author: CHARLES R. JONES, Judge. BELSOME, J., BONIN, J.,

text:
    Ellis FALGOUST and Almarine C. Falgoust v. AVONDALE INDUSTRIES, INC., Metropolitan Life Insurance Company, Fibreboard Corporation, Cajun Insulation, Anco Industries, Inc., Flexitallic, Inc., Combustion Engineering, Inc., A.P. Green Industries, Inc., Hopeman Brothers, Inc., Individually, et al.
    No. 2009-CA-1671.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 2010.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Roussel & Clement, La Place, LA, for Almarine Cortez Falgoust, Vanessa Falgoust Loupe, Rosetta Falgoust Dempster, Darren Falgoust and Aaron Falgoust.
    Kaye N. Courington, Blaine A. Moore, Louis O. Oubre, Duncan Courington & Rydberg, New Orleans, LA, for Hopeman Brothers, Inc.
    Gary A. Lee, Richard M. Perles, A. Ann Cates, David L. Hoskins, Steven E. La-coste, Lee Futrell & Perles, L.L.P., New Orleans, LA, for Northrop Grumman Shipbuilding, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, and Judge PAUL A. BONIN).
   CHARLES R. JONES, Judge.

h The appellant, Northrop Grumman Ship Systems, Inc., formerly known as Avondale Industries, Inc., Avondale Shipyards, Inc., and Avondale Marine Ways Shipbuilding (“Northrop Grumman”), appeals an adverse judgment in which the district court granted summary judgment in favor of the appellees, the Falgousts and Hopeman Brothers, Inc. We reverse and remand.

This is an asbestos suit in which the appellees, the Falgousts alleged that Ellis Falgoust, now deceased, contracted meso-thelioma as a result of occupational exposures to asbestos while working for two subcontractors at Northrop Grumman. The defendant, cross plaintiff, and appellant, Northrop Grumman, and the cross-defendant and co-appellee, Hopeman Brothers, are among the numerous manufacturers, suppliers, employers, and premises owners named as defendants.

Mr. Ellis Falgoust was never an employee of Northrop Grumman. He worked at Northrop Grumman’s main shipyard at various times in 1965 and 1966 as an employee of Hopeman Brothers, which was a “joiner” subcontractor at |2Northrop Grumman. Mr. Falgoust’s last day of employment with Hopeman Brothers was October 22,1966.

Mr. Ellis Falgoust and his wife, Alma-rine, filed suit in Orleans Parish against the named defendants on July 25, 2000. However, Mr. Falgoust died shortly thereafter on August 17, 2000. After his death, the suit was amended to assert survival and wrongful death claims on behalf of his survivors.

In June 2002, Northrop Grumman filed a cross-claim against Hopeman Brothers for contractual defense and indemnity based on the provisions of the joiner subcontract between them. Northrop Grumman argued that pursuant to the contracts, which contained the hold harmless agreements, Hopeman Brothers was bound to fully defend and indemnify Northrop Grumman for the claims asserted by the Falgousts. Northrop Grumman’s motion for summary judgment on that cross-claim was denied in August of 2002.

Some time in 2004, Hopeman Brothers settled with the Falgousts and was later dismissed as a defendant in the principal demand. Hopeman Brothers thereafter remained as a party to this action only in its capacity as the cross-defendant in Northrop Grumman’s incidental action for contractual defense and indemnity.

On July 31, 2009, Hopeman Brothers and the Falgousts filed a joint motion for summary judgment on Northrop Grumman’s cross-claim against Hopeman | ^Brothers for contractual defense and indemnity. The subject of the joint motion for summary judgment was that Northrop Grumman could produce no written defense and indemnity agreement that applied specifically to the work done by Ellis Falgoust as a Hopeman Brothers’ employee at Northrop Grumman in 1965 and 1966. Hopeman Brothers and the Fal-gousts asserted that Northrop Grumman could not meet its burden of proof at trial on an essential element of its cross-claim.

In its opposition, Northrop Grumman first challenged the Falgousts’ right, interest, and standing to seek summary judgment in their own favor, or in favor of Hopeman Brothers, on a cross-claim to which they were not parties, and in which they had no interest. As to Hopeman Brothers, Northrop Grumman submitted evidentiary materials showing: (1) that Hopeman Brothers performed work on only six vessels at Northrop Grumman’s main yard while it employed Ellis Falgoust in 1965 and 1966; (2) that all of the work performed on those vessels by Hopeman Brothers was performed under Job No. C3-100, and pursuant to Purchase Order No. FE631; and (3) that Purchase Order No. FE631, which constituted the contract between Hopeman Brothers and Northrop Grumman, expressly incorporated a defense and indemnity provision that obligated Hopeman Brothers to defend and indemnify Northrop Grumman against any and all claims arising out of the injury or death of anyone, including the employees of either company, even if caused by the negligence of Northrop Grumman.

14Additionally, Northrop Grumman filed a motion to strike the summary judgment motion, primarily to strike the Falgousts as movers on the motion, and to preclude the Falgousts from arguing the motion at the scheduled hearing. However, Northrop Grumman’s motion to strike with respect to the Falgousts was denied as untimely filed.

Hopeman Brothers and the Falgousts replied to Northrop Grumman’s opposition, arguing that the contractual documents introduced by Northrop Grumman could not be considered by the court because they were insufficiently authenticated, were not originals, and were incomplete.

At argument on September 23, 2009, the district court granted the joint motion for summary judgment. The district court ruled that the contractual documents submitted by Northrop Grumman were inadmissible and could not be considered in opposition to the summary judgment motion because they were not sufficiently authenticated, and because they were duplicates rather than originals. A written judgment was signed on October 2, 2009. Thereafter, the trial date was continued, and discovery was reopened. The matter was set for trial on May 10, 2010.

Northrop Grumman’s devolutive appeal of the district court judgment was made final on October 9, 2009, thereby divesting the district court of jurisdiction over all matters related to the appeal. Subsequently, on October 30, 2009, Hopeman Brothers produced more than 25,000 pages of its archival business 15records, consecutively Bates numbered DCR-01 through DCR-025394, in partial response to a Notice of 1442 deposition of Hopeman Brothers, and subpoena duces tecum issued by Northrop Grumman in an unrelated asbestos case entitled Gwen Robert v. Garlock, Inc., et al., bearing number 68,-159 on the Civil Docket of the 29th Judicial District Court, Division C, in St. Charles Parish. In connection with that production, Hopeman Brothers executed a formal partial return on the subpoena duces te-cum in which Hopeman Brothers certified, stipulated, and admitted that the Hopeman Brothers Documents “are true and correct photographic duplicates of original documents which are authentic business records of Hopeman Brothers, Inc. within the meaning of the Louisiana Code of Evidence, and that said Hopeman Brothers Documents are admissible, and may be used for all purposes, in lieu of, and to the same extent as, the originals.”

In the course of making that production, counsel for Hopeman Brothers discovered that the contractual documents submitted and relied upon by Northrop Grumman in opposing the summary judgment motion at issue in this appeal, and challenged as inadmissible by Hopeman Brothers in the district court, are, in fact, included among, and constitute part of, the authenticated Hopeman Brothers Documents produced in the Gwen Robert matter.

| fiIn view of that discovery, counsel of record for Hopeman Brothers executed an affidavit formally stipulating that the contractual documents relied upon by Northrop Grumman,

[A]re authentic within the meaning of La.Code Ev. art. 901 A; are business records of Hopeman Brothers, Inc. within the meaning of La.Code Ev. art. 803(6); and are true and correct duplicates of original business records of Hopeman Brothers, Inc. that have been in existence for more than 30 years, that cannot as a practical matter now be located and produced and that may be lost or destroyed, because of the passage of time.

Hopeman Brothers and Northrop Grumman filed a joint motion in this Court seeking to supplement the record on appeal with the aforementioned documents.

In the instant appeal, Northrop Grumman raises the following assignments of error:

1. The district court erred when it granted summary judgment in favor of Hopeman Brothers on the grounds that the contractual documents adduced by Northrop Grumman in opposition to the motion were insufficiently authenticated, and were duplicates rather than originals, and were thus erroneously disregarded by the district court;
2. The district court erred when it granted summary judgment in favor of the Falgousts on a cross-claim for contractual indemnity which is not asserted against plaintiffs and to which the plaintiffs are not parties, and in which they have no demonstrated or discernable interest.

DISCUSSION

Related to the standard of review for summary judgments, this Court in Mitchell v. Villien, 2008-1470 (La.App. 4 Cir. 8/26/09), 19 So.3d 557, wrote:

Appellate courts review summary judgments de novo and utilize the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge Parish, 05-1418, pp. 25-26 (La.7/10/06), 935 So.2d 669, 686; Brungardt v. Summitt, 08-0577 at p. 5 (La.App. 4 Cir. 4/8/09), 7 So.3d 879, 883.
A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Kennedy, 05-1418, p. 25 (La.7/10/06) 935 So.2d 669, 686, citing La. C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of civil actions and is now favored. La. C.C.P. art. 966(A)(2). Id., 05-1418, pp. 25-26, 935 So.2d at 686.
Pertinent to the inquiries before us regarding the allocation of burdens of proof on a motion for summary judgment, La. C.C.P. art. 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
|8A “genuine issue” is a “triable issue,” or one on which reasonable persons could disagree. Kennedy, 05-1418 at p. 26, 935 So.2d 686-687, citing Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. “A ‘material fact’ is a fact, the existence or non-existence of which may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Id., 2008-1470, pp. 5-6, 19 So.3d at 562.

In its first assignment of error, Northrop Grumman argues that the motion for summary judgment was based on the premise that Hopeman Brothers and the Falgousts were asserting that there was an absence of factual support for an essential element of Northrop Grumman’s cross-claim against Hopeman Brothers — particularly, as to the existence of a contractual defense and indemnity obligation applicable to the work done by Mr. Falgoust as a Hopeman Brothers’ employee at Northrop Grumman in 1965 and 1966. See La.Code Civ. P. art. 966(C)(2). Northrop Grumman asserts that given the evidentiary submissions it made in opposition to that motion, Hopeman Brothers and the Falgousts argued only that the contractual documents submitted and relied upon by Northrop Grumman could not be considered, due to the fact that they were not sufficiently authenticated because they were not originals, and because they were incomplete.

However, Northrop Grumman now argues that the judgment of the district court should be reversed for several reasons. First, that Hopeman Brothers has acknowledged in its partial return on the subpoena duces Tecum in the Given Robert matter, and in the affidavit of its counsel of record, Kaye N. Courington, that the contractual documents produced by Northrop Grumman in opposition to the summary judgment motion in the district court, were subsequently discovered 19among the archival business records of Hopeman Brothers. Northrop Grumman asserts that the records are, in fact, authentic within the meaning of La.Code Evid. art. 901(A). Second, they argue that the subject records are business records of Hopeman Brothers within the meaning of La.Code Evid. art. 803(6). Therefore, Northrop Grumman maintains that these documents are true and correct photographic duplicates of original documents which are business records of Hopeman Brothers that have been in existence for more than 30 years. See La.Code Evid. art. 901B(8). And, these documents, as argued by Northrop Grumman, cannot now be located and produced, pursuant to La. C. Evid. art. 1004, sections (1), (3), & (5). Northrop Grumman thus argues that the | mdocuments were produced by Hopeman Brothers in the Gwen Robert matter under the express stipulation that they “are admissible, and may be used for all purposes, in lieu of, and to the same extent as, the originals.”

Northrop Grumman contends that issue of authenticity could not be brought to the attention of the district court because they arose after the court was divested of jurisdiction. These documents were brought to the attention of this Court via the Joint Motion To Supplement Record on Appeal filed by Northrop Grumman and Hopeman Brothers.

Northrop Grumman argues that the Louisiana Code of Evidence provides that “[t]he requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” La.Code Ev. art. 901(A). The contractual documents at issue date back more than 45 years, thus Northrop Grumman argues that under the Louisiana Code of Evidence, documents that have been in existence for 30 years or more at the time they are offered are sufficiently authenticated when they are in such condition as to create no suspicion concerning their authenticity, and were found in a place where they would likely be if authentic. La.Code Evid. art. 901(B)(8).

| nThus, notwithstanding, the assignments of error asserted herein, the sole issue before this Court is whether the district court properly granted summary judgment and the failure to consider documentation which has been presented to this Court via joint motion to supplement. The documents submitted to the Court of Appeal were not submitted to the district court, thus, we consider this information and filing as an attempt to secure a new hearing on the motion for summary judgment.

Our review of the record in the instant matter reveals that since the motion for summary judgment granted by the district court concerns the existence of a defense and indemnity contract between Hopeman Brothers and [Northrop Grumman], In view of the fact that the documents submitted by Northrop Grumman may create genuine issues of material fact as to the existence or nonexistence of a contractual obligation, the grant of summary judgment is vacated. “A ‘material fact’ is a fact, the existence or non-existence of which may be essential to plaintiffs cause of action under the applicable theory of recovery.” Mitchell v. Villien, 2008-1470, p. 6, (La.App. 4 Cir. 8/26/09), 19 So.3d 557, 562. With respect to the cross-claim by Northrop, the existence of the contract is material to its claim against Hopeman Brothers.

While this Court did not grant the joint motion to supplement the appeal record filed in this Court by Northrop Grumman and Hopeman Brothers, we note that La. Code Evid. art. 901, entitled Requirement of authentication or identification, provides (at paragraph A) that “admissibility is satisfied by evidence | ^sufficient to support a finding that the matter in question is what its proponent claims.” For this reason, this Court finds that the evidence deemed inadmissible by the district court — along with the documents later found by Hopeman Brothers — may in fact prove the existence of the disputed indemnity agreement. Of special concern to this Court is the fact that Hopeman Brothers signed on jointly with Northrop Grumman to supplement the appeal record with the documents that were not introduced to the district court. These documents were located by Hopeman Brothers just weeks following the district court judgment. Save for the settlement agreement reached between Hopeman Brothers and the Fal-gousts, the joint motion to supplement puts the arguments raised by the Fal-gousts in stark opposition to Hopeman Brothers’ position to jointly admit documents that may prove a contractual obligation between it and Northrop Grumman.

Finding that the documentation presented via joint motion and rejection herein may have a bearing upon whether the district court erred in granting the motion for summary judgment, we remand this matter to the district court for a contradictory hearing on what is purported to be newly discovered evidence for consideration of the motion for summary judgment, and we pretermit discussion of the remaining issues.

113DECREE

For the foregoing reasons, we reverse the district court judgment granting summary judgment in favor of Hopeman Brothers and the Falgousts, and remand the matter to the district court for a full evidentiary hearing to determine the authenticity of both the documents submitted by both Northrop Grumman and the documents subsequently discovered by Hope-man Brothers, reserving all rights of the parties herein.

REVERSED AND REMANDED

BELSOME, J., Dissents with reasons.

BONIN, J., Dissents with reasons.

BELSOME, J.,

Dissents with reasons.

| ,This is an appeal from the granting of summary judgment in favor of Hopeman Brothers and the Falgousts on the issue of the existence of an agreement to defend and indemnify between Hopeman Brothers and Northrop Grumman (hereinafter Avondale). As the majority discussed, in opposition to the motion for summary judgment, Avondale presented a partial copy of a contract, between Avondale and Hopeman Brothers, including an excerpt from an appendix to that contract. Avon-dale argued that the documents were sufficient to create a genuine issue of fact regarding the existence of a contractual agreement of defense and indemnity and therefore summary judgment should be denied. The trial court found that the documents were not properly authenticated and therefore could not be considered. Without any other evidence to oppose the motion, the motion for summary judgment was granted.

In light of this Court’s denial of the joint motion to supplement the record, the documents that were the subject of that motion cannot factor into our decision. This Court reviews the granting of a motion for summary judgment de novo, lousing the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 c/w 99-2257, (La.2/29/00), 755 So.2d 226, 230. Accordingly, our scope of review is limited to the evidence that was submitted to the trial court.

As such, the real issue before this Court is whether the trial court abused its discretion in determining that the document submitted in opposition to the summary judgment was inadmissible. It is well settled that a trial court’s ruling to admit or exclude evidence is allowed great discretion and will not be reversed unless there has been an abuse of that discretion. Jemison v. Timpton, p. 3 (La.App. 4 Cir., 5/6/10), 38 So.3d 1021 (citing Miller v. Southern Baptist Hospital, 2000-1352, p. 5 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 15).

In the instant case, the documents presented were a copy of an excerpt from a contract between Hopeman Brothers and Avondale. “A duplicate is admissible to the same extent as an original unless: (3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.” La. C.E. art. 1003(3) [emphasis added]. Further, although some of the pages were dated, the pages of the appendix were out of sequence and undated. Subsequently, Avondale filed an untimely affidavit from its Custodian of Records, Stephen M. Robinson, in an effort to authenticate the documents. Mr. Robinson attested to the fact that the documents were found among the archival business records of Avondale. However, the trial court found the affidavit insufficient to authenticate the documents. Thus, Avondale had no evidence to support its opposition to the summary judgment.

Considering the trial court’s vast discretion when ruling on evidentiary issues, the incomplete state of the document, and the untimely filed affidavit I would affirm the granting of the summary judgment.

BONIN, J.,

Dissents with reasons.

|,1 respectfully dissent.

I join in Judge Belsome’s dissent, but also give an additional reason why I would affirm the partial summary judgment granted by the trial court.

If the Northrup Grumman interests were not prepared for the hearing on the motion for summary judgment, the proper remedy would have been to apply to the trial court for an extension of time. “For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions.” La. C.C.P. art. 966 B (emphasis added). Remanding this case in order to permit Northrup Grumman to make the kind of opposition it was required by Article 966 to make before the hearing runs counter to the guide recently given us by the Louisiana Supreme Court in Newsome v. Homer Memorial Medical Center, 10-0564 (La.4/9/10), 32 So.3d 800. See also Pruitt v. Nale, 45,483 (La.App. 2 Cir. 8/11/10), 46 So.3d 780, which very recently applied Newsome.

|2Even if the trial judge had been or will be presented with the “certification” that the Northrup Grumman interests were seeking to supply for the first time in this court, the “certification” is by an attorney for one of the parties. Only the attorney executed the affidavit required for the admissibility of the questioned document. But our court, albeit in a split decision, has held in Franklin Credit Management Corporation v. Gray, 07-1433 (La.App.1/14/09), 2 So.3d 598, 603, that

... the affidavit of [one party’s] lawyer submitted in opposition to [the other party’s] motion does not constitute “competent evidence” sufficient to defeat a motion for summary judgment. Rule 3.7 of the Rules of Professional Conduct prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness except under certain circumstances.

Thus, the previous panel’s decision in our court to deny supplementation was correct under the Franklin Credit decision, and the Northrup Grumman interests are misplaced in arguing that it has now shown sufficient authentication.

We are giving the Northrup Grumman interests a third bite to get their evidence before the court when others have been denied two.

Accordingly, I would affirm the partial summary judgment in favor of the surviving Falgoust family members and Hope-man Brothers.

(I note parenthetically that, if Hope-man Brothers considers that it has a particular moral duty to the Northrup Grumman interests, it is always free to perform of its own will that which Northrup Grumman sought to judicially force it to perform by its cross-claim, or Hopeman Brothers is free to conventionally obligate itself anew to Northrup Grumman. See La. Civil Code arts. 1760-1762. Such action by Hopeman Brothers, of course, could not have any effect on the acquired rights of the Falgoust family by virtue of the judgment if affirmed. See La. R.S. 13:4231.)

      . "The Falgousts” include: Mr. Falgoust (the decedent), his wife Almarine Cortez Falgoust, Vanessa Falgoust Loupe, Rosetta Falgoust Dempster, Darren Falgoust, and Aaron Fal-goust (the surviving children of Mr. Falgoust).

      . Hereinafter "Hopeman Brothers.”

      . Northrop Grumman’s motion for summary judgment seeking a ruling establishing the contractual obligations was based on other contractual documents which were subsequently located and submitted in opposition to Hopeman Brothers’ Motion for Summary Judgment which was granted and is the subject of this appeal.

      . The record does not contain any particulars related to the settlement between the Fal-gousts and Hopeman Brothers.

      . Northrop Grumman did not appeal the judgment in which the district court denied its motion to strike.

      . La.C.C.P. art. 1442, entitled Deposition of an organization, provides:
      A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This Article does not preclude taking a deposition by any other procedure authorized in this Chapter.

      . Kaye N. Courington.

      . La.Code Evid. art. 901, entitled Requirement of authentication or identification, under section “A. General provision," provides "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

      . La.Code Evid. art. 803, entitled Hearsay exceptions, under section (6) Records of regularly conducted business activity, provides:
      A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term "business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

      . La.Code Evid. art. 901, entitled Requirement of authentication or identification, under section (8) Ancient documents or data compilation provides:
      Evidence that a document or data compilation, in any form:
      (a)Is in such condition as to create no suspicion concerning its authenticity;
      (b) Was in a place where it, if authentic, would likely be; and
      (c) Has been in existence thirty years or more at the time it is offered.

      . La.Code Evid. art. 1004, entitled Admissibility of other evidence of contents, provides in pertinent part:
      The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
      (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

      (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing;

      (5) Impracticality of producing original. The original, because of its location, permanent fixture, or otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be incurred in securing the original is prohibitive and it appears that a copy will serve the evidentiary purpose.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Marcia DAVILA v. WILLIAMS-SONOMA STORES, INC. d/b/a Pottery Barn, and Their Insurer, ABC Insurance Company, Greater Lakeside Corporation Causeway LLC of Delaware, and Their Insurer, DEF Insurance Company.
    No. 10-CA-592.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 8, 2010.

      P.M. Donovan, James L. Donovan, Jr., Attorneys at Law, Metairie, Louisiana, for Appellant, Williams-Sonoma Stores, Inc. d/b/a Pottery Barn.
    Sidney J. Angelle, Eric B. Berger, Attorneys at Law, New Orleans, Louisiana, for Appellees, Greater Lakeside Corporation and Causeway LLC of Delaware.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2In this personal injury lawsuit, first-defendant appeals from a judgment sustaining second-defendant’s partial motion for summary judgment. Upon review, we note that the judgment at issue is not a final, appealable judgment. For that reason, we dismiss this appeal.

On August 20, 2008, Marcia Davila filed the instant suit against Greater Lakeside Corporation, and Causeway LLC of Delaware, and their insurers, (hereinafter “Lakeside”), and Williams-Sonoma Stores, Inc. d/b/a Pottery Barn, and their insurer (hereinafter “Pottery Barn”), alleging that the defendant’s acts of negligence caused her injury. On December 4, 2008, Pottery Barn filed a cross-claim against Lakeside, seeking defense and indemnity under their Lease.

On April 15, 2009, Lakeside filed a Motion for Partial Summary Judgment against Pottery Barn on the basis that Lakeside is neither contractually nor legally bound to indemnify or defend Pottery Barn. On June 17, 2009, Pottery Barn filed a Motion for Summary Judgment, seeking judgment “over and against Lakeside requiring them to reimburse defendant for defense costs incurred and to defend and indemnify Pottery Barn based upon the contractual obligations entered into by and | ¡¡between Lakeside and pottery Barn.” In that same pleading, Pottery Barn also sought summary judgment against plaintiff.

On September 25, 2009, the trial judge heard all motions for summary judgment. On January 26, 2010, the Court granted partial summary judgment in favor of Lakeside, dismissing Pottery Barn’s defense and indemnity claim against Lakeside. Pottery Barn filed its Motion for Appeal of that judgment on March 22, 2010.

Law and Analysis

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

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

After a review of the record, we note that trial court rendered a partial summary judgment as to one claim between two defendants. La. C.C.P. art. 1915(B)(1). The trial court did not, however, make a determination that there is no just reason for delay and designate the judgment as final for purposes of immediate appeal. La. C.C.P. art. 1915(B)(2). Thus, the judgment before us “shall not constitute a final judgment for the purpose of an immediate appeal.” Id.; Brown & Root v. Matherne, 04-206 (La.App. 5 Cir. 7/27/04), 880 So.2d 77.

|4For the above discussed reasons, this appeal is dismissed without prejudice, and the matter is remanded for further proceedings. All costs of this appeal are to be borne by appellant, Williams-Sonoma Stores, Inc. d/b/a Pottery Barn.

APPEAL DISMISSED


author: JUDE G. GRAVOIS, Judge.

text:
    NEW ORLEANS PAINT & DRYWALL SERVICES, INC., Trade Name for Danny R. Herrin and Herrin, Ltd. v. LODRIGUES & ASSOCIATES, LLC.
    No. 10-CA-254.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Joseph B. Guilbeau, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Max J. Cohen, Melvin D. Albritton, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

li>This appeal concerns a suit by plaintiff New Orleans Paint & Drywall Services, Inc. (“New Orleans Paint”) against its insurance agent, defendant Lodrigues & Associates, LLC (“Lodrigues”) for allegedly failing to timely secure workers’ compensation coverage. New Orleans Paint appeals the trial court’s grant of Lodrigues’s Exception of Peremption, dismissing its suit as perempted under LSA-R.S. 9:5606. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

New Orleans Paint filed this suit against Lodrigues on October 17, 2006, alleging that on October 18, 2005 it learned that it did not have the requisite workers’ compensation insurance in place to cover an employee who was injured on October 12, 2005. New Orleans Paint alleged that its insurance agent, Lodrigues, was at fault for this omission. On April 5, 2007, Lo-drigues filed a declinatory Exception of Insufficiency of Service of Process, arguing that New Orleans Paint failed to timely request service as per LSA-C.C.P. art. 1201(C), which provides' in pertinent part: “Service of the citation shall be requested on all |3named defendants within ninety days of commencement of the action ...” It is undisputed that New Orleans Paint did not timely request service of the citation on Lodrigues. The trial court denied Lodrigues’s exception. Lodrigues thereupon filed a writ application to this court. This Court found that New Orleans Paint failed to show good cause why it did not request service, and granted the writ on July 24, 2007, ordering the trial court to enter judgment granting the exception and dismissing the case without prejudice as per LSA-C.C.P. art. 1672(C). The trial court entered judgment in accordance with this Court’s orders on August 6, 2007, dismissing New Orleans Paint’s suit without prejudice.

On September 5, 2007, New Orleans Paint filed a second suit against Lodrigues, alleging substantially the same cause of action against Lodrigues. Lodrigues filed an Exception of Peremption, arguing that the suit was perempted under LSA-R.S. 9:5606(A). The trial court granted Lo-drigues’s exception, dismissing the suit with prejudice. This appeal does not concern the second suit.

On August 1, 2008, New Orleans Paint filed an Amending and Supplemental Petition for Damages in the first suit, alleging substantially the same cause of action but adding an additional named defendant. Lodrigues filed a peremptory Exception of Peremption that the trial court granted, dismissing the suit with prejudice. This appeal followed.

ARGUMENTS AND ANALYSIS

On appeal, New Orleans Paint argues that the amended petition filed on August 1, 2008 should be allowed to “relate back” to the original petition filed in l,t2006. It argues that the trial court’s ruling renders the original “dismissal without prejudice” to be a dismissal “with prejudice” and that the legislature could not have intended such a harsh result. Lodrigues counters, however, that a dismissed lawsuit, even one dismissed without prejudice, cannot be amended because the suit itself is no longer active or pending, and thus the trial court’s judgment is correct and should be affirmed.

New Orleans Paint argues that a suit dismissed without prejudice is still viable pending further action. New Orleans Paint cites no case law for this position. It cites several cases in brief for the general position that amended petitions may relate back to the original petition under certain circumstances. Our review of the cases cited by New Orleans Paint, however, show that these cases concern suits that were “active” or pending when the amended petition was filed, i.e., the suit in question had not in fact been dismissed. Thus, the cases cited by New Orleans Paint are distinguishable from the present case and do not apply to the factual scenario before us.

Although a judgment of dismissal -without prejudice does not bar the filing of another suit on the same cause of action, it does terminate the instant suit. LSA-C.C.P. art. 1673; Batson v. Cherokee Beach and Campgrounds, Inc., 470 So.2d 478, (La.App. 1 Cir.1985). In Batson, the court of appeal held that the trial judge was without authority to allow the filing of an amended petition after the suit was terminated by the judgment of dismissal without prejudice. See also Meadows v. Cross Gates, Inc., 03-1408 (La.App. 1 Cir. 4/2/04), 878 So.2d 674.

The same result must obtain in this suit. Though the trial court apparently allowed the amended petition to be filed, there is no authority under the law allowing a trial court to do so, as the suit itself had been terminated on August 6, 2007.

1 ¡CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting defendant’s Exception of Perémption and dismissing this matter.

AFFIRMED.

      . LSA-R.S. 9:5606(A) provides: No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach or contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.


author: MARC E. JOHNSON, Judge.

text:
    Timothy G. MORALES, et al v. The PARISH OF JEFFERSON and Redflex Traffic Systems, Inc.
    No. 10-CA-273.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Joseph R. McMahon, III, Anthony S. Maska, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellants.
    Guice A. Giambrone, III, Craig R. Watson, Attorneys at Law, Metairie, LA, Douglas R. Holmes, Walter F. Becker, Jr., G. Wogan Bernard, Attorneys at Law, Chaffe McCall, L.L.P., New Orleans, LA, for Defendants/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| (jPlaintiffs/appellants, Timothy Morales, et al, appeal from two judgments rendered by the trial court: (1) the maintaining of an exception of res judicata relating to a state constitutional challenge of Chapter 36, Article XI of the Jefferson Parish Code of Ordinances, entitled Automated Traffic Signal Enforcement (ATSE), and (2) the granting of a motion for summary judgment finding that the ATSE ordinances do not violate the spousal immunity privilege under La. C.E. art. 505 and do not imper-missibly govern civil relationships in violation of Article VI, § 9(A) of the Louisiana Constitution. For the reasons that follow, we reverse in part and dismiss in part.

Procedural History

On January 31, 2008, a class action complaint, bearing docket number 08-802, was filed in the United States District Court for the Eastern District of | Louisiana against the Parish of Jefferson, the Jefferson Parish Council, and Redflex Traffic Systems, Inc. (Redflex), asserting various claims relating to the ATSE ordinances. The plaintiffs, Barry Sevin, Jr. and Edwin Bernard, who purported to represent the putative class of automobile owners ticketed for violating the ATSE ordinance since its inception in 2007, asserted the ATSE was unconstitutional on the basis it violated the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. They also asserted defendants, acting under color of state law, violated their federal rights under 42 U.S.C. § 1983, by enacting and enforcing the ATSE ordinances. Plaintiffs further alleged two state law claims: (1) the ATSE ordinances violate the spousal immunity privilege under La. C.E. art. 505, and (2) the ordinances impermissibly govern civil relationships in violation of Article VI, § 9(A) of the Louisiana Constitution.

In May 2009, the federal complaint was dismissed in its entirety. In response to defendants’ 12(b) Motion to Dismiss, the federal court declined to exercise jurisdiction over plaintiffs’ state law claims that did not allege § 1983 violations and dismissed, without prejudice, those state law claims that alleged the ATSE ordinances violate the Louisiana spousal immunity privilege and impermissibly attempt to govern civil relationships in violation of the Louisiana Constitution. The federal court further dismissed, with prejudice, all of plaintiffs’ constitutional and § 1983 claims pursuant to a motion for summary judgment after finding none of plaintiffs’ claims had merit.

Thereafter, on May 15, 2009, plaintiffs, Timothy Morales, Barry Sevin and Edwin Bernard, who were members of the alleged putative class in the federal action, filed a class action petition for damages and declaratory judgment in the 24th Judicial District Court against two of the same defendants in the federal action, |sthe Parish of Jefferson and Redflex, alleging the ATSE ordinances were unconstitutional under the Louisiana Constitution and violated state law.

Defendants filed an exception of res ju-dicata claiming plaintiffs were barred from re-litigating claims asserted in the federal action and those claims that should have been asserted in the federal action but were not. After a hearing, the trial court sustained defendants’ exception in part and denied it in part. The trial court found res judicata precluded plaintiffs from raising their constitutional challenges under state law, except for the two claims the federal court specifically dismissed without prejudice relating to the ATSE ordinances violating the spousal immunity privilege and Article VI, § 9 of the Louisiana Constitution.

Defendants subsequently filed a motion for summary judgment claiming they were entitled to judgment as a matter of law on the remaining two claims relating to spousal immunity and civil relationships. The trial court granted the motion for summary judgment after a hearing and dismissed plaintiffs’ remaining two claims with prejudice. Plaintiffs timely appealed both judgments.

Res Judicata

Plaintiffs argue the trial court erred in finding that all but two of their state law claims were barred by res judica-ta. Plaintiffs contend the federal court never ruled on the issue of the validity of the ATSE ordinances under Louisiana law because it declined to exercise pendent jurisdiction over all state law claims, not just the two state claims specifically mentioned. As such, plaintiffs assert then-state law claims are not barred by res judicata.

Defendants maintain plaintiffs’ federal complaint challenged the ATSE ordinances under both federal and state law and that the federal court dismissed all claims with prejudice except those two state law claims relating to spousal immunity and civil relationships. Defendants assert the trial court properly | (¡maintained their exception of res judicata because the federal court judgment precludes plaintiffs from raising any state law claims, other than the two dismissed by the federal court without prejudice.

Res judicata is a preclusion device found in both federal and state law designed to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-654, p. 11 (La.1/16/96), 666 So.2d 624, 631. “Precluding relitigation prevents inefficient use of the courts’ resources, reduces the possibility of harassment through vexatious suits, and helps maintain respect for the judicial proceeds by guarding against inconsistent decisions.” Id., 95-654 at 12, 666 So.2d at 681, quoting Dixon, Booksh, Zimmering, Res Judicata in Louisiana since Hope v. Madison, 51 Tul.L.Rev. 611 (1977).

The preclusive effect of a prior federal court judgment is controlled by federal res judicata rules. Reeder v. Succession of Palmer, 628 So.2d 1268, 1271 (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994). The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Jefferson Marine Towing, Inc. v. Kostmayer Const., LLC, 09-310, p. 5 (La.App. 5 Cir. 1/26/10), 32 So.3d 255, 259, writ denied, 10-378 (La.4/23/10), 34 So.3d 265.

Res judicata bars a subsequent suit if there has been a previous litigation involving the same claim between the same parties or their privies which resulted in a final judgment on the merits by a court of competent jurisdiction. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir.2000). Federal law uses a broad interpretation of “res judicata” to include both claim preclusion (true res judicata) and issue preclusion (collateral estoppel). Id. Viewed in this broad sense, res judicata will bar relitigation of matters that have been previously 17litigated and subsequent litigation of matter that have never been litigated but should have been advanced in the earlier suit. Reeder, 623 So.2d at 1271; Samour v. Louisiana Casino Cruises, Inc., 01-831, p. 3 (La.App. 1 Cir. 2/27/02), 818 So.2d 171, 174.

In cases where a given claim may be supported by theories or grounds arising from both state and federal law, the Louisiana Supreme Court has explained:

[I]f a set of facts gives rise to a claim based on both state and federal law, and the plaintiff brings the action in a federal court which had “pendent” jurisdiction to hear the state cause of action, but the plaintiff fails or refuses to assert his state law claim, res judicata prevents him from subsequently asserting the state claim in a state court action, unless the federal court clearly would not have had jurisdiction to entertain the omitted state claim, or, having jurisdiction, clearly would have declined to exercise it as a matter of discretion.

Reeder, 623 So.2d at 1272-73.

Thus, in order for res judicata to bar pendent state claims in a subsequent state law proceeding, three requirements must be met: (1) the federal court must have jurisdiction over the federal law claims; (2) it must exercise that jurisdiction and render a judgment on the merits; and (3) there must have been pendent state law claims that were not litigated due to a failure of the plaintiff to assert the claims unless the federal court clearly would have declined to exercise its pendent jurisdiction over the omitted state claim as a matter of discretion. Reeder, 623 So.2d at 1272-73; Samour, 01-831 at 4, 818 So.2d at 174.

Applying these precepts to the present case, we find the state law claims asserted by plaintiffs in the state action are not precluded by the res judicata bar of the federal court judgment dismissing, with prejudice, all of plaintiffs’ claims, except plaintiffs’ two state law claims. Specifically, we find that although plaintiffs did not assert all of their state law claims in the federal proceeding, the [ ^federal court clearly would have declined to exercise its pendent jurisdiction over the omitted state law claims.

The parties dispute what claims were actually asserted in the federal complaint. Plaintiffs contend that with the exception of the two state law claims involving spousal immunity and civil relationships, they only asserted claims under the United States Constitution and 42 U.S.C. § 1983 in the federal proceeding. Plaintiffs contend they never asserted any other state law claims, either under the Louisiana Constitution or other state law, in the federal proceeding. Conversely, defendants maintain plaintiffs asserted all the same state law claims in the federal proceeding that they asserted in the state proceeding, and that the federal court addressed the merits of all plaintiffs’ state law claims except the two specified state law claims it declined to exercise its pendent jurisdiction.

A review of the federal complaint shows that the only state law claims asserted by plaintiffs related to the spousal immunity privilege and civil relationships under Article VI, § 9(A). All other claims were made under federal law theories involving violations of the United States Constitution and plaintiffs’ civil rights under 42 U.S.C. § 1983. All allegations of a violation of the Louisiana Constitution or state law, except the spousal immunity privilege and Article VI, § 9, were clearly made as a civil rights claim under § 1983. For example, in paragraph 14 of the federal complaint, plaintiffs alleged the ATSE ordinances violate Louisiana law because they conflict with the Louisiana Highway Regulatory Act; however, plaintiffs asserted their claim as a violation of their constitutional rights and that defendants enforced the objectionable ordinances in violation of § 1983. Also, paragraph 15 alleged the ATSE ordinances violated the Louisiana Code of Civil Procedure and that defendants’ enforcement of the ordinances violated plaintiffs’ civil and constitutional rights under § 1983.

|3Even the federal court recognized that plaintiffs alleged violations of state law in their complaint simply as a basis for asserting violations of their civil rights under § 1983. In the first federal court judgment dated December 16, 2008, Judge Sarah Vance stated, “[w]ith respect to the vast majority of the state law issues, plaintiffs have simply alleged that the defendants’ violations of various state laws are ipso facto violations of the plaintiffs’ federal rights under 42 U.S.C. § 1983.” Judge Vance further explained, “[t]he Court also notes that two of the plaintiffs’ state law claims do not specifically allege violations of section 1983.”

As such, we find the federal complaint only alleged violations of federal law, with the exception of two specific state law claims (spousal immunity and civil relationships), and omitted all other state law claims. As stated above, res judicata generally precludes a plaintiff who fails to assert state law claims in a federal court that has pendent jurisdiction over the state law claims from subsequently asserting the state claim in state court. However, in the present case, it is clear that the federal court clearly would have declined to exercise its pendent jurisdiction over any of plaintiffs’ omitted state law claims. The federal court expressly declined to exercise its pendent jurisdiction over the two asserted state law claims. Because the federal court clearly refused to exercise its discretionary jurisdiction over the two asserted state law claims, we find that it would have likewise declined to exercise its pendent jurisdiction over any of the omitted state law claims had they been asserted by plaintiffs in the federal complaint.

Thus, we find that plaintiffs’ state law claims, as asserted in the instant petition for damages and declaratory judgment, are not barred by the res judicata effect of the federal court judgment dismissing plaintiffs’ federal complaint. As such, we reverse that portion of the September 30, 2009 judgment maintaining defendants’ exception of res judicata.

| inMotion for Summary Judgment

Because of our reversal of the judgment maintaining the exception of res judicata, we dismiss without prejudice that portion of plaintiffs’ appeal seeking review of the granting of defendants’ motion for summary judgment as it is no longer a final judgment. We note that the trial court’s designation of the summary judgment as a final judgment for purposes of immediate appeal, was unnecessary and without effect because the summary judgment was a final judgment at the time by operation of law.

Our ruling reversing the maintaining of the exception of res judicata changes the status of this case. In particular, the lawsuit is no longer terminated and the same parties will continue to litigate the remaining issues. The unadjudicated state law claims are based upon the same operative facts as those two state law claims ruled upon by the summary judgment. There are now other issues relating to the validity of the ATSE ordinances that have yet to be decided, and there is a possibility that the need for review might be mooted by future developments in the trial court. We find judicial resources would be wasted by appellate review of what is now the granting of a partial summary judgment, especially considering the probability of a later appeal after the adjudication of the remaining issues. We further note that the now partial summary judgment does not constitute a final judgment for purposes of appeal and, thus, may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all issues and claims. La. C.C.P. art. 1915(B)(2). Because this now partial, non-final judgment may be revised at any time before resolution of the entire case, we decline to convert this portion of plaintiffs’ appeal to a writ application.

| ^Decree

We find the trial court erred in maintaining defendants’ exception of res judica-ta. Accordingly, we reverse that portion of the September 30, 2009 judgment maintaining the exception of res judicata and remand the matter for further proceedings. Additionally, we dismiss without prejudice that portion of plaintiffs’ appeal from the January 7, 2010 granting of the motion for summary judgment. Defendants/appellees are to bear the costs of this appeal.

REVERSED IN PART; DISMISSED IN PART.


text:
    Raymond A. DUFFEL v. Rhonda Lee DUFFEL.
    No. 10-CA-274.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Brenda B. Birner, Attorney at Law, La-Place, LA, for PlaintiffiAppellant.
    Rhonda Lee Duffel, IPP, Montz, LA, Defendant/Appellee In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ^Appellant, Raymond Duffel, has appealed the trial court order that modified his monthly child support obligation. For the reasons that follow, we affirm.

FACTS

Raymond and Rhonda Lee Duffel were married in 1986. At the time they divorced in 2008, they had two minor children, twin boys, namely Kyle and Collin. Initially, by judgment rendered on October 27, 2007 and signed on April 16, 2008, the couple were awarded joint custody of the boys, with Rhonda having been named as the domiciliary parent of both boys and with Raymond having been ordered to pay child support to Rhonda in the amount of $1,900 per month. On May 13, 2008, Raymond filed a rule to decrease child support due to the fact that the boys were spending more time with him. On September 29, 2008, the trial court signed a consent judgment reducing Raymond’s child support payments to Rhonda to $1,150 per month.

13In early 2009, Rhonda petitioned the court for intervention due to alleged inappropriate behavior involving the boys that was taking place at Raymond’s residence. The trial judge ordered counseling for Raymond and Rhonda as well as for the boys. On October 26, 2009, Raymond filed a “Rule to Modify Custody and Child Support.” This petition alleged that since August 27,2009, Collin had been residing full-time with Rhonda and that Kyle had been residing full-time with Raymond. On December 8, 2009, the trial court rendered judgment granting joint custody of the boys to the parents with Rhonda being named as the primary domiciliary parent of Collin and with Raymond being named as the primary domiciliary parent of Kyle. The trial court ordered that Raymond pay child support to Rhonda in the amount of $850 per month effective January 2010. Raymond has appealed this judgment.

LAW AND DISCUSSION

There is no dispute that according to the child support guidelines, LSA-R.S. 9:315.19, Raymond’s child support obligation to Rhonda for the benefit of Collin should be $685 per month. Likewise, there appears to be no dispute between the parties that the boys had been residing as stated in the petition to modify support. On appeal, Raymond argues that the trial court erred in deviating from the child support guidelines without stating the particular facts and circumstances involving the income and expenses of the parties so as to warrant a deviation from the guidelines.

An award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Lambert v. Lambert, 2006-2399, (La.App. 1 Cir.3/23/07), 960 So.2d 921, 924. There is a rebuttable presumption that the amounts set forth in the child support guidelines are proper. |4 LSA-R.S. 9:315.1(A). However, the trial court may deviate from the guidelines “if their application would not be in the best interest of the child or would be inequitable to the parties.” LSA-R.S. 9:315.1(B)(1). If the trial court deviates, it must give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. Barton v. Barton, 05-1190, (La.App. 1 Cir. 6/9/06), 938 So.2d 779, 781. LSA-R.S. 9:315.17 provides that deviations from the guidelines are not to be disturbed on appellate review in the absence of manifest error.

In his reasons for judgment, the trial court stated:

Mr. Duffel produced to this Court a work sheet which argues that the child support which should be owed to Ms. Duffel would be in the $685.00 a month range, given the revised living arrangements of the children.
However, implicit in this argument is the notion that each of the children would be having the same standard of living in the respective parent’s house. The Court cannot agree with this. Given the relative income of the parties, the Court does not feel there is any way that the mother can satisfactorily raise the twin who is residing with her in the same fashion that the father is raising the twin who is residing with him on the amounts recommended by the submitted worksheets. In essence, the mother (and the child residing with her) would be penalized for circumstances that neither of them created and that benefit neither of them. This is an untenable result.
At a bench conference held on November 30, the Court felt that an adequate amount of child support was recommended — $850.00 a month. The Court feels that, given the extraordinary (and unfortunate) series of events in this ease, a deviation from the guidelines to this amount would be the fair thing to do.

The overriding factor in determining the amount of support is the best interest of the children. Sampognaro v. Sampognaro, 41,664 (La.App. 2 Cir. 2/14/07), 952 So.2d 775, 778. The children who reside with their mother are entitled to the same standard of living as if they reside with their father. Piccione v. Piccione, 2001-1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427; 431; Hargett v. Hargett, 544 So.2d 705 (La.App. 3 Cir.) writ denied, 548 So.2d 1235 (La.1989). The trial court is required to consider the “totality of the circumstances” when determining the amount of child support. Falcon v. Falcon, 2005-0804, (La.App. 4 Cir. 3/29/06), 929 So.2d 219, 224; Barkemeyer v. Barkemeyer, 598 So.2d 550, 552, (La.App. 4 Cir.1992).

In deviating from the guidelines, the trial court obviously took into account the detrimental effect that the reduction in support resulting from the application of the guidelines would have on the standard of living of Collin. The trial court did not elaborate on the “extraordinary (and unfortunate) series of events” that took place resulting in the boys having separate domiciliary parents, but in deviating from the support guidelines, the trial court clearly took into account the totality of the circumstances. Applying the above-cited jurisprudence and the reasons given by the trial court for its deviation from the child support guidelines, we find no manifest error in the amount of support awarded by the trial court.

The trial court made the reduced child support payment effective in January 2010. In his second assignment of error, Raymond argues that the trial court erred in not making the reduction in child support retroactive to the date of filing of the request (October 26, 2009).

La. R.S. 9:315.21(0 directs that absent good cause, a judgment modifying a final child support judgment shall be retroactive to the date of judicial demand. When the trial court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence. LSA-R.S. 9:315.21(E). A trial judge is not required to assign reasons justifying a finding of good cause to make an award not retroactive to the date of the filing of the petition. Watts v. Watts, 08-0834 (La.App. 4 Cir. 4/8/09) 10 So.3d 855, 861; Davis v. Davis, 43,490 (La.App. 2 Cir. 10/22/08), 997 So.2d 149, 156.

In its reasons for judgment, the trial court stated that the reduced child support payment was effective January 2010 “in light of the holiday season, and in light of the fact that changes in one’s budget take a while to be absorbed.” The trial court is vested with much discretion in fixing awards of child support and its reasonable determinations will not be disturbed unless there is a clear abuse of discretion. Harrington v. Harrington, 43,373 (La.App. 2 Cir.8/13/08, 989 So.2d 838). Given that there is no requirement that the trial court assign reasons to justify his finding of good cause for not making the payments retroactive to the date of judicial demand, and the fact that the child support in this matter was decreased from $1,900 per month to $850 per month over a twenty-six month period, we find no abuse of the trial court’s vast discretion in not making the reduction in child support retroactive to the date of judicial demand.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Joshua THOMAS.
    No. 10-KA-220.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

^Defendant, Joshua Thomas, appeals his conviction from the 24th Judicial District Court by contesting the constitutionality of LSA-C.Cr.P. 782 and by alleging trial court error regarding the jury instructions. For the following reasons, we affirm defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by bill of information with two counts of armed robbery (LSA-R.S. 14:64), one count of attempted armed robbery (LSA-R.S. 14:27:64), and one count of aggravated battery (LSA-R.S. 14:34). Michael Jacobs and Shawn Martin were charged as co-defendants on all counts with the exception of the aggravated battery. Defendant pled not guilty at arraignment.

Defense counsel filed a motion to quash the bill of information, arguing that LSA-C.Cr.P. art. 782 A, which allows for a non-unanimous jury verdict for hard | ^.felonies, is unconstitutional. On August 24, 2009, the trial court heard arguments on the motion and denied it.

Defendant was tried individually by a 12-person jury on August 25-26, 2009. The jury returned verdicts of guilty as charged on all four counts. Defendant filed timely motions for new trial and post-verdict judgment of acquittal. The trial court denied both motions on September 10, 2009. Defendant waived statutory delays. The court sentenced him that day to 40 years at hard labor on each count of armed robbery (counts 1 and 2), 20 years at hard labor on the attempted armed robbery (count 3), and 10 years at hard labor on the aggravated battery (count 4). The court directed that all of the sentences run concurrently with each other, and that they all be served without benefit of parole, probation, or suspension of sentence.

Defendant timely made an oral motion for appeal. He also filed a written appeal motion, which the trial court granted on September 10, 2009. The State filed a habitual offender bill of information, seeking to enhance defendant’s sentence on count 1, armed robbery. The habitual offender proceedings are part of a separate appeal in companion case 10-KA-221.

Defendant noticed his intention to file a pro se supplemental brief in his appeal. In an Order dated May 19, 2010, this Court granted him until June 17, 2010 to file a pro se brief. Defendant failed to file a supplemental brief.

Count 1

Herman Melerine, age 82, testified that on February 26, 2008, he went to Boom-town Casino. He parked his car about ten parking spaces from the casino’s entrance. He later left the casino with $1,800 he had won playing craps. While |4Mr. Melerine was walking back to his car, a man approached him and demanded his money. The man had a large pistol in a holster attached to his belt. Mr. Melerine gave the man his wallet, which contained seven $100 bills; his driver’s license, and an old credit card he had never activated or used. The man then demanded Mr. Melerine’s cellular telephone. Mr. Melerine told him he did not have his phone with him. The man told Mr. Melerine to give him his car keys, and the victim complied. The perpetrator left the scene, and Mr. Melerine did not see where he went.

Mr. Melerine testified that he told some passersby about the robbery, and they called casino security. A security guard, in turn, called police. Mr. Melerine described the robber as a light complected African-American man, a bit taller than his own height of 5' 6". Aside from those details, Mr. Melerine did not recall what the perpetrator looked like. Although police showed him photographic lineups, he was unable to identify anyone.

Mr. Melerine stated that sometime after the robbery, Chase, the issuer of his stolen credit card, notified him that someone had attempted to use the card at a Foot Locker store. He did not give anyone permission to use the card.

Kishon Fernandez testified she works as a cashier at Foot Locker on Canal Street in New Orleans. There is a Kids Foot Locker next door. On February 26, 2008, three men came into the store and asked for Rebekah Simon, a store manager. Ms. Simon was not working that day, so Ms. Fernandez waited on the men. They attempted to buy five pairs of shoes with a credit card.

Police later showed Ms. Fernandez surveillance videotape from the store, and she was able to point out the man who attempted to use the credit card. Police also showed her a still photograph taken from the surveillance tape. She testified that the man in the photograph wearing a striped shirt was the one who asked for |Rthe store manager. Police also showed Ms. Simon a photographic lineup, from which she was able to identify one of the three men who came into the store. Ms. Simon testified she did not recognize defendant as one of the men.

Rebekah Simon testified she was once employed as an assistant manager at Kids Foot Locker on Canal Street. She did not work on February 26, 2008, but Kishon Fernandez told her someone came into the store and asked for her that day. Police asked Ms. Fernandez to view surveillance videotape that showed three men who were in Foot Locker and Kids Foot Locker. She also looked at the still photograph taken from the videotape. She identified one of the men as Michael Jacobs, a friend she had known since childhood. She identified a second man as Mr. Jacobs’ friend, Shawn. She testified that Mr. Jacobs was the one in the striped shirt, and Shawn was pictured wearing a green shirt and a hat. Ms. Simon did not recognize the third man. Ms. Simon identified Mr. Jacobs from a photographic lineup on March 4, 2008. At the request of investigating officers, Ms. Simon attempted to locate Mr. Jacobs. She told his mother about the police investigation, and his mother then put Mr. Jacobs in touch with detectives.

Count 2

Amin Joudeh testified he played slot machines at Boomtown Casino on February 29, 2008. He won about $3,200.00. He collected his winnings and walked to his car, which was parked in the parking space closest to the casino’s side entrance. When he got to his car, a man he had never seen before jumped from behind him and asked him for a cigarette. Mr. Jou-deh told the man he did not smoke. He then got into his car and headed to his home in Gretna. It was just before midnight.

As he neared his house, Mr. Joudeh noticed there was a car following closely behind him. Since it was dark he could not see who was inside the car, but |fihe suspected the occupants were up to no good. Mr. Joudeh pulled his car to the side of the street one and one-half blocks from his house. The car that was following Mr. Joudeh rode past him and pulled into a driveway two doors down from his house. Mr. Joudeh pulled into his driveway and walked toward the front door of his residence. A man immediately approached him with a gun and said, “Give me your money.” Mr. Joudeh recognized him as the man who approached him in the Boomtown parking lot. Mr. Joudeh said, “What the hell you doing; is you crazy or something?” The man responded by cocking his gun.

Mr. Joudeh gave the gunman $520 in $20 bills from his pants pocket. He did not hand over several $100 bills that were in his jacket. The perpetrator’s car pulled up in front of Mr. Joudeh’s house. Mr. Joudeh could not see the occupants. The gunman ordered Mr. Joudeh to give him his car keys. The victim complied, and the perpetrators rode away.

After the incident, Mr. Joudeh called police. An officer showed him a photographic lineup on March 10, 2008, and he identified Shawn Martin as the man who robbed him at gunpoint. On cross-examination, Mr. Joudeh testified he did not see defendant at any time during the incident.

Counts 3 and 4

Deputy Jessica Cook of the Jefferson Parish Sheriffs Office testified that at 10:05 a.m. on February 29, 2008, she responded to an attempted robbery/aggravated battery call at 2637 Centaur Street in Harvey. When she arrived, she met with the victim, 72-year-old Rodney Ory. Deputy Cook learned Mr. Ory was attacked in front of his residence upon returning from Boomtown Casino. Mr. Ory had a laceration on his head, and he was treated at the scene by personnel from West Jefferson Medical Center. Deputy Cook identified State’s Exhibits 4, 5, and 6 as photographs of Mr. Ory’s injuries.

17Sergeant John Carroll, the lead investigator on the case, testified Mr. Ory died sometime between the time of the incident and the time of trial, but his death had nothing to do with the injuries he sustained in the attack.

Police investigation

Sergeant Carroll testified he investigated all of the offenses charged in this case. He consulted with Boomtown Casino security and reviewed surveillance videotapes to determine whether a suspect could be seen following Mr. Melerine or Mr. Joudeh out of the casino before they were robbed. The surveillance footage from February 26, 2008, offered the officer no leads on suspects as to Mr. Melerine’s robbery, because there were too many people in the casino to determine whether any one individual was following the victim.

In the surveillance footage from February 29, 2008, Sergeant Carroll pinpointed an individual who left the casino at the same time as Mr. Joudeh. It appeared the man was following the victim out while talking on a cellular telephone. Since Boomtown Casino routinely asks for identification from anyone age 35 or younger, Sergeant Carroll inspected the surveillance video and was able to find when that subject entered the casino and swiped his driver’s license at the security post. He then checked the casino’s security log, and found Michael Jacobs’ name entered under February 29, 2008. At that point, Mr. Jacobs was a person of interest in the investigation.

Sergeant Carroll identified State’s Exhibits 8 and 9 as the VHS surveillance tapes he obtained from Boomtown. They contain the footage of Mr. Joudeh and Michael Jacobs. The videotapes were played for the jury while Sergeant Carroll pointed out Mr. Joudeh’s and Mr. Jacobs’ activities.

While Sergeant Carroll was reviewing the Boomtown security tapes, he learned that Mr. Ory had been the victim of an attempted robbery on February 29, | s2008. The incident piqued Carroll’s interest, since Mr. Ory had been accosted at his home after winning $1,200.00 at Boom-town. Interest in Michael Jacobs as a suspect grew when Rebekah Simon identified him in the surveillance tape from Foot Locker. Mr. Melerine was robbed of his credit card at 3:30 p.m. on February 26, 2008, and Mr. Jacobs attempted to use the card at Foot Locker at 4:38 p.m. that day. Ms. Simon and Ms. Fernandez also identified Jacobs in a photographic lineup as one of the three men who made a purchase with Mr. Melerine’s credit card. Sergeant Carroll testified that he eventually learned the two men with Mr. Jacobs at Foot Locker were Shawn Martin and defendant.

Sergeant Carroll testified that he got a message to Michael Jacobs through Ms. Simon, and Mr. Jacobs contacted him at his office on March 7, 2008. On that day Sergeant Carroll picked up Jacobs and defendant, who was with him. He transported the men to the Jefferson Parish Detective Bureau. Sergeant Carroll interviewed Mr. Jacobs after advising him of his rights. Mr. Jacobs confessed to participating in the two armed robberies and the attempted armed robbery, and Sergeant Carroll placed him under arrest. Detective Brett Beavers interviewed defendant separately.

Based on information he obtained from the interviews, Sergeant Carroll obtained an arrest warrant for Shawn Martin. Mr. Martin was not at his last known address in New Orleans when Sergeant Carroll arrived there, but Martin’s step-father, Irvin Clemons, consented to a search of the residence. Sergeant Carroll recovered a green polo shirt identical to the one Mr. Martin was wearing in the Foot Locker surveillance video. Mr. Joudeh identified Mr. Martin in a photographic lineup as the gunman in his robbery.

19While Sergeant Carroll did not interview defendant, he familiarized himself with the statements defendant made to Detective Beavers. Based on defendant’s statements, it was Sergeant Carroll’s understanding that defendant was the driver in the Melerine robbery, while Mr. Martin was the gunman and Mr. Jacobs was the one inside the casino. As to the Joudeh robbery, Mr. Martin was the gunman, defendant was the driver, and Mr. Jacobs was the lookout in the casino. As to the Ory incident, Mr. Jacobs was the lookout, Mr. Martin was the driver, and defendant was the gunman.

Detective Beavers testified that he assisted Sergeant Carroll in picking up Michael Jacobs and defendant on Constantinople Street in New Orleans. He interviewed defendant at the detective bureau after advising him of his rights. Detective Beavers conducted four separate interviews with defendant. Each was tape recorded, and the recordings were transcribed. The recordings were played for the jury.

Detective Beavers testified that defendant identified Michael Jacobs and Shawn Martin in the photographic lineups. Defendant also identified himself, Mr. Martin, and Mr. Jacobs in the still photograph taken from the Foot Locker surveillance tape.

In the first of his four interviews with Detective Beavers, defendant said he was at Boomtown Casino with Mike Jacobs and Shawn Martin on February 29, 2008. Defendant and Jacobs played blackjack, and they lost some money. Mr. Jacobs stayed inside the casino while defendant and Mr. Martin waited in the car in the parking lot. Mr. Jacobs phoned defendant to say he had seen an elderly man cashing out at a teller window, and that the man was on his way out of the casino. Defendant stated that he and his two companions followed the man home. Mr. Martin drove the car.

|inThe man parked in his driveway and exited his car. Defendant and Mr. Jacobs got out of their car. Defendant was carrying a BB gun that belonged to Mr. Martin. Defendant demanded the elderly man’s money, and the man began yelling. Defendant hit the man on the head with the gun and fled the scene. Defendant explained to Detective Beavers that he was unemployed and had a gambling problem, and he was having trouble making ends meet.

In the second interview, which began minutes after the first ended, Detective Beavers questioned defendant about the Joudeh robbery. Defendant stated that he and Mr. Jacobs lost their money gambling at Boomtown, and they were frustrated. Afterwards, while defendant and Mr. Martin waited in the car, Mr. Jacobs saw an “Indian guy” cashing in his winnings, and he phoned defendant to alert him. In the parking lot, Mr. Martin approached the man and asked him for a cigarette. There were people nearby, so nothing happened in the parking lot. They followed the man to his house, where Mr. Martin took more than $500 from him at gunpoint. Defendant said he was driving the car on that occasion.

In the third interview, Detective Beavers questioned defendant about the Mele-rine robbery. Defendant said that in that instance Mr. Jacobs went into Boomtown Casino and saw a man cashing in $2,500 in winnings. Mr. Jacobs phoned defendant and described the man to him. When the man exited the casino, Mr. Martin approached him and took his cars keys, wallet, and cash at gunpoint. They threw the car keys in the river and defendant and Martin split the victim’s money. They told Mr. Jacobs they had not recovered any money from the victim. On that occasion defendant was driving the car.

Defendant stated that he, Mr. Martin, and Mr. Jacobs attempted to buy shoes at Foot Locker with a stolen credit card. After the card was declined several times, defendant left the store and waited in the car for the other two.

|nIn the fourth interview, Detective Beavers asked defendant to clarify some details regarding the offenses. The officer also showed defendant two photographic lineups, from which he identified Michael Jacobs and Shawn Martin.

ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NUMBER ONE

The defendant’s motion to quash based upon the constitutionality of Article 782 of the Code of Criminal Procedure was wrongfully denied.

DISCUSSION

Defendant argues the trial court erred in denying his pre-trial motion to quash the bill of information, in which he argued LSA-C.Cr.P. art. 782 is unconstitutional. Defendant concedes that the Louisiana Supreme Court has addressed the issue, holding that the article is constitutional. Defendant nevertheless raised the issue in hopes that the United States Supreme Court would soon reverse longstanding jurisprudence and find non-unanimous jury verdicts unconstitutional. The State responds that defendant’s argument is unfounded, pointing out that the United States Supreme Court recently denied cer-tiorari in a case involving the constitutionality of non-unanimous verdicts.

LSA-C.Cr.P. art. 782 A provides, in part, “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” The United States Supreme Court has long held that non-unanimous juries do not violate a defendant’s Sixth Amendment right to trial by jury, made applicable to the states by the Fourteenth Amendment. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). In State v. Belgard, 410 So.2d 720, 726 (La.1982), the Louisiana Supreme Court followed the United States Supreme Court’s jurisprudence, explaining that “[t]his court has consistently held C.Cr.P. art. 782 does not violate the Sixth or Fourteenth Amendments to the United States Constitution.”

Recently, in State v. Bertrand, 08-2215, p. 8 (La.3/17/09); 6 So.3d 738, 743, the Louisiana Supreme Court reversed the district court, which held Article 782 was unconstitutional, reasoning:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

This Court recently followed the Louisiana Supreme Court’s jurisprudence in State v. Raymond, 08-1204, pp. 23-24 (La.App. 5 Cir. 4/28/09); 13 So.3d 577, 592, writ denied, 09-1205 (La.2/5/10); 27 So.3d 296, holding the trial court did not err in allowing the jury’s non-unanimous verdict of 11 to one. As the State notes, the United States Supreme Court recently denied writs of certiorari in Bowen v. Oregon, - U.S. -, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009), thereby declining to take up the issue of whether the Sixth Amendment right to a jury trial, as applied to the states through the Fourteenth Amendment, allows a criminal conviction based on a non-unanimous jury verdict. See also, Lee v. Louisiana, — U.S.-, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008), in which the Supreme Court recently denied certiorari, thereby declining to consider a constitutional challenge to Article 782.

The trial court did not err in denying relator’s motion to quash, since a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts. See State v. Bertrand, supra. Similarly, as an intermediate appellate court, this Court is 113obliged to follow the precedent established by the Louisiana Supreme Court. Gauthreaux v. Rheem Mfg. Co., 588 So.2d 723, 725 (La.App. 5 Cir.1991), writ denied, 592 So.2d 409 (La.1992).

Based on the foregoing reasons, we find this assignment of error to be meritless.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred by failing to include the defendant’s requests for jury instructions.

DISCUSSION

Defendant contends the trial court erred in denying his request for two special jury charges. The State counters that the trial court did not err in denying defendant’s proposed charges, since they were redundant, did not reflect the status of the law, and would have confused the jury.

LSA-C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. Under LSA-C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is included in the general charge or in another special charge to be given. State v. Hollins, 08-1033, p. 3 (La.6/26/09); 15 So.3d 69, 71. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. Id.; State v. Smith, 04-340, p. 11 (La.App. 5 Cir. 10/26/04); 888 So.2d 280, 289.

At the conclusion of the trial testimony, the trial court held a charging conference. Defendant submitted a list of four proposed special jury instructions. 114His argument pertains to only the first and third proposed charges. The first special jury instruction the defense requested was as follows:

If the evidence would support both the offense charged and the responsive offenses, the defendant has the right under La.C.Cr.P. art. 814 to have the jury consider convicting him only of a lesser crime even though the evidence clearly will support a conviction of the offense charged.

The State objected to the proposed charge because it would be repetitive of general charges the trial court would give. The judge stated, “I tend to agree. I think to add the instruction is confusing. So I’m not going to include the instruction.” The defense objected to the trial court’s ruling.

Defendant submitted the following as his third proposed charge:

A confession is a form of circumstantial evidence and is subject to the standard of such evidence in that it must exclude any other explanation but guilt. See standard for conviction based on circumstantial evidence.

The trial court denied that charge, and defense counsel objected.

We do not find that the trial court erred in denying the first proposed charge. First, as the trial court noted, the wording of the proposed charge was convoluted, and was likely to confuse the jury. Secondly, the trial court’s general jury charges were sufficient to inform the jury of its option to return a responsive verdict. For instance, the trial court instructed the jury:

As to counts 1 and 2, if you are not convinced beyond a reasonable doubt that Joshua Thomas is guilty of armed robbery but you are convinced beyond a reasonable doubt that Joshua Thomas is guilty of a lessor [sic] included offense, you should reflect that conclusion on your verdict form.
A responsive verdict to the charge of armed robbery is guilty of attempted armed robbery.

The trial court did not err in denying defendant’s third proposed special jury charge. Defendant did not offer any jurisprudence to support his statement of the |1filaw, nor does he offer such support on appeal. Additionally, the subject matter of the proposed charge was sufficiently covered in the trial court’s general charge:

A defendant cannot be convicted on his own uncorroboration [sic] confession without independent proof that a crime has been committed. However, if the State provides through independent evidence that a crime has been committed by someone, a confession alone may be used to identify the defendant as the perpetrator of the crime. Furthermore, in cases involving physical injury to a person or property, the State must show only that the injury did, in fact, occur and that someone was criminally responsible for that injury. The State is not required to show any link between the defendant and the injury outside of the confession.

Unlike the proposed charge, the trial court’s statement of the law is supported by the jurisprudence. See State v. Harris, 01-2730, pp. 38-39 (La.1/19/05); 892 So.2d 1238, 1261, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Chism, 08-474, p. 14 (La.App. 5 Cir. 12/16/08); 3 So.3d 41, 49, writ denied, 09-0153 (La.10/2/09); 18 So.3d 102.

Based on the foregoing reasons, we find this assignment of error to be meritless.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We not the following matters for review.

Defendant’s sentence on count 4 is illegally lenient. LSA-R.S. 14:34 provides that “[wjhoever commits an aggravated battery shall be fined not more than five thousand dollars,” but the trial court failed to impose a fine. The State did not object at the time of sentencing, and does not address this issue in brief to this Court.

This Court has held that a statute providing for a fine of “not more than” a specified amount does require a mandatory fine, but the matter is not free from Indoubt. State v. Kerlec, 06-838, p. 8 (La.App. 5 Cir. 4/11/07); 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07); 969 So.2d 626. The Louisiana Supreme Court has held that an appellate court has the authority to correct an illegally lenient sentence that fails to impose a mandatory fine. State v. Decrevel, 03-0259, (La.5/16/03); 847 So.2d 1197 (per curiam). But that authority is discretionary, and in certain circumstances, this Court has refrained from amending the defendant’s sentence to impose a fine. State v. Hearn, 09-434, p. 9 (La.App. 5 Cir. 12/29/09); 30 So.3d 873, 879; State v. Turner, 08-1188, p. 7 (La.App. 5 Cir. 5/12/09); 13 So.3d 695. Since the State did not object to the trial court’s failure to impose a fine as to count 4, and defendant is indigent, we refrain from exercising our authority to correct the illegal sentence.

While the commitment reflects that defendant was properly advised of the prescriptive period for filing post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8, the transcript reflects that defendant received an incomplete advisal. At the time of sentencing, the judge informed defendant, “[y]ou have two years to seek post-conviction relief.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). This Court has held the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04); 887 So.2d 596, 598. We correct the error by now informing defendant in this opinion that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. |17art. 914 or 922. State v. Hill, 09-89, p. 7 (La.App. 5 Cir. 5/26/09); 15 So.3d 1042, 1046.

DECREE

Based on the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The State subsequently amended the bill of information to dismiss counts 1 and 3 as to Shawn Martin only.

      . Defendant also filed a pro se motion to quash, in which he argued that one of the alleged victims in his case was now deceased, so a trial on that count would violate his constitutional right of confrontation. The trial court summarily denied the pro se motion.

      .On August 25, 2009, the trial court granted defendant's motion to sever co-defendant, Shawn Martin, for trial.

      . Sergeant Carroll testified that Foot Locker did not approve a charge to Mr. Melerine’s account, but that a charge was approved at Kids Foot Locker.

      . Since defendant challenges the constitutionality of a State statute, this Court sent notice by certified mail to the Louisiana Attorney General's Office in accordance with LSA-R.S. 13:4448.

      . Defendant is represented on appeal by the Louisiana Appellate Project. See State v. McGee, 09-102, p. 12 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 242, in which this Court refrained from exercising its authority to correct an illegally lenient sentence imposed without a mandatory fine, reasoning that the defendant's sentence resulted from a guilty plea and the defendant appeared indigent because he was represented by the Louisiana Appellate Project.