author: PETERS, J.

text:
    Marcia WYBLE v. ACADIANA PREPARATORY SCHOOL.
    No. 07-0091.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Michael K. Leger, Attorney at Law, Opelousas, LA, for Plaintiff/Appellee, Marcia Wyble.
    George S. Bourgeois, Jr., Attorney at Law, Opelousas, LA, for Defendant/Appellant, Acadiana Preparatory School.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

Bln this workers’ compensation case, the Acadiana Preparatory School (School) appeals an award of weekly benefits, medical expenses, penalties, and attorney fees to its former employee, Marcia Wyble. Ms. Wyble answered the appeal, requesting an increase in the penalty award and an award of attorney fees on appeal. For the following reasons, we affirm the award of the workers’ compensation judge WCJ) in all respects and render judgment awarding Ms. Wyble an additional $5,000.00 as attorney fees for work performed on appeal.

DISCUSSION OF THE RECORD

This litigation arises from incidents which occurred on October 21, 2004, and October 22, 2004, at the School where Ms. Wyble was employed as a teacher’s aide. On Thursday, October 21, Ms. Wyble lifted a heavy desk onto a rug and helped push the desk across the room. This effort on her part resulted in stiffness in the lower back that same evening and the next morning. On the next day, she sustained immediate pain when she straightened up from bending over a low-to-the-ground, child-sized table while working on an art project with her students. Soon thereafter, she reported the pain in her back to Ann Rachel, a teacher with whom she was working. On the following Monday, October 25, 2004, Ms. Wyble called Vincent Buhara, an administrator at the School, and informed him of her injury, of her plans to seek medical attention, and of the fact that she would miss a few days of work.

Ms. Wyble saw her family physician, Dr. Michael Montgomery, the same day as her discussion with Mr. Buhara. Dr. Montgomery treated Ms. Wyble for her back pain, suggested that she not return to work for the remainder of the week, and scheduled a follow-up evaluation for the end of the week.

1 ¡¿Before the follow-up evaluation took place, Ms. Wyble contacted Mr. Buhara to request that the School pay for her medical expenses and was informed that the School had concluded that it was not responsible for the injury and would not pay any benefits to her or on her behalf. Because the School refused to pay her medical expenses, Ms. Wyble sought medical care from the University Medical Center of Lafayette, Louisiana; the Louisiana State University Health Sciences Center of Shreveport, Louisiana; and the Louisiana State University Earl K Long Health Science Center of Baton Rouge, Louisiana — -all three facilities being part of the state charity hospital system.

Dr. L. Luquette of the Lafayette facility saw Ms. Wyble on October 27, 2004, and continued to treat her through November 2, 2005. Throughout his treatment of Ms. Wylbe’s complaints, Dr. Luquette was of the opinion that his patient could not return to work at the School. Her back pain grew progressively worse, and by January of 2005 she was reporting pain down into her buttocks and posterior thighs. An April 12, 2005, lumbar MRI revealed a right-sided disc herniation at L4-5, right paracentral disc protrusion/herniation, and facet joint hyperthropy in the lower lumbar region.

Ms. Wyble last received treatment from the Lafayette facility on November 2, 2005, and on January 3, 2006, she saw Dr. Raul Cardenas, a neurosurgeon at the Shreveport facility. After examining Ms. Wyble, Dr. Cardenas released her to light duty. But when she approached the School seeking a light-duty position, she received no response. Ms. Wyble remained under Dr. Cardenas’s care and underwent physical therapy at his recommendation, but at the Baton Rouge facility.

|sThe School’s continual refusal to pay benefits and medical expenses resulted in this litigation. Following a June 19, 2006, hearing on the merits, the WCJ rendered judgment awarding Ms. Wyble temporary total disability benefits from October 22, 2004, until January 3, 2006, and supplemental employment benefits thereafter; ordering the School to pay all accident-related medical expenses; awarding $4,000.00 in statutory penalties; awarding $6,500.00 in attorney fees; and ordering that the weekly benefits award be increased by fifty percent pursuant to La. R.S. 23:1171.2. The School timely perfected this appeal, and Ms. Wyble answered the appeal seeking additional relief.

OPINION

In its appeal, the School asserts that the WCJ erred: (1) In finding that a compen-sable accident occurred; (2) in awarding penalties and attorney fees; and (3) in awarding increased benefits under La.R.S. 23:1171.2. In her answer to the appeal, Ms. Wyble seeks an increase in the WCJ’s penalty award and an award of attorney fees for work done on appeal.

Accident

The School first asserts that the WCJ erred in even concluding that an accident occurred at all. In considering this argument, we recognize that the employee has the burden of establishing a work-related accident. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). Louisiana Revised Statute 23:1021(1) defines an accident as follows:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

|4The School contends that the WCJ erred in finding that an “accident” occurred where Ms. Wyble’s complaints arise from nothing more than “benign, everyday activity” and her back pain is “simply a gradual deterioration or progressive degeneration.”

In rejecting this argument, we first note that

Although the definition of accident was amended to emphasize that the identifiable, precipitous event must be more than a gradual deterioration or progressive degeneration, jurisprudence holds that these terms do not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee.

Richard v. Workover & Completion, 00-794, p. 4 (La.App. 3 Cir. 12/6/00), 774 So.2d 361, 364. Further, “[t]he ‘actual, identifiable, precipitous event’ may include a routine movement or task that the employee regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.” Thompson v. Orleans Parish Sch. Bd., 00-1230, p. 3 (La.App. 4 Cir. 3/21/01), 786 So.2d 128, 130.

Ms. Wyble testified that the injury to her back began when she lifted the heavy desk onto a rug and moved it across the room, and that the pain began the next day as she was standing up after bending over a very low table, working on an art project. Dr. Montgomery testified that bending over and then standing back up “was the event that precipitated this episode of back pain” and that the motion had “aggravated her preexisting condition and had produced the pain that she was experiencing at that time.”

The WCJ’s determinations as to whether the employee’s testimony is credible and whether she has discharged her burden of proof are factual determinations which we may not disturb on review unless they are clearly wrong. Bruno, 593 So.2d 357. Based on the testimony of Ms. Wyble and Dr. Montgomery, we find no error in the lRWCJ’s determination that Ms. Wyble proved the occurrence of a sudden, actual, identifiable, precipitous event within the meaning of the statute. The objective manifestation of the accidental injury having been identified with particularity as to time, place, and manner, through the testimony of both Ms. Wyble and Dr. Montgomery, it is immaterial that the actions that gave rise to the injury were “benign, everyday activities.” Thus, we find no merit in this assignment of error and affirm the WCJ’s finding that an accident occurred within the meaning of La.R.S. 23:1021(1).

Cause of the Injury

The School next contends that the WCJ erred in holding that Ms. Wyble established a compensable disability where she alleged two separate incidents on two different dates as being the accident. In rejecting this argument, we note that the WCJ specifically found that each of the incidents, on October 21, 2004, and October 22, 2004, constituted an accident under the workers’ compensation law. Thus, the WCJ’s finding was not that the two incidents combined to produce one accident, but that there were two separate accidents on two different days that combined to cause Ms. Wyble’s work-related injury. The School’s argument on this point has no merit.

The School also argues that Ms. Wyble’s back pain was a continuation of the ongoing degenerative process that had begun in 2000 and 2001. It points to the fact that Ms. Wyble had been treated for back pain on February 11, 2000, February 8, 2001, and June 23, 2001. Dr. Montgomery acknowledged his prior treatment of Ms. Wyble’s back complaints, but testified that this back pain in 2000 and 2001 was caused by degeneration and arthritic changes in the spine with the possibility of some | (¡spondylosis in the lower lumbar area, and that the previous difficulties had been resolved prior to the accidents at issue.

Even assuming aggravation of a preexisting medical condition, Ms. Wyble may maintain a claim for temporary total disability benefits if she proves that she sustained an aggravation of that preexisting condition in the October 2004 work-related accidents. A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated, or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689. “When there is proof of an accident and of a following disability, without an intervening cause, it is presumed that the accident caused the disability.” Coley v. Wilson Oil Co., Inc., 620 So.2d 445, 450 (La.App. 3 Cir.1993). As noted above, Dr. Montgomery testified in his deposition that the motion of bending over and standing up had “aggravated her preexisting condition.” He also agreed that the work-related injury “aggravated, accelerated or combined with the preexisting disease that she had in her lower back to produce the disability.”

The WCJ was not clearly wrong in its factual finding that Ms. Wyble discharged her burden of proving that the October 2004 work-related accidents aggravated her preexisting injury. Thus, this assignment of error is without merit.

Penalties and Attorney Fees

An employer who denies benefits without investigating an employee’s compensation claim subjects itself to statutory penalties and attorney’s fees. Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991). “Whether the refusal to pay benefits warrants the imposition of penalties and attorney’s fees is a factual question which|7will not be disturbed in the absence of manifest error.” Dozier v. Garan’s, Inc., 94-1363, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 137, 139. Here, the WCJ found “that defendant was properly notified of this accident and without much investigation at all the defendant promptly made the decision to deny the claim. The Court finds that decision to be arbitrary and capricious and without probable cause.”

This finding is supported by the record. Mr. Buhara testified that he “really didn’t investigate too much.” In his investigation, he spoke with Ms. Rachal, Nell Fon-tenot (a secretary at the School with whom Ms. Wyble had discussed her injury), and Connie Buhara (an employee of the school whom Ms. Wyble had seen at the end of the day on October 22, 2004). These individuals all acknowledged that Ms. Wyble had related to them the same statement of facts concerning the accident, ie., that after standing up from bending over the low table, she had felt something pull in her back. Despite having this information, no one with the School took any further action in determining the validity of Ms. Wyble’s claim for workers’ compensation benefits and medical expenses.

In Brown, v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the supreme court stated:

[T]o determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

In the instant case, although there was evidence that Ms. Wyble had previously experienced back problems, there was no other factual or medical information to reasonably counter the information presented by Ms. Wyble when she requested that |sthe School pay her medical expenses and indemnity benefits. On November 4, 2004, Ms. Wyble’s attorney contacted the School, requesting payment of weekly indemnity benefits and reimbursement of Ms. Wyble’s medical expenses. In making the request, the attorney included copies of Dr. Montgomery’s October 25, 2005 medical report, as well as medical records dated October 27, 2004, and November 2, 2004, from the University Medical Center. The failure to pay workers’ compensation benefits is not excused by an unjustified belief that an employee’s injury does not result from an accident. Nelson, 588 So.2d 350.

The WCJ did not manifestly err in finding that the School’s refusal to pay benefits warrants the imposition of penalties and attorney’s fees. Thus, we find no merit in the School’s assignment of error.

Increased Benefits

Louisiana Revised Statute 23:1171.2 provides that the amount of weekly compensation “shall be increased by fifty percent in any case where the employer has failed to provide security for compensation as required by R.S. 23:1168.” (Emphasis added). The WCJ awarded benefits at the increased rate because the School did not have workers’ compensation insurance and was not self-insured at the time of Ms. Wyble’s injury.

The School argues that the WCJ erred in ordering increased benefits because Ms. Wyble did not include the issue of increased benefits in her pre-trial statements. We find that the School waived its right to assert this argument. At the hearing, the | flSchool timely objected to questions propounded to Mr. Bul-lara concerning the status of the School’s workers’ compensation coverage at the time of the accident. However, the objection was as to relevancy, not whether the questioning expanded the pretrial statements. In response to the objection, counsel for Ms. Wyble stated that the questioning was directed at “whether [the School] had workers’ comp insurance through a self insurance firm or if they had purchased workers’ comp insurance for the enhance [sic] benefit under the law.” The School then stipulated that there was no insurance in place on the date of the accident. The School’s failure to timely object to the line of questioning on the ground that the issue of increased benefits was not listed in the pretrial statement, coupled with the School’s stipulation that there was no insurance in place on the date of the accident, waived any possible objection to Ms. Wyble’s failure to include the issue in her pretrial statement.

This argument has no merit.

Answer to Appeal

The WCJ awarded penalties of $2,000.00 for the School’s failure to pay medical expenses and $2,000.00 for its failure to pay indemnity benefits. Ms. Wyble asks that we increase the total penalties awarded, from $4,000.00 to $8,000.00, by assessing separate penalties for the School’s failure to authorize any medical treatment, its failure to authorize an MRI diagnostic study, and its failure to allow Ms. Wyble her choice of physicians.

The provisions of La.R.S. 23:1201(F) provide for multiple penalties for multiple violations of compensation and medical benefits claims. Fontenot v. Reddell 10Vidrine Water Dist., 02-439 (La.01/14/03), 836 So.2d 14. But here the WCJ concluded that the School’s failure to pay medical benefits was an ongoing violation, which resulted in only one penalty award under the circumstances of the case. Finding no manifest error in this factual determination by the WCJ, we affirm the penalty award and decline to increase it on appeal. See Sigler v. Rand, 04-1138 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, writ denied, 05-278 (La.4/1/05), 897 So.2d 611.

Ms. Wyble also requests additional attorney fees for work performed on appeal. This court has held that held that an appellee who successfully defends a trial court judgment should not be denied additional attorney fees on appeal, even when the relief sought in his answer is denied. Stacks v. Mayflower Transit, Inc., 95-693 (La.App. 3 Cir. 11/2/95), 664 So.2d 566. Here, Ms. Wyble successfully defended the judgment of the WCJ in her favor. We therefore award her $5,000.00 in additional attorney fees.

DISPOSITION

For the foregoing reasons, we affirm the judgment in all respects. We assess the costs of this appeal to the defendant, Aca-diana Preparatory School and award the plaintiff, Marcia Wyble, $5,000.00 in additional attorney fees.

AFFIRMED AND RENDERED.

      . The hearing rules on pretrial procedure in workers' compensation proceedings are found in La.Adm.Code Title 40, Part I, Chapter 60, and the rules on trial procedure are found in La.Adm.Code Title 40, Part I, Chapter 62. Although the School refers us to La.Adm.Code 40:1.2158, it apparently relies on La.Adm. Code 40:1.6201, which provides that "[o]nly those issues listed in the pretrial statements shall be litigated at trial. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties.”

      . Counsel for the School stated in support of its objection that “I don’t see where [whether the School had workers’ compensation insurance is] particularly relevant to what’s alleged in the pleadings, that she had an accident in the course and scope of the employment.”


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Kenny Ray JUNEAU v. STATE of Louisiana, et al.
    No. CA 06-1653.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      James Earl Calhoun, Assistant Attorney General, Alexandria, LA, for Defendant/Appellant, State of LA, Thru The Department of Public Safety & Corrections Kirk LaCour.
    Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, for PlaintiffAppel-lee, Kenny Ray Juneau.
    Laurel Irene White, Assistant Attorney General, Alexandria, LA, for Defendant/Appellant, State of LA, Thru The DOTD Kirk Lacour.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

IvAn employee was injured on the job by a fellow employee through an alleged intentional act. The employee brought suit against the defendants in Avoyelles Parish where he and the fellow employee were domiciled. The defendants consisted of the plaintiff employee’s fellow employee and their employer, the State of Louisiana, through the Department of Public Safety and Corrections.

The defendants filed an Exception of Improper Venue, arguing that West Felici-ana Parish, where the cause of action arose, or East Baton Rouge Parish, the judicial district where the state capitol is located, were the only two venues that would be proper for the plaintiff to bring forth his suit. The trial court denied the defendants’ exception.

The defendants then applied for supervisory writs on this issue to this appellate court, which were denied based upon a finding that there was no error in the trial court’s ruling. Next, the defendants applied for supervisory writs to the Louisiana Supreme Court on the same issue, and that application was also denied.

After a partial summary judgment and a jury trial on quantum, the plaintiff was awarded damages for his injuries. The defendants appeal the judgment asserting that Avoyelles Parish was an improper venue for the trial. We choose to apply the law of the case doctrine and refuse to rehear the argument on venue previously submitted by the defendants. We affirm the trial court’s denial of the defendants’ Exception of Improper Venue and the resulting judgment.

FACTS AND PROCEDURAL HISTORY:

On February 20, 2004, Kenny Ray Juneau (hereinafter “Juneau”) was injured in the course and scope of his employment with Angola State Penitentiary in West Feliciana Parish. He filed suit in District Court in Avoyelles Parish against the State Lof Louisiana, through the Department of Public Safety and Corrections (hereinafter “the State”) and Juneau’s fellow employee, Kirk LaCour (hereinafter “LaCour”; the State and LaCour collectively hereinafter “the defendants”). LaC-our was a domiciliary of Avoyelles Parish.

The defendants filed an Exception of Improper Venue which was denied by the Avoyelles Parish District Court. Writs were taken to and denied by the Third Circuit Appellate Court and the Louisiana Supreme Court on the trial court’s decision to deny the defendants’ exception.

The Avoyelles Parish District Court ruled that it had jurisdiction and that Juneau’s case was not a workers’ compensation matter as he was injured through the intentional acts of LaCour. The trial court granted Juneau’s motion for partial summary judgment. A trial was held before an Avoyelles Parish jury on the issue of quantum only. Juneau was awarded a judgment totaling $669,500.00 against the defendants.

The defendants have appealed the trial court’s judgment on the sole issue of its denial of their Exception of Improper Venue. Applying the law of the case doctrine, we refuse to rehear this argument and, therefore, affirm the trial court’s denial of the defendants’ exception and the resulting judgment.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in denying the exception of improper venue filed by the defendants?

ASSIGNMENT OF ERROR # 1:

The defendants argue that the trial court erred in denying their exception of improper venue. They base their argument upon the contention that the trial court | ¡.erroneously interpreted La.R.S. 13:5104(A). We apply the discretionary law of the case doctrine and refuse to rehear this argument.

PRIOR JURISPRUDENCE:

The statute at issue in this case, La.R.S. 13:5104(A), states:

All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises. (Emphasis added).

Because the legislature chose to use the word “may” in the statute as opposed of its use of the word “shall” as in La.R.S. 13:5104(B), courts in this state have interpreted La.R.S. 13:5104(A) as a permissive venue statute and La.R.S. 13:5104(B) as a mandatory venue statute. Louisiana Revised Statute 13:5104(B) states as follows:

All suits filed against a political subdivision of the state ... shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises. (Emphasis added).

Prior to Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15, the law in this circuit, as well as in the first and second circuit, was that La.R.S. 13:5104(A) did not preclude the application of La.Code Civ.P. arts. 42 and 71 through 85 to find a venue proper for the State of Louisiana or its agencies. In Taylor v. Clement, 02-561 (La.App. 3 Cir. 12/4/02), 832 So.2d 1089, writ denied, 03-38 (La.3/28/03), 840 So.2d 571, this court found no error in using La.Code Civ.P. arts. 73 and 74 to find that Calcasieu Parish was a proper venue for an action against the State, through the legislatively-created Patient’s Compensation Fund administered by the Louisiana Patients’ Compensation Fund Oversight Board.

^Another Third Circuit case discussing whether the general venue statutes could be applied to the State is V.C. Nora, Jr. Bldg. & Remodeling, Inc. v. State through Dept. of Transp. and Development, 93-1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466. In the V.C. Nora case, La.Code Civ.P. art. 76.1 was used to find that Natchitoches Parish was a proper venue for the State of Louisiana, through the Department of Transportation and Development.

The First Circuit Court of Appeal held that “[t]he State’s argument, that La.R.S. 5104(A) contains a mandatory venue provision is disingenuous, and without merit;” and found that Tangipahoa was a proper venue for an action against the State of Louisiana, through the Department of Transportation and Development. James v. State Farm Mut. Auto. Ins. Co., 597 So.2d 555(La.App. 1 Cir.1992).

Moreover, under facts similar to the case at bar, the Second Circuit Court of Appeal found a proper venue under La. Code Civ.P. art. 73 for the State of Louisiana, through the Department of Social Services, in Williams v. State ex. rel. Dept. of Social Services, 35,928 (La.App. 2 Cir. 4/3/02), 813 So.2d 1206 writ denied, 02-1279 (La.8/30/02), 823 So.2d 955. In Williams, Caddo Parish was deemed a proper venue under La.Code Civ.P. art 73 because the State’s co-defendant, a foster guardian, was domiciled there.

COLVIN V. LA PATIENT’S COMPENSATION FUND OVERSIGHT BOARD:

The Louisiana Supreme Court has recently rendered Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd. In Colvin, medical malpractice plaintiffs brought two suits against a state agency, the Patient’s Compensation Fund Oversight Board, in Bossier Parish where both plaintiffs were domiciled. The basis of their suits was a declaratory judgment and monetary relief for negligent adjustment and 15administration of underlying medical malpractice claims. The trial court granted the defendant’s exception of improper venue. The Court of Appeal reversed and remanded. Our Louisiana Supreme Court granted writs and found that Bossier Parish was an improper venue and that the only venue proper for these suits was East Baton Rouge Parish as provided by La. R.S. 13:5104(A) The Colvin court expressly abrogated the established jurisprudence above that allowed for application of the general venue statutes, La.Code Civ.P. arts 42 and 71 through 85, to the State or one of its agencies.

RETROACTIVITY OF THE COLVIN CASE:

Our Louisiana Supreme Court was silent in Colvin as to whether its effects should be applied retroactively. Because of the Louisiana Supreme Court’s silence, should we attempt to determine whether Colvin is to be applied retroactively, we are to use the factors the Louisiana Supreme Court set out in Lovell v. Lovell, 378 So.2d 418, 421-422 (La.1979):

In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretroac-tively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

Rather than making a determination as to the retroactivity of Colvin, Juneau argues that we should apply the discretionary law of the case doctrine to refuse to rehear the defendants’ argument regarding the proper venue. His argument for | (¡application of the law of the case doctrine is based upon essential fairness to all parties because he argues that having to retry his case would be a travesty of justice.

LAW OF THE CASE DOCTRINE:

Justice Tate of the Louisiana Supreme Court in Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973), wrote:

The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law of the case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice. (Emphasis added).

This court, when discussing the law of the case doctrine in Burkett v. UDS Management Corp., 99-82 p. 5 (La.App. 3 Cir. 6/2/99), 741 So.2d 838, 841, writ denied 99-1970 (La.10/15/99), 748 So.2d 1150, quoted the First Circuit Court of Appeal as follows, “ ‘[T]he [law of the case] doctrine is discretionary and should not be applied where it would effectuate an obvious injustice or where the former appellate decision was clearly erroneous.’ Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass’n., 96-1477 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896.”

Justice Tate, then of the Third Circuit Appellate Court, in Keller v. Thompson, 134 So.2d 395 (La.App. 3 Cir.1961), cert. denied (1962) quoted the following comment in Developments in Law—Res Judicata, 65 Harv.L.Rev. 818, 820 (1952):

17[L]aw of the case is limited to rulings of law and to the framework of a single case. Formerly applied as strictly as res judicata, even where an intervening case involving other parties had overruled the prior decision, law of the case now serves as a discretionary guide. (Emphasis added).

We agree with Juneau that we do have available to us, due to the unique timing and procedural history associated with this particular ease, the option of applying the law of the case doctrine. In the case before us there has already been a denial of an exception of improper venue, two denial of writ applications on the issue of improper venue, one by this court in which we stated that we found no error in the trial court’s findings, and a trial on the merits. The facts and procedural history here are distinguishable from a ease simply pending at the trial level or even a case before us on appeal where this particular issue had not been addressed. As such, we will determine whether we should apply the law of the case doctrine to refuse to rehear the defendants’ argument or whether we should apply Colvin retroactively.

RETROACTIVE APPLICATION OF COLVIN v. LAW OF THE CASE

The analysis used to determine whether to apply decision retroactively and the analysis for application of the law of the case doctrine to a case before a court both have a basis in equity. One of the three factors to consider set out in Lovell, 378 So.2d at 422, is “the inequity imposed by retroactive application.” Similarly, one of the reasons for application of the law of the ease doctrine is “the essential fairness to both sides.” Id. at 421. Clearly, we are directed to take into account the equity of our ruling on both parties regardless of which analysis we choose to apply.

Where the two legal concepts differ is in the scope of effect. A determination of whether a case is to have retroactive application is very broad in scope because it is a determination that a particular case will have an effect on all pending cases. | sContrarily, a determination of whether to apply the law of the case doctrine has a scope limited to this particular case.

We will now look to the equities of applying the law of the case doctrine to the case at bar versus applying Colvin retroactively. In order for us to determine which analysis to use, we will analyze the burden on the defendants should we refuse to rehear their argument based upon the law of the case doctrine versus the burden on Juneau of having the judgment vacated and having to start his case anew in a different venue if we were to apply Colvin retroactively.

BURDEN ON THE DEFENDANTS IN APPLYING THE LAW OF THE CASE:

In order for us to determine what burden the defendants would endure should we refuse to rehear their arguments on the proper interpretation of La. R.S. 13:5104(A), we first have to consider the prejudicial effects the defendants suffered by having to litigate in Avoyelles Parish. While Avoyelles Parish would not be a proper venue had the case been filed post-Colvin, we find that for the parties to have litigated in Avoyelles Parish rather than West Feliciana or East Baton Rouge Parish is not an error that rises to a level where it produced any appreciable prejudicial effect on the defendants. On the contrary, the claimed impropriety is a technical one which only arose due to an interpretation of a legislative mandate that occurred late in the judicial process. This is not a situation where the defendants were asked to litigate in a forum where neither of them has any presence. Rather, both defendants, LaCour and the State of Louisiana, clearly have a presence in Avoyelles Parish.

Moreover, the only assignment of error raised by the defendants relates to the propriety of the venue in Avoyelles Parish. There is no assignment of error as to the judgment eventually reached by the judge and jury and, therefore, no argument that |8the judgement, or anything that took place in the trial, was improper. This leads us to the inescapable conclusion that the burden, if any, on the defendants was minimal.

BURDEN ON JUNEAU SHOULD COL-VIN BE APPLIED RETROACTIVELY:

While the burden on the defendants of having to litigate in Avoyelles Parish is minimal, we find that the burden on Juneau to have to begin his case anew in a different venue is great. Juneau has already successfully proven by a preponderance of the evidence that the defendants were at fault for causing his injuries. There is, at minimum, some indicia of Juneau having vested rights as the trial established, by a partial summary judgment and a trial by jury on quantum only, that Juneau is entitled to a $669,500.00 recovery from the defendants. To require Juneau to have to win his case again is certainly a serious burden. Moreover, the expenses associated with conducting a trial are substantial. If we were to now find that venue was improper in Avoyelles Parish in light of Colvin, both Juneau and the defendants would again have to endure that expense.

Not only would a finding of improper venue be a heavy burden on Juneau, it would also be a violation of traditional notions of fairness to Juneau. If we were to find that Avoyelles Parish is now an improper forum based upon the retroactive application of Colvin, we would be allowing the defendants a second chance to have their day in court. Surely if the trial court were to have found that the defendants had no fault under the facts of the case, this case would not be before us. Now, rather than have to abide by a judgment reached in an otherwise fair and equitable trial, the defendants are asking that we vacate that judgment and give them a second chance to be heard. Juneau, in effect, would have to win his case twice while the defendants |inwould only have to defend themselves successfully once. Such a result does not rest comfortably with traditional notions of fair play and substantial justice.

APPLICATION OF THE LAW OF THE CASE DOCTRINE:

We have found that the burden on the defendants is minimal, while the impact on Juneau is great. Because we find that there is a much greater impact on Juneau if we were to find that the trial court erroneously denied the defendants’ Exception of Improper Venue, we instead choose to use the law of the case doctrine to refuse to rehear the argument put forth by the defendants. We find that the application of the law of the case doctrine to the case as bar would not “effectuate an obvious injustice” to the defendants. Instead, we find that to give the defendants a second day in court by applying Colvin retroactively would be an considerable injustice to Juneau.

The application of the law of the case doctrine is proper here because the same parties are making the same arguments regarding the same principles of law. The defendants’ argument in the case at bar is identical to the argument previously heard by this court and our Louisiana Supreme Court in the defendants’ writ applications. The argument put forth by the defendants based upon La.R.S. 13:5104(A) has been decided to lack the necessary weight to overrule the trial court’s denial of their exception and was not reversed by this court or the Louisiana Supreme Court.

We are very mindful of Colvin and feel that our application of the law of the case doctrine to the case at bar is in no way inconsistent with the Supreme Court’s holding in Colvin. By refusing to rehear the defendants’ argument, we are in no way casting judgment upon whether La. R.S. 13:5104(A) should be interpreted as mandatory. Instead, we are denying the defendants the opportunity to have their ^argument heard for the second time on the appellate level based on fundamental fairness to the parties.

CONCLUSION:

The defendants raised one assignment of error, asserting that the trial court committed legal error in denying their Exception of Improper Venue. We choose to exercise our discretion and apply the law of the case doctrine to refuse to rehear the argument put forth by the defendants. As such, we affirm the trial court’s denial of the defendants’ exception of improper venue and the resulting judgment for Juneau against the defendants. We assess all costs of this appeal to the defendants.

AFFIRMED.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Jennifer Renee ROBERSON a/k/a Jennifer Robertson a/k/a Jennifer Thomas.
    No. KA 06-1568.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      James Edward Beal, LA. Appellate Project, Jonesboro, LA, for Defendant/Appellant, Jennifer Renee Roberson.
    James C. Downs, District Attorney-Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Charles Edward Johnson, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

|, On October 20, 2004, the State filed a bill of information charging the Defendant, Jennifer Renee Roberson, a.k.a. Jennifer Robertson a.k.a. Jennifer Thomas, with armed robbery, a violation of La.R.S. 14:64. On April 7, 2005, a jury found the Defendant guilty of first degree robbery. She was subsequently sentenced to twenty years at hard labor to be served without benefit of probation, parole, or suspension of sentence.

The Defendant appealed her conviction and in State v. Roberson, 05-1206 (La.App. 8 Cir. 3/1/06), 924 So.2d 1201, this court vacated the Defendant’s conviction and remanded the matter to the trial court after finding the Defendant was denied effective assistance of counsel.

On April 4, 2006, the bill of information was amended to charge the Defendant with first degree robbery, a violation of La.R.S. 14:64.1. Jury selection began on April 4, 2006, and the Defendant was found guilty of the responsive verdict of simple robbery, a violation of La.R.S. 14:65, on April 6, 2006.

A bill of information charging the Defendant as a habitual offender was filed on April 19, 2006. The Defendant was arraigned on the habitual offender bill on April 24, 2006 and entered a plea of not guilty. Subsequently, on September 8, 2006, the Defendant was sentenced to seven years for simple robbery.

On September 25, 2005, the Defendant was found to be a habitual offender. The judge ordered the Defendant to return to court on October 2, 2006, and the judge indicated he would submit written reasons for his finding and for formal sentencing at that time. The Court was informed by the trial court clerk’s office that the October 2, 2006 hearing was not held nor has it been rescheduled. The Defendant filed a motion for appeal on September 25, 2006.

|2The Defendant is now before this court asserting two assignments of error. Therein, the Defendant contends the evidence was insufficient to convict her of simple robbery and the prosecutor made improper references to her refusal to testify and to other crimes, requiring a mistrial. We find these assignments of error lack merit.

FACTS

On August 31, 2004, the Defendant entered Eckerd Drug Store in Alexandria, placed some deodorant in a plastic bag, and then walked out of the store’s front door without paying for the deodorant. The store’s manager, Victoria Roy, and her assistant, Jackie Fuller, tried to stop the Defendant from leaving, but the Defendant allegedly pushed one of the employees, told the employees “You bitches better stop f_ing with me,” and produced a box-cutter. The employees desisted, and the Defendant left with the deodorant. The store manager contacted the police and, following an investigation, the Defendant was arrested.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are several errors patent.

First, the trial court imposed an indeterminate sentence. The penalty provision for simple robbery provides for the sentence to be imposed with or without hard labor. La.R.S. 14:65(B). The sentencing transcript indicates trial court imposed a sentence of seven years without specifying whether the sentence was to be served with or without hard labor. Although the sentencing minutes indicate the sentence was imposed with hard labor, “it is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Thus, we find the sentence imposed by the trial court is indeterminate and should be vacated. The ease should be remanded for resentencing and the trial court instructed to specify whether the sentence is to be served with or without hard labor. See State v. Duplichan, 06-852 (La.App. 3 Cir. 12/6/06), 945 So.2d 170, State v. Morain, 06-710 (La.App. 3 Cir. 11/2/06), 941 So.2d 720 and State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166.

Second, the trial court failed to delay sentencing for twenty-four hours after it denied the Defendant’s motion in arrest of judgment. Louisiana Gode of Criminal Procedure Article 873 requires a twenty-four-hour delay between the denial of a motion for new trial or a motion in arrest of judgment and the imposition of sentence. We have not considered whether the facts of the present case support an implied waiver of the delay because any error is rendered moot by our recommendation that the Defendant be resentenced. Additionally, any error would be harmless since Defendant' does not argue excessiveness of her sentence on appeal and does not claim she was prejudiced by the lack of delay. State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553; State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

Next, it is questionable whether the trial court advised the Defendant of her right to a hearing as to the habitual offender charge filed against her. Court minutes dated April 24, 2006, indicate the Defendant was arraigned on the habitual offender bill. The transcript of this proceeding is not included in the record; however, the transcript of the subsequent September 8, 2006 sentencing proceeding also indicates the Defendant was previously arraigned on the habitual offender bill. At the September 8, 2006 proceeding, the Defendant was advised that she had been charged |4with a new offense, that she had a right to remain silent and file whatever motions were necessary through her counsel. The court advised her that her hearing on the habitual offender bill was set for September 25, 2006. On September 25, 2006, a habitual offender hearing was held and the Defendant was found to be a habitual offender. The judge ordered the Defendant to return to court on October 2, 2006, and he indicated he would submit written reasons for his finding and for formal sentencing at that time. We were informed by the trial court clerk’s office that the October 2, 2006 hearing was not held, nor has it been rescheduled.

This court has held that the failure to so advise the defendant is harmless when a hearing is held at which the defendant is adjudicated a habitual offender. State v. Pitre, 04-1134 (La.App. 3 Cir. 2/9/05), 893 So.2d 1009. In the present case, a hearing was held, at which the Defendant was adjudicated a habitual offender. Thus, we find the failure to advise the present Defendant of her rights resulted in harmless error.

Finally, the record does not indicate that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the Defendant of the provisions of Article 930.8 at resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, the Defendant contends the evidence was insufficient to convict her of simple robbery. The Defendant states that the evidence is undisputed that she entered the Eckerd Drug Store on August 31, 2004, shoplifted deodorant, and placed it in a plastic bag which she was carrying. The Defendant does dispute that employees of the store tried to stop her from leaving, but were pushed and hit in the stomach as they tried to tear the bag open, and that she pulled a box | ¡gutter out of her pocket as she was leaving and threatened the store manager. The Defendant then discusses the testimony of Corporal Todd Beebe, who testified that the store employees did not indicate that a robbery had taken place or that an item had been taken from the immediate control of the employees.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Weary, 03-3067, p. 17 (La.4/24/06), 931 So.2d 297, 310, cert. denied, — U.S. —, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

The Defendant was convicted of simple robbery. “Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La.R.S. 14:65(A).

The Defendant does not contest the fact that she took deodorant from Eckerd and did not pay for it. The Defendant admitted to the taking in her statement to Detective Robert Distefano. However, the Defendant denied having a box cutter. Notwithstanding, she argues the deodorant was not taken from the immediate control of the store employees, Roy and Fuller, and that no force or intimidation was used during the taking. We will now discuss whether the deodorant was in the immediate control of Roy and Fuller.

In State v. Clay, 576 So.2d 1099 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991), the defendant was found guilty of attempted armed robbery. The defendant entered Delchamps grocery store where an employee observed the defendant remove the contents of a carton of cigarettes and conceal them in his pants Rand socks. The defendant went to the checkout counter in the front of the store and then proceeded to the back of the store, where he was stopped by store employees. At that time, the defendant removed four to six packs of cigarettes from his clothing. The employees then walked the defendant toward a waiting area at the rear of the store. However, the defendant ran toward the front of the store, but was unable to exit because the checkout aisles were blocked. The defendant proceeded to run to the rear of the store where he was cornered by store employees. At that time, the defendant pulled out a gun. The store employees then let the defendant go, and he left the store with the remaining cigarettes.

On appeal, the defendant in Clay argued the state failed to prove that anything of value was taken and that the cigarettes were in the immediate control of the store employee. In upholding the defendant’s conviction, this court stated the following:

The thing of value was taken by the defendant from the store, which as the state contends, was under the immediate supervision and jurisdiction of the employees involved in this incident. Although at the time of the original concealing of the items in his socks and pants, the defendant did not use force or intimidation, he did use a gun in order to perfect the taking; he used a gun to accomplish the taking and escape from the premises when cornered by the store employees.

Id. at 1102.

Based on the language in Clay, we find the deodorant was in the immediate control of Roy and Fuller, as they were employees of Eckerd. We will now determine whether any force or intimidation was used by the Defendant when the taking occurred.

In support of her argument, the Defendant cites State v. Meyers, 620 So.2d 1160 (La.1993). In Meyers, the supreme court held that use of force to retain a stolen item supports a conviction for first degree robbery. The court noted the danger to the |7victim was identical whether the force or intimidation was employed against the victim immediately before or immediately after the actual taking.

Roy, the store manager, testified that she asked the Defendant to take the deodorant out of the bag as the Defendant exited the store and the Defendant refused. Roy then tried to tear the bag open, and the Defendant pushed her in the stomach and left the store. Once outside, the Defendant told Roy and the other employee, Fuller, “You bitches better stop f_ _ing with me.” Fuller testified that the Defendant was mad and angry at that time. Roy also testified that the Defendant was angry, talking loud, and became aggressive when Roy attempted to take the deodorant out of the bag.

The Defendant pushed Roy and used threatening language in an attempt to retain the deodorant. Based on Meyers, we find the Defendant’s actions were sufficient to support the use of force or intimidation element of simple robbery.

The Defendant points out that Corporal Beebe testified that Roy and Fuller did not mention a weapon, being threatened, fearing for their lives, or any concern other than a theft. However, we find the verdict clearly demonstrates the jury chose to believe the testimony of Roy and Fuller. That credibility determination should not be second guessed by this court. State v. Thompson, 06-474 (La. App. 3 Cir. 11/8/06), 943 So.2d 621 (citing State v. Anderson, 03-1601 (La.App. 3 Cir. 5/12/04), 872 So.2d 1251). Therefore, we find the State proved beyond a reasonable doubt that the Defendant took deodorant that was in the immediate control of Roy and Fuller by use of force or intimidation. Accordingly, this assignment of error lacks merit.

| «ASSIGNMENT OF ERROR NUMBER TWO

In her second assignment of error, the Defendant contends the prosecutor made an improper reference to her refusal to testify and to other crimes, requiring a mistrial.

During closing arguments the following comments were made by the State:

We also know that those two young ladies knew who Jennifer Roberson was before she got in there, because Mr. Kutch, in his infinite wisdom, asked the witness, “Had y’all seen her before?” She’s been arrested for shoplifting in there before. Y’all all remember him saying that? Both of those witnesses said yes.

The argument continued as follows:

Those two ladies did not lie to y’all. They have no reason to lie. Everything that they testified to is uncontradicted.
Ms. Roberson is not required to put on a defense; she doesn’t have to testify. But nothing that Joe Kutch asked those two ladies on cross-examination undercuts my case. Nothing. Nothing. They told y’all what happened. Nothing that Mr. Kutch asked those two ladies on cross-examination cast doubt, at all, on what they said. Nothing.

Defense counsel neither objected to these remarks nor moved for a mistrial. The Defendant’s failure to object constitutes a waiver of her objection and precludes appellate review of the issues asserted in this assignment of error. La. Code Crim.P. art. 841. Accordingly, we will not review this assignment of error.

CONCLUSION

The Defendant’s conviction is affirmed. However, the Defendant’s sentence is vacated and the case remanded for resen-tencing, with the trial court being instructed to specify whether the sentence is to be served with or without hard labor. Additionally, the trial court is instructed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentenc-ing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.


author: STEWART, J. BROWN, Chief Judge,

text:
    William Daniel LITTLETON and Carolyn Lahonda Littleton, Plaintiffs-Appellants, v. Dwayne G. ENTERKIN, State Farm Mutual Automobile Insurance Company and Travelers Indemnity Company of Connecticut, Defendants-Appellées.
    No. 41,867-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.
    Rehearing Denied June 14, 2007.

      Carlton Gary Mitchell, Eron Jay Brai-nard, Shreveport, Amy-Elizabeth Brai-nard, for Plaintiffs/Appellants.
    Sean M. Casey, for Intervenor/Appellee.
    Davenport, Files & Kelly, L.L.P. by Ramsey L. Ogg, Monroe, for Defendants/Appellees, Dewayne Enterkin & State Farm Mutual Auto Ins. Co.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd, & Cromwell, L.L.P. by Donald J. Armand, Jr., Shreveport, for Defendant/Appellee, Travelers Indemnity Co. (UM Claim).
    Deal & Wheeler by Philip T. Deal, for Defendant/Appellee, State Farm Mutual Auto Ins. Co. (UM Claim).
    Before BROWN, STEWART, and MOORE, JJ.
   STEWART, J.

hThe question presented in this appeal concerns the validity of uninsured/underin-sured motorist (UM) rejection forms. Plaintiffs, William and Carolyn Littleton, have appealed from, the trial court’s judgment denying their motion for partial summary judgment on the issue of insurance coverage, and granting the motion for summary judgment filed by defendant, Travelers Indemnity Company. For the reasons more fully expressed herein, we affirm the trial court.

FACTS

On April 6, 2002, while driving a truck owned by his employer, Vaughan & Bush, Inc., William Littleton was involved in an accident with a vehicle driven by Dwayne G. Enterkin. Littleton allegedly incurred permanent physical injury.

Enterkin had a policy of liability insurance with limits of $25,000 with State Farm Mutual. In 2001, at the time of the accident, Vaughan & Bush was insured by a primary policy of commercial automobile liability insurance with a liability limit of $1,000,000 issued by Travelers Indemnity Company of Connecticut (“Travelers CT”), and an umbrella policy issued by Travelers Indemnity Company of Illinois (“Travelers IL”) for $2,000,000. In the policy period for 1999 to 2000, Vaughan & Bush was insured by Travelers IL with a liability limit of $5,000,000; thus the liability limit for the Traveler’s IL umbrella had been reduced for the policy period | operating during the time of the accident. Littleton had automobile insurance with State Farm with uninsured motorist (“UM”) limits of $50,000.

On March 5, 2003, Littleton filed a petition for damages naming as defendants Enterkin, State Farm in its capacity both as Enterkin’s liability carrier and as Little-ton’s UM carrier, Travelers CT, and Travelers IL in their capacity as UM insurers of Littleton’s employer, Vaughan & Bush.

Travelers CT and Travelers IL produced UM rejection forms signed by Don Bush, who was president of Vaughan & Bush. On May 19, 2004, Littleton filed a motion for partial summary judgment on the issue of insurance coverage by Travelers CT and Travelers IL and insurance ranking, arguing that the UM rejection forms were invalid. On October 19, 2004, Travelers CT and Travelers IL filed a cross motion for summary judgment. On July 22, 2006, the trial court denied Little-ton’s motion for partial summary judgment, and granted both Travelers’ motion for summary judgment.

Littleton timely appealed.

DISCUSSION

Our supreme court set forth the applicable law in Duncan v. U.S.A.A. 06-363, (La.11/29/06), 950 So.2d 544, as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary | ¡judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on the present cross motions for summary judgment, we will determine whether either party has established there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Roger, 513 So.2d at 1130; A.I. U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). The object of UM insurance is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992); Henson v. Safeco Ins. Co., 585 So.2d 534, 537 (La.1991); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982).
UM coverage is determined not only by contractual provisions, but also by applicable statutes. Roger, 513 So.2d at 1130. Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Daigle v. Authement, 96-1662, p. 3 (La.04/08/97), 691 So.2d 1213, 1214; Henson, 585 So.2d at 537.
This court has held the statute is to be liberally construed. Daigle, 96-1662 at p. 3, 691 So.2d at 1214; Roger, 513 So.2d at 1130. The liberal construction given the UM statute requires the statutory exceptions to coverage be interpreted strictly. Roger, 513 So.2d at 1130. Any exclusion from coverage in an insurance policy must be clear and unmistakable. Daigle, 96-1662 at p. 3, 691 So.2d at 1214; Roger, 513 So.2d at 1130. In accordance with this strict construction requirement, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Tugwell, 609 So.2d at 197.

As stated by this court in Roger, 518 So.2d at 1130:

The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. Accordingly, to effect a valid rejection of the UM coverage under La. R.S. 22:1406(D)(l)(a), the insured or his authorized | representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued or to be issued by the insurer. A writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection. (Citations omitted.)

La. R.S. 1406(D)(l)(a)(ii) provides:

An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. (Emphasis added).

Travelers IL Policy

Bush signed the UM rejection form for the Travelers IL umbrella liability policy on September 23, 1999. The policy was for the years 1999 and 2000 and provided Vaughan & Bush with $5 million bodily injury liability limits, but the policy for the period starting on August 27, 2001, and ending on August 27, 2002, provided Vaughan & Bush with limits of $2 million for bodily injury liability, a $3 million decrease. According to Littleton, this is a change in the limits of the policies, and therefore the 1999 UM rejection form does not apply to the Travelers IL umbrella for 2001 policy. However, we disagree with this proposition.

The appellants cite Barrett v. Progressive Security Insurance Co., 05-310 (La.App. 3d Cir.11/02/05), 915 So.2d 1023, as authority for the idea that it was necessary for Vaughan & Bush to sign a form rejecting $2|5million in excess UM coverage. In Barrett the court held that the change of the liability limits triggered the exception set forth in La. R.S. 22:680, thus a new UM rejection form needed to be executed. However, Travelers IL distinguishes the present case from Barrett, supra, by noting that, in Barrett, the insured increased his coverage limits, and eliminated his UM coverage whereas in the present case the insureds simply decreased their liability coverage limits. Travelers IL reasons that an increase in policy limits requires another UM selection because the insured should be made aware that even an increase in policy limits does not necessarily grant the insured UM coverage, and thus the insured would be allowed the opportunity to knowingly accept or reject UM coverage Moreover, Vaughan & Bush never had UM coverage. Another UM rejection form would have been pointless. Vaughan & Bush did not need to decline coverage it never had. The trial court was correct to grant summary judgment in favor of Travelers IL. Thus, this assignment has no merit.

Travelers CT Policy

There is no evidence, and indeed plaintiffs have not argued, that the liability limits provided by the Travelers CT policy had been altered; therefore the UM rejection form for the Travelers CT policy is valid, and the trial court’s granting of the Travelers CT’s motion for summary judgment was proper.

| .CONCLUSION

For the reasons stated above, affirm the trial court’s judgment granting summary judgment in favor of Travelers Indemnity Company of Connecticut and Travelers Indemnity Company of Illinois. Costs of this appeal are to be borne by appellants.

AFFIRMED.

BROWN, C.J., Dissents with written reasons.

BROWN, Chief Judge,

Dissenting,

_JjA renewal policy was issued changing the limits of liability. Under these circumstances, the legislature has required that a new uninsured/underinsured motorist (“UM”) rejection form must be completed.

Don Bush, as president, signed the UM rejection form for the Travelers IL umbrella liability policy on September 23, 1999. The policy was for the period 1999 to 2000 and provided Vaughan & Bush with bodily injury liability limits of $5 million. Thereafter, Vaughan & Bush changed the policy limits. The policy for the period starting on August 27, 2001, and ending on August 27, 2002, provided Vaughan & Bush with limits of $2 million for bodily injury liability, a $3 million decrease.

La. R.S. 22:1406(D)(l)(a)(ii) clearly and unambiguously sets forth the requirements for renewal policies:

... Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. (Emphasis added).

The majority opinion has rewritten this statute to redefine the word “changes” to mean only increases in the limits of liability. The legislature did not distinguish between “increases” and “decreases” in policy limits but simple and clearly stated that any “change” in policy limits required the completion of a new UM motorist selection/rejection form.

1 ?The majority reasons that it is only an increase in policy limits which requires the execution of another UM selection form because the insured should be made aware that an increase in policy limits does not necessarily grant the insured UM coverage, and thus the insured should be allowed the opportunity to knowingly accept or reject UM coverage. The same reasoning would apply as well for a decrease in policy limits. Even so, UM coverage is provided by statute and embodies a strong public policy. As stated in Duncan v. U.S.A.A., 06-363, (La.11/29/06), 950 So.2d 544, UM statutes must be strictly construed “notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment.”

La. R.S. 22:1406(C)(l)(a)(ii) specifically provides that new UM forms are not required for changes to existing policies “except changes in the limits of liability.” That exception is clear and unambiguous. In this case, changes in the limits of liability were made and a new UM form needed to be executed for the Travelers IL umbrella policy. A new UM form was not executed, and therefore the trial court improperly granted Travelers IL’s motion for summary judgment.

I respectfully dissent.

APPLICATION FOR REHEARING

Before BROWN, STEWART, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

BROWN, C.J., and DREW, J., would grant rehearing.

      . Carolyn Littleton has asserted a claim for loss of consortium.

      . La. R.S. 1406(D)(l)(a)(ii) was changed to La. R.S. 22:680 in 2003, after the accident at issue.

      . Plaintiffs also argue that the UM forms are invalid or inapplicable because Bush did not have the authority to sign the rejection form for Vaughan & Bush. They claim that Bush signed the rejection as an individual, not as a representative of Vaughan & Bush. They also claim the addition of new insured companies to be covered by the policies constitutes a new policy requiring a new UM rejection form. These arguments are clearly without merit. Don Bush was the president of Vaughan & Bush at the time he signed the forms, and there is no evidence that Bush obtained this coverage for his own person. Further, each UM selection/rejection form in question is tied to a specific policy by a policy number which identifies the precise policy at issue and thus the issuing Travelers’ company. No evidence has been submitted to this court to suggest that new people or companies had been added to these policies.

      . La. R.S. 22:1406(D)(l)(a)(ii) was redesignat-ed as La. R.S. 22:680(l)(a)(ii) in 2003, after the accident at issue.


author: LOLLEY, J.

text:
    William JEFFERSON and Rena Jefferson, Plaintiffs-Appellants, v. Allen J. CROWELL, II, d/b/a Ace Automotive & Towing Service, Defendants-Appellees.
    No. 42,177-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    Rehearing Denied June 14, 2007.

      Anthony J. Bruscato, Monroe, for Appellants.
    E. Dustin Bickham, for Appellees.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| plaintiffs, William and Rena Jefferson, appeal the judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, which denied damages for an alleged tortious conversion of a vehicle. For the following reasons, we affirm.

FACTS

Rena Jefferson purchased a 1977 Chevrolet pick-up truck for $1,800 from Alma’s Auto Sales in March 2003. The paperwork Rena received indicated that prior to 2002 the truck was owned by Joseph Buggs of Bernice, Louisiana, and later it was titled to Stevie Barnett in 2002 by the state of Arkansas. Barnett had in turn sold the vehicle to an Arkansas car dealer who sold it to Alma’s Auto Sales on January 21, 2003.

At the time of the sale to Rena, the truck had no permanent license plate but carried a temporary tag which expired on May 18, 2003. However, the Jeffersons failed to maintain the insurance or register the vehicle with the Louisiana Department of Motor Vehicles (the “DMV”). In May 2003, Rena and William left the truck at their son’s house with instructions for their son to start it from time to time.

On November 6, 2003, their son was cited for driving the truck under a suspended license, with no insurance, improper signaling, and was ultimately arrested for resisting an officer. As a result of the son’s arrest, the truck was towed and stored at Ace Automotive & Towing Service, Inc. (“Ace Automotive”).

After receiving the vehicle, Ace Automotive’s records indicate that it reported the storing of the vehicle to “Towing and Recovery Professionals 1 gof Louisiana” which in turn filed an Official Report of Stored Vehicle with the DMV on November 7, 2003, supplying the year, make, model and vehicle identification number of the truck. The DMV reported to Ace Automotive that the last registered owner was Joseph Buggs in Bernice, Louisiana. On November 11, 2003, in accordance with the applicable statutes, Ace Automotive mailed Buggs a “Notice” advising him that it was storing the truck, that charges in the amount of $225.27 were due, and his entitlement to an administrative hearing. A “Final Notice” was mailed to Buggs on December 30, 2003, advising him that the charges now due totaled $805.94 and that he had 15 days to redeem the truck or risk having the vehicle offered for sale pursuant to La. R.S. 32:1719, et seq. When Ace Automotive received no response to the notices, Ace Automotive requested a permit to sell the vehicle from the DMV and forwarded a copy of the original report of stored vehicle, the first and final notice it sent to Buggs, proof of mailing and an appraisal.

On or about April 1, 2004, Rena discovered that the truck was being stored by Ace Automotive. When she went to Ace Automotive, the truck was being advertised for sale for $1,500. Rena informed Allen Crowell, owner of Ace Automotive, that the truck was hers. Crowell indicated that he would have to see documentation. Rena presented him with her documents; however, Crowell did not release the truck to her. On April 6, 2004, Ace Automotive requested another vehicle history on the truck from the DMV. In response, the DMV sent Ace Automotive copies of the [.■¡documentation reflecting that the last owner of the vehicle who had registered the vehicle with the DMV was Buggs.

On April 23, 2004, the Jeffersons’ attorney, Anthony Bruscato, sent a letter to Ace Automotive explaining the Jeffersons’ claim to the vehicle. On April 30, 2004, Ace Automotive sent correspondence to Bruscato explaining its position and questioning the Jeffersons’ failure to take any prior action with regard to the vehicle. The record also contains a copy of a registration issued by the DMV in June 2005 to Leah Neal of Pollock, Louisiana, the individual who had purchased the vehicle at issue from Ace Automotive in March 2005.

On June 23, 2005, William and Rena Jefferson filed suit against Allen J. Cro-well, II, doing business as Ace Automotive & Towing Service, Inc., (“the defendants”) seeking damages for its alleged wrongful conversion of their 1977 Chevrolet pickup. On November 7, 2005, the defendants filed an exception of prescription, claiming that the Jeffersons’ suit was filed more than one year after they knew or should have known of the defendants’ alleged wrongful conversion of the property.

After considering the evidence, the trial court found that prescription did not apply to bar the plaintiffs’ suit, but did find that the Jeffersons’ failure to register the truck with the Louisiana DMV was the sole and proximate cause of their damages. Accordingly, on November 2, 2006, the 1 ¿trial court signed a judgment in favor of the defendants. This appeal ensued.

LAW AND DISCUSSION

The trial court did not provide reasons for its conclusion that the exception of prescription was not applicable to the case at hand. While the exception of prescription was not the basis of the trial court’s dismissal, the exception is properly before this court pursuant to La. C.C.P. art. 2163 and La. C.C.P. art. 928. Thompson v. Cane Gardens Apartments, 442 So.2d 1296 (La.App. 3d Cir.1983); Allen v. Michell, 303 So.2d 214 (La.App. 4th Cir.1974). Because the viability of the plaintiffs’ action hinges on the issue of prescription, we start our analysis by considering whether the trial court erred in finding that the exception was inapplicable.

The Jeffersons’ action is grounded on Ace Automotive’s alleged unlawful interference with the ownership or possession of a movable and is frequently termed an action for “conversion” in Louisiana. A conversion consists of an act in derogation of the plaintiffs’ possessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756 (La.1985).

A conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is Iswithheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel. Dual Drilling Co. v. Mills Equipment Investments, Inc., 1998-0343 (La.12/01/98), 721 So.2d 853.

It is well settled in our law that conversion is a tort and governed by the one-year prescriptive period. La. C.C. art. 3492; Madden v. Madden, 353 So.2d 1079 (La.App. 2d Cir.1977). Thus, because plaintiffs’ action is in tort, they are subject to the one-year prescriptive period pursuant to La. C.C. art. 3492. The prescriptive period commences on the date the aggrieved party has actual or constructive knowledge of the facts that would entitle him to bring suit. Percy v. State, Through E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2d Cir.1985).

The key to any claim of prescription is determining the date when tolling of the prescriptive period begins. Here, Rena testified that she went to visit her son at the correctional institution shortly after his arrest in November 2003 where he mentioned that “a wrecker was going to pick [the car] up.” According to Rena’s testimony, she went to Ace Automotive “a long time after” she had visited her son and located her car on the lot with a “for sale” sign on it. She further testified that when she presented Crowell with the documentation evidencing her ownership of the vehicle, he declined to release the vehicle to her. Notably, Rena did not testify that Ace Automotive, or anyone on its behalf, made any assurances that it would relinquish its right to possess the vehicle and offer it for sale. Furthermore, | fthe letter from Ace Automotive to the Jeffersons’ attorney does not indicate that Ace Automotive was recognizing the Jeffersons’ claim to the truck.

Although we question the Jeffersons’ lack of interest to determine the location of the car after their son’s arrest in November 2003, prescription arguably did not begin to run until April 1, 2004, when the Jeffersons acquired constructive knowledge that Ace Automotive was in possession of the vehicle and intended to dispose of it by offering it for sale. However, it is certain that the Jeffersons had actual knowledge of the alleged conversion with the letter dated April 30, 2004, to the Jeffersons’ attorney that explained Ace Automotive’s position. Nonetheless, even if we were to apply the April 30, 2004 date, the lawsuit was not filed until June 23, 2005, well after the one-year prescriptive period had tolled.

Accordingly, we find that the Jeffersons’ cause of action for damages arising out of Ace Automotive’s alleged conversion of their truck had prescribed when the present suit was filed. Because we find the action by the plaintiffs against Crowell and Ace Automotive is prescribed, we preter-mit discussion of the assignments of error raised by the Jeffersons in their appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing the plaintiffs’ suit for damages is hereby affirmed, although for different reasons. Costs of this appeal are assessed against the Jeffersons.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . Plaintiffs’ suit was brought against Allen J. Crowell “doing business as” Automotive & Towing Service, Inc.; however, Ace Automotive is a separate and distinct juridical entity. In addition, we note that Crowell died before trial. Accordingly, his estate was substituted as defendant and was represented at trial by counsel.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Brandon ROBERT, Appellant.
    Nos. 42,036-KA, 42,037-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Don M. Burkett, District Attorney, Richard Zemry Johnson, Jr., Assistant District Attorney, for Appellee.

      Before BROWN, STEWART, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Brandon Robert, was found guilty at a bench trial of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, and aggravated assault, a violation of La. R.S. 14:37. He was sentenced to ten years at hard labor without benefit of probation, parole or suspension on the firearm charge and six months on the aggravated assault conviction. The sentences were ordered to be served concurrently. Defendant has appealed both convictions and sentences. For the following reasons, we reverse the aggravated assault conviction and vacate the six-month sentence, and affirm the possession of a firearm by a convicted felon conviction and ten-year sentence.

Facts

On April 1, 2006, defendant went to Robert “Bobby” McCrory’s house. Sometime during the visit, defendant allegedly placed a knife to the throat of McCrory and pointed a .22 caliber rifle at him. Shortly after this alleged altercation took place, McCrory’s cousin, Patsy Greer, saw defendant on McCrory’s porch with a rifle in his hand so she called the police. Upon arriving at the scene, the. police officers were informed by Ms. Greer and McCrory that defendant had gone into McCrory’s trailer with the rifle. After 45 minutes of failed attempts to get defendant to exit the trailer peacefully, the officers decided to make a forced entry into the residence. Upon their entry the officers found defendant lying on a couch and immediately apprehended him, confiscating a .22 caliber rifle and a knife from his surrounding area.

| ^Discussion

Sufficiency of the Evidence

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La. C. Cr. P. art 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983).

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or 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.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In the present case, defendant argues that there is insufficient evidence to support a conviction for aggravated assault since the only witness to the alleged aggravated assault testified that he was drunk and did not have any recollection of the incident. We agree.

La. R.S. 14:37 defines aggravated assault as an assault committed with a dangerous weapon. An assault is defined as either an attempt to |scommit a battery or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36.

Defendant’s conviction for aggravated assault was based on McCrory’s initial statement to police and Ms. Greer that defendant had put a knife to his throat and threatened to kill him. Although Ms. Greer and the police officers testified that McCrory made the statement, McCrory himself testified that he did not recall anything from that night.

La. C.E. art. 607(D)(2) permits the introduction of a prior inconsistent statement, even though it is hearsay, for the limited purpose of attacking the credibility of a witness. State v. Cousin, 96-2973 (La.04/14/98), 710 So.2d 1065. Although such evidence is admissible for impeachment, the Louisiana Supreme Court has steadfastly recognized that “when a witness other than the defendant is impeached by the admission of a prior inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant’s guilt.” State v. Ray, 259 La. 105, 249 So.2d 540, 542 (La.1971).

In accordance with La. C.E. art. 607(D)(2), McCrory’s prior inconsistent statement to Ms. Greer and the police can be used to attack his credibility but not as evidence that an aggravated assault occurred. Thus, since neither Ms. Greer nor the police officers were witnesses to an assault and since McCrory’s prior inconsistent statement cannot be used as evidence, there is no evidence to support a conviction for aggravated assault. Accordingly, the conviction for aggravated assault is hereby 14reversed and defendant’s six-month sentence is vacated due to insufficiency of the evidence.

Defendant next contends that there is insufficient evidence to support a conviction for possession of a firearm by a convicted felon since both of the state’s witnesses were intoxicated and because the police merely found the firearm in his presence, not on his person.

To support a conviction of possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. ’ La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,-301 (La.App.2d Cir.09/27/95), 661 So.2d 657.

Prior to this incident, defendant had been convicted of possession of a Schedule II controlled dangerous substance, a felony offense. He was convicted on February 22, 2006, which was within the ten-year statutory period of limitation. Thus, the controverted elements of the offense are whether defendant possessed a firearm and had the requisite intent to commit the offense.

The state may establish the possession element of the offense by proving actual or constructive possession of the weapon. State v. Day, 410 So.2d 741 (La.1982). Constructive possession occurs when a firearm is subject to the defendant’s dominion and control even when the defendant’s dominion and control are only temporary in nature and control is shared. State v. Wesley, 28,941 (La.App.2d Cir.12/13/96), 685 So.2d 1169, writ 5denied, 97-0279 (La.10/10/97), 703 So.2d 603. Constructive possession contains an element of awareness or knowledge that the firearm is there and a general intent to possess it. State v. Evans, 29,675 (La. App.2d Cir.09/24/97), 700 So.2d 1039, writ denied, 97-2942 (La.01/09/98), 705 So.2d 1121. When the perpetrator has not carried the firearm on his person, the state must show that the defendant intended to possess it rather than a mere acquiescence to the fact that there was a firearm in his presence. State v. Neeley, 30,008 (La. App.2d Cir.12/23/97), 704 So.2d 443.

Ms. Greer’s testimony that she saw defendant on McCrory’s porch holding a gun or rifle establishes actual possession. Furthermore, when the police officers entered the premises in which defendant was located, they found the rifle within his reaching distance. This clearly corroborates Ms. Greer’s direct testimony. In addition, it was adequate to prove constructive possession.

While Ms. Greer’s testimony establishing actual possession conflicts with defendant’s testimony that he was holding a pipe and not a gun, it is the trier of fact that assesses credibility and resolves conflicting testimony. Therefore, upon viewing the evidence in the light most favorable to the state, any rational trier of fact could find that the state proved all elements of the offense of possession of a firearm by a convicted felon beyond a reasonable doubt. The evidence presented by the state was sufficient to prove that defendant had actual possession of the weapon, and this possession was enough to sustain a conviction on the charge of a felon in | fipossession of a firearm, La. R.S. 14:95.1. Accordingly, defendant’s conviction for possession of a firearm by a convicted felon is affirmed.

Waiver of Jury

Defendant next argues that his conviction should be reversed and sentence vacated because the state failed to obtain a knowing and intelligent waiver of his right to a trial by jury on the felony charge of possession of a firearm by a convicted felon.

The state, however, argues that defendant did give a knowing and intelligent waiver of his right to a trial by jury on the felony charge and it supplemented the record with the transcript of that waiver. The waiver colloquy reads as follows:

THE COURT: Mr. Robert, your attorney has advised me that you wish to waive your right to a jury trial and be tried by a judge alone. Is that your understanding?
THE DEFENDANT: Yes sir.
THE COURT: And you’re willing to do that?
THE DEFENDANT: Yes sir.
THE COURT: Okay. The waiver of a jury trial is entered for the record at this time and we’ll set it down for a bench trial. We’ll get together and see if we’re all available tomorrow.

Thus, based on the supplemented record it is clearly evident that defendant was advised of his right to a trial by jury and he made a valid waiver before the court.

1 rjDelay in Sentencing

Defendant further contends that the sentence is void because the trial court failed to wait the requisite three-day period between conviction and sentence without obtaining an express waiver as required by La. C. Cr. P. art. 873.

La. C. Cr. P. art. 873 provides in pertinent part:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In support of his argument, defendant cites State v. Barnard, 287 So.2d 770 (1973), in which the court held that when a sentence is imposed prior to the delay provided by law and without a waiver of the delay, the sentence imposed is null and must be set aside. In such instances, the conviction stands, but the case is remanded for resentencing. State v. Davis, 278 So.2d 130 (La.1973); State v. Douglas, 250 La. 480, 196 So.2d 799 (1967).

However, La. C. Cr. P. art. 921 provides that a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), involved a mandatory death sentence case in which the trial judge held no discretion in the term of years to be imposed. The court held that “[d]elay or no delay, |sthe sentence the judge was required to impose would have been the same. Thus, no prejudice could possibly have resulted from the failure of the court to comply with the delay.... Absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of the prematurely imposed sentence is not required.” (Citation omitted). See also State v. Drane, 36,230 (La. App.2d Cir.09/18/02), 828 So.2d 107, writ denied, 02-2619 (La.03/28/03), 840 So.2d 566.

Possession of a firearm by a convicted felon carries a mandatory minimum penalty of 10 years at hard labor and a $1,000 fíne, and a maximum possible penalty of 15 years at hard labor and a $5,000 fine. La. R.S. 14:95.1(B). Since the trial court was obligated to impose a minimum sentence of 10 years, no prejudice could possibly have resulted from the failure of the court to comply with the delay. Accordingly, we find that defendant’s argument is without merit and that the imposed sentence should not be set aside.

Excessive Sentence

In his last assignment of error defendant argues that his sentence of 10 years at hard labor without benefit of probation, parole or suspension of sentence, is grossly disproportionate to the crime allegedly committed and represents nothing more than the needless imposition of pain and suffering. | ¡¡He contends that nothing in the record indicates such a sentence is necessary to avoid further criminal activity by himself or damage to society.

The mandatory minimum sentence for the offense of possession of a firearm by a convicted felon is 10 years at hard labor without benefit of probation, parole or suspension of sentence. Defendant received the minimum sentence, which is not too severe given the circumstances of the case and defendant’s background. Defendant was arrested for the instant offense within one week after being placed on probation for a prior conviction.

Based on the record, there is no constitutional error. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence, and the sentence is not unconstitutionally excessive. We will therefore uphold the sentence imposed by the trial court.

Conclusion

For the foregoing reasons, we hereby reverse defendant’s conviction for aggravated assault and vacate the six-month sentence due to insufficiency of the evidence. Defendant’s conviction and ten-year sentence for possession of firearm by a convicted felon, however, are affirmed.

      . The state does not know why the record that was sent to this court did not include the waiver.

      . The record indicates that in sentencing defendant for the firearm conviction, the trial court failed to impose a ñne as required by La. R.S. 14:95.1(B). Accordingly, defendant's sentence is illegally lenient. La. C. Cr. P. art. 882 provides that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. Since the language of Article 882 is permissive rather than mandatory, and neither the state nor defendant raised an objection, the illegally lenient sentence will not be corrected. State v. Brown, 03-581 (La.App. 5th Cir.11/12/03), 861 So.2d 644, writs denied, 03-3407, 04-0049 (La.04/02/04), 869 So.2d 875, 877.