source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Pamela L. WATSON, Plaintiff-Appellee v. Brian WATSON, Defendant-Appellant.
    No. 45,652-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Snell and Robinson, by A. Richard Snell, for Appellant.
    Pamela L. Watson, in proper person..
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

|) Plaintiff-Appellant, Brian Watson, is appealing a final judgment of custody rendered in favor of Defendant-Appellee, Pamela Watson. For the reasons discussed below, we affirm the lower court’s judgment.

FACTS

Pamela and Brian Watson were married on November 9, 2002. The couple has three children: S.W., who was born on March -2, 2001; K.W., who was born on April 21, 2003, and; A.W., who was born on April 29, 2004. A.W. is a special needs child who suffers from cerebral palsy.

On August 5, 2006, Brian moved out of the matrimonial domicile. On October 31, 2006, Pamela filed a petition for divorce, in which she requested that joint custody of the children be awarded and that she be named the domiciliary parent. The judgment for divorce was granted on September 19, 2007.

When the parties separated initially, Pamela primarily cared for the children. For reasons not clearly explained in the record, Brian assumed care of the children in April 2008, until the parties returned to court on August 19, 2008. On that day, the trial court entered an interim order, which provided limited visitation to Pamela until it imposed a schedule of sharing of the physical care of the children.

On July 9, 2009, the trial court signed a final judgment of custody, which ordered joint and shared custody of the children on a week-to-week basis. Pamela was named the domiciliary parent. Brian filed a motion for a new trial, which was subsequently denied. He now appeals, asserting four assignments of error.

| ¡.LAW AND DISCUSSION

La. C.C. art. 134

In the first assignment of error, Brian Watson asserts that the trial court erred by interpreting the word “previously,” which is used in La. C.C. art. 134(12), to mean the time frame in which he and Pamela were still living together, and not the time period after the parties physically separated before the trial. Brian argues that the court’s interpretation of “previously” failed to consider his actions, as well as Pamela’s, since they physically separated. He asserts that the court should have defined the word “previously” broadly, to include the care, or the lack thereof, up to the very last day of trial. Had the court done so, he believes that the court would realize that the evidence would reveal that he had assumed the role of the “primary nurturing parent.”

Similarly, Brian asserts in the second assignment of error that the trial court erroneously applied the elements of La. C.C. art. 134 to accomplish a joint shared custody regime and erred in designating Pamela as the primary domiciliary parent. Since Brian is asserting in assignments of error one and two that the trial court erroneously interpreted and applied the factors set forth in La. C.C. art. 134, we will discuss these interrelated assignments together.

It is well settled in our statutory and jurisprudential law that the paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Semmes v. Semmes, 45,006 (La.App. 2 Cir. 12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La. App. 2 Cir. 7/1/09), 16 So.3d 500. Custody determinations are made on a case-by-case basis. Robert v. Robert, 44-528 (La. App. 2 Cir. 8/19/09), 17 So.3d 1050. The trial court has vast discretion in deciding the matters of child custody and visitation. Semmes, supra. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Pender v. Pender, 38, 649 (La.App. 2 Cir. 5/12/04, 890 So.2d 1); Semmes, supra.

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132.

To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335(A)(2)(b). Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Semmes, supra; Stephenson, supra.

In determining the best interest of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773; Cooper v. Cooper, 579 So.2d 1159 (La.App. 2 Cir.1991). La. |4C.C. art. 134 lists some of the relevant factors to be considered in determining the best interests of the child.

The trial court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Id,.; Robert, supra; Bergeron v. Bergeron, 44,210 (La. App. 2 Cir. 3/18/09), 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the court. Semmes, supra; Robert, supra. The trial court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175.

In the instant case, the record reveals that the trial court judge thoroughly evaluated each of the factors listed in La. C.C. art. 134.

(1) The love, affection, and other emotional ties between each party and the child.

The trial judge stated that Brian and Pamela provided love and affection for their three children. She specifically recognized Pamela’s act of paying special attention to A.W., so that she can ensure her a life that is as normal as possible. She also noted Brian’s increasing involvement in A.W.’s therapy. For these reasons, the trial court determined that this factor did not favor either party.

(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

IsAside from Pamela’s lifestyle and Brian’s attempts to “get back at Pamela,” the trial judge believed that the parties had the capacity and disposition to give the children love. However, each party had failed to provide spiritual guidance to the children. For these reasons, the trial judgment determined that this factor did not favor either party.

(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

The trial judge commended Pamela’s attempt to provide for her children. During the marriage, Pamela was a stay-at-home mom. After the couple separated in 2006, Pamela began working for her father. Pamela testified that she began receiving child support from Brian in November 2006. From February 2008 to the present date, Pamela worked at several places, including Crawdaddy’s Restaurant, Eldorado Casino, and the Break-N-Run Bar. She is currently pursuing a nursing degree.

As mentioned in the previous paragraph, Brian provided child support for his children. He obtained some technical training and used those skills to maintain a steady job.

The trial judge recognized that both Pamela and Brian have exhibited behavior that indicates that they are hard workers. It is clear that the parties collectively have supplied their children’s every need. For these reasons, she found that this factor did not favor either party.

(k) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

During the trial, Pamela and Brian agreed on a custody arrangement where they rotated on a week-to-week basis. At the conclusion of the trial, | (ithe trial judge noted that since the current custody arrangement commenced, Brian and Pamela have been able to provide a stable environment for the children. She also recognized the significant reduction in conflict between the parties regarding custody. Therefore, this factor did not favor either party.

(5)The permanence, as a family unit, of the existing or proposed custodial home or homes.

At the time of the trial, neither Brian or Pamela had a permanent home. Brian was living with his mother, while Pamela lived in a two-bedroom mobile home. Pamela testified that when she had custody of the children, she would stay with them at her dad’s house. For these reasons, the trial judge determined that this factor did not favor either party.

(6) The moral fitness of each party, insofar as it affects the welfare of the child.

The trial judge determined that Pamela’s moral fitness was okay, but encouraged her not to have “toxic” people around her children. The trial judge also discussed Brian’s pornography problem and encouraged him to seek professional help for it, since it could prevent him from being a good father.

(7) The mental and physical health of each party.

Brian and Pamela are both physically healthy, but the trial judge again expressed her concern of Brian’s mental health due to his pornography problem and encouraged him to get help. The trial judge ultimately determined that this factor did not favor either party, but did not express any |7concern over either party’s mental or physical health with regard to their children.

(8) The home, school, and community history of the child.

The trial judge noted that Karen Lynn Speaks Rother, who is the school counselor at Keithville Elementary, testified that the children were doing well in school and that S.W.’s behavior was improving.

(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

The children did not express a preference. However, the trial judge noted that S.W., the oldest child who was approximately eight years old at the time of the trial, loved both parents and wanted to be with both of the parents.

(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

The trial judge noted that initially the parties’ tumultuous relationship negatively impacted the children. Fortunately, the parties are now able to maintain a relationship, albeit with minimum contact, so they can work together for the benefit of their children. Nevertheless, the trial judge determined that this factor did not favor either party.

(11) The distance between the respective residences of the parties.

Since both parties live in Caddo Parish, the trial judge determined that this factor is inapplicable.

(12) The responsibility for the care and rearing of the child previously exercised by the parties.

The trial judge determined that this factor favored Pamela. During the marriage, Pamela was a stay-at-home mom who primarily cared for the |schildren. As stated in the facts section, when the parties separated, Pamela continued to primarily care for three children, a five-year-old, a three-year-old, and a special needs two-year-old. She continued to primarily care for the children from August 2006 to April 2008. As stated in the facts section, the parties assumed a court-ordered joint custody agreement on July 9, 2009.

Having reviewed the entirety of the record, we cannot agree with Brian’s contentions that the trial court erroneously applied the elements of La. C.C. art. 184 to accomplish a joint shared custody regime and in designating Pamela as the primary domiciliary parent. After analyzing the factors enumerated in La. C.C. art. 134, the trial judge determined that the majority of the factors did not weigh in favor of either party. In fact, La. C.C. art. 134(12) is the only factor that weighed in favor of Pamela, while no factor weighed in favor of Brian. It was well within the court’s discretion to give more weight to this factor in view of the evidence presented. Additionally, Brian and Pamela couldn’t agree on a custody arrangement pursuant to La. C.C. art. 132. Based on the facts and evidence presented, we find that trial judge did not err in applying the elements of La. C.C. art. 134 to accomplish a joint shared custody regime and in designating Pamela as the primary domiciliary parent. Brian’s second assignment of error is mer-itless.

Brian asserts in his first assignment of error that had the trial court interpreted La. C.C. art. 134(12) to include the recent past, then the court would have named him domiciliary parent. We disagree. The trial judge considered Brian’s increased involvement in his children’s lives from April 2008 to the present date when discussing this factor. Even so, the record | indicates that Pamela assumed more responsibility in caring for and rearing the children than Brian did. Brian’s act of primarily caring for the children April to August 2008 is insufficient evidence to name him domiciliary parent. Brian’s first assignment of error is meritless.

Interpretation of the Facts and Testimony Presented at Trial

In the third assignment of error, Brian contends that the trial court misapplied the facts presented at trial. Similarly, in the fourth and final assignment of error, Brian asserts that the trial court erroneously interpreted and applied the testimony adduced and the facts placed into evidence regarding the best interest of the children.

As stated above, the trial court has vast discretion in deciding the matters of child custody and visitation. This discretion is based on the trial court’s opportunity to better evaluate the credibility of the witnesses. Slaughter v. Slaughter, 44,056 (La.App. 2 Cir. 12/30/2008), 1 So.3d 788. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of the abuse of discretion. Bergeron v. Bergeron, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse even though convinced it would have weighed the evidence differently if acting as the trier of fact. Id.

Brian urges that the evidence and overwhelming testimony provide that he is currently the better nurturer for the children. Brian also discusses how Pamela’s lifestyle shows the lack of care and concern that she has for their children.

|inWhen the trial judge imposed the current custody arrangement, she considered the testimony of Brian and Pamela and the people who knew them. The record does not show that Brian is a better nurturer for the children. Rather, it shows Brian’s increased involvement in the children’s lives. Brian now participates in A.W.’s therapy sessions more frequently and has had conferences with the children’s teachers at school.

The record does not show Pamela’s lack of care and concern for the children as Brian erroneously suggests. To the contrary, the record shows that Pamela primarily transported A.W. to her therapy sessions and often followed up with the children’s teachers at school. Pamela testified that she prepared snacks for A.W.’s class when requested, attending “Muffins for Mom” and even “Donuts for Dad” at the children’s school when Brian was unable to attend. Karen Lynn Speaks Rot-hell, the school counselor for all three children, testified that the children were more stable and are well adjusted to Pamela and Brian sharing custody.

After reviewing the record in its entirety, we find that the trial judge conducted a proper analysis of the evidence and testimony presented before determining that a joint custody arrangement is appropriate. Assignments of error three and four are without merit.

CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment. Costs are assessed to Appellant Brian Watson.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. James Harold MITCHELL, Appellant.
    No. 45,561-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Mark 0. Foster, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Jason T. Brown, Damon D. Kervin, Assistant District Attorneys, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 James Harold Mitchell appeals his conviction and sentence by the First Judicial District Court, Parish of Caddo, State of Louisiana. A jury convicted Mitchell of the manufacture of a schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(A)(1). After being adjudicated a third felony offender, Mitchell was sentenced to 45 years’ imprisonment at hard labor without benefit of probation, parole, or suspension of sentence with credit for time served. Following sentencing, this appeal ensued. We affirm the defendant’s conviction and sentence for the following reasons.

Facts

After a period of surveillance on a house in Caddo Parish, Louisiana by the Caddo Parish Sheriffs Office, Mitchell was arrested and subsequently charged by bill of information with the manufacture of a schedule II, controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(A)(1). A trial of the matter commenced on February 13, 2009.

At the trial, Sergeant Michael Gray of the Caddo Parish Sheriffs Office described his investigation of Mitchell. Sergeant Gray explained that in 2008 he began surveillance of a small house on Gilliam-Scott Slough Road in Caddo Parish, Louisiana after he received information that methamphetamine was being manufactured at that location. Through his surveillance work, he had become familiar with a red Nissan Maxima he had seen Mitchell driving intermittently in the area. On August 21, 2008, 12Sgt. Gray noticed the Maxima parked at the house. He also noticed a large anhydrous ammonia tank in a field near the house. Sergeant Gray knew anhydrous ammonia was used in the manufacture of methamphetamine.

Sergeant Gray testified that he continued his surveillance of the house, and the next day as he was driving by he saw a pickup truck parked at the house with someone sitting in the passenger seat — the driver was not in the vehicle. Sergeant Gray called in the license plate number of the truck and found that the plates on the truck were associated with a different vehicle. Driving on, Sgt. Gray then noticed the same truck a few vehicles behind him, so he pulled to the side, allowing the truck to pass him. Sergeant Gray then followed the truck for a short distance before attempting to initiate a traffic stop. The attempted stop led to a high-speed chase that ended in an accident in Bossier Parish. While still at the scene of the accident, Sgt. Gray contacted Sgt. Carl Town-ley of the narcotics division and requested he investigate the activities at the house. Sergeant Gray returned to the house where narcotics agents were interviewing Mitchell and his girlfriend.

Sergeant Townley testified that when he and other narcotics agents arrived at the house, Mitchell answered the door then stepped outside to speak with the agents. Mitchell indicated he lived at the home and his girlfriend was in his bedroom. The defendant initially allowed the agents to enter the home, but then told them he wanted everyone outside. At that time, both Mitchell and his girlfriend were asked to exit the house for officer safety. Once outside, Mitchell agreed to allow Sgt. Townley to [3search the house. A search of the bedroom identified as Mitchell’s resulted in the confiscation of a piece of burned aluminum foil, which was known to be associated with the smoking of methamphetamine. Located in the bedroom closet was a can of “camp fuel,” which Sgt. Gray testified was also known to agents to be associated with the manufacture of methamphetamine. A cigarette package containing what appeared to be methamphetamine residue was also located in the house.

Once the search of the inside of the house was complete, Sgt. Townley and Sgt. Gray relocated to the front yard to conduct a search of the Maxima parked in the yard of the house. Upon opening the doors of the vehicle, Sgt. Townley testified that he smelled a strong odor of ammonia, another product commonly associated with the manufacture of methamphetamine. A document bearing Mitchell’s name was also found in the interior of the vehicle.

Sergeant Townley explained that he then moved to the trunk of the vehicle at which time he noticed Mitchell drop his head in a “defeated manner.” Noticing Mitchell’s reaction, Sgt. Townley believed Mitchell was aware that something would be found in the vehicle’s trunk. The trunk lock was missing and a piece of wire was in place of the lock. Sergeant Townley pulled the wire and the trunk opened revealing items known to be associated with the manufacture of methamphetamine. Mitchell and his girlfriend were handcuffed and Mircmdized. Mitchell then indicated he would “take the charge,” which Sgt. Townley explained he understood to mean that Mitchell would be accepting responsibility for the pending criminal charge.

14Following the trial, a jury convicted Mitchell of manufacture of a Schedule II, controlled dangerous substance (methamphetamine). Thereafter, the defendant was adjudicated a third felony offender and following a sentencing hearing, sentenced to 45 years’ imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The instant appeal followed.

Discussion

In his sole assignment of error, Mitchell argues that the evidence against him was insufficient to convict him of manufacture of methamphetamine. Specifically, he maintains that the state failed to adduce any evidence that he performed any act toward the manufacture of methamphetamine and that he was not linked to the lab found in the trunk of the vehicle parked in the front yard of the house where he was arrested. The state contends the evidence adduced at trial was “more than sufficient” to convict the defendant. We agree.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (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. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

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.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

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. Wiltcher, 41,981 (La.App.2d Cir.05/09/07), 956 So.2d 769.

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of | fiother connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Mims, 39,757 (La. App. 2d Cir.06/29/05), 907 So.2d 237.

In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. As an evi-dentiary rule, it restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Van Sales, 38,138 (La.App.2d Cir.03/03/04), 867 So.2d 849, writ denied, 2004-1305 (La.04/22/05), 899 So.2d 569.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.06/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.05/04/07), 956 So.2d 607.

17Based on the evidence presented, the defendant’s argument of insufficient evidence to convict is meritless. Through the testimony of its witnesses, the State was able to prove that Mitchell was residing in a house that was under surveillance for possible drug activity including drug manufacturing and distribution. Sergeant Gray, in his surveillance of the house, had notified the narcotics task force of the information he was investigating. After Sgt. Gray noticed activity at the house which he deemed suspicious and consistent with a possible drug transaction, he had the license plate number of a truck checked and found the plate on the truck had been switched from another vehicle. Sergeant Gray’s attempt to conduct a traffic stop of the truck led to a high-speed chase that culminated with the truck crashing in Bossier Parish.

While Sgt. Gray was at the scene of the accident, Sgt. Townley was following up on the possible drug activity at the house. Mitchell granted the officers permission to enter the home where they found his girlfriend in a bedroom and where contraband was later located. During the search, a piece of burned aluminum foil, recognized to be consistent with methamphetamine use, was found in Mitchell’s bedroom. Af-terwards, other suspected methamphetamine residue was also discovered in the home. As a part of the continued search, the agents focused on the vehicle parked outside the front of the house, which vehicle Mitchell was known to drive. When Mitchell saw that a search of the vehicle was imminent, his demeanor noticeably changed and he dropped his head as the trunk of the vehicle was opened. Inside the trunk, a portable methamphetamine lab was found. |s Items inside the trunk tested positive for trace amounts of methamphetamine. Also found in the trunk was Mitchell’s social security card. A document bearing Mitchell’s name and associated with a credit card was found in the interior of the vehicle. Sergeant Townley testified that Mitchell’s post-Miranda warnings indicated he was “taking the charge” for the items after the lab was found in the trunk, which Sgt. Townley took to mean that he was accepting responsibility for all of the items discovered inside the house as well as the mobile laboratory.

While Mitchell argues that there is no connection to show he placed the items in the vehicle, the evidence presented shows that he had an awareness of the items found in the trunk as evidenced by his demeanor and actions once the search of the vehicle became imminent. Additionally, Mitchell was known to be the driver of the vehicle and his personal effects were found in both the trunk and passenger cabin of the vehicle. Clearly, the evidence here was sufficient to convict.

Mitchell also argues that all reasonable hypothesis of innocence were not excluded in that his roommate, known only as “Tater” and who occupied the locked bedroom, could have placed the items in the trunk. However, other than Mitchell’s mention of the fact that he had a roommate, there is nothing to indicate that this person had access to the vehicle and/or had previously been associated with the vehicle. When viewing the evidence in the light most favorable to the prosecution, the state met its burden of proving the defendant was in fact guilty of manufacture of methamphetamine in violation of La. R.S. 40:967(A)(1). So considering, this assignment of error is without merit.

|9Conclusion

For the foregoing reasons, the conviction and sentence of James Harold Mitchell are affirmed.

AFFIRMED.

      . At his trial, Mitchell failed to reappear after the trial court recessed for lunch break. Mitchell's attorney indicated he requested his client return at 12:45 p.m. At 1:15 p.m., court reconvened, Mitchell was not present, and defense counsel did not know of his whereabouts. Mitchell was afforded approximately five more minutes to appear and when he had not done so, the trial reconvened.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Corenza Kendell KELLY, Jr., Appellant.
    No. 45,562-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.

      Charles Rex Scott, II, District Attorney, Brady O’Callaghan, Ben Langford, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

| defendant, Corenza Kendell Kelly, Jr., a juvenile, was charged as an adult, convicted of second degree murder and sentenced to the mandatory term of life imprisonment without parole. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On January 22, 2007, Defendant, who was 15 years old at the time, went to Goody’s Beauty Supply (“Goody’s”) in Shreveport with the intent to commit an armed robbery. Defendant met two of his juvenile friends in the parking lot of the store, showed them his handgun, an RG .22 caliber revolver, and told them that he intended to rob the store while armed with the handgun.

Defendant then entered the store alone while his friends stood outside. The owner, Ms. Maeung Ram Ellis, and a cashier were inside the store. Shermargueus Bouligny, a friend of Defendant’s, testified that he heard Defendant demand money from the cashier. Defendant, however, was unable to obtain any money from the panicked cashier; and, instead, Ms. Ellis emerged from the back of the store and began to push Defendant toward the door. As Defendant was being pushed by Ms. Ellis, he shot her once in the head. Boul-igny testified that he heard “gunshots,” but did not see Defendant shoot Ms. Ellis. At that point, Defendant and his friends fled from the scene. Ms. Ellis was then transported to the hospital where she died from the gunshot wound.

pLater that day, Defendant’s friends went to the police station and identified Defendant as the shooter. Police then went to Defendant’s home to arrest him. Officer Rod Johnson of the Shreveport Police Department waited in Defendant’s room with him while he was getting dressed. At this time, Defendant told Officer Johnson that there was a gun in a nearby laundry basket. Officer Johnson immediately retrieved the revolver. The gun contained four live cartridges, three of which had a firing pin indentation on the primer. There were no spent cartridge cases in the cylinder and the remaining two chambers were empty.

Defendant’s mother accompanied him to the police station and officers informed Defendant and his mother of Defendant’s Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After conferring in private with his mother, Defendant decided to make a statement to police. Defendant’s mother remained in the interview room and also participated in the interview. Defendant admitted that he intended to go to Goody’s to commit a robbery while armed with a handgun. Defendant explained that the cashier stood at a distance and screamed when he produced the gun and then Ms. Ellis came out from the back and started pushing him out of the store. In the presence of his mother, Defendant made the following statements to police:

That’s how the gun went off. She kept pushing me out of the door. She was pushing me.
|aShe was — I was going out the door and she — one of her hands — her hand must have hit the gun, too, while she was pushing me, one or both of them because she was pushing me with both of her hands.... And one of them — one of them must have hit the gun and it had went off and I didn’t even see — I didn’t even see it. I just heard the gunshot. I didn’t even see it when it shot her there. I wasn’t even looking at her when that gun shot.
I had just raised it up and it went off.... I was trying to get her to stop pushing me.... Yeah, I was doing it just to scare her. I wasn’t going there just to kill nobody.

Defendant was initially charged as an adult with first degree murder; however, the grand jury returned an amended indictment for second degree murder.

Defendant opted to testify at trial. Again, he admitted that he entered the store with the intent to commit an armed robbery and demanded money at gunpoint from the cashier. Defendant then repeated the substance of his statement to police wherein he explained that Ms. Ellis emerged from the back of the store and was pushing him toward the door when he pointed the gun at her and it “went off.”

During closing argument, Defendant’s attorney reiterated that the shooting was an accident, but also raised the possibility that Defendant might have lost his cool reflection during the period of time immediately preceding the shooting when Ms. Ellis was pushing him toward the door, thereby suggesting that Defendant had committed manslaughter rather than second degree murder.

After the trial ended, the jury deliberated and, as previously stated, returned a verdict convicting Defendant of second degree murder. |4Pefendant filed a post-verdict motion for a modification to manslaughter and the trial judge denied the motion. In accordance with the mandatory penalty for second degree murder as set forth in La. R.S. 14:30.1, the trial judge sentenced Defendant to a term of life imprisonment at hard labor without the benefit of parole. Defendant now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): There is insufficient evidence to prove the guilt of defendant for the offense of second degree murder beyond a reasonable doubt.

In his first assignment of error, Defendant argues that the State failed to prove beyond a reasonable doubt that he committed second degree murder. Defendant further contends that the murder was committed in heat of blood and sudden passion and that those elements were proven at trial by a preponderance of the evidence. According to Defendant, when Ms. Ellis pushed him toward the door, this action was sufficient provocation to cause an average person to lose self-control and cool reflection.

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, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with |5a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517.

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. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

La. R.S. 14:30.1 states in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
Emphasis added.

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or failure to act. See La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. See La. R.S. 14:10(1); State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

|fiThe determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. In reviewing the correctness of such a determination, the court should review the evidence in the light most favorable to the prosecution and determine if the' evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra. The act of aiming a firearm at a person and discharging the firearm at close range is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

La. R.S. 14:31 provides in relevant part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (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 cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.]

In State v. Lombard, 486 So.2d 106 (La.1986), the Louisiana Supreme Court explained:

[T]he presence of “sudden passion” or “heat of blood” distinguishes manslaughter from murder. The court has stated on several occasions, however, that “sudden passion” and “heat of blood” are not elements of the offense of manslaughter; 17 rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. Since they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in a “sudden passion” or “heat of blood” is entitled to a manslaughter verdict. Where such proof has been introduced, a second degree murder verdict is inappropriate. Citations omitted.

This court, however, further noted in State v. Brooks, 36,855 (La.App.2d Cir.3/5/03), 839 So.2d 1075, writ denied, 03-0974 (La.11/7/03), 857 So.2d 517, that “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” See also State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988).

In the case sub judice, Defendant alleges on appeal that he shot Ms. Ellis in the heat of blood and sudden passion as a result of Ms. Ellis’ provocation by pushing him toward the door. This argument on appeal is contrary to and inconsistent with Defendant’s assertion at trial that the gun in his hand, which he was aiming at Ms. Ellis, accidentally went off while she was pushing him out of the store.

The Jackson standard does not provide a defendant with a means of arguing alternative and inconsistent defenses in different forums, raising one defense before the jury and, when that fails, a second defense presupposing a different set of facts in an appellate court conducting a sufficiency review under Jackson and La. C. Cr. P. art. 821(E). State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291.

Furthermore, the evidence presented at trial and Defendant’s own testimony indicated that Defendant entered Goody’s with a handgun with the intention of committing an armed robbery therein, but was prevented 18from doing so by the cashier’s panic and inability to understand Defendant’s demands, followed by Ms. Ellis emerging from the back of the store and pushing Defendant toward the door. The State’s criminalist testified that Defendant’s firearm was malfunctioning and that three of the four live cartridges in the gun recovered from Defendant had evidence of primer strikes, suggesting that Defendant tried to fire the gun multiple times before finally firing it once at Ms. Ellis. The jury chose to reject Defendant’s brief alternative explanation during closing argument that he was deprived of his cool reflection when he shot Ms. Ellis. Accordingly, we find that the evidence presented at trial was sufficient to prove beyond a reasonable doubt that Defendant was guilty of second degree murder.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): The sentence imposed is excessive for this offender and offense.

Defendant argues in his second assignment of error that the mandatory sentence of life imprisonment without parole imposed by the trial judge is unconstitutionally excessive, grossly disproportionate to his offense and nothing more than the needless imposition of pain and suffering. Defendant did not file a motion to reconsider sentence with the trial judge, an omission which typically precludes review of a sentence on appeal, except for a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

The mandatory life sentence without parole for convictions under La. R.S. 14:30.1 has been repeatedly upheld against constitutional challenges. \<} State v. Clem, 33,686 (La.App.2d Cir.11/1/00), 779 So.2d 763, writ denied, 00-3498 (La.10/5/01), 798 So.2d 964. Louisiana statutory law requires the imposition of the mandatory life term, as specified by the legislature, for juveniles who are charged as adults and convicted of homicide. State v. Pilcher, 27,085 (La.App.2d Cir.5/10/95), 655 So.2d 636, writ denied, 95-1481 (La.11/13/95), 662 So.2d 466.

As previously noted, Defendant did not file a motion to reconsider sentence; and, because the sentence imposed was mandatory under La. R.S. 14:30.1, the trial court was not required to articulate reasons for imposing the sentence. State v. Clem, supra. There is no evidence in the record of special circumstances warranting a sentencing deviation in this case. Defendant offers his youthful age in support of his argument, but that factor alone is inadequate to warrant a deviation from the mandatory sentence.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Corenza Kendell Kelly, Jr., are affirmed.

AFFIRMED.

      . There is no surveillance video of the ensuing events.

      . The cashier, who is Korean and speaks very little English, did not testify at trial.

      . The State's criminalist, Mr. Richard Beigh-ley, testified that, when he test fired the gun with different ammunition, it misfired on four out of six shots, leaving firing pin indentations on the primers of the live, unspent cartridges. Mr. Beighley further explained that the indentations on the primers of the three cartridges found in the gun when it was seized from Defendant were consistent with the same type of indentations resulting from misfires.


author: GASKINS, J.

text:
    FAMILY CARE SERVICES, INC., Plaintiff-Appellee v. Brenda OWENS, Robin Matthews and Certicare, Inc., Defendants-Appellants.
    No. 45,505-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Charles D. Jones, Lakoshia Roberts, for Defendants-Appellants.
    Sutton & Alker, LLC, by Charles D. Sutton, Jr., Michael T. Tusa, Jr., for Plaintiff-Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

[, The defendants, Brenda Owens and Robin Matthews, appeal from a trial court judgment that awarded the plaintiff, Family Care Services, Inc., attorney fees in the amount of $43,160.50 and costs in the amount of $10,212.98, in connection with the grant of a preliminary injunction. The plaintiff has answered the appeal, seeking additional attorney fees for defending this appeal. For the following reasons, we affirm the trial court judgment. We reject the plaintiffs request for additional attorney fees on appeal.

FACTS

Brenda Owens (“Owens”) and Robin Matthews (“Matthews”) were employees of Family Care Services, Inc. (“FCS”), a Louisiana corporation that provides services for elderly and developmentally disabled adults. Both Owens and Matthews signed employment agreements, which contained non-competition, non-solicitation, and confidentiality provisions enforceable for two years after separation from employment.

laOwens was employed by FCS from June 24, 2002, to March 18, 2008. Immediately after resigning from FCS, Owens applied for and was hired by Certicare, Inc. (“Certicare”), a direct competitor of FCS. Matthews was employed by FCS from April 3, 2007, to November 2, 2007; she began to work with Certicare on November 12, 2007.

FCS filed a motion for a preliminary injunction in April 2008, alleging that Owens and Matthews had violated the terms of their employment agreements. FCS later amended its petition to request damages, attorney fees, and costs as allowed in the contract with the defendants. A hearing on the preliminary injunction was held in November 2008. In April 2009, the trial court signed a preliminary injunction enjoining Owens and Matthews from soliciting clients of FCS, from soliciting current or former employees of FCS for employment with Certicare, and from continuing employment with Certicare in any capacity in which their duties would be substantially similar to their duties performed while employed by FCS. The trial court scheduled the trial on the permanent injunction for November 2009.

In June 2009, FCS filed a motion for an award of attorney fees and costs related to the issuance of the preliminary injunction. At the November 2009 trial, FCS dismissed its request for a permanent injunction against Owens since she was abiding by the April 23, 2009, judgment and only four months remained in her two-year non-competition agreement. FCS dismissed its request for a permanent injunction against Matthews since her |4 employment with FCS had terminated more than two years prior to the date of the trial. Therefore, the two-year term on her non-competition and non-solicitation agreement with FCS had expired, mooting the plaintiffs request for injunctive relief. FCS also dismissed its claim for damages.

The trial court heard arguments from the parties on attorney fees and costs in connection with obtaining the preliminary injunction. On December 4, 2009, the trial court issued a judgment ordering Owens and Matthews to pay FCS attorney fees in the amount of $43,160.50 and costs in the amount of $10,212.98. Owens and Matthews appealed.

SECURITY FOR PRELIMINARY INJUNCTION

The defendants argue that the trial court erred by issuing a preliminary injunction against them to enforce the agreement at issue here without setting and requiring FCS to post the statutorily required security. This argument is without merit.

Legal Principles

Non-competition agreements in Louisiana are governed by La. R.S. 23:921, which provides in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
|SC. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.
H. Any agreement covered by Subsection B, C, E, F, G, J, K, or L of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order in-junctive relief enforcing the terms of the agreement....

Regarding injunctive relief, La. C.C.P. art. 3601 provides in pertinent part:

A. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law;....
C. During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
IfiD. Except as otherwise provided by law, an application for injunctive relief shall be by petition.

Discussion

Even though there is no dispute that the agreement at issue here complies with La. R.S. 23:921, the defendants argue that the trial court erred in granting a preliminary injunction without requiring the plaintiff to post security. It is questionable whether this argument is properly before the court for decision. A preliminary injunction is an appealable judgment under La. C.C.P. art. 3612. Such an appeal must be taken within 15 days from the date of the order or judgment. The defendants in this matter did not appeal from the granting of the preliminary injunction. Therefore, the preliminary injunction became final.

However, the defendants essentially contend that the preliminary injunction was invalid and void ab initio and never took effect due to the failure to require the plaintiff to post security.

La. C.C.P. art. 3610 states in pertinent part:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained....

This demonstrates that security is not required for the validity of a preliminary injunction in every instance.

Further, the jurisprudence does not hold, as argued by the defendants, that the failure to require the posting of security prior to entry of a 17preliminary injunction means that the injunction never became effective. The remedies available for failure to require security in connection with the issuance of a preliminary injunction vary according to the circumstances of the case and do not necessarily render the injunction void or require it to be set aside. As stated in Frank L. Maraist, 1A Louisiana Civil Law Treatise: Civil Procedure-Special Proceedings, § 1.2, n. 35 (2005):

The jurisprudence provides for optional remedies when a preliminary injunction is issued without security. The appellate court may either set aside the preliminary injunction or remand the matter to the trial court for the fixing of security. High Plains Fuel Corp. v. Carto Intern. Trading, Inc., 640 So.2d 609 (1st Cir.1994); Stuart v. Haughton High School, 614 So.2d 804 (2d Cir.1993) and the cases cited therein. In cases where the plaintiffs right to an injunction seems beyond question, courts have remanded for the posting of bond id.; Liberty Bank & Trust Co. v. Dapremont, 844 So.2d 877 (4th Cir.2003) (plaintiff was clearly entitled to injunction with bond; however, the trial judge did not require security. Held, on appeal, the court should not dissolve the injunction, but should remand to the trial court to fix the amount of the bond). Bonomolo v. HMC Management Corp., 477 So.2d 780 (4th Cir.1985). The “interests of justice and judicial economy” have also been cited by courts that have chosen to remand rather than set aside the injunction. See, e.g., Hernandez v. Star Master Shipping Corp., 653 So.2d 1318 (1st Cir.1995).
However, some cases maintain that the better approach when a preliminary injunction has been issued without bond is to vacate and set aside the injunction. See Advanced Collision Services, Inc. v. State, Dept. of Transp., 631 So.2d 1245 (5th Cir.1994); Stuart v. Haughton High School, 614 So.2d 804 (2d Cir.1993); Lambert v. Lambert, 480 So.2d 784 (3d Cir.1985); Cochran v. Crosby, 411 So.2d 654 (4th Cir.1982). Compare Bayou Hunting Club of Hunter v. DeSoto Parish Police Jury, 569 So.2d 252, 254 (2d Cir.1990) (“This circuit ... will remand rather than setting aside an otherwise valid preliminary injunction that fails to fix security”).
Even where the court sets aside a preliminary injunction for failure to comply with Article 3610, the decision is often based on the totality of the circumstances. See, e.g., Stuart v. Haughton High School, 614 So.2d 804 (2d Cir.1993) (failure to post security justified vacation of preliminary injunction where the trial court permitted the defendant to take a |8suspensive appeal, nine months had elapsed since the grant of injunctive relief, and there was question as to whether such relief was still necessary).

We also note that the defendants contractually waived the requirement that bond be set prior to the issuance of the preliminary injunction. The agreement between the parties regarding injunctive relief states:

9. REMEDIES, INJUNCTIVE RELIEF
It is recognized and agreed by the [parties] that, in the event EMPLOYEE should breach or violate any of the terms or provisions of the covenants and agreements set forth in Section 4, 5, 6, 7, and 8 hereof, great loss and irreparable damage would be suffered by FAMILY CARE. EMPLOYEE further acknowledges and agrees that each such covenant and agreement is reasonably necessary to protect and preserve FAMILY CARE’s rights and interest. Accordingly, the parties hereto expressly agree that FAMILY CARE shall have the right, independent of and in addition to any provision for other remedies herein, and in addition to all of the remedies provided at law or in equity, to injunc-tive relief by any appropriate legal means, including but not limited to, a preliminary or temporary restraining order and a permanent injunction, for breach of any of these covenants and agreements. In the event that FAMILY CARE seeks an injunction hereunder, EMPLOYEE hereby waives any requirements that FAMILY CARE post a bond or any other security. Furthermore, both [parties] agree that injunctive relief shall be available to FAMILY CARE for as long as EMPLOYEE is in breach of any provisions under this Agreement. The existence of any claim, demand, action or cause of action to EMPLOYEE against FAMILY CARE, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by FAMILY CARE of such covenants and agreements. All remedies provided under this Agreement shall be taken and construed as cumulative and in addition to every other remedy provided for herein or by law. [Emphasis supplied.]

However, because the defendants failed to object timely to the failure to set a bond, we do not reach consideration of whether the parties were within their rights to waive the posting of security.

| .ATTORNEY FEES AND COSTS

The defendants argue that the trial court erred by awarding attorney fees and costs to FCS since it voluntarily dismissed its permanent'injunction against the defendants. According to the defendants, the issuance of a preliminary injunction was not a “judgment” under the terms of the agreement. The defendants contend that a plaintiff, such as FCS, who dismisses the principal action on which a claim for attorney fees and costs are made cannot be considered the “prevailing party” because no judgment on the merits of the case was ever rendered. This argument is without merit.

Legal Principles

A party shall recover attorney fees only when authorized by statute or stipulated by contract. Murray v. German Mutual Insurance Company, 87,697 (La.App.2d Cir.9/24/03), 856 So.2d 81, writ denied, 2003-3168 (La.2/13/04), 867 So.2d 698. Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art.1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. Where factual findings are pertinent to the interpretation of a contract, those factual findings are subject to the manifest error standard of review. Murray v. German Mutual Insurance Company, supra. Parties are free to contract for any object that is lawful, possible, and determined or determinable. La. C.C. art. 1971. This “freedom of contract” signifies that parties to an agreement have the right and power to construct their own bargains. However, the state may legitimately restrict the parties’ right to contract if the proposed bargain is found to have some deleterious | ineffect on the public or to contravene some other matter of public policy. Therefore, in a free enterprise system, parties are free to contract except for those instances where the government places restrictions for reasons of public policy. CDI Corporation v. Hough, 2008-0218 (La.App. 1st Cir.3/27/09), 9 So.Sd 282.

Discussion

In this case, there is no statutory provision for the award to the plaintiff of attorney fees or costs. The recovery of attorney fees and costs is dependent upon the contract between the parties. The employment agreement at issue here provides:

12. ATTORNEY’S FEES
In the event that either party should breach any provisions or term of this Agreement, or fail to perform any duty herein, and the other party employs an attorney to protect its interest therein and obtains a judgment in its favor, then the prevailing party shall be entitled to- reasonable attorney’s fees, costs of the action and pre-judgment and post-judgment interest at the legal rate of interest on all judgments obtained hereunder. [Emphasis added].

Under the terms of the contract at issue in this matter, either party is entitled to attorney fees and costs on a showing of a breach of the agreement or failure to perform a duty specified in the agreement, employment of an attorney to protect its interests, and obtaining a judgment in favor of the prevailing party.

According to the defendants, the preliminary injunction is interlocutory and not a final judgment on the merits. It is granted on a showing of prima facie evidence supporting a claim and is aimed at maintaining the status quo pending a hearing on entitlement to a permanent ^injunction. The defendants maintain that, under La. C.C.P. art. 1841, a preliminary injunction does not determine the merits, but only preliminary matters. We note that, under La. C.C.P. art.2083, a judgment must be final to be appealable, or be an interlocutory judgment for which a special exception has been granted. A preliminary injunction is an interlocutory judgment in which the right of appeal is granted by law. La. C.C.P. art. 3612(B) and (C) provide:

B. An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pen-dency of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.

Under this statutory scheme, the preliminary injunction entered by the trial court was an interlocutory judgment, but was also an enforceable and 11?appealable judgment. Therefore, under the wording of the contract in this case, the preliminary injunction was a judgment entitling FCS to attorney fees and costs.

The defendants next argue that FCS is not a “prevailing party” under the terms of the agreement. In support of this claim, they cite federal jurisprudence interpreting the meaning of a prevailing party. The federal cases construing the definition of a prevailing party are largely based upon 42 U.S.C. § 1988(b) which allows the award of attorney fees in certain enumerated instances. In Sole v. Wyner, 551 U.S. 74, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007), the United States Supreme Court considered whether a plaintiff who gained a preliminary injunction in an action under 42 U.S.C. § 1983, but was denied a permanent injunction after a dispos-itive adjudication on the merits, qualified as a “prevailing party” under 42 U.S.C. § 1988(b) for the award of attorney fees.

| isThe Supreme Court stated that a plaintiff who secures a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against her, has won a battle but has lost the war. The Supreme Court ruled that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under 42 U.S.C. § 1988(b) if the merits of the case are ultimately decided against her.

The present case is distinguishable from Sole. Here, the authority for the award of attorney fees is contractual and not statutory. The wording of the contract in the present case does not track that of 42 U.S.C. § 1988(b) in any way. The federal statute provides that a trial court may, in its discretion, award attorney fees to a prevailing party. The contract in this case specifically provides for attorney fees if certain conditions are met. Those requirements were fulfilled in this case. Specifically, in this case, the preliminary injunction obtained by the plaintiff was an enforceable and appealable judgment.

Further, in Sole, the permanent injunction was denied on the merits due to the plaintiffs refusal to abide by the terms of the preliminary injunction. In the present matter, FCS voluntarily dismissed its claim for a permanent injunction, not because of any deficit in its entitlement to a permanent injunction, but because, essentially the matter had become moot due to the passage of time. Accordingly, we do not find the federal authority argued by the defendants to be persuasive in this matter. We conclude that, limited to the facts of this case, FCS obtained a judgment in 114its favor in the form of a preliminary injunction, was the prevailing party, and thus was entitled to attorney fees under the terms of the contract.

We note that the defendants failed to object to the amount of the attorney fees and costs awarded.

ADDITIONAL ATTORNEY FEES ON APPEAL

The plaintiff answered the appeal in this matter, arguing that FCS is entitled to additional attorney fees and costs in connection with defending this appeal. We reject this request.

The general rule is that an increase in attorney fees is usually allowed where a party was awarded attorney fees by the trial court and is forced to and successfully defends an appeal. However, even though requested, additional attorney fees may not be granted where the appellate court finds that the amount awarded in the trial court was sufficient to compensate counsel for both the work at the trial court and the appellate court levels. Sims v. Sun Chemical Corporation, 34,947 (La. App.2d Cir.8/22/01), 795 So.2d 439. See also Harbor v. St. Frances Cabrini Hospital, 2001-1551 (La.App. 3d Cir.5/15/02), 817 So.2d 1269, writ denied, 2002-1684 (La.10/4/02), 826 So.2d 1125. In this case, we find that the attorney fee award of $43,160.50, along with costs of $10,212.98, for this preliminary injunction is more than sufficient to compensate counsel for work done in this court and in the court below. Accordingly, we deny the request by FCS for additional attorney fees for the defense of this appeal.

| ^CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court granting a preliminary injunction without the requirement of posting security. We also affirm the award of attorney fees and costs to the plaintiff, Family Care Services, Inc., against the defendants, Brenda Owens and Robin Matthews, in connection with obtaining the preliminary injunction. We deny the request of the plaintiff for additional attorney fees for defending this appeal. Costs in this court are divided evenly between the plaintiff and the defendants.

AFFIRMED; REQUEST FOR ADDITIONAL ATTORNEY FEES DENIED.

      . The agreement between the plaintiff and the defendants provided as follows:
      4. AGREEMENT NOT TO SOLICIT CUSTOMER/CONSUMERS

      EMPLOYEE agrees that during his/her employment by FAMILY CARE and for a period of two (2) years following the termination of or separation from such employment for any reason whatever, in-eluding resignation, EMPLOYEE will not (except on behalf of or with the prior written consent of FAMILY CARE) within the Area, either directly or indirectly, on his/her own behalf or in the service or on behalf of others [ (i)] solicit, divert, provide services to, or appropriate to a Competing Business of FAMILY CARE, or (ii) attempt to solicit, divert, or appropriate to or for any competing Business, any consumer of FAMILY CARE who was provided service by or under the direct supervision of EMPLOYEE during the last two (2) years of his/her employment by FAMILY CARE.
      5. AGREEMENT NOT TO SOLICIT EMPLOYEES

      EMPLOYEE agrees that during his/her employment by FAMILY CARE and for a period of tow [sic] (2) years following the termination of such employment for any reason whatsoever, EMPLOYEE will not, either directly or indirectly, on his/her own behalf or in the service or on behalf of others, solicit, divert or hire away or attempt to solicit, divert or hire away to any Competing Business, any person employed by FAMILY CARE, and whether or not such employment is pursuant to a written agreement, and whether or not such employment is for a determined period or is at-will.
      6. AGREEMENT NOT TO COMPETE BY GOING INTO BUSINESS

      EMPLOYEE agrees that during his/her employment by FAMILY CARE and for a period of two (2) years following the termination or resignation of such employment for any reason whatsoever, he/she shall not within the Area, set up, start up, establish, begin, join a business, company, corporation, partnership or any other entity (hereafter in this paragraph jointly referred to as a "Entity”) which engages in any business which is the same as or essentially the same as FAMILY CARE's Business. The intent of this provision is to assure that FAMILY CARE, to the full extent possible under La. R.S. 23:921, has protection against competition by EMPLOYEE.
      7. AGREEMENT NOT TO COMPETE BY WORKING FOR ANOTHER

      EMPLOYEE agrees that during his/her employment by FAMILY CARE and for a period of two (2) years following the termination or resignation of such employment for any reason whatsoever, he/she will not (except on behalf of or with the prior written consent of FAMILY CARE) within the Area, either directly or indirectly, in the service or on behalf of others in a capacity as employee or contractor, which involves duties and responsibilities identical or substantially similar to those EMPLOYEE shall perform for the FAMILY CARE, and/or engage in any business which is the same as or essentially the same as FAMILY CARE’s Business (any business carrying on such activities being herein called a "Competing Business”)

        8.OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION

      a. EMPLOYEE acknowledges and agrees that all Confidential Information, and all physical embodiments thereof, are confidential to and shall be and remain the sole and exclusive property of FAMILY CARE and that any Confidential Information prepared or created by EMPLOYEE shall be considered work for hire. Upon request by FAMILY CARE, and in any event upon termination of his/her employment with FAMILY CARE for any reason, EMPLOYEE shall promptly deliver to FAMILY CARE all property belonging to FAMILY CARE including without limitation, all Confidential Information (and all embodiments thereof) then in his/her custody, control, or possession.
      b. EMPLOYEE agrees that during the term of his/her employment by FAMILY CARE and for a period of two (2) years following the termination of such employment for any reasons whatsoever, EMPLOYEE will not disclose or make available, directly, or indirectly, any Confidential Information to any person, concern, or entity, except in the proper performance of his/her duties and responsibilities hereunder or with the prior written consent of FAMILY CARE.
      c. EMPLOYEE agrees that he/she shall at all times during his/her employment and after the termination of said employment comply with the privacy and security requirements of HIPPA regarding consumer records and the information contained in consumer records.
      The “Area” covered by the agreement included the parishes of "Union, Morehouse, West Carroll, East Carroll, Lincoln, Ouachita, Rich-land, Madison, Jackson, Caldwell, Franklin, West Monroe, Tensas, Winn, LaSalle, [Cata-houla], Grant, Concordia, Vernon, Rapides, Avoyelles, Caddo, Bossier, Webster, Claiborne, DeSoto, Red River, Bienville, Sabine, and Natchitoches.”

      . Certicare was named as a defendant but was voluntarily dismissed by FCS prior to the two-day hearing in November 2008.

      . After the entry of the judgment on appeal in this matter, La. R.S. 23:921(A)(1) was amended and reenacted by Acts 2010, No. 164, to provide that:
      A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable. [Emphasis supplied.]

      . Those instances in which security is dispensed with by law include cases involving domestic violence, dating violence, stalking, or sexual assault.

      . La. C.C.P. art. 1841 provides:
      A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
      A judgment that determines the merits in whole or in part is a final judgment.

      . La. C.C.P. art.2083 provides in pertinent part:
      A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.

      C. An interlocutory judgment is appeal-able only when expressly provided by law.

      . See Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

      . 42 U.S.C. § 1988 provides in pertinent part: (b) Attorney’s fees
      In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

      . We reject the argument by the defendants that our ruling will "open the floodgates” for plaintiffs to file for preliminary injunctions, dismiss them, and then collect attorney fees and costs without proving their allegations. As noted earlier, the entitlement to attorney fees in this matter is governed by the contract between the parties. Without such an agreement, there is no entitlement to attorney fees.