author: MICHAEL E. KIRBY, Judge.

text:
    Leonard ADAMS, et al. v. CSX RAILROADS, et al.
    No. 2011-CA-0286.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      Vernon P. Thomas, New Orleans, LA, for Appellee/Succor, Inc.
    Leo C. Hamilton, Breazeale Sachse & Wilson, L.L.P., Baton Rouge, LA, for Appellant/Louisiana Bar Foundation.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

l,The Louisiana Bar Foundation (“LBF”) appeals from a trial court judgment denying the Special Master’s recommendation for distribution of a Cy Pres award to the LBF. The trial court, Honorable Robert J. Burns, Judge Ad Hoc, determined that in view of his position as a Fellow with the LBF, his approval of a Cy Pres distribution to the LBF would be a violation of Canon 2B of the Code of Judicial Conduct, as interpreted by the Louisiana Supreme Court in In re: Morvant, 2000-0747 (La.6/26/09), 15 So.3d 74. For these reasons that follow, we reverse the judgment of the trial court and award the LBF 10% of the unused funds available as a Cy Pres distribution for efforts solely within the boundaries of Orleans Parish, as recommended by the Special Master.

|2After the original nine class action defendants had settled and the class members and attorneys had been paid, the only issue left for the trial court to consider was the Cy Pres distribution of the remaining settlement money. Thus, on March 10, 2010, the trial court directed the Special Master to implement a protocol for consideration of prospective Cy Pres awards, stipulating that the residual funds could only be used for the benefit of the community adversely affected by the train car leakage, the event resulting in the class action herein. The Special Master promulgated a notice for submission of applications for Cy Pres distribution. After considering eleven applications received from individuals and interest groups, including Succor, Inc. (“Succor”), the appel-lee herein, the Special Master submitted his report to the trial court, recommending that the residual funds be distributed as follows: 65% to New Orleans Recreation Department (“NORD”); 25% to Ozanam Inn; and 10% to LBF.

Succor objected to the Special Master’s recommendation. Following a contradictory hearing on September 24, 2010, the trial court adopted the Special Master’s recommendation, in part, awarding 65% of the residual funds to NORD and 25% to Oza-nam Inn. The court held in abeyance a final decision on awarding 10% of the residual funds to the LBF, and ordered the LBF to file a post-trial memorandum addressing the propriety of any award to the LBF in light of the Supreme Court’s decision in In re: Morvant.

After considering the post-trial memorandum, the trial court rendered a judgment on October 28, 2010, denying the Special Master’s recommendation to award a Cy Pres distribution to the LBF. The LBF filed a motion for new trial and/or reconsideration of the October 28, 2010 order, which the trial court denied. The LBF appealed.

[sCanon 2B of the Code of Judicial Conduct states, in relevant part:

A judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge ...

In In re: Morvant, supra, the Supreme Court upheld a finding of the Louisiana Judiciary Commission (“the Commission”) that Judge William A. Morvant, of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, violated Canon 2B of the Code of Judicial Conduct and Article V, § 25(C) of the Louisiana Constitution of 1974. Judge Morvant’s misconduct consisted of imposing fines, payable to the East Baton Parish “I Care” program, as a condition to probation in 1,052 drug cases decided between January 1997 and July 2001. “I Care” was a program whose mission was to provide substance abuse prevention education for children in the East Baton Rouge School System. The fines were assessed in the amounts of $50.00 and $100.00 for misdemeanor and felony offenses. In re: Morvant, supra, at p. 2, 15 So.3d at 75-76. Significantly, during the period Judge Morvant was imposing monetary assessments as terms of probation, he was a member of the “I Care” Advisory Council. Id. at p. 2, 15 So.3d at 76.

|4The Court found that Judge Morvant “readily conceded” that he had performed the “underlying misconduct,” i.e., assessed the probationary fines while a member of the “I Care” Advisory Council. Id. at p. 7, 15 So.3d at 79. Further, the Court noted that “the ease of association between the monetary assessments and his council position leads to the perception that Judge Morvant misused the prominence of his judicial office to further his personal interests.” Id. at pp. 7-8, 15 So.3d at 79.

In In re: Johnson, 08-2397, (La.1/21/09), 1 So.3d 425, a case factually-similar to In re: Morvant, the Supreme Court upheld a finding by the Commission that Judge Donald Johnson, also a judge on the Nineteenth Judicial District Court, had violated Canons 1, 2A, 3A(1) and 5(B)(2) of the Code of Judicial Conduct, as well as La.C.Cr.P. arts. 895 and 895.1. Judge Johnson’s misconduct involved the ordering of criminal drug offenders to pay fines to various non-profit and charitable entities. The recipient organizations were not qualified to receive funding through probationary sentencing because they were not involved in any respect with the prevention and treatment of drug abuse permitted under La.C.Cr.P. art. 895.1(B)(7). Id. at pp. 9-10, 1 So.3d at 431-32.

The case before us is distinguishable from both In re: Morvant and In re: Johnson. In those cases, the trial judge, either misapplied (Judge Morvant) or violated (Judge Johnson) a specific statute, La.C.Cr.P. art. 895.1(B)(7), by imposing judicial fines on defendants and directing those fines, independently, to entities that advanced the judge’s own private interests. Here, the Cy Pres doctrine is valid means of distributing residual damages in a class action lawsuit. See Cavalier v. Mobil Oil Corporation, supra, n. 1. The trial court neither used his position to generate the funds to be distributed nor acted independently in | ¡¡¡assessing the worthiness of the entities applying for the award. Rather the Special Master assessed each applicant and made a recommendation to the trial court. Additionally, the Special Master certified that his selection was based in accord with the Court’s guidelines, as outlined in Cavalier v. Mobil Oil Corporation, supra.

Another distinction, albeit minor, is that the trial court here is as an ad hoc appointment of the Supreme Court, rather than an elected judge. The Supreme Court, in concluding Judge Morvant had violated Canon 2B of the Code of Judicial Conduct, relied on the Commission’s finding that “his reputation was presumably enhanced by his public promotion of the “I Care” program since those associated with the organization and the East Baton Rouge School System could only have ben-efitted in the event he were reelected.” See In re: Morvant, supra, 2009-0747, p. 5, 15 So.3d at 77. The trial court here has not publicly promoted the LBF and has no apparent political advantage by awarding it a one-time Cy Pres distribution.

Canon 4C of the Code of Judicial Conduct states, in relevant part:

A judge, subject to the proper performance of judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not impair, limit or restrict his or her capacity to decide impartially any issue that the judge knows is likely to come before the judge:
C. A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge shall not personally solicit funds for such an organization or agency, or allow his or her name to be used in the solicitation of funds. A judge may make recommendations to the public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

1 nClearly, the trial court is allowed to be a member of LBF provided he does not personally solicit funds for the organization or allow his name to be used in the solicitation of funds. Nothing in the record indicates the trial court solicited the funds or allowed his name to be used in the solicitation of the funds for the LBF.

Finally, in denying the Special Master’s recommendation to award a distribution to the LBF, the trial court reasoned that, in view of In re: Morvant, “a state judge can no longer favor his own profession to the exclusion of other worthy charitable causes.” We do not agree. If that were the case, then the LBF could never be eligible for a Cy Pres distribution, regardless of the awarding judge’s affiliation with the LBF.

DECREE

Accordingly, for the above reasons, we reverse the judgment of the trial court and render judgment awarding the LBF 10% of the unused funds available as a Cy Pres distribution for efforts solely within the boundaries of Orleans Parish, as recommended by the Special Master.

REVERSED AND RENDERED

      . "The Cy Pres doctrine has been used to disburse proceeds of a class action lawsuit when the amounts owing to each individual plaintiff are exceedingly small and/or identification of the amount due each individual would be excessively difficult.... Further, distributing proceeds through Cy Pres satisfies class action goals by deterring similar conduct and disgorging the defendant of profits wrongfully obtained, and using those funds in a way that at least indirectly benefits the class members.” Cavalier v. Mobil Oil Corporation, 2004-1543, pp. 6-7 (La.App. 4 Cir. 3/2/05), 898 So.2d 584, 588-89 (citing Susan Beth Farmer, More Lessons Learned from the Laboratories: Cy Pres Distributions in Parents Pat-riae Antitrust Actions Brought by State Attorneys General, 68 FORD. L. REV. 361, 393-94 (1999)).
      The Cy Pres Award distribution at issue in this appeal arises from the class action certified in Adams v. CSX Railroads, 615 So.2d 476 (La.App. 4th Cir.1993). The class action's liability and damages phases are discussed at length in In re New Orleans Train Car Leakage Fire Litigation, 2000-0479 (La.App. 4 Cir. 6/27/01), 795 So.2d 364, writs denied, 2001-2493 (La. 10/14/02), 827 So.2d 411, reconsideration not considered, 2001-2492 (La. 11/22/02), 829 So.2d 1046, cert. denied sub nom., Nova Chems., Inc. v. Adams, 538 U.S. 944, 123 S.Ct. 1623, 155 L.Ed.2d 484 (2003); In re New Orleans Train Car-Leakage Fire Litigation, 2000-1919 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, writ denied, 2005-1297 (La.2/3/06), 922 So.2d 1171; and Adams v. CSX Railroads, 2001-0114 (La.App. 4 Cir. 4/20/05), 902 So.2d 413, writ not considered, 2005-1316 (La.2/3/06), 922 So.2d 1156.

      . The LBF website states that, "[mjembers of the [LBF] are referred to as Fellows. Fellowship consists of judges, lawyers, and law professors whose professional, public and private careers demonstrate their dedication to the improvement of the administration of justice.”

      . Article V, § 25(C) of the Louisiana Constitution of 1974 provides, in pertinent part:
      On the recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful and persistent misconduct relating to his official duty, willful misconduct and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that bring the judicial office into disrepute,....


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Markeece T. MOSLEY, Appellant.
    No. 46,756-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 2011.

      Douglas L. Harville, for Appellant.
    Markeece T. Mosley, Pro Se.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

hA Caddo Parish Grand Jury returned an indictment charging the defendant, Markeece T. Mosley, with second degree murder, a violation of LSA-R.S. 14:30.1. Following a jury trial, he was found guilty as charged. The trial court sentenced the defendant to the mandatory term of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. For the following reasons, we affirm.

FACTS

The defendant, Markeece T. Mosley, was a 17-year-old employee of Shreveport Green, a nonprofit organization through which youths and young adults were provided with jobs, paid for their work, and given money to use for further education upon completion of the program. The victim, Yvonne Lee, was the assistant director of Shreveport Green. The defendant did not have a vehicle; therefore, Mrs. Lee frequently drove him home after work.

On January 21, 2010, money and an iPhone were stolen from the purse of Donna Curtis, the executive director of Shreveport Green. Ms. Curtis called Cad-do Parish Sheriffs deputy, Mike Middleton, who met with three youths, including the defendant, who were present that day. Sgt. Middleton Mirandized the youths and questioned them together and separately about the missing property. He informed the youths that “things would go better” if the items were recovered quickly. The defendant “found” the iPhone almost immediately; however, the money was never recovered. Thereafter, Mrs. Lee met with the youths and informed them that if the money was not returned, they would be required to take a polygraph latest. She also told them that even if the money was returned, the person who took it would be dismissed from the program.

On February 3, 2010, Mrs. Lee drove the defendant home from work. In addition to giving the defendant a ride, Mrs. Lee was going to obtain consent from the defendant’s mother to administer a polygraph test. Surveillance cameras at Shreveport Green showed Mrs. Lee and the defendant getting into her car. The videotape showed that the defendant was wearing a white jacket with a bold design on the back.

Less than 20 minutes later, Johnny Hanson was driving on Wyngate Boulevard when he saw Mrs. Lee’s car parked on the wrong side of road. Hanson saw that the driver’s side door was open, the motor was running, and the headlights were on. Hanson went to investigate and asked Mrs. Lee if she needed help, but she did not respond. He flagged down other motorists and used a cell phone to call 9-1-1. Hanson walked toward the back of Mrs. Lee’s vehicle and saw a black purse on the ground; the contents of the purse were scattered.

Maren Strickland and her husband were also driving down Wyngate Boulevard when they were flagged down by someone who told them that a woman had been shot. Because Mrs. Lee’s vehicle had stopped in the northbound lane, facing south, Mr. Strickland parked his car in front of her vehicle, front-to-front, to protect it from oncoming traffic. Mrs. Strickland, a certified nursing assistant, attempted to render aid to Mrs. Lee, but there were no signs of life. She observed blood and noticed that the door was open and the window had been broken.

|sShreveport Police Corporal Greg Ru-dell was one of the responders to the 9-1-1 call. Cpl. Rudell testified as follows: he arrived on the scene and discovered Mrs. Lee “slumped over” in the driver’s seat, leaning toward the passenger side of the vehicle; the window on the driver’s side of the vehicle had been shattered; two expended shell casings were on the passenger side floorboard; blood was on the steering wheel; a pool of blood was on the driver’s side floorboard; droplets of blood were on the backseat; the blood pattern indicated that the victim had been moved from a “leaning forward” position on the steering wheel to an upright position; the victim was slumped to the right, so blood on the passenger’s side of the vehicle ran down the center console; the majority of the glass from the window was located inside of the vehicle; the victim’s purse and all of its contents were “dumped” outside the vehicle.

Dr. Christopher Wolcott, the Medical Director for the Shreveport Fire Department, also responded to the call. Dr. Wol-cott examined Mrs. Lee at the scene and discovered two bullet wounds on the right side of her face-one on her cheek and another in front of her ear. Mrs. Lee was pronounced dead at the scene. Subsequently, it was determined that Mrs. Lee died as a result of a gunshot wound to the head.

While processing the scene, police officers learned that the defendant was a possible suspect. They also discovered that the defendant lived in an apartment within 100 yards of the location of Mrs. Lee’s vehicle. Cpl. Rudell, along with other officers, went to the defendant’s apartment. When the officers arrived, the defendant, who was home with his mother, came out 14 of the back of the apartment wearing only boxer shorts. The officers obtained a warrant to conduct a search of the residence. During a search of the defendant’s bedroom, officers located a black backpack in the closet; the backpack contained a semiautomatic pistol. The officers also found $76 in cash under a pillow on the defendant’s bed; one of the bills appeared to have blood on it. Subsequently, the officers searched a dumpster outside the apartments. There, they discovered the defendant’s blood-soaked white jacket and some cotton gloves.

The defendant was transported to the police station. He waived his rights and submitted to an audiotaped interview and DNA testing. During the interview, the defendant made the following statements: he entered Mrs. Lee’s vehicle with a gun in the waistband of his pants; Mrs. Lee saw the gun when it came out of his waistband; Mrs. Lee “grabbed” the gun; he heard the gun “go off’ one time; he ran after the gun “went off’; he ran home and took a shower; he placed his bloody clothing in the dumpster at his apartment complex. The defendant denied intending to kill Mrs. Lee; he also denied taking her purse or anything else from the vehicle.

On March 17, 2010, a Caddo Parish grand jury returned an indictment, charging the defendant with second degree murder, “in that he killed Yvonne Lee when he had the specific intent to kill and inflict great bodily harm[.]” On February 8, 2011, the indictment was amended to state that the defendant possessed the specific intent to kill Mrs. Lee and that he killed her “while he was engaged in the perpetration [or] attempted perpetration of armed robbery of [Mrs.] Lee[.]”

|-A trial ensued, after which the jury found the defendant guilty of second degree murder. Following the verdict, the jury was polled, and the vote was 11-1 to convict the defendant as charged. The defendant filed a “motion for post-verdict judgment of modification,” requesting that a lesser verdict be entered. The trial court denied the motion and sentenced the defendant to the mandatory term of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence.

The defendant appeals his conviction and sentence.

DISCUSSION

The defendant contends the evidence adduced at trial was insufficient to support a conviction of second degree murder. He argues that the state did not meet its burden of proving that he had the specific intent to kill Mrs. Lee or that he killed Mrs. Lee during the commission of a robbery. The defendant maintains that the state relied upon circumstantial evidence to convict him of second degree murder; therefore, the state was required to “exclude every reasonable hypothesis of innocence,” pursuant to LSA-R.S. 15:438.

A claim regarding sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal. However, if the defendant fails to make such motion, the issue will be reviewed on appeal when raised by a formal assignment of error. LSA-C.Cr.P. art. 821 and art. 920; State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. In reviewing the sufficiency of | fithe evidence to support a . conviction,, the reviewing court must determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes charged were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for 7a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La. App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. LSA-R.S. 15:438. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984).

When a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant’s own testimony, an appellate court’s task in reviewing the sufficiency of the evidence under the | sDue Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, citing Captville, supra, and Jackson v. Virginia, supra. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965 (La.1986).

In the instant case, the defendant was convicted of second degree murder, in violation of LSA-R.S. 14:30.1. That statute provides, in pertinent part:

A. Second degree murder is the killing of a human being:"
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery ..., even though he has no intent to kill or to inflict great bodily harm.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. Specific intent may be established by circumstantial evidence alone if every reasonable hypothesis of innocence is excluded. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. Hill, supra.

Armed robbery is the taking of anything of value belonging to |flanother from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64(A).

In the instant case, the defendant argues that the state failed to prove that he had “a specific intent to kill or to inflict great bodily harm” upon the person of Mrs. Lee. He maintains that the gun discharged when Mrs. Lee attempted to grab or “swat at” it; therefore, the shooting was accidental. The defendant also argues that he did not kill Mrs. Lee during the commission of an armed robbery. According to the defendant, he did not remove Mrs. Lee’s purse from the vehicle. He argues that after he fled the scene, an unidentified third party “must have” happened upon Mrs. Lee’s lifeless body and removed her purse from the vehicle.

The defendant’s trial included the presentation of physical evidence, as well as the testimony of many witnesses. Dr. Long Jin, a forensic pathologist at LSU Health Sciences Center, performed the autopsy on Mrs. Lee. Dr. Jin testified as follows: Mrs. Lee sustained two gunshot wounds; the fatal shot was fired into an area slightly in front of Mrs. Lee’s right ear and exited the left side of her neck, below her left ear; the bullet fractured her cervical spine at C — 1; the barrel of the gun was approximately 20-24 inches from Mrs. Lee’s face when the gun was fired. Dr. Jin also testified that Mrs. Lee was facing the front of the vehicle when the shots were fired.

Mark Rogers, an independent consultant in the field of criminal justice, testified regarding the bloodstains found inside Mrs. Lee’s vehicle. Rogers testified as follows: the blood on the passenger seat was, more 110probable than not, transferred from an object that had wet blood on it, rather than being actively deposited on the seat and having an object smear; the blood smear was consistent with a jacket that had wet blood on it; the bloodstains found on the inside of the door on the driver’s side were not consistent with the injuries sustained to Mrs. Lee’s left side; the bloodstains were created by a wet bloody object coming into contact with the interior of the door, leaving a transfer of wet blood on the door. Rogers stated, “Someone opened the driver’s door and reached in and had blood on them that came in contact with the driver’s door.” Rogers testified that the bloodstains were consistent with the defendant’s jacket, which had blood covering the left side. Rogers also testified that because a bullet from the defendant’s gun was found at a residence on Wyngate Boulevard, in his opinion, Mrs. Lee was shot at that location, north of where her vehicle was discovered, and the vehicle continued to move until it came to rest against the curb.

| nAdditionaIly, Rogers also testified as follows regarding the vehicle’s broken driver’s side window: when a projectile is fired through a window, it “spider webs” the glass and causes the glass to break, not just where the bullet strikes, but through the entire sheet of safety glass; the glass remains in place until “something” knocks it out; a small area, where the bullet passes through, will be taken with the bullet, but the majority of the glass will stay in the window until someone opens the door; when the door is opened, the majority of the glass will fall inside, more than outside, the vehicle. Rogers testified that the evidence led him to believe that the shots were fired inside the vehicle, and the bullets exited the vehicle through the driver’s side window. He opined, with the “highest probability,” that the shooter was located in the passenger’s seat of the vehicle when the shots were fired.

Douglas Brent Lee, Mrs. Lee’s husband, also testified. He stated that Mrs. Lee kept “everything” in her purse, including her wallet, credit cards, money and notes. Mr. Lee also testified that on the day of her death, Mrs. Lee had gone to the bank and cashed several checks, one of which was in the amount of $200.

As stated above, the defendant’s audio-taped statement was played for the jury. In the statement, the defendant made the following assertions: he carried the gun to work every day “for protection”; on the day of the shooting, the gun was in the waistband of his pants; during the ride home, |12the gun came out of his waistband; Mrs. Lee saw the gun. When asked if Mrs. Lee tried to push the gun away, the defendant replied, “No ... when I pulled it out, she was trying to see what I had it for and all that. And she grabbed it. I didn’t even know I shot her two times, to be honest.” The defendant also stated that he did not know how the gun discharged. He stated that he heard the gun go off one time, and then he ran. When asked why did he pull the gun from his waistband, the defendant repeatedly replied, “I don’t know.” The defendant denied having the intent to kill Mrs. Lee. He also denied taking the defendant’s purse from the vehicle. The defendant stated that after he heard the gunshot, he ran home, removed his bloody clothes and shoes, and placed them in the dumpster.

After reviewing this record in its entirety, we find that the evidence was sufficient to support the defendant’s conviction. The defendant entered Mrs. Lee’s vehicle while armed with a weapon. The surveillance video at Shreveport Green showed the defendant getting into the victim’s car wearing a white jacket with a bold design on the back that was clearly visible on the video. The video also showed Mrs. Lee placing her purse on the floor on the driver’s side of the vehicle. Minutes later, Mrs. Lee’s vehicle was found within 100 yards of the defendant’s apartment with the victim, who was shot in the head, in the driver’s seat with the vehicle’s engine still running. Contrary to the defendant’s statement that the gun | ^discharged when the victim attempted to grab or “swat at” it, an expert witness testified that Mrs. Lee was facing the front of the car when she was shot. The evidence also established that after the shooting, the defendant, whose jacket was bloody, opened the driver’s side door, and removed Mrs. Lee’s purse. The purse was found behind the vehicle, with its contents scattered.

The defendant admitted in his statement to the police that his gun fired inside the victim’s car. When asked why he pulled the gun out of the waistband of his pants, the defendant responded, “I don’t know.” After shooting Mrs. Lee, the defendant attempted to hide his crime by disposing, of the clothing he was wearing at the time of the shooting. Despite his contention that the shooting was accidental, the defendant made no attempt to summon help for Mrs. Lee after he shot her.

Based on the foregoing evidence, the jury reasonably rejected the hypothesis of innocence presented by the defendant’s statement that the shooting was an accident; it was reasonable for the jury to conclude that the defendant had the specific intent to kill or to inflict great bodily harm upon Mrs. Lee. The evidence was sufficient to meet the Jackson standard; therefore, this assignment of error is without merit.

The defendant also challenges the constitutionality of LSA-C.Cr.P. art. 782, which provides that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 |14of whom must concur to render a verdict. The defendant argues that non-unanimous verdicts cannot survive constitutional review, in the bright light of recent decisions by the United States Supreme Court, which reexamine the history and application of the Sixth and Fourteenth Amendments’ guarantee of the right to trial by jury. The defendant also points out that Louisiana and Oregon are the only states that allow 10 out of 12 jurors to convict or acquit in criminal cases, except for guilty verdicts in first degree murder eases.

LSA-C.Cr.P. art. 782 provides for the number of jurors composing a jury, and the number which must concur in rendering the verdict. That article states, in pertinent part:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict[.]

Second degree murder is an offense for which “punishment is necessarily confinement at hard labor.” See, LSA-R.S. 14:30.1.

This Court and the Louisiana Supreme Court have consistently upheld the constitutionality of LSA-C.Cr.P. art. 782(A). See, State v. Jones, 381 So.2d 416 (La.1980); State v. Edwards, 420 So.2d 663 (La.1982); State v. Simmons, 414 So.2d 705 (La.1982); State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738; State v. Divers, 38,524 (La.App.2d Cir.11/23/04),15 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied, 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005); State v. Malone, 43,548 (La.App.2d Cir.11/19/08), 998 So.2d 322, writ denied, 2009-0198 (La.10/30/09), 21 So.3d 275; State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910, writ denied, 2011-0192 (La.6/17/11), 63 So.3d 1033; State v. Johnson, 45,828 (La.App.2d Cir.1/26/11), 57 So.3d 1087.

In Bertrand, supra, the trial court declared LSA-C.Cr.P. art. 782 unconstitutional, and the ruling was appealed directly to the Louisiana Supreme Court. The supreme court reversed the trial court’s ruling, stating:

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.

Id. at 743. See also, Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

In the instant case, we find that the defendant’s conviction for second degree murder by a vote of eleven to one was permissible under our federal and state constitutions. This assignment of error lacks merit.

The defendant also contends the sentence imposed, life imprisonment at hard labor without benefit of probation, parole or suspension of sentence, violates Article I, § 20, of the Louisiana Constitution. The defendant argues | ]6that the sentence is excessive in that it is nothing more than a purposeless and needless imposition of pain and suffering. The defendant also argues that the sentence excessively punishes him for a “rash act,” which should be punished in a manner that allows him some hope of rehabilitation and re-entry into society.

When a defendant fails to timely file a motion to reconsider sentence under LSA-C.Cr.P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Richie, 44,783 (La.App.2d Cir.10/28/09), 25 So.3d 879, writ denied, 2009-2492 (La.4/30/10), 34 So.3d 280.

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

LSA-R.S. 14:30.1(B) provides:

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor l17without benefit of parole, probation, or suspension of sentence.

Where there is a mandatory sentence, there is no need for the trial court to justify, under LSA-C.Cr.P. art. 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503. Mandatory sentences under LSA-R.S. 14:30.1 have been consistently upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. See, State v. Woods, 44,491 (La.App.2d Cir.8/19/09), 16 So.3d 1279; State v. Scott, 2009-2084 (La.4/9/10), 31 So.3d 380; State v. Wright, 42,956 (La.App.2d Cir.3/5/08), 978 So.2d 1062, writ denied, 2008-819 (La.10/31/08), 994 So.2d 532.

A court may depart from a mandatory minimum sentence only if it finds that the defendant presented “clear and convincing evidence” to rebut the presumption of constitutionality, which requires a showing that she is exceptional, ie., “because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the ease.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676, quoting State v. Young, 94-1636 (La.App.4th Cir.10/26/95), 663 So.2d 525, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223 (Plotkin, J., concurring).

In the instant case, although not required to do so, the trial court 11sconsidered the guidelines set forth in Article 894.1, prior to imposing the mandatory life sentence. The court found that every criterion set forth in Section A of that article applied in this case. The court stated that if the mandatory sentence was not imposed, there was a high risk that the defendant would commit another crime and that a lesser sentence would deprecate the seriousness of the offense.

We agree. The gravity of the instant offense and the culpability of the defendant warrant no downward departure from the legislatively mandated life sentence. The defendant shot an unarmed Mrs. Lee twice in the head as she gave him a ride home from work. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

      . The jury verdict form contained the following "possible verdicts”: second degree murder; manslaughter; negligent homicide; and not guilty.

      . Elsie Moore, who lived at 7901 Wyngate Boulevard, testified that she was out shopping on the night of the shooting and got a call to return home. When she arrived at home, she found glass in the middle of the street directly in front of her house. A few days later, she realized the window to one of her bedrooms had been broken, and when she pulled a bed away from the window, she found a bullet hole in the headboard of the bed in front of the window. She called the Shreveport Police Department, and officers came to investigate.
      Detective Lowell Bowen, a Shreveport Police Department Violent Crimes Investigator, testified that approximately one week after Mrs. Lee was killed, he was called to Moore’s home to investigate. He and another officer traced the bullet through the window, into the headboard, and recovered a lead projectile inside the headboard of the bed. The bullet was sent to be processed at the crime lab. It was later determined that the bullet was fired from the gun recovered from the defendant's apartment.
      Corporal Tracey Mendels, a Shreveport Police Department Crime Scene Investigator, testified regarding a diagram that she had prepared depicting the 7900 and 8000 blocks of Wyngate Boulevard. She testified that a bullet hole entered the house at 7901 Wyngate Boulevard, and glass was in the area in front of that home. The glass was scattered and was found at 7905, 7909, and 7913 Wyngate, and appeared to be glass from a window. These houses were located on the east side of Wyngate, or to the left of the direction in which Ms. Lee's car was heading. Cpl. Men-dels testified that the diagram shows a distance measurement of 516 feet, two inches from the bullet hole in the house to the point where the victim’s car was found.

      . None of the witnesses testified as to the exact time they arrived on the scene; all testimony of responding law enforcement officers and the fire department indicates those people arrived within five to ten minutes from when they received the call, but none give the time. An "Incident/Investigation Report” found at page 35 of the record, filed by L.T. Bowen, states that on Feb. 3, 2010, at approximately 6:35 p.m., he was contacted by Detective Holmes in reference to a shooting in the area of 8000 Wyngate, and that he arrived at 6:50 p.m. on the scene. Therefore, less than 20 minutes elapsed between the time the victim and defendant left Shreveport Green and the time the victim’s car was found on Wyn-gate.

      . The defendant points out that in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), the United States Supreme Court rejected Louisiana's former practice of permitting non-unanimous verdicts in six-member juries, holding that five out of six jurors could not return a constitutional verdict.


author: PAUL A. BONIN, Judge. McKAY, J.,

text:
    John JOHNSON, Individually and as a Representative of the Class of those Similarly Situated v. ORLEANS PARISH SCHOOL BOARD, XYZ Insurance Company, City of New Orleans, and ABC Insurance Company.
    No. 2010-CA-1388.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2011.

      Stephen B. Murray, Sr., Murray Law Firm, Linda S. Harang, Suzette P. Bag-neris, The Bagneris Firm, L.L.C., George J.G. Roux, Joseph M. Bruno, New Orleans, LA, for Plaintiff/Appellee, John Johnson, et al.
    Matt J. Farley, Maura Z. Pelleteri, Amy S. Malish, Krebs Farley & Pelleteri, P.L.L.C., New Orleans, LA, Michael V. Clegg, Brent B. Boxill, Baton Rouge, LA, for Appellant, Republic Insurance Company-
    James M. Garner, Martha Y. Curtis, Amanda R. Schenck, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Appellant, United States Fire Insurance Company.
    Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, Chad J. Moliere, S. Suzanne Mahoney, Johnson Gray McNamara, LLC, New Orleans, LA, Richard W. Bryan, Jackson & Campbell, Washington, DC, for Appellant, National Union Fire Insurance Company of Pittsburgh, PA.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

11 National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Republic Insurance Company, and United States Fire Insurance Company appeal the partial summary judgment of the trial court finding that the Personal Injury Liability coverages provided by the appellants’ individual policies have no aggregate limits. The trial court reasoned that because each policy is ambiguous as to whether it contains an aggregate limit for PIL coverage and because ambiguity in insurance policies should be construed against the insurer and in favor of coverage, all three of the policies should be read to provide PIL coverage without any aggregate limit.

The decision below granted the class-action plaintiffs’ motions for partial summary judgment seeking a declaration that none of the appellants’ policies contains an aggregate limit for PIL coverage.

After our de novo review, we find that the policies of National Union and Republic are ambiguous regarding their limitations of PIL coverage; we, however, disagree with the trial court’s finding that there is no genuine issue of material fact raised by that ambiguity. Because there is a genuine issue of material fact, we find |2that summary judgment is improper. The policy of U.S. Fire, on the other hand, unambiguously provides PIL coverage without limitation. But reformation may be sought when the policy clearly does not reflect the intent of the parties. Because the intent of the parties is a genuine issue of material fact, summary judgment as to U.S. Fire is improper as well.

Accordingly, we reverse the trial court’s judgment and remand the matter to the district court for further proceedings, including trial of the issues presented concerning the existence or amount of aggregate limits.

Below we explain our reasoning in greater detail. We first set out the facts underlying the plaintiffs’ claims. Next, we set forth this matter’s lengthy procedural history. Following a discussion of the applicable law, we will examine the policies at issue to determine whether the trial court correctly ruled that each of the three lacks any type of aggregate limit on PIL coverage.

I

The origin of this case dates back to the early 1900s, when the land underlying this litigation was first leased by the City of New Orleans and used as a garbage dump known as the Agriculture Street Landfill. Johnson v. Orleans Parish Sch. Bd., 06-1223, p. 1 (La.App. 4 Cir. 1/30/08), 975 So.2d 698, 703, writs denied, 08-0607, 08-0664, 08-0671, 08-0672, 08-0673, 08-0674, 08-0675, 08-0682 (La.6/27/08), 983 So.2d 1289-1291 (Johnson VI). The regular use as a landfill ceased in 1958, but the site reopened in 1965 as a place to dispose of debris from Hurricane Betsy. Id.

In 1967, the Housing Authority of New Orleans and the City of New Orleans planned a residential development, known as Press Park, in the Landfill area. Id. Part of the new project gave residents the option of a “turnkey” program, |3whereby the residents could become owners of their town home units. Id. The “turnkey” program allowed a portion of the tenants’ rent to be put into an escrow account until the residents had amassed enough money to purchase the unit, at which time the title to the property would be transferred to the resident. Id. At no time were the residents or purchasers of property in the Press Park development notified that they were renting or purchasing land that was formerly a landfill, nor were any remedial measures undertaken to mitigate the effects of building on a landfill. Id.

The City tested the soil before constructing the next development, Gordon Plaza. Id. This time the City put one foot of clean soil on top of the ground before it built the single-family houses. Id. Purchasers of the homes were not informed that their homes were on the site of a former landfill. Id.

The Louisiana Department of Health and the Agency for Toxic Substance Disease Registry, a federal agency under the United States Department of Health and Human Services, conducted a study of the children in the Landfill area between 1985 and 1986 to determine “whether there was an increased incidence of elevated blood lead levels.” Id. at 704. The residents were never told that their children had been exposed to excess amounts of lead. Id.

The Environmental Protection Agency tested the site in 1986 to determine whether the Landfill neighborhood was contaminated. Id. The residents were never given the result of that test. Id. The EPA returned in 1998 to study the soil once again, and it determined that more than one hundred forty toxic and hazardous materials, more that forty of which are known to cause cancer in humans, were found in the soil. Id. At that time, the EPA told the residents to take Lprecautions against having any contact with the soil. In 1994, the EPA listed the Landfill area as a “Superfund” site. Id.

The EPA financed a twenty million dollar remediation project from 2000 to 2001. Id. The EPA project removed the top two feet of soil, replaced the removed soil with clean soil, and placed a semi-permeable “felt-like” barrier in between the old and new layers of soil. Id. No remediation was performed underneath any streets or buildings, and only one foot of soil could be replaced in some areas. Id. After the EPA completed the remediation project, the residents were given certificates showing that their property had been partly remediated. Id. The residents now have permanent restrictions imposed on the use of their property and have a duty to maintain the clean layer of topsoil as well as the semi-permeable barrier underneath it. Id.

The present controversy centers on the policies issued by National Union, Republic, and U.S. Fire to HANO and in effect at times the class members were exposed to the harmful soil. The record indicates that the three insurers insured HANO successively. Specifically, U.S. Fire insured HANO from May 30,1978 to May 30,1981. Next, National Union insured HANO from May 30, 1981 to May 30, 1984. Lastly, Republic insured HANO from May 31, 1984 to May 31,1985.

II

In this Part we set out this matter’s lengthy procedural history. The plaintiffs timely filed suit on August 31,1993. Since then, seven appeals have been taken.

|fiIn the first appeal, Johnson v. Orleans Parish Sch. Bd., 00-825, 00-826, 00-827, 00-828 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, writs denied, 01-2215, 01-2216, 01-2225 (La.11/9/01), 801 So.2d 378, this court affirmed the trial court’s certification of the class.

After the class was certified, the School Board, the City of New Orleans, and HANO brought third-party demands against additional entities, alleging that the third parties had improperly dumped hazardous waste in the landfill, and, therefore, should be responsible for any injuries suffered by the plaintiffs. The trial court dismissed the third-party defendants on exceptions of no cause of action and no right of action. The School Board, the City of New Orleans, and HANO appealed that decision in Johnson v. Orleans Parish Sch. Bd., 03-0828, 03-1573 (La.App. 4 Cir. 11/3/04), 890 So.2d 579 (Johnson II). This court affirmed the decision of the trial court and remanded with the instruction that the defendants may amend their third-party demands within thirty days. Id., 890 So.2d at 583. In the third appeal, Johnson v. Orleans Parish Sch. Bd., 04-1352, p. 3 (La.App. 4 Cir. 2/16/05), 897 So.2d 812, 815 (Johnson III), this court addressed issues similar to those found in Johnson II. There, two third-party defendants, who had not initially filed exceptions along with the other third-party defendants in Johnson II, adopted the arguments of one of the third-party defendants who had been dismissed in Johnson II. This court in Johnson III affirmed and remanded the dismissal of third-party defendants just as it had done in Johnson II.

The School Board, the City of New Orleans, and HANO amended their third-party demands, and the third-party defendants again filed exceptions of no | flcause of action and no right of action. Johnson TV and Johnson V affirmed the trial court’s dismissals of the third-party defendants.

Trial was held from January 7, 2005 to March 11, 2005. The trial court rendered judgment on January 12, 2006 in favor of the plaintiff class and against HANO and its insurers, finding the insurers’ PIL coverages to be applicable to the damage claimed by the plaintiffs. Johnson VI at 714. That judgment also required HANO’s insurers to pay directly to the class whatever was owed by HANO and gave the insurers the right of contribution against HANO. Id.

After this court’s affirmation of the insurers’ liability, Republic filed a separate suit in federal court seeking a judgment declaring Republic’s PIL coverage to have an aggregate limit of one million dollars. Because Republic named only HANO as a defendant in the federal court suit, the federal court did not hear the plaintiffs’ arguments in favor of a finding of no aggregate limit. On July 28, 2009, the federal district court declared that the PIL coverage in Republic’s policy had an aggregate limit of one million dollars and capped Republic’s liability for PIL claims at one million dollars. The state trial court’s judgment declaring Republic’s PIL coverage to be without limit did not mention the federal court judgment.

The current appeal, Johnson VII, does not concern the existence, vel non, of coverage because that issue was resolved in Johnson VI; rather, this appeal concerns whether there is an aggregate limit to the established coverage. The trial court, in its February 26, 2010 judgment, found each of the insurance policies to be 17ambiguous. The trial court reasoned that “if the Plaintiffs are correct that the policies are ambiguous, then they are also correct that the policies contain no aggregate limit.”

Ill

In this Part we address the law governing motions for summary judgnent and the principles of insurance contract interpretation.

A

A motion for summary judgment will be granted “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.” La. C.C.P. ÁRT. 966(B). This court reviews a grant or denial of a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id,.

In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. A fact is material if it is one that would matter at trial on the merits. Put differently, a fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they “potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Woodland Properties, L.L.C. v. New Orleans Sewerage and Water Bd., 10-0331, p. 3 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445. Simply put, a material fact is one that would matter on the trial on the | ^merits. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.” Suire v. Lafayette City-Parish Consol. Govt., 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. In order to determine whether a fact is material, a reviewing court must evaluate the substantive law that governs the litigation at issue. Woodland, Properties, 10-0331, p. 4, 49 So.3d at 445.

A “genuine issue” is a triable issue, that is, an issue on which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact. Windham v. Murray, 06-1275, p. 3 (La.App. 4 Cir. 5/30/07), 960 So.2d 328, 331.

B

Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Bonin, 05-0886, p. 4, 930 So.2d at 910. In analyzing insurance policies, certain elementary legal principles apply. First and foremost is the rule that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89. According to the rules of construction, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties’ common intent. See, La. Civil Code Art. 2045; Edwards v. Daugherty, 03-2103, p. 11 (La.10/1/04), 883 So.2d 932, 940. Courts begin their analysis of the parties’ common intent by examining the words of the | insurance contract itself. See, La. Civil Code Art. 2046; Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 7 (La.5/22/07), 956 So.2d 583, 589. In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See, La. Civil Code Art. 2047; Edwards, 03-2103, p. 11, 883 So.2d at 940-941.

Further, an insurance contract is to be construed as a whole, and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See, La. Civil Code Art. 2050; Hill v. Shelter Mutual Insurance Co., 05-1783, p. 3 (La.7/10/06), 935 So.2d 691, 694. Neither should an insurance policy be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Edwards, 03-2103, p. 11, 883 So.2d at 941.

When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and courts must enforce the contract as written. See, La. Civil Code Art. 2046; Hill, 05-1783, p. 3, 935 So.2d at 694. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Cadwallader v. Allstate Insurance Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity [inwhere none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Edwards, 03-2103, p. 12, 883 So.2d at 941.

Nevertheless, if, after applying the general rules of contractual interpretation to an insurance contract, an ambiguity remains, the ambiguous contractual provision is generally construed against the insurer and in favor of coverage. See, La. Civil Code Art. 2056; Sims, 07-0054, p. 9, 956 So.2d at 589-590. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Cadwallader, 02-1637, p. 4, 848 So.2d at 580. Similarly, in construing the language of an exclusionary clause in an insurance policy, courts must look to the general rule that exclusionary clauses are to be narrowly construed against the insurer and in favor of coverage. Pizzetta v. Lake Catherine Marina, LLC, 08-0648, p. 3 (La.App. 4 Cir. 9/17/08), 995 So.2d 26, 29. This strict construction principle applies, however, only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Edwards, 03-2103, p. 12, 883 So.2d at 941.

The policies at issue in the present case are comprehensive general liability policies. Liability under a comprehensive liability policy is only as provided in the policy and attached endorsements. Zeitoun v. Orleans Parish School Bd., 09-1130 (La.App. 4 Cir. 3/3/10), 33 So.3d 361, 365. The parties are free to select the types of risks to be covered. Id. An insurer, like other individuals, is entitled to limit its liability and to impose and enforce reasonable conditions upon the policy obligations it contractually assumes; it may change or amend the coverage |nprovided by the policy by an endorsement attached to the policy as long as the provisions and/or endorsements do not conflict with statutory law or public policy. Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-0911, p. 6 (La.1/14/94), 630 So.2d 759, 763. If an endorsement is attached to the policy and the policy and endorsements are parts of the same contract, the endorsement becomes part of the contract, and the two must be construed together. Zeitoun, 09-1130, p. 4, 33 So.3d at 365. If a conflict between the endorsement and the policy exists, the endorsement prevails. Id. If coverage is provided in the policy, but then excluded in the endorsement to the policy, coverage will be excluded. Id.

The interpretation of an insurance policy is normally a question of law. Armenia Coffee Corporation v. American National Fire Ins. Co., 06-0409, p. 6 (La.App. 4 Cir. 11/21/06), 946 So.2d 249, 253. Likewise, the determination of whether a contract is clear or ambiguous is a question of law. Edwards, 03-2103, pp. 12-13, 883 So.2d at 941. Moreover, when a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Sims, 07-0054, p. 10, 956 So.2d at 590. On the other hand, when a contract is determined to be ambiguous, an issue of material fact exists, and the matter is not ripe for summary judgment. Total Minatome Corp. v. Union Texas Products Corp., 33,433 (La.App. 2 Cir. 8/23/00), 766 So.2d 685.

IV

With the foregoing basic principles in mind, we turn in this Part to an examination of each of the policies at issue to determine whether the trial court correctly ruled that each of the three lacks any type of aggregate limit on personal injury liability coverage.

JjaA

Here we first examine the policy issued by National Union to RANO. The PIL portion of National Union’s policy with HANO provides the following provision regarding its limitation of liability:

III. LIMITS OF LIABILITY; INSURED’S PARTICIPATION
Regardless of the number of (1) insureds under this policy, (2) persons or organizations who sustain personal injury, or (3) claims made or suits brought on account of personal injury, the total limit of the company’s liability under this coverage for all damages shall not exceed the limit of personal injury liability stated in the schedule as “aggregate.”

The policy’s schedule is divided into two columns; “Coverage” and “Limits of Liability.” The only dollar amount printed on the schedule is “500,000” and is placed under the column titled “Coverage,” and to the immediate left of the column titled “Limits of Liability,” which contains the pre-printed words “thousand dollars aggregate.”

The plaintiffs argued to the trial court that the placement of the number on the schedule creates an ambiguity in that a reasonable insured could look at the schedule and conclude that the policy’s PIL coverage had no aggregate limit, or that it had a coverage limit of $500,000.00 per occurrence. National Union argued that its policy unambiguously provided PIL coverage subject to an aggregate limit of $500,000.00. In the alternative, National Union asserted that if the trial court were to find the policy ambiguous, discovery and expert testimony would be needed to ascertain why the number 500,000 was typed in the portion of the Schedule, and the mutual intent to of the parties to the insurance contract with regard to aggregate.

113The trial court found National Union’s policy to be ambiguous and interpreted the policy as if it placed no aggregate limit on the amount of personal injury liability coverage. In its reasons for judgment, the trial court noted that the placement of the number on the schedule does not logically fit into either column, and observed that National Union argued that the number actually belonged in the “Limits of Liability” column but was inadvertently typed into the form a few inches to the left. The trial court observed that if this supposition were accepted as fact, then the limits of liability would be $500,000,000.00.

Our de novo review of the policy convinces us that National Union’s policy is ambiguous. A fair reading of the policy discloses that National Union meant to limit its coverage, but there is a genuine issue of material fact whether the aggregate limit is $500,000.00 or $500,000,000.00. Indeed, the trial court correctly noted that the positioning of the 500,000 is “inexplicable” and supports the existence of a genuine issue of material fact. National Union raised genuine issues of material fact that preclude summary judgment in favor of the plaintiffs. The trial court, however, bypassed further analysis and the required application of the rules governing the interpretation of contracts, misapplied the rule of strict construction, misconstrued National Union’s policy in favor of unlimited PIL coverage, and granted improvidently the plaintiffs’ motion for summary judgment. Because the material issue of fact related to this policy’s limits cannot be resolved by summary judgment, it must be resolved after a trial on the merits.

B

We next examine the policy issued by Republic to HANO. Republic’s policy with HANO defines its personal injury liability coverage accordingly:

114The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of pei’sonal injury or advertising injury to which this insurance applies ... but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.

Republic’s policy with HANO also provides the following limitation of liability clause:

Regardless of the number of (1) insureds hereunder, (2) persons or organizations who sustain injury or damages, or (3) claims made or suits brought on account of personal injury or advertising injury, the total limit of the company’s liability under this coverage for all damages shall not exceed the limit of liability stated in this endorsement as “aggregate.”

Instead of setting out a dollar amount, the aforementioned endorsement points the reader to a different form, to wit:

Personal Injury and Advertising Liability
Aggregate Limit shall be the per occurrence bodily liability limit unless otherwise indicated herein.
Limit of Liability $ See L639ía Aggregate.

Republic’s Form L6394a, entitled “Comprehensive General Liability Insurance,” sets out a single dollar amount. Specifically, the “Limits of Liability” section on Form L6394a is comprised of two columns, one named “each occurrence,” and the other named “aggregate.” The line pertaining to bodily injury liability indicates that the per occurrence limit is $1,000,000.00 while the aggregate limit is expressed as “nil.”

The plaintiffs argued to the trial court that Republic’s policy is ambiguous on this point because the endorsement provides for at least two possible, and differing, aggregate limits. The plaintiffs assert that the endorsement first indicates that the PIL coverage’s aggregate limit shall be the “per occurrence |1sbodily injury liability limit unless otherwise indicated herein.” The plaintiffs next assert that the notation directing the reader to a different limit found in Form L6394a contradicts the foregoing statement. The plaintiffs further argue that Form L6394a is confusing because it fails to mention personal injury liability coverage, or specify any aggregate. Thus, the plaintiffs argued that Form L6394a is ambiguous because a reader cannot discern whether the PIL aggregate limit is the per occurrence bodily injury liability limit of $1,000,000.00 or whether it is “nil.” Republic argued that its policy unambiguously provided PIL coverage subject to an aggregate limit of $1,000,000.00.

In the alternative, Republic asserted that if the trial court were to find the policy ambiguous, extrinsic evidence, such as the policy binder, should be examined to ascertain the intent of the parties. Ruling for the plaintiffs, the trial court found Republic’s limitation of the policy’s PIL coverage to be ambiguous because it could not ascertain whether the limit of PIL coverage was the per occurrence bodily injury limit or “nil.”

Our de novo review of the policy convinces us that the trial court correctly held that Republic’s policy is ambiguous. Simply put, a fair reading of the policy reveals a genuine issue of material fact as to whether the reference to Form L6394a is for a $1,000,000.00 limit or no limit whatsoever. However, contrary to the trial court’s legal conclusion, the proper method of resolving this ambiguity is not to automatically construe the ambiguous language against Republic but instead to deny the plaintiffs’ motion for summary judgment. Accordingly, we conclude that the trial court erred when it found the policy ambiguous yet failed to deny the plaintiffs’ motion. The record reveals genuine issues of material fact that preclude summary judgment in favor of the plaintiffs.

JjiC

The final policy we examine is the one issued by U.S. Fire to HANO. U.S. Fire’s policy with HANO defines its personal injury liability coverage accordingly:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called “personal injury”) sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the named insured’s business:
Group C — wrongful entry or eviction, or other invasion of the right of private occupancy;
If such offense is committed during the policy period within the United States of America, its territories or possessions, or Canada, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.

U.S. Fire’s policy with HANO also provides the following limitation of liability clause:

Regardless of the number of (1) insureds under this policy, (2) persons or organizations who sustain personal injury, or (3) claims made or suits brought on account of personal injury, the total limit of the company’s liability under this coverage for all damages shall not exceed the limit of personal injury liability stated in the schedule as “aggregate.”

The schedule directs the reader to “See Endorsement # 1.” Endorsement # 1 provides for a single limit of liability of $100,000.00 per occurrence and for $100,000.00 aggregate. The last sentence of the endorsement, however, provides: “This endorsement does not apply to Personal Injury Liability Insurance coverage |17on this part.” The trial court agreed with the plaintiffs and found U.S. Fire’s policy to be ambiguous.

Our de novo review of U.S. Fire’s policy, however, convinces us that the policy unambiguously does not provide for an aggregate limit. Where the policy form provides a space to insert the amount of the aggregate limit for personal injury liability coverage, U.S. Fire instead inserted “See Endorsement # 1.” But Endorsement # 1 clearly and unambiguously provides that it does not apply to PIL coverage. Thus, as written, U.S. Fire’s policy with HANO fails to set out an aggregate limit for the PIL coverage.

Ordinarily, we would not go further in search of the intent of the parties beyond the unambiguous contractual language. But here there is an exceptional circumstance which does not necessarily result in a finding that U.S. Fire’s PIL coverage is unlimited. In its opposition to the plaintiffs’ motion for partial summary judgment, U.S. Fire asserted that it is entitled to reformation of the policy to conform to the intent of it and its insured in the event the policy is found to be unambiguous. As this court said in Hope v. S & J Diving, Inc., 08-282, pp. 7-8 (La.App. 4 Cir. 9/24/08), 996 So.2d 50, 54-55:

Louisiana has adopted the rule that a written insurance contract can be reformed to conform to the original intention of the parties. In Samuels v. State Farm Mut. [Automobile] Ins. Co., 06-0034 (La.10/17/06), 939 So.2d 1235, the Court stated: “As other written agreements, | isin sur anee policies may be reformed if, through mutual error or fraud, the policy as issued does not express the agreement of the parties.” Id., pp. 6-7, 939 So.2d at 1240, citing William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice, Vol. 15, § 5, p. 14 (2nd Ed.1996); Earl Williams Const. Co. v. Thornton & Brooks, Inc., 501 So.2d 1037, 1039 (La.App. 2 Cir.), writ denied, 504 So.2d 881 (La.1987). “In the absence of fraud, the party seeking reformation has the burden of proving a mutual error in the written policy.” Id. “Parole evidence is admissible to show mutual error even though the express terms of the policy are not ambiguous.” Id. In Ferguson v. Belcher and Son, 230 La. 422, 88 So.2d 806 (1956), the Court indicated that “the burden is on the one seeking the reformation to prove the error, and he must carry said burden by clear, and the strongest possible proof.” Id. This requirement was modified in Bonadona v. Guccione, 362 So.2d 740 (La.1978), which held that the clear and convincing evidence of mutual mistake was necessary only when a party seeks to prove that the insurer had insured a substantially different and greater risk than that expressed by the written policy. Id. at 744. On the other hand, only the normal burden of proof by a preponderance of the evidence was required to reform a policy in a manner which did not substantially affect the risk assumed by the insurer. Id.

In support of their position, U.S. Fire attached the affidavit of Thomas Lyle Carlson, the underwriter for the U.S. Fire policy, to its opposition to the plaintiffs’ motion for partial summary judgment. The affidavit, unrefuted by the plaintiffs, clearly establishes that Mr. Carlson intended to reference the dollar amount of $100,000 shown in Endorsement No. 1 as annual aggregate limit of liability, not to insert the whole of Endorsement No. 1 into the space provided. Thus, a genuine issue of material fact is established precluding the granting of the plaintiffs’ motion for summary judgment. Our jurisprudence recognizes, as the plaintiffs’ counsel conceded in oral argument, that raising the issue of reformation of the insurance contract in opposition to the motion for summary judgment is Insufficient to raise the issue as a defense to be considered by the courts. See Dubois v. FabCon, Inc., 02-1731, pp. 5-6 (La.App. 4 Cir. 5/21/03), 848 So.2d 679, 683-84; Walters v. Metropolitan Erection Co., 94-0162, 94-0475, pp. 6-7 (La.App. 4 Cir. 10/27/94), 644 So.2d 1143, 1147; see also West v. Ray, 210 La. 25, 26 So.2d 221 (La.1946); Boudreaux v. State, Dept. of Transp. and Development, 00-0050 (La.App. 1 Cir. 2/16/01), 780 So.2d 1163. By so raising the issue in U.S. Fire’s opposition, the plaintiffs have been given fair notice that the issue of reformation (error) is relevant and material if one is to assert that the contract of insurance is unambiguous.

Accordingly, the trial court erred when it granted the plaintiffs’ motion for summary judgment against U.S. Fire. At the trial on the merits, U.S. Fire will have an opportunity to prove mutual error in order to reform the unambiguously-worded policy. If unsuccessful in its proof, however, the policy must be enforced as written, i.e., without any aggregate limit.

DECREE

We reverse the trial court’s partial judgment in favor of the plaintiffs, finding that the personal injury liability portions of the policies issued by National Union, Repub-lie, and U.S. Fire to HANO contained no aggregate limit. We remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED

McKAY, J., concurs in part and dissents in part with reasons.

McKAY, J.,

concurs in part and dissents in part with reasons.

|,I concur with the majority opinion in so far as it concerns National Union and Republic. However, I respectfully dissent and would affirm the trial court’s granting of summary judgment in favor of the plaintiffs and against U.S. Fire.

The majority is correct that the U.S. Fire policy unambiguously provided personal injury liability (PIL) coverage without limitation. The policy at issue in this case is a form contract drafted by U.S. Fire and it lacks an explicit aggregate cap for PIL coverage. Insurers are free to limit their coverage but their limitations must be clear and explicit.

It has become well-settled law in the field of insurance that words and phrases employed in a contract of insurance are to be construed, interpreted and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense; that such words and phrases are to be construed liberally in favor of the policyholder and that all ambiguities are likewise to be resolved in favor of the policyholder. Carney v. American Fire & Indent. Co., 371 So.2d 815, 818 (La.1979). “[Pjolicy language extending coverage is broadly interpreted, while policy language excluding coverage is restrictively interpreted.” Pinell v. Patterson Services, Inc., 481 So.2d 594, 596 (La.1986). If “the words of | ga contract are clear and explicit and lead to no absurd consequences, no further interpretation” is necessary. See La. C.C. art. 2047. As the majority has stated, U.S. Fire’s policy unambiguously provided PIL coverage without limitation.

Reformation should not be applied in this case. The whole concept of reformation is actually somewhat alien to our civilian tradition. Courts are prohibited from taking parol evidence to explain or contradict the insurance contract’s clear meaning. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024.

In Louisiana, summary judgment is favored and should be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). When a contract is not ambiguous or does not lead to absurd consequences, its interpretation is a question of law for a court to decide. Am. Deposit Ins. Co. v. Myles, 2000-2457 (La.4/25/01), 783 So.2d 1282, 1286. Furthermore, the interpretation of an insurance contract is usually a legal question which can be properly resolved in the framework of a motion for summary judgment. Robinson v. Heard, 2001-1697 (La.2/26/02), 809 So.2d 943, 945. In the instant case, the U.S. Fire policy unambiguously provides PIL coverage without limitation. Accordingly, summary judgment was appropriate as to U.S. Fire.

      . The plaintiffs file separate motions for summary judgment as to each insurer, but the trial court rendered its decision in a single judgment granting summary judgment.

      . In its brief, Republic states that its policy was effective until October 4, 1985. The judgment by the trial court on January 12, 2006 found that the policy was effective until May 31, 1985.

      .Respectively: Johnson v. Orleans Parish Sch. Bd., 05-0796 (La.App. 4 Cir. 3/22/06), 929 So.2d 761; and Johnson v. Orleans Parish Sch. Bd., 05-1488 (La.App. 4 Cir. 8/9/06), 938 So.2d 219.

      . Johnson VI also addressed damage awards made to specifically named individuals in various subclasses, which awards are now final and unappealable.

      . Republic has not filed an exception of res judicata.

      . While the policy is unambiguous, it is nevertheless illogical to incorporate the words of Endorsement No. 1 of the U.S. Fire policy into the PIL coverage. Further, it is illogical to incorporate words applicable to bodily injury and property damage coverages into a blank space left for the insertion of the amount on the PIL coverage portion of the policy. Whereas PIL coverage referenced Endorsement No. 1 in the blank space for the dollar amount of aggregate limits of liability applicable to PIL coverage, it is clear that reference is being made to the wording of the endorsement, not the dollar amount in Endorsement No. 1. U.S. Fire was not HANO's only insurer; American Universal Insurance Company provided an excess policy that provided HANO coverage over the $100,000 aggregate limit.

      . The concept of reformation of a contract lies within the Civil Code articles respecting error, La. Civil Code. arts. 1948 and 1950, et seq.

      . The affidavit was properly before the trial court as being attached to U.S. Fire's opposition to the plaintiffs' motion for partial summary judgment, and it is properly before us; all that is required is its formal and actual attachment to the written opposition (a pleading in fact) to be before the court for consideration. See La. C.C.P. Arts. 853, 966 and 967. The plaintiffs’ statement in brief that the affidavit is not properly part of the record before us is inexplicable.


author: COOKS, Judge.

text:
    Julie C. WHITE, et vir. v. Lucas STRANGE, et ux.
    No. 11-523.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2011.
    Susan Ford Fiser, Alexandria, LA, for Plaintiffs/Appellees, Julie C. and James White.
    Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellants, Lucas and Sheri Strange.
    Richard E. Lee, Pineville, LA, for Defendant/Appellee, Cindy English.

      Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

|, This appeal involves a suit on a contract to buy and sell real estate. The prospective buyers in this case attempted to terminate the contract to buy the property. Finding the parties entered into a valid and binding agreement to buy and sell property and the seller did not receive a timely written notice to cancel the sale from the buyer, the trial court rendered judgment in favor of the sellers. This appeal followed.

FACTS AND PROCEDURAL HISTORY

The plaintiffs-prospective sellers are Julie and James White and the defendants-prospective buyers are Lucas and Sheri Strange. The home and accompanying property located in Pineville, Louisiana, is titled in the name of Julie Converse Baker, who purchased the property before her marriage to James White. The Stranges both signed the buy and sell agreement on December 3, 2008. Julie Converse Baker White signed the buy and sell agreement on December 4, 2008.

The buy and sell agreement contained certain standard provisions for the buyer’s right of inspection. The buyer had an eight-day inspection period, beginning on the day after the buy and sell agreement was signed. If the buyer was not satisfied with the condition of the property, the buyer had the following options: (1) elect, in writing, to terminate the agreement and declare it null and void, or (2) indicate in writing the deficiencies and desired remedies from the seller. The seller then has seventy-two hours in which to respond in writing to indicate any willingness to remedy the deficiencies. If the seller declines to remedy some or all of the problems, the buyer then has a seventy-two hour period to (1) accept the seller’s response; (2) accept the current condition of the property; or (3) elect to terminate the agreement. The buy and sell agreement also provides that the buyer’s failure to make an inspection or failure to respond in writing Rwithin the eight-day period shall be deemed an acceptance of the current condition of the property.

The inspection period for the property in question was December 5, 2008 through December 12, 2008. An inspection of the property was performed by Daniel Tarver on December 6, 2008. The report contained the following pertinent comments: “The retaining wall is leaning. I also noted wood rot on several of the landscape timbers.”

After reading the inspection report, Mr. Strange, who had a mechanical engineering degree, was concerned over the problems with the retaining wall. He believed repairs of the wall would be costly, and questioned whether he wanted to incur such an expense. The Stranges’ real estate agent, Angie Sikes, informed Cindy English, the White’s real estate agent, of the Stranges’ concerns and the possibility they might seek to terminate the buy and sell agreement.

Ms. English then requested a second inspection report on the retaining wall. Mr. Tarver inspected the property a second time and reported that the retaining wall was intact and there was no erosion. He noted maintenance and eye appeal could be improved for approximately $5,000.00 to $6,000.00.

Following this report, on December 9, 2008, the Stranges sent to Sikes an e-mail asserting they wished to terminate the contract and declare the contract null and void. They stated the “decision was made due to the uncertainty of the structural soundness of the retainer wall and the potential damage that could be caused.” Sikes then forwarded this e-mail to Brad Youngblood, a loan officer who was working with the Stranges, who acknowledged receipt of the e-mail. Ms. Sikes also asserted she forwarded a copy of the e-mail to English, but English denied ever receiving the e-mail. There was a previous incident acknowledged by both Sikes and English, involving an e-mail that was sent by Sikes that English could not open. A copy of the e-mail was then faxed to English.

|sSikes and English testified they had a conversation on December 9, 2008. In that conversation, Sikes maintained she had gotten confirmation from English that she had received the e-mail. Sikes believed she had made a written notation of that fact, but her notes did not bear that out. English stated she was with Tarver at the second inspection when she was called by Sikes. According to English, she was told by Sikes that the Stranges were considering terminating the contract, and English would get something from her as soon as possible.

The record confirms on December 14, 2008, Sikes e-mailed a request to English to forward her a copy of the December 9, 2008 inspection report on the retaining wall. That report was faxed by English to Sikes that day. On December 15, 2008, the Stranges sent to English a “Buyers Response to Inspection” (which was a standard form), indicating there was a deficiency in the retaining wall. Julie White immediately responded that they would repair or remedy the complaint. Despite this offer to remedy the complaint, the Stranges did not proceed with the closing.

On December 29, 2008, the Stranges sent an “Agreement to Terminate and/or Release of Deposit” to the Whites. The Whites refused to return the deposit. The $4,000.00 deposit remained with Perego Realty.

The Whites filed suit against the Strang-es for damages suffered, alleging they defaulted on an agreement to purchase the property. The Stranges filed a third party demand against Perego Realty and Cindy English as the authorized agents for the Whites.

The matter went to trial. The Stranges argued their December 9, 2008 e-mail to Sikes constituted a “writing” sufficient to legally terminate the buy and sell agreement. At the close of trial, the trial judge took the matter under advisement. Shortly thereafter and before rendering a decision, the trial judge passed away, and the matter was transferred to another judge. After reviewing the record, that judge Rthen rendered written reasons finding the parties entered into a valid and binding agreement to buy and sell the property, and there was no timely writing to cancel the sale. Further, the trial judge noted there was no refusal by the sellers to repair the deficiencies listed in the inspection report. Judgment was rendered in favor of the Whites, and awarding damages in the amount of $22,320.00, a forfeit of the $4,000.00 deposit and $7,500.00 in attorney fees.

The Stranges contend on appeal that the termination of the buy and sell agreement was valid and that the court erred in ruling in favor of the Whites. In the alternative, the Stranges argue even if it were found they did not validly terminate the buy and sell agreement, the trial court’s erred in awarding damages to the Whites.

ANALYSIS

I. Was the Buy and Sell Agreement Validly Terminated?

As they did below, the Stranges argue the Louisiana Uniform Electronic Transactions Act, La.R.S. 9:2601-2620, is applicable and allows for the use of an email to validly terminate the buy and sell agreement in this case. Under the facts of this case, we do not agree.

Louisiana Revised Statutes 9:2605 B(l) provides the Act applies “only to transactions between parties, each of which has agreed to conduct transactions by electronic means.” Under La.R.S. 9:2605 B(2), no formal agreement is needed, but “the context and sui’rounding circumstances, including the conduct of the parties, shall determine whether the parties have agreed to conduct a transaction by electronic means.” In finding there was no formal agreement nor any conduct of the parties indicating an agreement to use electronic transmissions, the trial court reasoned:

This court has no difficulty in finding that the parties have agreed in this case to the use of a facsimile machine. Under the Buy-Sell Agreement, the parties are permitted to send documents by fax, |abut original signatures “shall” be submitted to the listing agent. Then, the parties may use other electronic means for any supplement addendum or modification to the Acceptance. No reference to the Uniform Act is required for anything having to do with the Acceptance. There was no supplement, addendum or modification, although the testimony showed that the buyers made multiple verbal requests, such as beginning a wall and early occupancy.
Even if this clause was sufficient to invoke the “Act,” these parties had no regular use of any electronic transmission, other than fax. While Sikes and her client may have used email, there is only one reference in the testimony to Sikes and English using email before the 9th and that was not a successful use. The court believes that Sikes believed that English told her she got the email; however, Sikes, knowing the email was sent, believed there was more to her conversation with English than was actually said. It is not uncommon for two parties to have a conversation about an event and not understand one had more information than the other. The notes that Sikes made only referenced whether or not the Whites “knew” something and did not contain any reference to the email.
The conduct of the parties did not give any indication that the Whites or English did or would agree to the use of a forwarded email as the means of canceling the Agreement to Buy and Sell. The Court also believes that English did not get the email. Her testimony is somewhat corroborated by the exchange between Youngblood and Daniels on the 12th, to the effect that English did not know until 12th that the closing was not going to take place on the 15th. Even when she learned the closing would not take place, she still did not know the sale would never take place, especially since she received a request for the Tar-ver report on the 14th and the Buyer’s Response on the 15th. According to her testimony, English did not receive any termination notice in writing and, so, she simply believed that Sikes told her the Stranges wanted to terminate as a negotiation tactic. The court does not find this conclusion to be unreasonable.
The court also questions whether can-celling a buy-sell agreement is a situation where it would be appropriate to apply the “Act.” This is a real estate transaction and there was testimony from all concerned that realtors are required to use certain contract forms, including the Property Inspection Response forms. In fact, Sikes testified that her Broker instructed her to complete and send the inspection report on the 15th. Thus, while electronic transmissions other than a fax may be convenient for those negotiating the details of everyday business, it would appear that the Louisiana Real Estate Commission believes that certain significant actions should be in a certain form. In fact, on 12/29, Sikes used a pre-printed form to attempt termination and return of the deposit. This document appear to be the type of form that could be used for termination, but, in this |ficase, the document came too late. There was no “writing” sufficient to cancel the contract on or by the 12th of December.

We find no error in the trial judge’s reasoning in support of her finding that the Stranges failed to timely terminate the buy and sell agreement.

We also note in the Listing Agreement, completed by English and signed by Julie White, the box that states “Seller authorized the authentication of his signature or of the Purchaser’s by facsimile (fax) or email” was left unchecked. This contradicts the Stranges’ contention that e-mail was authorized by the parties in this case.

Further, the record indicates, as late as December 14, 2008, Sikes was still requesting inspection reports and appraisals from English, which gave English no reason to believe the Stranges were not still negotiating details of the purchase of the house. Sikes herself testified that on December 15, 2008, the Stranges were still asking for reports and for things to be repaired and changed at the house. English testified on December 14, 2008, she called Sikes to inform her that Kevin Bell, the foundation repair person, was meeting her at the house, and she would forward his report to Sikes as soon as she received it. According to English, Sikes responded “okay,” further leading English to believe the agreement to buy and sell had not been terminated. The record clearly establishes the conduct of the Stranges and Sikes does not reflect that of parties who believed the buy and sell agreement had been terminated.

II. Damages.

Finding the parties entered into a valid and binding buy and sell agreement, and under Option 1 of the agreement there was no timely writing to cancel the sale and, under Option 2, the sellers did not refuse to repair the deficiencies listed on the Buyers Response to Property Inspection Report, the trial judge found the sellers were entitled to damages. The trial judge noted the Agreement provided for stipulated damages in the amount of ten percent (10%) of the purchase price 17($22,320.00), forfeiture of the deposit ($4,000.00), and attorney fees ($7,500.00). Thus, the only amount which was subject to any discretion was the trial judge’s award of attorney fees. The trial judge did not accept the Whites’ arguments below that the Stranges were in bad faith and they should be liable for actual damages.

The Stranges’ assignment of error, asserting the trial judge should have ordered Perego Realty to refund the $4,000.00 deposit to them, was premised on its belief that the buy and sell agreement was properly terminated. Finding no error in the trial court’s ruling that the agreement was not properly terminated, this assignment of error has no merit.

As to the award of damages in the amount of $22,320.00, we find the trial court correctly applied the stipulated amount of damages listed in the buy and sell agreement. The law is established that parties to a contract may stipulate damages to be recovered in case of nonperformance. See La.Civ.Code art. 2005. A stipulated damage clause fixes the amount of damages that may be recovered for breach of contract. Nesbitt v. Dunn, 28,240 (La.App. 2 Cir. 4/3/96), 672 So.2d 226.

We also find no abuse of discretion in the trial court’s award of $7,500.00 in attorney fees. The buy and sell agreement provided for attorney fees in the case of non-performance, and the trial court provided facts and figures for setting the amount it did.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellants, Lucas and Sheri Strange.

AFFIRMED.