author: PICKETT, Judge.

text:
    STATE of Louisiana v. Michael Jason MILLER.
    No. 10-237.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      John Foster DeRosier, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for State-Appellee, State of Louisiana.

      Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant Appellant, Michael Jason Miller.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

FACTS

[ i At the end of January 2007, the victim, eighty-five-year-old Hazel Bergeron, answered a knock at her door. She testified a man was at her door wearing a mask made out of “funny papers” and he asked to come in and use the telephone because he had car trouble. Mrs. Bergeron said she recognized him because he had done repair work at her house in December 2006. She knew his voice, and part of his face was exposed.

Mrs. Bergeron did not let the defendant, Michael Jason Miller, in, but he broke the door and entered. Another man also came in. She thought it was someone else who had done repair work there. She screamed, and the defendant stuffed a towel in her mouth. After getting $5 and a blank check, the defendant put a knife to her throat, and he also threatened to come back with a gun if she reported the crime. The defendant beat Mrs. Bergeron severely. During the ordeal, she lost consciousness, so she did not remember being beaten. The defendant left her on the floor.

On February 2, 2007, at about 12:20 a.m., one of Mrs. Bergeron’s sons, Dr. Joseph Bergeron, came to the house. He had just arrived from out of town to attend a family wedding. Mrs. Bergeron was curled up on the floor, in a pool of her own blood. Her face was heavily bruised, and there was blood on her head. Dr. Berger-on, who had experience as an emergency room physician, estimated that his mother had lain there for more than thirty hours.

Mrs. Bergeron was hospitalized first in Lake Charles, then in Beaumont, Texas. She had an intra-cranial injury, a broken pelvis, and hypothermia. The police | ¡.investigation at her home revealed that the telephone lines had been cut, and her door was damaged. Also, police learned that the defendant had tried to use Mrs. Bergeron’s credit card at a local Wal-Mart.

On June 17, 2008, the Calcasieu Parish District Attorney’s Office filed a bill of information charging the defendant with attempted second degree murder and aggravated burglary. His wife was also charged but was not tried with him, and thus is not a subject of this appeal. His first trial ended in a mistrial on May 7, 2009.

A new jury was selected on June 22-24, 2009. On the latter date, it began hearing evidence. On June 26, the jury found the defendant guilty as charged.

On October 28, 2009, the trial court heard argument regarding the defendant’s motions for new trial and for acquittal. It denied both motions. The defendant then waived sentencing delays, and the court conducted a habitual offender proceeding. At the close of that hearing, the court found the defendant to be a second habitual offender.

The court sentenced the defendant to seventy-five years at hard labor for attempted second degree murder and sixty years at hard labor for aggravated burglary, with the sentences to run concurrently. The court also revoked the defendant’s probation from an earlier conviction. On October 30, 2009, the defendant filed a motion to reconsider sentence, which the court denied on the same date.

The defendant now appeals his convictions, assigning four errors.

ASSIGNMENTS OF ERROR

1. The state failed to establish all of the elements of proof that Michael Jason Miller was guilty of attempted second degree murder.

|a2. The prosecution and conviction of Michael Jason Miller for both attempted second degree murder and aggravated burglary violated his constitutional protection against double jeopardy.

3. The trial court erred in denying Michael Jason Miller’s motion to remove Mrs. Morris Hunter as a juror.

4. The trial court erred in denying Michael Jason Miller’s objection to Dr. Joseph Bergeron providing hearsay testimony.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find one error patent concerning the advisement of the time limitation for filing an application for post-conviction relief.

The trial court provided insufficient information regarding the time period for filing an application for post-conviction relief. The court minutes of sentencing state, “The Court advises the defendant of the prescriptive period for filing post conviction relief and he states he understands.” However, the sentencing transcript indicates the defendant was not fully advised of the time limitation of La.Code Crim.P. art. 930.8. After initially advising the defendant that he would have three years to file an application for post-conviction relief, the court stated:

I’m sorry, two years, two years, in which to file your application for post-conviction relief and that’s in article 930 of the Code of Criminal Procedure and subsequent articles. I mean 930 et seq. And you can ask your attorney for more information about that.

Louisiana Code of Criminal Procedure Article 930.8 states that the time period for filing an application for post-conviction relief is two years, which begins to run when the judgment of conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. It is not clear from the trial court’s comments that the two year prescriptive period begins to run only when the conviction and sentence |4are final. The trial court is instructed to inform the defendant of the correct provisions of article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues the evidence adduced at trial was insufficient to support his conviction for attempted second degree murder. Specifically, he contends the evidence does not demonstrate that he had the specific intent to kill Mrs. Bergeron. Specific intent to kill is an essential element of attempted second degree murder. See, e.g., State v. George, 09-143 (La.App. 3 Cir. 10/7/09), 19 So.3d 614.

The analysis for sufficiency claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The defendant acknowledges that Mrs. Bergeron suffered serious injuries, and concedes that the evidence could show that he had the intent to hurt her. However, he Largues there was no testimony that Mrs. Bergeron’s injuries indicated he had the specific intent to kill her.

Second degree murder is defined in La. R.S. 14:30.1, which states, in pertinent part:

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

Attempt is defined in La.R.S. 14:27, which states, in pertinent part:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Specific intent is an element of second degree murder. “[Sjpecific intent to inflict great bodily harm may support a conviction for murder, but in order to support a conviction for attempted murder, only specific intent to kill is sufficient.” State v. Mitchell, 99-3342, p. 5 (La.10/17/00), 772 So.2d 78, 82 (citation omitted).

“Specific intent is a state of mind and as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant.” State v. Williams, 383 So.2d 369, 373 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981); see also La.R.S. 14:10(1).

In order to convict the defendant for the crime of attempted second degree murder, the state carried the burden of proving beyond a reasonable doubt that the defendant had the specific intent to kill Mrs. Bergeron and committed an act for the purpose of and tending directly toward the accomplishment of killing Mrs. Bergeron. The defendant in this matter first cut Mrs. Bergeron’s phone lines to prevent her from calling for assistance and then forcibly entered her home. After demanding valuables |fiand money, he stuffed a towel in her mouth to prevent her from screaming, held a knife to her throat and threatened to kill her, and beat her severely. The jury heard Mrs. Bergeron’s testimony as to what happened to her that night. They had the opportunity to view the photographs that reflected the severity of the beating she received. Her son, a physician, described his mother’s condition when he found her, lying in a pool of blood and vomit, where she had been for at least 30 hours. Although prior to this attack she had been fully mobile and able to see to all of her own needs, this attack rendered her totally incapacitated. Dr. Steven Hedlesky, who treated Mrs. Bergeron at the emergency room, described her condition when she arrived at the hospital for treatment. He testified that when she arrived she was in critical condition and was in danger of immediate death. She was suffering from hypothermia and had multiple serious injuries and unstable vital signs. She suffered from a traumatic sub-arachnoid hemorrhage, i.e., bleeding around the brain, from a traumatic injury to her head. She also had pelvis fractures and facial contusions. He specifically testified that her injuries were life threatening.

Considering all the evidence, including the severity of the beating the defendant inflicted upon Mrs. Bergeron and the life-threatening nature of her injuries, we find there was sufficient evidence for the jury to conclude that the defendant had the specific intent to kill Mrs. Bergeron.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues his convictions for attempted second degree murder and aggravated burglary constituted double jeopardy. He points out that the bill relied upon the battery of the victim to support the ^aggravated burglary charge, and argues that said battery was also the substance of the attempted murder charge.

This court has recently discussed double jeopardy, as follows:

Both the United States and Louisiana Constitutions prohibit double jeopardy; the imposition of multiple punishments for a single criminal act. See U.S. Const, amend. V; La. Const, art. 1, § 15. See also, La.Code Crim.P. art. 591. Louisiana courts use two methods, the “Blockburger Test” and the “same evidence test”, to determine whether double jeopardy exists. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court interpreted the Fifth Amendment’s prohibition of double jeopardy and enunciated the following test to be employed by the federal courts, as follows:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
In interpreting Article 1, Section 15 of the Louisiana Constitution, Louisiana courts have also used the broader “same evidence test” which provides:
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense ■under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Cotton, 00-850, p. 5 (La.1/29/01), 778 So.2d 569, 573, quoting State v. Steele, 387 So.2d 1175, 1177 (La.1980).

State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, 438.

The defendant appears to rely upon the “same evidence” test, stating, “[i]n the present case, there is only evidence of the underlying battery.” The crime of aggravated burglary is found at La.R.S. 14:60, which states, in pertinent part:

| ^Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

In order to find the defendant guilty of aggravated burglary, the jury had to find evidence that proved beyond a reasonable doubt that the defendant made an unauthorized entry into Mrs. Bergeron’s home, while she was present, with the intent to commit a felony or a theft therein and that he was 1) armed with a dangerous weapon, or 2) after entering her home armed himself with a dangerous weapon, or 3) committed a battery upon her while there.

Mrs. Bergeron testified that the defendant forcibly entered her home, breaking in the door after she denied him entry. After entering the home he demanded her valuables. She told him where her wallet was and he removed the $5.00 from her wallet and demanded more money telling the victim “you know you have more than that.” She then gave him a coin purse which she said contained, among other things, an undetermined number of one-hundred-dollar bills. The defendant held a knife to her throat and threatened to kill her, and she told him to take whatever he wanted and go. Because Mrs. Bergeron was screaming, the defendant stuffed a rag in her mouth. Before the defendant left, Mrs. Bergeron sustained the severe beating that formed the basis of the attempted second degree murder charge and is more completely discussed above. The defendant later tried to use Mrs. Bergeron’s credit card to make purchases at a local discount store.

19These facts, when viewed in a light most favorable to the prosecution, as per Jackson, clearly establish proof of all the elements of aggravated burglary. They are separate and apart from any of the evidence of the attempted second degree murder of the victim. The defendant could have been convicted of aggravated burglary without proof that an attempted second degree murder occurred. The evidence shows that the offense of aggravated burglary and the offense of attempted second degree murder were two separate and distinct crimes committed although they were committed in the same course of events.

Because separate and distinct evidence was presented for both crimes, we find the conviction for both the offense of aggravated burglary and the offense of attempted second degree murder did not subject the defendant to double jeopardy.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues that one of the jurors should have been removed, because she knew the defendant’s ex-wife, who was a state witness. After opening statements, the following colloquy took place:

THE COURT:
Ladies and gentlemen, I’m going to ask you to please just go outside the courtroom just for a moment.
[JURY REMOVED FROM THE COURTROOM]
THE COURT:
All right. Mrs. Hunter, I need you to tell me on the record what it is that you told the deputy just a moment ago.
MRS. HUNTER:
|I0I just realized when the girl walked in a little bit ago that she is my new granddaughter-in-law’s sister, which is his ex-wife, and I just don’t want there to be a problem.
THE COURT:
Well, how did you know that’s his ex-wife?
MRS. HUNTER:
It’s Marcantel. Rhonda Marcantel, was that her name?
THE COURT:
Sara I believe is her name.
MRS. HUNTER:
I saw them at the rehearsal dinner Friday night and at the wedding Saturday.
THE COURT:
Okay.
MRS. HUNTER:
And that’s really the first time that I’ve seen them.
THE COURT:
Okay.
MRS. HUNTER:
I just wanted you to know in case something came up. I don’t want to hide anything.
THE COURT:
No, I understand that. So — but you didn’t recognize when we were talking during jury selection, you didn’t recognize the names or anything like that?
MRS. HUNTER:
No, I did not. I did not.
J^THE COURT:
Okay. Let me ask you this. So what’s that relationship again?
MRS. HUNTER:
It’s my step-grandson’s new wife’s sister.
THE COURT:
Okay. And what’s your step-grandson’s wife’s name?
MRS. HUNTER:
Randi Mercantile.
THE COURT:
Randi’s a girl?
MRS. HUNTER:
Randi is a girl.
THE COURT:
Okay. All right. Now let me ask you this. Your step-grandson, are you close to him?
MRS. HUNTER:
Yes.
THE COURT:
I mean how often do you see him?
MRS. HUNTER:
Relatively often. We don’t consider step in our family and they’re just all my grandchildren.
THE COURT:
Okay, but I’m trying to get an idea of who — I mean how long have you known him?
MRS. HUNTER:
| ^Fifteen, seventeen years I suppose. As long as my daughter and his dad were married — have been married.
THE COURT:
Okay. And how often have you seen them?
MRS. HUNTER:
I see them frequently. I see them at my daughter’s all the time. I’ve known Randi for two or three years now, as long as she and Nicholas have been going together.
THE COURT:
I’m sorry, I just missed what you said about how often you see him. How often is that?
MRS. HUNTER:
I see him frequently. When I go out to my daughter’s they’re there very often and I see them frequently. I don’t know her sister and I don’t know her parents.
THE COURT:
Okay, and I guess that was going to be my next question, and so you don’t know her sister.
MRS. HUNTER:
No.
THE COURT:
You know, I don’t know if — you know, let me say this. I mean, you know, siblings can be as different as night and day or they can be just the same or anything.
MRS. HUNTER:
Correct.
THE COURT;
So because you know her sister really and you saw her the other day for the first time, like at the—
J^MRS. HUNTER:
Right, this past weekend when my grandson was married.
THE COURT:
Okay. And you don’t know her parents? Have you ever met her parents?
MRS. HUNTER:
Not until Friday night.
THE COURT:
Okay. Anything—
MRS. HUNTER:
I can’t tell you his first name honestly. THE COURT:
Okay. So let me ask you this. Would there be anything about that relationship since you don’t know the defendant’s ex-wife, you don’t know his parents, and those would be the people who would be coming in here,—
MRS. HUNTER:
Yes, sir.
THE COURT:
—all right, would that affect you at all in this case? Would you be more inclined to believe them—
MRS. HUNTER:
No.
THE COURT:
—because of that relationship?
MRS. HUNTER:
|14No. I just wanted — I don’t want anything under the table. I wanted to make sure—
THE COURT:
No, ma'am,—
MRS. HUNTER:
—you all knew.
THE COURT:
—you did the right thing. You did the right thing, just so we can put it out on the table, but because of that I have to ask you these questions just to make sure.
MRS. HUNTER:
Right.
THE COURT:
So are you telling me that, and I think you just did, but I just want to just make sure that it’s clear, that — so you just said you don’t know him. You’ve met them the other night.
MRS. HUNTER:
Yes.
THE COURT:
Is that about it? You’ve met them, said hello to them, and—
MRS. HUNTER:
That’s about it. Sat at the table with them.
THE COURT:
Okay. Did y’all talk about anything in particular?
MRS. HUNTER:
No.
THE COURT:
| isOkay. That’s the only time you’ve met them in the two or three years that your step-grandson has been dating— MRS. HUNTER:
Yes.
THE COURT:
—his—
MRS. HUNTER:
Yes.
THE COURT:
Okay. His new wife? They just — he just got married or they got married yet?
MRS. HUNTER:
They got married last Saturday.
THE COURT:
Okay. And do you feel — would you— let me ask you this question. I mean do you feel like you would have to answer to — you would feel awkward at all? Let’s just say you felt like the State didn’t prove their case when it was all said and done and if those folks testified on behalf of the State would you feel like you had any — would you feel like you would have to answer to them later on if you voted or you returned a verdict of not guilty for Mr. Miller?
MRS. HUNTER:
No. No, I don’t have feelings either way. I don’t have a problem either way. I just didn’t want something to come up later on and it be my fault.
THE COURT:
No, no, no, no, no. I understand, I understand. So this — well, I guess what I just want to make sure is are you saying this doesn’t affect your ability to be fair and impartial to Mr. Miller and to the State; is that right?
MRS. HUNTER:
|ir,No, it does not.
THE COURT:
Okay. Do you feel like the fact that you saw her and recognized her, I know you wanted us to know, but what you’re telling me is that that doesn’t affect you at all—
MRS. HUNTER:
No.
THE COURT:
—in your ability to serve as a juror in this case?
MRS. HUNTER:
No.
THE COURT:
Well, what was your last thing that you said? I believe Ms. Spees asked you would you have some concerns if it did?
MRS. HUNTER:
If it caused a ripple effect with Randi. Of course I would have concerns.
THE COURT:
But do you have any belief at all that it would?
MRS. HUNTER:
I don’t think it would. I don’t think it would.

This court has previously addressed a similar issue:

Defendant alleges that the trial court erred when it did not grant his motion for a new trial based on the fact the jury foreman failed to disclose a relationship with a member of the victim’s family. In his motion for a new trial, Defendant asserted:
| ^Additionally, the foreman of the jury which convicted this defendant, misled the defense counsel about his knowledge of this case. It is in fact alleged that the foreman of this jury has, both in the past and present, a close relationship to the victim’s family. This relationship not only stems to friendship, but in-house visits and business relationships with the alleged victims [sic] family.
Before an accused can challenge a juror because of a connection or relationship between the juror and one of the participants of a trial, it must be shown that the relationship was such that would preclude the juror from arriving at a fair verdict. State v. Wilson, 01-625 (La.App. 3 Cir. 12/28/01), 806 So.2d 854, writ denied, 02-323 (La.9/13/02), 827 So.2d 1121. See also State v. Chapman, 410 So.2d 689 (La.1981).
In Wilson, the appellant claimed the trial court erred when it refused to dismiss a juror who revealed that she knew the sister of one of the State’s witnesses. In fact, the sister often stayed with the juror in her house. This court did not find error, citing State v. Weaver, 99-2177, pp. 6-7 (La.App. 4 Cir. 12/6/00), 775 So.2d 613, 618, writ denied, 01-70 (La.6/27/03), 847 So.2d 1255, which in turn cited State v. Holland, 544 So.2d 461 (La.App. 2 Cir.1989), writ denied, 567 So.2d 93 (La.1990), as follows:
A trial judge is granted great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed without a showing of an abuse of that discretion. State v. Jones, 474 So.2d 919 (La.1985). Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Peterson, 446 So.2d 815 (La.App. 2d Cir.1984). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Hodgeson, 305 So.2d 421 (La.1974).
Wilson, 806 So.2d at 862.
In the current case, the trial court asked Mr. Sheppard whether he ever discussed the case with D.G. He answered, “No.” The trial court then asked if in anyway the rental agreement was tied into the case. Again, he answered, “No.”
We find the trial court did not abuse its discretion when it deemed the juror was forthcoming with his disclosure at trial. The Defendant failed to show the jury foreman had a close personal and business | ^relationship with the victim’s family as claimed, or that the connection between the juror and the victim’s step-uncle was such that would have influenced the juror’s decision as to Defendant’s guilt or innocence. Accordingly, this assignment is without merit.

State v. Mayeux, 06-944, pp. 16-17, 19-20 (La.App. 3 Cir. 1/10/07), 949 So.2d 520, 531-34.

In the present case, the record shows that Mrs. Hunter had a familial connection to an important state witness. However, it does not show that she had the kind of personal relationship with the witness that would influence her decision regarding the defendant’s guilt or innocence. Therefore, the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

This assignment of error is not briefed. Therefore, it is considered abandoned. Uniform Rules — Courts of Appeal Rule 2-12.4.

CONCLUSION

The convictions are affirmed.

The trial court is instructed to inform the defendant of the correct provisions of La.Code Crim.P. art. 9B0.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . At the time of the trial, the victim was dead. However, her testimony was perpetuated and played for the jury on DVD.

      . The trial court's remarks indicated that only the attempted murder conviction was enhanced. However, the aggravated burglary sentence apparently was enhanced also since that offense normally carries a maximum of thirty years. La.R.S. 14:60.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kendrick Jerrod SMITH.
    No. 10-377.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Asa Allen Skinner, District Attorney, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Kendrick Jerrod Smith.
    Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

Lin December 2008, the Leesville Police Department received a call about a disturbance at the Mona Lisa Apartments. Officers encountered Defendant, Kendrick Jerrod Smith, and, thereafter, entered the residence. Once inside, police observed several clear plastic bags containing marijuana. The bags were packaged in a manner that suggested the intent to sell the marijuana at a later date.

Defendant was charged by bill of information with possession with intent to distribute marijuana. He first entered a plea of not guilty but subsequently withdrew that plea and entered a plea of guilty to the charged offense. As part of a plea agreement, another charge of distribution in a separate bill of information was dismissed. Ultimately; Defendant was sentenced to serve seven years at hard labor and to pay a fine of $1,000. His motion to reconsider sentence was denied by the trial court.

Defendant is now before this court asserting one assignment of error. He contends the sentence imposed by the trial court was cruel, unusual, and excessive in violation of La. Const, art. 1, § 20. We affirm the court below.

This court discussed the standard of review applicable to claims of excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or- that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The tidal judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of' sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

Defendant was convicted of possession with intent to distribute marijuana. The penalty for said offense is imprisonment at hard labor for not less than five nor more than thirty years and a fine of not more than $50,000. La.R.S. 40:966(B)(3). Defendant was sentenced to serve seven years at hard labor and to pay a fine of $1,000.

Defendant asserts that the record contains little or no evidence that the trial court reviewed the mitigating factors listed in La.Code Crim.P. art. 894.1. Defendant further asserts he showed remorse for his actions and had voluntarily attended substance abuse programs and programs through drug court to address his substance abuse problem. Defendant contends his efforts were not considered by the trial court.

At the sentencing hearing, the trial court indicated it had reviewed the presen-tence investigation report and asked defense counsel if there was anything she lswould like to offer. Defense counsel informed the trial court that Defendant had been attending Vernon ADAC, NA, and Drug Court on a voluntary basis. The trial court then made the folio-wing comments:

All right. The court ordered a pre-sentence investigation to be conducted and I’ve reviewed the contents of that report in determining the sentence in this ease. I have found the factors of Article 894.1 as follows to be applicable. First, this is a drug case and there is significant economic harm or impact on society in general when one is dealing in the use or distribution of illegal drugs. Next, there are no substantial grounds tending to excuse or justify his criminal conduct nor did he act under strong provocation by any victims or others. He’s twenty-two years of age. He’s single. He does not have any children. He’s in good health. There was no indication of any history of employment. He has a tenth grade education and has not received his GED. He does have a history of some drug and alcohol use. He has a prior record and is classified as a second felony offender. The report indicates that on November the 10th, 2005, he was convicted of possession of cocaine, possession of a Schedule TV drug and possession of marijuana first offense. He was given a five-year Department of Correction sentence. That was suspended and he was placed on five years supervised probation and he’s currently on probation and the report indicates that his compliance is poor and I noted also earlier that in one of these bills of information was a distribution charge that was dismissed and he has— so, therefore received substantial benefit from, from his plea agreement.

After reviewing the sentencing transcript, it is apparent that the trial court considered the factors set forth in La.Code Crim.P. art. 894.1 at the time Defendant was sentenced. Furthermore, the record clearly supports the sentence imposed. Defendant was a second felony offender who was on probation at the time he committed the offense, a charge of distribution in a separate docket number was dismissed as part of a plea agreement, and the sentence he received was two years more than the minimum sentence. This assignment of error lacks merit.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.


author: COOKS, J. CHATELAIN, J.,

text:
    Tonya L. BOUDREAUX v. STATE of Louisiana, DOTD, and Diamond B. Construction, LLC.
    No. 10-189.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Rudie R. Soileau, Jr., Lundy, Lundy, Soileau & South, Lake Charles, LA, Richard Putnam, Abbeville, LA, for Plaintiff/Appellant, Tonya L. Boudreaux.
    Charles J. Foret, Jason R. Garrot, Bri-ney & Foret, Lafayette, LA, for Defendant/Appellee, State of Louisiana, DOTD.

      Carl W. Robicheaux, Stephens & Robi-eheaux, Lafayette, LA, for Defendant/Ap-pellee, Diamond B. Construction Co.
    Court composed of SYLVIA R. COOKS, JAMES DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   COOKS, J.

FACTS AND PROCEDURAL HISTORY

|,Tonya L. Boudreaux (Plaintiff) was involved in a two-car accident on February 17, 2004, in Vermilion Parish, Louisiana south of Abbeville on State Highway 82. Prior to the accident, this stretch of roadway had been cold planed by Diamond B. Construction Company (Diamond B.) in preparation for re-surfacing. Plaintiffs vehicle was stopped in the roadway waiting to make a left-hand turn. Thomas E. Sanders’ (Sanders) vehicle was approaching Plaintiffs vehicle from behind. Sanders failed to stop and collided with Plaintiffs vehicle. The State Trooper who investigated the scene of the accident did not note any hazardous condition of the roadway and testified that neither weather condition nor road condition were a factor in causing the accident. According to the State Trooper, Sanders’ inattention and failure to maintain control of his vehicle caused the accident.

Plaintiff did not file suit against Sanders, and he did not testify at trial. Plaintiff originally sued R.E. Heidt Construction Co., Inc. (Heidt), Diamond B., State of Louisiana, Department of Transportation and Development (DOTD), Vermilion Parish, and the City of Abbeville. Plaintiff dismissed her suit against the City of Ab-beville, Vermilion Parish, and Heidt. Plaintiff proceeded to trial against DOTD and Diamond B. alleging the state and its contractor, Diamond B., failed to maintain the section of Highway 82 where the accident occurred and failed to post warning signs in a road construction zone, which Plaintiff alleged were contributing causes of the accident. DOTD and Diamond B. filed pre-trial motions which included a motion in limine seeking to exclude any reference to Section 509.03 of the “Louisiana Standard Specifications For Roads and Bridges” known as the “Red Book.” This ^section sets forth a maximum time frame for which a state roadway should be left in a cold planed condition prior to resurfacing. Cold planing refers to the scraping away of layers of asphalt to prepare a roadway for re-surfacing

The then presiding judge, Honorable Byron Hebert, now retired, granted DOTD and Diamond B.’s motion in limine excluding any reference to Section 509.03 of the Red Book. On writ of review this court reversed the trial court’s ruling, but the Louisiana Supreme Court granted DOTD’s writ application and reinstated the trial court judgment finding the trial court did not abuse its discretion in granting the motion. Section 509.03 of the Red Book states “the cold planing operations shall not precede the subsequent paving operation by more than 15 calendar days.” It is undisputed that the section of Highway 82 where this accident occurred remained in a cold planed condition for approximately 133 days prior to the date of this collision.

Plaintiff made new attempts during trial to enter the Red Book guideline into evidence but the trial court refused believing it was bound by the previous judge’s ruling on the motion in limine and the Louisiana Supreme Court’s ruling on the matter. The jury returned an eleven-to-one verdict finding DOTD and Diamond B. were not at fault. Plaintiff filed a motion for new trial arguing the trial court improperly excluded evidence of Section 509.03 of the Louisiana Standard Specifications for Roads and Bridges. The trial court denied the motion for new trial. In its reasons for judgment, the trial court stated it thought it was mistaken in not allowing Plaintiff to introduce the Red Book into evidence and to mention Section 509.03 to the jury. However, the trial court found that such evidence would not have altered the verdict, and it was, therefore, harmless error to prohibit the book’s introduction. Plaintiff appeals.the judgment asserting two assignments of error: (1) the trial court erred in excluding evidence of Section 509.03 of the Red Book and (2) l3the trial court erred in denying Plaintiffs motion for new trial. Plaintiff did not set forth an assignment of error alleging the jury manifestly erred in its factual findings. Plaintiff did not brief its assignment of error regarding denial of its motion for new trial and cites no authority for its assertion that the motion for new trial was improperly denied.

LEGAL ANALYSIS

Plaintiff asserts the trial court erred in refusing to allow her to present the provisions of Section 509.03 of the Louisiana Standard Specifications For Roads and Bridges to the jury as evidence of DOTD’s negligence. The version of this publication relevant to this action is commonly referred to as the “Red Book.” Plaintiff maintains that the construction guidelines contained in the Red Book, which require that the maximum period in which a roadway may be left in a cold planed condition is fifteen days, were not complied with on the roadway in question and that this non-compliance is ipso facto evidence of DOTD and its contractor’s contributing negligence in this case. Although Plaintiff acknowledges that the doctrine of negligence per se is no longer Louisiana law, she asserts the concept provides guidance and, in this case, helps to establish defendants’ negligence.

The failure of DOTD and its contractor, Diamond B., to comply with the Red Book guideline does not equate to negligence. This court has long ago held that the failure of DOTD to comply with requirements in its manuals “is not negligence per se.” Harkins v. State Through Dept. Of Highways, 247 So.2d 644, 648 (La.App. 3 Cir.), writ denied 259 La. 741, 252 So.2d 449 (La.1971). In Manasco v. Poplus, 530 So.2d 548, 549 (La.1988) the Louisiana Supreme Court set forth DOTD’s duty to travelers on the state’s highways as follows:

Plaintiff contends DOTD’s negligence in failing to properly maintain the roadway caused the accident and therefore DOTD is liable underJ4La.Civ.C0de art. 2315. He also contends DOTD is strictly liable for his injuries under La.Civ. Code art. 2317. Under both articles, liability hinges on whether the defendant has breached his duty to the plaintiff. While the basis for determining the existence of the duty is different in art. 2317 strict liability cases and in ordinary negligence cases, the duty that arises is the same. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). DOTD’s duty to travelers is to keep the state’s highways and them shoulders in a reasonably safe condition. LeBlanc v. State, 419 So.2d 853 (La.1982); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Whether DOTD breached this duty, that is, whether the roadway and shoulders at the scene of the accident were in an unreasonably dangerous condition, will depend upon the particular facts and circumstances of each case. Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986).

A review of the record demonstrates the particular facts and circumstances of this case were thoroughly presented to the jury. Plaintiff does not contend otherwise. The jury was not presented with the Red Book requirement that contractors shall not cold plane a roadway more than fifteen days before re-surfacing.

In Myers v. State Farm Mutual Automobile Insurance Co., 493 So.2d 1170, 1173 (La.1986), the Louisiana Supreme Court held that “the failure of DOTD to recon- ■ struct the state’s highways to meet modern standards does not establish the existence of a hazardous defect.” Likewise, this court in Hatcher v. State Through DOTD, 467 So.2d 584, 587 (La.App. 3 Cir.1985) held:

[N] oncompliance with the manual (Manual of Uniform Control Devices) is not negligence per se, Harkins v. State, Dept. Of Highways, 247 So.2d 644, 648 (La.App. 3d Cir.), writ denied, 259 So.2d 449 (1971), rather, the injured motorist, in order to recover from the road authority, must prove that the authority acted unreasonably under the circumstances. See McCoy v. Franklin Parish Police Jury, 414 So.2d 1369, 1372 (La.App. 2d Cir.1982); Hodges v. State, Through Dept. Of Highways, 370 So.2d 1274, 1278 (La.App. 3d Cir.), writs denied, 374 So.2d 660, 661 (La.1979); Bernhard v. Campbell, 303 So.2d 884, 887 (La.App. 1st Cir.1974).

In Hunter v. DOTD of La., 620 So.2d 1149 (La.1993) the Louisiana Supreme Court discussed the decision in Myers holding that the mere failure of DOTD to follow modern construction standards when reconstructing state highways does not | ¿in itself establish existence of a hazardous defect. The court stated in Hunter, 620 So.2d at 1153:

DOTD should not be inflexibly held to such standards, since in many cases it may be physically or financially impossible to meet them, and the guiding inquiry should always be whether the road in question presented an unreasonable risk of harm. See Dill v. State, Department of Transportation and Development, 545 So.2d 994 (La.1989). (emphasis added)

As we set forth in Ditch v. State ex rel. Dept. Transp. and Dev. 09-379, pp. 3-4 (La.App. 3 Cir. 11/24/99), 745 So.2d 1279, 1283, writ denied, 00-695 (La.5/5/00), 761 So.2d 544 (emphasis added):

In determining whether liability exists under a duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that defendant owed a duty to plaintiff which defendant breached and that the risk of harm was within the scope of protection afforded by the duty breached. Mundy v. Dept. of Health and Human Resources, 620 So.2d 811 (La.1993). The duty of the state through DOTD is to keep the highways and its shoulders in a reasonably safe condition. Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1172 (La.1986). This duty encompasses the obligation to protect a motorist who inadvertently drives onto the shoulder of the highway. Rue v. State, Dept. Of Highways, 372 So.2d 1197, 1199 (La.1979). Whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of each case. Hunter v. Dept. of Transp. and Dev., 620 So.2d 1149 (La.1993). [Campbell v. Louisiana DOTD, 94-1052 (La.1/17/95, 648 So.2d 898] Id. at 901-02.
The State argues that the DOTD’s failure to reconstruct the State’s highways to meet modern standards does not, in itself, establish the existence of hazardous defect. See Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, (La.1986). However, as noted in Dill v. State, Department of Transportation and Development, 545 So.2d 994 (La.1984), Myers does not stand for the proposition that the State can escape liability simply by showing that a highway met the existing standards when it was built. Rather, the decision turns on determining whether the condition of the highway constituted an unreasonable risk of injury which caused the accident. ‘Design standards both at the time of the original construction and at the time of the accident may be relevant factors for consideration in deciding this issue, but are not determinative of the issue.’ See Dill, supra, at 996.

In Deville v. La. DOTD, 97-1422 to 97-1427, pp. 4-5 (La.App. 3 Cir. 9/23/1998), 719 So.2d 584, 586-87, writ denied, 98-2684 (La.12/18/98), 732 So.2d 1239, we set forth the four factors the plaintiff must show in a tort action against the state:

(1) the property which caused the damage was in the custody of the DOTD; (2) the property was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the risk; and (4) the defect in the property was a cause in fact of the plaintiffs’ injuries. { } Plaintiffs have the burden of proving all of the above factors, and thus the failure of any is fatal to the plaintiffs case.

Defendants presented testimony in this case that DOTD acted reasonably in the circumstances and that the delay in resurfacing the roadway was not unreasonable. It was for the jury to determine the facts from the evidence and testimony presented. The jury was presented evidence of the cold planed condition of the roadway at the time of the accident. The jury also heard testimony as to the lengthy period of time the road was left in an unfinished condition. Experts testified as to the theoretical effects of leaving the road cold planed for this extended period of time and as to the actual condition of the roadway at the time of the accident. Additionally, the jury heard testimony from the State Trooper who responded to the accident. He testified that he saw no evidence to suggest the condition of the roadway was a contributing factor in the accident. He placed the entire cause of the accident on Sanders. Sanders did not testify at trial. Plaintiff refers to Sanders’ testimony in his deposition, but his deposition was not entered as evidence at trial and is not part of the record. Plaintiff does not assert that the jury committed manifest error in concluding the accident was caused solely by Sanders’ negligence. Instead, Plaintiff maintains that had the jury been told the Red Book standard for leaving a highway in a cold planed condition provides for a period of no more than fifteen days the jury would have reached a different decision regarding DOTD and its contractor’s negligence. Judge Hebert and Judge Broussard understood that Plaintiff wanted to introduce the Red Book 17requirement and DOTD’s failure to abide by that requirement, in order to have the jury conclude that this breach of the standard required in DOTD’s manual constituted negligence per se, making DOTD and its contractor liable for some degree of fault in causing the accident. The Red Book requirement could have misled the jury and caused them to wrongfully conclude the law automatically required assignment of fault against the defendants.

An appellate court cannot set aside the findings of fact of the trial court in the absence of manifest error or unless the jury was clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Plaintiff does not offer any assignment of error alleging the jury was manifestly erroneous or clearly wrong in concluding that Sanders was solely at fault in causing the accident. The trial judge was correct in concluding that even if he would have allowed the Plaintiff to present Section 509.03 of the Red Book, it would not have affected the outcome. This is especially so in light of the detailed evidence presented to the jury which included the condition of the roadway; the length of time it remained in a cold planed, unfinished condition; the actions of the offending driver; the conditions at the time of the accident; and competing expert opinions regarding the condition of the roadway relevant to the cause(s) of the accident. There is no showing that the trial court abused its discretion in excluding the evidence of Section 509.03 of the Louisiana Standard Specifications For Roads and Bridges.

Plaintiff failed to brief any argument or cite any authority in support of her position that the trial court erred in denying her motion for new trial. Assignments of error not briefed and for which no authority is cited are considered abandoned. Smith v. Morris & Dickson, 05-1120 (La.App. 3 Cir. 3/1/06), 924 So.2d 1217, writ not considered by 06-0841 (La.6/2/06), 929 So.2d 1240, reconsideration denied by 06-0841,(La.3/9/07), 949 So.2d 431; and Uniform Rules-Courts of Appeal, Rule 2-12.4. Plaintiff based its motion for new trial solely on the argument that Section 509.03 of the Red Book should have been admitted in evidence. Because we find it was not error to exclude evidence of the provisions of Section 509.03 of the Louisiana Standard Specifications For Roads and Bridges, this issue is moot.

The judgment of the trial court is affirmed, and all costs of this appeal are assessed against Plaintiff.

AFFIRMED.

CHATELAIN, J., concurs in the result and assigns written reasons.

CHATELAIN, J.,

concurs in the result.

hi concur in the result of this case and offer additional reasons in support of this court’s affirmation of the trial court judgment.

This case essentially presents us with an evidentiary question of whether the trial court properly excluded Section 509.03 of the Louisiana Standard Specifications for Roads and Bridges from evidence and whether such ruling, if determined to be erroneous, requires reversal of the jury’s rejection of the plaintiffs claim.

In reaching a decision on this alleged evidentiary error, this court must consider whether the challenged ruling was erroneous and whether the error “prejudiced] the defendants’ cause, for unless it d[id], reversal is not warranted.” Wallace v. Upjohn Co., 535 So.2d 1110, 1118 (La.App. 1 Cir.1988), writ denied, 539 So.2d 630 (La.1989); La.Code Evid. art. 103. “Moreover, the party alleging error has the burden of showing the error was prejudicial” and had “a substantial effect on the outcome of the case.” Brumfield v. Guilmino, 93-366, p. 12 (La.App. 1 Cir. 3/11/94), 633 So.2d 903, 911, writ denied, 94-806 (La.5/6/94), 637 So.2d 1056. Ultimately, “the determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case.” Wallace, 535 So.2d at 1118. “Absent |2a prejudicial error of law, this Court is not required to review the appellate record de novo.” Brumfield, 633 So.2d at 911 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

Even though the jury returned a general verdict, such that it did not specifically find an absence of causation, the record convinces me that the issue of causation was at the forefront of this litigation. Causation is a question of fact; therefore, this factual determination is subject to the manifest error standard of review. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838; Mart v. Hill, 505 So.2d 1120 (La.1987). Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis for the finding does not exist, and (2) further determine that the record shows that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

From the outset, I find it important to note that the excluded evidence was only relevant with regard to the duty owed, and its exclusion could not have affected the issue of causation. Therefore, our resolution of this evidentiary issue, i.e., questioning whether the exclusion of this evidence affected the outcome of this litigation, requires an examination of the issue of causation.

In my view, the record shows no evidence that would establish any road defect caused the plaintiffs accident. Thomas E. Sanders, the driver of the truck that struck the plaintiffs vehicle, did not testify at trial and no evidence was presented to the jury from him about how this accident unfolded. Although the plaintiff argues that the pictures and other physical evidence show Sandérs’ truck spun out of control, the | srecord contains no evidence showing that the spin resulted from the cold-planed condition of the roadway. The jury heard no testimony from Sanders to the effect that a road defect distracted him, caused him to lose control of his vehicle, or impaired his ability to brake his vehicle when he realized the plaintiff was stopped to execute a left-hand turn. In stark contrast, the jury heard the testimony of the investigating officer who ascribed the cause of this accident to Sanders, not the condition of the roadway.

Even though the plaintiff presented expert testimony that a particular road bump, located approximately eight hundred feet from the point of impact, may have distracted Sanders, the expert could not testify as to what exactly happened. Thus, the expert’s testimony about driver distraction and the effect of the cold-planed road amounts to nothing more than speculation. It is axiomatic that speculation, guessing, or a mere possibility is insufficient to sustain a finding of fact. Therefore, after considering the record as a whole, I find that no reasonable fact finder could have concluded that the cold-planed condition of the road was a cause in fact of the collision.

Even if the trial court’s evidentiary ruling in the present case was erroneous, an issue the majority rejects and one with which I concur, I nonetheless would affirm the jury’s resolution of this case. For reasons outlined above, I find that when compared to the record in its totality, such an error would not substantially affect the outcome of this case.


author: PETERS, J.

text:
    James A. GLENN o/b/o Cody M. GLENN v. GRANT PARISH SCHOOL BOARD, et al.
    No. 10-0436.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Howard N. Nugent, Jr., Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, James A. Glenn o/b/o Cody M. Glenn.
    Jon K. Guice, Linda K. Ewbank, Ham-monds & Sills, Monroe, LA, for Defendant/Appellee, Grant Parish School Board.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

11 The plaintiff in this matter, James A. Glenn, appeals the trial court’s grant of summary judgment in favor of the Grant Parish School Board dismissing it from this litigation. For the following reasons, we affirm the trial court judgment.

This litigation arises from an April 17, 2007 physical altercation on the Grant High School campus involving two minors who were students at the school — Shaq-uille Galberth and Mr. Glenn’s fifteen-year-old son, Cody M. Glenn. The altercation resulted in significant injuries to Cody, and Mr. Glenn brought this suit against the Grant Parish School Board (School Board) and others to recover the damages his son sustained. After numerous other procedural filings, the School Board filed the motion for summary judgment that is the subject of this appeal. Following a September 15, 2009 hearing, the trial court granted the School Board’s request for relief and dismissed it as a party defendant. This appeal followed that judgment, and, in his single assignment of error, Mr. Glenn asserts that “[t]he trial court erred in failing to find that the School Board was liable, because it had actual notice of the harassment and did not document the wrongdoing or pass on the complaint to higher authority.”

Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Accordingly, we will review this matter de novo.

As a general principle, Louisiana law favors the summary judgment procedure as a vehicle by which the “just, speedy, and inexpensive” determination of an action |2may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). In a summary judgment proceeding, the burden of persuasion remains always with the mover to show that no material issues of fact exist. La.Code Civ.P. art. 966(C)(2). That is to say, the mover must present supportive evidence that the motion for summary judgment should be granted. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.

Smith, 639 So.2d at 751 (citations omitted).

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427.

This suit is based on negligence and questions of liability for negligent acts are evaluated using a duty-risk analysis. Daye v. Gen. Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654. Under this analysis, the “[p]laintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached.” Id. at 659. The plaintiffs failure to prove any of the elements of the duty-risk analysis must result in a determination of no liability. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627. Cause-in-fact is a factual question to be determined by the fact finder. Benjamin ex rel. Benjamin v. Hous. Auth. of New Orleans, 04-1058 (La.12/1/04), 893 So.2d 1. If a plaintiff is successful in establishing the cause-in-fact element, he or she must next establish the existence and nature of the duty owed by the defendant to the plaintiff. In the case of a school board, the duty owed a student is that of “reasonable supervision.” Wallmuth v. Rapides Parish Sch. Bd., 01-1779, 01-1780, p. 8 (La.4/3/02), 813 So.2d 341, 346. The reasonable supervision duty is analyzed by application of one of two Civil Code articles: La.Civ.Code art. 2315, which provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and/or La.Civ.Code art. 2320, which provides that “[tjeachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence” although only when the teacher “might have prevented the act which caused the damage,” yet did not do so. Although it reversed the ultimate decision reached by this court, our supreme court, in Wallmuth, 813 So.2d 341, adopted this court’s enunciation of the standard of liability for school boards under either La.Civ.Code art. 2315 or La.Civ.Code art. 2320 as being correct. This court had stated:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. Civ.Code art. 2320; Adams v. Caddo Parish School Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ denied, 94,684 (La.4/29/94), 637 So.2d 466. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530, writ denied, 99-228 (La.3/19/99), 740 So.2d 117. This duty does not make the school board the ^insurer of the safety of the children. Id. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Adams, 631 So.2d 70
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id. “Injury from horseplay between discerning students which, at some stage may pose an unreasonable risk of harm to the participants, does not automatically and of itself render the supervising authority liable.” Henix v. George, 465 So.2d 906, 910 (La.App. 2 Cir.1985). Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Id. Wallmuth v. Rapides Parish Sch. Bd., 01-42, pp. 4-5 (La.App. 3 Cir. 5/16/01), 802 So.2d 28, 31-32, rev’d, Wallmuth, 813 So.2d 341.

The factual basis upon which the trial court determined that the School Board’s motion for summary judgment had merit was supplied by Cody’s September 4, 2009 affidavit and his January 22, 2009 deposition testimony; by Swaka Coleman’s Sep-teraber 4, 2009 affidavit; by the January 22, 2009 deposition testimony of Sharon M. Shelton, a teacher at Grant High School; and by an April 24, 2009 affidavit of Randy Crawford, the Grant High School principal. In evaluating the matter now before us, we first note that, although the altercation giving rise to this litigation was between Cody and Shaquille, it had its roots in previous problems that had arisen between Shaquille and Swaka Coleman, who was another Grant High School student and Cody’s sixteen-year-old cousin.

The affidavits and deposition testimony establish that, during the week leading up to the altercation, Shaquille had teased Swaka unmercifully about facial hair on | sher upper lip. According to Swaka’s affidavit, her complaints to her teachers went unaddressed, and Shaquille’s humiliating actions only got worse. When it became apparent that the school officials were not going to protect Swaka, Cody entered the picture.

Cody’s affidavit and deposition testimony establish without dispute that shortly after lunch on April 17, 2007, he approached Shaquille as the students were milling around the outside common area of the campus. When confronted by Cody, Shaquille admitted his efforts to publicly humiliate Swaka and immediately began to threaten Cody physically. Cody did not engage Shaquille, but retreated-initially to a brick wall some fifteen to twenty feet away from Shaquille and then to stand behind one of the teachers on duty in the common area. However, when the school bell rang for the students to return to class, Shaquille struck Cody, and the altercation began in earnest. A number of the other students in the area joined sides, and the situation quickly became less of a fight and more of a riot. Once the melee was brought under control by the school personnel, Cody first went to the bathroom to tend to his bleeding nose and then was taken to the emergency room of an Alexandria, Louisiana hospital.

Affidavits and deposition testimony supporting the motion for summary judgment establish that, at the time of the April 17, 2007 altercation, at least four teachers were assigned to, and present at, specific locations in the common areas of the campus, with two teachers “roving” around the common areas in support of the 1 (¡stationary teachers. Additionally, nothing in the evidence before the trial court suggests that Shaquille had any disciplinary history or that any teacher or administrator had any knowledge of the possibility that Cody might act as Swaka’s protector with regard to Shaquille.

In its motion for summary judgment, the School Board argued both that the risk of injury was not foreseeable and that there was no evidence of negligent supervision on the part of the School Board. Mr. Glenn argued that Cody’s injury was foreseeable because the School Board, through its teachers, had actual knowledge of Shaquille’s ongoing harassment of Swa-ka. Mr. Glenn also argued that the School Board’s failure to take any actions to stop or mitigate Shaquille’s harassment of Swa-ka was a cause-in-fact of Cody’s injuries.

In its oral reasons for judgment, the trial court stated that it had reviewed the record and concluded:

I understand that [Cody] was acting in defense of his cousin, however, the injuries that are at issue here are the injuries that he sustained as a result of the altercation with [Shaquille]. And the school board’s handling of any harassment or teasing of [Swaka], while that may have precipitated the incident, I think we have to look at the school board’s responsibilities toward [Cody], with respect to: Were they negligent in their handling of that situation? And I think that situation being something that transpired on a Tuesday, not what happened on Friday or the days leading up to that date. I find it interesting that in [Cody’s] deposition he indicated that he was not expecting a fight with [Shaquille]. That was not what he was expecting to transpire when he confronted him about the teasing. Did [Cody], who was the one that initiated the contact, or the conversation with [Shaq-uille] — if he were not expecting the fight, how could the school expect such an incident to occur? While I understand your underlying ideas of that the school has responsibility [sic] to ensure that it is a safe and non-hostile environment that’s conducive to learning, I don’t find any evidence of any disputed [ 7fact as to whether or not, as to [Cody], that the school met its responsibility of trying to provide a safe environment for him. They had no — there was nothing to indicate to them that this altercation was going to occur. And given the depositions that were filed, indicating that the fight was broken up within 30 to 40 seconds; given the number of students who became involved in the altercation, I believe that their actions were reasonable under the circumstances and, therefore, I am going to grant the defendant’s Motion for Summary Judgment.

Thus, without stating as much, the trial court followed the guidance provided by the supreme court in Wallmuth, 813 So.2d 341, concluding that, regardless of the knowledge the school personnel may have had concerning the problems between Shaquille and Swaka, there exists no evidence to suggest that the School Board could have foreseen even the possibility of an encounter between Shaquille and Cody over Swaka’s complaints. That is to say, while the School Board was not able to ensure Cody’s safety, no evidence exists to suggest that it failed in its duty of reasonable supervision.

We find no error in the trial court’s judgment. Therefore, we find no merit in the single assignment of error asserted by Mr. Glenn.

Motion to Strike

The School Board filed a motion with this court, asking us to strike the copy of Swaka’s affidavit attached to Mr. Glenn’s brief on appeal. In its motion, the School Board asserted that the attached copy contained pages not found in the affidavit filed at the trial court level in opposition to its motion for summary judgment. Our decision to affirm the trial court’s grant of summary judgment renders this motion moot.

| «DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting summary judgment in favor of the Grant Parish School Board dismissing it as a party defendant in this litigation. We assess all costs of this appeal to James A. Glenn.

AFFIRMED.

      . Of the other defendants named in Mr. Glenn's original suit, only Loletha Galberth, Shaquille’s mother, remains as a party defendant.

      . Mr. Glenn brought this suit only on behalf of his minor son and asserted no claim for damages he may have individually sustained.

      . The text of the affidavit suggests that it was signed on September 4, 2007. However, it was sworn to and subscribed to by the notary on September 4, 2009.

      .According to Swaka, she asked Cody to intervene on her behalf and confront Shaquille. Cody’s affidavit acknowledges her direct request, but in his deposition he testified that he was approached, not by Swaka, but by two of his friends who told him of Shaquille's harassment of Swaka.

      . Other evidence suggests that the stationary teachers could have numbered as many as seven, with three additional "rovers.”

      . In fact, Cody testified specifically that he did not speak to any administrator or teacher concerning Shaquille’s harassment of Swaka or his intent to confront Shaquille.


text:
    SUCCESSION OF Hal Dempsey GASTON v. Stephanie KOONTZ.
    No. 10-432.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Bradley Charles Myers, Kean, Miller, Hawthorne, et al, Baton Rouge, LA, for Defendant/Appellant, Stephanie Koontz.
    Madaline Cross Gibbs, Vidalia, LA, for PlaintiffiAppellee, Christopher Robbins.
    Steve Harrelson, Harrelson Law Firm, P.A., Texarkana, AR, for Defendant/Appellant, Stephanie Koontz.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe defendant-appellant, Stephanie Koontz, appeals the judgment of the trial court in favor of the plaintiff-appellee, Succession of Hal Dempsey Gaston. For the following reasons, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

Hal Dempsey Gaston died in August 2008 leaving behind a will naming his long-term partner of more than nine years, Christopher Robbins, the executor of his estate. Koontz is Gaston’s sister. This dispute revolves around an oral agreement between Koontz and Gaston prior to his death. Specifically, the issue is the deceased’s intentions regarding a life insurance policy valued at $210,000, which named Koontz as the primary beneficiary.

In May 2009, Robbins, as executor of the estate, filed a Petition to Enforce Contract urging that Koontz agreed to pay all debts of the succession from the proceeds of the life insurance policy, to give $10,000 cash to each of four individuals, and to give the remainder to Robbins.

Following a two-day trial in late October and early November 2009, the trial court awarded Robbins, as executor of the estate, $210,000. Out of that sum, it ordered that he pay $10,000 to each of four named individuals and all of the debts of the succession, allowing credit for any legitimate debts Koontz may have paid. The trial court further ordered that any remaining funds be paid to Robbins individually. The trial court found Koontz to be in bad faith and assessed attorney’s fees against her in the amount of $17,500 and all other costs of the litigation that were not normal and customary costs associated with succession proceedings.

Koontz now appeals and assigns as error:

|¾1. The trial courts’s enforcement of the alleged oral agreement because it in effect created a trust in which the form requirements were not met.
2. The trial court’s enforcement of the alleged oral agreement that modified the unambiguous notarial testament because modifications must be in testamentary form.
3. The trial court’s award of attorney’s fees under La.Civ.Code art. 1997 where neither Article 1997 nor the alleged oral agreement specifically provide for the recovery of attorney’s fees.

DISCUSSION

Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court’s decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983.) When an appellate court finds that a reversible error of law was made in the lower court, it must determine the facts de novo from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1983.)

The essential facts are that Gaston and Koontz orally agreed that Koontz would distribute the proceeds of the life insurance policy in accordance with Gaston’s last wishes, to wit, $10,000 bequests to four nieces, payment of all succession debts, and the remainder of the funds given to Robbins. Koontz agreed to honor her brother’s final wishes in exchange for some property in Concordia Parish. Although Robbins had been the beneficiary of the policy for many years, Gaston changed the beneficiary designation on August 5, 2008, shortly before his death on August 27, 2008, in an attempt to avoid Robbins having his Social Security disability benefits negatively affected by the windfall from the insurance policy. Although Koontz [^attempted to deny this oral agreement at trial, the evidence was overwhelmingly clear that she did, indeed, agree to carry out her brother’s wishes as set forth above. Koontz does not argue error in the trial court’s factual findings, and we also find no error in the trial court’s factual findings. Thus, we need only address the issues of law assigned as error by Koontz.

Koontz argues that, as a matter of law, there “could never be an oral agreement that creates a trust or modifies a testament.” Koontz argues that the lack of any indication in the will of how the life insurance proceeds were to be distributed leads to the conclusion that the trial court sanctioned an oral will or oral modification of a testament. We disagree.

TRUST

We note that the issue of whether the oral agreement constituted a trust is being raised for the first time on appeal. Koontz also argues that the trial court’s ruling, in effect, created a trust. Although we are not required to, we will address the trust issue in part below. See Williamson v. St. Francis Cabrini Hosp. of Alexandria, 99-1741 (La.App. 3 Cir. 5/10/00), 763 So.2d 50, writ denied, 00-2149 (La.10/6/00), 771 So.2d 83; Uniform Rules Courts of Appeal, Rule 1-3.

ORAL CONTRACT

“A donation mortis causa is.an act to take effect at the death of the donor by which he disposes of the whole or a part of his property. A donation mortis causa is revocable during the lifetime of the donor.” La.Civ.Code art. 1469. “A disposition mortis causa may be made only in the form of a testament authorized by law.” La.Civ.Code art. 1570. Koontz argues that the alleged oral agreement modified the terms of Gaston’s notarial testament reprinted here:

| ¿NOTARIAL TESTAMENT
August 01, 2008
■ I, HAL DEMPSEY GASTON, (SSN XXX-XX-XXXX), of the age of majority and a resident of and domiciled in Concordia Parish, Louisiana, presently residing at 106 Foster Drive, Ridge-crest, LA, 71334, do make and declare this to be my Last Will and Testament, revoking all others.
FIRST, I bequeath to my sister, STEPHANIE GASTON KOONTZ, Lot G of Adcock & Booth Subdivision of Lot 1 of Unit No. 1 of Ridgecrest Subdivision, Concordia Parish, Louisiana, being the property acquired by me from Norma K. Worthy by warranty deed recorded September 29, 2003, as Document No. 245879 in COB 403, p. 297, Records of Concordia Parish, Louisiana; together with all buildings and improvements situated thereon.
SECOND, To CHRISTOPHER LEE ROBBINS, my friend/partner, I bequeath my 2006 Nissan vehicle, VIN: 1N6BA07BX6N532362, together with all of my assets contained in the home at 106 Foster Drive, Ridgecrest, LA 71334; and any and all other property belonging to me, except as specifically bequeathed above, thus constituting him my universal and residuary legatee.
THIRD, Should my sister, Stephanie Gaston Koontz, predecease me, then I bequeath all of the property which I own at my death to Christopher Lee Robbins, thus constituting him as my universal, residuary legatee.
FOURTH, I name and appoint Christopher Lee Robbins as Executor of my estate, with full seizin and without bond, and specifically authorize an Independent Administration of my estate; and I further direct my Executor to arrange for my wake/viewing at Young’s Funeral Home in Ferriday, Louisiana, and to arrange for my transportation to Arkansas where my family will arrange for my military funeral to be carried out in the Gaston Family Cemetery. If Mr. Robbins predeceases me or is unable to act as Executor, then, I name and appoint Stephanie Gaston Koontz as alternate Executrix, with full seizin and without bond, and specifically authorizing an Independent Administration of my estate.
FIFTH, I dispense all of my heirs or legatees from collating any gifts received from me by them, whether inter vivos or by reason of my death.
IN WITNESS WHEREOF, I have signed this my Last Will in the presence of the witnesses hereinafter named and undersigned on the | F,01 day of August, 2008.
/s/ Hal Dempsey Gaston
HAL DEMPSEY GASTON, TESTATOR

It is well-settled that life “insurance law is sui generis and, as such, an insurance contract is not subject to the ordinary rules which govern dispositions mortis causa.” Abney v. Continental Cas. Co., 401 So.2d 438, 439 (La.1981). Further, the “proceeds of life insurance form no part of decedent’s estate,” therefore, “the rules of the Civil Code relating to donations inter vivos or mortis causa have no application as respects life insurance policies.” Teachers’ Retirement System of Louisiana v. Vial, 304 So.2d 53, 56 (La.1974). See also Succession of Willis, 96-479 (La.App. 3 Cir. 11/6/96), 682 So.2d 920.

Koontz argues that the agreement modified the terms of the will. We disagree. Not only does the life insurance policy itself form no part of the estate, there is absolutely nothing in the oral agreement between Gaston and Koontz that modified the existing will. The will stands alone and has no relation to the life insurance policy or proceeds. The multiple cases cited by Koontz bear no relevance to the issue at hand as none relate to life insurance policies other than Berry v. Berry, 371 So.2d 1346 (La.App. 1 Cir.1979), writ denied, 373 So.2d 511 (La.1979).

In Berry, the deceased attorney named his sister, the defendant, the beneficiary of his life insurance policy, instructing her to pay succession debts out of the proceeds, to care for their ailing father, to assist in providing for the education of his children, and to keep some for herself. The deceased’s daughter, the plaintiff, sued to have the arrangement declared a trust in which all of the funds belonged to her and her sibling. The trial court found in the daughter’s favor. The appellate court reversed, finding that neither a trust nor a stipulation pour autrui had been confected. |fiIt rejected plaintiffs demands. Notably, Berry is distinguishable from the present matter in that the beneficiary (the sister) had substantially fulfilled her deceased brother’s requests in paying off the succession debts, partially paying for her father’s care, and partially paying for the education of the deceased’s two children. We find Berry inapplicable to the case at hand.

In addition to the fact that the oral agreement did not modify the will, the oral agreement at issue is not a disposition mortis causa, as the law clearly designates life insurance policies as not forming any part of the decedent’s estate and as not being subject to any rules of dispositions, even those relating to forced heirship. Nothing in the law prohibits a party from confecting an oral contract with regard to the proceeds of a life insurance policy. The fact that the legislature, in La.R.S. 22:915, has specifically delineated life insurance policies as being exempt from the civil code articles dealing with dispositions mortis causa lends credence to the fact that the strict formality requirements of La.Civ.Code art. 1469 are not applicable to life insurance policies. La.R.S. 22:915 provides:

A. Donations inter vivos of life insurance policies, and the naming of beneficiaries therein, whether revocably or irrevocably, are not governed by the provisions of the Revised Civil Code of 1870, or any other laws of this state relative to the form of donations inter vivos.
B. This section is remedial and retrospective. All donations inter vivos of life insurance policies made on or before July 31, 1968 are valid and effective, whether or not such donations were made in the form prescribed by the Civil Code or by any other laws of this state.

Historically, the issue of the validity and enforceability of a promise by a life insurance beneficiary to pay part or all of the proceeds to another person(s) has been litigated many times in the United States, although few have been argued recently. See 102 A.L.R. 588 (1935) (updated by the weekly addition of relevant new Leases.) The majority of these cases rely upon the creation of a “constructive trust” in favor of the third person, which is enforceable in equity. Id. While many other states recognize constructive trusts, Louisiana does not. See La.R.S 9:1721 et seq. Id. “A testamentary trust may be created only in one of the forms prescribed by the laws regulating donations mortis -causa.” La. R.S. 9:1751. “An inter vivos trust may be created only by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses.” La. R.S. 9:1752. Undoubtedly, no valid trust exists under Louisiana law in this case.

The second basis for upholding the arrangement is that a contract based upon sufficient consideration has been entered into for the benefit of a third person; the third basis is that the beneficiary cannot deny the promise she has made by virtue of estoppel. 102 A.L.R. 588 (1935). Clearly, the record reveals that the trial court based its finding on the second basis, and we find no error in the trial court’s finding that a valid oral contract existed between Gaston and Koontz to disburse the proceeds of the life insurance policy in the manner previously mentioned. Namely, Koontz benefitted by having three of her children receive $10,000 a piece and by receiving a piece of immovable property in Concordia Parish. Furthermore, although we need not even reach the third reason for enforcing such an agreement, there certainly exists no better factual scenario to enforce a claim of estoppel than when a sister tries to deny her brother’s dying wishes in order to line her own pockets.

The party claiming the existence of a contract bears the burden of proving that the contract was perfected between himself and his opponent. Enterprise Property Grocery, Inc. v. Selma, Inc., 38,747 (La.App. 2 Cir. 9/22/04), 882 So.2d 652, writ denied, 04-2640 (La.12/17/04), 888 So.2d 876. We will not disturb a trial court’s factual finding that a contract existed unless it is clearly wrong. Belgard v. Collins, 628 So.2d 1254 (La.App. 3 Cir. 1993). Louisiana Civil Code Article 1846 requires that contracts whose price or value is in excess of $500 “must be proved by at least one witness and other corroborating circumstances.” Again, as previously mentioned, we find no error in the trial court’s finding that an oral contract existed between Gaston and Koontz. Multiple witnesses testified that Gaston or Koontz (or her husband) made the arrangement clear to them (including an employee of the Veteran’s Administration and an employee of Young’s Funeral Home). Moreover, the extensive corroborating circumstances leave no doubt as to the validity of the arrangement Koontz confected with her brother. Accordingly, we find no error in the trial court’s ruling. This assignment of error is without merit.

ATTORNEY’S FEES

In this assignment of error, Koontz argues that attorney’s fees may be recovered only when authorized by statute or contract and the trial court erred in awarding $17,500 in attorneys fees pursuant to Louisiana Civil Code Article 1997, finding Koontz to be in bad faith. We agree. Attorney’s fees are not allowed except where authorized by contract or statute and none exist here. State, Dept. of Transp. and Development v. Wagner, 10-0050 (La.5/28/10), 38 So.3d 240, Accordingly, we reverse that portion of the judgment awarding the succession $17,500 in attorney’s fees.

CONCLUSION

The judgment of the trial court is affirmed in all respects except for that portion pertaining to the award of $17,500 in attorneys fees. All costs of this appeal |9are assessed against the defendant-appellant, Stephanie Koontz.

AFFIRMED IN PART AND REVERSED IN PART.