author: McCLENDON, J. WELCH, J.,

text:
    John Robert TESSIER and Melati A. Tessier v. Walter Leonard PRATT and Margueritte Hanley Pratt.
    No. 2008 CA 1268.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Denied March 31, 2009.

      Allen M. Posey, Jr., Baton Rouge, Louisiana, for Plaintiffs/Appellants, John Robert Tessier and Melati A. Tessier.

      Carolyn Pratt Perry, Baton Rouge, Louisiana, for Defendants/Appellees, Walter Leonard Pratt and Margueritte Hanley Pratt.
    Before PARRO, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

^Plaintiffs, John Robert Tessier and Melati A. Tessier, appealed, asserting that the trial court erred in dismissing their case as abandoned. Finding a waiver of defendants’ right to have the case dismissed as abandoned, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, the Tessiers, filed a suit for redhibition. Defendants, Walter Leonard Pratt and Margueritte Hanley Pratt, answered, filed a reconventional demand, and conducted discovery. In the course of discovery, defendants deposed several people. Plaintiffs sought copies of the depositions from defendants by letter, but did not schedule a date or time to inspect and copy the depositions, which were in the defendants’ possession in another state. Subsequently, within the three year prescriptive period for abandonment set by LSA-C.C.P. art. 561, plaintiffs sent the defendants a document partially entitled “REQUEST FOR PRODUCTION OF DOCUMENTS,” which contained essentially one request. Defendants were asked to send to plaintiffs, at plaintiffs’ expense, “the original of all of the depositions [taken] in the Summer of 2002....” In addition, the plaintiffs offered to return the originals to the defendants after they were copied. Eventually, defendants sent the depositions to plaintiffs. During the negotiations over the copying of the depositions, no motion to compel or motion for sanctions was filed of record.

On June 12, 2007, defendants, in tandem with the plaintiffs, moved the court for adoption of a case management schedule and filed the motion into the record. Both counsel signed the motion. The proposed schedule contained discovery cutoff dates, and final dates for exchange of pretrial inserts and preparation and filing of a pretrial order. The trial court adopted the schedule by order signed on the same day of filing.

InAlmost two months later, on August 8, 2007, defendants filed an ex parte motion to dismiss the suit based on a claim of abandonment pursuant to LSA-C.C.P. art. 561. Accompanying the motion was a certificate of service, a document entitled, “affidavit,” and a memorandum in support of the motion. In the “affidavit,” defendants’ counsel verified that, “to the best of [her] knowledge and belief,” the facts stated in the memorandum in support of the ex parte motion to dismiss were “true and complete.” In the “FACTS” section of the memorandum itself, defendants’ counsel made the following statements in the pertinent numbered paragraphs:

19. The court required counsels’ attendance at the Status Conference (Case Management Scheduling Conference) on June 12, 2007. Defense counsel did so, advising the plaintiffs’ counsel that it was her opinion that the action had been abandoned, and she was present to advise the court of that position.
20. After meeting with plaintiffs’ counsel and upon learning that the judge had left for a previously scheduled appointment, defense counsel advised the judge’s judicial assistant of the need for a telephone conference with the judge to discuss the abandonment issue, and one was held that afternoon. At that time[,] defense counsel advised the court of the defendants’ position that the case had been abandoned.
21. On that same date[,] defense counsel also requested that the plaintiffs’ counsel identify any cases(s) that would support his position that the action had not been abandoned. If he did so, she would certainly consider them, and, if he [was] correct, then she would not waste the court’s time, or his time by the filing [of] a motion to dismiss.
22. To date[,] plaintiffs’ counsel has not provided a single case in support of his clients’ position that the action was not abandoned.
23. In a telephone conference with plaintiffs’ counsel on August 1, 2007, defense counsel asked for ... his clients’ position that the case had not been abandoned. Plaintiffs’ counsel replied, “There are cases that say that the defendant has “waived” the abandonment argument by appearing at a status conference. He did not provide any citations to support this position. In fact[,] there is at least one case holding to the contrary, Willey v. Roberts, 664 So.2d 1371 (1st Cir.1995), cert. denied, 669 So.2d 422 (La.1996). This case held that the presence of defense counsel at a pretrial conference does not constitute a waiver of the defendant’s claim that the matter has been abandoned, when the abandonment was apparently disclosed during the conference (emphasis added).
24. Therefore, the defendants now file this motion [to dismiss based on abandonment], after having given the plaintiffs ample opportunity to provide legal authority to support their position that the case was not abandoned.

|Jn the “ARGUMENT” section of the memorandum, under the “Waiver” subtitle, defense counsel asserted that: “the abandonment issue was raised, not only in private discussions with the plaintiffs’ counsel on a few days prior to and again at the status conference ..., but also with the court’s judicial assistant that morning, and with the judge later that afternoon in a telephone conference call.”

On August 24, 2007, the trial court signed the order for dismissal contained in the ex parte motion. Subsequently, plaintiffs filed a motion to set aside the order of dismissal, asserting that the case had not been abandoned because plaintiffs “propounded formal discovery on July 8, 2004,” and defendants appeared for a status conference and signed a case management schedule on June 12, 2007, which was adopted by the trial court.

In oral reasons given at the end of a hearing on December 10, 2007, the trial court found that the transcribed depositions themselves were not formal discovery and that the copies could have been obtained from the court reporter, if necessary. The trial court then rendered judgment denying the plaintiffs’ motion to set aside the order or judgment of dismissal. The judgment denying the plaintiffs’ motion to set aside was signed on March 5, 2008.

On appeal, plaintiffs essentially assert two errors by the trial court. First, plaintiffs assert that the court erred in failing to find that the plaintiffs’ requests by letter, a telephone conference, and a written request for production of the depositions were sufficient to interrupt the prescriptive period for abandonment. Secondly, plaintiffs argue that the trial court erred in failing to find that the defendants’ appearance at the status conference and signature on the joint motion for adoption of a proposed case management schedule, without a reservation of rights, waived the defendants’ right to plead abandonment.

In response, defendants argue that no step in the prosecution of the case occurred between January 13, 2003, and January 13, 2006, and that defendants did verbally assert the claim for abandonment during and after the status conference and adoption of the management schedule. Thus, the case had been | ¡¡abandoned, defendants did not waive their abandonment claim, and the trial court was correct in dismissing the ease and denying plaintiffs’ motion to set aside the judgment of dismissal.

APPLICABLE LEGAL PRECEPTS ABANDONMENT

Under LSA-C.C.P. art. 561 A(l), an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. This article has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” toward the prosecution of their lawsuit. A “step” is the taking of formal action intended to hasten the suit toward judgment, or the taking of a deposition, with or without formal notice. Second, the step must be taken in the proceeding, and, with the exception of formal discovery, the step must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period; sufficient action by either plaintiff or defendant will be deemed a step. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784; Hardy v. A. Wilbert’s Sons, L.L.C., 2006-1093, p. 5 (La.App. 1 Cir. 9/19/07), 970 So.2d 1063, 1065; see Willey v. Roberts, 95-1037, p. 4 (La.App. 1 Cir. 12/15/95), 664 So.2d 1371, 1375, writ denied, 96-0164 (La.3/15/96), 669 So.2d 422; Bendy v. City National Bank, 2006-2436, pp. 9-10 (La.App. 1 Cir. 10/17/07), 977 So.2d 8, 13 (request by plaintiff for conference to set timelines deemed a step in the prosecution); Hidalgo v. Catfish Queen Partnership in Commendam, 2006-1531, pp. 5-7 (La.App. 1 Cir. 5/4/07), 961 So.2d 434, 437-39 (requests by plaintiffs for scheduling conferences held a step in the prosecution); see also LSA-C.C.P. art. 561.

There are two jurisprudential exceptions that allow abandonment to be defeated by matters not appearing of record or not involving formal discovery. The first is based on contra, non valentem, which applies where circumstances beyond a plaintiffs control prevent an action, and the other arises from a waiver of the right to assert abandonment by a defendant who has taken actions | ¡¡inconsistent with the intent to treat the case as abandoned. Clark, 2000-3010 at p. 7, 785 So.2d at 784-85. Only a defendant’s act can have an effect post-abandonment. Clark, 2000-3010 at p. 15, 785 So.2d at 789; Seagrave v. Dean, 98-1295, p. 3 (La.App. 1 Cir. 7/6/99), 739 So.2d 923, 924, writ denied, 99-2856 (La.12/17/99), 751 So.2d 879 (defendants’ participation in status conference and signing of case management schedule constituted a waiver).

Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark, 2000-3010 at p. 8, 785 So.2d at 785; Bendy, 2006-2436 at p. 8, 977 So.2d at 12. Dismissal of a plaintiffs lawsuit is the harshest of remedies. Thus, the law favors, and justice requires, that an action be maintained whenever possible so that the aggrieved party has the day in court to which he is entitled. Hidalgo, 2006-1531 at p. 5, 961 So.2d at 437. For these reasons, courts have declined to allow form to prevail over substance in deciding if an action has been truly abandoned and declined to allow suits to be dismissed based on mere technicalities. Clark, 2000-3010 at p. 9 & n. 12-n. 13, 785 So.2d at 786 & n. 12-n. 13; Hidalgo, 2006-1531 at p. 5, 961 So.2d at 437.

STANDARD OF REVIEW

Generally, the issue of abandonment concerns a question of law. The scope of appellate review for issues of law is simply to determine whether the trial court’s interpretative decision is legally correct. Voisin v. International Companies & Consulting, Inc., 2005-0265, p. 3 (La.App. 1 Cir. 2/10/06), 924 So.2d 277, 279, writ denied, 2006-1019 (La.6/30/06), 933 So.2d 132. When the trial court’s decision is based on an erroneous application of law, rather than on a valid exercise of discretion in the underlying factual determinations, the decision is not entitled to deference by the reviewing court and, instead, is subject to a de novo review. Voisin, 2005-0265 at pp. 3-4, 924 So.2d at 279-280.

DISCUSSION

Initially, we note that there are no filings of record between September 18, 2002, and June 12, 2007. However, it is undisputed that plaintiffs answered ^^defendants’ interrogatories on January 13, 2003, which, although not on the record, constitutes an act of formal discovery and a valid, recognized step in the prosecution of the case. See LSA-C.C.P. art. 561 B; Clark, 2000-3010 at pp. 5-6, 785 So.2d at 784. Therefore, the inquiry is whether the three year prescriptive period was interrupted or whether one of the jurisprudential exceptions, specifically waiver, applies in this ease. Waiver will be addressed first.

On June 12, 2007, defendants did more than merely attend a status or scheduling conference. Defendants, in tandem with the plaintiffs, filed in the record a motion for adoption of a case management schedule. Both counsel signed the motion. The proposed schedule contained discovery cutoff dates and final dates for exchange of pretrial inserts and preparation and filing of a pretrial order; all formal steps in the case meant to “hasten the matter to judgment.” Seagrave, 98-1295 at p. 3, 739 So.2d at 924. The trial court adopted the schedule by order signed on the same day of filing. Neither the motion nor the signed order contained a reservation or mention of a reservation of the right to assert abandonment. Under these facts, the joint motion to adopt the schedule and the signing of the case management schedule were steps sufficient to establish a waiver of the defendants’ right to plead abandonment. See Seagrave, 98-1295 at p. 3, 739 So.2d at 924; Hidalgo, 2006-1531 at pp. 5-6, 961 So.2d at 437-38.

Notwithstanding defendants’ post-abandonment step, they rely on the Willey case as authority for their position that a discussion of abandonment prevented the step from acting as a waiver of their right to have the case dismissed. See Willey, 95-1037 at pp. 6-7, 664 So.2d at 1376. In Willey, this court held that defense counsel’s mere attendance at a pretrial conference did not amount to a waiver of abandonment, especially when the plaintiffs did not assert that defense counsel had “engaged in any conduct or made any representation contrary to defendants’ position that the case had been abandoned,” i.e., plaintiffs did not assert a waiver by defendants. The court further noted that the motion to dismiss contained a reference to a discussion of ┴8abandonment. Willey, 95-1037 at p. 7, 664 So.2d at 1376. The Willey court reiterated this basis for its holding in a footnote. See Willey, 95-1037 at. 7 n. 4, 664 So.2d at 1376 n. 4.

The facts of Willey, however, are different from the facts herein. In this case, plaintiffs did and do assert that defendants took a step contrary to a position that the case had been abandoned by executing a case management schedule without any reservation of rights to assert a claim for abandonment. Further, the record reflects that defendants did more than merely attend a pretrial conference. Thus, the remaining question is whether a verbal assertion would act as an operable reservation of the right to have a case dismissed as abandoned.

In this case, the timing is crucial. Even if we assume the facts alleged in the memorandum to be true, we note that defendants raised the question of abandonment at the same time they signed the scheduling order. Those two acts are inherently inconsistent, and thus, one act must take precedence over the other. Under the facts herein, the simultaneous verbal assertion did not void the affirmative act of signing the scheduling order, which appears in the record and clearly hastened the suit to judgment. To find otherwise would be in direct contravention of the jurisprudential policy in favor of maintaining a suit and allowing the plaintiffs their day in court. Therefore, under the facts of this case, the trial court erred in ordering the judgment of dismissal.

Having found that one of the jurisprudential exceptions applied, we pretermit the question of whether plaintiffs’ act of seeking copies of depositions taken in this case, wherein plaintiffs’ counsel was present, interrupted prescription. Although plaintiffs’ written request for production may have | spotentially qualified as format discovery, the result here would be the same. Thus, the judgment of dismissal must be reversed and the case remanded.

CONCLUSION

For these reasons, we reverse the judgment of dismissal and remand for further proceedings consistent with this opinion. The costs of the appeal are assessed to the defendants-appellants, Walter Leonard Pratt and Margueritte Hanley Pratt.

REVERSED AND REMANDED.

PARRO, J., concurs.

WELCH J., concurs with reasons assigned.

WELCH, J.,

concurs.

U respectfully concur in the result reached in this case. I do not believe the action was abandoned and therefore find it unnecessary to address the waiver issue.

An action is abandoned when the parties fail to take a step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561(A). Formal discovery authorized by the Code and served on all parties whether or not filed of record shall be deemed a step in the prosecution or defense of an action. La. C.C.P. art. 561(B). During the three-year abandonment period identified by defendants, plaintiffs’ attorney served a request for production of documents on defendants’ attorney by certified mail, e-mail, and fax transmission. Clearly, a request for production of documents is formal discovery deemed to be a step in the prosecution of the action for the purpose of La. C.C.P. art. 561(B). See Williams v. Temple, 2007-1209, p. 2 (La.App. 1st Cir 3/5/08), 977 So.2d 308 (unpublished); Moore v. Eden Gardens Nursing Center,’ 32,762, p. 3 (La.App. 2nd Cir.6/25/03), 850 So.2d 998, 1000. Additionally, during the abandonment period, plaintiffs’ attorney and defendants’ attorney held a discovery conference pursuant to Rule 10.1 in an attempt to amicably resolve the discovery dispute. Holding of a 10.1 conference, which is required by the uniform local rules as a prelude to the filing of a motion to compel, in my opinion, constitutes formal discovery interrupting the period of abandonment. Because the request for production of documents and the 10.1 conference constitute formal discovery deemed to be steps in the prosecution of the action, the trial court erred in finding the action to be abandoned.

      . The said request for production contained a certificate of service certifying that the docu-menl had been forwarded to opposing counsel.

      . In the brief to this court, defense counsel asserts that defendants were instructed by the trial court's judicial assistant to sign the "scheduling order.” However, the record on appeal, including defendants' memorandum in support of their motion to dismiss, contains no such statement or allegation. Arguments and assertions made in appellate briefs are not part of the record on appeal and are not considered as evidence by this court. Traman v. Hebert, 581 So.2d 1023, 1027 (La.App. 1 Cir.), writ denied, 584 So.2d 1169 (La.1991). Thus, we make no determination on the effect of a signing made at the direction of trial court personnel.


source: Caselaw Access Project

author: CARTER, C.J. DOWNING, J.,

license: Public Domain

text:
    Thomas J. and Kathleen F. HUTCHERSON v. HARVEY SMITH CONSTRUCTION, INC. and ABC Insurance Company.
    No. 2008 CA 1046.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Denied in Part, Granted in Part March 31, 2009.

      Richard B. Ehret, Charlotte Bordenave, New Orleans, LA, for Plaintiffs-Appellees, Thomas J. & Kathleen F. Hutcherson.
    Sharon B. Kyle, James L. Hilburn, Nancy A. Richeaux, Baton Rouge, LA, for Defendant-Appellant, Haivey Smith Construction, Inc.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

| gThis is an appeal of a judgment awarding damages pursuant to the Louisiana New Home Warranty Act, LSA-R.S. 9:3141, et seq. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 21, 1996, Thomas J. and Kathleen F. Hutcherson purchased a newly constructed house in Baton Rouge from a builder/general contractor, Harvey Smith Construction, Inc. (HSC), for $225,000.00. The Hutchersons immediately took occupancy of their new home. Within a year of moving in, the Hutchersons began to experience problems with rainwater leaking into the house at various locations. HSC replaced the flooring by two doors and made some shingle adjustments on the roof and in the attic; however, the Hutch-ersons continued to experience leaks when it rained. The Hutchersons sent a letter dated October 31, 1997, and a certified letter dated March 1, 2004, to HSC, outlining all of the problems with the house and especially highlighting the profuse water leak near the back door leading into the master bedroom. HSC refused to remedy the roof leak or to repair the crumbling and stained master bedroom sheetrock, the caved-in ceiling in the master bedroom, the rotten door facings, and the mildewed carpet, maintaining that the warranty period for such problems had expired.

The Hutchersons filed suit against HSC on November 8, 2004, pursuant to the Louisiana New Home Warranty Act (NHWA), alleging that major structural defects in the design and construction of their home’s roof framing system had caused extensive damage due to continuous leaks. The Hutchersons further alleged that despite notice and numerous demands, HSC refused to resolve the problems. HSC denied all allegations and filed | ..peremptory exceptions raising the objections of prescription, no cause of action, and no right of action. The trial court denied HSC’s exceptions and the matter went to a bench trial on October 24-25, 2007. After trial, the trial court assigned oral reasons for awarding judgment in favor of the Hutchersons, stating:

[T]he load-bearing function of the home was compromised and the design of this particular ... roof system ... caused the leakage and caused the problems that the [Hutchersons] suffered .... [T]here was physical damage ... that was caused by the water getting to the decking and the rafters, and that is a portion of the load-bearing function which gave way in terms of letting this water in.... [T]hus, the court finds that the ten-year home warranty act applies because the roof framing system itself was not designed properly in terms of having the necessary design mechanism to prevent the roof from giving way.

Accordingly, on November 5, 2007, the trial court signed a judgment ordering HSC to pay $20,000.00 to the Hutchersons for damages, $12,352.50 for attorney fees, $614.08 for court costs, and $750.00 for expert witness fees. HSC appealed.

STANDARD OF REVIEW

The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Graf v. Jim Walter Homes, Inc., 97-1143 ┴4(La.App. 1 Cir. 5/15/98), 713 So.2d 682, 691; Craig v. Adams Interiors, Inc., 34,591 (La.App. 2 Cir. 4/6/01), 785 So.2d 997, 1003. An appellate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Furthermore, when we review a damage award made pursuant to the NHWA, we may not set aside the award made by the trier of fact absent an abuse of discretion. Graf 713 So.2d at 691.

THE NEW HOME WARRANTY ACT

The NHWA was originally enacted in 1986, and has since been amended five times in various respects. Because the Hutchersons obtained legal title to their home on June 21, 1996, the version of the NHWA in effect on that date controls, and the later amendments are inapplicable. Barnett v. Watkins, 06-2442 (La.App. 1 Cir. 9/19/07), 970 So.2d 1028, 1034, writ denied, 07-2066 (La.12/14/07), 970 So.2d 537. Louisiana Revised Statute 9:3141, as written in 1996, expressed the NHWA’s purpose:

The Legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of home owners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing for uniform building standards in those parishes and municipalities that have not yet adopted building codes; by requiring that all new residential buildings comply with building standards; by adopting provisions that clearly state the scope and the time of warranties; by providing for insurance | ¡protecting home owners from breaches of warranty; and by making the required warranties mandatory in most cases.

Further, the NHWA “provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner” relative to construction defects in new homes. LSA-R.S. 9:3150; Carter v. Duke, 05-0390 (La.1/19/06), 921 So.2d 963, 970.

The required warranties in the NHWA are mandatory and cannot be waived by the owner or reduced by the builder. LSA-R.S. 9:3144(C). Louisiana Revised Statute 9:3144 sets out those warranties as follows:

A. Subject to the exclusions provided in R.S. 9:3144(B), every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards.
(2) Two years following the warranty commencement date, the plumbing, electi’ical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards.
(3) Ten years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards. (Emphasis added.)

The “warranty commencement date” is the date that legal title is conveyed to the initial purchaser or the date that the home is first occupied, whichever occurs first. LSA-R.S. 9:3143(7). It is undisputed that the warranty commencement date in this case was June 21, 1996, the date that legal title was conveyed to the Hutchersons. Inasmuch as the Hutchersons did not file their lawsuit until over eight years later, on November 8, 2004, the | ^Hutchersons’ claim is limited to the ten-year warranty period applicable for major structural defects. Louisiana Revised Statute 9:3143(5) defines “major structural defect” to mean:

[A]ny actual physical damage to the following designated load-bearing portions of a home caused by failure of the loadbearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(a) Foundation systems and footings.
(b) Beams.
(c) Girders.
(d) Lintels.
(e) Columns.
(f) Walls and partitions.
(g) Floor systems.
(h)Roof framing systems.
(Emphasis added.)

HSC’s primary argument is that the trial court erred in finding that the problems the Hutchersons were experiencing in their home were the result of a major structural defect, thereby triggering the ten-year warranty period in the NHWA. HSC maintains that the evidence at trial pointed to faulty or failed roof flashing and/or sealing materials and weather stripping around the doors, not the failure of any load-bearing portion of the home. The Hutchersons argue, however, that the evidence unequivocally established that the leak in the roof decking was caused by defective design and that the roof decking serves a structural load-bearing function.

We have thoroughly reviewed the evidence, with a careful analysis of the experts’ opinions, and we conclude that the evidence reasonably supports a finding that the rotten roof decking and collapsed bedroom ceiling in the Hutchersons’ home were caused by water intrusion from a defective roof framing system. HSC’s own expert civil engineer, Dr. Jerry Lynn Householder, testified that roof decking in a house is part of the framing 17system and serves a structural function. Dr. Householder further testified that the rotten decking was caused by improper roofing design which allowed water to pool and leak under the shingles. The Hutcher-sons’ expert roofing consultant, Patrick E. Heil, testified that the damage to the Hutchersons’ home was not the result of normal wear and tear on a roof, but rather was the consequence of a faulty roof design or the way the roof was built. The trial court concluded that this type of damage was clearly contemplated by the NHWA in LSA-R.S. 9:8143(5) in which actual physical damage to roof framing systems is specifically enumerated as a major structural defect. We agree and find no manifest error in the trial court’s conclusion that the Hutchersons’ claim was proper and timely.

HSC also contends that the trial court erred by allowing hearsay into evidence in the form of a letter from the Hutchersons to their attorney and testimony that outlined purported repair estimates and actual amounts the Hutchersons had spent on repairs related to the water leaks. We find no merit to HSC’s argument. Mrs. Hutcherson offered direct testimony verifying that she and her husband had spent $7,229.47 in repairs up to the time of trial, and they expected to incur a total of $19,609.23 to completely repair the damage and restore their home, based upon various estimates they had received. The trial court did not abuse its discretion in allowing the testimony or in admitting the letter into evidence. The Hutchersons undisputedly had first-hand knowledge of the amount of money they actually spent on repairs and the amount of money they expected to spend on future repairs based upon estimates they had personally received. See Burdette v. Drushell, 01-2494 (La.App. 1 Cir. 12/20/02), 837 So.2d 54, 61, n. 4, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132. Therefore, we | sfind no abuse of discretion in the trial court’s $20,000.00 award for general damages. The NHWA provides that “damages ... shall not exceed the reasonable cost of repair or replacement necessary to cure the defect.” LSAR.S. 9:3149. There is no evidence that the damage award exceeds the reasonable cost of repair to the Hutchersons’ home.

Finally, we do not find that the $12,352.50 award for attorney fees was “grossly excessive” as asserted by HSC. The award of attorney fees was documented and was not disputed. Therefore, we find no abuse of discretion in the attorney fees award. See Melancon v. Sunshine Const. Inc., 97-1167 (La-App. 1 Cir. 5/15/98), 712 So.2d 1011,1017-1018.

CONCLUSION

Accordingly, the November 5, 2007 judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant-appellant, Harvey Smith Construction, Inc.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

DOWNING, J.,

dissents and assigns reasons.

IT respectfully dissent. While I greatly sympathize with the Hutchersons, innocent homeowners who suffered serious water damage in their home, they are not entitled to recovery under the Louisiana New Home Warranty Act. No evidence in the record shows that damage to the roof framing system affected its load-bearing function, and the evidence in the record is uncontradicted that the builder complied with the applicable building standards. The trial court judgment should be reversed on both these grounds.

Affecting the Load-bearing Function

Harvey Smith Construction, Inc. (HSC), asserts in its first assignment of error that the trial court misapplied La. R.S. 9:3143(5) in holding it liable for damages to the Hutcherson home. This section provided at the pertinent time as follows. We highlight a different portion of the section than did the majority:

“Major structural defect” means any actual physical damage to the following designated load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(h) Roof framing systems. (Emphasis added.)

| .¿As the majority concludes, there is evidence in the record that the roof is a load-bearing portion of the home and that there was damage, including rotting roof decking, to the roof resulting “from a defective roof framing system.” The record contains no evidence, however, that this damage had any effect on the load-bearing function of the roof. “Load-bearing” means “capable of bearing a structural load.” Free Dictionary (http:/www. freedictionary .org/?Query=load-bearing). As HSC points out, the Hutchersons presented no structural or load-bearing evidence whatsoever at trial. And the trial court did not find the damage affected on the roofs ability to bear a structural load. Rather, it found that the roofs structural problems allowed water damage to the home, as follows:

[TJhere was physical damage ... that was caused by the water getting to the decking and the rafters, and that is a portion of the load-bearing function which gave way in terms of letting this water in.

Without evidence of damage to the roof framing system that affects its load bearing function as required by La. R.S. 9:3143(5), the Hutchersons have failed to establish an essential element of their claim. The judgment should therefore be reversed.

Compliance with Building Standards

HSC also points out that the existence of the warranty depends on “noncompliance with the building standards.” In this regard, the applicable version of La. R.S. 9:3144 A(3) governs the existence of the warranty at issue, as follows. We again highlight a different portion of this section than did the majority:

A. Subject to the exclusions provided in R.S. 9:3144(B), every builder warrants the following to the owner:
* ⅜ *
| oTen years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards. (Emphasis added.)

Here, the Hutchersons stipulated on the record that the city of Baton Rouge inspected the home and that it passed all inspections. The trial court took judicial notice that “the city inspected the home and the home was given a certifícate of occupancy. Uncontradicted evidence in the record shows that the home complied with all building standards. Citing Sonnier v. Bayou State Mobile Homes, Inc., 96-1458 (La.App. 3 Cir. 4/2/97), 692 So.2d 698, 700, abrogated on other grounds, Dalme v. Blockers Manufactured Homes, Inc., 00-00244 (La.App. 3 Cir. 1/25/01), 779 So.2d 1014, 1017, HSC argues that recovery under La. R.S. 9:3144 A(3) is unwarranted where plaintiffs fail to prove that a defect arises from noncompliance with building standards. The Sonnier court held that, “in order to prevail, the [plaintiffs] must prove by a preponderance of the evidence that the home they purchased from [defendant] suffered from a major structural defect due to noncompliance with the building standards.” (Emphasis added.) Id. This ruling is in accord with the statutory terms. Accordingly, the judgment herein should be reversed on this basis.

In its oral reasons, the trial court found that the Hutchersons’ claims arose “because the roof framing system itself was not designed properly.” Even so, the Hutchersons have failed to show that their claims come within the parameters of La. R.S. 9:3144 AIS). Therefore, just as the square peg Ldoes not fit the round hole, the Hutchersons’ arguments and proofs do not fit a claim for damages under the New Home Warranty Act based on structural defects.

For these reasons, I respectfully dissent.

      . The trial court signed an amended judgment on November 21, 2007, additionally ordering HSC to pay judicial interest to the Hutcher-sons. HSC appealed both judgments. However, this court vacated the amended judgment on September 12, 2008, and dismissed the appeal as it related to the amended judgment because it improperly and substantively amended the original judgment. This court reinstated and maintained the November 5, 2007 judgment, which is the only relevant judgment in this appeal.
      We note that the November 5, 2007 judgment is silent regarding legal interest, and the Hutchersons did not seek interest in their petition nor have they sought modification of the judgment on appeal. It is well settled that in order to obtain interest on an award, *a litigant must pray for interest unless interest is allowed by law. See Smith v. Quarles Drilling Co., 04-0179 (La. 10/29/04), 885 So.2d 562, 565-566. The NHWA provides that an owner has a cause of action against the builder “for actual damages, including attorney fees and court costs, arising out of the violation.” LSA-R.S. 9:3149. An award of legal interest in a case arising under the NHWA is not specifically provided for by statute. For these reasons, we pertermit further consideration of this issue.

      . The NHWA's prescriptive periods in LSA-R.S. 9:3146 were changed to peremptive periods by Acts 2001, No. 179, § 1. See also Acts 2003, No. 333, § 1, amending LSA-R.S. 9:3150.

      . Louisiana Revised Statute 9:3144(A)(3) was amended by Acts 2004, No. 45, § 1 to change the warranty period to five years for major structural defects.

      . Louisiana Revised Statute 9:3149 clearly provides for an award of attorney fees and court costs that arise out of a violation of the NHWA.

      . The current version of La. R.S. 9:3144 A(3) also includes warranty protection to structural defects “due to other defects in material or workmanship not regulated by the building standards,” although the warranty period has been reduced to five years.


author: KUHN, J.

text:
    STATE of Louisiana v. Mark S. LEWIS.
    No. 2008 KA 1381.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Scott M. Perrilloux, District Attorney, Charlotte Herbert, Livingston, Louisiana, for Plaintiff-Appellee State of Louisiana.
    Bertha M. Hillman, Thibodaux, Louisiana, for Defendant-Appellant Mark E. Lewis.
    Before: KUHN, GUDIRY, and GAIDRY, JJ.
   KUHN, J.

| ¡¿Defendant, Mark S. Lewis, was charged by grand jury indictment with one count of second-degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, designating the following three assignments of error:

1. The trial court erred in limiting the scope of the defendant’s voir dire examination.
2. The trial court erred in denying the defendant’s challenges for cause of juror Tonya [Steele] on panel one and juror Jerry Landry on pan el two.
8. The trial court erred in allowing the State to introduce evidence that the defendant logged on to a pornographic website on the day the victim disappeared.
We affirm the conviction and sentence.

FACTS

The thirteen-year-old victim, KA., was the niece of defendant’s wife. The victim lived with her mother, D.A., in a house approximately fifty to sixty yards in front of defendant’s house in French Settlement, Louisiana. The victim routinely arrived home from school at 3:00 p.m. and promptly called her mother, who did not arrive home from work until approximately 4:45 p.m.

In 2005, defendant commented to Larry Brown, a coworker, that defendant had looked up the victim’s shorts when she had visited his house and wanted “to get that, to hit that[,]” which Brown understood to be a reference to having sex with the victim.

| :.On February 1, 2007, between 2:55 p.m. and 3:00 p.m., the victim’s school bus driver dropped her off at her home. At 3:00 p.m., the victim called D.A., and they made plans to go out for chocolate after D.A. got home from work. At 4:31 p.m., D.A. became worried about the victim after she did not answer her cell phone, which she always kept with her. There was no evidence of forced entry at the victim’s home, and nothing, other than the victim, was missing from the home. Telephone records indicated that the last call the victim answered came from defendant’s residence at 3:06 p.m.

At approximately 5:15 p.m., defendant’s friend, Craig Simoneaux, saw defendant sitting in his truck outside of Simoneaux’s house. Simoneaux was playing a video game and expected defendant to come knock on the door. When defendant did not come to the door, Simoneaux looked out again and saw defendant using his cell phone. Simoneaux returned to his game, but after defendant failed to come to his door, went outside to speak to him. Defendant was reaching into the back seat area of his truck. As soon as he saw Simoneaux, defendant quickly closed the truck door and turned around. Defendant looked like he was “about to break down.” Simoneaux asked defendant what was wrong, and he claimed nothing was wrong; he had just been talking to his wife. Defendant told Simoneaux that he would come back later and tell Simoneaux what had happened. Defendant almost backed into a ditch before he quickly drove away. He subsequently telephoned Simoneaux and claimed he had been in a fight at work. He also stated that he was riding around or riding to St. Amant. Approximately thirty-five to forty minutes later, he called Simoneaux again and [ 4told him if the police came to him, he should tell them that defendant had been there at 4:30 p.m. Simoneaux reported defendant’s actions to the police.

Numerous family members and friends arrived at the victim’s residence to help look for her. Thereafter, defendant arrived in his truck. His wife noticed he had blood, a scratch, and a cut on his face. The scratch was a “scratch like fingernails.” She asked if he had been in a fight, but defendant did not respond and walked away. He did not help search for the victim.

Following Simoneaux’s telephone call, the police questioned defendant in his house. Defendant told the police that, on February 1, 2007, he visited his mother in the hospital and then went to Simoneaux’s house, where he stayed from 4:00 p.m. until 6:00 p.m. While the police were questioning defendant, they noticed the washer and dryer were running. Defendant subsequently removed a comforter from the dryer. His wife indicated that she normally did the laundry.

Defendant denied that the victim had ever been in his truck. He claimed that he received the scratches on his arms and face at work when a trailer he was attaching “popped up.” He did not report to work on February 1, 2007, and no injuries or altercations were reported at his work place on January 31, 2007 or shortly before that date. Defendant’s wife indicated that he had no scratches or injuries to his face and hands on the morning of February 1, 2007. Defendant’s stepson indicated defendant had no injuries on January 31, 2007, and there was no discussion in the house of defendant having fought at work.

A scent-tracking dog was provided with the victim’s scent. Thereafter, the dog alerted to the washer and dryer in defendant’s house, to his work jacket, to the comforter he had washed, and to the back seat of his truck. Hair with a DNA lr>profile consistent with the victim’s DNA profile was also recovered from the back seat of defendant’s truck. Further, two bloodstains with a DNA profile consistent with the victim’s DNA profile were on the side of the back seat, and the victim’s ruler, marked with her initials, was also in the rear portion of the cab. D.A. had purchased the ruler for the victim only a week or two before she went missing. Although the victim had previously ridden in defendant’s truck with his children, she always sat next to defendant in the front of the truck. The victim had last ridden alive in the truck in January of 2007.

On February 3, 2007, the victim’s body was discovered submerged in a canal off New River Road in St. Amant, 13.7 miles from defendant’s home. She had been strangled to death. She was fully clothed, but her shorts were unzipped.

INDIVIDUAL VOIR DIRE

In assignment of error number one, defendant contends the trial court erred in limiting the scope of the voir dire by denying his motion to individually question the prospective jurors who had prior knowledge of the case through news media and to individually question prospective juror Tonya Steele because she admitted she looked through defendant’s criminal file.

The trial court has discretion over the manner in which veniremen are called and the scope of voir dire examination. State v. Allen, 95-1754, p. 10 (La.9/5/96), 682 So.2d 713, 722. The Louisiana Supreme Court has held that the trial court does not err in refusing requests for individual voir dire without a showing of special circumstances. Id. The defendant is required to show that there is a significant possibility that group voir dire will expose potential jurors to prejudicial material. Id.

┴6During voir dire of the first pan el of fourteen prospective jurors, the court asked if there was any personal, business, family or health reason why any of the jurors could not serve and be fair and impartial. Only prospective juror Casanova responded affirmatively. After she indicated she could not be fair and impartial due to her familiarity with the victim’s family and her conversations with the family, the trial court dismissed her.

Nine prospective jurors indicated that they had heard or read something about the case. Prospective juror May indicated that the source of his information was the local print and news media and a friend who owned land near the victim’s residence. May said he could put aside whatever he had heard and decide the case based on what he heard in the courtroom. He expressly stated that if what he heard from the witnesses at trial differed from what he had previously read or heard outside the courtroom, he would base his decision on what he heard in the courtroom.

Prospective juror Allen stated that the source of her information was the newspaper and the television. She indicated she would do her absolute best to put aside whatever else she had heard and decide the case on the basis of the sworn testimony in the courtroom.

Prospective juror Case noted that the source of her information was the television. She said that she could put aside whatever else she had heard and decide the case on the basis of the sworn testimony in the courtroom.

Prospective juror Steele, a minute clerk for the Livingston Parish Clerk of Court’s Office, explained that the source of her information was the newspaper, the television, and defendant’s file. She indicated that she had “glanc[ed] 17through” defendant’s file “a few months back[.]” She stated that she could put whatever else she had heard aside and decide the case on the basis of the sworn testimony in the courtroom, noting that if what she heard from the witnesses at trial differed from what she had previously read or heard outside the courtroom, she would conclude that her previous information was wrong and base her decision on what she heard in the courtroom.

Prospective juror Hidalgo said that the source of his information was talk radio programs. Hidalgo stated that he absolutely could put aside whatever he had heard and decide the case based on what he heard in the courtroom.

Prospective juror Buchanan explained that the source of her information was the television. She indicated she could put aside whatever else she had heard and decide the case on the basis of the sworn testimony in the courtroom. If she heard something different in the courtroom than she had heard on television, Buchanan said that she would base her decision on what she heard in the courtroom.

Prospective juror Hebert indicated that the source of his information was the newspaper and the television. He explained that he could put aside whatever else he had heard and decide the case on the basis of the sworn testimony in the courtroom. He said that if he heard something different in the courtroom from what he had heard on television, he would conclude that the earlier information was wrong and would base his decision on what he heard in the courtroom.

Prospective juror Harris said that the source of her information was the television and the newspaper. She indicated she could put aside whatever else she | shad heard and decide the case on the basis of the sworn testimony in the courtroom.

At the beginning of the defense’s opportunity to question the prospective jurors, defense counsel stated that the State had done most of the work and he would not “cover the same ground that [the State did]” because he had looked at the prospective jurors while they were answering the State’s questions and had heard the answers given. After questioning the prospective jurors about matters other than what they knew about the case, defense counsel approached the bench, alleged that defendant’s prior conviction had been reported in the media, and requested that he be permitted to question the jurors who had indicated they had heard about the case about what they knew about defendant’s prior criminal history. The State objected to the jurors being individually questioned because all of them, with the exception of Casanova, had committed to put aside whatever else they had heard. The trial court agreed with the State, noting that the proposed questioning would “taint everybody completely.” The defense asked that its objection be noted for the record.

Initially, we note defendant failed to assert his request in the trial court for individual voir dire of prospective juror Tonya Steele because she had looked through his criminal file. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action that he desired the court to take, or of his objections to the action of the court, and the grounds therefor. La.C.Cr.P. art. 841.

| ^Further, there was no abuse of discretion in the denial of the individual voir dire requested by defendant. As noted by the State and the trial court, all the jurors at issue, with the exception of Casanova who was promptly discharged for cause, indicated they could put aside whatever else they had heard and decide the case on the basis of the sworn testimony in the courtroom. See Allen, 95-1754 at pp. 10-11, 682 So.2d at 722 (“The defendant was not prejudiced by the trial court’s refusal to order individual voir dire, nor did defendant show any special circumstances warranting individual voir dire. While some of the potential jurors stated they had seen articles about the crime, none of them stated any specific details concerning the crime or the defendant, nor did any of them firmly state an opinion based on the articles.”); see also State v. Manning, 2003-1982, p. 13 n. 13 (La.10/19/04), 885 So.2d 1044, 1065-66 n. 13, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005) (“Notably, while a number of prospective jurors indicated they had some knowledge of the crime, very few stated they had formed an opinion about defendant’s guilt or innocence. Furthermore, the trial court did not limit the examination of the prospective jurors concerning their knowledge of the present crime”).

This assignment of error is without merit.

CHALLENGES FOR CAUSE

Defendant urges the trial court erred in denying the defense challenge for cause against prospective juror Steele since “it [was] very likely” she had prior knowledge of his rap sheet because “in most cases” it is included in his file. He also claims the trial court erred in denying the defense challenge for cause against | inprospective juror Landry because he clearly stated that he would be more likely to believe a police officer over a random person.

The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality, or on the ground that the juror will not accept the law as given to him by the court. La.C.Cr.P. art. 797(2) & 797(4).

In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. Prejudice is presumed when a defendant’s challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Taylor, 2003-1834, pp. 5-6 (La.5/25/04), 875 So.2d 58, 62. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may be inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Henderson, 99-1945, p. 9 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 754, writ denied, 2000-2223 (La.6/15/01), 793 So.2d 1235.

| n Defendant challenged prospective juror Steele for cause. He contended Steele was not impartial because she had looked at the file, worked for the clerk’s office, knew the attorneys and the judge, and worked at the courthouse. The State pointed out that Steele had expressly stated she would put aside anything she had heard or read and make a decision based on the evidence she heard in the courtroom. The court denied the challenge for cause, and the defense used its third peremptory strike against Steele before exhausting all of its peremptory challenges.

Initially, we note defendant failed to proffer the file which prospective juror Steele “glanc[ed] through^.]” Further, defendant fails to even allege the nature of his prior conviction or convictions or where it or they arose. Only matters contained in the record can be reviewed on appeal. State v. Vampran, 491 So.2d 1356, 1364 (La.App. 1st Cir.), writ denied, 496 So.2d 347 (La.1986).

Moreover, the trial court did not abuse its broad discretion in denying the challenge for cause against Steele. She demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.

Jerry Mark Landry was a prospective juror on the second pan el called for jury selection. He was silent when the court asked the pan el if there was any reason whatsoever why any of them could not give both defendant and the State a fair trial and decide the case based solely on the evidence presented and in accordance with the law. He indicated he had heard about the crime on the radio and television and | 12read about it in the newspapers, but believed he could put that aside and make a decision based on what he heard in the courtroom. He also said that he had previously served as a juror in a criminal trial in Georgia. In that case, involving a charge of the defendant starving her baby to death, his verdict was not guilty.

The defense asked the pan el, “[D]o any of you believe that law enforcement officers are somehow more credible witnesses than the general public, more likely to tell the truth than just the person picked at random?” Landry indicated he believed law enforcement officers were “more likely to be credible” than random people, and if a law enforcement officer told him something, he would be “more likely” to believe it to be true.

The defense challenged Landry for cause, citing his statement that he believed law enforcement officers made more credible witnesses than average people. The State maintained that Landry had not been emphatic enough to be dismissed for cause. The trial court denied the challenge for cause. Thereafter, the defense used its eleventh peremptory strike against Landry before exhausting all of its peremptory challenges.

There was no abuse of the trial court’s broad discretion in denying the challenge for cause against Landry. As noted by the trial court, the question posed to Landry was not precise enough, in and of itself, to establish the basis for a challenge for cause. Landry’s answers reflected no more than a permissible respect for police officers and their training. The defense did not ask Landry if he would believe a police officer if his testimony was contradicted by other evidence. See State v. Lindsey, 2006-255, pp. 9-12 (La. 1/17/07), 948 So.2d 105,111-13.

This assignment of error is without merit.

J[^EVIDENCE THAT DEFENDANT’S COMPUTER WAS USED TO VISIT ADULT PORNOGRAPHIC WEBSITES SHORTLY BEFORE THE VICTIM’S DISAPPEARANCE

Defendant claims that the fact his computer was used to log on to a pornographic website when the victim was at school was irrelevant and should have been excluded from the jury’s knowledge. In the alternative, he asserts that the evidence was more prejudicial than probative and that the trial court erred in admitting it.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, ■ or waste of time. La. C.E. art. 403.

It is well settled that courts may not admit evidence of other wrongs or acts to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1). Evidence of other wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. However, the State may introduce evidence of other wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). Upon request by the accused, the State must provide the defendant with notice and a hearing h4before trial if it intends to offer such evidence. Even when the other wrongs or acts evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unléss it tends to prove a material fact at issue or to rebut a defendant’s defense. The State also bears the burden of proving that the defendant committed the other wrongs or acts. State v. Rose, 2006-0402, p. 12 (La.2/22/07), 949 So.2d 1236,1243.

Although a defendant’s prior wrongs and bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B)(1), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any in-culpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged”). Rose, 2006-0402 at p. 13, 949 So.2d at 1243-44.

Prior to the presentation of testimony from Ascension Parish Sheriffs Office Detective Glenn LeBlanc, defendant objected that evidence that perhaps he was looking at pornographic sites should be excluded because the probative value of the evidence was outweighed by the unfair prejudice of the evidence. The trial court denied the motion, and the defense objected to the court’s ruling.

The trial court accepted Detective Le-Blanc as an expert in computer 11Bforensics. Detective LeBlanc indicated that an examination of the hard drive of the computer from defendant’s home did not reveal any chat or e-mail between defendant and the victim. The computer was, however, used to access the victim’s “My Space” page on January 31, 2007, at 8:47 p.m. Additionally, on February 1, 2007, between approximately 8:00 a.m. and 1:51 p.m., the computer was used to access adult pornographic sites on the internet. Defendant’s name was entered onto one of the sites by the user.

The State had an independent and relevant reason for presenting the Article 404(B)(1) evidence at issue. The State’s theory of the case was that on the day of the offense, defendant was at his house looking at pornography on his computer and called the victim and convinced her to come over. The State contended that defendant then “put the moves on [the victim],” and, when she resisted, killed her. Evidence presented at trial indicated that defendant had previously expressed a lustful disposition toward the victim and that she may have been disrobed prior to or after being killed. Defendant denied killing the victim and claimed he was visiting his mother or a friend at the time she was killed. The facts that the computer located in defendant’s home was being used to access pornography until approximately an hour before the victim arrived home from school, and that a telephone call was made from defendant’s home to the victim’s cell phone, were relevant to place defendant at the location where the victim was kidnapped and/or killed (opportunity), as well as to establish a motive for the killing. The prejudicial effect to defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence.

| ifiThis assignment of error is without merit.

DECREE

For these reasons, we affirm the conviction of and sentence imposed against defendant, Mark S. Lewis.

CONVICTION AND SENTENCE AFFIRMED.

      . We reference the victim only by her initials. See La. R.S. 46:1844(W).

      . The rule is now different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptoiy challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).


author: AMY, Judge.

text:
    Dustin RUTLEDGE v. RESOURCE TRANSPORTATION, et al.
    No. 08-1149.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Robert B. Purser, Purser Law Firm, Opelousas, LA, for Defendants/Appellants National Loss Control Management, Inc. Resource Transportation.
    Christopher C. McCall, Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, LA, for Plaintiff/Appellee Dustin Rutledge.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| Jfhe workers’ compensation judge awarded penalties and attorney fees to the claimant for the employer’s failure to approve medical treatment and pay certain medical bills. The employer appeals, contending that the judge erred in assessing penalties and attorney fees and in failing to specify for which expenses and treatments the penalties and attorney fees were assessed. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that on July 8, 2004, the claimant, Dustin Rutledge, while in the course and scope of his employment with Resource Transportation, was injured when lightning struck in the area surrounding him. The claimant is receiving indemnity benefits; accordingly, this litigation does not involve the payment of such benefits. On December 14, 2006, the claimant filed a disputed claim for compensation, seeking penalties and attorney fees for the employer’s failure to authorize treatment and failure to pay medical expenses. The parties do not dispute that on July 24, 2007, they reached an agreement wherein the employer/insurer agreed to pay for and/or approve specified medical treatment. The record reveals that the payments and authorizations were still not made three months after the settlement was reached; accordingly, the claimant filed a Motion to Enforce the Settlement and sought sanctions. After a hearing, the workers’ compensation judge entered a judgment on December 18, 2007, ordering the employer/insurer to authorize all unauthorized medical treatment and pay for all medical services outlined in the July 24, 2007 agreement. A second hearing resulted in an order allowing the claimant to see Dr. Soileau. Finally, after a third hearing was conducted, the workers’ compensation judge ordered that the employer pay penalties in the amount of $8,000.00 and attorney fees in the amount of $6,260.00. The employer/insurer | ¿appeals, assigning as error the workers’ compensation judge’s assessment of penalties and attorney fees due to its assertion that the nonpayment was beyond its control. It also questions the failure to “identify specific expenses and treatment for which penalties and attorney fees were being awarded.”

Discussion

“The applicable standard of review in determining whether a defendant should be cast with penalties and attorney fees is the manifest error-clearly wrong standard.” Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La.3/7/08), 977 So.2d 907. Louisiana Revised Statutes 23:1201(E) and (F)(2) provide:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

|sThe supreme court in Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 46, stated, “Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers.”

The employer/insurer essentially argues that any nonpayment on its part resulted from conditions over which it had no control; it asserts that the compensation insurer, having strict billing procedures, could not submit the bills for payment without receiving the correct referencing codes and corresponding medical reports from the medical providers. In support of this contention, the employer/insurer points to the correspondence it sent to each of the claimant’s medical providers, requesting that the bills be resubmitted with the correct codes and reports. Because no codes or reports were received, the bills were not paid. At first glance, these procedural issues may appear to be “conditions over which the employer or insurer had no control”; however, the record indicates that the letters to the medical providers were not sent until January 7, 2008 — a date that exceeded the sixty days for which the statute allows and a date that followed the judgment which ordered the enforcement of the agreement. Sending the correspondence at such a late date fits the description of “indifference and undesirable conduct” that the Williams court sought to discourage. Id.

Further, both parties acknowledged that a settlement was reached wherein the employer/insurer agreed to pay the medical expenses outlined in the letter sent by the claimant’s attorney on July 24, 2007. The record reveals that the claimant’s attorney made numerous attempts after the letter was sent to contact the employer/insurer in order to provide them with an opportunity to uphold the settlement and avoid the |4assessment of penalties and attorney fees. With the expenses remaining unpaid and the treatment remaining unauthorized as of March 3, 2008, the workers’ compensation judge did not err in imposing penalties and attorney fees for the unreasonable delay. Accordingly, this assignment of error lacks merit.

The employer/insurer also contends that the workers’ compensation judge erred by not identifying which expenses and treatments the penalties and attorney fees concerned. It urges that the nonspe-cificity of the ruling could lead to the claimant later seeking more penalties and attorney fees for nonpayment of expenses that may have already been accounted for in the judgment. Because a written settlement letter outlines the “medical visits not paid and/or not approved” and because the workers’ compensation judge references the settlement letter, we find that the July 24, 2007 letter, detailing the unpaid expenses and unauthorized treatments, suffices for purposes of identifying the subject of the penalties and attorney fees award. Further, as noted above, La.R.S. 23:1201(F) limits the amount of penalties imposed at a hearing to eight thousand dollars.

DECREE

We affirm the imposition of penalties and attorney fees. Costs are assessed to the defendants, Resource Transportation and National Loss Control Management Insurance Company.

AFFIRMED.

      . The Hon. Philip C. Ciaccio, Judge (Retired), the Hon. Walter I. Lanier, Jr., Judge (Retired), and the Hon. Ian W. Claiborne, Judge (Retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.


text:
    Jeanne M. OLSON v. RAPIDES PARISH SHERIFF & TAX ASSESSOR, et al.
    No. 08-1288.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      David P. Spence, Alexandria, LA, for Defendant/Appellant: Jeff L. Melder.
    John W. Scott, Alexandria, LA, for Plaintiff/Appellee: Jeanne M. Olson.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

11After the plaintiffs home was sold at a tax sale, the plaintiff filed this action against the successor in title to the tax sale purchaser, alleging that the sale violated La.R.S. 47:2184. The parties filed cross motions for summary judgment on the validity of the sale. The trial court found in favor of the plaintiff, nullifying the sale. The trial court determined that the tax collector failed to offer a lesser undivided interest of the whole property sufficient to satisfy the arrearage. The defendant appeals. For the following reasons, we reverse and enter summary judgment in favor of the defendant.

Factual and Procedural Background

The plaintiff, Jeanne M. Olson, acquired a residential lot and improvements in Alexandria, Louisiana in 1999 for $89,594.44. After she failed to pay the property taxes assessed on the property, $902.51, the Rapides Parish Tax Collector offered the property at public sale on May 3, 2000. According to the affidavit of Chief Deputy Tax Collector Harry Vermaelen, who presided over the sale, “only one (1) bid was made for the subject property, being that of Louisiana Tax-1, Inc.[.]” The record includes a Tax Sale Deed conveying the property to Louisiana Tax-1, Inc. for consideration in the amount of $902.51. According to an affidavit of Louisiana Tax-1, Inc.’s Office Manager, the plaintiff initially expressed interest in purchasing the property from the company, but the contract for purchase and sale was returned unclaimed. The affidavit further indicates that the property was transferred by Quitclaim Deed to Jeff L. Melder in October 2003.

Ms. Olson subsequently filed this action, seeking a declaration that the tax sale was null and void, as she contends the Sheriff failed to follow the statutory ^requirements for such a sale. Both the Sheriff and Mr. Melder were named as defendants. The Sheriff was later dismissed.

Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the plaintiff and annulled the tax sale, finding that the Sheriff failed to follow the dictates of La. R.S. 47:2184, namely the failure to “offer a lesser undivided interest of the whole property as will satisfy the charges.” Mr. Melder appealed. In Olson v. Rap-ides Parish Sheriff, 07-57 (La.App. 3 Cir. 5/2/07), 957 So.2d 282, a panel of this court reversed the entry of summary judgment after concluding that genuine issues of material fact remained. Accordingly, the matter was remanded for further proceedings. Id.

|aOn remand, the plaintiff again filed a motion for summary judgment, asserting that the sale violated La.R.S. 47:2184 in three aspects: 1) the tax collector did not determine whether the property was divisible in kind and, if not divisible in kind, did not determine the appropriate undivided interest in the property that should be offered at the tax sale; 2) the tax collector failed to sell an undivided interest of the whole property that would satisfy the tax charges; and 3) the tax collector entertained a bid in excess of the lesser undivided interest of the whole property as would satisfy the tax charges. The defendant again filed a cross motion for summary judgment. The parties supplemented their respective motions with additional exhibits. Following a hearing, the trial court found in favor of the plaintiff and declared “the tax sale conducted on May 3, 2000, to be null and void[.]” The trial court denied the defendant’s motion for summary judgment.

The defendant appeals, presenting the following issues for review:

1. Whether the announcement of the tax collector that “we are selling the least amount of property for the taxes: at the commencement of the tax sale satisfies his duty to sell the “least” or “lesser undivided interest” in the tax debtor’s property as required by law;
2. Whether the tax collector has the duty to appraise and quantify in advance of the offering the “least quantity” or “lesser undivided interest” in the tax debtor’s property that will satisfy the charges.
3. Whether the tax collector should have refused the bid of Louisiana Tax-1, Inc. for 100% interest in the property;
4. Whether the tax sale to Louisiana Tax-1, Inc. is constitutionally valid;
5. Whether the judgment of the trial court should be reversed and summary judgment be granted in favor of Appellant, Jeff L. Melder.

|4Discussion

Standard of Review

Louisiana Code of Civil Procedure Article 966(B) provides that a summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Pursuant to Article 966(C)(2), the moving party bears the burden of proof. However, if the moving party will not be required to bear the burden of proof at trial, he or she is not required to “negate all essential elements of the adverse party’s claim, action, or defense, but i*ather to point out to the court that there is an absence of factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial[.]” Id. In such an event, there is no genuine issue of material fact. Id. An appellate court reviews a ruling on a motion for summary judgment under the de novo standard of review and uses the same criteria that governed the trial court’s consideration as to whether summary judgment is appropriate. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839. Merits

In her motion and on appeal, the plaintiff asserts that the tax sale was in violation of both La. Const, art. 7, § 25(A)(1) and La.R.S. 47:2184. Article 7, § 25(A)(1) provides that:

There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the | ^property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.

Louisiana Revised Statutes 47:2184 provides:

§ 2184. Immovable property; interests conveyed
The tax sale shall convey, and the purchaser shall take, the whole of the property assessed to the delinquent taxpayer if it is the least quantity sufficient to satisfy the aggregate of all taxes, interest, penalties, and costs. If the property is divisible in kind and a part of the whole is sufficient to satisfy such aggregate charges, the collector shall require the bid or bids to be for such lesser portion of the whole property as will satisfy such charges and shall not entertain a bid in excess thereof. In determining if the property is divisible in kind, the description of the property on the assessment rolls shall be binding on the tax collector. The tax collector shall not be required and shall be prohibited from dividing the property into smaller quantities than that contained in the description of the property contained on the assessment rolls. If the tax collector determines from the description of the property contained on the assessment rolls that it is not divisible in kind, he shall then sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The tax sale shall convey and the purchaser shall take the entirety of the property intended to be assessed and sold as it was owned by the delinquent taxpayer regardless of any error in the dimensions or description of the property as assessed and sold. The tax collector in the advertisement or deed of sale may give the full description according to original titles.

(Emphasis added.) By 2007 La. Acts. No. 195, § 1, the language emphasized above was substituted for a sentence in a previous version of La.R.S. 47:2184, which read: “he shall then proceed to sell such lesser undivided interest of the whole property as will satisfy such charges and shall not entertain a bid in excess thereof.” However, 2007 La. Acts. No. 195, § 2 instructed that the change to the language was “intended to clarify the current law with regard to tax sales so as to avoid any confusion between the statutory language and the controlling language of Louisiana Constitution Article VII, Section 25.” Thus, the amendment to and re-enactment of | r,La.R.S. 47:2184 was an interpretative law and subject to retroactive application. See Jacobs v. City of Bunkie, 98-2510, p. 20 (La.5/18/99), 737 So.2d 14, 20 (wherein the Louisiana Supreme Court explained that “[ijnterpretative laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted.”) We examine the record to determine whether the record demonstrates that the plaintiff could prove that the tax collector violated these provisions, as she asserts.

Although the plaintiff asserts in her brief that “[tjhere is no dispute that no determination was made by the tax collector of whether or not the subject property was divisible in kind,” it is apparent from the property description that it was not, in fact, divisible in kind. Rather, according to Mr. Vermaelen’s affidavit, the property description lists the residence as “Lot Six (6) of square 1 of Park Place Subdivision, as per plan thereof recorded in Plat Book 5, page 47, Records of Rapides Parish, Louisiana.” Further, La.R.S. 47:2184 provides that “[tjhe tax collector shall not be required and shall be prohibited from dividing the property into smaller quantities than that contained in the description of the property contained on the assessment rolls.” The property description provided by Mr. Vermaelen, recited above, is that contained on the tax assessment documentation provided in the record. Accordingly, the record was sufficient to indicate that the residential property was not divisible in kind.

Additionally, the statute does not prohibit the tax collector from commencing the sale by offering a one hundred percent interest in the property for the taxes due and subsequently accepting any competing bids for lesser percentages of fractional |7ownership. The statute does not require, as the plaintiff urges, that the tax collector predetermine the fractional interest in the property, based on the property’s value, that would satisfy the tax arrearage and entertain only one bid for that amount. Rather, La. Const. art. VII, § 25(A)(1) and La.R.S. 47:2184 both provide that the tax collector shall “sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs.” It does not anticipate that the tax collector is required to entertain only one fractional interest bid for the amount of the taxes due. In this regard, Article VII, § 25(A)(1) specifically provides that “[tjhe sale shall be without appraisement.”

In light of these central contentions of the parties, we consider the evidence submitted in support of the parties’ motions. First, there is no indication that the plaintiff did not receive notice of the tax delinquency pursuant to La.R.S. 47:2180. To the contrary, the record demonstrates the plaintiffs receipt of the Notice of Delinquency by registered mail and the publication of the delinquency and tax sale pursuant to La.R.S. 47:2181. Furthermore, there is no proof in her submission indicating that she will be able to prove that the tax sale violated La.R.S. 47:2184 as she urges. Rather, and as explained above, her contentions as to the statute’s requirements of the tax collector lack merit.

Instead, proof was presented indicating that the tax collector complied with La. R.S. 47:2184. Mr. Vermaelen supplied three affidavits relating to the sale of May 3, 2000. In his July 14, 2006 affidavit, Mr. Vermaelen explained:

At the commencement of the sale, it was announced to the public that each item would be sold to the person who would bid to purchase “the least amount of property for the taxes, interest, and costs due”;
Based upon the description of the property on the assessment rolls, the subject property was not divisible in kind;
IsUpon offering the subject property for sale, Louisiana Tax [1], Inc. bid to purchase the property for the amount of taxes, interest and costs due thereon;
While bids for lesser interests would have been entertained in accordance with the announcement made at the commencement of the sale, none were made and the property was sold to Louisiana Tax [1], Inc.[.]

As the property was not divisible in kind and Louisiana Tax-1 was the sole bidder for the total amount of taxes, interest, and costs due, there is no indication that La. R.S. 47:2184 was violated.

For these reasons, we find that the trial court erred in its rulings on the motions for summary judgment.

DECREE

For the foregoing reasons, the motion for summary judgment entered in favor of the appellee, Jeanne M. Olson, is reversed. The motion for summary judgment filed by the appellant, Jeff Medler, is granted, dismissing this proceeding. All costs of this proceeding are assessed to Ms. Olson.

REVERSED. SUMMARY JUDGMENT FOR THE DEFENDANT GRANTED AND MADE PEREMPTORY.

      . In pertinent part, the trial court's written reasons for ruling indicate:
      Once the Tax Collector has determined that the property to be sold is not divisible in kind, whether this is done in person or from the description of the property on the assessment roles, "he must sell such lesser undivided interest of the whole property as will satisfy such charges and shall not entertain a bid in excess thereof.” La.R.S. 47:2184. This language, at a minimum, places a duty on the Tax Collector to offer a "lesser undivided interest of the whole property as will satisfy the charges.” This duty was not complied with when the Tax Collector made a blanket statement at the beginning of all sales that "we are selling the least amount of property for the taxes.”
      It is the Opinion of this Court that the clear and unambiguous language of La.R.S. 47:2184 also places a duty on the Tax Collector to sell only that amount of property that will satisfy the debt owed. The Tax Collector should have offered only that undivided interest that would have satisfied the debt, in this case approximately 10%. The Tax Collector, in not refusing the bid by Louisiana Tax One for the entire property, failed to meet the statutory burden placed on him.
      La.R.S. 47:2184 was violated at the tax sale on May 3, 2000. The Tax Collector failed to "sell such lesser undivided interest of the whole property" and failed to "not entertain a bid in excess thereof.” Id. La. R.S. 47:2184 places an affirmative duty on the Tax Collector. It is the Opinion of this court that the inclusion of the statement, "we are selling the least amount of property for the taxes,” at the beginning of all of the sales for that day, a day on which many tax sales were to be made, does not meet the duty placed on the Tax Collector by the Legislature. Further, this Court finds that there is an affirmative duty on the Tax Collector to "not entertain a bid in excess” of the amount that will satisfy the charges owed. Therefore, it is the opinion of this Court that the prerequisites of La.R.S. 47:2184 were not met and that the sale of the residential property located at 1908 Marrigold Street is null and void.

      . Subsequently, by 2008 La. Acts. No. 819, § 2, the legislature repealed La.R.S. 47:2184. Section 3 lists the effective date of Act 819 as January 1, 2009.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Patrick THOMAS.
    No. KA 08-1280.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      James Edward Beal, LA. Appellate Project, Jonesboro, LA, for Defendant/Appellant, Patrick Thomas.
    Earl B. Taylor, District Attorney, Opel-ousas, LA, for PlaintifRAppellee, State of Louisiana.
    Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

[ ,The Defendant, Patrick Thomas, was charged by bill of information filed on April 10, 2006, with aggravated battery, a violation of La.R.S. 14:34. After a jury trial, Defendant was found guilty of second degree battery. Defendant was sentenced on July 10, 2008 to five years at hard labor. Defendant is now before this court asserting that his sentence is excessive. For the following reasons, we affirm.

FACTS

On the night of September 20, 2005, the victim, Ray Anthony Willis, was at a nightclub called Added Attraction, also known as Butler’s. According to the victim, a verbal argument ensued at that location between he and Defendant; the two had been involved in physical altercations in the past. During Defendant’s testimony, he denied that a verbal argument occurred at Added Attraction.

Later the same night, the victim and his friend, Mike Williams, proceeded to another establishment called The Back. Defendant was there when the victim arrived. According to the victim, another verbal altercation (but no physical altercation) ensued between the two at The Back. Defendant testified that while he was at The Back, the victim and Williams arrived. The two men approached him, and the victim shoved a bottle in Defendant’s face and said, “Yeah, you gonna give me what I want.” Defendant testified that he was irate, left The Back, and proceeded to the corner store where the victim and Williams approached him and his brother. According to Defendant, the victim tried to stab him with a broken bottle. Defendant testified that he pulled out his pocket knife and while he and the victim were “tusslin’,” Defendant “blocked” and “stucked” him twice in the back.

[•¿The victim’s account of what occurred after leaving The Back varied from Defendant’s. According to the victim, as he was walking down Madison Street, Defendant exited a vehicle. The two approached each other, and Defendant pulled out a knife and stabbed the victim in the neck. As the victim turned to run, Defendant stabbed him twice more in the back and told him he should have killed him. The victim was later taken to the hospital and was released the following day.

Dr. William Smith, the emergency room physician that treated the victim, testified that one of the victim’s three wounds was in the left supra clavicular fossa, and the other two were in the trapezius muscles. The victim also had a small pneumothorax, “which is a drop — collapse of the lung.” This injury required that the victim be kept for observation, but it was not large enough to require invasive treatment. Dr. Smith confirmed that, in his opinion, the victim’s injuries were consistent with those caused by a stabbing. Finding no errors patent, we turn to the only assignment of error.

EXCESSIVE SENTENCE

Defendant contends the sentence imposed by the trial court is clearly excessive considering the facts of the case. Defendant argues that as a second offender, he should have received a suspended sentence and probation. In support of his claim, Defendant essentially contends that the victim stalked him by initially approaching him prior to the first argument, and approaching him on the street. Finally, Defendant points out that at the sentencing proceeding, there was testimony presented that the victim entered Defendant’s cell and attacked him while both were incarcerated after trial. Defendant asks that his sentence be vacated and the case |sremanded for resentencing at which the trial court should give weight to mitigating factors.

At the time of the offense, a person convicted of second degree battery could be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both. La.R.S. 14:34.1. Defendant was sentenced to serve five years at hard labor. A motion to reconsider sentence was not filed in this case.

In State v. Baker, 08-54 p. 12-13 (La.App. 3 Cir. 5/7/08), 986 So.2d 682, 691-92, this court stated:

Although defense counsel objected to the sentences at the sentencing hearing, a review of the record shows that the defendant failed to file a written motion for reconsideration of sentence as required by La.Code Crim.P. art. 881.1. Thus, the defendant is precluded from raising the excessiveness of his sentences on appeal. State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181 (La.1993). Although the defendant’s sentencing claims are barred pursuant to La.Code Crim.P. art. 881.1, this court will review the defendant’s sentences for aggravated criminal damage to property “for bare excessiveness in the interest of justice.” State v. Davis, 06-922, p. 2 (La.App. 3 Cir. 12/29/06), 947 So.2d 201, 203 (citing State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-29 (La.10/14/02), 827 So.2d 420). This court has also reviewed claims regarding the consecutive nature of sentences using a bare claim of excessiveness analysis. Id.
The Eighth Amendment to the United States Constitution and La. Const. art. 1, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 |4(La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Davenport, 07-254, pp. 3-4 (La. App. 3 Cir. 10/3/07), 967 So.2d 563, 565.

In State v. Hopkins, 96-1063, p. 7 (La. App. 3 Cir. 3/5/97), 692 So.2d 538, 541, this court stated:

Normally, courts impose maximum sentences upon the most serious violations of the described offense, and for the worst kind of offender. State v. Sloan, 528 So.2d 252 (La.App. 3 Cir. 1988). Courts have upheld maximum sentences for second degree battery in situations of particularly violent attacks, or for offenders with violent criminal records.
In this case, because the evidence supported the greater charge of aggravated battery, we find that the sentence imposed was appropriate. Because the conduct involved is not adequately described by the conviction, the defendant need not be the “worst type of offender” to receive the maximum sentence. State v. Holland, 544 So.2d 461 (La.App. 2 Cir.1989), writ denied, 567 So.2d 93 (La. 1990).

At the sentencing hearing, David Sonnier, who was in “A Block” with Defendant the previous year, testified that the victim came into the block and started “fussing with [Defendant] and he started fighting with [Defendant]” while Defendant was sleeping. Defendant testified at the sentencing proceeding that during that particular incident, the victim hit him in his jaw. A fight ensued, and both men were injured. Defendant testified that he went to the doctor, but did not receive any medical treatment. Deputy Calvin Moore, Warden of the St. Landry Parish Jail, testified that the victim received twelve stitches in his mouth as a result of this incident. Deputy Moore testified that it was “[u]nknown who started what,” but both individuals were charged.

| ^Another witness, Patrick Bryant, testified at the sentencing hearing. Bryant testified that he and Defendant were in an elevator in the courthouse together, and the victim “come from outside” and told Defendant that he was a dead man walking. At the request of defense counsel, the trial court stated it would consider the incidents testified to at the sentencing proceeding. Prior to imposing Defendant’s sentence, the trial court stated:

The defendant is 42 years of age and is classified as a second felony offender, although he has approximately twenty-eight separate encounters with law enforcement agencies beginning on January 3, 1984. Fifteen of those encounters were classified as encounters concerning crimes against a person. The defendant was convicted of four misdemeanors. The pre-sentence investigation states that the victim reported that after the defendant stabbed him three times, he told the victim, “You’re lucky I didn’t kill you.”
On October 28, 2008, the defendant allegedly beat the victim while they were both incarcerated resulting in the victim requiring twelve stitches in the facial or mouth area. There is pending a second degree battery charge in that matter and as indicated or testified to by the Warden today, apparently both inmates were charged with that altercation or altercations.
There is an undue risk that during the period of a suspended sentence or a probation, that the defendant will commit another crime. The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. A lesser sentence will deprecate the seriousness of the defendant’s crime. There are no mitigating circumstances except — there are circumstances but there are not mitigating, in that there was the second altercation between these individuals after the original conviction or the conviction subject of this matter. There is certainly no remorse by this defendant indicated by the second altercation.
Accordingly, the Court sentences the defendant as follows: five years at hard labor with credit for time served.

Defendant received the maximum term of imprisonment, but no fine was imposed. We reference two cases involving excessive sentence claims for convictions of second degree battery. In State v. Bowie, 482 So.2d 90 (La.App. 4 Cir.┴1986),6 the fourth circuit found the sentencing judge did not abuse his discretion in imposing the maximum five-year sentence for second degree battery where the defendant threw a brick at the back of an unarmed police officer, which resulted in the officer’s skull being fractured and his scalp torn. The defendant’s criminal record showed arrests for thefts, forgeries, automobile theft, and sale and possession of heroin. He had a prior conviction for possession of heroin as well as theft.

In State v. Smith, 452 So.2d 251 (La. App. 5 Cir.1984), the fifth circuit affirmed the imposition of the maximum five-year sentence for a defendant who, upon being requested by a police officer to answer questions regarding an earlier disturbance, struck the officer in the face. Other officers had to be called in before the defendant could be subdued. Both the defendant and officers were injured in the struggle. Along with numerous arrests, the defendant had prior convictions for burglary, jail escape, and second-degree murder.

Considering Defendant’s criminal history, the fact that the evidence supported the original, greater charge of aggravated battery, and the subsequent jailhouse fight which demonstrates a patent lack of remorse, we find the imposition of the maximum five-year sentence was not an abuse of the trial court’s sentencing discretion. We affirm.

AFFIRMED.