out of the water and propped up on a ramp on the side of a bayou was “ashore.”

In Liquor Liability Joint Underwriting Assoc. of Mass. v. Long, 1993 WL 818638 (Mass.Super.), and Nahan v. Pan American Grain Mfg. Co., Inc., 62 F.Supp.2d 419 (D.P.R.1999), the exception to the watercraft exclusion was held toj^apply where the injuries occurred at piers that were considered premises owned or rented by the insureds.

SLSC points out that in this case, the barge was the dock. SLSC argues that because the Audubon policy does not define “ashore,” the word is susceptible of several interpretations, making the policy ambiguous and mandating an interpretation favoring coverage. Audubon asserts that “ashore” is not ambiguous because it is part of the phrase “ashore on premises” and that the only interpretation of the full phrase must be that the vessel is on land that is owned or rented by the insured.

Unambiguous provisions in the insurance contract limiting liability must be given effect. However, if the language of the exclusion is ambiguous and thus subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. [Citations omitted.]

Lantier v. Aetna Cas. & Sur. Co., 614 So.2d 1346, 1354 (La.App. 3 Cir.1993).

Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Equivocal provisions seeking to narrow the insurer’s obligation are strictly construed against the insurer, since these are prepared by the insurer and the insured has no voice in the preparation. If the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied.

Garcia v. St. Bernard, Parish School Bd., 576 So.2d 975, 976 (La.1991). The insurer has the burden of proving that a policy exclusion precludes recovery. Id.

We find that the phrase “ashore on premises” is ambiguous. Hence, we agree with the trial court’s conclusion that SLSC was entitled to summary judgment. Accordingly, the judgment is affirmed. Costs of this appeal are assessed against the third-party defendant-appellee, Audubon Insurance Company.

AFFIRMED.

      . Frank Henry’s wife, Mary Henry, is also a plaintiff, but for ease of reference we speak of Frank Henry as if he were the only plaintiff.

      . SLSC also had a protection and indemnity ("P & I”) policy issued by Westport Insurance Company ("Westport”), which insured SLSC as owner of the barge involved here, described in the Westport policy as "1937 155' Dock Barge.”

      . We note the court rendered two judgments. The first was signed on December 6, 2005. The second was signed on December 13, 2005. The second judgment amended the first with respect to Audubon's motion, specifying that Audubon's motion was granted with respect to statutory penalties. Because the second judgment was rendered within the period for applying for a new trial, it could properly be substituted for the first judgment and is effective. See La. C.C.P. arts.1951, 1971, 1974.

      . The exclusions are in subsection 2 of Section I — Coverages, Coverage A. Bodily Injury and Property Damage Liability.

      . Webster’s Ninth New Collegiate Dictionary 107 (Merriam Webster 1983).

      . American Heritage® Dictionary of the English Language (4th ed.2003). Retrieved September 4 2006 from httpj/www.thefree dictionary, com/ashore.

      . We note, in passing, that recent legislation now permits the previously forbidden practice of citing unpublished decisions. Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.3(C) states, "Opinions and dispositions marked ‘Not Designated for Publication' shall not be cited, quoted, or referred to by any counsel, or in any argument, brief, or other materials presented to any court, except in continuing or related litigation. Opinions marked ‘Not Designated for Publication’ shall be filed in the clerk's office as public records." However, by Act 644 of 2006 (eff. August 15, 2006), the Louisiana Legislature enacted La.C.C.P. art. 2168, which requires that unpublished opinions by the Supreme Court and courts of appeal be posted on the Internet websites of such courts, and that such opinions may be cited as authority.


author: CARAWAY, J.

text:
    Stephen MURPHY, Plaintiff-Appellant v. KAVANAUGH, Defendant-Appellee.
    No. 41,541-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.
    Stephen Murphy, In Proper Person.
    Workers’ Compensation Center of Louisiana, LLC, by William T. Allison, Shreveport, for Appellant.
    Michael S. Coyle, Ruston, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

hOn July 13, 2004, Stephen Murphy filed a disputed claim with the Office of Workers’ Compensation against his employer, Kavanaugh Group Temporary Services, Inc. In support of his claim, Murphy alleged as follows:

I Stephen Murphy was working in the factory and the glue stuck to my arm and caused sores on my skin & a air ship ran a heard of bird in to my body after hitting the engine.

Counsel was appointed to represent Murphy, due to his questionable mental capacity, on August 26, 2004. On January 30, 2006, Murphy’s counsel filed a motion to dismiss the action with prejudice or to withdraw as counsel for Murphy. Counsel alleged that Murphy was civilly committed to the Central Louisiana State Hospital and that no credible evidence existed to support the claim. On February 2, 2006, the Workers’ Compensation Judge (“WCJ”) dismissed Murphy’s action with prejudice. Murphy has filed this pro se appeal of that judgment; however, no clear assignment of error has been made.

The well-settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156. A judicial confession has the effect of waiving evidence as to the subject of the admission. Id. A declaration made by a | ^party’s attorney or mandatory has the same effect as one made by the party himself. La. C.C. art. 1853, Comment (b).

Assignments of error neither briefed nor argued in brief are deemed abandoned. URCA 2-12.4; Graham, v. Nissan, 39,656 (La.App. 2d Cir.6/29/05), 907 So.2d 213; Knotts v. Snelling Temporaries, 27,773 (La.App. 2d Cir.12/6/95), 665 So.2d 657; Brown v. Ruskin Mfg. Co., 33,015 (La.App. 2d Cir.4/5/00), 756 So.2d 667.

In this matter, the appealed judgment rendered in response to Murphy’s counsel’s motion to dismiss with prejudice, ordered simply that “[t]his matter be and it hereby is Dismissed with prejudice.” In so ruling, it is apparent that the WCJ considered counsel’s pleadings as a judicial confession that “there is no credible evidence that supports this claim_” Murphy has raised no discernible issues in his pro se brief which demonstrate error in the ruling which is otherwise authorized by the jurisprudence. On these grounds we affirm the judgment dismissing Murphy’s claim with prejudice.

AFFIRMED.

      . Evidence contained in the record shows that in an unrelated criminal matter, Murphy was confined due to his mental incapacity to proceed to trial. This court terminated the confinement on May 26, 2004, and directed the state to institute civil commitment proceedings or the release of Murphy from custody. The record contains unsigned copies of a joint petition for civil commitment of Murphy and order of civil commitment.


author: WILLIAMS, J.

text:
    Gary W. MOORE, Plaintiff-Appellant v. TRANSMISSIONS, INC., Defendant-Appellee.
    No. 41,472-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Edward M. Campbell, Baton Rouge, for Appellant.
    Janice B. Unland, Deanne B. McCauley, Covington, David B. Parnell, Jr., Baton Rouge, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

h Claimant, Gary W. Moore, filed a disputed claim for workers’ compensation benefits against his employer, Transmissions, Inc., alleging he sustained an injury while in the course and scope of his employment. Following a hearing, the workers’ compensation judge (“WCJ”) concluded that claimant had forfeited his right to receive workers’ compensation benefits by willfully making false statements under oath for the purpose of receiving workers’ compensation benefits, a violation of LSA-R.S. 23:1208. The WCJ also denied claimant’s request for penalties and attorneys fees. For the reasons that follow, we affirm the WCJ’s ruling.

FACTS

Claimant was employed by Transmissions, Inc. as a “helper,” whose various job duties included dismantling and cleaning transmissions, changing oil, moving transmissions and supplies, hauling scrap metal and cleaning the shop. Claimant alleged that on September 29, 2004, he was instructed to move a 100-300 pound transmission from one place in the shop to another using a jack. During the process of the move, the transmission fell from the jack and claimant attempted to catch it. Claimant alleged that the transmission fell onto his left foot, resulting in an injury. He also claimed that he injured his back when he attempted to catch the transmission.

No one in the shop witnessed the incident. However, Edward Oaks, who was standing several feet from claimant, testified that he heard the transmission fall to the floor. He stated that he looked over at claimant and saw claimant “kneeled down.” Claimant told him that the transmission had | ¡¿fallen onto his foot, and he observed claimant “walking around limping.”

Debbie Copa, vice president and office manager of Transmissions, Inc., testified that she encouraged claimant to see a doctor that day, but he declined, stating that he would wait to see if his foot was better the following morning. Claimant was examined by a physician on Friday, October 1, 2004, two days after the incident. An x-ray revealed no fracture, dislocation or soft tissue injury. A physical examination of claimant’s left foot showed no visible signs of injury and that claimant exhibited full range of motion in his foot and lower leg.

According to claimant’s testimony, he began to experience pain in his lower back over the course of the weekend. On Monday, October 4, 2004, he sought treatment at Willis-Knighton Medical Center, where he complained of “severe” back pain and the inability to sleep. He was also treated for back pain at Willis-Knighton on two other occasions.

On November 11, 2004, claimant was examined by Dr. A. Edward Dean. At that time, claimant was complaining of back pain radiating to his left leg. An x-ray showed “narrowing and degenerative changes at the L5-S1 disability space.” Dr. Dean diagnosed claimant with “degenerative L5 disc with sciatic pain.” Dr. Dean prescribed medication and opined that claimant was unable to return to work.

Subsequently, claimant was treated for back pain at Louisiana State University Health Sciences Center-Shreveport. On March 22, 2005, an MRI showed that plaintiff had “degenerative changes at L4-5 and L5-S1 as described with probable annular tear and small disc protrusion at L3-4.”

| ¡--¡Transmissions, Inc. paid claimant’s wages for one month following the incident, and it paid for his initial medical treatment. Soon thereafter, Transmissions, Inc. turned the matter over to its workers’ compensation insurer, National Loss Control Management.

On November 17, 2004, claimant filed a disputed claim for workers’ compensation benefits. Transmissions, Inc. denied all allegations in the claim and later filed a reconventional demand seeking restitution, alleging that claimant had made false statements for the purpose of obtaining workers’ compensation benefits, in violation of LSA-R.S. 23:1208 and LSA-R.S. 23:1208.1.

Following a trial on the merits, the WCJ dismissed the claim with prejudice, at claimant’s costs. The WCJ concluded that claimant was not a credible witness and that he had willfully made false statements under oath for the purpose of receiving workers’ compensation benefits, a violation of LSA-R.S. 23:1208. The WCJ further noted that claimant had “a long history of previous back and other personal injuries for which he received monetary compensation.” The WCJ denied claimant’s request for penalties and attorneys fees, finding that the employer had acted in good faith in its handling of the claim. Claimant appeals.

DISCUSSION

Forfeiture of Benefits

Claimant contends the WCJ erred in denying his claim for workers’ compensation benefits. According to claimant, the WCJ erroneously | concluded that he forfeited the benefits by willfully making false statements for the purpose of receiving workers’ compensation benefits.

It is unlawful for a person to willfully make a false statement or representation for the purpose of obtaining or defeating any workers’ compensation benefit or payment. LSA-R.S. 23:1208(A). Any employee who makes such a willful false statement shall, upon determination by the WCJ, forfeit any right to workers’ compensation benefits. LSA-R.S. 23:1208(E).

The only requirements for forfeiture of benefits under LSA-R.S. 23:1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 1994-2708 (La.9/5/95), 660 So.2d 7. An inadvertent and inconsequential false statement will not result in the forfeiture of benefits. Id.; Rosson v. Rust Constructors, Inc., 32,789 (La.App. 2 Cir. 3/1/00), 754 So.2d 324, writ denied, 2000-0914 (La.5/26/00), 762 So.2d 1105. Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 1997-0684 (La.1/21/98), 707 So.2d 1214.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560. Under this rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Id. (citing Stobart v. State, 1992-1328 (La.4/12/93), 617 So.2d 880). When there are two permissible views of the evidence, a factfinder’s ^choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.; Williams v. Saint Gobain Containers, 39,313 (La.App. 2d Cir.1/26/05), 893 So.2d 144.

In Johnikin v. Jong’s, Inc., 40,116 (La.App. 2d Cir.9/21/05), 911 So.2d 413, the claimant suffered a back injury after she slipped and fell during the course and scope of her employment. She testified that she had never had a back injury prior to her fall at work. However, her medical records showed that three years prior to her work-related injury, the claimant had been treated at a clinic for complaints of back pain as a result of an automobile accident. Additionally, one year prior to the accident at work, the claimant had been treated for a back injury as a result of a fall. This court affirmed the WCJ’s ruling that the claimant had forfeited her right to receive workers’ compensation benefits.

Similarly, in Smith v. Riverwood International, 35,727 (La.App. 2d Cir.2/27/02), 810 So.2d 1175, writ denied, 2002-0958 (La.5/31/02), 817 So.2d 101, the claimant denied having prior back problems or prior treatment for back problems. However, her medical records demonstrated that she had been treated for a 1996 back injury resulting from a motor vehicle accident. She also denied having a previous back injury to her physicians. This court upheld the WCJ’s ruling that the claimant had forfeited her rights to workers’ compensation by making false statements Lwith regard to her medical history and treatment.

As in Johnikin and Smith, the questions posed to claimant herein with regard to prior injuries were straightforward and not subject to misinterpretation. On November 9, 2004, Winston Smith, a claims adjuster for the workers’ compensation insurer, obtained a recorded statement from claimant in which he denied prior work-related injuries, back injuries and automobile claims or settlements. The colloquy was as follows:

Q: You ever had a worker’s comp claim before?
A: Never had nothing.
Q: No injuries at work before?
A: Nope.
Q: Okay, no auto claims? Any settlement things in the past?
A. No.
* * *
Q: Okay, have you had any prior back problems before?
A: No, never had no back problems.
Q: No neck problems?
A: No neck problems, nothing.
Q: Okay. Any leg problems?
A: No leg problems, no cut on, no surgery, or no nothing.
Q: Okay. No prior medical problems.
A: No prior medical problems.
|7Q: Okay. No prior back problems.
A: No prior back problems.
On November 18, 2004, claimant was interviewed by Ray Cedor, an insurance adjuster, in which he stated the following:
Q: Have you ever before in your life suffered from or been treated for any problem involving your lower back?
A: No, no.
* * *
Q: All right. Ever before suffered from or been treated for any problem, like in that upper back, left shoulder area?
A: No.
* * *
Q: All right. Accidents away from work, non-work-related, even from childhood ... getting hurt bad enough to go get treated?
A. No.
Q: Being in a car wreck as an adult. Ever been hurt in a car wreck or anything?
A: I had a car wreck about 20 years ago.
Q: Did you get hurt?
A: I got — we got hurt — my daddy got hurt—
* * *
Q: Well, do you remember what was hurt in that car wreck? I know it’s a long time ago. What parts of your body were hurt?
A: Shoot, I couldn’t tell you right now.
Q: All right. Do you remember where’d you get treated, or did you get any treatment?
|rA: I don’t think I got no treatment.
Q: All right. Any other times you can ever remember being in a car wreck getting hurt?
A: No.
Q: All right. Have you made or settled. ... Ever made or settled what we call a personal injury claim? This would be — this is a comp claim [bejcause you had an accident on the job. If you’d been hurt in that car wreck that you said with your dad 20 years ago you might have made an insurance claim, got a settlement?
A: No.
Q: Have you ever made a settlement for any kind of an injury claim?
A: Best of my knowledge, no.
Q: Do you think you’d remember if you’d filed a claim, made a settlement of any kind?
A: If I think I did — No, I know I didn’t.
Q: Yeah. Have you ever filed a lawsuit?
A: No.

Similarly, in his deposition, claimant denied having any prior injuries and denied ever filing a lawsuit. However, an investigation into the claim revealed that claimant had suffered a fracture of the left transverse process vertebrae at L3, which was noted in 1991. The investigation also revealed that claimant was struck by an automobile while riding a bicycle on May 23, 1987. He filed a lawsuit, alleging that he had incurred $2,000 in medical expenses as a result of the accident. The record further showed that claimant filed another lawsuit in 1994 in connection with an automobile | ^accident. In the 1994 petition for damages, claimant alleged that he had sustained various injuries, including injuries to his neck and back.

During his testimony at trial, claimant admitted that he had been involved in two prior automobile accidents, one 10 years prior to the incident in question, and another 20 years prior to the incident. During his testimony, claimant denied receiving a settlement for the 1994 accident. However, the record showed that claimant underwent treatment with a chiropractor for several months for complaints of neck and back pain and received a settlement for the sum of $4,569. Claimant explained that he did not reveal the prior accidents and injuries because he did not recall the accidents when he was questioned by the investigators. He also testified that he had never been told that he had a fractured vertebra as shown in the 1991 x-ray.

Furthermore, in his deposition, claimant testified that he told the physician that he was experiencing back pain during his initial examination on Friday, October 1, 2004. However, he later testified that his back did not begin to hurt until over the weekend, “Friday or Saturday night.”

It is clear that the record in this case supports the WCJ’s finding that claimant violated LSA-R.S. 23:1208 by willfully making false statements for the purpose of receiving workers’ compensation benefits. The transcripts from claimant’s depositions and his statements to the investigators show that the questions posed to claimant with regard to prior injuries, medical conditions, accidents or lawsuits were unambiguous. Claimant consistently misrepresented his prior medical, accident and | inlitigation history. Moreover, claimant’s medical records indicate that he denied previous back injuries to his physicians. The volume and persistence of these misrepresentations, most of which were made under oath and in the presence of counsel, forecloses the hypothesis that the statements were inadvertent or inconsequential.

Under these facts, we find that the WCJ did not err in concluding that claimant violated LSA-R.S. 23:1208, and therefore, he forfeited his right to workers’ compensation benefits. This assignment lacks merit.

Penalties and Attorney Fees

Claimant also contends the WCJ erred in failing to impose penalties and attorney fees against Transmissions, Inc. for the failure to pay workers’ compensation benefits. Transmissions, Inc. maintains the WCJ properly denied claimant’s demand for penalties and attorney fees.

Penalties and attorney fees may be awarded for failure to provide payment of indemnity or medical benefits. LSA-R.S. 23:1201(F). Such penalties and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. Id. However, the penalty is not imposed if the claim is reasonably controverted or if nonpayment results from conditions over which the employer or insurer had no control. Id.

|1vAn employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. Williams v. Mark Johnson Plumbing, 38,-954 (La.App. 2d Cir.9/22/04), 882 So.2d 1193; Bolton v. Mike Fleming Const., 36,-521 (La.App. 2d Cir.12/11/02), 833 So.2d 1177. To reasonably controvert a workers’ compensation claim, so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corp., 36,339 (La.App. 2d Cir.9/18/02), 828 So.2d 150, 159.

Penalties are stricti juri and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bol-ton, supra. The WCJ has great discretion in deciding whether to award or deny penalties and attorney fees and such decision will not be disturbed absent abuse of that discretion. Williams, supra; Fisher v. Lincoln Timber Co., 31,430 (La.App. 2d Cir.1/24/99), 730 So.2d 973.

In this case, we find that Transmissions, Inc. reasonably controverted the claim, and claimant is not entitled to penalties and attorney fees. Immediately following the incident in question, claimant complained of pain in his left foot. His medical records from his initial visit to the clinic |19pn October 1, 2004 show that claimant was treated for the injury to his foot, and no mention of back pain is in that record. Debbie Copa testified that claimant came to the shop on October 1, 2004, after seeing the doctor. According to Copa, claimant stated that he had to “stay off his foot for about a week,” but he did not mention back pain.

Furthermore, the record demonstrates that claimant was experiencing back pain prior to the September 29, 2004 incident. Several witnesses testified that on various occasions, they saw claimant “hunched over in pain” or exhibiting pain when attempting to rise from a chair. Copa testified that, prior to the accident at work, claimant told her that he was having back pain. Edward Oaks testified that he had overheard claimant state thát his back was hurting, and he had observed claimant performing his job duties while sitting on a stool due to back pain. Ron Tullís, Travis Larrick and Bob Daniels testified that, prior to the work-related accident, claimant told them that he had injured his back while moving transmission parts at another transmission shop.

We find no error in the WCJ’s ruling. This assignment lacks merit.

CONCLUSION

For the reasons stated above, we affirm the judgment of the Office of Workers’ Compensation at appellant’s costs.

AFFIRMED.

      . Consequently, the WCJ referred the matter to the Fraud Unit of the Louisiana Office of Workers’ Compensation Administration for further proceedings.

      . In certain instances, a claimant who has forfeited the right to receive workers' compensation benefits may be entitled to an assessment of penalties and/or attorney fees.
        see, Jim Walter Homes, Inc. v. Guilbeau, 2005-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239; Leonard v. James Industrial Constructors, 2003-0040 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, writ denied, 2004-1447 (La.9/24/04), 882 So.2d 1139; Apeck Constr., Inc. v. Bowers, 2003-0486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writ denied, 2004-0459 (La.4/23/04), 870 So.2d 301. In these cases, the appellate courts affirmed the determinations that the evidence was sufficient to prove the claimants had made false statements. However, after concluding that the claimants' benefits could only be prospectively forfeited from the dates the false statements were made, the courts affirmed the judgments assessing penalties and attorney fees.

      . We must point out that Transmissions, Inc. paid for claimant's initial medical treatment for the injury to his foot and continued to pay his wages for one month following the accident. Thereafter, the matter was turned over to the workers’ compensation insurer.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Rick Lynn LOFTON, Appellant.
    No. 41,423-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.
    Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

hThe defendant, Rick Lynn Lofton, pled guilty to simple burglary, a violation of La. R.S. 14:62, and was sentenced to five years at hard labor. By this appeal, he seeks review of his sentence. Finding no merit to his assignments of error, we affirm.

FACTS

According to the guilty plea transcript, the defendant broke into a vehicle belonging to Michael Hodge and committed a theft therein. The sentencing transcript indicates that the defendant actually entered the victim’s auto shop and stole a battery charger. The defendant entered a plea of guilty to the crime of simple burglary. As a result of the plea, another unspecified charge identified only as District Court Case No. 72,446 was dismissed.

After reviewing a pre-sentence investigation (“PSI”) report, the trial court imposed a sentence of five years at hard labor. The trial court considered the defendant’s criminal history as a major factor in determining an appropriate sentence. A motion for reconsideration alleging the excessiveness of the sentence was denied. This appeal followed.

DISCUSSION

The defendant argues that the trial court failed to make a detailed consideration of the factors of La. C. Cr. P. art. 894.1 in imposing the five-year sentence. He asserts that his personal and family background were not considered. He urges this court to find the sentence excessive for the crime committed.

12Where, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional ex-cessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

Here, the trial court reviewed the PSI report and considered the non-violent nature of the offense. The trial court also considered the defendant’s extensive criminal history. Prior felony convictions noted by the trial court included three convictions from the state of California for two separate burglary charges and evading an officer, as well as a 2004 conviction for either theft or principal to simple burglary in Arcadia. The trial court also noted that the defendant had over thirty arrests in his lifetime. Due to the defendant’s criminal history, the trial court did not find him to be a good candidate for probation or a suspended sentence. In fact, the defendant had been on probation for the last listed conviction at the time he committed the current offense. For these reasons, the court imposed the five year sentence.

On this record, we do not find constitutional error. La. R.S. 14:62 provides that one guilty of simple burglary may be imprisoned with or without hard labor for not more than twelve years. The five year hard labor sentence is a lower mid-range sentence and is not disproportionate to the defendant’s crime. The defendant benefited from the dismissal of another |3charge as a result of his plea, and he was given the benefit of having this sentence run concurrent to any sentence he might have for a probation violation. The court considered the non-violent nature of a the crime as a mitigating factor. However, the court emphasized the defendant’s criminal history in determining the sentence. We find no error in this sentencing. The defendant, age fifty at the time of the guilty plea, had a lifetime history of criminal behavior with a number of felony convictions. The five year sentence imposed for this crime is not unlawful, is not grossly disproportionate to the severity of the offense, and does not shock our sense of justice.

CONCLUSION

The defendant has failed to show an abuse of the trial court’s discretion in imposing the sentence of five years at hard labor with credit for time served. Thus, we affirm the defendant’s sentence.

AFFIRMED.