author: GREMILLION, Judge.

text:
    Rainey WALLACE v. The GEO GROUP, INC., et al.
    No. 11-863.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Roy Maughan, The Maughan Law Firm, Baton Rouge, LA, Charles A. Jones, III, Attorney at Law, DeRidder, LA, for Plaintiff/Appellant, Rainey Wallace.
    Samuel B. Gabb, Plauché, Smith & Nies-et, LLC, Lake Charles, LA, for Defendant/Appellee, The Geo Group, Inc.
    Joseph Richard Pousson, Jr., Plauché, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, Brandon Lofton.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| T Rainey Wallace, the plaintiff/appellant, appeals the trial court’s grant of summary judgment in favor of the defendant/appel-lee, Geo Group, Inc., dismissing his suit for failure to exhaust administrative remedies. For the following reasons, we reverse and remand this matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Wallace was an inmate of the Allen Correctional Center (ALC) in Kinder, Louisiana, which was operated by GEO. He claims he sustained injuries as a result of the use of excessive force by several corrections officers on July 10, 2007. On July 11, 2007, Wallace submitted two Requests for Administrative Remedy which were assigned ARP (Administrative Remedy Procedure) Numbers ALC-2007-809 and ALC-2007-810. A day later, Wallace withdrew the initial request, and the second request was rejected as a duplicate filing. Wallace sought no further review of the initial filings.

On March 18, 2008, Wallace filed another ARP, ALC-2008-308, which was rejected as untimely filed and duplicative of ALC-2007-809. Wallace received notice of the rejection on April 17, 2008.

On May 6, 2008, Wallace claims to have submitted a request that the Louisiana Department of Public Safety and Corrections (DPSC) review his claims regarding the incident, but DPSC has no record of having received any request from Wallace.

Wallace instituted a petition for damages in district court on June 24, 2008, stating that he had exhausted the available administrative remedies. GEO’s first motion for partial summary judgment was granted, dismissing Wallace’s claims for attorney’s fees and punitive damages. GEO next filed a motion for summary judgment, urging that Wallace had failed to exhaust administrative remedies since DPSC had not reviewed his claims. The trial court granted GEO’s motion for |2summary judgment. Wallace filed a motion for new trial, which was denied in April 2011. Wallace now appeals and assigns as error:

The Trial Court committed reversible error granting Defendants’ Motion for Summary Judgment dismissing Appellant’s suit without prejudice finding Appellant failed to exhaust available administrative remedies. Available remedies were irreparably inadequate due to Defendant’s failure to perform responsibilities imposed by Louisiana Administrative Code 22:1.325, which was a denial of due process and the cause of any alleged failure by Appellant to properly take the second step to exhaust available administrative remedies.

DISCUSSION

Summary Judgment

We note that GEO presented its argument that Wallace failed to exhaust administrative remedies pursuant to a motion for summary judgment. This is an improper procedural device to use when claiming that a party has failed to exhaust administrative remedies. Instead, GEO should have filed an exception of prematurity pursuant to La.Code Civ.P. art. 926(A)(1). Dailey v. Travis, 02-2051 (La.App. 1 Cir. 2/23/04), 872 So.2d 1104, aff'd, 04-744 (La.1/19/05), 892 So.2d 17; Mosley v. La. Dept. of Pub. Saf. & Corrs., 07-1501 (La.App. 3 Cir. 4/2/08), 980 So.2d 836. Thus, we will treat this matter as an exception of prematurity. In Mosley, 980 So.2d at 837, a panel of this court stated:

An exception of prematurity raises the issue of whether a plaintiff has fulfilled a prerequisite condition prior to filing his suit such that the question is presented as to whether his cause of action yet exists. La.Code Civ.P. art. 926(A)(1); Gray v. State, 05-617 (La.App. 3 Cir. 2/15/06), 923 So.2d 812. The party raising the exception of prematurity has the burden of proving that an administrative remedy is available and that the plaintiff failed to submit his claim for review before the administrative tribunal prior to filing suit. Id. Once the exceptor has shown that an administrative remedy exists, the burden shifts to the plaintiff to prove that he has exhausted his administrative remedies or that the administrative remedies available to him are irreparably inadequate. Ngo v. Estes, 04-186 (La.App. 3 Cir. 9/29/04), 882 So.2d 1262.

In Cheron v. LCS Corrections Services, Inc., 02-1049, p. 15 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094, 1103, aff'd, 04-0703 (La.1/19/05), 891 So.2d 1250, and Dailey, 872 So.2d at 1108 (both of which were rendered on the same day) the court stated:

The objection contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for one aggrieved of a decision to seek administrative relief before resorting to judicial action. Girouard v. State Through Dep’t of Educ., 96-1076, p. 4 (La.App. 1st Cir.5/9/97), 694 So.2d 1153, 1155. Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before he is entitled to judicial review. Id., 1996-1076 at p. 5, 694 So.2d at 1155.

In considering this as an exception of prematurity, we note that “no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court” in a suit involving the Corrections Administrative Remedy Procedure (CARP) found in La.R.S. 15:1171 et seq. Edwards v. Bunch, 07-1421, p. 5 (La.App. 1 Cir. 3/26/08), 985 So.2d 149, 152. See also Samuels v. Goodwin, 05-2131 (La.App. 1 Cir. 11/3/06), 950 So.2d 736. Accordingly, as will be more fully explained below, based on our review of the record, we find that Wallace proved that the administrative remedies available to him were irreparably inadequate, thus allowing him to proceed in district court.

Administrative Review Procedure

Louisiana Revised Statutes 15:1184(A)(l)(a) and (2) provides:

(a) “Administrative remedies” means written policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. Such “administrative remedies” need not be adopted or published in compliance with R.S. 15:1171.
(2) No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice.

l/The Administrative Remedy Procedure to be used by inmates is found in La.Admin.Code 22:1.325. It applies to an inmate’s complaints of personal injury. La.Admin.Code 22:I.325(B). The “Policy” portion of La.Admin.Code (La.Admin.Code 22:I.325(E)(3)) provides (emphasis added): “Written Responses. At each stage of decision and review, inmates will be provided written answers that explain the information gathered or the reason for the decision reached along with simple directions for obtaining further review.”

“Inmates are required to use the procedure before they can proceed with a suit in federal and state courts.” La.Admin.Code 22:I.325(A)(1). The process is initiated by an inmate by writing a letter to the warden containing the phrase “This is a request for administrative remedy.” La.Admin.Code 22:I.325(F)(2)(a). Section G sets forth the “Process” as follows (emphasis added):

1. First Step (Time Limit 40 days)
a. The inmate commences the process by writing a letter to the warden, in which he briefly sets out the basis for his claim, and the relief sought (refer to Subsection F, “Procedure-Initiation of Process” for the requirements of the letter). The inmate should make a copy of his letter of complaint and retain it for his own records. The original letter will become a part of the process, and will not be returned to the inmate. The institution is not responsible for furnishing the inmate with copies of his letter of complaint. This letter should be written to the warden within 90 days of an alleged event. (This requirement may be waived when circumstances warrant. The warden, or his designee, will use reasonable judgment in such matters.) The requests shall be screened by the ARP screening officer and a notice will be sent to the inmate advising that his request is being processed or is being rejected. The warden may assign another staff person to conduct further fact-finding and/or information gathering prior to rendering his response. The warden shall respond to the inmate within 40 days from the date the request is received at the first step.
b. For inmates wishing to continue to the second step, sufficient space will be allowed on the response to give a reason for requesting review at the next level. There is no need to rewrite the original letter of request as it will be available to all reviewers at each step of the process.
2. Second Step (Time Limit 45 days)
|5a. An inmate who is dissatisfied with the first step response may appeal to the secretary of the Department of Public Safety and Corrections by so indicating that he is not satisfied in the appropriate space on the response form and forwarding it to the ARP screening officer within 5 days of receipt of the decision. A final decision will be made by the secretary and the inmate will be notified within 45 days of receipt. A copy of the secretary’s decision will be sent to the warden.
b. If an inmate is not satisfied with the second step response, he may file suit in district court. The inmate must furnish the administrative remedy procedure number on the court forms.

Attached to its motion for summary judgment, GEO submitted the affidavit of Rhonda Weldon, a paralegal at the DPSC, who reviewed the records maintained at DPSC and stated that she:

located ARP No ALC-2008-308 regarding an alleged use of force incident that occurred on July 10, 2007. Inmate Wallace’s Request for Administrative Remedy was received at Allen Correctional Center on March 19, 2008 and was rejected by prison officials at that facility. Inmate Wallace’s request was rejected as untimely and as being duplicative of a request that Inmate Wallace had previously withdrawn. No further appeal or subsequent Request for Administrative Remedy from Inmate Wallace has been documented or noted by DPSC, and DPSC has not issued a Second Step Response to Inmate Wallace regarding any incident that might have occurred on July 10, 2007.

Terry Langley, a Captain employed by the GEO Group testified via affidavit that during his investigation of Wallace’s allegations, two of the corrections officers named in Wallace’s complaint resigned from employment. He further stated:

As the officers purportedly involved in the altercation with Inmate Wallace had resigned from employment, Inmate Wallace seemingly received the relief sought through the ARPs. Thereafter, Inmate Wallace withdrew the initial administrative filing, which had been assigned ARP No. ALC-2007-809. The accompanying request, ARP No. ALC-2007-810, was rejected as duplicative. Affiant did not, at any time, coerce or threaten Inmate Wallace regarding this incident or the administrative grievances Inmate Wallace had filed.

Wallace’s initial complaint, dated July 11, 2007, details the assault he claims occurred at the hands of several corrections officers. Next in the record appears ALC’s “Administrative Remedy Procedure Withdrawal Form” pertaining to ALC-J08-809.6 The form states “PLEASE BE ADVISED THAT I WISH TO WITHDRAW THE ARP REFERENCED BELOW.” It then lists “REASON FOR WITHDRAWING” and provides a blank space for the inmate to provide his reason. Wallace handwrote “I am satisfactory (sic) with my redmey (sic).”

Next follows Wallace’s second request for administrative remedy, also filed on July 11, 2007, which was rejected. The rejection form issued by DPSC and signed (a typed signature) by Beth Swain above a line designated as ‘Warden’s Signature or Designee” states ‘Tour request has been rejected for the following reason(s): Inmate has already ARPed on this issue and dropped it.”

Wallace’s third complaint, dated March 18, 2008, appears in the record and alleges that he was intimidated by threat of force to drop his previous ARP and feared for his safety. He requested that his previous ARPs be reinstated.

The April 15, 2008 rejection issued by DPSC states: “The ARP has been rejected for the following reasons: (1) Your complaint is out-of-time. (2) It is a duplicate complaint, that has already been addressed with ARP # ALC-2007-809, in which you voluntarily decided to dismiss the complaint (see attachment.)” This form is identical to the rejection form issued after the second request, although it is signed by Katy Matte above the Warden’s Signature or Designee.

On March 19, 2008, the ALC Legal Department issued a letter to Wallace regarding the third ARP rejection, which states in full:

Please be advised that your ARP dated “7-10-07” has been rejected. Your complaint is out-of-time. You state the date of incident as “8-9-07”. There has been a time lapse of approximately 220 days from the date of the incident and the date we received your request. The LDPSC Regulation B-05-005, page 9, reasons for rejection, item 10, states; There has been a time lapse of more than 90 days between the event and the initial request. No further action will be taken on this request for Administrative Remedy.
NOTE: In addition, your initial complaint was addressed in ARP ALC 2007-809, in which you voluntarily decided to dismiss. ARP ALC 2007-810 was rejected because it related to the complaint in 2007-809, and no evidence of coercion could be linked to your decision.

|7None of the forms issued by DPSC or by the ALC provide “simple directions for obtaining further review.” La.Admin.Code 22:I.325(E)(3). There is no mention that a second-step review is available or how an inmate is to proceed to obtain a second-step review. The Administrative Code specifically sets forth a “Request for Administrative Remedy Form (ARP-1)” in part I.

Part J of La.Admin.Code 22:1.325 provides a “First Step Response Form (ARP-2)” that specifically sets forth simple written instructions to be given to the inmate in the form. It states: “Instruction to Inmate: If you are not satisfied with this response, you may go to Step Two by checking below and forwarding to the ARP Screening Officer within 5 days of your receipt of this decision.” It provides several blank lines below and further states “() I am not satisfied with this response and wish to proceed to Step Two.” Next follows an area captioned “REASON:” with blank lines for the inmate to complete.

Part K of La.Admin.Code 22:1.325 provides a “Second Response Form (ARP-3)” with the second-step response taken. None of the various forms issued by either DPSC, the Legal Department at Allen Correctional Center, or some designee or representative of the prison contain any information whatsoever about the second-step response.

Nevertheless, on May 6, 2008, Wallace sent a five-page letter to DPSC regarding a second-step request for administrative remedy, urging that the Allen Correctional Center failed to review an ARP. However, DPSC denies ever having received that letter. There is a handwritten notation at the top of the letter stating “ALC Legal” that is clearly not in Wallace’s handwriting. We find that regardless of the nature of this submission, the ALC’s failure to follow the guidelines set forth in the administrative procedure prevented Wallace from timely filing his second-step request. That Wallace untimely and inappropriately went to the trouble of | ^mailing his second-step request to DPSC rather than simply giving it to the appropriate officer at Allen Correctional Center buttresses the argument that he was never informed of the appropriate procedure necessary to undertake a second-step review. We need not even address the merits of the underlying claims of coercion and intimidation because we find that DPSC failed to follow its own procedure of notification.

If the department did not follow its own procedural requirements, any questions regarding the completion of the three step process should, a fortiori, be strictly interpreted against it. The department drafted the administrative remedy procedure. The department’s blatant failure to follow its own procedural rules and regulations should not be manipulated to accrue to its benefit.

Sims v. Wackenhut Health Servs., Inc., 97-1147, p. 6 (La.App. 1 Cir. 2/20/98), 708 So.2d 1140, 1142, writ denied, 98-0747 (La.5/1/98), 718 So.2d 417.

It is clear from the record that Wallace has made many attempts to have his complaints addressed, though not in the proper form. This court cannot allow Wallace to be prejudiced by his informality when DPSC bore the duty to inform Wallace of the procedure necessary to move through the administrative review process. We find Wallace has pursued his administrative remedies “to the fullest extent possible under the circumstances.” Sims, 708 So.2d at 1143. Thus, his administrative remedies have been exhausted and no longer apply to him. Id. Wallace can properly proceed in district court. Accordingly, the summary judgment granted in favor of GEO is reversed and vacated, and this case is remanded for further proceedings consistent with this opinion.

SUMMARY JUDGMENT REVERSED AND VACATED; REMANDED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Norma MARCELL v. TOYOTA MOTOR NORTH AMERICA, INC., et al.
    No. 11-1072.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    David M. Thorguson, Lippman, Mahfouz, Tranchina & Thorguson, L.L.C., Morgan City, LA, for Plaintiff/Appellant, Norma Marcell.
    Julius W. Grubbs, Jr., Haik, Minvielle & Grubbs, LLP, New Iberia, LA, for Plaintiff/Appellee, State of Louisiana, through the Department of Transportation and Development.
    Mark N. Bodin, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendants, Toyota North America, Inc., Toyota Motor Sales USA, Inc.
    Court composed of SYLVIA R. COOKS, ELIZABETH.A. PICKETT, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| í Plaintiff appeals from a judgment granting an exception of insufficiency of citation and service of process filed by Defendant, State of Louisiana, through the Department of Transportation and Development (the DOTD). For the following reasons, we affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On April 17, 2009, Timothy Hill was ejected from his 2008 Toyota Tundra pickup truck in a single-car accident on a temporary road near a construction zone on Highway 90 near its intersection with Highway 675 in Iberia Parish. He was severely injured and later died from his injuries. Plaintiff, Norma Marcel, is Hill’s mother. She filed a wrongful death and survival action on April 16, 2010, naming as defendants Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc. (collectively referred to as “Toyota”), and the DOTD.

The DOTD filed a declinatory exception of insufficiency of citation and service of process asserting that citation and service had not been effectuated in accordance with La.R.S. 13:5107(A) & (D) and La.R.S. 39:1538. After a hearing, |2the trial court took the matter under advisement. By judgment dated January 3, 2011, the trial court granted the exception and dismissed Plaintiffs suit against the DOTD without prejudice. Plaintiff now appeals, alleging that the trial court erred in sustaining the exception and dismissing her suit against the DOTD.

DISCUSSION

In the interval between the taking of this appeal and the time when the parties’ appellate briefs were due in this court, the Louisiana Supreme Court decided the companion cases of Burnett v. James Construction Group, 10-2608 (La.7/1/11), 66 So.3d 482 and Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, 11-40 (La.7/1/11), 66 So.3d 470.

In Whitley, the supreme court held, as a matter of first impression, that a medical malpractice plaintiffs request for service of citation on the university head, for the alleged negligent medical care rendered to her and her unborn child at the university hospital, without also requesting service on the attorney general or the office of risk management satisfied the statutory service requirements of La.R.S. 13:5107 due to “the legislature’s use of the permissive word ‘may.’ ” Whitley, 66 So.3d at 481. It then observed that:

[Although a plaintiff must serve multiple entities/persons under LSA-R.S. 39:1538(4), which applies to tort actions against the state and its agencies, that statutory provision does not require that the plaintiff make service (or request that service be made) within a certain time period or provide for dismissal. Therefore, an objection of insufficiency of service based on LSA-R.S. 39:1538(4) can be cured by subsequent service on those entities/persons not previously served.

Id. at 482-83.

Burnett was factually similar to the instant case in that it arose from an automobile accident and the plaintiff therein, like Plaintiff in the instant matter, timely requested and obtained service on the attorney general, but not on the head of the DOTD nor on the office of risk management. The following is an excerpt from Burnett, 66 So.3d at 483:

The issue to be resolved is whether it is sufficient to serve only the attorney general or whether it is necessary to also serve other entities/individuals when a tort action is brought against the Department of Transportation and Development. Specifically, this matter is before the court for a determination of whether the plaintiffs request for service and citation within 90 days from the commencement of this tort suit on only the attorney general satisfied the requirements of LSA-R.S. 13:5107 and LSA-R.S. 39:1538.

14For the reasons assigned in Whitley, 66 So.3d 470, the supreme court held that “[a] double request for service is not necessary [under La.R.S. 13:5107]” and that “[c]learly, Burnett’s request for service on the attorney general alone satisfied the service requirements” of the statute. Id. at 485. Next, the supreme court considered whether Burnett’s claims should nonetheless be dismissed for her failure to comply with La.R.S. 39:1538(4). Because that statute does not impose a time constraint on the service required nor does it provide for dismissal for the failure to effectuate such service, the supreme court ruled that Burnett’s failure to request service on the DOTD’s secretary and the office of risk management within ninety days from the filing of his suit did not give the DOTD the right to have her claims against it dismissed. Thus, the supreme court found that while the appellate court was correct in sustaining the DOTD’s exception of insufficiency of service, it erred in not allowing Burnett time to cure the service defects.

Relying on this recent jurisprudence, Plaintiff herein avers that this court should reverse the judgment sustaining the DOTD’s exception and dismissing her claims against it. In contrast, the DOTD acknowledges the holdings of Burnett and Whitley but claims that this court should affirm that portion of the judgment sustaining its exception, reverse that portion of the judgment dismissing Plaintiffs claims against it, and remand this matter with instructions that the trial court set a reasonable time within which Plaintiff may cure the defect in service.

We are unable to discern any meaningful distinction between the pertinent facts present in Burnett and in the instant case; therefore, we find its holding dispositive of the issues before us today. Accordingly, we conclude that the trial court properly sustained the DOTD’s exception of insufficiency of citation and service of process for Plaintiffs failure to effectuate service of the head of the DOTD and the office of risk management. Nevertheless, because Plaintiff can | ficure this defective service by requesting and obtaining service on those entities, the trial court erred in dismissing her claims without allowing her time to do so.

DECREE

For the foregoing reasons, we affirm that portion of the judgment sustaining the DOTD’s exception of insufficiency of citation and service of process, reverse that portion of the judgment dismissing Plaintiffs claims against the DOTD, and remand for further proceedings with instructions that the trial court set a reasonable time within which Plaintiff may cure the defects in service. All costs of this appeal are to be shared equally amongst the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Plaintiff also asserted claims against Toyota under the Louisiana Products Liability Act.

      . The DOTD also filed a motion for involuntary dismissal and a peremptory exception of prescription which the trial court did not rule upon and which are not at issue in this appeal.

      . Prior to its amendment by 2010 La. Acts No. 55, § 1, Louisiana Revised Statutes 13:5107 provided, in pertinent part:
      A. In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
      D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
      (2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
      (3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.
      After the 2010 amendment, Subsection (D)(2) provided:
      If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.

      .Louisiana Revised Statutes 39:1538 provides, in pertinent part:
      (4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107.


author: AMY, Judge.

text:
    STATE of Louisiana v. John D. SKINNER.
    No. 11-703.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Asa A. Skinner, District Attorney, Terry W. Lambright, Leesville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, John D. Skinner.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hThe defendant was charged with theft over $500.00, a violation of La.R.S. 14:67. As part of a plea agreement with the State, the defendant pled guilty to theft over $500.00 and, in a separate docket number, an unrelated bail jumping charge. For the theft charge, the trial court imposed a sentence of seven years at hard labor with a fine of $1,500.00, as well as restitution in the amount of $4,898.90. The trial court ordered that the defendant’s sentence in this case was to run concurrently with his sentence on the bail jumping charge. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the defendant was arrested and charged with theft over $500.00, a violation of La.R.S. 14:67, in connection with the theft of a generator from a nursing home. As part of a plea agreement, the defendant subsequently entered a plea of guilty to the instant charge, as well as an unrelated charge of bail jumping, a violation of La.R.S. 14:110.1, in a separate docket number. In exchange for the defendant’s guilty plea, the State dropped several other pending cases, including charges of principal to theft, theft of firearms, and another count of bail jumping. The State also agreed to recommend that the defendant’s sentence on the theft charge run concurrently with his sentence on the bail jumping charge, and agreed not to institute habitual offender proceedings.

For the instant charge, the trial court sentenced the defendant to seven years at hard labor, which was to run concurrently with his sentence in the bail jumping case, and a fine of $1,500.00. The trial court also imposed restitution of |2$4,898.90. The defendant subsequently filed a motion for reconsideration of sentence, which was denied without reasons.

The defendant appeals, asserting as his sole assignment of error that “[t]he Trial Court erred in that the sentences imposed [...] are constitutionally excessive and imposed without sufficient consideration of Art. 894.1.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Excessiveness of Sentence

The defendant contends that the sentence imposed by the trial court is unconstitutionally excessive and that the trial court failed to adequately consider the sentencing factors delineated in La.Code Crim.P. art. 894.1.

We first examine the defendant’s contention that the trial court failed to adequately consider the sentencing factors prescribed in La.Code Crim.P art. 894.1(C), which requires that the trial court state for the record the considerations taken into account and the factual basis for the sentence imposed. The trial court must adequately consider Article 894.1’s guidelines in particularizing a defendant’s sentence; however, it need not articulate every aggravating and mitigating factor contained therein. State v. Smith, 433 So.2d 688 (La.1983). We note that “[t]he important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation.” State v. Hutcherson, 34,540, p. 13 (La.App. 2 Cir. 4/4/01), 785 So.2d 140, 148 (citing State v. Jones, 398 So.2d 1049 (La.1981)); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864. Further, the trial court may consider factors not listed in Article 894.1, including whether a plea bargain results in a significant reduction in the defendant’s potential sentencing exposure and criminal conduct that did not result in a conviction. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095.

The record indicates that, at the sentencing hearing, the trial court stated that it “reviewed the [pre-sentence] report and noted the factors under Article 894.1.” The trial court considered the defendant’s age, family history, education and employment history. Further, the trial court observed that the defendant had a history of drug and alcohol problems, “mostly alcohol,” and had attended a treatment program at one point. Noting the defendant’s criminal history, the trial court observed that the defendant was considered a third felony offender and was not eligible for probation. Additionally, the trial court stated that there was economic harm to the victim and that there was no substantial justification or excuse for the defendant’s actions.

We note that the defendant’s sentencing exposure was substantially reduced because, as part of the plea agreement, the State dropped three other pending cases, recommended that the defendant’s sentences run concurrently, and agreed not to institute habitual offender proceedings against the defendant. Based on our review of the record, we find that the trial court adequately considered the sentencing factors delineated under Article 894.1.

We now turn to the defendant’s contention that his sentence is unconstitutionally excessive. A panel of this court summarized the standard to be used in reviewing excessive sentence claims in State v. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565, stating:

|4The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exeessiveness 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 (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).

In making this determination, the appellate court may take into account several factors, including “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. However, the appellate court should remain mindful that the sentence should be particularized to the individual defendant and the particular offense committed. State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208.

The defendant was charged with theft over $500, and the record indicates that the defendant acknowledged restitution in the amount of $4,898.90. Accordingly, the appropriate sentencing provision is contained within La.R.S. |514.-67(B)(1), which states “[w]hoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.”

For the instant charge, in addition to restitution, the trial court sentenced the defendant to seven years at hard labor and a fine of .$1,500.00. We find that there is an adequate basis in the record for this sentence. As previously discussed, at the sentencing hearing, the trial court addressed several of the aggravating and mitigating circumstances laid out in La. Code Crim.P. art. 894.1, including that the crime caused economic harm to the victim. Further, the trial court observed that the defendant had previously been convicted of simple burglary and two counts of theft, aggravated battery and attempted second degree battery. Additionally, the defendant had several misdemeanor convictions. A review of comparable cases indicates that similar sentences have been upheld on appeal. See State v. Thomas, 38,218 (La.App. 2 Cir. 3/5/04), 867 So.2d 999; State v. Madison, 535 So.2d 1024 (La.App. 2 Cir.1988); State v. Morris, 525 So.2d 1247 (La.App. 2 Cir.1988). Accordingly, we find that the defendant’s sentence for theft over $500, a violation of La.R.S. 14:67, is not unconstitutionally excessive.

The defendant’s assignment of error is without merit.

| ^DECREE

The defendant’s sentence for theft over $500, a violation of La.R.S. 14:67, is affirmed.

AFFIRMED.

      . The defendant has also appealed his sentence for the bail jumping charge. See State of Louisiana v. John D. Skinner, 11-704 (La.App. 3 Cir.2/1/12), 84 So.3d 764.

      . The trial court imposed a sentence of two years at hard labor and restitution as ordered in this case on the bail jumping charge.

      . In reciting the terms of the plea agreement at the defendant’s plea hearing, the district attorney stated that it was his understanding that “the State would dismiss bill of information 79,520 and 521, however Mr. Skinner acknowledges these charges for the purpose of restitution. It is my understanding, Your Honor, that the total restitution amount was four thousand eight hundred ninety-eight dollars and ninety cents. Also, my understanding that the co-defendant, who’s paid part of that, and insurance he’s paid part of it [sic], so if there is any restitution, he's acknowledging it for that purpose.” At the same hearing, when questioned by the trial court, the defendant agreed that the State’s recitation of the plea agreement was the agreement he had with the State.

      . We note that, effective August 15, 2010, La.R.S. 14:67 was amended to change the gradation scale governing its applicable penalties. The record indicates that the instant offense occurred on October 25, 2009. Accordingly, we use the version of La.R.S. 14:67 in effect at the time of the offense. See State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). See also State v. Oliver, 03-416 (La.App. 5 Cir. 12/29/09), 30 So.3d 946, writ denied, 10-271 (La.9/17/10), 45 So.3d 1041.

      . See La.Code Crim.P. art. 883.1.


text:
    STATE of Louisiana v. John D. SKINNER.
    No. 11-704.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Asa A. Skinner, District Attorney, Terry W. Lambright, Attorney at Law, Leesville, LA, for Appellee, State of Louisiana.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, John D. Skinner.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

| ¾After failing to appear for a hearing in an unrelated case, the defendant was charged with jumping bail, a violation of La.R.S. 14:110.1. As part of a plea agreement with the State, the defendant pled guilty to jumping bail and, in a separate case, theft over $500. The trial court sentenced the defendant to two years at hard labor, to run concurrently with the sentence for his theft over $500 charge. Additionally, the trial court imposed restitution in the amount of $4,898.90. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, the defendant was arrested and charged with theft over $500. Minutes from the theft case indicate that the defendant failed to appear at two hearings. Pursuant to a plea agreement, the defendant pled guilty to one count of jumping bail and, in a separate docket number, one count of theft over $500, a violation of La.R.S. 14:67. As part of the plea agreement, the State dropped several other pending charges against the defendant, including charges of principal to theft, theft of firearms, and another count of jumping bail. The State also agreed to recommend that the defendant’s sentence on the jumping bail charge run concurrently with his sentence on the theft charge, and agreed not to institute habitual offender proceedings.

For the jumping bail charge, the trial court sentenced the defendant to two years at hard labor, to run concurrently with his sentence in the theft case. The trial court also imposed restitution in the amount of $4,898.90. The defendant subsequently filed a motion for reconsideration of sentence, which was denied without reasons.

| ¡/The defendant appeals, asserting as his sole assignment of error that “[t]he Trial Court erred in that the sentences imposed [...] are constitutionally excessive and imposed without sufficient consideration of Art. 894.1.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent. An error patent is “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). After reviewing the record, we find no errors patent.

Excessiveness of Sentence

The defendant contends, in his sole assignment of error, that the trial court failed to consider the sentencing factors contained in La.Code Crim.P. art. 894.1 and that his sentence is unconstitutionally excessive.

First, we turn to the defendant’s contention that the trial court failed to adequately consider the sentencing factors delineated in La.Code Crim.P. art. 894.1. The record must indicate that the trial court adequately considered the aggravating and mitigating circumstances in particularizing a defendant’s sentence, but there is no requirement that the trial court list all of Article 894.1’s sentencing factors. State v. Jones, 09-751 (La.App. 3 Cir. 2/3/10), 29 So.3d 689, writ denied, 10-659 (La.3/25/11), 61 So.3d 655. Further, Article 894.1(C) requires that the trial court state on the record the factors taken into account and the factual basis for the sentence imposed.

A review of the record indicates that the trial court was privy to a pre-sentence report. Further, the trial court specifically noted that it considered the factors of Article 894.1, including the defendant’s age, family history, education, employment history, history of drug and alcohol problems, and participation in a |sdrug treatment program. The trial court additionally noted that there was economic harm to the victim and that the defendant had at least two prior felony convictions and four misdemeanor convictions. As a result of his plea agreement, the defendant’s sentencing exposure was' substantially reduced, as the State dropped three other pending cases, recommended that the defendant’s sentences run concurrently, and agreed not to seek the defendant’s adjudication as a habitual offender. Given these considerations and the trial court’s specific reference to the factors it considered applicable in this case, we find the record supports a finding that the trial court adequately considered Article 894.1.

Accordingly, we next examine the defendant’s assertion that the sentence imposed for jumping bail is unconstitutionally excessive. The trial court imposed a sentence of two years at hard labor, to run concurrently with the sentence imposed in the defendant’s theft case. The trial court also imposed restitution in the amount of $4,898.90, as ordered in the defendant’s theft case. See La.Code Crim.P. art. 883.2.

A panel of this court reiterated the law applicable to excessive sentence claims in State v. Planco, 96-812, pp. 8-9 (La.App. 3 Cir. 3/26/97), 692 So.2d 666, 670-71, stating:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment,” and a sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). If a reviewing court |4finds that a penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering then that sentence is excessive. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989).
However, the trial court is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).

The defendant was charged with jumping bail, a violation of La.R.S. 14:110.1. The applicable penalty for this charge is contained within La.R.S. 14:110.1(C), which states “[w]hoever commits the crime of jumping bail when the bail is to assure the presence of the defendant for those cases defined as felonies in this Title and in the Uniform Controlled Dangerous Substances Law shall be imprisoned at hard labor for not more than two years.” Therefore, the defendant received the maximum sentence.

A review of comparable cases indicates that in State v. Cruz, 438 So.2d 1251 (La.App. 3 Cir.1983), a panel of this court upheld a one-year sentence for jumping bail. Therein, pursuant to a plea agreement, the defendant pled guilty to attempted aggravated battery and jumping bail. For the attempted aggravated battery charge, the defendant was sentenced to three years, and for the jumping bail charge, the defendant was sentenced to one year, to run consecutively with his sentence for attempted aggravated battery. In reviewing the defendant’s sentence, the appellate court noted that, although the defendant was married and had two young children, he was a second felony offender, had an extensive out-of-state criminal history, and had a history of drug use.

| ¿The record here indicates that, although the defendant pled guilty to only one count of jumping bail, he failed to appear at two scheduled court appearances, one on May 10, 2010 and one on May 18, 2010. Further, the defendant has several misdemeanor convictions, as well as prior felony convictions for simple burglary and two counts of theft, aggravated burglary, and attempted second degree battery. As previously discussed, the defendant’s sentencing exposure was substantially reduced as part of his plea agreement. Further, his sentence in this case is to run concurrently with the sentence imposed in his theft case. Accordingly, we find that an adequate basis for this sentence exists in the record. The defendant’s sentence for jumping bail, a violation of La.R.S. 14:110.1, is not unconstitutionally excessive.

The defendant’s assignment of error is without merit.

DECREE

The defendant’s sentence for jumping bail, a violation of La.R.S. 14:110.1, is affirmed.

AFFIRMED.

      . The defendant has also appealed his sentence for the theft over $500 charge. See State of Louisiana v. John D. Skinner, 11-703 (La.App. 3 Cir.2/1/12), 84 So.3d 760.

      . In this regard, the district attorney stated at the defendant’s plea hearing that "the State would dismiss bill of information 79,520 and 521, however Mr. Skinner acknowledges these charges for the purpose of restitution. It is my understanding, Your Honor, that the total restitution amount was four thousand eight hundred ninety-eight dollars and ninety cents. Also, my understanding that the co-defendant, who’s paid part of that, and insurance he’s paid part of it [sic], so if there is any restitution, he’s acknowledging it for that purpose.” At the same hearing, when questioned by the trial court, the defendant agreed that the State’s recitation of the plea agreement was the agreement he had with the State.

      . In his theft case, in addition to restitution, the defendant was sentenced to seven years at hard labor and a fine of $1,500.00.


author: EZELL, Judge. GENOVESE, J.,

text:
    STATE of Louisiana v. $144,320.00, Tina M. Beers, 132 Woody Lane, Siler City, NC 27344, et al.
    No. CA 11-1137.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Phil Haney, District Attorney, Kim Michael Kidd, Walter J. Sennette, Jr., Assistant District Attorneys, St. Martinville, LA, for Plaintiff/Appellee, State of Louisiana.
    Pride Justin Doran, Quincy L. Cawt-horne, The Doran Law Firm, Opelousas, LA, for Defendants/Appellants, Tina M. Beers, Brittany Beers.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| tTina and Brittany Beers appeal the forfeiture of $144,320.00 seized from Tina Beers during a routine traffic stop, alleging the seizure was made without probable cause. For the following reasons, we agree and reverse the decision of the trial court.

The facts of this case were set out by this court in a prior decision, State v. $144,320.00 U.S. Currency, 09-954, pp. 1-2 (La.App. 3 Cir. 2/3/10), 29 So.3d 1266, 1266-67, writ denied, 10-821 (La.6/18/10), 38 So.3d 324 (footnote omitted).

On January 10, 2009, Trooper Troy Dupuis of the Louisiana State Police stopped a vehicle driven by Tina Beers for a traffic violation in St. Martin Parish, Louisiana. Tina Beers consented to a search of the vehicle. As a result of the search, the police located nine bundles of cash totaling $144,320.00 which was hidden in a compartment in the floor of the vehicle. A police dog performed a “narcotics sniff’ on the money and was alerted by the scent of narcotics on the money.
Tina Beers, after being advised of her rights, waived her rights and proceeded to answer questions posed by the police. She admitted that she was the owner of the vehicle; however, she stated that the money was not hers, and she denied having knowledge of the presence of the money in the vehicle. At that time, Tina Beers signed a Disclaimer of Ownership of Currency of Property wherein she stated that she was not the owner of the $144,320.00. The money was then seized by the state police.
On January 13, 2009, the State filed an Application for Warrant of Seizure for Forfeiture, a Letter of Designation which authorized the Louisiana State Police to seize the money and hold it subject to the forfeiture proceedings, and a Notice of Pending Forfeiture. On that same date, the trial court signed the accompanying Warrant of Seizure for Forfeiture. The Notice of Pending Forfeiture contains the service information reflecting personal service on Tina Beers on January 10, 2009. This service information is derived from the Disclaimer of Ownership of Currency of Property which was filed into the record of these proceedings and specifically states that Tina Beers waived notice of seizure and forfeiture on January 10, 2009, when she was stopped by Trooper Dupuis.
Tina Beers and Brittany Beers filed a Motion for Probable Cause Hearing Regarding Pending Notice of Forfeiture and for Release of Seized Property on January 22, 2009, asserting their ownership of the $144,320.00. The State filed a Motion to Strike | ydaim on February 19, 2009. These two motions came before the trial court on April 8, 2009, at which time the trial court took the matter under advisement. The trial court rendered Reasons for Judgment on May 7, 2009, in favor of Tina Beers.

This court went on to reverse that ruling, finding that Tina Beers had not only waived any right she may have had to notice of forfeiture proceedings, but that she obviously had also received such notice, as evidenced by her claim for the return of the money. We remanded the case to the trial court for the a determination as to whether probable cause existed for the seizure. Despite the fact that no illegal narcotics were found in the vehicle at the stop, there was no information that the seized currency was intended for drug-related use, or the fact that Tina Beers was never charged with or even alleged to have committed any drug-related crime, the trial court found that there was probable cause for the forfeiture of the cash simply because a prior magistrate had signed a warrant for the money’s seizure. From that decision, Tina and Brittany Beers appeal.

The Beers assert three assignments of error on appeal. They claim that the trial court erred in ruling probable cause existed for the seizure; that the trial court erred in striking the affidavit of Brittany Beers; and that the trial court erred in failing to grant Brittany Beers’ exception of lack of service. Because we agree with the Beers’ first assignment of error, we need not address them all.

Louisiana Revised Statutes 40:2603 states:

Any of the following conduct gives rise to forfeiture:
(1) An act or omission punishable by confinement for more than one year under R.S. 40:961 et seq. whether or not there is a prosecution or conviction related to the act or omission.
(2) An act or omission occurring outside this state, which would be subject to prosecution in the place of occurrence and would be described in Paragraph (1) of this Section if the act or omission occurred in this state, whether or not it is prosecuted in any state.
U(3) Any act or omission committed in furtherance of any violation of R.S. 40:961 et seq. which is punishable by confinement with or without hard labor, including any inchoate or preparatory offense, regardless of whether there is a prosecution or conviction related to the act or omission.

Louisiana Revised Statutes 40:2604 goes on' to state, in pertinent part:

The following property is subject to seizure and forfeiture as contraband, derivative contraband, or property related to contraband under the provision of Section 4 of Article I of the Constitution of Louisiana:
(2) All property that is either:
(a) Furnished or intended to be furnished by any person in exchange for a controlled substance in violation of R.S. 40:961 et seq.
(b) Used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, provided that a conveyance subject to forfeiture solely in connection with conduct in violation of R.S. 40:961 et seq. may be forfeited only pursuant to the provisions of this Chapter.
(3) Proceeds of any conduct giving rise to forfeiture.

In State v. Gauthier, 02-1227, p. 3 (La.App. 3 Cir. 4/17/03), 854 So.2d 910, 912, this court noted:

The initial burden in civil forfeiture proceedings is on the State to show probable cause for the forfeiture. La. R.S. 40:2612(G); State v. $29,177.00 U.S. Currency, 93-592 (La.App. 3 Cir. 2/2/94), 638 So.2d 653, writ denied, 94-1955 (La.10/28/94), 644 So.2d 378; State v. Cash Totalling [sic] $15,156.00, 623 So.2d 114 (La.App. 1 Cir.), writ denied, 629 So.2d 401 (La.1993). To support a finding that probable cause exists for forfeiture of property, the evidence presented by the State must be sufficient to form a reasonable ground for the belief that the property was connected with illegal drug transactions. State v. Cash Totalling [sic] $15,156.00, 623 So.2d 114. While the ultimate determination of probable cause is a legal question; the findings of fact which lead to a probable cause determination are subject to the manifestly erroneous-clearly wrong standard. State v. $29,177.00 U.S. Currency, 638 So.2d at 653 (on rehearing). Thus, much deference must be given to the factual findings of the trial court as long as a review of the record as a whole shows those findings were reasonably supported. Id.

[ 4Thus, the State was required to show, by credible evidence and by more than mere suspicion, a reasonable ground for belief that the currency in Tina Beers’ vehicle was drug related and/or that the vehicle was used to facilitate a drug transaction. There are indeed facts which provide a suspicion that the cash could be of less than honest origins. For example, Tina Beers claimed at the time of the seizure she was earning only $300.00 a week, and the cash was found in a floor compartment. However, the record before this court shows no credible evidence whatsoever that the currency was related in any way to any drug transaction or activity. In fact, the State failed to charge Tina Beers with, or even allege any connection with, drug-related activity or any other conduct under La.R.S. 40:2603 giving rise to forfeiture. Tina Beers was stopped for a routine traffic violation, which is not even named in the record, not for any behavior indicative of drug activity. The State admitted no drugs or paraphernalia were found at the time of the stop or at any later time. There is no evidence of any prior history of drug dealing or even use on the part of Tina Beers before this court. A narcotics dog hitting on the cash alone does not provide probable cause in light of the prevalence of currency in circulation which would cause such a strike. The fact that she was driving on I—10 or that she, a North Carolina resident, did not know the name of a hospital in Houston (her stated destination at the time of the stop), certainly do not provide evidence of any drug endeavor. Simply put, there is no credible evidence whatsoever presented by the State of any substantial connection between the seized cash and any drug activity or cause for forfeiture in the record before this court. | ¡¡Accordingly, we reverse the trial court’s finding that there existed probable cause for the forfeiture of the seized cash.

Having determined that the State must return the money, we will briefly address to whom it should be returned. Louisiana Revised Statutes 40:2612 states, in pertinent part:

C. Only an owner of or an interest holder in the property may file an answer asserting a claim against the property in an action in rem. For the purposes of this Section, an owner of or interest holder in property who has filed a claim and answer shall be referred to as a claimant.
D. The answer shall be signed by the owner or interest holder under penalty of false swearing and shall be in accordance with C.C.P. Art. 1003 and shall set forth all of the following:
(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transfer- or, and the circumstances of the claimant’s acquisition of the interest in the property.
(5) The specific provision of this Section relied on in asserting that it is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The precise relief sought.

The trial court ruled that both Tina and Brittany Beers failed to properly file claims asserting an interest in the cash as they failed to identify the date, transferor, or circumstances surrounding her alleged acquisition of the funds. We can find no error in this ruling based on the record before this court as it relates to Brittany Beers. The scant information contained in the Beers’ affidavits contain only Tina Beers’ W-2s and forms alleged to show the sales of vehicles registered in Tina Beers’ name only. Brittany Beers has provided absolutely no information | (¡whatsoever asserting any connection with any money of any kind, let alone the amount disputed herein. That assignment of error has no merit, thus Brittany Beers has no standing to assert a claim to the money as noted above.

Conversely, her sister does, however tenuously. Although Tina did initially deny knowledge of the money or its origins, she clearly rescinded those claims when she filed to recover the money. Furthermore, while the income shown in the claim’s affidavits is roughly a quarter of the amount that was seized, it is infinitely larger than the zero income shown on the part of Brittany Beers. Moreover, the money was taken directly from her possession. Though her affidavits were severely lacking, Tina Beers provided enough information that her claims should not have been stricken. The trial court’s ruling striking her claim is hereby reversed. The State has failed to show the existence of probable cause for forfeiture of the money which, under La.R.S. 40:2612(G), it would have had to show, even if no timely claim had been filed at all. Accordingly, the State is not entitled to keep that money. The cash should be returned to Tina Beers, from whom it was taken.

For the above reasons, the ruling of the trial court is hereby reversed. Costs of this appeal in the amount of $1,836.60 are assessed against the State of Louisiana.

REVERSED AND RENDERED.

GENOVESE, J., concurs and assigns written reasons.

GENOVESE, J.,

concurs and assigns the following reasons.

|,Though there was probable cause to initially issue the warrant and to seize the property (cash), I agree with the majority that there was nothing in the record to support a finding of probable cause for the forfeiture, as required by the statute. The problem I have with the majority opinion is returning the money to Tina Beers, considering the fact that she denied ownership of the money and denied having knowledge of the presence of money in the vehicle. Additionally, Tina Beers signed a Disclaimer of Ownership of Currency of Property wherein she stated she was not the owner of $144,320.00; therefore, in my view, the money should not be returned to her.

      . The floor compartment has been alleged by the State to be a "hidden compartment," but there is no description in the record to indicate that this was a nefariously created hiding place, rather than a mere floor compartment common in many mini vans.

      . Recent studies have found that a majority of the currency in circulation contains drug residue, in certain areas, up to ninety-five percent.


author: DECUIR, Judge. GENOVESE, J.,

text:
    STATE of Louisiana v. Gary Wayne WOODS.
    No. 11-799.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      James C. Downs, District Attorney, John T. Giordano, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Gary Wayne Woods.
    Gary Wayne Woods, In Proper Person, Alexandria, LA.
   DECUIR, Judge.

11 Defendant, Gary Wayne Woods, was charged by bill of information with possession of stolen goods having a value greater than $500.00. Defendant was found guilty as charged and was sentenced to serve five years at hard labor. He is now before this court asserting three assignments of error. He contends the evidence was insufficient to support his conviction, the trial court erred in allowing the State to refresh a witness’s memory with evidence not provided to defense counsel during discovery, and his sentence is excessive.

ASSIGNMENT OF ERROR NUMBER ONE & PRO SE ASSIGNMENT OF ERROR:

In his first assignment of error, Defendant contends there was insufficient evidence to find him guilty of possession of stolen goods valued at over $500.00. In order to sustain the Defendant’s conviction, the State had to prove: “(1) the defendant had the intent to possess, procure, receive, or conceal; (2) a thing of value; (3) which has been the subject of a robbery or theft; and, (4) under circumstances which indicate the offender knew or had good reason to believe that the thing was stolen.” State v. Gordy, 07-1032, p. 2 (La.App. 3 Cir. 3/12/08), 981 So.2d 45, 47.

Jimmy Deramus, the owner of Silver Dollar Pawn Shop and Jimmy Deramus Properties, testified that he was contacted by police in August 2009 and was told they were investigating an employee of his, Daniel Gonzales, who had possibly been stealing from him. Gonzales worked for Deramus in 2009 at both businesses and at Deramus’s home. Deramus subsequently identified two computers that were stolen from his home and two camcorders which had been taken from the pawn shop.

Investigating officers testified that Daniel Gonzales admitted stealing from Dera-mus. Gonzales was arrested, and he implicated Defendant as one of the | ^persons in possession of the stolen items. Defendant was located and gave a statement to police, freely admitting he had the items at issue herein. Defendant’s home was searched and a Dell computer, a Hewlett Packard computer, a Panaramic digital camcorder, and a Mitsubishi camcorder were found under the Defendant’s bed. He stated to police that he purchased all four items on the street for $85.00, but he thought the items were worth over $4,000.00. When asked whether he thought the items had been stolen, Defendant replied: “That’s the first thing crossed my mind you know, I — I live on that street. I knew anytime somebody come to me like that with something for a little price like it’s a possibility they are stolen_ But it could — could have been out of his house you know.”

The two computers and camcorders were returned to Deramus by police. Der-amus testified that he still owned the Dell laptop, which he identified in court and which he had purchased for $365.00. It was not for sale in the pawn shop but was being used by a family member. The serial number on the HP computer had been scratched out, so it was sold for parts. He testified that it originally cost $195.00. Deramus further testified that police returned a Mitsubishi camcorder that cost $80.00 and a Panaramic digital camcorder that also cost $80.00 but had been sold for $399.00 and was on layaway at the time of the theft. The other had a retail price of $360.00. Deramus’s testimony was corroborated by his daughter, Tammy Deramus Credeur, who managed the pawn shop.

In this appeal, Defendant asks this court to consider the conflicting testimony regarding the working condition of the computers, the fact that the HP computer and the camcorders were not presented at trial, and the inconsistent testimony regarding the physical characteristics of the computers. While there may have been some variation in the witnesses’ descriptions of the stolen items, |3these discrepancies are irrelevant. Defendant admitted his purchase and possession of the items, they were recovered in his home, and they were directly linked to the victim’s business records. Our review of the record shows the State proved the items at issue were possessed by the Defendant, they had a value greater than $500.00, and they were stolen from Deramus’s home and pawn shop. The only issue in this case is whether the Defendant knew or had good reason to believe the items were stolen.

Defendant argues on appeal that although he got a great deal when he purchased the items at issue, there is no indication that he knew the items were stolen. Defendant states that he did not know Gonzales, who was unavailable at trial, and had no way of knowing why he chose to sell the computers and camcorders. While it is true that the items were found by police under Defendant’s bed, there is no evidence that Defendant actively tried to hide the items. In fact, he willingly allowed the investigating officers into his home where he told them the items were stored. Defendant contends the State failed to prove he knew or should have known the items were stolen.

In support of his claim that the evidence was insufficient to support his conviction, appellate counsel cites the following from State v. Chester, 97-1001, pp. 2-3 (La.12/19/97), 707 So.2d 973, 974:

In Louisiana, the “mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else.” State v. Ennis, 414 So.2d 661, 662 (La.1982); State v. Nguyen, 367 So.2d 342, 344 (La.1979); State v. Walker, 350 So.2d 176, 178 (La.1977). The state must therefore prove the defendant’s guilty knowledge as it must every other essential element of the offense. Ennis, 414 So.2d at 662. Nevertheless, jurors may infer the defendant’s guilty knowledge from the circumstances of the offense. See Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973.)

In the present case, the State presented no evidence of the circumstances under which Defendant came into possession of the stolen goods. The State Lproved only that Defendant purchased the goods “on the street.” The State also presented no direct or circumstantial evidence associating Defendant with Gonzales or with the theft admittedly committed by Gonzales.

In State v. Ennis, 414 So.2d 661 (La.1982), the supreme court held that an unusually low price may give a person reason to suspect that items were the subject of a theft, but mere suspicion, not rising to the level of certainty required to form a belief is not enough to prove a defendant knew or had reason to know the property had been stolen. The court stated:

In State v. Walker, 350 So.2d 176 (La.1977), this court held that “ * * * R.S. 14:69 does not create any presumptions and the State must prove that the accused actually knew or had good reason to believe that the property had been stolen before a conviction under La. R.S. 14:69 can be obtained.” We have also held that mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. State v. Nguyen, 367 So.2d 342 (La.1979); State v. Walker, supra, at 178.
However, in order to obtain a conviction of receiving stolen things, the state must prove that the defendant knew or had good reason to believe the thing to be stolen. Mere suspicion, not rising to the level of certainty required to form a belief, is not enough. See, W. LaFave and A. Scott, Criminal Law, § 93, at 685, 686 (1972).

Id. at 662-63.

By contrast, in State v. St. Romain, 505 So.2d 223 (La.App. 3 Cir.), writ denied, 508 So.2d 86 (La.1987), this court had evidence of the circumstances under which the defendant came into possession of the stolen goods. We discussed the pivotal question of whether the defendant knew or had reason to believe a motor had been stolen:

In the present case, the defendant was a commercial fisherman and had been a fisherman, by his own testimony, for 41 years. The defendant had a boat and trailer which he knew had only minimal value. In fact, he testified that he had paid Mr. Weil $200.00 for the boat and trailer earlier, but that the bill of sale stated the price as being $50.00. Defendant also testified that he knew that Mr. Weil, his cojdefendant,5 had an old green 40 horsepower motor. Yet the defendant asked no questions of Mr. Weil when the latter came over with the relatively new blue Mariner motor. Weil and the defendant then drove from Marksville to Lafayette where they sold this motor, along with the defendant’s relatively valueless boat and trailer, for $1,000.00, of which defendant received one-half. As in [State v.] Honeycutt, [438 So.2d 1303 (La.App. 3 Cir.), writ denied, 434 So.2d 585 (La.App. 1 Cir.1983),] facts known to the defendant at the time of the transaction are such that he had good reason to believe that the motor had been stolen. There is no reasonable hypothesis of the defendant’s innocence which negates a finding that the defendant had good reason to believe that the motor had been stolen.

Id. at 226.

The evidence presented by the State did not link Defendant to the theft of the items at issue. There was no evidence regarding the circumstances of how Defendant came into possession of the items other than his statement that he purchased them for $35.00. The evidence presented to the jury consisted of the following details: Defendant bought the items on the street, Defendant’s statement that it crossed his mind that the items may have been stolen, a disproportionately small sale price, and the fact that the items were found under Defendant’s bed. Based on the evidence presented to the jury, we find the evidence is insufficient to support Defendant’s conviction.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE:

Defendant’s assignments of error concerning evidentiary matters and an allegedly excessive sentence are rendered moot by our decision on the issue of insufficiency of the evidence.

DECREE

The Defendant’s conviction and sentence are hereby reversed, vacated, and set aside.

CONVICTION REVERSED AND SENTENCE VACATED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

hln this case, the majority reverses a jury verdict finding Defendant guilty of possession of stolen goods valued at over $500.00. In reversing the jury verdict, the majority opines that “the evidence is insufficient to support Defendant’s conviction.” I disagree.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, [00-674, p. 9 (La.6/29/01) ], 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, [796 So.2d at 657].

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. de nied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

In accordance with the Jackson standard of review, we are bound to consider the evidence in a light most favorable to the prosecution. By his own statement and admission, when questioned by police, Defendant stated: “That’s the first lathing crossed my mind ... I live on that street. I knew anytime somebody come to me like that with something for a little price like it’s a possibility they are stolen....” In his statement to the police, Defendant admitted that he had possession of the items at issue, that he purchased all four items on the street for $35.00, and that he knew the items were worth over $4,000.00. In a light most favorable to the prosecution, there was more than ample evidence presented to the jury showing that Defendant knew or had good reason to believe that these items were stolen.

Consequently, I would affirm Defendant’s conviction and sentence in all respects.


author: MADELEINE M. LANDRIEU, Judge.

text:
    1026 CONTI CONDOMINIUMS, LLC v. 1025 BIENVILLE, LLC.
    No. 2011-CA-1055.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2012.
    Rehearing Denied March 7, 2012.

      Stephanie Ackal, Stephanie Ackal, LLC, Lafayette, LA, for Plaintiff/Appellee.
    Galen S. Brown, Hamilton & Brown, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe defendant, 1025 Bienville, L.L.C. [hereinafter “Bienville”] appeals the district court’s granting of summary judgment in favor of the plaintiff, 1026 Conti Condominiums, L.L.C. [hereinafter “Con-ti”]. For the reasons that follow, we reverse the granting of summary judgment and remand to the district court for trial.

FACTS AND PROCEEDINGS BELOW

On December 23, 2009, Conti filed suit seeking to enjoin its neighbor, Bienville, from interfering with Conti’s right to use a certain alley and courtyard that are accessible from both properties. Conti alleged that it had acquired its property from Bruno Properties [“Bruno”] on June 2, 2006, by means of a cash sale that included the right to use the adjoining alley and courtyard, which were owned by Bruno at that time. Conti alleged that its deed was recorded in the Orleans Parish Conveyance Records on June 15, 2006. Approximately one week later, Bruno sold the alley and courtyard, along with all its remaining property in the area, to Bien-ville. For approximately three years, both parties used the alley and courtyard for access, parking, storage of construction materials and collection of debris while work progressed on the construction of their respective projects (condominiums by Conti and a retail/ office mall by Bien-ville). However, in |2March of 2009, according to Conti’s petition, Bienville removed all materials from the alley and courtyard, had the courtyard striped for parking, and erected signs prohibiting its use by Conti or others. Conti further asserted that its deed from Bruno had established a predial servitude in favor of its property, as the dominant estate, over the alley and courtyard, the servient estate, owned by Bienville. Conti therefore sought a preliminary injunction enjoining Bienville’s continued interference with Conti’s servitude and a declaratory judgment confirming Conti’s legal, non-exclusive right to use the alley and courtyard in question.

Following an evidentiary hearing, the district court on May 11, 2010, granted a preliminary injunction restraining Bien-ville from interfering with Conti’s “right to use its servitude” upon Bienville’s alley and courtyard (designated as “Lot AA” and further described with particularity on a plat attached to Conti’s deed). Bienville was also ordered to remove all signs and obstructions prohibiting Conti’s use of Lot AA. The transcript of the hearing reflects that the trial judge reasoned as follows:

“There is an existence of some type of servitude that at the very least gives a right of passage....
The question is what type of servitude did the parties intend to create since it’s not listed in the title. And that’s, of course, Civil Code Article 749. It instructs the Court to look to the intent of the parties when the title is silent. Such intent will be elicited at trial.

On March 9, 2011, Conti filed a motion for summary judgment seeking a declaration as to the existence, extent and type of servitude granted. In its motion, Conti argued that the existence and location of the servitude were clearly established in its deed, and that the parties’ intent as to the type of servitude could be conclusively established by looking at the manner in which the parties had actually used the servient estate from the time Conti acquired its property in 2006 |suntil Bienville disturbed Conti’s use in March, 2009. In support of its motion, Conti submitted certified copies of the following: (1) the January, 2000, act of sale from Holzer Sheet Metal Works to Bruno; (2) the June 2, 2006 act of sale from Bruno to Conti; (3) the June 23, 2006 act of sale from Bruno to Bienville; (4) an 1836 survey (the “Pilie Plan”), which designates a portion of the alleged servient estate as “alley in common;” (5) a 1937 Gilbert & Kelly survey designating a part of the alleged servient estate as “common alley” and the remainder as “common yard;” and (6) the 1938 act of sale whereby Bruno’s predecessors acquired the property. Conti also submitted the transcript of the trial court’s April 29, 2010 evidentiary hearing on the preliminary injunction request, which included the testimony of four individuals: Mr. Robert O’Brien, a managing member of Conti; Mr. David Smith, the real estate agent who represented Conti in its purchase from Bruno; Mr. Frank Bruno, the representative of Bruno Properties; and Mr. Romero Marcello, a managing partner of Bienville. Finally, Conti submitted Bien-ville’s answers to its interrogatories and request for production.

Bienville opposed the summary judgment arguing first that there was a genuine issue of material fact as to whether any servitude exists because: (1) The language of Conti’s deed is too vague to grant a servitude; and (2) Conti’s use of Bienville’s alley and courtyard during the three-year construction phase was pursuant to Bien-ville’s express permission. Alternatively, Bienville asserted that even assuming the existence of the servitude, there was a genuine issue of material fact with regard to whether that servitude included the right to park in the courtyard. In support of its opposition, Bienville relied upon the testimony of Mr. Romero Marcello from the preliminary injunction hearing. Bien-ville also submitted the April 17, 2006 Purchase Agreement between Bruno and Bienville, as |4well as affidavits of Mr. Frank Bruno and Mr. Vincent Marcello regarding their intent in June, 2006, at the time Bruno conveyed a portion of its property to Conti and then conveyed the remainder to Bienville a week later.

On April 28, 2011, the trial court heard the matter and granted Conti’s motion for summary judgment from the bench. On May 13, 2011, the trial court issued a written judgment acknowledging a predial servitude of “access, passage and parking” (but not including the right to store equipment and/or materials) on Bienville’s alley and courtyard for the benefit of Conti’s property as the dominant estate. Bienville now appeals that judgment.

ISSUES

Bienville first contends that the trial court erred by concluding that a servitude exists because the language in Conti’s deed is legally insufficient to create one. Alternatively, Bienville asserts that the trial court erred by granting summary judgment because there are genuine issues of material fact remaining with regard to: (1) Whether Bruno intended to grant any servitude to Conti; (2) Whether Conti’s use of the courtyard during its construction phase was pursuant to its servitude or pursuant to Bienville’s express permission; (3) Whether the servitude, assuming one was created, should be interpreted to include parking and if so, whether the right of parking extends to the entire courtyard or to only a portion of it. Conti responds by arguing that the trial court correctly granted summary judgment because: (1) Conti’s deed clearly and unambiguously grants a servitude and designates its boundaries and location; (2) The parties’ intent is irrelevant because the written deed is unambiguous and was recorded prior to Bienville’s purchase of its property; (3) The trial court correctly determined the type of servitude granted by considering only the manner in which the parties had | Sused the servient estate from the time of Conti’s purchase in 2006 until Bienville’s disturbance of Conti’s use in 2009.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 2006-363, p. 3 (La.11/29/06), 950 So.2d 544, 547. Thus, the reviewing court must determine whether there is any genuine issue of material fact and whether the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C); Cressionnie v. Liberty Mutual Ins. Co., 98-0534, p. 3 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366.

For purposes of summary judgment, a “genuine issue” is a triable issue, or one as to which reasonable persons could disagree. Hogg v. Chevron USA, Inc., 2009-2632, p. 6 (La.7/6/10), 45 So.3d 991, 997. In determining whether an issue is genuine, a court ruling on a motion for summary judgment should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Property Ins. Ass’n of Louisiana v. Theriot, 2009-1152, p. 3 (La.3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consolidated Government, 2004-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48). The motion for summary judgment is to be decided based upon the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits submitted. La. C.C.P. art. 966(B). The taking of testimony is therefore not appropriate. Rapp v. City of New Orleans, 95-1638, p. 3 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, 437. In deciding the motion, the court must assume that all affiants are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Moreover, despite the legislative mandate that summary [(¿judgments are favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

DISCUSSION

In the instant case, the trial court concluded that there is a predial servitude of access, passage and parking over Bien-ville’s alley and entire courtyard in favor of Conti’s property. On appeal, Bienville first argues that the language of Conti’s deed is legally insufficient to create any servitude. We disagree.

In determining that some type of servitude exists, the trial court relied solely upon the authentic evidence submitted by Conti, i.e., the certified copies of the acts of sale from Bruno to Conti and from Bruno to Bienville, both of which were recorded in the conveyance records of Orleans Parish. Reviewing that same evidence, we note that the June 2, 2006 act of sale from Bruno to Conti, which was recorded on June 16, 2006, describes the property being conveyed as follows:

That certain piece or portion of ground, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in the Second District if [sic] the City of New Orleans, State of Louisiana, in Square 97, bounded by Conti, North Rampart, Bienville and Burgundy Street; said lot of ground is designated by the No. 3 on plan drawn by L.J. Pilie, Surr., dated November 14, 1836, deposited in the office of Felix Grima, Notary Public, said lot measures 25 feet, 5 inches, front on Conti Street, by a depth of 119 feet, 4 inches and 4 lines, bounded on the side towards Burgundy Street by Lot No. 2 and on the other side towards North Rampart Street by an alley 10 feet, 3 inches, 4 lines in width, with the right to use said alley as well as of a “court” figured on said plan and common to Lots 1, 2, and 3 and other property. For greater certainty, reference is made to sketch of survey by Gilbert and Kelly, Surveyors, dated October 8, 1937, annexed to an act before Allain C. Andry, Jr., Notary Public, dated June 15, 1938. (Emphasis added).

17Subsequently, on June 23, 2006, Bienville purchased Bruno’s remaining property, including “lot AA,” which is the “court” or courtyard in question. In that act of sale, the property description of “Lot 8,” one of the lots purchased that is adjacent to the alley in question, includes the language: “having use in common with lots 1, 2, and 3 on Conti Street of an alleyway....” In addition, the 1836 Pilie Plan, referred to in Conti’s deed, identifies the alley and courtyard in question as “Common Alley,” and “Common Yard.”

In view of the documents submitted, we agree with the trial court that when Conti purchased the property designated as “Lot 3,” the language in the deed specifically conveying also the “right to use said alley as well as ... a court figured on said plan and common to Lots 1, 2, and 3” is sufficiently clear and unambiguous to create a servitude in favor of Conti’s property over the alley and courtyard at issue. Under Louisiana law, the words of a contract are to be given their generally prevailing meaning. La. C.C. art. 2047. The term “right of use” is one generally associated with a servitude. See Robert Investment Co., Inc. v. Eastbank, 496 So.2d 465, 470 (La.App. 1st Cir.1986) (wherein the court found no servitude was established, specifically noting that neither the act of sale, survey or site plan contained the words “servitude,” “right of use” or “common.”). Louisiana Civil Code article 731 states: “A charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated.” Article 733 further provides: “When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.” | sMoreover, the Civil Code indicates that the failure of the act of sale to define the type of servitude does not preclude the creation of a servitude.

Bienville argues that there exists a genuine issue of material fact with regard to whether a servitude exists because Mr. Bruno testified at the preliminary injunction hearing and by affidavit that he did not intend to create a servitude or to convey any rights over Lot AA (the courtyard) to Conti. However, the trial court correctly disregarded all evidence of the parties’ intent on the basis of Louisiana Civil Code article 1848, which provides that “testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act.” In refusing to consider such evidence, the trial court also relied upon Civil Code article 2442, which provides that an act of sale of immovable property becomes effective against third parties (such as Bienville in the instant case) when the act is filed for registry. Because the act of sale from Bruno to Conti was recorded prior to Bruno’s sale to Bienville, Bienville was presumed to know what property had been conveyed in the' prior sale, including the conveyance to Conti of the right to use the courtyard that Bienville was acquiring. Under these circumstances, we cannot say that the trial court erred by finding that a servitude exists or by refusing to consider evidence of intent on this issue.

Alternatively, Bienville argues that summary judgment was improperly granted because there is a genuine issue of material fact as to the type of servitude created — specifically, as to whether the parties intended Bienville’s right of use to include the right to park in the courtyard. Louisiana Civil Code article 749 states:

[9If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.

In determining that Conti’s servitude includes the right to park, the trial court relied upon the fact that, since Bienville’s purchase in 2006, both parties have used the alley and courtyard for parking of construction vehicles and supply trucks, as well as for hauling and storage of construction materials and debris, while their respective construction projects were ongoing. On appeal, Conti argues that the trial court was correct in adopting this prior use as the exclusive indicator of the parties’ intent, despite Bienville’s submission of other, conflicting evidence regarding their intent. In support of this contention, Conti cites this court’s opinion in De Felice Land Corporation v. Citrus Lands of Louisiana, Inc., 330 So.2d 631 (La.App. 4 Cir.1976) and several cases from other circuits, namely: Harris v. Darinn Corporation, 431 So.2d 441 (La.App. 1st Cir.1983); Watson v. Eaglin, 606 So.2d 87 (La.App. 3d Cir.1992); and Keeley v. Schexnailder, 97-1609 (La.App. 3 Cir. 4/1/98) 708 So.2d 838. These cases stand for the general proposition that, in order to determine the parties’ intent with regard to the manner or extent of a predial servitude, Louisiana courts have consistently referred to the actual manner of use and/or location which the parties have employed prior to the arising of the dispute. However, these cases cannot serve as precedent for our decision herein because we are reviewing the granting of summary judgment, whereas they involve appellate review of judgments rendered after trial on the merits. Thus, in the instant case we may affirm the trial court’s judgment only if we find, based upon all the evidence properly submitted, that there is no dispute between the parties as to whether they intended Conti to have the right to park on Lot AA or on any portion of it.

1 ^Bienville contends that the evidence it submitted in opposition to the motion for summary judgment unequivocally demonstrates the existence of a factual dispute regarding whether the parties’ intended Conti’s right of use to include the right to park in the courtyard. Bienville cites the affidavit of Mr. Bruno, who specifically averred that he “did not intend to grant Conti Condominiums any right of use to park vehicles in Lot AA.” This statement directly conflicts with the testimony of Mr. O’Brien, who represented Conti at the preliminary injunction hearing, that he would not have purchased the property from Bruno had he not believed that Conti’s eventual tenants/condominium owners would have the right to park in Lot AA.

Bienville also argues that the manner in which the parties used Lot AA during the construction of their respective building projects (a retail/office mall by Bienville and a condominium complex by Conti) cannot accurately reflect the parties’ intent regarding the permanent use of the lot once those projects were completed. In support of this argument, Bienville cites the affidavit of Vincent Marcello, also submitted in opposition to the summary judgment motion. Mr. Marcello averred that he had given express permission to Mr. O’Brien for Conti to use Lot AA during its renovation phase for delivery and storage of materials and equipment, loading and unloading of construction vehicles, removal and storage of debris, as well as express permission to temporarily use the alley and a specific portion of Lot AA for the parking of vehicles utilized in the renovation. He further averred that Bienville “was happy to grant permission” to Conti to use Lot AA during the renovation period because “Renovation of the 1026 Conti property would increase the value of Bien-ville’s property.” According to Mr. Mar-cello, another reason Bienville granted this permission to Conti was that Bienville was | n renovating its own property at the same time, and that those in charge of Bienville “wanted to be good neighbors.” ■

Finally, Bienville relies upon Columbus Metairie Properties, LLC v. Metairie Hotel Investors, 2002-159 (La.App. 5 Cir. 7/30/02), 823 So.2d 1029, which, unlike the cases cited by Conti, does involve appellate review of the granting of partial summary judgment as to the scope of a predial servitude. In that case, the plaintiff, Columbus, filed suit seeking to prevent the defendant, MHI, from removing a curb, fencing and landscaping from a privately-owned public road in order to create access from that road to MHI’s property, upon which MHI intended to construct a hotel. Columbus’s successor in title, the Galleria Partnership, had recorded in 1988, an act of destination granting to certain adjoining properties a servitude of public access over the portion of its property known as “Galleria Boulevard.” MHI had subsequently leased property on the western side of Galleria Boulevard, across from the lots mentioned in the act of destination. MHI brought a motion for partial summary judgment seeking a declaration that Galleria Boulevard was a public road, and that MHI therefore had the right to remove curbing, fencing and landscaping in order to create a driveway accessing the road from MHI’s proposed hotel. The trial court granted partial summary judgment, declaring that Galleria Boulevard is a public street, although privately owned, and that MHI had the right to remove curbing, fencing and landscaping as necessary to construct a driveway from its property to the road. Columbus appealed, and the Fifth Circuit reversed the summary judgment and remanded for trial. The appellate court found that the affidavit of Mr. Keary Everitt, who had drafted and signed the act of destination on behalf of the Galleria Partnership, created a genuine issue of fact as to the scope of the servitude because 11gMr. Everitt had averred that it was never his intention to establish a servitude for the benefit of any parcel of property adjoining Galleria Boulevard other than those properties specifically named in the act. Id., pp. 8-9, 823 So.2d at 1033.

Similarly, in the instant case, we find that the affidavit of Mr. Bruno demonstrates the existence of a genuine issue of material fact as to the scope of the servitude granted to Conti, specifically, as to whether the servitude includes the right to park on Lot AA (the courtyard) or on any portion of it. Moreover, we also find that the affidavit of Mr. Marcello creates a genuine issue of material fact concerning whether the use the parties made of the alley and courtyard from 2006 until 2009, during their mutual construction phase, should be considered typical and therefore determinative of the parties’ intent with regard to the scope of the servitude. By law, the existence of a genuine issue of material fact precludes summary judgment. Accordingly, we reverse the district court’s granting of summary judgment and remand the matter to that court for trial on the merits.

CONCLUSION

For the reasons stated, we reverse the judgment of the trial court granting summary judgment and remand the matter to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . See La. C.C. art. 749, quoted and discussed infra.

      . The evidence was proffered and is a part of the record on appeal.