author: SULLIVAN, Judge.

text:
    MEYER & ASSOCIATES, INC. v. COUSHATTA TRIBE OF LOUISIANA.
    No. CW 2006-1542.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 8, 2007.
    Rehearing Denied Oct. 24, 3007.

      Jimmy R. Faircloth, Jr., Faircloth, Vilar & Elliott, LLC, Alexandria, Louisiana, for Defendant/Applicant, Coushatta Tribe of Louisiana.
    Richard P. Ieyoub, James E. Moore, Jr., Couhig Partners, LLP, Baton Rouge, Louisiana, for Plaintiff/Respondent, Meyer & Associates, Inc.
    Lynn H. Slade, Modrall, Sperling, Roehl, Harris & Sisk, PA, Albuquerque, New Mexico, for Plaintiff/Respondent, Meyer & Associates, Inc.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

|TIn this writ application, the Coushatta Tribe of Louisiana (Coushatta) urges that the trial court erred in determining that it had subject matter jurisdiction in this matter and that its Tribal Court, not the trial court, should determine whether the Tribal Council’s Chairman and/or his designee had authority to waive Coushatta’s sovereign immunity in a series of contractual agreements. For the following reasons, we stay this matter to allow the Tribal Court to make this determination.

Facts

Coushatta is a federally recognized Indian tribe with its reservation located approximately three miles north of Elton in Allen Parish, Louisiana. It is governed by a Tribal Council, consisting of a Chairman and four Council members.

In 2001, Coushatta entered into a contractual relationship with Meyer and Associates, Inc. (Meyer). Meyer, a general consulting engineering firm, contracted to provide professional services to Coushatta in connection with a capital improvement program it had instituted. Their agreement was initially set forth in an Agreement for Professional Services.

On January 14, 2003, Coushatta arid Meyer entered into an Interim & Definitive Supplemental Agreement to Existing Agreement for the development of a Power Program (Supplemental Agreement). In furtherance of Coushatta’s stated interest in developing potential energy projects and a related industrial park to diversify its economic welfare, the Supplemental Agreement provided; for the design, construction, maintenance, and operation of an electric-power-generating facility (Power Plant Project). It revised the Agreement for Professional Services in a number of respects. Thereafter, Memoranda of Agreement were executed which also ^amended the Supplemental Agreement. Pursuant to the terms of the contracts, Coushatta committed to invest millions of dollars in the Power Plant Project.

After disputes arose in the execution of these joint venture contracts, Coushatta filed suit in its Tribal Court on April 26, 2006, against Meyer and Richard T. Meyer, seeking a declaratory judgment, injunc-tive relief, and damages for actions arising out of these contracts. On June 6, 2006, Meyer filed suit in the Fourteenth Judicial District Court for the Parish of Calcasieu against Coushatta. Meyer then filed motions to dismiss Coushatta’s suit with the Tribal Court, challenging that court’s jurisdiction.

Thereafter, on July 7, 2006, Coushatta sought to stay the trial court proceedings on the basis of lis pendens and the exhaustion of tribal remedies doctrine. It also filed an Exception of Lack of Subject Matter Jurisdiction. Coushatta contended that this state court proceeding should be stayed because its suit was pending in Tribal Court before Meyer filed suit in state court and that, pursuant to the federal jurisprudential doctrine of exhaustion of tribal remedies, the Tribal Court should be allowed to determine whether or not Cous-hatta waived its sovereign immunity. Coushatta further asserted that the trial court did not have subject matter jurisdiction because its January 14, 2003 Resolution did not waive sovereign immunity as required by Tribal ordinance.

Meyer urged in opposition that the above-cited contract provisions waived Coushatta’s sovereign immunity, that the Tribal Council representatives who signed the contracts had authority to do so, that the Tribal Court does not have jurisdiction to proceed, and that this litigation is properly before the Fourteenth Judicial District.

Is At a hearing held on October 31, 2006, the trial court denied Coushatta’s request to stay these proceedings on the basis of lis pendens and took the other issues under advisement. In its Reasons for Judgment, the trial court held that the exhaustion of tribal remedies doctrine does not apply to this matter and denied Coushat-ta’s Exception of Lack of Subject Matter Jurisdiction.

Coushatta filed this writ application, urging that the trial court erred in failing to stay this proceeding to allow the Tribal Court the first opportunity to determine whether it validly waived its sovereign immunity and in finding that the trial court had subject matter jurisdiction.

Discussion

Appeal versus Writ

Meyer argues that this writ application should be denied because Coushatta has an adequate remedy through an appeal. We do not agree. If Coushatta’s writ application is not considered, it must participate in these proceedings to a final judgment before it can appeal, and its defense of sovereign immunity will be effectively lost. Guidry v. Shelter Ins. Co., 535 So.2d 393 (La.App. 3 Cir.1988).

Sovereign Immunity of Indian Tribes

Pursuant to federal law, Indian tribes are subject to suit only where authorized by Congress or the tribe has waived its sovereign immunity. Kiowa Tribe of Ok. v. Mfg. Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). In Kiowa, the Court reiterated its long-held position that “[tjribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.” Id. at 760, 118 S.Ct. at 1705. Unless | ¿Congress abrogates this immunity or the tribe waives it, immunity governs contractual claims against the tribe. Id.

An Indian tribe’s waiver of sovereign immunity must be clear and express but need not employ the specific words “waive” and “sovereign immunity” to be effective. C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Ok., 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001). A tribe’s agreement “by express contract, to adhere to certain dispute resolution procedures” and to be bound by those resolution procedures has been held to constitute an explicit waiver of sovereign immunity. Id. at 420, 121 S.Ct. at 1595.

At the heart of this matter are various provisions in the agreements executed by Coushatta and Meyer which they contend address sovereign immunity. The Agreement for Professional Services provided that it would be “governed by the law of the state in which the principal office of the CMC [Coushatta] is located” and that binding arbitration would be utilized to resolve any disputes that arose with' én-forcement of the arbitration being enforced in the Coushatta Tribal Court.

The Supplemental Agreement was the subject of a lengthy and detailed Resolution passed by the Tribal Council the same date which authorized the Tribal Chairman “to negotiate and execute all necessary Agreements with Meyer and .Associates, Inc.” and “to negotiate and execute ... all Other Agreements as may be necessary to Develop and Implement the [Power Plant Project].” It also authorized the Tribal Chairman to designate someone to act in his stead in conjunction with the Power Plant Project. The Resolution did not, however, specifically waive sovereign immunity.

|KThe Supplemental Agreement revised the Agreement for Professional Services in a number of respects, one being that it and amendments thereto would be “interpreted, governed and construed under the laws of the State of Louisiana.” In the Supplemental Agreement, the parties also “irrevocably consented] to the jurisdiction” of Louisiana state courts and agreed that any dispute arising under the contract would be heard “by a court of competent jurisdiction in the Parish of Allen, or any other Parish mutually agreed to, State of Louisiana,” and Coushatta “specifically waive[d] any rights, claims or defenses to sovereign immunity” with regard to the Agreement. The subsequent Memoranda of Agreement provided that, if either party had to file suit, it had to be “filed in the Fourteenth Judicial District Court, State of Louisiana.”

Coushatta contends that it did not waive its sovereign immunity and is not subject to suit in state court because the January 14, 2003 Resolution does not satisfy its Judicial Code’s requirements for waiver of sovereign immunity. Title 1, Section 1.1.05 of Coushatta’s Judicial Code provides:

The Coushatta Tribe of Louisiana, as a sovereign government, is absolutely immune from suit ... Nothing in this code shall be deemed to constitute a waiver of the sovereign immunity of the Coushatta Tribe of Louisiana except as expressly provided herein or as specifically waived by a resolution or ordinance approved by the Tribal Council specifically referring to such.

Coushatta urges that the trial court should have abstained from exercising jurisdiction and not addressed the issue of waiver of sovereign immunity in light of federal policy considerations which favor allowing tribal courts to determine whether they have jurisdiction to adjudicate matters pending before them.

Meyer urges that Coushatta waived its sovereign immunity by executing the Agreement for Professional Services, the Supplemental Agreement, and the |fiMemoranda of Agreement and that there is no need to apply the exhaustion of tribal remedies doctrine. It contends that the trial court’s judgment is correct and should be affirmed.

Exhaustion of Tribal Remedies Doctrine

The federal government favors and encourages tribal self-government, and in furtherance of these policies, the Supreme Court has held that a tribe whose jurisdiction has been challenged should have the first opportunity to determine the validity of such a challenge. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). In Iowa, 480 U.S. at 16, 107 S.Ct. at 976 (quoting National Farmers, 471 U.S. at 857, 105 S.Ct. at 2454), the Court stated, “[rjegardless of the basis for jurisdiction, the federal policy supporting tribal self-government directs a federal court to stay its hand in order to give the tribal court a ‘full opportunity to determine its own jurisdiction.’ ” This policy favors abstention by non-tribal courts to allow self-government and self-determination by Indian tribes of which tribal courts play an important role. Nat’l Farmers, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818. The policy allows tribal courts to be the first to respond to the invocation of or a challenge to their jurisdiction. It is prudential not jurisdictional. Therefore, it does not establish adjudicatory authority over lawsuits filed in tribal courts. Id. A tribal court’s determination that it had jurisdiction is reviewable after tribal remedies have been exhausted. Id.

There are exceptions to the application of the doctrine. It does not apply in situations where: “an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in bad faith,’ ... or where the action is patently violative of |7express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to chai-lenge the court’s jurisdiction.” Id. at 856, 105 S.Ct. at 2454, fn. 21 (internal citations omitted). It also does not apply “[w]hen ... it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana [v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ]‘s main rule,” and the exhaustion requirement “would serve no purpose other than delay.” Strate v. A-1 Contractors, 520 U.S. 438, 459, 117 S.Ct. 1404, 1416, fn. 14, 137 L.Ed.2d 661 (1997).

Comity

Being a prudential rule, the doctrine is applied as a matter of comity. Nat’l Farmers, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818; Iowa, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10. Comity is a discretionary policy where “the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign not as a rule of law, but rather out of deference or respect. Courts extend immunity as a matter of comity to foster cooperation, promote harmony, and build goodwill.” Levert v. Univ. of Ill., 02-2679, p. 11 (La.App. 1 Cir. 9/26/03), 857 So.2d 611, 618, writ denied, 03-2994 (La.1/16/04), 864 So.2d 635 (citations omitted). Unless there is an abuse of discretion by the trial court, the decision not to extend comity should not be overturned. Id.

The Supreme Court has not specifically held that the exhaustion of tribal remedies doctrine applies to state courts. However, the Court stated in Iowa, 480 U.S. at 16, 107 S.Ct. at 977 (emphasis added), that “[adjudication of such matters' by any nontribal court ... infringes upon tribal law-making authority, because tribal courts are best qualified to interpret and apply tribal law.”

|/The Louisiana Supreme Court has not addressed this issue, but prior decisions of this court appear to favor application of the doctrine where appropriate. In Ortego v. Tunica Biloxi Indians of Louisiana d/bla Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), 865 So.2d 985, writ denied, 04-587 (La.4/23/04), 870 So.2d 306, a former nonmember tribal employee sued the tribe for workers’ compensation benefits. The tribe filed an exception of lack of subject matter jurisdiction, arguing that the state court should abstain from deciding the issue on the doctrine of exhaustion of tribal remedies and that there was no waiver of sovereign immunity. Another panel of this court noted two factors which weighed against application of the doctrine in that proceeding: the plaintiffs claim for workers’ compensation was grounded in Louisiana law, not tribal law; and, suit was initially filed with the Louisiana Office of Workers’ Compensation, not in the Tuni-ca-Biloxi tribal court. The panel determined that those circumstances did “not lend themselves to an unbending application of the doctrine of exhaustion of tribal remedies as. propounded by the Supreme Court in National Farmers Union and Iowa Mutual, where claims were pending in tribal court before suit was filed in federal court,” Id. at 998, and concluded that the tribe’s defense of tribal sovereign immunity was the appropriate basis for dismissal not exhaustion of tribal remedies. See also, Webb v. Paragon Casino, 03-1700 (La.App. 3 Cir. 5/12/04), 872 So.2d 641, where the findings and reasoning of Ortego were adopted by a second panel of this court.

Unlike Ortego and Webb, the following circumstances present here favor application of the exhaustion doctrine: 1) a contract between a tribe and a nonmember, not a Louisiana statute, is at issue; 2) the stated purpose of the contract is to provide economic support for Coushatta; 3) suit was filed first by Coushatta in | flits Tribal Court; and 4) interpretation and application of a tribal ordinance bears on the determination of whether the tribe waived sovereign immunity.

Courts of other states have also applied the exhaustion doctrine, finding that federal policy considerations favor application of the doctrine when suit is pending in tribal court and suit is then filed in state court. See Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 01-1256 (7/17/03), 265 Wis.2d 64, 665 N.W.2d 899; Drumm v. Brown, 15809 (7/28/98), 245 Conn. 657, 716 A.2d 50; and Klammer v. Lower Sioux Convenience Store, C6-95-279 (Minn:App.8/l/95), 535 N.W.2d 379.

Meyer assigns a number of reasons why the doctrine should not be applied here. First, it points out that the doctrine is discretionary and is prudential not jurisdictional. It also contends that the structure of the Coushatta ordinance negates the need to observe the exhaustion doctrine. It argues that the introductory phrase in the sentence, “[n]othing in this Code shall be deemed to constitute a waiver of this sovereign immunity, except as expressly provided herein or as specifically waived by a resolution or ordinance approved by the Tribal Council specifically referring to such,” renders the provision illogical and without application here because it applies only to other provisions of the Judicial Code.

We agree that the sentence is not well constructed; however, we do not believe Meyer’s interpretation is accurate. Furthermore, we find this argument supports application of the exhaustion doctrine to allow the Tribal Court to determine the Tribal Council’s intent when it enacted the ordinance.

Meyer also argues that the Tribal Court does not have jurisdiction over it. In Montana, 450 U.S. at 564, 101 S.Ct. at 1258, 67 L.Ed.2d 493 (1981), the Supreme Court held that as |ina general rule tribal courts do not have civil jurisdiction over nonmembers, stating: ’“exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” The Court has identified two exceptions to this general rule. The first is a tribe’s regulation “through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Id. at 565, 101 S.Ct. at 1258. The second is a tribe’s “inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 566, 101 S.Ct. at 1258.

Coushatta. contends that its claims against Meyer satisfy these exceptions because the contracts are a consensual relationship between it and Meyer and because it has expended a significant investment under the contracts, which has a direct effect on the economic security and/or wealth of the tribe. Meyer disagrees and argues that the choice of law and forum selection provisions of the contracts evidence that it consented to trial in the Fourteenth Judicial District Court only, not Coushatta’s Tribal Court; therefore, the consensual relationship exception of Montana does not apply. Meyer seems to argue that Supreme Court decisions after Montana require that a nonmember affirmatively consent to a tribe’s jurisdiction for the consensual relationship exception to apply. This argument is without merit.

In Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), the Supreme Court clarified that for the consensual relationship exception to apply in the In context of the imposition of a tax or regulation there must be . a nexus between the consensual relationship and the tax or regulation imposed by the tribe. Accordingly, “[a] nonmember’s consensual relationship in one area ... does not trigger tribal civil authority in another.” Id. at 656, 121 S.Ct. at 1833-34. The Supreme Court held that a nonmember hotel owner whose hotel was situated on non-Indian fee land, i.e., privately-owned land within reservation boundaries, could not be required to collect a hotel occupancy tax from its hotel guests, finding the hotel owner did not consent to collect the tax simply because he was an “Indian trader” authorized to conduct commerce with the tribe under federal law. There was no nexus between the hotel owner’s consensual relationship with the tribe as Indian trader and the hotel owner’s relationship with his nonmember hotel guests, which was the basis for the tax.

Atkinson reiterated that Montana requires only that the consensual relationship stems from “commercial dealing, contracts, leases, or other arrangements,” Montana, 450 U.S. at 565, 101 S.Ct. at 1258, and demonstrated that the nature of the relationship with the tribe determines whether the nonmember consented to tribal jurisdiction. It does not support Meyer’s argument.

Strate, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661, also does not support Meyer’s position. In Strate, two individuals were involved in an automobile accident on a portion of a North Dakota state highway that was situated within an Indian reservation. Neither individual was a member of the tribe whose reservation was the site of the accident. The plaintiff sued the defendant in tribal court to recover for injuries she sustained as a result of the accident. The defendant, who contracted with the tribe to perform landscape work on the reservation, filed suit in federal court seeking a judgment declaring that the tribal court did not have jurisdiction to adjudicate the matter. The [iaSupreme Court concluded that there wa$ no nexus between the defendant’s consensual relationship with the tribe (contract to provide landscape work) and the suit by the plaintiff. The tribal court did not have subject matter jurisdiction, and the defendant did not have to wait until the those proceedings concluded to challenge that court’s jurisdiction.

In Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), the Supreme Court held that a tribal court could not assert jurisdiction over a civil rights claim under 42 U.S.C. § 1983 filed by a tribe member against a state official, who executed a search warrant on the tribe member’s home with regard to suspected state law violations outside the reservation, because tribal courts are not courts of general jurisdiction and regulation of state officers in that situation was not essential to the tribe’s self-government or internal relations. The Supreme Court again concluded that the tribal court did not have subject .matter jurisdiction, and there was no need to adhere to the exhaustion doctrine because the only purpose it would serve was to delay the matter.

The relationships in these cases are not comparable to the relationship at issue, here, and the holdings therein do not support Meyer’s claims. There is a direct nexus between- Coushatta and Meyer’s consensual, contractual relationship and Coushatta’s suit in Tribal Court which is based on that relationship. Therefore, if Coushatta did not waive its sovereign immunity, the Tribal Court has jurisdiction to adjudicate Coushatta’s claims .as explained in Montana and Atkinson, and it is appropriate to allow the Tribal Court to address the issue of waiver first.

Subject Matter Jurisdiction

Meyer also urges that particular provisions of the contracts, i.e., the arbitration provision of the Agreement for Professional Services and the choice of law and | ^choice of forum provisions of the contracts Supplemental Agreement and Mem-oranda of Understanding, waive Coushat-ta’s sovereign immunity. Therefore, the trial court has subject matter jurisdiction, and it is not necessary for the trial court to defer to the Tribal Court.

The exhaustion doctrine was not at issue in any of the cases cited by Meyer. Therefore, while discussion in those cases addressed the validity of waivers of sovereign immunity, they are distinguishable from this case and do not support Meyer’s claim that the exhaustion doctrine should not be applied by this court.

■ Additionally, actual authority was not at issue in three of the cases Meyer cites in support of its position. In C & L Enterprises, 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 628, the Supreme Court held that an arbitration clause which provided for enforcement of any arbitration award in accordance with the laws of Oklahoma waived sovereign immunity; however, the Court specifically noted that authority to waive sovereign immunity was not at issue. The issue in Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 03-0517 (Colo. App. Div.II 8/12/04), 107 P.3d 402, was apparent authority, not actual authority, to waive sovereign immunity, as the tribe did not have any procedure for waiving sovereign immunity, and in Bradley v. Crow Tribe of Indians, 02-474 (4/15/03), 315 Mont. 75, 67 P.3d 306, proof of the contract waiving sovereign immunity, not authority to waive sovereign immunity, was at issue.

In Smith v. Hopland Band of Pomo Indians, A093277 (1st Dist. 1/9/02), 95 Cal. App.4th 1, 115 Cal.Rptr.2d 455, a tribal chairman’s authority to waive sovereign immunity was at issue, but the entire contract containing the waiver was presented to and accepted by the entire tribal council, rendering the issue of authority to waive immunity moot. Consequently, the court’s lengthy discussion of |uother factors regarding sovereign immunity was dicta. Lastly, in Warburton/Buttner v. Tunica-Biloxi Tribe of Louisiana, D040158 (4 Dist. 11/26/02), 103 Cal.App.4th 1170, 127 Cal.Rptr.2d 706, the determination of waiver was made in the context of whether the plaintiff should be allowed to conduct discovery to prepare an opposition to the tribe’s exception of lack of subject matter jurisdiction, not in the context of the merits of the exception itself.

Meyer also points to the affidavits of the former Tribal Council Chairman and former Tribal Council members in which they aver that waivers of sovereign immunity were customarily included in contracts without specific resolutions authorizing them, that they had plenary power to govern Coushatta, and that they knew Cous-hatta had to waive its sovereign immunity to do business with nonmembers to support its position that the contracts waived Coushatta’s sovereign immunity. Cous-hatta refutes the import of Meyer’s arguments with evidence establishing that nonmembers doing business with the Tribe regularly obtained specific resolutions waiving sovereign immunity as provided in the Judicial Code. These arguments and the contradictory supporting evidence favor allowing the Tribal Court to determine whether Coushatta waived its sovereign immunity in its contracts with Meyer.

Res Judicata

Meyer urges that the Tribal Court’s determinations will be res judicata as a reason for not extending comity in this matter. We do not view this as a valid reason to refuse to allow the Tribal Court the opportunity to determine whether Coushatta waived its sovereign immunity. Furthermore, as previously stated, a tribal court’s exercise of jurisdiction is reviewable. Nat’l Farmers, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818.

11SConclusions

Louisiana and its courts clearly have an interest in seeing that their citizens are protected when they contract with Indian tribes. By the same token, Indian tribes and their courts are interested in insuring that they will be able to contract with nonmember businesses for the products and services needed to sustain the tribe and to allow the tribe to grow and prosper, as evidenced by Coushatta’s Power Plant Project. Unfair treatment of nonmembers in Tribal Court will discourage legitimate business concerns from doing business with Coushatta.

For the reasons discussed herein, we conclude that the doctrine of exhaustion of tribal remedies applies to the facts of this case. Therefore, we stay these proceedings to allow the Coushatta Tribal Court to determine whether Coushatta Tribe of Louisiana waived its sovereign immunity in the contracts with Meyer. If the Tribal Court determines Coushatta did not waive its sovereign immunity, proceedings will continue therein, and Meyer may seek a review of that ruling. If the Tribal Court determines Coushatta did waive its sovereign immunity, the parties can return to the Fourteenth Judicial District Court and proceed therein.

WRIT GRANTED.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Wanda Carol Johnson BARTON v. John Vernon BARTON.
    No. 2006 CA 2032.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 8, 2007.

      Thomas B. Waterman, Ponchatoula, Counsel for Plaintiff/Appellee Wanda Carol Johnson Barton.
    Cassandra Butler, Independence, Counsel for Defendant/Appellant John Vernon Barton.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| ¾John Vernon Barton appeals the judgment of the 21st Judicial District Court for the Parish of Tangipahoa, denying his motion to set aside its prior order dismissing this action in its entirety, including his original rule for reduction of child support, on the grounds of abandonment. For the following reasons, we vacate the prior order, reverse the subsequent judgment, and remand the case for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

John Vernon Barton and Wanda Carol Johnson Barton are the parents of a minor son born on March 1, 1994. They subsequently married on July 16, 1995. On April 12, 1999, Ms. Barton filed a petition for divorce and incidental matters, including child custody and support. Dr. Barton filed an answer and reconventional demand on June 10,1999.

On July 12, 1999, the trial court rendered judgment awarding the parties provisional joint custody, with Ms. Barton designated as provisional domiciliary custodian. Dr. Barton was ordered to pay Ms. Barton interim monthly child support, the amount to be determined following submission of a child support worksheet. On July 30, 1999, the trial court signed another judgment awarding Ms. Barton interim monthly child support in the amount of $1,724.00, retroactive to the date of filing of her petition.

A judgment of divorce was rendered on February 28, 2000. On the same date, the trial court amended its prior child support judgment to reduce the amount of monthly child support to $1,355.39.

By judgment signed on October ■ 12, 2001, Dr. Barton was found in contempt of court for failure to pay child support and to maintain health and dental insurance for his minor son.

laOn July 31, 2002, Dr. Barton filed a rule for reduction of child support. He alleged that his employer’s contract to provide hospital emergency room physician services had been terminated and that he had not been gainfully employed since December 20, 2001, and sought reduction of child support retroactive to that date or the date of filing of his rule. The hearing on the rule was fixed for September 16, 2002. On the date of the hearing neither party appeared, and the hearing was continued without date.

On August 22, 2003, Dr. Barton filed a motion for contempt against Ms. Barton, alleging that she had failed to produce certain documents that were the subject of an earlier order and that she had refused him reasonable visitation with their minor son. An order was submitted with the motion. In addition to seeking to have the contempt motion set for hearing, Dr. Barton also sought to set his rule for reduction of child support for hearing.

On August 25, 2003, the trial court ordered the continuance of the motion for contempt and Dr. Barton’s rule for reduction of child support to October 17, 2003. A notation of the continuance was written on the unsigned order submitted with Dr. Barton’s contempt motion.

According to the trial court’s minute entries, on October 17, 2003, Dr. Barton’s rule for reduction of child support was continued to November 10, 2003. On the latter date, however, the rule was continued without date.

On June 13, '2005, Ms. Barton filed a combined rule for contempt and for past due child support, alleging that Dr. Barton was 24 months in arrears for child support. The hearing on the rule was set for July 21, 2005, but was subsequently continued twice before being assigned for hearing on October 21, 2005.

On October 13, 2005, Dr. Barton filed a rule for contempt, alleging that Ms. Barton had denied him visitation with their minor son. The rule Rwas set for hearing on October 21, 2005. Ón October 24, 2005, Ms. Barton filed a motion to continue the hearing on Dr. Barton’s contempt rule, and the trial court signed an order continuing that hearing to November 21, 2005.

On October 21, 2005, .the trial court heard Ms. Barton’s rule for contempt and past due child support. ■ Neither Dr. Barton nor his counsel made an appearance. The trial court ruled in favor of Ms. Barton, and found Dr. Barton in contempt. The trial court’s judgment sentenced Dr. Barton to 90 days in the parish prison for contempt and found him liable for past due child support of $36,595.53, with legal interest and attorney fees of $2,500.00.

On November 2, 2005, Dr. Barton filed a motion for reconsideration, seeking to set aside the contempt judgment on the grounds that his counsel believed all matters scheduled for hearing on October 21, 2005 had been continued. The motion for reconsideration was set fof hearing on November 21, 2005.

On November 21, 2005, Dr. Barton was taken in custody on an outstanding instanter attachment issued at the time of the contempt hearing, and his rule scheduled for hearing that date was continued to January 19, 2006. The trial court’s minute entry reflected that the rule set for hearing was Dr. Barton’s rule -for reduction of child support rather than his motion for reconsideration of the contempt judgment.

On December 5, 2005, Ms. Barton filed an ex parte motion to dismiss the “suit” as abandoned, on the grounds that no step in its prosecution or defense had been taken since July 31, 2002. A supporting memorandum, however, characterized the abandoned action as Dr. Barton’s rule for reduction of child support, filed on July 31, 2002.

|sOn December 8, 2005, the trial court signed a consent judgment on the joint motion of the parties, resolving the judgment of contempt and for past due child support and releasing Dr. Barton from the custody of the sheriff.

■ Dr. Barton filed a memorandum in opposition to Ms. Barton’s ex parte motion to .dismiss on December 9, 2005. On December 12, 2005, the trial court signed an ex parte order dismissing the “suit” as abandoned “as of July 31, 2002 [sic ].”

On January 19, 2006, the hearing of Dr. Barton’s rule for reduction and a motion to compel discovery filed by Ms. Barton were continued to February 21, 2006.

On February 21, 2006, by consent of the parties, the trial court heard an oral motion by Dr.' Barton to set aside the ex parte order of December 13, 2005. Following argument of counsel, the trial court ruled that it would deny the motion. On the same date, Dr. Barton filed an “amending” motion for reduction of child support, in order to amend his original rule for reduction to seek reduction retroactive to May 2003. On February 24, 2006, the trial court signed an order permitting such “amendment,” but noted in a “per curiam” comment that Dr. Barton’s “retroactive reduction request may have been abandoned.”

On March 13, 2006, Dr. Barton filed a new motion to reduce child support. That motion was fixed for hearing on May 15, 2006.

On May 10, 2006, the trial court signed its judgment denying Dr. Barton’s oral motion to set aside the ex parte order of dismissal for abandonment. This appeal followed.

| ^ASSIGNMENT OF ERROR

Dr. Barton contends the trial court erred in rendering judgment dismissing his July 31, 2002 rule for reduction of child support as abandoned, as action was taken in the prosecution of the rule on August 25, 2003.

DISCUSSION

A “cause of action” has been defined as the 'operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru, South, Inc., 616 So.2d 1234, 1238 (La.1993). The basic elements of a cause of action for modification of child support are set forth in La. C.C. art. 142 and La. R.S. 9:311(A). Louisiana Civil Code article 142 provides that “[a]n award of child support may be modified if the circumstances of the child or of either parent materially change.” Under La. R.S. 9:311(A), the party seeking the modification must demonstrate “a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.” To be “material,” the change in circumstances must have “real importance or great consequences for the needs of the child or the ability to pay of either party.” La. R.S. 9:311, Comment (a)—2001. Pursuant to La. R.S. 9:315.21, modifications of child support awards are generally retroactive to the date of judicial demand, except for good cause shown. Casey v. Casey, 02-0246, p. 4 (La.App. 4th Cir.5/22/02), 819 So.2d 1108, 1111.

fyThe question arises as to whether a motion or rule for modification of child support, filed in a civil action of divorce, is an “action” subject to abandonment under La. C.C.P. art. 561(A), which provides, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment....
(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days -of the date of the clerk’s mailing of the order of denial.

A civil action is “a demand for the enforcement of a legal right,” and is “commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction.” La. C.C.P. art. 421. A motion is considered a pleading. See La. C.C.P. art. 852. The term “action” is used in La. C.C.P. art. 561 instead of “demand” to make it clear that it applies to incidental actions as well as to the principal action. See La. C.C.P. art. 561, Official Revision Comment (b)—1960. In James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La.4/3/02), 813 So.2d 335, 338, the supreme court squarely held that the term “action” used in La. C.C.P. art. 561 is not necessarily limited to the entire lawsuit or judicial proceeding. Several .“actions” may therefore be present in the same lawsuit or judicial proceeding. James, 01-g056s at p; 5, 813 So.2d at 339; Satterthwaite v. Byais, 05-0010, p. 7 (La. App. 1st Cir.7/26/06), 943 So.2d 390, 396.

Upon a material change in circumstances, a parent has the legal right to make a judicial demand for appropriate modification of a child support award. Accordingly, a motion or rule to modify a child support award would certainly appear to constitute an “action” subject to abandonment. Prior jurisprudence has in fact assumed, without detailed analysis, that La. C.C.P. art. 561 applies to an action seeking an increase in child support. See Griffin v. Campbell, 00-00468, p. 3 (La.App. 3rd Cir.11/2/00), 772 So.2d 370, 372. And» this court has treated judgments denying motions or rules for modification of child support .awards as final judgments subject to review on appeal. See, e.g., Bates v. Bates, 04-1930 (La.App. 1st Cir.9/23/05), 923 So.2d 701, and Richardson v. Richardson, 02-2415 (La.App. 1st Cir.7/9/03), 859 So.2d 81. By reviewing such judgments under our appellate jurisdiction, we have implicitly recognized that they are final judgments that determine the merits of “actions.” See La. C.C.P. art. 1841.

Here, the trial court’s decision that Dr. Barton’s original rule for reduction for child support was abandoned is incorrect. The record supports the conclusion that on August 22, 2003, Dr. Barton submitted an order seeking to have his original rule for reduction re-fixed for hearing, although he agreed on August 25, 2003 to continue its hearing from that date to October 17, 2003. Interpreting his submission of the- order liberally in favor of. maintenance of the action, as we' are required to do, we conclude that such action constituted a step, albeit the sole step, in the prosecution of Dr. |nBarton’s action for reduction of his child support obligation, and that his original rule was not abandoned under the provisions of La. C.C.P. art. 561. See Thibaut Oil Co., Inc. v. Holly, 06-0313, pp 5-6 (La.App. 1st Cir.2/14/07), 961 So.2d 1170, 1174. The trial court’s entry of an order of dismissal on Ms. Barton’s ex parte motion, pursuant to La. C.C.P. art. 561(A)(2), was therefore incorrect. The order also inadvertently provided for the dismissal of all proceedings, rather than only the rule for reduction of child support. Accordingly, we must vacate the order of dismissal, reverse the trial court’s judgment of May 10, 2006, denying Dr. Barton’s motion to set aside the prior ex parte dismissal, and remand this matter for further proceedings.

We emphasize, however, that the above conclusion does not preclude a finding that “good cause” otherwise exists under La. R.S. 9:315.21 to limit the retroactive effect of any judgment reducing the amount of child support. In Lloyd v. Lloyd, 94-0421 (La.App. 1st Cir.12/22/94), 649 So.2d 32, the mother first filed a motion to increase child support on September 10, 1991. The original hearing on that motion was continued to October 18, 1991, at the request of the father’s counsel, but did not take place on that later date due to the withdrawal of that counsel. Over six months later, the mother filed a second motion to increase child support. The second motion to increase child support was continued on several occasions by both parties, the last being prompted by the withdrawal of the mother’s original counsel. The mother’s new counsel filed a third motion to increase child support a year after the second motion. The trial court ultimately rendered judgment increasing child support, but effective only from the date of filing of the third motion. In doing so, the trial court determined that the first motion was in effect abandoned, and that the mother had consented to the multiple Lncontinuances of the hearing on the second motion before filing the third motion. This court noted that “[cjourts have some discretion to limit or bar the retroactive scope of a modification of a support order.” Lloyd, 94-0421 at p. 6, 649 So.2d at 35. Based upon the numerous continuances relating to the first and second motions, we found “good cause existed in the record for the trial court to determine the effective date for the increase in child support” to be the date of filing of the third motion. Lloyd, 94-0421 at p. 6, 649 So.2d at 36.

Not only was Dr. Barton twice held in contempt and ordered to pay past due child support after the filing of his original rule, but he faded to actively seek any relief based upon the grounds of his original rule prior to those hearings. The judgments of child support arrearages and contempt were not appealed and thus became final and executory. Dr. Barton also expressly or implicitly consented to the multiple continuances of scheduled Inhearings on his original rule within a period of over three years after its filing. That course of conduct, and inaction, absent extenuating circumstances or explanation, might constitute “good cause” under La. R.S. 9:315.21(E) for the trial court to conclude in its discretion that any decrease in Dr. Barton’s child support obligation should not be retroactive to the date of his original judicial demand.

Again, we simply hold that Dr. Barton’s rule was not abandoned under La. C.C.P. art. 561, and that the trial court must afford Dr. Barton a sufficient opportunity to be heard on the issues presented by his rule, including the issue of the effective date of any reduction in child support.

DECREE

The trial court’s ex parte order of December 13, 2005, dismissing these proceedings in their entirety, is vacated. The trial court’s judgment of May 10, 2006, is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to the plaintiff-appel-lee, Wanda Carol Johnson Barton.

ORDER OF DECEMBER 12, 2005 VACATED; JUDGMENT OF MAY 10, 2006 REVERSED AND CASE REMANDED.

      . The effective date of abandonment stated in the order is obviously incorrect, in that La. C.C.P. art. 561(A)(2) unequivocally states that the dismissal of the action is effective "as of the date of its abandonment,” rather than retroactively to the date of its filing.

      . From a conceptual standpoint, a parent's cause of action to modify an award of child support can only come into existence after the time of that award, since its existence is dependent upon changed circumstances "between the time of the previous award and the time of the motion for modification of the award.” La. R.S. 9:311(A).

      . It is unnecessary for us in this case to expressly determine the nature of a judgment denying modification of child support as interlocutory, final and appealable, or partially final for purposes of appeal, as the trial court’s judgment inadvertently but expressly dismissed the entire “suit.” As worded, the judgment at issue is indisputably final and appealable.

      . Prior to its amendment in 1993, La. R.S. 9:310 addressed the retroactivity of child support judgments. This subject is now addressed by La. R.S. 9:315.21, which provides the following, in pertinent part:
      A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
      B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
      (2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
      C. Éxcept for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
      E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand. (Emphasis supplied.)


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Verdell RANKIN, Appellant.
    No. 42,412-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project, by G. Paul Marx, Lafayette, Steven- R. Thomas, Mansfield, for Appellant.
    Don Burkett, District Attorney, Richard Zemry Johnson, Jr.', Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

hThe defendant, Verdell Rankin, was convicted of second degree battery and sentenced to three years at hard labor. He appeals. We affirm the defendant’s conviction and sentence. We-remand the matter to the trial court to correct the minutes pertaining to the defendant’s sentence.

FACTS

On August 12, 2005, the defendant went to the' home of his girlfriend, the victim in the instant case. She was present at the house with another man. There was a physical altercation'between the defendant and the victim. The defendant dropped the victim off at a hospital.

At the hospital, the victim was treated for facial injuries and a broken finger. She gave the police two statements. In both statements, she told the police that the defendant inflicted her injuries. She stated that the victim was armed with a handgun which he used to pistol-whip her. According to the victim’s statement to the police, the defendant also threatened her and her male companion with the gun.

The defendant was charged with aggravated second degree battery, possession of a firearm by a convicted felon, and aggravated burglary.

Following a bench trial, the trial court convicted the defendant of the responsive verdict of second degree battery on the' charge of aggravated second degree battery, but found him not guilty on the charges of possession of a firearm by a convicted felon and aggravated burglary. The trial court ordered .that a presentence investigation (PSI) report be prepared. After reviewing the PSI report, the trial court sentenced the defendant to 1 gimprisonment at hard labor for three years with credit for time served. The defendant’s motion to reconsider was denied.

The defendant appealed.

SUFFICIENCY OF EVIDENCE

The defendant argues that the evidence was insufficient to support his conviction because there was no evidence other than the victim’s prior inconsistent statements. to support a finding that he intentionally inflicted serious bodily injury upon her.

The state contends that the trial testimony of the victim, the police officer, and the defendant himself also supported the trial court’s finding and, therefore, the trial court did not err in considering the impeached testimony of' the victim as a basis for conviction.

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 20011658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art.' 821, does not provide the appellate court with a vehicle to substitute its own 13appreciation of the evidence for that of the fact finder. State v. Pigford, 20050477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to the judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Morrison, 40,852 (La.App.2d Cir.4/12/06), 927 So.2d 670.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in. the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

■|4To convict a person of second degree battery, the state must prove the following elements beyond a reasonable doubt: (1) the intentional use of force or violence upon the person of another; (2) without the consent of the victim; and (3) when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1.

Testimony

Within a day of the altercation at her home, the victim gave the police two statements in which she detailed how the defendant entered her bedroom where she was lying in bed with another man watching television. According to her statements, the defendant became angry, calling her “bitch” and “whore.” While threatening the lives of the victim and her male companion, he brandished a firearm. The male companion fled the house wearing only his underwear. The victim also said that the defendant struck her about the head with the gun. During the beating, her finger was broken.

When she testified at the defendant’s trial, the victim recanted her prior accounts, initially denying that she even talked to the police. She denied that the defendant had a gun that night or that he beat her and her male companion with a gun. While admitting that the defendant had slapped her once in the house when he found her with another man, she testified at one point that the injuries that required her to go to the hospital occurred when she fell off her front porch while talking to the defendant. However, at another point she stated that the defendant hit her because he was mad and that she ended up having to go to-the emergency room because of that.

| ¡When confronted with her statements by the prosecution, the victim admitted that the defendant hit her in the house. Although she testified at trial that she didn’t know if he pointed a gun or a stick at her that night, she admitted telling the police that he had a black handgun. She then testified that he did not have a gun at her house. She also admitted that the police detective interviewing her asked if she ever fell to the ground and she said no.

Officer Shane Adams of the Mansfield Police Department testified that he took a taped statement from the victim at her hospital bedside shortly after she was admitted. They talked again that afternoon, at which time she provided even more detailed information. She told him that the defendant confronted' her and her male companion in her bedroom. According to the victim, he threatened their lives and struck the other man. He also hit her in the face with a black handgun which she was able to describe as having a magazine in the bottom.

The officer also testified that the victim called him the day the defendant was arrested, wanting to drop the charges. He asked her if she had been truthful in her statements to him; she said that she had. He then told her that he had no interest in dropping the charges and referred her to the district' attorney’s office. He testified that she never indicated that she fell off a porch.

The defendant testified that the victim’s son invited him in the house and that he found the victim in the bedroom with another man. At one point, he said that he was upset by the other man’s presence;' later he said | fithat-the victim only assumed he was upset. He admitted slapping the victim once in the house because the room was dark and he saw “a shadow coming at” him.' He insisted that he did not hit her that hard and that her injuries were sustained when she fell off the porch while running after him as he was leaving the house. He insisted that he cared about the victim but he described her as a chronic liar who would do things like calling the police and making false reports.

Discussion

The defendant contends that the trial court erred in allowing the victim’s prior statements to the police to be used, not just as impeachment evidence, but as substantive evidence of the defendant’s guilt, in contravention of State v. Cousin, 1996-2973 (La.4/14/98), 710 So.2d 1065.

Previously, this court recognized that when a nonparty witness’s credibility was attacked through prior inconsistent statements incriminating the accused, the evidence was generally not admissible for its assertive value as substantive evidence of guilt. State v. Jones, 41,299 (La.App.2d Cir.11/9/06), 942 So.2d 1215, citing La. C.E. art. 607(D); State v. Owunta, 1999-1569 (La.5/26/00), 761 So.2d 528; and State v. Cousin, supra. However, the jurisprudence relied on by this court predated the 2004 revision of La. C.E. art. 801(D)(1)(a). Prior to 2004, this provision stated:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) Inconsistent with his testimony, and was given under oath subject to the penalty of perjury at the accused’s preliminary examination or the accused’s prior trial and the witness was subject to cross-examination by the accused;

17Acts 2004, No. 694, § 1, however, amended La. C.E. art. 801(D)(1)(a), which now provides:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement; ...

Therefore, while prior inconsistent statements can be used to attack credibility under La. C.E. art. 607(D)(2), pursuant to the 2004 revision to La. C.E. art. 801(D)(1)(a), such nonhearsay statements are also admissible for their assertive value. George W. Pugh et ah, Handbook on Louisiana Evidence Law, pp. 484, authors’ note no. 9 to La. C.E. art. 607 and pp. 560-561, authors’ note 3 to La. C.E. art. 801 (2007). This change in the law appears to have been partially intended to address cases of domestic violence (such as this one), which are among the most fertile grounds for noncooperative nonparty witnesses.

To support a conviction of second degree battery, the evidence must support a finding that the offender intentionally inflicted serious bodily harm. La. R.S. 14:34.1 defines serious bodily harm as meaning bodily injury which involves unconsciousness, extreme physical pain or protracted Land obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. The severe injuries to the victim’s face and/or the disfigurement to her finger, therefore, must be shown to have been inflicted by the defendant. The defendant and the victim both readily admitted that a battery was committed but denied that the defendant was responsible for the serious injuries the victim suffered.

During the trial, the victim was asked to read verbatim the statements she made to the police, which were inconsistent with her trial testimony, and she was given the opportunity to admit her previous statements. Before these prior statements can be accepted as nonhearsay, and therefore probative, additional evidence must also corroborate the facts sought to be proved by these prior inconsistent statements.

The other facts admitted by the defendant and the victim at trial support the victim’s earlier statements that the defendant was responsible for all of her injuries. Both testified to a scenario where the defendant found the victim in bed with an undressed man and became angry. The situation was so volatile that the undressed man fled in his underwear, leaving his pants and shirt behind. The victim also testified that the defendant hit her in the head because he was mad and she had to go to the emergency room because of that. Also telling was the fact that she never mentioned falling off the porch in her statements to the police, which logically would have been mentioned had such an incident occurred and caused such serious injuries.

|We note that no objections were raised to the use of the prior inconsistent statements and, therefore, it is impossible to determine, whether the statements were allowed in strictly for impeachment purposes or for their assertive value as well. It was incumbent upon the defendant to lodge an objection if he desired a limitation on the use of the statements. Having failed to make the objection, it can only be assumed that the statements were admitted both for impeachment purposes and their assertive value. Furthermore, the record does not show an abuse of the trial court’s discretion in deeming the statements admissible under La. C.E. art. 801(D)(1)(a). Because the statements supply sufficient evidence for the defendant’s conviction of second degree battery, the defendant’s conviction is affirmed.

This assignment is therefore without merit.

ERROR PATENT

The trial court’s minutes erroneously state that the defendant’s sentence was imposed without benefit of probation, parole, or suspension of sentence. The transcript of the sentencing hearing, however, indicates that the sentence was not imposed without benefits. Also, such a condition would be illegal for second degree battery. La. R.S. 14:34.1. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.' 1983). Accordingly, we instruct the trial court to amend the minutes to accurately reflect the sentence actually imposed.

^CONCLUSION

The defendant’s conviction and sentence are affirmed.

The trial court is directed to amend the minutes of sentencing to correctly reflect that the defendant’s sentence was not imposed without benefit of parole, probation or suspension of sentence.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . La. C.E. Art. 607(D)(2) provides:
      D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
      (2) Other extrinsic evidence, including pri- or inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Joe MINGO, Jr., Appellant.
    No. 42,407-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Brian Barber, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

hThe defendant was convicted of possession of a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(C). He was sentenced to four years at hard labor. The defendant now appeals. The defendant’s conviction and sentence are affirmed.

Facts

On November 1, 2005, narcotics agents from the Shreveport Police Department and members of the Caddo Parish Sheriffs Office executed search warrants for two residences in the 3800 block of Mayfield Street. Controlled purchases of cocaine had been made from the house located at 3821 Mayfield Street. The owner of that residence was Danny Mingo, the defendant’s brother.

Agent David Recchia, a narcotics agent, was assigned to the perimeter team. He testified that as he arrived to execute the search warrant, he observed the defendant exit the driver’s side of a pick-up truck parked in the driveway of Danny Mingo’s residence. The defendant left the vehicle and walked to a house nearby and sat on the porch in an attempt to distance himself from the vehicle. Recchia also observed a female seated on the passenger side of the truck and another man in close proximity to the truck.

Recchia gave orders for everyone to show their hands and subsequently made direct contact with the vehicle and the subjects. Inside of the pick-up truck, he observed a yellow plate on the dashboard, directly in front of the steering wheel. The plate contained a residue of a substance that was field tested positive as cocaine, a razor blade, and a dollar bill. The | aunidentified female passenger told Recchia that she came to the residence to obtain cocaine and smoke it with the defendant. Although no drugs were found on the female passenger, a crack pipe was discovered on the floorboard on the passenger side. Recchia testified that the female passenger was not arrested because she provided pertinent information to the officers.

In a bill of information, the defendant was charged with possession of a Schedule II controlled dangerous substance and convicted after a jury trial. He was sentenced to four years at hard labor. , The defendant now appeals.

Discussion

The defendant first assigns as error the sufficiency of the evidence for conviction. The defendant argues that the state failed to show that the defendant was in actual or constructive possession of the cocaine because no evidence was presented to show that the cocaine was subject to his dominion and control or that he had knowledge of its existence.

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 LaJjC.Cr.P. art 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App.2d Cir.8/18/99) 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

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.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 40:967(C), in part, prohibits one from “knowingly and intentionally” possessing a Schedule II controlled dangerous substance. |4Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule 11(A)(4).

The knowing and intentional possession of cocaine is a general intent crime. State v. Clift, 339 So.2d 755 (La.1976); State v. Young, 05-702 (La.App. 5th Cir.2/14/06), 938 So.2d 90; State v. Odle, 02-0226 (La.App. 3d Cir.il/13/02), 834 So.2d 483, writ denied, 03-0625 (La.6/20/03), 847 So.2d 1219. A requirement of general criminal intent means that the circumstances indicate that the accused “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband. Constructive possession is sufficient to convict. Constructive possession is defined as having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987. Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra; State v. Allen, 34,103 (La.App.2d Cir.12/22/00), 774 So.2d 1212. Thus, with this general intent crime of possession, the evidence must show that the defendant must have averted to the fact that he had the cocaine within his dominion and control.

A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in | ¡^determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910.

Narcotics Agents Recchia and Carlos Walker testified that they arrived at a residence located at 3821 Mayfield to execute a narcotic search warrant. The agents previously conducted two controlled purchases from the residence. Recchia testified that as they drove up, he observed a pick-up truck in the driveway of the residence. He stated that he witnessed the defendant exit the driver’s side of the vehicle while a female remained in the passenger seat. The plate on the dash in the vehicle contained the residue of a substance that field tested positive as cocaine. An expert witness from the North Louisiana Crime Lab also verified that the substance involved was cocaine.

Defense witness Marvin Davis testified that the defendant was standing in the yard, not at or near the truck, when the police arrived at the scene. Davis stated that he had been talking to the defendant for a few minutes before the police pulled up, and that the defendant was not in the truck during that time. He further testified that police officers did not find any drugs in the pick-up truck or in the May-field residence. The jury, however, heard testimony that Davis was taken into custody due to an outstanding warrant for simple battery, and that he had a prior felony | fiConvietion for cocaine. The jury as the trier of fact heard the testimony of all of the witnesses and obviously chose to believe the two police officers instead of Davis.

The defense also argues that there was a reasonable doubt that the drugs could have belonged to the female passenger. However, the woman did not testify and her statement to the police to the contrary was allowed into evidence.

The officer described the truck from which the defendant exited as located in the driveway facing the street. He did not lose sight of the defendant who was immediately apprehended, and the officer could observe through the windshield the actions of the woman on the passenger side of the vehicle. A photo introduced into evidence shows the location of the cocaine on a yellow, dinner-size plate on the dash immediately above the steering wheel. It is clear from the photo that anyone seated in the vehicle on the driver’s side would be aware of the plate and cocaine. Although the defendant was never seen holding or touching the plate, the circumstantial evidence indicates that by his location in the driver’s seat of the vehicle he had dominion and control over the cocaine. By the evidence of his flight from the vehicle, the jury could also infer his guilty knowledge of possession of the drug.

From this evidence, beyond a reasonable doubt, the jury could conclude that the defendant had constructive possession of cocaine. He had access to it, and it was easily within his reach. Packages of controlled dangerous substances found in a car near the driver generally are found to |7be within the driver’s constructive possession. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993); State v. Stanley, 34,437 (La.App.2d Cir.2/28/01), 780 So.2d 1207.

This assignment is therefore without merit.

In support of his argument that the sentence imposed is excessive, Mingo contends that the trial court cited no factors which supported the imposition of the four-year sentence. He contends that the trial court acknowledged that there was no agreed sentence imposed.

The defendant did not filé a La. C. Cr. P. art. 881.1 motion to reconsider the sentence in the trial court; thus, this court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Duncan, 30,453 (La.App.2d Cir.02/25/98), 707 So.2d 164.

In reviewing a sentence for ex-cessiveness, this court must first determine whether there has been compliance with La.C.Cr.P. art. 894.1 in the imposition of sentence. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. State v. Price, 40,437 (La.App.2d Cir.1/25/06), 920 So.2d 389. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the | ^offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A second inquiry is made to determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. If it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, the sentence is considered unconstitutionally excessive as violative of La. Const, art. 1, § 20. Both inquiries must be made to determine if the sentence imposed is proper. State v. Lobato, 603 So.2d 739, 751 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

In sentencing the defendant, the trial court referenced a deal between defense counsel and the district attorney whereby the defendant would receive four years with credit for time served, with the caveat that the state would forgo the filing of a multiple bill against the defendant. La.C.Cr.P. art. 881.2(2) provides that a defendant cannot appeal or seek review of a 1sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. While the defendant did not enter into a plea agreement in the instant case, the record reflects that the trial court imposed the sentence in conformity with the agreement between the district attorney and defense counsel. Moreover, the defendant was present at the sentencing hearing and did not object to the sentence. Thus, in light of the sentencing agreement and the imposition of sentence by the trial court in accordance with that agreement, there was no necessity for the trial court to articulate reasons for the sentence under La.C.Cr.P. art. 894.1. Further, the sentence imposed was within the statutory maximum of 5 years for the offense of possession of a Schedule II CDS.

In any event, the defendant had an extensive criminal history which in-eludes prior felony convictions for aggravated criminal damage to property, possession of a Schedule II controlled dangerous substance and aggravated battery. These prior felony convictions were before the court by virtue of state habitual offender bill and an obvious consideration by the trial court for the near maximum sentence imposed. Based on these considerations, the sentence imposed is supported by the record and is not constitutionally excessive. This assignment is therefore without merit.

At the time of sentencing, the trial court failed to advise the defendant of the prescriptive period for applying for post-conviction relief under La.C.Cr.P. art. 930.8. This defect has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for re-sentencing. La.C.Cr.P. arts. 921, 930.8(C); State v. Cox, 604 So.2d 189 (La.App. 2d Cir]in1992). The district court is directed to give the defendant written notice of the prescriptive period for applying for post-conviction relief within 10 days of the rendition of this opinion and file proof of the defendant’s receipt of such notice in the record of the proceedings. State v. Mock, 602 So.2d 776 (La.App. 2d Cir.1992); State v. Smith, 600 So.2d 745 (La.App. 2d Cir. 1992).

Decree

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

AFFIRMED.

      . The trial court imposed the four-year sentence in conformity with an agreement between the state and defendant. The state withdrew its habitual offender bill of information, and the defendant withdrew his pqst-verdict motions for new trial and acquittal or reduction in verdict.