author: MOORE, J. CARAWAY, J.,

text:
    Rebecca C. STRICKLAND, Plaintiff-Appellee, v. Mark W. STRICKLAND, Defendant-Appellant.
    No. 44,185-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    Culpepper & Carroll, PLLC by Bobby L. Culpepper, Jonesboro, for Appellant.
    Darrell R. Avery, Jonesboro, for Appel-lee.

      Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

| Rebecca Strickland filed a petition for Partition of Community Property against her former husband, Mark Strickland. Mark did not answer the proceedings. A preliminary default judgment was entered and eventually confirmed. After he received notice of the judgment, Mark filed a motion for a new trial. The trial court denied the motion and Mark filed this appeal. We affirm.

Facts

Ten months after obtaining a judgment of divorce, on November 21, 2007, Rebecca Strickland filed a petition for partition of the community property against her former husband, Mark W. Strickland, with an order attached directing the parties to file a sworn descriptive list of the community property within 45 days. Rebecca filed her descriptive list with her petition for partition. Service of citation, the petition and order were attempted on November 27, 2007. The citation was returned un-served. Subsequently Mark was served with the petition, order and citation on December 19, 2007.

Mark did not answer the petition, nor did he file a sworn descriptive list within 45 days pursuant to the order. Approximately 74 days after he was served, Rebecca entered a preliminary default judgment that was subsequently confirmed after a hearing, the transcript of which is in the record. The judgment was signed on March 13, 2008.

After Mark received a copy of the judgment, he obtained an attorney who immediately filed a motion for new trial. The trial court denied the motion and plaintiff filed this appeal.

| ¡.The sole assignment of error is that the trial court erred as a matter of law in denying the motion for a new trial.

Discussion

Mark alleges on appeal that the trial court failed to follow the procedures set forth in La. R.S. 9:2801 in partitioning the community property. Specifically, he complains that the court failed to equally divide the assets as required by La. R.S. 9:2801(A)(4)(b), largely because some of the assets were not assigned any value.

La. R.S. 9:2801 sets forth mandatory procedural rules for a partition of the community property when the partition is instituted as incident to the divorce proceeding:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that ivould result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules: (l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
|s(b) Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required.
(2) Within sixty days of the date of service of the last filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. For good cause shown, the court may extend the time period for a party to traverse or concur in the detailed descriptive list of the other party. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

In our view, as anticipated by Rebecca’s counsel, the core issue in this case is really a question of whether Mark was afforded due process when Rebecca obtained a judgment of partition by confirming a default judgment rather than raising the issue by filing a rule to show cause. Thus, the issue is whether the trial court erred in allowing the suit to partition the community property to be taken up as a confirmation of a judgment by default rather than by rule to show cause. There is some jurisprudence on this issue.

In Joseph v. Joseph, 619 So.2d 181 (La.App. 8 Cir. 6/2/93), a year after obtaining a divorce, the plaintiff filed an action to partition the community property and the defendant was served. The plaintiffs petition for partition of the community property included a prayer requesting that the trial court order the defendant to file a sworn detailed descriptive list. The trial court ordered the defendant to file his detailed descriptive list and to | .¡either traverse or concur in the detailed descriptive list filed by the plaintiff within 15 days from the date of service. The defendant was served on December 10, 1990, and failed to answer the petition. On September 16, 1991, a preliminary default was entered on the suit to partition the community property, and thereafter confirmed October 16, 1991. Counsel for the defendant filed a motion for new trial which was denied.

On appeal, the defendant argued that he was entitled to receive notice of opposing counsel’s intent to obtain a default judgment. More specifically, he alleged that the trial court erred in allowing the suit to partition the community property to be taken up as a confirmation of a judgment by default.

The third circuit held that the preliminary default and confirmation were proper since Mr. Joseph did not answer the suit for partition and the court had ordered the defendant to file his detailed descriptive list and to either traverse or concur in the descriptive list filed by the plaintiff. Joseph, supra at 188. See also, Palombo v. Palombo, 94-95 (La.App. 3 Cir. 10/5/94), 643 So.2d 445.

By contrast, the first circuit, in Bible v. Bible, 2003-2793 (La.App 1 Cir. 9/17/04), 895 So.2d 547, affirmed a judgment of nullity in favor of the divorced husband following a judgment confirming a preliminary default against him in his former wife’s action to partition community property. Ms. Bible filed a petition for community property partition with an attached sworn descriptive list. Mr. Bible failed to answer the petition and Ms. Bible subsequently entered a preliminary default judgment that was subsequently | sconfirmed. Thereafter, Mr. Bible filed a motion for nullity alleging that the judgment was improperly obtained in that the procedure set forth in La. R.S. 9:2801 was not followed. The trial court granted the motion, and Ms. Bible appealed.

Affirming the judgment, the appellate court held that “the provisions of La. R.S. 9:2801 are mandatory.” Bible v. Bible, supra at 550; (citations omitted). The court distinguished the facts of the case from Joseph v. Joseph, supra, and Palombo v. Palombo, supra, where, in both cases, the petitions contained a prayer for an order directing the defendant to file a sworn descriptive list, thereby conforming to the requirements of R.S. 9:2801 to file a motion for a descriptive list. Ms. Bible’s petition contained no such prayer and no order was issued.

In this instance, the record shows that when Mark was served with the petition for partition and order to file a descriptive list, he received service of citation indicating that he would be subject to a default judgment if he failed to answer the petition within 15 days. La. C.C.P. art. 1201 and 1202(5). (See Comment to La. C.C.P. art. 1201 that a claim for partition incidental to divorce action requires service of citation.)

Unlike Bible v. Bible, supra, Rebecca’s petition contains a prayer for an order directing the parties to file a sworn descriptive list within the delays allowed by the order, and after trial, that there be a judgment ordering the partition. The facts of the case are thus analogous to those in Joseph v. Joseph, supra.

| fiRebecca contends that La. R.S. 9:2801(A)(2) permits her to obtain a default judgment by ordinary proceedings. The statute gives either party 60 days from the date of the last filed descriptive list to traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. The traverses may be done by summary procedure, but the valuations must be determined by trial on the merits. At its discretion, the court may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses. Thus, Rebecca contends, obtaining the default judgment by ordinary procedure was appropriate.

We agree. Discussing the impact of La. R.S. 9:2801 on the procedure to be followed in a partition of community property in Washington v. Washington, 493 So.2d 1227 (La.App. 2 Cir.1986), this court stated that “the statute contemplates that the partition process for community property be initiated by petition, and, if desired (emphasis ours), supplemented by summary proceedings for trial of the traverses of the detailed descriptive list.” Id. at 1231-32. In its current form, the statute provides that, in addition to a trial of the traverses, a party may invoke summary proceedings if a party fails to file a descriptive list. In this instance, Rebecca initiated the partition by petition and direct reference to La. R.S. 9:2801 and a prayer for an order pursuant to the statute. Mark failed to answer the petition and order. Rebecca could have invoked a summary proceeding by filing a rule l7to show cause why her descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. Instead, she chose to proceed by taking a default judgment under La. C.C.P. art. 1701, and submitting the evidence required to obtain a confirmation of the. default judgment under La. C.C.P. art. 1702. The court thus established the valuations and completed the partition by ordinary proceeding, i.e., by taking the matter up as a confirmation of default matter.

We conclude, therefore, that the trial court did not err in taking up the partition by confirmation of default judgment and rendering a judgment of partition based on the evidence adduced.

Defendant complains, however, that the court failed to follow the procedure outlined in La. R.S. 9:2801 because some items in his possession were not assessed any value, and, in other instances, he challenges the division of the assets or the items on Rebecca’s descriptive list. He contends, therefore, that the court did not follow the mandate of the statute to “value the assets” at the trial on the merits and to “divide the community assets and liabilities so that each spouse receives property of an equal net value.” La. R.S. 9:2801(A)(3)(a)(b).

After our review of the confirmation transcript and the descriptive list submitted by Rebecca which the trial court determined to constitute the community assets and liabilities, we conclude that Mark’s claims have no merit.

First, regarding the items in which “no value” was assigned, we observe that Mark is in possession of these items which were allocated to |shim in the judgment of partition. Mark was given ample opportunity to submit a descriptive list and show, if possible, that the debt on the 2001 Dodge Dakota exceeds its value. He did not do so, nor does he make this claim on appeal.

Mark’s complaint that he is getting assessed for one-half of a new air conditioning unit entirely to the benefit of the plaintiff is also without merit. The debt was incurred during the community regime, and the fact that Rebecca obtained the house in the partition is of no moment.

Finally, regarding the other minor liabilities in the judgment of partition of which Mark now complains, we will not allow Mark to, in effect, traverse the descriptive list on appeal, when he failed to take such action in proceedings before the trial court. To do so now would be to reward him for his earlier inaction and would unfairly penalize Rebecca.

Conclusion

For these reasons, the judgment of the trial court denying the defendant’s motion for a new trial is affirmed.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|,I respectfully dissent from the majority’s view that this community property partition action under La. R.S. 9:2801 (hereinafter the “Statute”) appropriately shifted in midcourse from a summary action to an ordinary proceeding with due process afforded Mark Strickland.

There are three distinct modes of procedure used in Louisiana civil matters: ordinary, summary, and executory. La. C.C.P. art. 851. Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. Code of Civil Procedure Article 2592 provides a listing of specific summary actions, but also recognizes that there can be “other matters in which the law permits summary proceedings to be used,” which are not enumerated in the article. La. C.C.P. art. 2592(12); see also, Official Revision Comments (b) to Article 2592 (1960). The legislative intent for the mode of procedure for a given statutory action must be determined. Id.

While the Statute makes a reference at one point to a discretionary trial by ordinary procedure, all indications in the Statute before that reference are for summary proceedings. The Statute states that the partition action may be conducted as an incidental matter to the parties’ divorce proceeding, which itself is conducted through special summary proceedings. See, La. C.C. arts. 102 and 103, and La. C.C.P. arts. 3941, et seq. The principal procedure initially set forth under the Statute is for the parties’ identification and evaluation of all community assets and liabilities in a [¿summary manner. Three outcomes can occur during this phase. The parties’ sworn detailed descriptive lists can be in agreement. If not in agreement, the parties traverse the inventory for any asset or liability or its value in a “trial of the traverses.” The third possibility involves the failure of a party to timely file a sworn detailed descriptive list, so that the other party’s list, after a “rule to show cause” (as opposed to a traversal hearing), is “deemed to constitute” the community assets and liabilities by default. La. R.S. 95801(A)(1)(a).

Finally, there is one last phase of the special community partition action that is not addressed under the Statute with specific procedural detail, but is implicit for the trial court’s ultimate judgment. After the assets and liabilities and their values have been decided through the initial proceedings, the trial court must make “an allocation of assets and liabilities to the parties.” This allocation phase certainly can involve contentious claims between the parties. The Statute identifies some of the causes for contention in this final phase of the proceeding: “the allocation of an asset, in whole or in part, would be inequitable to a party;” a choice between drawing lots, private sales, or licitation sales may be necessary; or the determination for “an equalizing sum of money, either cash or deferred, secured or unsecured” may be required. The Statute suggests the possibility that the trial court can make the allocation/partition in this final phase of the action without further hearings after the initial identification and valuation proceedings. Nevertheless, unless the community is composed of few assets that are easily divisible, the expected procedure in this final phase would ^require a party or both parties to move for the allocation/partition, proposing to the court the party’s suggested division of assets and liabilities and any equalizing payment. In keeping with the allowance for summary proceedings throughout the identification and valuation phase, any final dispute over the parties’ conflicting allocations for assets and liabilities can be tried by a rule to show cause.

Two other observations regarding the Statute. The speed of summary proceedings to divide the community and allow the parties to move on with their economic lives is an obviously beneficial policy. The unusual allowance for a shift to ordinary procedure contained in the final sentence of Subpart (A)(2) of the Statute is for the trial court to choose and direct in its discretion, not the choice for one of the litigants. Arguably, such change in procedure may narrowly apply in the situation where both parties have made appearances in the action, and the trial court elects a pretrial procedure in keeping with ordinary proceedings, both to afford the parties time to develop evidence and to frame for trial the issues surrounding numerous properties and liabilities of an economically complex former community.

Clearly, this action began as a summary procedure. Rebecca’s petition made no allegations identifying assets, liabilities, any claim for a reimbursement debt owed her, or any proposed allocation of property. The petition simply sought a court order, and Mark was directed upon issuance of that specific order to act within 45 days by filing a sworn descriptive list “of all property comprising the former community.” The general citation language in the service document accompanying the petition directed Mark |4to answer within 15 days under penalty of default, and therefore was not in harmony with the specific 45-day order he received. No prayer for a money judgment against Mark appeared in Rebecca’s petition. While Rebecca’s sworn descriptive list did detail reimbursement claims for community debts she paid, it is not clear from the record that this descriptive list was served on Mark.

An important principle of notice to the defendant in the default setting of the ordinary action is that “a judgment of default shall not be different in kind from that demanded in the petition.” La. C.C.P. art. 1703. A defendant has a due process right to know what is at stake when a default is threatened. Spear v. Tran, 96-1490 (La.App. 4th Cir.9/18/96), 682 So.2d 267, 271, writ denied, 96-3024 (La.2/7/97), 688 So.2d 500. Mark did not receive such notice in this proceeding alerting him to the possibility for the $10,140.05 money judgment that was ultimately rendered against him by default for Rebecca’s reimbursement claim never mentioned in her petition.

The Statute did provide Rebecca with an opportunity for defaulting Mark based on his inaction. “If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities.” La. R.S. 9:2801(A)(l)(a). Rebecca did not follow that procedure and serve such rule to show cause on Mark. A rule to show cause, coupled with a motion to adjudicate Rebecca’s proposed allocation of the community and equalizing Inpayment for reimbursement claims, would have given Mark proper notice of the judgment rendered against him. In the absence of that procedure and that notice, the judgment should be reversed.

      . When Washington was decided, La. R.S. 9:2801 provided that "the trial of the traverses may be by summary procedure,” as does the current statute. There was no provision in the statute permitting a party to invoke summary procedure in the event a party failed to file a descriptive list.


source: Caselaw Access Project

author: LOLLEY, J. DREW, J.,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Applicant, v. Cornelius Dangelo SIMS, Defendant-Respondent.
    No. 44,123-KW.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.

      Peter R. Flowers, Shreveport, for Defendant-Respondent.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Jason T. Brown, Assistant District Attorneys, for Plaintiff-Applicant.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| tThis writ application arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Cornelius Dangelo Sims was charged by bill of information with possession of marijuana, second offense, in violation of La. R.S. 40:966(E), and illegal carrying of weapons while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E). He entered a guilty plea to the marijuana possession charge and was sentenced to serve 18 months at hard labor. Subsequently, the state attempted to prosecute Sims on the pending weapon charge; however, the trial court prohibited it from instituting the prosecution, holding that such a prosecution on the weapons charge would violate Sims’ right against double jeopardy. The state then filed the instant supervisory writ. After obtaining the record from the trial court, we placed the matter on the appellate docket for argument and decision. For the following reasons we determine that the writ should be denied, and we affirm the trial court’s ruling.

Facts

In March 2007, Sims was stopped in his vehicle by police officers. The officers executed a search of his vehicle and discovered 15 grams of marijuana hidden in the center console of the vehicle, several weapons, and a large quantity of cash. As a result, Sims was charged with one count of possession of marijuana, second offense, and one count of illegal carrying of weapons while in possession of a controlled dangerous substance, violations of La. R.S. 40:966(E) and La. R.S. 14:95(E), respectively. The state entered into an agreement with Sims’ trial counsel whereby he would enter a guilty plea to the marijuana possession charge and the illegal | .¿carrying of weapon charge would be subject to a jury trial. As per the agreement, Sims pled guilty to the marijuana possession, second offense charge and was sentenced to serve 18 months at hard labor.

Later, Sims filed a motion to quash the illegal weapons possession charge on the grounds of double jeopardy, arguing that his possession of marijuana, second offense conviction and sentence was an underlying offense of the illegal weapons possession charge; therefore, double jeopardy precluded the state from prosecuting him on the weapons charge. The trial court ultimately granted relief in favor of Sims, and the state objected to the ruling, filing the instant writ application.

Discussion

In the instant case, Sims was charged with two crimes: possession of marijuana, second offense, to which he pled guilty (La. R.S. 40:966(E)); and, illegal carrying of a weapon while in possession of a controlled dangerous substance (La. R.S. 14:95(E)). Specifically, the state argues that the weapon charge is not double jeopardy, because the possession of marijuana, second offense adds an additional element-the requirement of a predicate conviction.

Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. U.S. Const, amend. V; La. Const, art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980); State v. Blackson, 38,044 (La.App.2d Cir.01/28/04), 865 So.2d 272. The two tests used by Louisiana courts when examining double jeopardy violations are 13the “distinct fact” or the Blockburger test and the “same evidence test.” The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. State v. Blackson, supra. If multiple charges are double jeopardy under Blockburger, then the inquiry need go no further, since the constitutional prohibition against double jeopardy will have been abridged.

However, if there is not a finding of double jeopardy under the Blockburger test, then we must look to Louisiana’s “same evidence” test to see if the state’s greater protection is implicated. The Louisiana definition of double jeopardy test is contained in La. C. Cr. P. art. 596, which states:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial. (Emphasis added).

The “same evidence” test is articulated as this query: if all 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. Steele, supra. The “same evidence” |4test is broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra.

As noted by the Louisiana Supreme Court, “the Double Jeopardy Clause, under both the [Blockburger test] and the ‘same evidence’ test, prevents an offender from being convicted of both a felony murder and the underlying felony. The rationale which supports that rule is the same as that which prevents on offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself.” State v. Sandifer, 1995-2226 (La.09/05/96), 679 So.2d 1324, 1329. The state argues that the instant case is distinguished by the fact that the underlying offense was possession of marijuana, second offense, which obviously includes the additional element of the predicate offense. We agree that under the Blockburger test, the firearm charge is not double jeopardy. In fact, Sims concedes that the instant charges would not violate double jeopardy under the Blockburger test because each offense requires an element of proof that the other offense does not, i.e., the existence of a weapon in the case of the illegal weapon charge and a prior drug conviction in the marijuana possession, second offense charge.

However, our inquiry does not stop there, for we must consider the “same evidence” test. Notably, the question of whether a subsequent charge is double jeopardy is a difficult one to answer; thus we found it helpful to consider some opinions from the line of opinions that have discussed Louisiana’s “same evidence” test for double jeopardy. Our courts have long Lused the “same evidence” test in contemplating the issue of double jeopardy. Although not referring to the test by name, the Louisiana Supreme Court considered the application early in State v. Augustine, 29 La. Ann. 119 (1877), when the court determined that the defendant could not be tried separately for the theft of a horse after he had already been indicted, tried, convicted and sentenced for the larceny of the wagon which was hitched to the horse. The court would not permit an unlimited number of indictments to be predicated upon an action hinging from a single fact-in Augustine, the theft. Implicit in that holding is that evidence of the theft, the thing taken (the horse and wagon), was required for both crimes.

In State v. Bonfanti, 262 La. 153, 262 So.2d 504 (La.1972), the court sustained the defendant’s claim of double jeopardy regarding a subsequent charge of indecent behavior with a juvenile stemming from the same conduct for which he had been convicted of simple battery on the same juvenile. In Bonfanti, the court noted that the two charges arose from one occurrence. The evidence used to support the defendant’s previous conviction of simple battery was his use of intentional force on the juvenile by putting his hands up her dress. There was no additional evidence to support the subsequent charge for indecent behavior, thus each offense required the same evidence and subsequent prosecution of the second charge was barred as double jeopardy.

As noted in State v. Didier, 262 La. 364, 263 So.2d 322, 328 (La.1972), Louisiana’s “same evidence” test is based upon whether the actual evidence introduced at the second trial would have supported conviction in |f,the first. There, it was determined that the defendant’s subsequent prosecution for robbery-theft was barred by his earlier malfeasance prosecution and conviction. Interestingly, the Didier court posed the question, “Had the defendant been acquitted in the malfeasance prosecution [the first charge], he was necessarily innocent of the robbery-theft participation [the second charge].” Id. at 327.

The court looked to Bonfanti when it considered the case State v. Steele, supra. In Steele, the defendant had originally been charged with reckless driving, D.W.I., and negligent injuring. He pled guilty to D.W.I. and the charge of reckless driving was dismissed. The state then proceeded to prosecute Steele for negligent injuring. When applying the “same evidence” test to the crimes of D.W.I. and negligent injuring, the Supreme Court looked at the definitions of the two crimes, determined that the same evidence would not be required to convict Steele on both charges, and concluded that there was no double jeopardy as to the these two charges. However, when the Steele court applied the “same evidence” test to the charges of reckless driving and negligent injuring it concluded that the evidence to prove the second charge (i.e., negligent injuring), would have been sufficient to convict the defendant of the first charge (i.e., reckless driving). Id. at 1178. Thus, under the “same evidence” test a prosecution of the negligent injuring charge would be a violation against double jeopardy.

Further, we note State v. Sandifer, supra. In that case the defendant was charged with possession of marijuana and cocaine and possession of a weapon while in possession of controlled dangerous substance. The 17defendant pled guilty to possession of marijuana, and subsequently filed a motion to quash the weapon charge. Ultimately, the Louisiana Supreme Court determined that the evidence of the defendant’s alleged possession of cocaine, for which he had not been convicted, provided a proper basis to support his prosecution under the weapon charge. Id. at 1330. The evidence of the defendant’s possession of marijuana was not required in order to convict him of the weapon offense, because other evidence existed sufficient to support the charge.

Additionally, we note that La. C. Cr. P. art. 596 states that double jeopardy exists when the charges is “identical with or a different grade.” (Emphasis added). Possession of marijuana, second offense, is a different grade of possession of marijuana, making La.C.Cr. P. art. 596 applicable to this offense. The possession of marijuana, second offense, stands in the same place as the possession of marijuana, and the defendant would be placed twice in jeopardy of the same offense. Notably, we are mindful that this opinion overrules this court’s prior opinion in State v. Shrader, 38,327 (La.App. 2nd Cir.09/24/04), 881 So.2d 147.

Here, in order to convict Sims of the weapon charge, the state must prove possession of a controlled substance. There was no other substance in this case-only the marijuana for which he pleaded guilty in the possession of marijuana, second offense. Had some other evidence existed in order to support the weapon offense, for example, simultaneous possession of some other controlled substance, there would be no violation against double jeopardy. See State v. Sandifer, supra. Notably, an accused |swho commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Blackson, supra. However, “no person should be punished more than once for the same offense, and that no one should be harassed by successive prosecutions for a single -wrongful act or activity.” La. C. Cr. P. art. 596, official revision comment (a) (1966); see also State v. Steele, supra. Here, the one, distinct act the defendant committed, the possession of marijuana, was the determinative factor in a successful prosecution of either offense. Because both offenses against Sims arise from the same course of conduct, prosecution of both would be double jeopardy. Importantly, in this particular case, without the possession of marijuana, either charge would have failed. So considering, we deny the state’s writ application and affirm the trial court’s ruling in favor of Cornelius Dangelo Sims.

AFFIRMED.

DREW, J., concurs with written reasons.

DREW, J.,

concurring.

_|jMr. Sims was charged with possession of marijuana, second offense, and illegal carrying of weapons while in possession of the same marijuana. I acknowledge that possession of marijuana, second offense, is a different grade of the crime of possession of marijuana. Consequently, double jeopardy applies under the more extensive analysis currently mandated in Louisiana.

The majority and I disagree, however, in its overruling of State v. Shrader, 38,327 (La.App.2d Cir.9/24/04), 881 So.2d 147. In that case, the two crimes were possession with intent to distribute diazepam and illegal carrying of firearms while in possession of the same diazepam. While possession of the drug was a common factor required to prove both charges, neither of the crimes can be considered as merely a different grade of the crime of possession of diazepam. Accordingly, the two crimes faced by Mr. Shrader did not trigger a violation of the Fifth Amendment’s protection against double jeopardy. Bottom line: Shrader is distinguishable, and should not be overruled.

The application in Louisiana of the straightforward test enunciated by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), would result in more consistent resolution of these double jeopardy claims.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . State v. Steele, 387 So.2d 1175 (La.1980).


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. A.V. BARNETT, Appellant.
    No. 46,303-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    Douglas Lee Harville, Louisiana Appellate Project, for Appellant.

      Jerry L. Jones, District Attorney, E. Dion Young, Charles L. Brumfield, Geary Stephen Aycock, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

| After a jury trial, the defendant, A.V. Barnett, was convicted of one count of second degree murder and one count of attempted second degree murder. He was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the conviction of second degree murder and 50 years at hard labor without benefit of probation, parole or suspension of sentence for the conviction of attempted second degree murder. The trial court ordered the sentences to run consecutively. The defendant now appeals. We affirm the defendant’s convictions and sentences.

FACTS

The victims, Herman “Little Cool” White and Richard Eligah, were brothers who lived together in a mobile home on Wimberly Road in Oak Ridge, Louisiana. As Mr. White is paralyzed from the chest down, his brother assisted him in daily living. There were allegations that they sold crack cocaine.

On the night of May 20, 2006, into the early hours of May 21, 2006, the defendant was present at the brothers’ mobile home. Mr. White was in his bedroom, which was on the northern end of the mobile home, on the opposite end of the mobile home from his brother’s bedroom. The defendant attempted to buy crack cocaine from Mr. White, but Mr. White told him he did not have any to sell. Because the defendant was so insistent, Mr. White told him to leave his home. The defendant left the home at approximately 4:00 a.m.

| ¡About three hours later, the defendant returned to the trailer. Mr. White was sleeping on his stomach, and awoke when the defendant stabbed him in the right shoulder. Mr. White asked what was going on, and the defendant demanded dope and money. Mr. White told him he did not have any dope or money, and grabbed a stick he had beside the bed which he used to keep the defendant at bay. He also pounded the stick on the floor of the trailer, which was his signal to his brother that he needed help. In the past, his brother would always come to his aid when he pounded on the floor; however, he did not respond this time.

Mr. White gave the defendant a vial with three rocks of crack in it. The defendant pushed Mr. White’s wheelchair away from his bed. He left Mr. White’s room for a very short period of time. He returned and demanded money again. When Mr. White told him he did not have any money, the defendant stated, “Well, I got to go on and do what I gotta do.” The defendant picked up a sheet from a pile of clothes in the corner and set it on fire. He then left the trailer.

Mr. White managed to pull himself out of bed and crawled into the living room. He called to his brother to get out of the house, yelling that the defendant had stabbed him and set the house on fire. Mr. White heard Mr. Eligah reply, “I can’t, I can’t.” Mr. White was able to drag himself out of the front door of the trailer and down the’wheelchair ramp as the trailer was engulfed in flames.

The first person to arrive at the scene of the fire was Rodney Seay. He saw Mr. White in the road and asked him what had happened. Mr. |3White told him, “A.V. Barnett killed Richard, and he stabbed me. Richard in the house, and he dead.” Mr. White asked Mr. Seay to stay with him because he was afraid the defendant would return.

At about that point, Jimmy Jones saw the smoke and drove to the trailer. On his way there, he noticed a man walking near the trailer, looking back toward the smoke. Mr. Jones noticed that when he drove by him, the man turned his face away from the road. When Mr. Jones arrived at the mobile home, he saw Mr. White in the middle of the road. Mr. White told him that the defendant “done stabbed me and killed Richard.” Mr. White indicated that his brother was still inside the burning trailer; however, the fire was too hot for anyone to attempt to enter. Mr. Seay, who had stayed with Mr. White, asked Mr. Jones to remain with him while Mr. Seay flagged down another motorist and asked him to call the police and get an ambulance to the scene.

The defendant’s cousin, Willie Johnson, was at home when he observed the defendant walking down the road in front of his house; the defendant was walking away from Mr. White’s home. The defendant asked Mr. Johnson for a ride to a friend’s house; Mr. Johnson agreed but said that first he needed to go down to Mr. White’s house to ask for help getting his truck out of a ditch. The defendant said he did not want to go there because there was a big fire, and there would be police, an ambulance and paramedics there.

14The defendant got in the car with Mr. Johnson, and they drove down to Mr. White’s home. Mr. Johnson got out of the car when he saw Mr. White sitting in the road; he noticed that the defendant appeared panicked or seared. Mr. White told Mr. Johnson that the defendant stabbed him and set the trailer on fire, and that Richard was still inside. Mr. Johnson got back in the car and drove the defendant back to Mr. Johnson’s house. He refused to drive him to the friend’s house, even though the defendant offered him three rocks of crack in a small bottle if he would take him.

A short time later, in response to the 911 call, Mike Barham of the Morehouse Parish sheriffs office arrived at the burning trailer and saw Mr. White sitting on the ground. Mr. White told Officer Bar-ham what the defendant had done, and that he had just left in Mr. Johnson’s car. Officer Barham went directly to Mr. Johnson’s house. The defendant was arrested and transported to the sheriffs office.

The defendant was charged with the second degree murder of Mr. Eligah, whose charred body was subsequently found in the ruins of the mobile home, and the attempted second degree murder of Mr. White, who survived the stabbing and the fire. A total of five knives were recovered from the remains of the trailer— three in the kitchen area and one knife in each end of the mobile home where the brothers’ respective bedrooms were located. Mr. Eligah’s body was so badly burned that the cause of death could not be determined; however, the medical examiner was able to ascertain that he inhaled smoke and soot before he died.

IsTrial was held in March 2010. The defendant testified, denying any involvement in the crimes and stating that he heard the brothers arguing with an unknown man. The jury convicted the defendant as charged of both offenses by votes of 10 to 2.

In July 2010, the trial court imposed upon the defendant the mandatory sentence of life imprisonment without benefit of probation, parole or suspension of sentence for the second degree murder conviction. After reviewing a presentence investigative (PSI) report and the factors set forth in La. C. Cr. P. art. 894.1, the trial judge sentenced the defendant to 50 years in prison at hard labor without benefits for the attempted second degree murder conviction. The trial court ordered that the sentences run consecutively. The judge also ordered the defendant to make restitution to Mr. White in the amount of $15,000 for the loss of the mobile home. While the defendant orally objected to the court’s ruling at the conclusion of sentencing, he did not make or file a motion to reconsider sentence.

The defendant appealed his convictions and sentences, asserting two assignments of error.

NONUNANIMOUS JURY VERDICT

The defendant argues that the application of La. C. Cr. P. art. 782, which allows a nonunanimous jury verdict in hard labor cases, is unconstitutional and violates his Sixth Amendment right to a fair trial. In support of that argument, the defendant asserts that Louisiana and Oregon are the only states which have provisions which allow for nonunanimous guilty verdicts.

|ñLa. C. Cr. P. art. 782 provides for the number of jurors composing a jury, and the number which must concur in rendering the verdict. In pertinent part, it states:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict....
Both second degree murder and attempted second degree murder are offenses for which “punishment is necessarily confinement at hard labor.” See La. R.S. 14:30.1 and La. R.S, 14:27.

The Louisiana Supreme Court has consistently upheld the constitutionality of La. C. Cr. P. art. 782(A). State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738; State v. Edwards, 420 So.2d 663 (La.1982); State v. Simmons, 414 So.2d 705 (La.1982); State v. Jones, 381 So.2d 416 (La.1980). Additionally, as explained in State v. Bertrand, swpra, the decisions of the United States Supreme Court have indicated that the constitutionality of nonunanimous jury verdicts is well settled.

Claims such as that made by this defendant have been repeatedly rejected by this court. State v. Johnson, 45,828 (La.App.2d Cir.1/26/11), 57 So.3d 1087; State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910; State v. Blow, 45,415 (La.App.2d Cir.8/11/10), 46 So.3d 735, writ denied, 2010-2093 (La.2/11/11), 56 So.3d 1000; State v. Malone, 43,548 (La.App.2d Cir.11/19/08), 998 So.2d 322, writ denied, 2009-0198 (La.10/30/09), 21 So.3d 275; State v. Divers, 38, 524 (La.App.2d Cir.11/23/04), 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied, 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005).

This assignment of error lacks merit.

EXCESSIVE SENTENCE

In this assignment of error, the defendant contends that the 50-year sentence for attempted second degree murder and the consecutive imposition of the sentences were excessive since he also received a mandatory sentence of life imprisonment for second degree murder.

No motion to reconsider sentence was made or filed in the instant case. When a defendant fails to timely file a motion to reconsider sentence under La.. C. Cr. P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1998); State v. Richie, 44,783 (La.App.2d Cir.10/28/09), 25 So.Sd 879, writ denied, 2009-2492 (La.4/30/10), 34 So.3d 280.

A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 1999-1753, 1999-1528 (La.5/16/00), 769 So.2d 1158. The trial court has wide discretion in the imposition of sentences -within the statutory limits and such sentences Isshould not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La. 1988). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App.2d Cir.8/15/07), 962 So.2d 1126.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898, writ denied, 2007-0058 (La.11/2/07), 966 So.2d 591. Among the factors to be considered are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the potential for the defendant’s rehabilitation; and whether the defendant has received a benefit from a plea bargain. State v. Johnson, supra; State v. Boudreaux, supra; State v. Jones, 43,-053 (La.App.2d Cir.2/20/08), 982 So.2d 105, writ denied, 2008-0710 (La.10/10/08), 993 So.2d 1282.

In imposing sentence, the trial court considered the guidelines set forth in La. C. Cr. P. art. 894.1. It found numerous aggravating factors to be applicable to the defendant’s case but no mitigating factors. The trial court noted that the present convictions were not the defendant’s first. He had a previous conviction for simple rape, for which he was sentenced to 15 years at hard labor. He was released on parole after seven years, only to have his parole revoked on two occasions. The trial court described the defendant’s actions as particularly egregious and stated that the defendant’s actions showed that he is the worst type of offender.

The defendant committed two heinous crimes, killing one man, and attempting to kill a paralyzed man by stabbing him, pushing his wheelchair out of reach, and setting his home on fire. The only reason the paralyzed and wounded victim survived was due to his own tenacity in dragging himself out of the burning building. The imposition of the 50-year sentence for the attempted second degree murder of this victim, to be served consecutively to the life sentence, is not unconstitutionally excessive, and an adequate factual basis for the imposition of consecutive sentences is fully supported by the evidence and the record. The sentence is not grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. When the crime [inand punishment are viewed in light of the harm done to society, the sentence does not shock the sense of justice.

This assignment of error is without merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . While Mr. Jones did not see the man’s face, the defendant later testified that Mr. Jones passed him on the road.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Bruce Lee GOSS, Appellant.
    No. 46,193-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, Geya D. Williams Prudhomme, J. Dhu Thompson, Suzanne Morelock Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

BA jury found Bruce Lee Goss guilty of molestation of a juvenile, La. R.S. 14:81.2. He was sentenced to 15 years at hard labor, with all but five and one-half years suspended. The defendant was placed on supervised probation for five years and ordered to pay court costs. We affirm in all respects.

FACTS

On December 4, 2007, Lewis Welch, a retired Shreveport patrol sergeant, noticed a vehicle back into the driveway of a vacant house on his street. Due to recent break-ins and vandalism, the owner had asked Welch to keep an eye on the property. Welch contacted the Shreveport Police Department (“SPD”). Officers were dispatched, with Officer Matt Green being first to respond.

Green saw a dark-colored vehicle with fogged windows in the carport. The vehicle itself was rocking back and forth. The officer requested backup assistance.

As Green approached the vehicle, he saw a black male, later identified as the 50-year-old defendant, in the back seat. The officer called for the defendant to show his hands and exit the vehicle. The defendant did not immediately obey, and the officer could see him moving around in the vehicle, but could not tell what he was doing. After repeated requests, the defendant opened the passenger door and stepped out, pulling up his pants and sweating profusely. He denied breaking into the house. When asked if |2anyone else was in the vehicle, he said that his daughter was, and that they had been asleep in the vehicle, waiting for another daughter to get off work.

The defendant was secured. SPD Officers Green, Pettigrew, and Rose approached the vehicle again. The officers saw a young female on the back seat floorboard. She was covered with a white blanket, and her panties were pulled down to her ankles. Green saw clothing on the front seat. He ordered her out of the vehicle. Initially, she did not move. In response to a second command, she removed the blanket from her face and told the officers she could not move.

The girl identified herself as 13-year-old B.S. She started crying, saying she could not move; the officers believed it was associated with her state of undress so they gave her some privacy before she got out. Once dressed, she sat in the car for about 20 minutes. Pettigrew thought he recognized her and asked if she knew him. She confirmed that he had been her school resource officer, telling the officers that:

• nothing had happened between herself and the defendant;
• they had been asleep in the vehicle;
• they were waiting for his daughter to get off work so they could pick her up;
• the defendant, who she indicated was her father, would not touch her; and
• she would not have let him touch her.

| sPatrol Sergeant Rita Caldwell and Detective Jeff Allday of the SPD sex crimes unit, as well as a representative from Child Protective Services, arrived on the scene.

B.S. denied that her underwear had been around her ankles when the police arrived. She was taken home where the officers spoke with her mother, C.R., and her grandmother, A.R. C.R. took her to the Gingerbread House for a statement. B.S.’s panties were collected as evidence.

During the trial of the matter, the patrol officers and detectives provided consistent accounts of the events as they unfolded on December 4, 2007.

B.S. also testified. Her account of the events was the same as her recorded statement taken at the Gingerbread House. The recorded statement was played for the jury. During the taping, B.S. expressed concern about whether she would get in trouble for making her statement. She eventually wrote her statement and presented it to the examiner. B.S. identified anatomical drawings, referring to the defendant’s penis as his “private” and her “private” as her “p-u-*-*-y.”

At trial, B.S. testified that:

• in late 2007, the defendant was her pastor and was living with her family;
• B.S. admitted that “we were having sex” when the police arrived;
|4« the defendant pushed her to the floor of the vehicle as the officers approached;
• the officers asked her to get up from the floor of the vehicle;
• she responded negatively because she was naked under the sheet;
• she initially thought she would be in trouble because of what had happened;
• she said she considered the defendant as her father as well as her pastor;
• she respected him and had to obey him;
• she initially told police officers that nothing happened because she was scared;
• she was afraid her family would think poorly of her because of the acts;
• sex occurred between them several times on different occasions; and
• the defendant never used any protection.

A.R. testified that the victim had lived with her for most of her life. She said that the defendant was her pastor and her friend, with whom she had been in a romantic relationship in previous years. The defendant had lived with A.R. but he had only occasionally stayed there at the time of his arrest. Amazingly, even after what took place with B.S., A.R. continued to attend the defendant’s church.

Laterrica Reddix, B.S.’s cousin, testified that she was living with the victim at the time this happened. When B.S. arrived at the house, she claimed that the police were trying to make her say that the defendant had touched her. Ms. Reddix believed that the victim’s mother initially acted indifferently to her daughter, but after the incident, B.S. and her mother became closer. Ms. Reddix stated the defendant was a godfather to her and | Bwas still her pastor at the time of the trial. She sometimes call the defendant “Dad” or “pastor.”

The defendant testified that:

• he once leased the property where he was arrested;
• at the time of the incident, he was not leasing the property;
• he would often park there because it was well lighted, and he knew the owner;
• he suffered various illnesses, the medication for which caused side effects, including drowsiness, which was the situation the day he was arrested;
• the medication made him sweat;
• he never took his pants down in the car that night;
• he denied touching B.S. inappropriately or having sex with her; and
• he further blamed the prosecution on the child’s mother, who had been jailed for financial crimes committed while she worked for the defendant.

He was found guilty and sentenced as previously outlined.

DISCUSSION

Sufficiency

The defendant claims the evidence was insufficient to prove all elements of this offense, specifically that the victim was physically harmed or that he used force, violence, or intimidation to perpetrate the alleged acts. He also posits there was insufficient evidence that he exercised supervision or control over the victim.

Unsurprisingly, the state disagrees.

Molestation of a juvenile is defined in La. R.S. 14:81.2(A), in pertinent part:

| ^Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Our law is well settled as to appellate review of insufficiency claims.

Based on the testimony presented during the trial, the state was able to prove beyond a reasonable doubt that the defendant was guilty of the |7charged offense. The state proved that he was 50 years old at the time of the offense; B.S. was only 13.

The act of sex with the child is sufficient to satisfy the element of commission of a lewd or lascivious act upon her with the intent of gratifying his sexual desires. The child was afraid to admit the acts, because of what her family might think. She also testified that the defendant was her grandmother’s boyfriend and lived with them. He was also the victim’s lifelong pastor and father figure.

The defendant’s denial of supervision or control rings hollow, as he frequently had the victim in his charge without other adults present. These were the times when he committed his perverted acts. He used his position of control and supervision to influence the victim to participate in his unseemly acts.

The state presented evidence that the windows were fogged, and that the car was rocking. This corroborates the child’s testimony that the defendant was having sex with her when the police arrived. The officers noted that he had to pull up his pants as he exited the vehicle, and that B.S. was partially clad with her panties around her knees or ankles. There is no question that the state carried its burden of proof. The jury apparently believed the child and disbelieved the defendant.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The probation time would commence upon his release from parole.

      . The officers testifying during the trial identified the covering as either a blanket or a sheet. State Exhibits 2-4 are pictures of items found inside the vehicle. What appears to be a white flowered blanket can be seen in the pictures.

      . In accordance with La. R.S. 46:1844(W), the minor child and her family will be referred to by their initials to protect the victim's identity.

      . During the trial, Dr. Pat Wojtkiewicz of the North Louisiana Crime Lab testified the victim's panties were analyzed by the North Louisiana Crime Lab; however, no traces of semen were found on the panties.

      . B.S. read the statement in court during the trial, “Well, he took my — his clothes off then tried to take mine off, I said no. I said no then he took it off anyway. Then he put his private into mine and that was that.”

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied.

      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied.

      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La. 10/12/01), 799 So.2d 490.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert, denied.


author: WILLIAMS, J.

text:
    Linda D. GARCIE, Plaintiff-Appellee v. Emily H. PASQUIER and City of Shreveport, Defendant-Appellant.
    No. 46,208-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      S.P. Davis, for Appellant, City of Shreveport.
    Andrew C. Jacobs, Brandon T. Morris, Shreveport, LA, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

liThe defendant, City of Shreveport, appeals a judgment in favor of the plaintiff, Linda Garcie. The trial court awarded plaintiff the amount of $20,964.99 in total damages and assessed defendant with 75% fault in causing the accident. For the following reasons, we affirm.

FACTS

On October 6, 2007, sometime after 5 p.m., Linda Garcie was walking her dog on the sidewalk of the 200 block of Pomeroy Drive in Shreveport. Garcie was holding the leash as the dog walked in front and to the right of her. While walking past Emily Pasquier’s home at 216 Pomeroy Drive, Garcie tripped over an elevated portion of the sidewalk and fell to the ground. Gar-cie injured her right shoulder as a result of the fall and continued to feel pain after she returned home. When the pain continued for a second day, Garcie sought medical treatment at the emergency room of Willis Knighton Health Center. In January 2008, the plaintiff, Linda Garcie, filed a petition for damages against the defendants, Emily Pasquier and the City of Shreveport (“the City”). Pasquier was dismissed from the lawsuit prior to trial.

After hearing the evidence, the trial court allocated 75% fault to the City in causing the accident and 25% fault to plaintiff, finding that the City had been notified of the defective condition of the sidewalk prior to the plaintiff’s accident, but that the condition was not hidden and could have been avoided by plaintiff. The court rendered judgment awarding the plaintiff $964.99 for medical expenses and $20,000 in general damages. The City appeals the issue of liability.

1 .DISCUSSION

The City contends the trial court erred in finding that the City was liable for plaintiffs injury. The City argues that the evidence does not support the court’s finding because the City had no record of receiving a complaint about the defective sidewalk and the homeowner who allegedly reported the defect failed to specify when he called or even which department he contacted.

No person shall have a cause of action against a public entity for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. LSA-R.S. 9:2800. To recover against a public entity for damages due to a defective thing, the plaintiff must prove by a preponderance of evidence that: (1) the thing that caused her damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiffs harm. Lee v. State DOTD, 97-0350 (La.10/21/97), 701 So.2d 676; Breitling v. City of Shreveport, 44,112 (La.App.2d Cir.5/13/09), 12 So.3d 457.

The trial court’s findings of fact are subject to the manifest error standard of review. The appellate court must determine whether the trialcourt’s conclusion is reasonable based upon the record as a whole. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566.

In the present case, Claude Pasquier testified that he and his wife had owned the house at 216 Pomeroy since 1977. Pasquier stated that some years later, a three-inch crack developed in the sidewalk in front of his house. Pasquier reported the crack to the City, which repaired the sidewalk. He stated that over time the sidewalk condition deteriorated until a one-inch crack appeared in the same area as before. Pasquier testified that in late 2006 or early 2007, using the blue pages of the phone book, he called the City to request a repair of this new crack in the sidewalk. Pasquier acknowledged that he could not specifically recall when he reported the crack to the City. However, Pasquier believed he had called the City approximately ten months before the accident in October 2007, but the sidewalk was not repaired until after the plaintiff had tripped. Pasquier testified that nothing obstructed a person’s view of the crack in the sidewalk, that the one-inch crack was obvious to him and that he had walked on that part of the sidewalk many times without tripping.

Ernie Negrete, the City’s Superintendent of Streets and Drainage, testified that the City has responsibility for correcting defects in public sidewalks that are reported by residents. Negrete stated that his department receives over 6,000 phone calls each year regarding various issues with streets, sidewalks and drainage. Negrete testified that the City had established a public complaint system named “C-CAR,” which collected residents’ reports of defective streets and sidewalks. He explained that the |4standard procedure for such phone calls was that a secretary with a computer would answer the call and enter the information directly into the C-CAR system and then a work order would be created. A supervisor would then inspect the area and if the condition created a public hazard then the problem would be given priority and repaired as quickly as possible. Negrete stated that he had personally reviewed the C-CAR records and did not find any complaint of a sidewalk problem at 216 Pomeroy made prior to plaintiffs accident. Negrete testified that the City was first notified of the sidewalk defect at that location on October 8, 2007, after the plaintiff had fallen. Negrete acknowledged that the City’s system was as accurate as the operator who was entering the information from each call into the computer.

Linda Garcie, the plaintiff, testified that on October 6, 2007, she tripped on an uneven part of the sidewalk in front of 216 Pomeroy Drive while walking her dog at dusk. Plaintiff stated that she fell with her weight on her right arm and felt pain from a fracture of her right shoulder. Plaintiff testified that while walking, her attention was on the path in front of her, but she did not notice the elevated portion of the sidewalk as she approached the cracked area. Plaintiff stated that although she previously had walked her dog on Pomeroy, she most often walked on the side opposite where she fell. Plaintiff acknowledged that the cracked area of the sidewalk was not covered over and that nothing had obstructed her view of the sidewalk at the time of her accident.

In its appellate brief, the City argues that the plaintiff failed to present sufficient evidence to prove that the City received notice of the defective |ssidewalk because Pasquier could not specify when he called the City and his testimony was contradicted by Negrete, who testified that there was no record of anyone having reported the defective condition to the City prior to the accident. The trial court heard this conflicting testimony and weighed the credibility of the witnesses. The evidence presented shows that although Pasquier was unable to recall the exact date on which he called the City to report the sidewalk defect, he testified that he was certain he had reported the problem many months before the plaintiffs fall and the subsequent repair of the sidewalk. The trial court found that Pasquier was a credible witness. In addition, the court could reasonably have found that Pasquier had notified the City about the defect despite the lack of any record of such a complaint, based on the evidence that Negrete did not personally receive the telephone complaints made to the City, that over 6,000 such telephone calls were received in a year, and that the phone complaints were manually logged into the C-CAR system.

Based upon this record, we cannot say the trial court was clearly wrong in finding that the City received actual notice of the defective sidewalk prior to the accident and failed to make a repair within a reasonable time. Thus, the court did not err in assessing the City with liability for the plaintiffs injury. This assignment of error lacks merit.

Allocation of Fault

The City contends the trial court erred in allocating 75% fault to the City in causing the accident. The City argues that the plaintiff should have been assessed a greater percentage of fault than the City because she failed Rto see an obvious hazard.

In assessing comparative fault, the courts consider (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985); Ricks v. City of Shreveport, 42,675 (La.App.2d Cir.10/24/07), 968 So.2d 863. The trial court’s allocation of fault is subject to manifest error review. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670.

A pedestrian is held to have seen those dangers or obstructions in his pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances. A pedestrian is not required to constantly observe the surface of the walk. Boddie v. State, 27,313 (La.App.2d Cir.9/27/95), 661 So.2d 617. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541.

In this case, the plaintiffs accident occurred when the weather was clear and the sidewalk was dry. The record shows that plaintiffs view of the sidewalk was not obstructed and she was not proceeding in haste. In apportioning fault to the plaintiff, the trial court noted that the cracked area of the sidewalk was not hidden and could have been avoided if noticed by [7the plaintiff. However, the evidence presented supports a finding that the cracked portion of the sidewalk encountered by plaintiff was elevated enough to cause a hazard and yet was not so apparent as to be easily observed, particularly at a time of diminishing daylight. Additionally, the City received notice of the defect and was in a superior position to remedy the dangerous condition and prevent the accident. After reviewing the record in light of the Watson factors, we cannot say the trial court was plainly wrong in allocating 75% of the fault to the City in causing the accident and 25% fault to the plaintiff. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. The appellate filing fees in the amount of $146.50 shall be paid to this court by the appellant, City of Shreveport, in accord with LSA-R.S. 13:5112.

AFFIRMED.


author: PAUL A. BONIN, Judge.

text:
    FIRST BANK AND TRUST v. Rebecca Barnett DUWELL a/k/a Rebecca A. Barnett.
    No. 2011-CA-0104.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.

      Mark C. Landry, Newman Mathis Brady & Spedale, APLC, Metairie, LA, for Plaintiff/Appellee.
    Donald G. Jones, Fayetteville, GA, in Proper Person, Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|!After Rebecca Duwell’s property was scheduled for sale at sheriffs auction pursuant to a writ of seizure and sale which issued in executory proceedings filed by First Bank and Trust against her, Donald Jones, the appellant, filed in the same proceedings a petition to vacate the issuance of the writ and the ensuing sale. Arguing that Mr. Jones had no legal interest in asserting any such right, the bank filed the peremptory exception of no right of action. See La. C.C.P. ART. 927 A(6). By final judgment signed on June 21, 2010, the district judge sustained the exception and dismissed with prejudice Mr. Jones’ pleadings. See La. C.C.P. ARTS. 934, 1673, 1841, and 1844. Mr. Jones timely filed for a devolutive appeal. See La. C.C.P. art. 2082, 2083 A, and 2087 A. After our de novo review, because Mr. Jones does not have a legal interest in vacating the sheriffs sale of Ms. RDuweU’s property, we conclude that the district judge’s ruling is correct as a matter of law and affirm. We briefly explain our ruling below.

Ms. Duwell borrowed money from First Bank and mortgaged immovable property located at 1027-31 Touro Street, New Orleans. Because Ms. Duwell had failed to pay her mortgage installments when due, First Bank commenced foreclosure proceedings. The bank expedited the foreclosure through the use of executory proceedings. See La. C.C.P. arts. 2631 et seq. After the issuance of the writ of seizure and sale but before the sheriff’s court-ordered auction sale, Mr. Jones, “intervened” in the executory proceedings. He alleged an interest in the property and in the proceedings because, he claimed, he loaned money to Ms. Duwell, he had acted as her attorney-in-fact pursuant to a power of attorney or procuration, and his reputation was at stake along with other miscellaneous claims which have been itemized by the fifth circuit. See First Bank and Trust v. Duwell, 10-481, p. 3 (La.App. 5 Cir. 12/14/10), 57 So.3d 1076, 1077, writ denied 2010-2826 (La.2/11/11), 56 So.3d 1005 (which for simplification we refer to as Duwell II, the holding and applicability of which is discussed more fully post.)

In connection with his “intervention,” Mr. Jones sought and obtained a preliminary injunction to arrest the seizure and sale. First Bank sought and obtained our supervisory review of the preliminary injunction. Because Mr. Jones Rhad no ownership interest in the property and was not a defendant in the executory proceeding, we vacated the injunction. First Bank and Trust v. Duwell, 08-1152 (La.App. 4 Cir. 11/3/08) (unpub.) (Duwell I).

Notably, Ms. Duwell herself took no action to arrest the execution of the writ of seizure and sale either through a preliminary injunction or a suspensive appeal. See La. C.C.P. arts. 2642 and 2751. Thus, the seized property was sold at sheriffs auction, and the order to proceed by exec-utory process became final. See Reed v. Meaux, 292 So.2d 557 (La.1974).

After injunctive relief was denied by this court, Mr. Jones filed the petition to vacate which we have under consideration. He then unsuccessfully sought to remove his own action to the federal court.

In the instant case, First Bank filed an exception of no right of action, which the district court granted and this court maintained, First Bank and Trust v. Duwell, 09-1545 (La.App. 4 Cir. 1/15/10), stating: “Donald Jones has failed to demonstrate to the Court that he has a legal interest in the above captioned matter.”

“The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor.” Simmons v. Templeton, 99-1978, p. 5 (La.App. 4 Cir. 4/12/00), 762 So.2d 63, 67. See La. C.C.P. art. 927 A(6). The Louisiana Supreme Court in Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-0719,4 p. 6 (La.3/17/06), 929 So.2d 1211, 1217, defined the function of that exception as “a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition” and explained that it “serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.” (citing Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415). “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” La. C.C.P. art. 681; see Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d 885, 888.

We review de novo a trial court judgment sustaining an exception of no right of action as a question of law and determine whether the trial court’s ruling was correct or incorrect as a matter of law. Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798. As already stated, upon our de novo review, we conclude that the trial judge was correct in sustaining the exception of no right of action. Moreover, the trial judge was correct in dismissing with prejudice Mr. Jones’ petition because the grounds for the objections which First Bank raised cannot be removed by amendment. See La. C.C.P. art. 934.

Even if we assume that a cause of action exists to annul a sheriffs sale pursuant to the execution of a writ of seizure and sale in executory proceedings, the record is clear that Mr. Jones has no legal interest in judicially asserting such a right. We previously decided in Duwell I, ante, that Mr. Jones had no right to enjoin the seizure and sale of Ms. Duwell’s property by the sheriff because he was neither a defendant in the executory proceedings nor an owner of the property.

|-,Under “the law of the case” principle, our decision in Duwell I has “conclusive effects” on subsequent proceedings in the trial court. Bank One, N.A. v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458 (emphasis added), citing Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). Thus, the district court was obliged to implement our earlier decision. Moreover, the principle will be applied so that “an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Id. See also Reed v. St. Charles General Hospital, 08-0430, 08-0431, 08-0570 to 08-0593, pp. 9-10 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145-46. Unlike the district court, however, we can exercise our discretion in applying “the law of the case” principle on subsequent appellate review. See Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158. But the policy reasons behind applying this principle are strong and include avoidance of re-litigation of an issue, consistency of result in the same litigation, and promotion of efficiency and fairness to the parties “by affording a single opportunity for the argument and decision of the matter at issue.” Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (La.1971); Bank One, supra.

Of course, if on subsequent appeal to or review by us palpable error in the first decision is revealed to us, we may ignore the “law of the case” principle. Bertucci v. Lafayette Ins. Co., 02-0242, p. 3 (La.App. 4 Cir. 5/21/03), 851 So.2d 1179, 1182. Because, however, Mr. Jones has not shown palpable error in our earlier decision, we apply “the law of the case” principle in our review of the record. See Bank One, 04-2001, pp. 5-6, 917 So.2d at 458-459; Newman v. George, 07-0620, p. 6 (La.App. 4 Cir. 9/26/07), 968 So.2d 220, 224-25.

| ^Because Mr. Jones had no right (legal interest) in enjoining the seizure and sale of Ms. Duwell’s property, we conclude a fortiori that he has no right or legal interest in annulling or vacating a completed sheriffs sale. Accord, Duwell II, supra.

We are reinforced in our holding by the fifth circuit’s decision in Duwell II, which decision addressed a significantly similar factual record. There the district court issued a writ of seizure and sale of Ms. Duwell’s real estate in Jefferson Parish which secured her debt to First Bank. The property was sold by the sheriff to First Bank. Mr. Jones filed a petition similar to his petition in the instant case, seeking to intervene, to vacate the sale, and for damages, alleging that Louisiana executory process law is unconstitutional. Just as in the instant case, Mr. Jones asserted that he had ownership rights in the property because his business enterprise, Yur Construction Co., Inc., had loaned Ms. Duwell money and because he had acted as an agent of Ms. Duwell.

In both our case and that addressed by the fifth circuit, First Bank submitted documentary evidence supporting Mr. Jones’ lack of ownership interest, including the act of sale to Ms. Duwell, an affidavit of lien filed by Yur Construction Co., Inc., and the sheriffs deed transferring the property to First Bank as a result of the sheriffs sale. After reviewing the evidence, the trial court held that Mr. Jones had no right of action or standing to seek to vacate the sale of seized property; the fifth circuit affirmed that holding.

Mr. Jones’ petition in the instant case raised numerous other issues identical to those he raised in the proceedings before the fifth circuit; and we, just as did the fifth circuit, find them to be without any basis in fact or law. Mr. Jones is simply not a person having a real and actual interest which he asserts.

|7We, therefore, affirm the district court’s judgment sustaining First Bank’s exception of no right of action.

DECREE

The judgment signed on June 21, 2010, in favor of First Bank and Trust and against Donald G. Jones, dismissing with prejudice his pleadings is affirmed. All costs of these proceedings are taxed to Mr. Jones. See La. C.C.P. art. 2164.

AFFIRMED

      . Mr. Jones styled the pleadings “Motion For Writ Of Sheriff Sale To Be Updated Prior To Sheriff Sale Scheduled On May 7, 2009— Motion For Sheriff Sale To Be Cancelled For Non-Compliance With Louisiana Law For Court Ordered Sheriff Sale — Damages To Agent For Owner Of Property — Motion To Give An Accounting Of Owner's Rights To Arrest Proceeds From Sheriff Sale” and "Petition for Vacating of Sheriff Sale and Official Notice of Protest Against Mortgage Certificate Being Issued to First Bank & Trust For Noncompliance with Louisiana Law for Court Ordered Sheriff Sale May 7, 2009 — Damages Against Sheriff Office Ignoring Affidavit Attesting to Writ of Seizure and Sale as Being Paid in Full Prior to Sheriff’s Sale of May 7, 2009 of Property Located at 1027-31 Touro St. — New Orleans, LA. 70116.”

      . At the same time the bank filed the dilatory exception of unauthorized use of summary proceeding and the peremptory exception of no cause of action. See La.C.C.P. arts. 926 A(3) and 927 A(5).

      . "Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce the mortgage or privilege hereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law.” La.C.C.P. art. 2631.

      . The facts and proceedings reported in this fifth circuit decision track those in this case.

      . The grant or denial of a preliminary injunction is an interlocutory judgment which is appealable as of right. See La. C.C.P. arts. 1841, 2082, 2083 C, and 3612 A. Although the granting of the preliminary injunction is an appealable judgment, it does not preclude a litigant's timely and proper resort to our discretionary plenary supervisory power. See La. Const, art. V, § 10; La. C.C.P. art. 2201. See also Yokum v. Nicholas S. Karno, II, Inc., 10-2176 (La. 10/29/10), 48 So.3d 1089; Yokum v. Nicholas S. Karno, Inc., 10-0357, p. 1 (La.App. 4 Cir. 8/26/10), 47 So.3d 1014, 1017 (Bonin, L, dissenting); Yokum v. Nicholas S. Karno, Inc., 10-0357 (La.App. 4 Cir. 11/09/10) (unpub.). Also see City of New Orleans v. Benson, 95-2436, pp. 4-6 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202, 1204-1205; Mik-Lee v. City of New Orleans, 581 So.2d 261, 263 (La.App. 4th Cir. 1990). If a party elects to seek review by applying for supervisory writs, it must be done within the same time limits allowed for an appeal of the judgment complained of, which is 15 days under La. C.C.P. art. 3612. Benson, supra, 95-2436, pp. 5-6, 665 So.2d at 1205. In other words, a party may not extend the time in which to seek review of a preliminaiy injunction judgment by applying for supervisory writs instead of taking an appeal.

      . Mr. Jones sought, but was denied, the privilege of proceeding in the federal court without the prepayment of costs. First Bank & Trust Co. v. Duwell, 10-1007 (E.D.La. 4/1/10), affirmed, First Bank and Trust v. Duwell, 10-1007 (E.D.La. 6/17/10) (Order denying the Motion for Appeal/Review of Magistrate Judge Decision). He never paid the filing fees, and thus the case was never removed. (We note parenthetically that only a defendant may seek removal). 28 U.S.C.A. § 1446(a); see Ballard’s Service Center, Inc. v. Transue, 865 F.2d 447, 449 (C.A.1989).