author: MARC E. JOHNSON, Judge. GRAVOIS, J.,

text:
    Daniel MORENO v. ENTERGY CORPORATION, Entergy Gulf States, Inc., Entergy Louisiana, LLC., Eagle Enterprises of Jefferson, Lafayette Insurance Company, Walgreen Louisiana Co. Inc., ABC Insurance Company and the Parish of Jefferson.
    No. 09-CA-976.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 10, 2010.

      Stephen N. Elliott, Margaret A. Cassisa, Caroline D. Elliott, Ann B. Wootten, Attorneys at Law, Metairie, LA, for Defendant/Appellant (Carl E. Woodward, LLC).
    Marcus V. Brown, Catherine Ohlsson Gracia, Cory R. Cahn, Attorneys at Law, New Orleans, LA, for Defendant/Appellant (Entergy Louisiana, LLC).
    Charles S. Green, Jr., Shelly E. Chiap-petta, Attorneys at Law, New Orleans, LA, for Defendant/Appellant (Stewart Interior Contractors, LLC).
    Gregory J. McDonald, Attorney at Law, New Orleans, LA, for Defendant/Appellee (Landaverde Construction, LLC).
    Ethan N. Penn, Brent J. Carbo, Attorneys at Law, New Orleans, LA, for Third-Party Defendant/Appellee (Western World Insurance Company).
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| aDefendants/Appellants, Entergy Louisiana, LLC, Stewart Interior Contractors, LLC, and Carl E. Woodward, LLC all appeal dismissals of cross-claims resulting from the granting of motions for summary judgments from the 24th Judicial District Court, Parish of Jefferson. For the following reasons, we affirm the trial court’s dismissals of the cross-claims filed by En-tergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC, vacate the portion of the judgments dismissing the cross-claims with prejudice, and amend the judgments to dismiss the cross-claims without prejudice.

FACTS AND PROCEDURAL HISTORY

In the aftermath of Hurricane Katrina, Carl E. Woodward, LLC (hereinafter “Woodward”), general contractor, entered into a construction contract with Eagle Enterprises of Jefferson, Inc., owner of Walgreens Shopping Center located at 7100 Veterans Memorial Boulevard, Me-tairie, Louisiana. Woodward subcontracted with Stewart Interior Contractors, LLC (hereinafter “Stewart”) to install framing and exterior sheetroek. In order to assist with the labor, Stewart ^entered into a “Temporary Labor Contract” subcontracting with Landaverde Construction, LLC (hereinafter “Landaverde”) for personnel to work with Stewart.

On January 5, 2006, while working at the Walgreens job site, Plaintiff, Daniel Moreno (hereinafter “Moreno”), was injured while atop a scaffolding that was too close to the power lines, which was located next to the fagade of the Walgreens store. As Moreno was climbing the scaffolding to warn his co-workers that they were too close to the overhead power lines, one of his co-workers contacted the adjacent overhead power lines with a piece of metal that Moreno was removing from the scaffolding. That contact ultimately resulted in severe injuries to Moreno.

On January 4, 2007, Moreno filed suit on against Entergy Louisiana, LLC (hereinafter “Entergy”), Eagle Enterprises of Jefferson, Inc., Lafayette Insurance Company, Walgreens Louisiana Company, Inc., the Parish of Jefferson, Woodward, and Stewart. In his Petition for Damages, Moreno alleges that he received “a severe, painful and debilitating electrical shock from high voltage distribution/transmission power lines adjacent to the building ...” Moreno further alleges that he “caught on fire, sustained extreme pain, suffering, anguish, physical injury ...” among other injuries.

Stewart filed an answer to Moreno’s petition, a cross-claim against Landaverde, and a third-party demand against Landa-verde’s commercial liability insurer, Western World Insurance Company (hereinafter ‘Western World”). The third-party demand and cross-claim arouse out of a contractual indemnity clause found in the “Temporary Labor Contract” between Stewart and Landaverde.

Landaverde filed a motion for summary judgment seeking to dismiss Stewart’s cross-claim. The trial court granted Landaverde’s motion. Stewart filed |aa motion for new trial, and it too was denied by the trial court. Stewart is appealing the trial court’s final judgment dismissing its cross-claim demand against Landa-verde.

Western World filed a motion for summary judgment seeking to dismiss Stewart’s third-party demand filed against it. The trial court granted the motion. Stewart is also appealing the trial court’s final judgment dismissing its third-party demand against Western World.

Entergy answered Moreno’s petitions and filed third-party demands against Stewart, Landaverde and Woodward. En-tergy’s third-party demand alleged that the third-party defendants were liable to Entergy for indemnity, pursuant to the Louisiana Overhead Power Line Safety Act (“OPLSA”). Entergy also filed a motion for summary judgment alleging that Stewart violated the OPLSA. The trial court denied Entergy’s motion.

Landaverde filed separate a motion for summary judgment seeking to dismiss En-tergy’s cross-claim. At the July 8, 2009 hearing, the trial court granted Landa-verde’s motion for summary judgment and dismissed Entergy’s cross-claim against Landaverde with prejudice. At the same hearing, Stewart and Woodward orally filed motions for summary judgment citing the same reasoning as the one used by Landaverde. On August 27, 2009, Stewart filed a motion for summary judgment seeking to dismiss Entergy’s cross-claim.The trial court granted ■ Stewart’s motion and dismissed Entergy’s cross-claim against Stewart. On September 17, 2009, Woodward filed a motion for summary judgment seeking to dismiss Entergy’s cross-claim. The trial court granted the motion and dismissed Entergy’s cross-claim against Woodward with prejudice. Entergy is appealing the dismissals of the cross-claims against Landaverde, Stewart and Woodward.

|(At the July 8, 2009 hearing, the trial court continued Stewart’s motion for summary judgment, alleging it was Moreno’s statutory employer, against Moreno without date. Subsequently, Stewart re-filed its motion. The trial court granted Stewart’s motion for summary judgment finding that Moreno was a statutory employee of Stewart.

We will now address each appeal separately.

Entergy’s Appeal

On appeal, Entergy alleges that the trial court erred by granting the motions for summary judgment by disregarding the language of LSA-R.S. 45:144 of the OPL-SA, which provides that the owner of a high voltage overhead power line is entitled to recover all damages from “persons responsible” who violate the Act, and holding that Entergy was precluded, as a matter of law, from being fully indemnified by the “persons responsible” for violating the Act.

Entergy avers that the purpose of the OPLSA is to make the persons responsible for the violation economically responsible if they fail to provide the required advance notification, thereby depriving Entergy of the opportunity to inspect the proposed work site and institute appropriate safety measures. Entergy further avers that, pursuant LSA-R.S. 45:144 of the OPLSA, it is entitled to indemnity from the persons responsible of violating the Act of all damages incurred from the violation. Entergy contends that the only way to force a company to comply with the Act is to ensure that it is responsible for “all damages,” including the damages owed by the utility company, if the company fails to comply with the Act. As a result, Entergy alleges that the trial court erred in granting the motions for summary judgment and finding that Entergy was barred as a matter of law from seeking indemnity from Landaverde, Stewart and Woodward.

LSA-R.S. 45:144(A) of the OPLSA provides,

|7If a violation of this Chapter results in physical or electrical contact with any high voltage overhead line, the person violating this Chapter shall be liable to the owner or operator of the high voltage overhead line for all damages, costs, or expenses incurred by the owner or operator as a result of the contact.

Entergy’s cross-claims against Landa-verde, Stewart and Woodward are based upon the indemnity provision of LSA-R.S. 45:144(A). The trial court granted the motions for summary judgment by Landa-verde, Stewart and Woodward. The summary judgments dismissed Entergy’s cross-claims against Landaverde, Stewart and Woodward with prejudice on the basis that Entergy did not have indemnity rights pursuant to the OPLSA.

We agree with the dismissal of En-tergy’s cross-claims against Landaverde, Stewart and Woodward; however, we agree for a reason other than the one provided by the trial court. We conclude that the cross-claims of Entergy and the motions for summary judgment by Landa-verde, Stewart and Woodward were premature. No fault has been allocated to any party in the case, and no damages from Moreno’s action have been assessed against Entergy. No cause of action for indemnity has been incurred by Entergy at this phase in the matter. (See Toups v. Koch Gateway Pipeline, Inc., 04-223, p. 4 (La.App. 1 Cir. 4/24/05); 915 So.2d 811, 814, writ denied, 05-1392 (La.12/16/05); 917 So.2d 1109, quoting Kantlehner v. United States, 279 F.Supp. 122, 128 (E.D.N.Y.1967), where the court held, “[A] party’s right to either indemnity or contribution [is] derivative, and remains inchoate until the settlement or resolution of the primary action. The cause of action ... does not accrue until the payment has been made.”) (See also Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987), where the Louisiana Supreme Court held that a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid.)

[ Jn the interest of justice and judicial efficiency, we are upholding the dismissal of Entergy’s cross-claims on account of our own motion of no cause of action on the basis of prematurity. (See Teche Financial Services, Inc. v. State, Dept. of Public Safety, 06-250, p.5 (La.App. 3 Cir. 9/27/06); 939 So.2d 650, 654, where the court found that appellate courts cannot supply an exception of prematurity on its own motion; however, it can supply the exception of no cause of action based upon prematurity grounds.) Nevertheless, we are vacating the portion of the trial court’s ruling dismissing Entergy’s cross-claims with prejudice. We amend the dismissal of Enter-gy’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Entergy in the event it is allocated fault.

Stewart’s Appeal

On appeal, Stewart alleges that the trial court erroneously granted the motion for summary judgment by Landaverde, which dismissed its cross-claim, because Stewart is entitled to seek indemnity from Landaverde pursuant to the “contract indemnity clause” in the Temporary Labor Contract because Landaverde’s employees were negligent in causing the accident. Additionally, Stewart alleges that the trial court erroneously granted Western World’s motion for summary judgment, which dismissed its third-party demand, because the Temporary Labor Contract between its insured, Landaverde, and Stewart is an “insured contract” under the terms of Western World’s insurance policy.

As with Entergy’s cross-claims, we also find that Stewart’s cross-claims against Landaverde and Western World were properly dismissed because they were premature. Additionally, we find that the granting of the motions for summary judgment filed by Landaverde and Western World were also premature. No fault has been allocated to any party in the case, and no damages from |3Moreno’s action have been assessed against Stewart. No cause of action for indemnity has been incurred by Stewart at this phase in the matter. See Toups v. Koch Gateway Pipeline, Inc. and Meloy v. Conoco, Inc., supra.

In the interest of justice and judicial efficiency, we are upholding the dismissal of Stewart’s cross-claim against Landa-verde and Western World on account of our own motion of no cause of action on the basis of prematurity. See Teche Fi nancial Services, Inc. v. State Dept. of Public Saftey, supra. However, we are vacating the portion trial court’s ruling dismissing Stewart’s cross-claims with prejudice. We amend the dismissal of Stewart’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Stewart against Landa-verde and/or Western World, in the event it is allocated fault.

Woodward’s Appeal

Woodward argues that the trial court erroneously granted Landaverde’s motion for summary judgment, which dismissed Woodward’s cross-claim against Landaverde, because there are genuine issues of material fact remaining with respect to the question(s) pertaining to Landaverde’s obligation to indemnify Woodward. In its cross-claim against Landaverde, Woodward is seeking indemnification from Landaverde, pursuant to the Temporary Labor Contract executed between Stewart and Landaverde. As a result of the contractual provision in the Temporary Labor Contract, Woodward maintains that Landaverde owes it indemnification for those damages “arising or out of act(s), action(s), behavior and/or negligence, either solely, in concert or in part of LCI or its employees ...” Woodward notes in its brief that it is bringing this instant appeal out of an abundance of caution and in the event that this Court decides that indemnification |10is owed by Woodward to Entergy. Woodward also argues that the trial court erroneously granted Western World’s motion for summary judgment vis-a-vis the cross-claim by Woodward against Landeverde, and thus, the trial court erred in finding that no coverage is provided by Western World for any of the claims brought by Woodward against Landaverde.

As with Entergy’s cross-claims, we also find that Woodward’s cross-claims against Landaverde and Western World were properly dismissed because they were premature. Additionally, we find that the granting of the motions for summary judgment filed by Landaverde and Western World were also premature. No fault has been allocated to any party in the case, and no damages from Moreno’s action have been assessed against Woodward. No cause of action for indemnity has been incurred by Woodward at this phase in the matter. See Toups v. Koch Gateway Pipeline, Inc. and Meloy v. Conoco, Inc., supra.

In the interest of justice and judicial efficiency, we are upholding the dismissal of Woodward’s cross-claim against Landa-verde and Western World on account of our own motion of no cause of action on the basis of prematurity. See Teche Financial Services, Inc. v. State Dept. of Public Saftey, supra. However, we are vacating the portion trial court’s ruling dismissing Woodward’s cross-claims with prejudice. We amend the dismissal of Woodward’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Woodward against Landaverde and/or Western World, in the event it is allocated fault.

DECREE

For the foregoing reasons, the trial court’s dismissals of the cross-claims filed by Entergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC are affirmed. The portions of the judgments dismissing the ^cross-claims with prejudice are vacated, and the judgments are amended to dismiss the cross-claims without prejudice. Entergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC are to equally bear the costs of this appeal.

DISMISSALS AFFIRMED IN PART; AMENDED IN PART.

GRAVOIS, J.,

concurs with reasons.

|, For the following reasons, I respectfully concur with the majority opinion herein.

ENTERGY’S APPEAL AGAINST LANDAVERDE, STEWART AND WOODWARD

The majority opinion herein upholds the dismissal of Entergy’s claims against Landaverde, Stewart, and Woodward “on account of our own motion of no cause of action on the basis of prematurity”, then vacates the portion of the trial court’s ruling dismissing Entergy’s claims with prejudice, and amends the dismissal of Enter-gy’s claims to be without prejudice, in order to allow an indemnity claim to be raised by Entergy in the event it is allocated fault.

The motions and cross-motions for summary judgment were in the nature of declaratory actions, i.e., they sought to define the parties’ rights and obligations under the OPLSA in the event Entergy is cast in liability to Moreno, which has yet to be determined. See Faucheaux v. Prytania Medical Complex Owners Ass’n, 93-2042 (La.App. 4 Cir. 8/17/94), 642 So.2d 242, 245, where that court vacated portions of two summary judgments granted in favor of a third-party plaintiff on its indemnification claim against a third-party defendant, finding that decision on the |2issue was premature. As in Faucheaux, no fault determination has been made herein, nor have any damages been awarded relative to any party at this point in the case. Entergy’s liability to Moreno is a contingency that has not yet arisen and may not arise.

After thoroughly considering the procedural posture of this case, rather than dismissing Entergy’s claims without prejudice, I would simply .vacate the trial court’s rulings on Entergy’s motions for summary judgment as premature and remand for further proceedings, allowing Entergy to re-urge its motions at such time as the matters asserted therein are ripe for determination.

STEWART’S APPEAL AGAINST LAND-AVERDE AND WESTERN WORLD

The next judgment on appeal is the granting of motions for summary judgment filed by and in favor of Landaverde and its liability insurer Western World, dismissing the cross-claim and third party demand filed by Stewart against Landa-verde and Western World, respectively. The majority opinion herein upholds the dismissal of Stewart’s claims against Land-averde and Western World “on account of our own motion of no cause of action on the basis of prematurity”, then vacates the portion of the trial court’s ruling dismissing Stewart’s claims with prejudice, and amends the dismissal of Stewart’s claims to be without prejudice, in order to allow an indemnity claim to be raised by Stewart against Landaverde and/or Western World in the event it is allocated fault.

In its brief, Stewart frames the issues as follows:

1. If at trial, Entergy obtains an indemnity judgment against Stewart Interior Contractors, LLC pursuant to Louisiana’s Overhead Power Line Safety Act (OPLSA), R.S. 45:141, et seq., may Stewart Interior Contrae-tors, LLC seek indemnity from Landaverde Construction, LLC pursuant to the “contractual indemnity clause” in the Temporary Labor Contract between Stewart Interior ^Contractors, LLC and Landaverde Construction, LLC because it was Landaverde Construction, LLC’s employee’s who caused the damages to plaintiff.
2. Whether Western World Insurance Company’s general liability policy insuring Landaverde Construction, LLC provides coverage for negligent acts committed by Landa-verde Construction, LLC employees because the “Temporary Labor Contact” between its insured, Landaverde, and Stewart Interior Contractors, LLC is an “insured contract” under the terms of the Western World Insurance Policy.

Accordingly, Stewart is appealing in an abundance of caution should this court find that it owes Entergy indemnity under the OPLSA. Because the other judgments regarding the application of the OPLSA in this case have been found to be premature, I agree with the majority opinion herein that this judgment in favor of Landaverde and Western World against Stewart, too, is premature. Rather than dismissing Stewart’s claims without prejudice, however, I would simply vacate the ruling on Landa-verde’s and Western World’s motions for summary judgment and remand for further proceedings, allowing the parties to re-urge their motions at such time as the matters asserted therein are ripe for determination.

WOODWARD’S APPEAL AGAINST WESTERN WORLD AND LANDA-VERDE

The majority opinion herein similarly dismisses Woodward’s claims against Landaverde and Western World as premature and amends that dismissal to be without prejudice.

Woodward’s cross-claim against Landa-verde seeks indemnification from Landa-verde, pursuant to the indemnification clause of the Temporary Labor Contract between Stewart and Landaverde, in the event Woodward is found liable to Entergy under the OPLSA. Because Woodward’s contingent liability to Entergy has yet to be determined, I agree with the majority opinion herein that the trial court’s ruling on Landaverde’s motion for summary judgment against Woodward |4is premature. Rather than dismissing the motion without prejudice, however, I would simply vacate the ruling on Landaverde’s motion for summary judgment against Woodward and remand for further proceedings, allowing the parties to re-urge their motions at such time as the matters asserted therein are ripe for determination.

Western World argues on appeal that the basis for its motion for summary judgment against Woodward was the “employer’s liability” exclusion contained in the commercial general liability (“CGL”) policy issued to Landaverde, which precluded coverage for bodily injury to an employee of the insured. Western World points out that the damages sought in this case are for bodily injury to Moreno, an employee of the insured Landaverde. Western World further notes that Woodward’s appellate brief does not address the “employer’s liability” exclusion, which was the basis for its motion against Woodward, nor does it attempt to address any provision of or coverage provided by the policy. What Woodward did in the trial court, and does on appeal, is attempt to cast the damages sought in this case (plaintiff Moreno’s damages) as damages to itself (its contingent liability to Entergy under the OPL-SA, and/or Woodward’s own costs of defense in this suit), a position that the trial court rejected.

Because Western World’s liability to Woodward has yet to be determined, I agree with the majority opinion herein that the trial court’s ruling on Western World’s motion for summary judgment against Woodward is also premature. Rather than dismissing Woodward’s claims against Western World without prejudice, however, I would simply vacate the ruling on Western World’s motion for summary judgment against Woodward and remand for further proceedings, fallowing Western World to re-urge its motion at such time as the matters asserted therein are ripe for determination.

      . Eagle Enterprises of Jefferson, Inc., Lafayette Insurance Company, Walgreens Louisiana Co., Inc., and the Parish of Jefferson were dismissed from the suit.

      . Because we upholding the dismissal of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.

      . Because we upholding the dismissals of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.

      . LCI is the acronym for Landaverde Construction, Inc.

      . Because we upholding the dismissals of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.

      . The policy in question precludes coverage to an employee of the insured "which arose out of and in the course of employment by the insured, and any obligation to share damages with or repay someone else who must pay damages because of the injury.” (Emphasis added.)


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rony O. ARIAS-CHAVARRIA.
    No. 10-KA-116.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Megan L. Gorman, Kenneth P. Bordelon, Assistant District Attorneys, Gretna, LA, Counsel for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project New Orleans, LA, Counsel for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2In January of 2008, a Jefferson Parish Grand Jury returned an indictment charging defendant, Rony 0. Arias-Chavarria, with second degree murder in violation of LSA-R.S. 14:30.1. At the arraignment, defendant pled not guilty. Defendant then filed motions to suppress evidence, identification, and confession, which were heard and denied by the trial judge on August 6, 2008.

On August 18 and 19, 2009, the matter proceeded to trial before a twelve person jury. After considering the evidence presented, the jury found defendant guilty as charged. On August 25, 2009, the trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On the morning of September 10, 2007, Thomas Dimm, an excavating contractor, was clearing out trash and weeds from an overgrown vacant lot in the 2400 block of Helena Street in Kenner, Louisiana. While cutting the grass, he | (¡discovered the partially nude body of a white woman in the lot. Upon seeing this, Mr. Dimm immediately called the police.

Detective Herbert Hille of the Kenner Police Department, Criminal Investigations Division, responded to the scene. Upon his arrival, Detective Hille observed the deceased female lying in the uncut grass approximately forty feet from the doors of the back side of the businesses adjacent to the vacant lot, nearest to doors that opened into an auto body shop called Medina’s One Stop. The victim was subsequently identified as twenty-one year old Bobbie Jo Hulsey.

During the course of his investigation, Detective Hille discovered that the victim had last been seen entering Medina’s One Stop during the early morning hours of September 10, 2007. As a result of this information, Detective Hille prepared a search warrant for Medina’s One Stop, which was executed on September 12, 2007. During their search of the business, officers found defendant in the restroom and detained him while the search was being conducted. Defendant, who had been employed at Medina’s for approximately two weeks, identified himself as “Jose Luis Flores Castillo” and advised the officers that he was temporarily living at the business.

On a table in the office, the officers located a piece of paper with the victim’s name and cell phone number on it. The information was written on stationary from the Studio Lodge, the hotel where the victim had been living prior to her death. The officers also found the victim’s cell phone and cell phone charger in defendant’s backpack, which was discovered behind a couch in the office.

Subsequent to the search, the officers interviewed defendant at the Criminal Investigations Division. In this initial interview, defendant claimed that he had met the -victim outside a convenience store the day before her body was discovered |4and that she had given defendant her cell phone number and told him he could call her for sex. Defendant stated that he called the victim later that night, that she went to Medina’s One Stop, that they had sex, and that she left, leaving her cell phone behind.

After further investigation, the officers interviewed defendant again on September 13, 2007, at which point he provided the officers with his real name, Rony Omar Arias-Chavarria, and agreed to give a statement. During this second interview, defendant admitted that he took the victim to Medina’s and that he paid her to have sex with him. Defendant claimed that when they began to have sex, the victim laughed at him and told him that his penis was small. Defendant became angry, removed his penis, and inserted four fingers into the victim’s vagina. The victim told him to stop, and when defendant removed his fingers, they were covered in blood. Defendant contends that he continued to have sex with the victim, but the victim kept laughing. Defendant put his arm around the victim’s neck, squeezing until she fell to the ground. Defendant carried the victim to the field behind the shop and left her body lying in the grass. Defendant cleaned the blood from the floor with cleaning solution from the office. Defendant admitted that he did not try to call for help after the victim fell to the ground, but later called a man named Benito about an unrelated matter. After the interview was concluded, defendant was arrested for second degree murder.

In order to corroborate defendant’s statement, Detective Hille secured the phone records for both the victim’s cell phone and the business phone at Medina’s One Stop. The phone records from Medina’s One Stop confirmed that a call was placed from Medina’s to the victim’s cell phone at 1:35 a.m. on September 10, 2007. The records further reflected that there was a call placed from the victim’s | f,phone to a prepaid account in the name of Benito Hernandez at 5:25 a.m. on that same date.

At trial, Mr. Medina confirmed that defendant worked at Medina’s One Stop and that he was living in the office when the victim’s body was discovered in the vacant lot. Mr. Medina testified that defendant had a key to Medina’s and that he was the only person living at the shop. When Mr. Medina arrived at the shop the day after the victim was discovered, he observed that the shop was clean and neat, and that the office smelled of Clorox cleaning solution.

An autopsy performed by Dr. Karen Ross, a forensic pathologist and Assistant Coroner at the Jefferson Parish Coroner’s Office, established the cause of the victim’s death as strangulation associated with blunt force injuries. During her examination, Dr. Ross also observed “gaping lacerations of the vaginal and perianal area” and a “perforation between the vagina and the anus” that extended for six inches from the vagina. Dr. Ross opined that the injuries to both the neck and the vaginal/anal areas contributed to the victim’s cause of death.

In an effort to obtain a possible match from DNA evidence collected from the victim, Detective Hille obtained and executed a search warrant to take a saliva sample from defendant using a buccal swab. Bonnie Dubourg, a forensic DNA analyst for the Jefferson Parish Sheriffs Office, tested the samples taken from both the victim and defendant, and concluded that defendant could not be excluded as a possible DNA donor. Based on a statistical analysis performed on the source profile, Ms. Dubourg testified that the odds of someone other than defendant having that profile would be greater than one in one hundred billion, with the exception of identical twins.

| SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. Specifically, he contends that the evidence proved that the killing was committed in the heat of passion and, as such, constituted manslaughter. Defendant requests that this Court set aside the verdict rendered by the jury and enter a verdict for the responsive charge of manslaughter.

In reviewing the sufficiency of the evidence pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), an appellate court must determine whether the evidence, either direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522.

In the present case, defendant was convicted of second degree murder in violation of LSA-R.S. 14:30.1. To support a conviction for second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1 A(1); State v. Bauman, 08-1169 (La.App. 5 Cir. 5/12/09), 15 So.3d 177, 184, writ denied, 09-1533 (La.5/23/10), 34 So.3d 300.

Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). The determination of specific criminal intent is a question of fact. Specific intent may be inferred from the circumstances surrounding the offense and from the 17defendant’s action, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Lawson, 1 So.3d at 522.

Our review reveals that the evidence, both direct and circumstantial, was sufficient to support the conclusion that defendant had the specific intent to kill or inflict great bodily harm on the victim. In the instant case, the events described in defendant’s confession were corroborated by the autopsy report and DNA testing results, phone records, and the testimony of Dr. Ross, Detective Hille, and Ivan Medina. Specifically, the evidence presented at trial showed that defendant worked at Medina’s One Stop and was living in the office at Medina’s when the victim’s body was discovered in the vacant lot nearby. The body was discovered approximately forty feet from the doors that opened into Medina’s One Stop.

Additionally, defendant admitted that he took the victim to Medina’s and that he paid her to have sex with him. Defendant stated that he became angry when the victim laughed at the size of his penis, that he inserted four fingers into the victim’s vagina, and that when he removed his fingers, they were covered in blood. When the victim continued to laugh at defendant, he put his arm around the victim’s neck, squeezing until she fell to the ground. After he realized the victim was dead, defendant admitted that “[t]he first idea is, I throw her away some place,” and he carried the victim to the field behind the shop and left her body lying in the grass. Finally, defendant admitted to cleaning the blood from the office floor, but did not call anyone or attempt to get help for the victim.

The phone records offered at trial corroborate the information contained in defendant’s statement regarding defendant’s meeting with the victim. The records from Medina’s One Stop confirmed that a call was placed from Medina’s to the victim’s cell phone at 1:35 a.m. on September 10, 2007.

IsThe testimony offered by Dr. Ross established that the cause of the victim’s death was strangulation associated with blunt force injuries, which is consistent with defendant’s statement. In Dr. Ross’ opinion, the injuries sustained to the victim’s vaginal and perianal area could have been caused by the insertion of four fingers into that area, and the injuries to the victim’s neck could have been caused by defendant using his arm to strangle the victim. Finally, the severity of the injuries sustained by the victim was highlighted by testimony of Dr. Ross, who stated that the victim had “really gaping lacerations of the vaginal and perianal area,” and that “there was a perforation between the vagina and the anus” that “extended for six inches from the vagina.” Finally, the evidence offered by the forensic DNA analyst showed not only that defendant could not be excluded as a possible DNA donor, but that the odds of someone other than defendant having that profile would be greater than one in one hundred billion, with the exception of identical twins.

Based on the foregoing, we conclude that the evidence presented at trial was constitutionally sufficient to support the jury’s finding that defendant had the specific intent to kill or inflict great bodily harm on the victim. Despite our finding that the evidence was sufficient to establish second degree murder, we will nonetheless address defendant’s argument that the evidence at trial proved at most that he was guilty of manslaughter because the killing was committed in the heat of passion.

LSA-R.S. 14:31 A(l) defines manslaughter as a homicide which would be first or second degree murder, “but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually 19cooled, or that an average person’s blood would have cooled, at the time the offense was committed.”

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors that may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Bauman, 15 So.3d at 185; State v. Lawson, 1 So.3d at 523.

The evidence presented at trial does not support defendant’s claim that he killed the victim in “sudden passion” or “heat of blood.” By defendant’s own admission, the victim’s only provocation was that she laughed at him while they were having sex and told him that he had a small penis. Defendant also admitted that he became angry and “lost control” when the victim insulted him. It has been held that mere words or gestures, however offensive or insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La.App.2d Cir.12/15/04), 889 So.2d 1257, 1263, writ denied, 05-0132 (La.4/29/05), 901 So.2d 1063.

Considering the circumstances, defendant’s actions, and the extent of the victim’s injuries, we find that the evidence was sufficient under Jackson to support the jury’s finding that defendant had specific intent to kill or inflict great bodily harm on the victim and was, thus, guilty of second degree murder. Accordingly, the arguments raised by defendant in this assigned error are without merit.

\mDENIAL OF MOTION TO SUPPRESS STATEMENT

In this assigned error, defendant argues that the trial court erred in denying his motion to suppress statement because the State failed to prove that his waiver of rights and subsequent confession were knowing and intelligent, considering defendant’s inability to communicate fluently in English. Specifically, in his appellate brief, defendant contends that “the overall circumstances of the taking of the statement, with the obvious language barrier, the ad hoc provision of a translator for the waiver of critical constitutional rights, and the failure even to translate as much as 70 of appellant’s recorded responses, shows that the state failed to carry its heavy burden of proving a knowing and intelligent waiver of rights.” As such, defendant argues that his confession should have been suppressed.

Detective Herbert Hille, who investigated the murder of Bobbie Jo Hulsey, and Officer Ninoska Guggenheim, who read defendant his rights in Spanish and assisted with translation during defendant’s interview, testified at the suppression hearing. With regard to her translating ability, Officer Guggenheim testified that she has an Hispanic background, that her parents are from Honduras, that defendant advised her that he was from Honduras, and that she spoke Spanish in her household as child. Officer Guggenheim took Spanish classes in high school and a semester of Spanish in college, and has participated in translating over one hundred cases during her time with the Kenner Police Department. However, Officer Guggenheim has never been qualified as an expert in translation, and she does not have a language degree.

At the suppression hearing, the officers testified that defendant was initially interviewed on September 12, 2007, and agreed to give a statement. Although the officers were able to converse with defendant in English, and though both officers |nnoted that defendant could understand their conversations in English, Officer Guggenheim was called to assist with the interview. Prior to the interview, Officer Guggenheim read defendant his rights in both English and Spanish, and defendant signed the rights of arrestee form and acknowledged that he understood his rights. Both officers testified that they did not force, threaten, coerce, intimidate, or make any promises or inducements to defendant to get him to give a statement. Additionally, Officer Guggenheim testified that defendant was advised that if he did not understand what was being asked, they would translate the questions for him.

The officers interviewed defendant again on September 13, 2007, at which point defendant provided the officers with his real name and agreed to give a statement. Officer Guggenheim read defendant his rights again, in both English and Spanish, and defendant signed another advice of rights form in his own name. Defendant acknowledged that he understood his rights and wished to waive them. Both officers testified that they did not force, threaten, coerce, or intimidate defendant, nor did they make any promises or inducements to defendant in order to obtain his statement.

After considering the evidence presented at the hearing, the trial court denied defendant’s motion to suppress, holding that the statements were constitutionally obtained. Defendant now challenges this ruling.

The State has the burden of proving the admissibility of a purported confession or statement by the defendant. LSA-C.Cr.P. art. 703(D). Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was l^first advised of his Miranda? rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817; see also LSA-R.S. 15:451.

A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and the judge’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Franklin, 858 So.2d at 70.

Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. State v. Mackens, 35,350 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37. In the present case, defendant was advised of his Miranda rights, including the right to remain silent, on two separate occasions, in both English and Spanish. Defendant signed waiver of rights forms, in both English and Spanish, prior to both interviews. On both forms, defendant indicated that, though he did not have the ability to read or to write English, he understood the rights that had been read to him, was willing to answer questions without a lawyer, and waived his right to remain silent. Defendant further indicated that he had not been threatened or induced to waive his rights. In addition, the officers testified that they did not threaten, force, or coerce defendant into giving a statement.

Given these circumstances, we find that defendant’s statements were freely and voluntarily made after a knowing and intelligent waiver of his constitutional 11 .-¡rights. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to suppress statements. This assigned error is without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals that the trial court failed to advise defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. In accordance with the procedure employed in State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272, and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise defendant by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

DEFENDANT’S CONVICTION AND SENTENCE AFFIRMED.

      . Defendant was provided with a Spanish language interpreter at every substantive court appearance, including the arraignment, the motion to suppress hearing, the trial, and the sentencing proceedings.

      . Ms. Trigueros, the Spanish speaking crime scene technician, also assisted with translation during this interview.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. John W. MATHIEU.
    No. 09-KA-631.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, James W. Adair, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    John W. Mathieu, Gretna, Louisiana, In Proper Person.

      Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Appellant, John W. Mathieu.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2In defendant’s third appeal to this Court, he again seeks reversal of his conviction and sentence on the basis that he did not validly waive his constitutional right to counsel. Based on the following, we agree.

Procedural History

On October 31, 2005, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, John W. Mathieu, with the second degree kidnapping of his estranged wife, Terry Mathieu, a violation of La. R.S. 14:44.1. State v. Mathieu, 06-946 (La.App. 5 Cir. 5/29/07), 960 So.2d 296, 298, writ denied, 07-1424 (La.2/1/08), 976 So.2d 714. (Mathieu I). At arraignment, defendant pled not guilty. Thereafter, defendant filed motions to quash and to dismiss, which were both denied. Id.

On June 13, 2006, a twelve-person jury found defendant guilty as charged after a two-day trial. Id. at 299. Defendant filed a pro se motion for post-verdict judgment of acquittal and a pro se amended motion for post-verdict judgment of acquittal, both of which were denied by the trial court. Id. On June 29, 2006, defendant was sentenced to 30 years imprisonment at hard labor, with the first two | ¿years of the sentence to be served without benefit of parole, probation, or suspension of sentence, to run concurrently with any other sentence. Id. Defendant objected to his sentence and filed a timely motion for appeal of his conviction and sentence, which was granted. Id. at 299. Thereafter, defendant filed a motion to reconsider sentence, which was denied. Id.

Defendant appealed his conviction and sentence with this Court, arguing that the trial court erred in permitting him to represent himself and that the sentence imposed was excessive. On May 29, 2007, this Court conditionally affirmed defendant’s conviction and sentence, but found a potential issue with defendant’s waiver of trial counsel. This Court, therefore, remanded for an evidentiary hearing on whether defendant made a clear and unequivocal request to represent himself and, if so, whether the trial court made sufficient inquiries into defendant’s competency before accepting the defendant’s waiver of counsel as knowing and intelligent. Mathieu I at 298, 302, 307-08, 310.

The Mathieu I court explained that, if the evidence showed that defendant did not make a valid waiver of his right to counsel, the district court had to set aside his conviction and sentence and grant him a new trial. Alternatively, if after the hearing, the trial judge found that defendant validly waived his right to counsel, defendant could appeal from an adverse ruling on the waiver issue. Id. at 308, 310. Thereafter, the Louisiana Supreme Court denied writs in the matter. State ex rel. Mathieu v. State, 07-1424 (La.2/1/08), 976 So.2d 714.

On August 23, 2007, pursuant to this Court’s directive, the judge who presided over defendant’s trial conducted an eviden-tiary hearing. At the hearing, both defendant and William Doyle, the IDB attorney who assisted defendant during trial, testified. State v. Mathieu, 08-747 (La.App. 5 Cir. 1/27/09), 8 So.3d 631, 632 (Mathieu II). After considering the testimony of these witnesses and the |4arguments of counsel, the trial judge concluded that defendant made a clear and unequivocal request to represent himself and further concluded that defendant was competent to represent himself. Mathieu II, 8 So.3d at 632-33. However, this evidentiary hearing was subsequently rendered moot pursuant to an order of recusal and transfer signed by that judge on August 27, 2007. Mathieu, II, 8 So.3d at 633. That Order provided, in part, as follows:

As provided for under Louisiana Code of Criminal Procedure Article 671, and under the Twenty-Fourth Judicial District Rules of Court, this Court voluntarily recuses itself from the evidentiary hearing because this Court may be a witness regarding the Court’s inquiries into the defendant’s competency to waive counsel. As a result, the Court feels that it is in the best interest of all parties that this matter be re-allotted to another division to conduct the evidentiary hearing. Therefore;
IT IS ORDERED that the above entitled and captioned matter be re-allotted to another division of the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson for purposes of the evidentiary hearing ordered by the Louisiana Fifth Circuit Court of Appeals[sic].

Mathieu II, 8 So.3d at 633.

Pursuant to the recusal Order, defendant’s case was transferred to another division of court so a second trial judge could conduct an evidentiary hearing on the waiver issue. Mathieu II, 8 So.3d at 633. On June 6, 2008, the second evidentiary hearing was held. However, neither the State nor the defense called any witnesses to testify nor introduced any evidence. Rather, the trial judge ruled after listening to arguments of counsel. Mathieu, 8 So.3d at 633.

At that hearing, the State asserted that the evidence that it could produce were transcripts that it had previously submitted to the court, including transcripts from the trial, the pretrial hearings, and the post-trial evidentiary hearing that took place on August 23, 2007. The State argued that, based on those transcripts, the defendant knowingly and intelligently waived his right to counsel. Id. The State commented that the trial judge had the opportunity to observe the educational |filevel, intelligence, and competency of defendant, and further noted that defendant had the assistance of IDB counsel throughout the entire trial. Id.

In response to the State’s argument, defendant noted that neither he nor his trial counsel filed a written or oral motion before trial requesting that defendant be allowed to represent himself at trial. In fact, prior to the commencement of trial, defendant informed the court that he had no problem with his representation; defendant merely wanted to assist counsel and ask questions of some of the witnesses. Id. Defense counsel argued that this showed that defendant’s request to represent himself was not clear and unequivocal, and therefore, there was no direct or valid waiver. Defense counsel further argued that the trial judge did not sufficiently inquire into whether defendant knowingly and intelligently waived his right to counsel. Id.

Thereafter, by written judgment, the trial court concluded that defendant’s waiver of counsel was made knowingly, intelligently, and voluntarily after sufficient inquiry into defendant’s competency by the trial judge. Mathieu II, 8 So.3d at 633. Defendant sought relief from this judgment-by appealing to this Court. Mathieu II, 8 So.3d at 633.

In his second appeal, defendant again argued that the trial court erred in allowing him to represent himself. Mathieu II, 8 So.3d at 633-34. Defendant further asserted that the trial court again failed to conduct a reasonable inquiry to establish on the record a knowing and intelligent waiver of counsel under the overall circumstances. Mathieu II, 8 So.3d at 634. Defendant claimed that a remand for another evidentiary hearing was warranted because the June 6, 2008 evidentiary hearing did not comply with this Court s remand order. Specifically, defendant alleged that, rather than developing new evidence sufficient to determine_[^the issues set forth by this Court, the trial judge merely looked at the record that this Court previously found to be inadequate for such a determination. Id.

This Court agreed. Further, this Court again remanded and ordered the trial court to conduct an evidentiary hearing to determine whether defendant made a clear and unequivocal request to represent himself, and if so, whether the trial court made sufficient inquiries into defendant’s competency before accepting his waiver of counsel as knowing and intelligent. Mathieu II, 8 So.3d at 634.

Thereafter, on May 11, 2009, Judge Robert Pitre held an evidentiary hearing on the waiver issue. Defendant was not called to testify at this hearing. At the conclusion of the evidentiary hearing, the trial judge denied relief, stating that he was denying post conviction relief. Defendant filed a motion for appeal on May 13, 2009, which the trial judge granted. Thus, defendant’s third appeal is before this Court.

FACTS

The facts of this case were set forth fully by this Court in its opinion involving defendant’s first appeal, Mathieu I, 960 So.2d at 299-302.

DISCUSSION

in his counseled assignment of er-r0r, defendant argues the trial court erred jn allowing him to represent himself because there was no evidence of a clear and unequivocal request to represent himself nor ⅛⅛1 court make sufficient inquiries into defendant’s competency to Waive his right to counsel. He contends judge failed to advise him of the nature of the charges, the penalty range, ionc¡ ⅛6 ¿angers and disadvantages of self-representation. He also contends the judge failed to inquire about his age, education, and mental condition.

The State responds that, on June 12, 2006, defendant’s appointed lawyer proffered on the record that the trial judge had previously granted defendant’s motion to represent himself and that he had discussed the matter with defendant numerous times. The State further contends that also on this date the trial judge addressed defendant, discussed the dangers of representing himself against an experienced attorney, discussed the implications of the Rules of Evidence, and advised defendant against self-representation. Although the State concedes that according to the June 12, 2006 transcript the trial judge did not inquire into defendant’s age or education, it provides that the colloquy taken as a whole is sufficient to establish a valid and intelligent waiver of defendant’s right to counsel. The State also contends that the pro se pleadings filed by defendant suggest that he was well aware of the nature and penalty range of the charges.

The State argues that although the record does not contain defendant’s motion or the ruling regarding the court’s granting the defendant’s motion to represent himself, it does not mean that defendant failed to file a motion or that the court did not grant the motion. The State concludes the record is incomplete.

The State contends that even if the record is missing the trial court’s initial granting of defendant’s motion to represent himself, the June 12, 2006 colloquy between the trial judge and defendant prior to trial is sufficient to satisfy the criteria set forth in Faretta. The State argues that, even if the trial judge did not specifically inquire into defendant’s competency, age, and educational background in the colloquy at the beginning of trial, a review of the record revealed that the trial judge was aware of these factors from the judge’s previous interactions with Isdefendant, from defendant’s pro se filings, and from the introduction of evidence at the pre-trial hearings. The State concludes that the court did not err in holding that defendant made an intelligent and knowing waiver of his right to counsel and that the trial judge made sufficient inquiries into defendant’s competency prior to accepting his waiver of counsel.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. State v. Brooks, 452 So.2d 149, 155 (La.1984) (on rehearing); State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 127, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767. An accused has the right to choose between the right to counsel and the right to self-representation. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

A defendant may elect to represent himself if the choice is knowingly and intelligently made and the assertion of the right is clear and unequivocal. State v. Campbell, 06-0286 (La.5/21/08), 983 So.2d 810, cert. denied, — U.S.-, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008) (citing U.S. Const. Sixth Amendment; La. Const, art. I, § 13; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; State v. Hegwood, 345 So.2d 1179, 1181-82 (La.1977)). The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. See Faretta, supra.

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Bruce, 03-918 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857. In 19addition, the court should inquire into the defendant’s age, education and mental con'dition, and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Id.

Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on a case-by-case basis, considering the facts and circumstances of each case. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 147-48, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Requests that vacillate between self-representation and representation by counsel are equivocal. Id. at 147 (quotation omitted).

Courts must indulge in every reasonable presumption against a waiver of counsel. State v. LaGarde, 07-288 (La.App. 5 Cir. 10/30/07) 970 So.2d 1111, 1119. The trial court is given much discretion in determining whether the defendant’s waiver was knowing and intelligent. Id. at 1120. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. Id. The failure of a trial court to secure a valid waiver of counsel constitutes reversible error. State v. Bruce, 864 So.2d at 857.

In our opinion on defendant’s first appeal, this Court noted:

The record reveals that the defendant was allowed to represent himself with the assistance of appointed counsel.^ The record does not contain any written motion by the defendant requesting to represent himself with or without the assistance of counsel, nor does it contain a ruling from the trial judge granting such a request. Similarly, the minute entries do not show that the issue of waiver of counsel was addressed at a pretrial hearing.
Nevertheless, the record is replete with pleadings filed by the defendant pro se, as well as pleadings filed by his appointed counsel. The minute entry for the first day of trial (June 12, 2006) states: “Previously the Court granted the pro se motion for the Defendant to represent himself. William Doyle will assist.” The defendant’s desire to represent himself was discussed by his appointed counsel, the trial judge, and the defendant prior to commencement of the proceedings on both the first and second days of trial. The defendant conducted Imcross examination of most of the witnesses, and also made his own closing argument.

Mathieu I, 960 So.2d at 302-03. This Court, which ordered the case remanded back to the district court for an evidentia-ry hearing, found:

It is impossible to discern from the record whether the trial court’s inquiry was sufficient to determine whether the defendant’s request to represent himself was clear and unequivocal and whether the defendant’s competence to waive his right was knowing and intelligent. Nor can it be discerned whether the trial court’s previous interactions with the defendant allowed the court to ascertain the defendant’s mental and educational background, as argued by the State.

Mathieu I at 304-07.

In our opinion regarding defendant’s second appeal, this Court agreed that another remand was warranted and provided the following:

We first note that the June 6, 2008 judgment does not address the issue of whether defendant made a clear and unequivocal request to the trial court either personally or through his trial counsel to represent himself. Furthermore, it is impossible to determine upon what documents the trial judge based his ruling. As noted previously, although the state provided the court with some transcripts, they were never introduced into evidence at the hearing. From the trial judge’s reasons for judgment, we know that he relied in part on some of the transcripts that this Court previously found insufficient to determine the issues relating to defendant’s self-representation. Moreover, the judge who conducted the second eviden-tiary hearing stated that he had not read or relied upon the first evidentiary hearing transcript in rendering the June 6, 2008 judgment because there was a pending recusal when the previous hearing was conducted.
For these reasons, we once again remand the case and order the trial court to conduct an evidentiary hearing to determine whether defendant made a clear and unequivocal request to represent himself, and if so, whether the trial court made sufficient inquiries into defendant’s competency before accepting his waiver of counsel as knowing and intelligent. If the evidence shows that defendant did not make a valid waiver of his right to counsel, the district court must set aside his conviction and sentence and grant him a new trial. If, after the hearing, defendant is found to have validly waived his right to counsel, defendant may appeal from any adverse ruling on the waiver issue. In the absence of such an appeal, defendant’s conviction and sentence will be affirmed.

Mathieu II, 8 So.3d at 634.

| T1 Clearly, we have previously found that the record in defendant’s first and second appeals failed to demonstrate two events: first, that the defendant made a clear and unequivocal request to represent himself; and, second, that the trial court adequately inquired into defendant’s competency to waive before accepting his waiver of counsel. Mathieu I, 960 So.2d at 298, 310; Mathieu II, 8 So.3d at 634. Accordingly, the sole question before us in defendant’s third appeal is whether the evidence produced at the May 11, 2009 evidentiary hearing supports the finding that defendant asserted an unequivocal request to represent himself and that said waiver was knowingly and intelligently made. We find that it did not.

On May 11, 2009, the sole witness that testified at the evidentiary hearing on defendant’s waiver of his right to counsel was the trial judge who presided over his case in district court. Also, the State presented the following evidence: transcripts from February 2, 2006, March 30, 2006, April 11, 2006, April 27, 2006, May 1, 2006, and August 23, 2007; a copy of defendant’s letter and pro se filings; and the June 12, 2006 transcript. At the close of the hearing, the ruling judge concluded:

Based on the totality of the circumstances, and not only just the transcripts, but the, fact that Mr. Doyle was appointed and sat through the whole trial with him, plus the fact that [the trial judge] was satisfied that with all the pleadings that Mr. Mathieu filed, and the fact that he represented himself in another case, I’m going to go ahead and deny his post conviction relief.

First, the record still fails to contain any motion by defendant requesting to represent himself, with or without assistance of counsel, or a ruling granting such a request. At the May 11, 2009 evidentiary hearing, the original trial judge admitted that there was no motion in the record from defendant to represent himself. He agreed that it looked like defendant did not indicate that he wanted to represent himself prior to the first day of trial.

112Further, the “evidence” presented was pro se filings and discussions at trial, which this Court has twice considered insufficient proof of a request for a waiver. The failure by the trial court to secure a valid waiver of counsel constitutes reversible error. See State v. Wisenbaker, 428 So.2d 790, 794 (La.1983) (“Because the record does not reflect a knowing and intelligent waiver of counsel or conduct by defendant which amounts to a waiver, defendant’s conviction must be reversed and the case remanded for a new trial.”).

Furthermore, since the hearing did not reveal a request for a waiver on the record, we do not even reach whether the trial judge made sufficient inquiries to assure that the waiver was knowingly and intelligently made. Moreover, because we have found reversible error, we pretermit discussion of further assignments of error.

Accordingly, defendant’s felony conviction and sentence are reversed. This matter is remanded for a new trial.

ERROR PATENT DISCUSSION

The current record was reviewed for errors patent, according to La.C.Cr.P. art. 920. Defendant is not entitled to a second (or third) review of the entire record. We have, therefore, reviewed only the transcript of the evidentiary hearing conducted on May 11, 2009. Our review of this hearing revealed no errors patent.

CONVICTION AND SENTENCE REVERSED; NEW TRAIL GRANTED.

      . On May 26, 2009, defendant filed a motion for new trial, alleging that the State failed to meet the burden of proving that defendant made a knowing, intelligent, clear, and unequivocal request to represent himself. Also on this date, defendant filed a request for rehearing of the evidentiary hearing and requested that Judge Pitre voluntarily recuse himself. The trial court, finding that it was divested of jurisdiction upon the entry of the order of appeal, denied both on June 2, 2009.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . See State v. Taylor, 01-452, p. 10 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426.


text:
    Maxine WEBSTER v. PENN TREATY NETWORK AMERICA INSURANCE COMPANY and American Network Insurance Company and Nash Roberts.
    No. 10-CA-411.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2010.
    Hollis Shepherd, New Orleans, LA, for Appellant, Maxine Webster.
    Lance J. Arnold, New Orleans, LA, for Appellee, Nash Roberts.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

Lin this lawsuit for unpaid wages, employee, Maxine Webster, appeals from a judgment sustaining her former employer’s exception of prescription in part and overruling the exception in part. The judgment appealed from is not a final, appealable judgment. Therefore, we dismiss this appeal without prejudice.

Law and Analysis

Article 1915(B) of the Louisiana Code of Civil Procedure provides, in pertinent part, that:

(1) When a court ... sustains an exception in part, as to one or more but less than all of the claims ..., the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims ..., shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

After a review of the record, we note that the judgment on the exception of prescription, which was sustained in part and overruled in part, does not adjudicate all the claims between the parties. Further, the trial court did not designate the judgment as final for purposes of immediate appeal, nor did it make a ^determination that there is no just reason for delay. Thus, the judgment before us is not ap-pealable. Therefore, we will dismiss this appeal without prejudice. See, Brown & Root v. Matherne, 04-206 (La.App. 5 Cir. 7/27/04), 880 So.2d 77.

For the above discussed reasons, this appeal is dismissed without prejudice, and the matter is remanded for further proceedings. All costs of this appeal are to be borne equally by the parties.

APPEAL DISMISSED.


author: JAMES F. McKAY III, Judge.

text:
    WOODLAND PROPERTIES, L.L.C. v. NEW ORLEANS SEWERAGE AND WATER BOARD.
    No. 2010-CA-0331.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.
    John H. Musser V, Donald R. Wing, Murphy Rogers Sloss & Gambel, New Orleans, Louisiana, for Plaintiff/Appellant.
    Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   JAMES F. McKAY III, Judge.

bln this action on a petition for posses-sory action, the trial court granted a summary judgment in favor of the defendant, Sewerage and Water Board of New Or-, leans, and against the plaintiff, Woodland Properties, L.L.C. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 31, 1942, Ernest B. Norman transferred to the State of Louisiana and the Department of Highways a “right of way” over certain real estate which he owned, pursuant to a document entitled “Right of Way Deed.” One of the properties subject to the right of way is described in the deed as Parcel 1-B. The state ultimately ended up not needing the right of way over this particular property and in 1994 renounced its interest in the servitude by issuing a quitclaim deed in favor of Mr. Norman’s successors. In 1998, Woodland Properties, L.L.C. became the successor-in-title to the property.

In 2002, Woodland entered into an option to sell the property to Mr. and Mrs. Reginald Johnson who intended to build a home on the property. A survey | ¿revealed the existence of a 16-inch underground asbestos cement waterline running parallel to the southernmost diagonal property line, directly across the property. The waterline is owned by Sewerage and Water Board of New Orleans (SWB) and was installed in or about 1965. The SWB admitted that it never asked Mr. Norman or his successors-in-title for permission to construct the waterline but simply obtained a permit from the State to install the waterline under the property. Based on the problems presented by the waterline, the Johnsons withdrew from the option and cancelled the potential sale. Thereafter, Woodland proposed that the SWB remove the waterline or purchase the property, as it was effectively removed from commerce due to the SWB waterline and its claimed maintenance servitude. The SWB refused and Woodland instituted - this action.

On December 3, 2007, Woodland filed a motion for summary judgment. Woodland asserted that the only right conveyed in the deed by its predecessor-in-title to the state was a servitude of right of way, not fee ownership. Therefore, the state did not have the right to authorize the SWB to install the waterline under the property; only Woodland’s predecessor-in-title, as fee owner of the property could grant permission to the SWB for the waterline to be installed on the property. Since the SWB did not obtain such permission or authority, Woodland asserted that it was entitled to judgment as a matter of law. The trial court denied Woodland’s motion for summary judgment.

On July 1, 2009, the SWB filed its own motion for summary judgment, alleging that Mr. Norman transferred full ownership of the property to the state via |sthe deed in 1942, and that, since the state issued the SWB a permit allowing it to place the waterline on the property in 1965, before the state quitclaimed the right of way back to Mr. Norman’s successors in 1994, it was not required to obtain permission from Mr. Norman or his successors. On October 12, 2009, the trial court granted the SWB’s motion for summary judgment and dismissed Woodland’s lawsuit with prejudice. It is from this judgment that Woodland now appeals.

DISCUSSION

This Court reviews a trial court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 2000-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. Although Louisiana courts favor summary judgment, summary judgment is appropriate only when no genuine issues of material fact exist. La. C.C.P. art. 966. A fact becomes “material” when “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp. Inc, 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A “material fact” is one that could “potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. If doubts arise regarding the existence of a material issue of fact, the court must refuse the motion and instead, proceed with a trial on the merits. Id.

|4In order to determine whether a fact is material, a reviewing court must evaluate the substantive law that governs the litigation at issue. Davenport v. Albertson’s, Inc., 2000-0685, p. 2 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, 342; In re Medical Review Panel Proceedings Reidling v. Smith, 2002-0778, p. 4 (La.App. 4 Cir. 9/18/02), 828 So.2d 656, 659. To meet the burden for summary judgment, the mov-ant must show that “any real doubts as to the existence of any genuine issue of material fact” is excluded. Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981). Only if the movant has made a prima facie showing that summary judgment should be granted, does the burden shift to the non-movant, who must produce evidence to the contrary. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p. 4 (La.6/30/00), 764 So.2d 37, 40. If reasonable minds could differ on the issue, summary judgment is not proper. See Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189, 1191 (La.1981).

The issue before this Court is whether the facts are clear that the state had the authority to grant the SWB the right to install the waterline on the property. Therefore, we must look to the Right of Way Deed executed by Mr. Norman. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation need be made into the parties’ intent.” La. C.C. art. 2046; see also Abshire v. Vermilion Parish School Board, 2002-2881, p. 5 (La.6/27/03), 848 So.2d 552, 555. Louisiana’s “jurisprudence is well settled thát the instrument as a whole must be considered in arriving at what was meant in the dedication, and that unless the deed itself evidences the parties intended otherwise, | Bthe conveyance of a right of way is the grant of a servitude and not a transfer of title to the land.” Taylor v. Dunn, 233 La. 617, 630, 97 So.2d 415, 420 (1957) (citing Texas & Pac. Ry. Co. v. Ellerbe, 199 La. 489, 492, 6 So.2d 556, 557). In the instant case, the only right conveyed by Mr. Norman in the Right of Way Deed to the state was a highway servitude of “right of way,” not full fee ownership. The repeated use of “right of way” signifies the intent to grant just a servitude.

The right of imposing a servitude belongs solely to the owner of the property alone, as no one can transfer a greater right than he himself has. See La. C.C. arts. 646 and 697; see also Wright v. Dept. of Highways, 342 So.2d 230 (La.App. 1st Cir.1977). In American Tel. & Tel.Co. v. East End Realty Co., 223 La. 532, 66 So.2d 327 (1953), the Louisiana Supreme Court held that where land owners had just granted a highway right of way to the State Highway Commission, a telephone company (which had secured a certificate of convenience and necessity from the Director of State Highways) was not entitled to lay even just coaxial cable upon the right of way without giving the land owners additional just and adequate compensation, since laying cable in the right of way constituted an additional use of the servitude. Therefore, in the instant ease, the state could only transfer a right that it already had and nothing greater.

In the instant case, no language in the deed transferred full ownership of the property from Mr. Norman to the state. If there was no transfer of ownership, Woodland’s predecessors-in-title were the owners of the property in 1965 when the SWB’s waterline was installed without their permission or knowledge. As such, |,; genuine issues of material fact exist regarding the ownership of the property which makes summary judgment inappropriate in this case.

CONCLUSION

For the above and foregoing reasons, we reverse the trial court’s granting of summary judgment and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.