author: PICKETT, Judge.

text:
    CLOVELLY OIL CO., LLC v. MIDSTATES PETROLEUM CO., LLC, et al.
    No. 12-142.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Rehearing Denied Aug. 15, 2012.

      M. Taylor Darden, Matthewy J. Fantaci, Carver, Darden, Kortezky, Tessier, Finn, Blossmand & Areaux, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Clovelly Oil Co., LLC.
    Matthew J. Randazzo, III, Christopher B. Bailey, Shawn A. Carter, Randazzo, Giglio & Bailey, LLC, Raymond A. Beyt, Beyt & Beyt, APLC, Lafayette, LA, for DefendanVAppellee, Midstates Petroleum Company, LLC.
    Paul J. Goodwine, Holly M. Occhipinti, Slattery, Marino & Roberts, New Orleans, LA, for Defendant/Appellee, Wells Fargo Bank, N.A.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

| ,The operator under a joint operating agreement appeals the trial court’s grant of summary judgment in favor of a non-operator and a secured creditor of the non-operator. For the following reasons, we reverse the judgment in favor of the non-operator but affirm the judgment in favor of the secured creditor.

FACTS

This matter arises out of a joint operating agreement (the JOA) dated July 17, 1972, which was later assigned to Clovelly Oil Co. LLC (Clovelly) and Midstates Petroleum Company, LLC (Midstates). Clovelly is the successor in interest to the operator designated in the JOA and the former operator’s 56.25% working interest as provided in the JOA and subsequent acquisitions. Pursuant to an Assignment and Bill of Sale, dated effective September 1, 2007, Midstates is the successor in interest to a non-operating, undivided 43.75% working interest as provided in the JOA. The JOA affects property situated in the Pine Prairie Field in Evangeline Parish.

Midstates secured an oil and gas lease, dated effective July 1, 2008, from Crowell Land & Mineral Corporation that covers 242.28 acres situated in Sections 27 and 35, Township 3 South, Range 1 West of Evangeline Parish. In April 2009, Mid-states re-entered an abandoned Crowell Land <& Mineral Corporation well and prepared the location for work on other abandoned wells situated on the Crowell leased lands.

In April 2009, Clovelly notified Mid-states that Midstates’ leasing activities and operations in the Pine Prairie Field were covered and affected by the JOA. Clovelly averred that any leases taken by Midstates after the date of the assignment from its predecessor, Opex Energy, LLC (Opex), (the New Leases) were subject to a claim of majority ownership by Clovelly and the right of Clovelly to be | ^designated as operator of the wells drilled in connection therewith. Midstates denied it was bound by the JOA because the JOA was not recorded in the public records.

Wells Fargo Bank, N.A. (Wells Fargo), as mortgagee, took certain mortgages and security interests in and to numerous oil and gas leases and production arising from those leases from Midstates, including certain leases in the Pine Prairie Field. Clov-elly claimed to have an interest in certain of those mortgaged leases, i.e., the New Leases.

Clovelly filed a Petition and an Amended Petition for Breach of Contract and Declaratory Judgment, seeking judgments against Midstates and Wells Fargo, (1) declaring the respective rights and obligations of Clovelly and Midstates under the terms and conditions of the JOA; (2) declaring the interest of Wells Fargo, if any, in and to the lands, oil and gas leasehold interests, and/or oil and gas interests that are subject to the JOA; (3) requiring Midstates to comply with the terms and conditions of the JOA; and (4) for damages for Midstates’ breach of contract.

Prior to answering Clovelly’s Petition, Midstates filed a Motion for Partial Summary Judgment, alleging that because the JOA was not recorded, Midstates was not bound by its terms and conditions. Clovelly opposed the motion, arguing that the case did not turn on the public records doctrine but upon whether Midstates had assumed the obligation under the JOA when it acquired Opex’s interest in the Pine Prairie Field. The trial court granted the motion and dismissed Clovelly’s suit. On appeal, this court held that if evidence adduced at trial showed that Mid-states had assumed the JOA as part of the Assignment from Opex, it was not protected by the public records doctrine. The court further determined, however, that a genuine issue of material fact existed as to whether Midstates assumed Opex’s obligations under the JOA through Opex’s assignment of its | ¡¡interest in the Pine Prairie Field and, therefore, reversed the grant of summary judgment in favor of Midstates. Clovelly Oil Co., Inc. v. Midstates Petroleum Co., LLC, 09-1230 (La.App. 3 Cir. 4/7/10), 34 So.3d 997.

Thereafter, Midstates filed an answer to the Petition and Reconventional Demand against Clovelly and claimed in its recon-ventional demand that portions of certain Clovelly leases located within the Unit Area had expired due to a defective voluntary unit agreement and that Midstates took leases over that unleased acreage. Midstates, Clovelly, and Wells Fargo then filed motions for partial summary judgment or summary judgment. Clovelly and Midstates filed motions for partial summary judgment on the issue of whether the JOA applies to the New Leases. Clov-elly and Wells Fargo filed Cross-Motions for Summary Judgment on the issue of whether Wells Fargo’s mortgage encumbers the 56.25% working interest Clovelly claims under the JOA in the New Leases. Although this court had already determined it was not entitled to summary judgment, Clovelly filed another Motion for Partial Summary Judgment, seeking a declaration that Midstates bound itself to the terms and conditions of the JOA and acknowledged and assumed the JOA as part of the Assignment from Opex.

The trial court granted partial summary judgment in favor of Midstates, declaring that the JOA does not apply to the New Leases and in favor of Wells Fargo’s, holding Wells Fargo’s mortgage and security interest as to Midstates’ leases in the Pine Prairie Field, the New Leases, were not subject to the JOA. The trial court denied Clovelly’s partial motion for summary and certified it as a final judgment. Clovelly appealed all judgments.

ASSIGNMENTS OF ERROR

Clovelly now assigns the following errors:

|41. The district court erred in granting Midstates’ motion for partial summary judgment declaring that the JOA does not apply to leases acquired by Midstates within the Unit Area after the Assignment from Opex, and in denying Clovelly’s cross-motion for partial summary (i) seeking an order requiring that Midstates comply with the terms and conditions of the JOA governing operations of the Unit Area, (ii) recognizing Clovelly as the owner of a 56.25% working interest in all leases acquired by Midstates, and in all operations conducted by it on leases, after the Assignment from Opex, subject to Clovelly’s payment of its proportionate share of the costs associated with such operations and leases, and (iii) recognizing Clovelly as the operator of all new operations conducted by the parties within the Unit Area.
2. The district court erred in granting Wells Fargo’s motion for summary judgment, and denying Clovelly’s cross-motion, and in holding that Wells Fargo’s mortgage and security interest in the leases that Midstates acquired in the Pine Prairie Field subsequent to the Opex Assignment are not subject to the terms and conditions of the JOA.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Insurance Guaranty Ass’n, 09-23 (La.6/26/09), 17 So.3d 350. 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.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof is on the movant to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of his opponent’s claim, but he must point out that there is an absence of factual support Ififor one or more elements essential to the claim. Id. Once the movant has met his initial burden of proof, the burden shifts to the adverse party “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id.

Clovelly’s Appeal of the Denial of its Motion for Summary Judyment

To the extent that Clovelly assigns error with the trial court’s denial of its motions for summary judgment, the assignments lack merit because no right of appeal lies from the denial of a motion for summary judgment. La.Code Civ.P. art. 968. This is true although the trial court certified the denial of Clovelly’s motion for judgment against Wells Fargo as a final judgment pursuant to La.Code Civ.P. art. 1915(B). Cavazzo v. Gray Ins. Co., 08-1407 (La.App. 3 Cir. 6/3/09), 15 So.3d 1105, writ denied, 09-1444 (La.10/2/09), 18 So.3d 115.

Does the JOA Apply to Leases Acquired by Midstates within the Unit Area after the Assiynment from its Predecessor?

The primary issue presented by Clovelly’s first assignment of error is whether the JOA covers and affects the New Leases. As this determination requires interpretation of the JOA, we review the rules of contract interpretation which the supreme court restated in Prejean v. Guillory 10-740, pp. 6-7 (La.7/2/10), 38 So.3d 274, 279:

“[Wjhen 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.” Sims v. Mulheam Funeral Home, Inc., 07-0054, p. 10 (La.5/22/07), 956 So.2d 583, 590. “Interpretation of a contract is the determination of the common intent of the parties.” La. Civ.Code art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Sims, 07-0054 at p. 7, 956 So.2d at 589; McConnell v. City of New Orleans, 35 La.Ann. 273 (1883). “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the | f,contract. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. See Maloney v. Oak Builders, Inc., 256 La. 85, 98, 235 So.2d 386, 390 (1970); McConnell, 35 La.Ann. at 275. Most importantly, a contract “must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance.” Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La.1982).

Clovelly argues Midstates is not entitled to summary judgment declaring the JOA does not apply to the New Leases. Pointing to the JOA’s definition of “Unit Area,” it asserts the location of the lands subject to the New Leases determines whether the leases are subject to the JOA. The JOA is a Model Form Operating Agreement first adopted in 1956 by the American Association of Petroleum Landmen. It defines “Unit Area” as:

The term “Unit Area” shall refer to and include all of the lands, oil and gas leasehold interests and oil and gas interests intended to be developed and operated for oil and gas purposes under this agreement. Such lands, oil and gas leasehold interests and oil and gas interests are described in Exhibit “A.”
Clovelly also urges that the content of Exhibit A and the fact that it was prepared by the parties, rather than a pre-printed form as the JOA is, leads to the conclusion that the New Leases are subject to the JOA.

Exhibit “A” of the JOA is divided into three sections: “I. Lands subject to this agreement,” “II. Interests of Parties to this agreement,” and “III. Addresses of parties to which notices should be sent.” Section “I. Lands subject to this agreement” reads:

The following described property situated in Evangeline Parish, Louisiana:
Township 3 South, Range 1 West
Section 23 — S/⅛
Section 25 — All fractional
Section 26 — All fractional
17Section 27 — All fractional
Section 28 — Efé
Section 34 — Fractional E5É
Section 35 — All
Section 36 — All
Section 37 — All
Township 4 South, Range 1 West
Section 1 — All
Section 2 — All
Section 3 — All
Section 4 — Fractional Ej¿
All as is more fully shown in red on the plat marked “Attachment I” annexed hereto.

Attachment I is a plat on which an area is outlined in red.

Clovelly argues the JOA’s definition of “Unit Area” in terms of a geographic area which includes “all of the lands” and leasehold interests “intended to be developed and operated,” rather than in terms of specific leases, shows that the parties who confected the JOA intended it to apply to leases and interests they owned when the JOA was executed and to leases and interests in lands situated within the Unit Area they acquired thereafter. It urges the parties’ use of a geographic definition for the Unit Area “prevents parties to the JOA from unilaterally acquiring competitive leases within the Unit Area.”

Midstates contends the only leases subject to the JOA are leases that the parties owned when the JOA was executed or leases that were renewed or extended as provided in Section 23 of the JOA. It points to the verb tense in two of the JOA provisions as support for its position. The first provision reads:

WHEREAS, the parties to this agreement are owners of oil and gas leases covering and, if so indicated, unleased mineral interests in the tracts of land described in Exhibit “A”, and all parties have reached an agreement to explore and develop these leases and interests for oil and gas to the extent and as hereinafter provided:

|sThe second provision is the definition of “oil and gas interests” which are defined as “unleased fee and mineral interests in tracts of land lying within the Unit Area which are owned by the parties to this agreement.”

Midstates argues the parties’ use of the present tense of the verb “are” in these two provisions shows that the only leases the parties they intended to be affected by the JOA were leases owned by them at the time the JOA was executed. It also argues that if the parties wanted the JOA to apply to future acquired leases they would have included an Area of Mutual Interest provision in the agreement. The parties did not include such a provision; therefore, the inference is that they did not intend the JOA to affect future acquisitions of leases. Additionally, Midstates argues that Clovelly’s arguments are flawed because they negate the provisions of Section 23. Section 23 provides that if one party to the JOA secures the renewal of a lease subject to the contract, the other parties to the contract have the right to participate in the ownership of the lease if they elect to do so in accordance with the requirements set forth therein. Midstates asserts that accepting Clovelly’s argument writes this provision out of the JOA.

No Louisiana case addresses the precise issue presented here, and Clovelly cites the case of Amoco Production Co. v. Charles B. Wilson, Jr., Inc., 77,999 (3/12/99), 266 Kan. 1084, 976 P.2d 941, as support for its position. Amoco addresses almost the same issues and arguments presented by Clovelly and Midstates. There, Amoco sought to avoid the geographically-defined Unit Area as provided in the JOA at issue. In doing so, it made the same arguments raised by Midstates as to the tense of the verb “are.” The court rejected that argument and accepted the defendants’ argument that the geographically-defined Unit Area was |fldeterminative of the parties’ intent. Specifically, the court rejected Amoco’s argument that the use of the present tense of “are” in the “Whereas” clause limited the agreement to leases that were in effect at the time the JOA was executed.

The primary reason for the court’s rejection of that argument was the parties’ description of the Unit Area. In rejecting the argument, the Kansas Supreme Court applied the rule of contract interpretation that typewritten language added to a form contract by the parties controls or is determinative of the parties’ intent on the issue addressed in the typewritten language and concluded that the typewritten Exhibit A “prevail[ed]” because “[t]he parties specifically agreed as to what their agreement covered.” Id. at 1103, 976 P.2d 941.

Louisiana jurisprudence on the inclusion of typewritten provisions in form contracts is the same as that stated in Amoco:

Under elementary principles of interpretation of contracts, the written portions prevail over the printed portions when the two are in conflict; and, therefore, we find no difficulty in holding that the typewritten sentence providing that the commission would be paid ‘at the act of sale’ suspersedes the printed clause providing that the commission is earned when the offer is accepted.

Kuhn v. Stan A. Planche Real Estate Co., Inc., 249 La. 85, 93, 185 So.2d 210, 212, (1966).

The first circuit applied this rule of interpretation to a joint operating agreement in Martin Exploration Co. v. Amoco Production Co., 93-349 (LaApp. 1 Cir. 5/20/94), 637 So.2d 1202, writ denied, 94-2003 (La.11/4/94), 644 So.2d 1048, and held that the typewritten Exhibit A to the agreement, which identified each party’s percentage of interest before payout and after payout, governed the dispute at issue, not a provision in the printed portion of the JOA. The court concluded that although the exhibit’s designation of the parties’ percentages conflicted with a printed provision in the agreement, which read: “[i]f any provision of any exhibit, 11ftexcept Exhibit ‘E’, is inconsistent with any provision contained in the body of this agreement, the provisions in the body of this agreement shall prevail,” the contract was clear and not ambiguous. Id. at 1207. It applied the terms of the JOA in light of the exhibit’s designation of interests.

We agree with the courts’ conclusions in Amoco and Martin Exploration and conclude that Exhibit A governs the claims between Clovelly and Midstates because it was prepared by the parties to the JOA and, therefore, reflects their intent as to what interests the JOA encompasses. Moreover, we do not find the parties’ use of the present tense verb “are” to be an indication by the original parties to the JOA that they did not intend to acquire and develop more leases and/or properties under the terms of the JOA.

For these reasons, we reverse the judgment granting summary judgment in favor of Midstates and hold that any “unleased fee and mineral interests in tracts of land lying within the Unit Area,” as delineated on Exhibit A to the JOA, were “intended to be developed and operated” by the original parties to the JOA. Therefore, if it is determined Midstates assumed Opex’s rights and obligations under the JOA, any leases acquired by Midstates or Clovelly that cover land described in Exhibit A are subject to the JOA.

Are Wells Fargo’s Mortgage and Securi-tg Interest in the New Leases in the Pine Prairie Field Subject to the Terms and Conditions of the JOA?

The trial court also granted summary judgment in favor of Wells Fargo, holding that the unrecorded JOA did not affect Wells Fargo’s security interest in the leases Midstates acquired after the JOA was assigned to Midstates. We find no error in the judgment. The JOA was not recorded in the records of Evangeline Parish, and Wells Fargo was not a party to the agreement. Therefore, Wells Fargo lnwas a third party and not affected by the unrecorded JOA, even though it may have had knowledge of it, which it denies.

In Cimarex Energy Co. v. Mauboules, 09-1170, 09-1180, 09-1194, pp. 19-20 (La.4/9/10), 40 So.3d 931, 944, the supreme court explained the public records doctrine, which is set forth in La.Civ.Code art. 3338, stating:

The public records doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. [Peter S. Title, Louisiana Real Estate Transactions, § 8.16 (2009) ]; Camel [v. Waller, 526 So.2d 1086, 1089-1090 (La.1988) ]; Phillips v. Parker, 483 So.2d 972, 975 (La.1986). In explaining the negative nature of the doctrine, this Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Camel, 526 So.2d at 1090 [citing Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul. L.Rev. 491 (1965) ]. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests. Camel, 526 So.2d at 1090; Phillips, 483 So.2d at 976.

The Mineral Code makes the public records doctrine applicable to joint operating agreements in Article 216 and provides that to be effective against third persons, li¿joint operating agreements must be recorded in the conveyance records of the parishes in which the lands affected by the agreements are situated.

Clovelly contends Wells Fargo is not a third person protected by the public records doctrine or Article 216. With regard to a contract, a “third person” is a person who is not a party to the contract. La.Civ. Code art. 3506(32). Moreover, the supreme court has concluded that “[bjecause recordation is essential for effectiveness against third parties, actual knowledge by third parties of unrecorded interests is immaterial.” Dallas v. Farrington, 490 So.2d 265, 269 (La.1986). Wells Fargo was not a party to the JOA; accordingly, it is a third person to the JOA and cannot be affected by it because it was not recorded.

Attempting to avoid application of the doctrine to its claims, Clovelly next argues Midstates cannot assign more than it owned. As noted by the supreme court in Wede v. Niche Marketing USA, LLC, 10-243 (La.11/30/10), 52 So.3d 60, 63, n. 6, this argument does not survive the doctrine’s application:

Louisiana’s public records doctrine includes the use of a “race to the courthouse” system of recordation: “Instruments take effect as to third persons in the order in which the instruments are filed.” 1 PETER S. TITLE, LOUISIANA REAL ESTATE TRANSACTIONS § 8:16 (2d ed.2008). The public records doctrine “does not create rights in the positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded.” Id. A well-established consequence of these two principles is illustrated in McDuffie v. Walker, 125 La. 152, 51 So. 100, 105-106 (1909), in which this court ruled that an unrecorded contract affecting immovable property has no effect as to third persons, even when a third person has actual knowledge of that unrecorded contract.

Clovelly has not pointed to anything other than the unrecorded JO A of its right to a working interest. Therefore, Wells Fargo’s mortgage and assignment does affect the New Leases. In reaching this conclusion, we have considered Clovelly’s argument that we should follow the holding in Southwest Gas Producing Co. v. Creslenn Oil Co., 181 So.2d 63 (La.App.Cir.1965), unit denied, |18 248 La. 797, 182 So.2d 74 (1966). In Creslenn, the court determined that the public records doctrine did not apply to an unrecorded joint operating agreement because title to real property was not at issue and that a secured creditor’s security interest in the working interest of the plaintiff was limited by the terms of the unrecorded joint operating agreement. Section 216 of the Mineral Code was enacted in 1974 as La.R.S. 9:2781; Cresslen was decided in 1965. Therefore, the court’s decision therein is not applicable to the facts of this case.

Having affirmed summary judgment in favor of Wells Fargo, we need not address Wells Fargo’s Motion to Strike or File Sur-Reply Brief and Clovelly’s Opposition to Strike and Motion for Leave.

DISPOSITION

The judgment of the trial court granting summary judgment to Midstates is reversed; the judgment of the trial court granting summary judgment to Wells Fargo is affirmed. Midstates is assessed all costs associated with Clovelly’s appeal of the judgment in its favor, and Clovelly is assessed with all costs of the judgment in Wells Fargo’s favor.

REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . An Area of Mutual of Interest is an area identified by the parties to a JOA for the express purpose of future development. Any leases secured within that area are subject to the JOA.

      . Louisiana Civil Code Article 3338 provides, in pertinent part:
      The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
      (1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
      (2) The lease of an immovable.

      . Louisiana Revised Statutes. 31:216 provides:
      An agreement entered into by or among the owners of mineral rights for the joint exploration, development, operation or production of minerals thereunder shall be binding upon third persons when the agreement is filed for registry in the conveyance records of the parish or parishes where the lands affected by the mineral rights are located.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of A.D.
    No. 2011-CA-1802.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellee.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

hOn August 16, 2011, the Orleans Parish Juvenile Court adjudicated A.D. delinquent as a result of having committed the crimes of armed robbery, a violation of La. R.S. 14:64, access device fraud, a violation of La. R.S. 14:70.4(B), and illegal possession of stolen things, a violation of La. R.S. 14:69. The Juvenile Court judge entered a disposition of placement with the Office of Juvenile Justice for a period not to exceed eleven months for committing armed robbery, and six months for committing access device fraud, with the sentences to run concurrently and with credit for time served. No disposition was made as to the violation of La. R.S. 14:69, relative to illegal possession of stolen things. A.D. now appeals the adjudication and disposition.

At the trial of this matter, the victim testified that on April 17, 2011, at approximately 2:00 a.m., she finished her shift as a cook at Delachaise restaurant. As she was walking to her car, she was approached by three males, one of whom she later identified as A.D. One of the other males (not A.D.) put a gun to her 12neck, and told her, “give us everything.” She handed her cell phone and wallet to A.D. Before she handed over her wallet, she asked if they wanted just her wallet or her knife bag that also contained the wallet. A.D. instructed her to hand over the wallet only. The victim testified that A.D. was not the male pointing the gun at her, but was standing behind that individual when the robbery took place. She said that after she handed over her cell phone and wallet, both the male with the gun and A.D. told her not to tell anyone or she would be killed. They both repeated several times that they knew who she was and where she lived. The three males left the scene, and the victim walked back to the restaurant to get help.

One of the items in the wallet stolen from the victim was an ATM card. Several hours after the robbery, she checked her bank account online and discovered that numerous cash withdrawals had been made after her wallet was stolen. She said that police officers who responded to her call right after the incident instructed her not to cancel her ATM or credit cards right away so . that police could track the activity in an attempt to apprehend the perpetrators. Several days later, a police detective contacted her, and asked her to come to the police station and view a lineup. The victim stated that she was able to positively identify A.D. from the lineup as one of the three perpetrators who robbed her of her wallet and cell phone. She also positively identified A.D. in the courtroom as one of the males who participated in the robbery committed against her.

NOPD Detective Jerry Baldwin testified that he investigated an armed robbery that occurred in the 1500 block of Aline Street on April 17, 2011. During lathe investigation, he obtained photos taken at an ATM machine, which showed three young black males using a card to retrieve money from the machine. Because of the apparent young age of the males and the close proximity of the ATM machine to Cohen High School, Detective Baldwin brought the photos to that high school and met with a coach/teacher familiar to him. That individual identified A.D. as one of the males in the photos.

Detective Baldwin retrieved A.D.’s personal information from the school, and contacted A.D.’s mother by telephone. He received permission to speak to A.D.’s mother in person and went to her home. After advising A.D.’s mother that he was investigating an armed robbery, Detective Baldwin showed the photos from the ATM machine to her, and she identified her son, A.D., as one of the males in the photos. At that time, Detective Baldwin advised A.D. of his rights, and relocated him to the New Orleans Police Department Juvenile Bureau.

Detective Baldwin took a taped statement from A.D. Prior to the taking of the statement, Detective Baldwin advised both A.D. and his mother of their rights. They both signed the “rights of arrestee” form, waiving their rights and agreeing to the taped interview. Detective Baldwin testified that he prepared the lineup shown to the victim, and he confirmed that she positively identified A.D. as one of the males who robbed her.

On cross-examination, Detective Baldwin stated that in one of his reports from the incident, he noted that the victim told him that the handgun used in the robbery appeared to be plastic. Both A.D. and one of A.D.’s cousins, who claimed |4he was a witness to the robbery but did not participate in it, told Detective Baldwin that A.D. did not participate in the robbery of the victim.

The next witness was Detective Nathan Magee. Detective Magee also participated in the armed robbery investigation. He assisted Detective Baldwin in taking statements, and during that process, they learned of evidence located at the residences of the other two suspects. At one of the residences, Detective Magee confiscated a black BB gun.

R.D., A.D.’s cousin, testified on behalf of the defense. He stated that he and A.D. were with the two other suspects, T.S. and R.W., on the night in question. R.D. stated that A.D. was walking behind T.S. and R.W., when suddenly, T.S. and R.W. robbed the victim. He said all four of them left the scene, went to R.W.’s house, and then went to an ATM machine where R.W. used the ATM card to obtain cash. He said R.W.’s mother also used the card to pay her phone bill. R.D. admitted he was not close enough to the gun used in the robbery to determine if it were real or fake.

A.D. testified and offered a version of events similar to that given by R.D. He stated that he and R.D. were walking behind T.S. and R.W. listening to music and chatting about a party they had attended when they saw T.S. and R.W. rob a woman after T.S. put a gun to the victim’s head. He said that he and R.D. ran off, but T.S. and R.W. ran after them and caught up with them. He testified that he had no idea that T.S. and R.W. planned to commit a robbery. He said he was shocked at what they had done, but admitted accompanying T.S. and R.W. to the ATM | smachine after the robbery. He said he helped them figure out the PIN number for the card using information obtained from the victim’s identification card in the wallet, but insisted he had nothing to do with the actual robbery. He admitted being in possession of and using the stolen ATM card more than once.

The State of Louisiana filed a petition requesting that A.D. be adjudicated delinquent for committing the crimes of armed robbery, access device fraud and illegal possession of stolen things. In the same petition, the State requested that two other males, T.S. and R.W., be adjudicated delinquent for committing the crimes of armed robbery, access device fraud and obstruction of justice. This appeal involves only the adjudication of delinquency as to A.D.

A review of the record reveals no errors patent.

In his first assignment of error, A.D. argues that the evidence presented at trial was insufficient to prove all of the elements of the offense of armed robbery. Armed robbery is defined in La. R.S. 14:64 as “the taking of anything of value belonging to another 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.” A.D. specifically argues that the State did not sufficiently prove that he (or T.S. or R.W.) was armed with a dangerous weapon. In support of this argument, A.D. points to Detective Baldwin’s testimony that one of his reports taken after the incident includes a notation that the victim told him that the handgun used in the robbery appeared to be plastic. A.D. also points out that the victim was unable to ^positively identify the BB gun recovered from the residence of one of the males with A.D. on the night in question.

In State ex rel KM., 2010-0649, pp. 4-5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463-464, this Court set forth the standard of review in a juvenile delinquency case as follows:

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2731, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/0l), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La.1984). This standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 2000-1810 (La.App. 4 Cir. 4/11/01), 787 So.2d 414.

The actual production of a weapon at trial is not necessary in an armed robbery prosecution “where the state’s witnesses can establish, through their observations at the crime scene, all the elements of the charge beyond a reasonable doubt, including the existence and use of a dangerous weapon.” State v. Washington, GO-1312 (La.App. 5 Cir. 5/16/01), 788 So.2d 596, 601, citing State v. Cotton, 94-384 (La.App. 5 Cir. 11/16/94), 646 So.2d 1144, 1146. Furthermore, as stated in State v. Washington, supra, “[a] toy gun has been held to be a dangerous weapon for purposes of an armed robbery conviction if the jury finds that ‘the 17interaction between the offender and the victim created a highly charged atmosphere whereby there was a danger of serious bodily harm resulting from the victim’s fear for his life.’ ” Id., citing State v. Green, 409 So.2d 563 (La.1982); State v. Cittadino, 628 So.2d 251, 255 (La.App. 5 Cir.1993); State v. Williams, 479 So.2d 605 (La.App. 1 Cir. 1985).

According to A.D., the victim’s inability to positively identify the BB gun as the one used against her and her statement in a police report that the gun appeared to be plastic were just two of the factors demonstrating that this incident did not create a highly charged atmosphere where there was a danger of serious bodily harm resulting from the victim’s fear for her life. A.D. points to the victim’s testimony that her assailants were young and short, and stresses that the victim did not attempt to defend herself with knives in her possession, walked instead of ran back to her place of employment after the incident, and did not specifically testify that she feared for her life during the robbery.

We find no merit in A.D.’s argument. As for the victim’s inability to positively identify the BB gun retrieved during the course of this investigation, we note that when she was asked whether the gun shown to her at trial was the same one used in the robbery, she said it looked very similar to the black gun aimed at her that night, but that she had very little experience with guns and was not sure how many guns look similar to the one shown to her in the courtroom. We also point out, as did the Juvenile Court judge during trial, that the notation by Detective Baldwin in the police report stated only that the victim said the gun appeared to be plastic. The fact that the victim was not absolutely certain whether the gun pointed at her neck at 2:00 a.m. was real or fake did not make this any less of a highly charged encounter.

|sThe victim testified that one of the assailants put a gun to her neck, and told her to give them “everything.” This caused her to turn over her wallet and cell phone to her assailants, including A.D. The victim’s testimony established that this was a highly charged encounter, regardless of whether the gun used was real or fake, whether her assailants were short or tall and whether she walked or ran back to her workplace after the robbery to get help. The fact that the victim did not attempt to defend herself with one of the knives in her possession only reinforces the conclusion that the victim feared for her life when faced with a gun pointed at her that may or may not have been real. The victim did not need to specifically testify that she was in fear for her life. Her description of the incident established that fact very well. Viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence in the record is sufficient to establish all of the elements of the crime of armed robbery. Items of value that belonged to the victim and were under her control were taken from her by her assailants, including A.D., through intimidation while one of the assailants was armed with a dangerous weapon.

In his second assignment of error, A.D. argues that a new disposition is warranted in this case because when the Juvenile Court judge imposed the disposition of eleven months upon A.D. for the crime of armed robbery, he was under the mistaken belief that the disposition could be amended at any time. A.D. argues that it cannot be determined whether the Juvenile Court judge would have imposed the same sentence if he had been aware that modification of the sentence was not a possibility in this case.

La. Ch.C. article 897.1(B) states:

IflAfter adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.

After imposing the disposition in this case, the Juvenile Court judge addressed A.D., stating, “Let’s make note that the possibility always exist [sic] to be released early from custody if you’re doing well in custody, do you understand that?” Counsel for A.D. immediately pointed out to the judge that in this type of case, early release is not available. The trial court then repeated that the possibility for early release exists.

In the case of State ex rel. C.J., 10-1350 (La.App. 4 Cir. 2/9/11), 60 So.3d 46, this Court addressed a similar situation in which a Juvenile Court judge alluded at a disposition hearing to the possibility of a sentence being modified at a later date. In order to ensure that the Juvenile Court judge correctly understood the restrictions placed on sentencing under La. Ch.C. article 897.1(B), this Court vacated the disposition imposed, and remanded the matter to the Juvenile Court to clarify its ruling, or conduct a new disposition hearing and resentence the juvenile defendant pursuant to La. Ch.C. article 897.1(B). Id. We find that this assignment of error has merit, and will vacate the disposition at issue and remand this matter to the Juvenile Court for clarification or resentencing.

For the reasons stated above, we affirm the adjudication of delinquency against A.D. We vacate the disposition of placement with the Office of Juvenile Justice for eleven months on the armed robbery charge, and remand this matter to |inthe Juvenile Court to clarify its ruling, or conduct a new disposition hearing and resen-tence A.D. pursuant to La. Ch.C. article 897.1(B).

AFFIRMED IN PART; VACATED AND REMANDED IN PART

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juveniles involved in this matter will be used instead of their names.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of J.W.
    No. 2012-CA-0048.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

I ¡.The trial court adjudicated J.W. delinquent of illegal possession of stolen things (a backpack). J.W. timely appealed his adjudication.

J.W. contends there was insufficient evidence to adjudicate him delinquent of illegal possession of stolen things. J.W. asserts there was no eyidence that the backpack was stolen and that there was no evidence that he knew or should have known the bag was stolen. The State argues that although its case was founded, in part, on circumstantial evidence, it was reasonable for the trial court to infer that J.W. possessed a backpack that was stolen from a truck and that J.W. knew or should have known the backpack was stolen.

Upon review of the record, we conclude that a rational trier of fact could have found proof of delinquency or guilt beyond a reasonable doubt. Therefore, the delinquent adjudication of illegal possession of stolen things is affirmed.

FACTS AND PROCEDURAL HISTORY

On August 22, 2011, J.W. and an adult female were observed by Sergeant James Clarkston as they rode their bicycles against traffic on Marigny Street. Sergeant Clarkston noticed that J.W. constantly looked back at him as he cycled, which piqued the Sergeant’s attention. He decided to follow J.W. as J.W. turned | -¡onto Burgundy Street. As J.W. turned, Sergeant Clarkston saw J.W. drop a backpack from his back. After discarding the bag, J.W. rode toward Sergeant Clarkston, as directed. J.W. repeatedly denied any wrongdoing and questioned Sergeant Clarkston’s purpose for wanting him to stop. J.W. continued riding at a slow pace during the time the Sergeant spoke to him. J.W. subsequently rode away on his bicycle; the female stopped. Sergeant Clark-ston dispatched a description of J.W., and J.W. was subsequently detained and arrested by other officers, including Officer Lawrence Weathersby, Jr. During the pat-down of J.W., a camera was discovered in his possession. After J.W. was detained, he was relocated to Sergeant Clarkston for identification. Sergeant Clarkston positively identified J.W. as the person who had sped away on the bicycle.

J.W. was charged with one count of illegal possession of stolen things in violation of La.R.S. 14:69. After a hearing, he was adjudicated delinquent of illegal possession of stolen things. J.W. was subsequently ordered to be committed to the Department of Public Safety and Corrections for six months.

J.W. timely filed this appeal.

LAW AND DISCUSSION

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.Code. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93). When a conviction is based on circumstantial evidence, Louisiana Revised Statutes 15:438 provides that such evidence “must exclude every reasonable hypothesis of innocence.” State v. Thomas, 2002-1523, |4p. 4 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, 28; citing State v. Langford, 483 So.2d 979, 983 (La. 1986). A court of review must grant great deference to the juvenile court’s credibility determination and assessment of witness testimony. State in the Interest of W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60.

In light of the due process protections of the Fourteenth Amendment of the United States Constitution, and in evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, 18. This standard of review is applicable in juvenile delinquency cases. State in the Interest of C.B., 2009-1114, p. 5 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 527.

Louisiana Constitution Article V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in the Interest of Batiste, 367 So.2d 784 (La.1979). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of T.C., 2009-1669, p. 3 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260,1262.

1 ¿Illegal possession of stolen things is defined in Louisiana Revised Statute 14:69(A) as follows:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Thus, in order to adjudicate a juvenile delinquent of possession of stolen property, “the state must prove, beyond a reasonable doubt, that 1) the property was stolen, and 2) the property was of value, and 3) that the defendant knew or should have known that the property was stolen, and 4) that the defendant intentionally possessed, procured, received or concealed the property.” State in Interest of B.J., 617 So.2d 238 (La.App. 5th Cir.1993); citing State v. Walker, 350 So.2d 176 (La.1977), writ granted, 369 So.2d 139 (La.1979); State v. Mercadel, 503 So.2d 608 (La.App. 4th Cir.1987); State v. Wilson, 544 So.2d 1300 (La.App. 4th Cir.1989). Illegal possession of stolen property is a general intent crime. State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901.

Whether the backpack was stolen

J.W. does not contend the backpack did not have value or that he did not intentionally possess, procure, receive or conceal the backpack. Instead, he argues that there was no evidence adduced at trial that the backpack was stolen and that he knew or should have known it was stolen. J.W. contends the State did not meet its burden of proof at trial as to those elements. We disagree and find there was sufficient evidence to adjudicate J.W. delinquent of the illegal possession of stolen property.

J.W. argues that because no one testified during trial about the ownership of the backpack or about whether it was the subject of a theft or a robbery, then no ^reasonable trier of fact could have adjudicated him delinquent. The State relies on circumstantial evidence, including the physical evidence that linked J.W. to the truck in which the backpack had been located.

Sergeant James Clarkston testified under direct examination that he observed J.W. and a female bicyclist traveling against traffic on a one-way street. He decided to “check them out” after he noticed that the male (later identified as J.W.) kept looking at him. Sergeant Clarkston also stated he noticed a backpack on J.W. After noticing that Sergeant Clarkston was approaching him, J.W. continued riding away from Sergeant Clark-ston and removed the back pack from his shoulders and threw it to the ground. Sergeant Clarkston testified that he pretended he did not see J.W. dispose of the backpack and, that although he called both cyclists, only the female stopped and went to him. J.W. rode away. Sergeant Clark-ston radioed J.W.’s description to other officers. J.W. was subsequently apprehended and returned to Sergeant Clark-ston’s location for identification. Sergeant Clarkston positively identified J.W. as the person he had observed discard the backpack. Sergeant Clarkston, who was the supervisor at the scene, directed Officer Lawrence Weathersby, Jr. to conduct the investigation of the matter.

Sergeant Clarkston further testified that he and Officer Weathersby relocated to the truck from where the backpack had been taken. Sergeant Clarkston witnessed the collection of the fingerprints from the truck’s rear window.

Under cross-examination, Sergeant Clarkston admitted that he did not know how J.W. had come into possession of the backpack and that it could have been J.W.’s bag.

Officer Lawrence Weathersby, Jr. testified that he received a radio call from Sergeant Clarkston about two suspects who had fled from him. Upon making |7contact with J.W., Officer Weathersby observed J.W. traveling at a high rate of speed and riding against traffic. Officer Weathersby testified that when he stopped J.W., J.W. was informed that he was being detained pending an investigation of a car burglary. Officer Weathersby and his partner were tasked with investigating the matter.

During his investigation, Officer Weath-ersby and his partner met with the adult female suspect who executed a rights of arrestee form and told the officers “what she and J.W. had been doing in the area.” Officer Weathersby recovered the discarded backpack and returned it to its owner, who was able to identify the bag. After having the bag identified, Officer Weath-ersby returned J.W. to Sergeant Clarkston for identification.

Officer Weathersby testified that after Sergeant Clarkston’s positive identification of J.W., he (Weathersby) relocated to the truck from where the backpack had been taken. Officer Tasha Hunter took latent fingerprints from the exterior portion of the sliding glass on the back of the truck.

The State called Officer George Jackson, a fingerprint examiner for the New Orleans Police Department, as an expert in the taking of and the comparison of fingerprints, to which the Defendant did not object. Officer Jackson testified the latent fingerprints retrieved from the truck window positively matched J.W.’s prints which are stored in an automated fingerprint identification system. Based upon the results of fingerprint comparisons, Officer Jackson was able to identify J.W.’s name, birthdate, sex and race.

We find there was sufficient evidence which could have led a reasonable trier of fact to exclude every hypothesis of innocence and find that J.W. was delinquent of illegal possession of the stolen backpack.

|¡¿Whether J.W. knew or should have known the backpack was stolen

J.W. contends the State failed to prove beyond a reasonable doubt that he knew or should have known the backpack was stolen. We find his argument is without merit.

The third element of the crime of illegal possession of stolen property is that the juvenile knew or should have known that the property was stolen. The Louisiana Supreme Court has observed that the mere possession of stolen property does not create the presumption that the person possessing the property received it with knowledge that it was stolen. State v. Chester, 97-1001 (La.12/19/97), 707 So.2d 973. The state must prove the defendant’s guilty knowledge, which may be inferred from the circumstances of the offense. Id. at 974.

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982), rev’d on rehearing (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La.R.S. 15:438. However, R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. See State v. Jacobs, 504 So.2d 817 (La.1987).

In this case, Sergeant Clarkston testified that after J.W. saw him, he (J.W.) rode away from him, and as he rode, J.W. disposed of the backpack. Considering the undisputed fact that J.W. discarded the backpack as he continued to ride away |nfrom Sergeant Clarkston, it is reasonable to find that J.W. knew the backpack was stolen.

After the disposal of the backpack, Sergeant Clarkston attempted to talk to J.W., but J.W. fled. At the time Officer Weath-ersby observed him, J.W. was traveling at a high rate of speed. It was not until J.W. was approached by Officer Weathersby that J.W. stopped and was apprehended.

Flight may be considered as evidence of a guilty mind. State v. Petit, 463 So.2d 749 (La.App. 4th Cir.1985). A defendant’s attempt to flee from police is also viewed as evidence of guilty knowledge. See Illinois v. Wardlow, 528 U.S. 119,124-25, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), in which the United States Supreme Court commented that “[hjeadlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”

Therefore, viewing the evidence in the light most favorable to the prosecution, we find the State proved beyond a reasonable doubt that J.W. knew or should have known the backpack had been stolen. Accordingly, we reject J.W.’s argument that his possession of the backpack was insufficient evidence to prove that he knew the backpack was the subject of a robbery or theft.

DECREE

After review of the evidence in this ease, we conclude the State proved its case of illegal possession of stolen things beyond a reasonable doubt. Therefore, the delinquent adjudication of J.W. for illegal possession of the stolen backpack is affirmed.

AFFIRMED

      . To maintain the confidentiality of the proceedings required by Louisiana Children’s Code Articles 407 and 412, we use initials for the juvenile defendant in this case.


text:
    STATE of Louisiana in the Interest of J.W.
    No. 2012-CA-0049.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 2012.

      Leon A. .Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

12The trial court adjudicated J.W. delinquent of illegal possession of stolen things (a camera). J.W. timely appealed his adjudication.

J.W. contends there was insufficient evidence to adjudicate him delinquent of illegal possession of stolen things. The State argues that it is reasonable to infer from various circumstances surrounding the discovery of the stolen camera on J.W. that J.W. knew or should have known the camera was stolen.

Upon review of the record, we conclude that a rational trier of fact could not have found proof of delinquency or guilt beyond a reasonable doubt. Therefore, the due process guarantee of the Fourteenth Amendment of the United States Constitution requires the delinquent adjudication of J.W. for illegal possession of stolen things be reversed and vacated.

FACTS AND PROCEDURAL HISTORY

On August 22, 2011, J.W. and an adult female were observed by Sergeant James Clarkston as they rode their bicycles against traffic on Marigny Street. Sergeant Clarkston noticed that J.W. constantly looked back at him as he cycled, which piqued the Sergeant’s attention. He decided to follow J.W. as J.W. turned onto Burgundy Street. As J.W. turned, Sergeant Clarkston saw J.W. drop a |sbackpack from his back. After discarding the bag, J.W. rode toward Sergeant Clarkston, as directed. J.W. repeatedly denied any wrongdoing and questioned Sergeant Clarkston’s purpose for wanting him to stop. J.W. continued riding at a slow pace during the time the Sergeant spoke to him. J.W. subsequently rode away on his bicycle; the female stopped. Sergeant Clarkston dispatched a description of J.W., and J.W. was subsequently detained and arrested by other officers, including Officer Lawrence Weathersby, Jr. During the pat-down of J.W., a camera was discovered in his possession. After J.W. was detained, he was relocated to Sergeant Clarkston for identification. Sergeant Clarkston positively identified J.W. as the person who had sped away on the bicycle.

After J.W. had been arrested, and after talking to the adult female, Officer Jonas Smith relocated with the female to Monte-gut Street to locate the owner of the camera; however, neither the owner nor his vehicle was located. J.W. was not taken to the location. The owner was subsequently contacted, and he identified the camera approximately six to ten days after the camera had been found in J.W.’s possession.

J.W. was charged with one count of illegal possession of stolen things in violation of La.R.S. 14:69. After a hearing, he was adjudicated delinquent of illegal possession of stolen things. J.W. was subsequently ordered to be committed to the Department of Public Safety and Corrections for six months, which was to run concurrently with the delinquent adjudication of the same offense regarding a backpack in In the Interest of J.W., 2012-CA-0048.

J.W. timely filed this appeal.

LAW AND DISCUSSION

In order to adjudicate a child delinquent, the State must prove beyond a | reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.Code. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of AG., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93). When a conviction is based on circumstantial evidence, Louisiana Revised Statutes 15:438 provides that such evidence “must exclude every reasonable hypothesis of innocence.” State v. Thomas, 2002-1523, p. 4 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, 28; citing State v. Langford, 483 So.2d 979, 983 (La.1986). A court of review must grant great deference to the juvenile court’s credibility determination and assessment of witness testimony. State in the Interest of W.B., 2008-1458, p. 1 (La. App. 4 Cir. 4/22/09), 11 So.3d 60.

In light of the due process protections of the Fourteenth Amendment of the United States Constitution, and in evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, 18. This standard of review is applicable in juvenile delinquency cases. State in the Interest of C.B., 2009-1114, p. 5 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 527.

Louisiana Constitution Article V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile ^adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in the Inter est of Batiste, 367 So.2d 784 (La.1979). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of T.C., 2009-1669, p. 3 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260,1262.

Illegal possession of stolen things is defined in Louisiana Revised Statute 14:69(A) as follows:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Thus, in order to adjudicate a juvenile delinquent of possession of stolen property, “the state must prove, beyond a reasonable doubt, that 1) the property was stolen, and 2) the property was of value, and 3) that the defendant knew or should have known that the property was stolen, and 4) that the defendant intentionally possessed, procured, received or concealed the property.” State in Interest of B.J., 617 So.2d 238 (La.App. 5th Cir.1993); citing State v. Walker, 350 So.2d 176 (La. 1977), writ granted, 369 So.2d 139 (La. 1979); State v. Mercadel, 503 So.2d 608 (La.App. 4th Cir.1987); State v. Wilson, 544 So.2d 1300 (La.App. 4th Cir.1989). Illegal possession of stolen property is a general intent crime. State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901.

Whether J.W. knew or should have known the camera was stolen

The first two essential elements of illegal possession are satisfied. There is no question that the item was stolen, and J.W. is not contesting whether he | ^intentionally possessed, procured, received or concealed the camera. He is also not challenging the value of the camera.

J.W. only contends the State did not meet its burden of proof at trial as to the third element. The third element of the crime is that the juvenile knew or should have known that the property was stolen. The Louisiana Supreme Court has observed that the mere possession of stolen property does not create the presumption that the person possessing the property received it with knowledge that it was stolen. State v. Chester, 97-1001 (La.12/19/97), 707 So.2d 973. The state must prove the defendant’s guilty knowledge, which may be inferred from the circumstances of the offense. Id. at 974.

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982), rev’d on rehearing (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. However, R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. See State v. Jacobs, 504 So.2d 817 (La.1987).

Applying these legal principles to the case at bar, we conclude that any rational trier of fact, after viewing all of the evidence in the light most favorable to the prosecution, would have a reasonable doubt as to J.W.’s guilt. The State failed to prove, beyond a reasonable doubt, that J.W. knew or should have known the 17camera was the subject of a theft. Although it is not disputed that J.W. possessed stolen property, the mere possession of stolen property does not create a presumption that J.W. knew or should have known that the camera was stolen. See State v. Ennis, 414 So.2d 661 (La.1982); State v. Daniel 536 So.2d 796 (La. App. 5 Cir.1988), writ den., 541 So.2d 892 (La.1989).

The State erroneously argues that when J.W. encountered Sergeant Clarkston, he (J.W.) rode away and subsequently discarded the backpack containing the camera. Additionally, the State mistakenly argues that J.W. discarded the backpack which contained the camera. The testimony of Officer Lawrence Weathersby, Jr. revealed the camera was found on J.W. during a pat-down which occurred after the backpack had been discarded.

In furtherance of its mistaken recollection of the facts, the State asks, “If J.W. had bought the eamera legitimately, why would he feel the need to ditch the camera before fleeing?” In reviewing the evidence adduced at trial, it is unquestionable that J.W. not only did not flee or attempt to flee after being stopped by Officer Weathersby, but also, he did not discard or attempt to discard the camera.

The record unequivocally shows the camera, which had not been reported stolen, was found in J.W.’s possession approximately six to ten days after Mitchell Gaudet, the camera’s owner, believed the camera went missing. Mr. Gaudet admitted he did not report the camera stolen. Sergeant James Clarkston testified that he did not see anyone recover anything from the backpack that he previously had seen J.W. discard. The State attempted to introduce the hearsay testimony of Officer Lawrence Weathersby, Jr. about specific information about the acquisition of the camera provided by Sherdell, the adult female who was with J.W. Officer | Weathersby subsequently testified that when another officer, Officer Jonas Smith (who notably did not testify at J.W.’s adjudication hearing), and Sherdell relocated to locate the vehicle from where the camera had allegedly been taken, the vehicle was not at the location purportedly identified by Sherdell.

The State did not present any direct evidence that J.W. knew or should have known that the camera was stolen. The State relied on circumstantial evidence to prove that J.W. knew or should have known that the camera was stolen pursuant to La. R.S. 15:438. Louisiana Revised Statutes 15:438 sets forth the rule regarding circumstantial evidence and provides, that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Daniels, 607 So.2d 620, 623 (La.App. 2d Cir. 1992). Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Gray, 26,115 (La.App. 2d Cir. 06/22/94), 639 So.2d 421, 425.

In this case, the State presented the testimony of the camera’s owner, Mitchell Gaudet; however, that testimony only proved that Mr. Gaudet never reported the camera stolen and that he could not identify anyone in the courtroom to whom he would have loaned his camera. Mr. Gau-det did not identify J.W. as the person who stole his camera.

The State claims J.W. knew or should have known the camera had been the subject of a theft by arguing in brief that J.W. was with the adult female, Sherdell, “who, if she did not steal the camera herself, undisputedly knew that the camera |flwas stolen.” We find this conclusory statement fails to indicate J.W. knew or should have known the camera was stolen.

After reviewing all the evidence in the light most favorable to the prosecution, we conclude that no rational trier of fact could have excluded every reasonable hypothesis of innocence and found that the State had proven, beyond a reasonable doubt, that J.W. knew or should have known the camera was the subject of a theft. The State has failed to prove an essential element of the crime of illegal possession of stolen things.

DECREE

After review of the evidence in this case, we conclude the State did not prove its case because it did not prove intentional possession beyond a reasonable doubt even when the evidence is viewed in the light most favorable to the prosecution. Therefore, the delinquent adjudication for illegal possession of stolen things is reversed and vacated, and the sentence of six months in the Department of Corrections, which was to be served concurrently with the delinquent adjudication of the same offense in In the Interest of J.W., 2012-CA-0048, is reversed and vacated.

REVERSED AND VACATED

      . To maintain the confidentiality of the proceedings required by Louisiana Children’s Code Articles 407 and 412, we use initials for the juvenile defendant in this case.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Stephen J. HALMEKANGAS v. ANPAC LOUISIANA INSURANCE COMPANY and Steve Harelson.
    No. 2011-CA-1293.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 2012.

      Kevin M. Dills, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, for Plaintiff/Appellant.
    Jay M. Lonero, Angie Arceneaux Akers, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for ANPAC Louisiana Insurance Company.
    Peirce A. Hammond, II, Hammond Law Firm, LLC, New Orleans, LA, for Steve Harelson and ANPAC.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

LThe plaintiff, Stephen Halmekangas, appeals a summary judgment rendered in favor of the defendants, ANPAC Louisiana Insurance Company, Stephen Harelson and American National Property and Casualty Company. After a de novo review of the record, we find that no genuine issues of material fact exist and that the defendants are entitled to judgment as a matter of law. Accordingly, we affirm.

PROCEDURAL BACKGROUND

On June 21, 2006, Mr. Halmekangas filed this action in Civil District Court against his insurance agent, Stephen Har-elson, his homeowner’s insurer, ANPAC Louisiana Insurance Company (“ANPAC-LA”), and Mr. Harelson’s errors and .omissions insurer, American National Property & Casualty Company (“American National”). Mr. Halmekangas alleges in his petition that he sustained damages as a result of errors committed by his insurance agent and/or his homeowner’s insurer which resulted in his property being un-derinsured. The issue before us on appeal is whether the claims against these defendants are time barred.

Mr. Halmekangas also filed suit against his flood insurance carrier, State Farm Fire and Casualty Company (“State Farm”), in federal court. The ANPAC ^defendants filed a Notice of Removal of the state court action seeking to join the state claim with the pending federal claim. In the federal court action, Mr. Halmekan-gas filed a Motion to Remand, and the ANPAC defendants filed a Motion for Summary Judgment on the issue of per-emption, the same issue on appeal here. In federal court, the trial judge denied the remand and granted summary judgment in favor of ANPAC and Mr. Harelson, finding that Mr. Halmekangas’s claims against them were perempted pursuant to La. R.S. 9:5606. On appeal, however, the United States Fifth Circuit Court of Appeals held that the federal court had neither federal question nor diversity jurisdiction. Accordingly, the Fifth Circuit vacated the judgment of the lower court and ordered that the case be remanded to state court.

On remand, the ANPAC defendants filed the same motion for summary judgment in Civil District Court. After a contradictory hearing, the trial court granted the ANPAC defendants’ motion holding that Mr. Halmekangas’ claims were not timely filed. This appeal follows.

FACTS

Mr. Halmekangas is a real estate broker. In October of 2001, he purchased a piece of residential property located at 2932 S. Carrollton Avenue in New Orleans, Louisiana (“the Property”) for $181,000.00. The Property was in need of extensive renovations. Mr. Halmekangas initially insured the Property with State Farm. Pursuant to notification from State Farm that they were dropping homeowner’s coverage on the Property effective January 1, 2005, Mr. Halmekangas submitted an application for homeowner’s insurance with ANPAC-LA through agent Stephen Har-elson in late December 2004.

The ANPAC defendants contend that Mr. Halmekangas filled out and signed the application for insurance. The application provided $350,000.00 as the fair 1 ¡¡market value of the house and specifically requested the following coverages: (A) Dwelling— $342,000; (B) Other Structures — $34,200; (C) Personal Property — $256,500; and (D) Loss of Use — $85,500. Based on the information provided, Mr. Harelson prepared an Insurance To Value (“ITV”) form which described the Property as a two-story, single family residence with 3400 square feet of living area. Mr. Harelson also performed an external inspection of the Property and took photographs of the Property. He then sent the application, form and photographs to ANPAC-LA for underwriting.

Conversely, Mr. Halmekangas claims that Mr. Harelson or ANPAC-LA independently determined the coverage limits on the Property. He alleges that he merely provided Mr. Harelson with a description of the house, including the fact that it was 5400 square feet and three stories. He contends that Mr. Harelson erred in inspecting only the exterior of the Property, asserting that he should have conducted an interior inspection of the Property as well. However, even with an exterior only inspection of the Property, Mr. Halmekan-gas contends that Mr. Harelson knew or should have known that the Property was larger than the 3400 square feet listed on the application. He further alleges that Mr. Harelson then generated a Replacement Cost Estimate/ITV Report which he forwarded to ANPAC-LA. Mr. Halmek-angas contends that Mr. Harelson and/or ANPAC-LA determined the coverage limits for the Property. For reasons set forth in this opinion, a resolution of this factual dispute is not material to the issue on appeal.

ANPAC-LA issued Policy No. 17-X-V08-463-6 (“the Policy”) to Mr. Halmek-angas on January 3, 2005, effective January 1, 2005, insuring the subject property. Mr. Halmekangas admits receiving the Policy and Declaration pages on the property on or about January 5, 2005. The Declaration is multiple pages. Page one sets forth the types of coverage and the limits of each coverage. Page two of the Declaration is entitled “DESCRIPTION OF YOUR HOUSE” and clearly Ldescribes the insured property as a single family, two-story dwelling with 3400 square feet of Living Area. Mr. Halmek-angas alleges that this error in denoting the square footage resulted in his being underinsured.

Shortly after issuing the policy, AN-PAC-LA cancelled it based on an erroneous conclusion that the house was being used as a multi-family dwelling. That issue was resolved, and the policy was reinstated as a single family dwelling. However, the policy limits were increased by an ANPAC-LA underwriter to include a 60 square foot open patio not previously used to generate the ITV report.

Thereafter, ANPAC-LA sent Amended or Reinstatement Declarations to Mr. Har-elson on or about January 28, 2005; January 31, 2005; March 18, 2005; March 21, 2005; March 22, 2005; and June 1, 2005. Each of these provided Limits of Liability Coverage for a single family two-story dwelling with 3400 square feet of Living Area as follows: (A) Dwelling— $346,700.00, (B) Other Structures— $34,670.00, (C) Personal Property— $260,030.00, and (D) Loss of Use— $86,675.00. Mr. Harelson testified in his deposition that upon receipt of these Amended or Reinstatement Declarations, he forwarded them to Mr. Halmekangas. In his answers to discovery and in his deposition, Mr. Halmekangas admitted having received them on at least two occasions, January 2005 and March 2005— however, he does not recall having received Page 2 of the Declarations.

On or about August 29, 2005, the Property was damaged as a result of flooding from Hurricane Katrina. . Shortly thereafter, on or about September 4, 2005, the already damaged Property was destroyed by fire. Mr. Halmekangas submitted claims both to State Farm, his flood insurer, and to ANPAC-LA, his homeowner’s insurer. State Farm paid Mr. Halmekan-gas $83,399.57 for damage to the dwelling and $100,000.00 for damage to personal property. ANPAC-LA paid the entire policy limits of $346,700.00 under Coverage A — Dwelling; $260,030.00 under Coverage C — Personal Property; and $86,675.00 under | ^Coverage D — Loss of Use. The total amount received from both policies was $876,804.57.

Mr. Halmekangas asserts that he was grossly underinsured for the Property. He alleges that he did not discover that he was not adequately insured until the Property was destroyed by Hurricane Katrina, and he realized that he was unable to rebuild the Property with the insurance proceeds he received. He alleges that Mr. Harelson committed critical errors in generating the ITV Report. These errors included writing the Policy for a 3400 square foot, two-story house rather than for a 5400 square foot, three-story house, and failing to properly inspect the Property. He also alleges that ANPAC-LA’s underwriting department erred in failing to confirm the property description submitted by their agent, Mr. Harelson. Mr. Halmekangas contends that a new ITV Report run after Hurricane Katrina with the appropriate property description yielded an ITV value of $602,000.00.

Mr. Halmekangas filed suit on June 21, 2006, approximately 18 months after first receiving the policy.

ISSUE

The issue presented for our review is whether the trial court properly applied La. R.S. 9:5606 to the facts of this case finding that Mr. Halmekangas’s claims are perempted.

ASSIGNMENTS OF ERROR

Mr. Halmekangas alleges two assignments of error:

1. That the trial court erred in determining that La. R.S. 9:5606 applies to plaintiffs claims against ANPAC-LA; and,
2. That the trial court erred in determining the accrual date for the calculation of the preemptive period.

\r,DISCUSSION

Appellate review of summary judgment is de novo using the same criteria as the trial court to determine whether a genuine issue of material fact exists to preclude a judgment as a matter of law. See, Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182-1183. Louisiana Code of Civil Procedure art. 966 requires that the mover prove “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Once the mover makes a showing that the motion should be granted the burden shifts to the opposing party to demonstrate that a material factual issue remains. If the opposing party fails to present sufficient evidence to overcome this burden, the motion shall be granted. Id.

Applicability of La. R.S. 9:5606

La. R.S. 9:5606 provides, in part, that claims brought against “any insurance agent, broker, solicitor, or other similar licensee under this state, whether based in tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought ...” within certain time periods. Mr. Halmek-angas asserts that this provision applies only to an “insurance agent, broker, solicitor, or other similar licensee,” and that ANPAC-LA does not fit that definition and should not be afforded its protection. Rather, Mr. Halmekangas contends that ANPAC-LA is directly responsible for the alleged errors that caused his damages and is also responsible under the doctrine of respondeat superior for the negligent actions of Mr. Harelson.

Mr. Halmekangas contends that the timeliness of his claim directly against AN-PAC-LA, as the insurance company that erred in writing his policy, should be governed by La. C.C. art. 3492, with an accrual date commencing “to run from the day injury or damage is sustained.” He alleges that his damages were not |7sustained until after August 29, 2005, and that he filed this action within one year of that date. As such, he asserts that his claim is timely. Mr. Halmekangas fails to provide this court with any jurisprudential support of his position, and we can find none.

ANPAC-LA contends that any allegations made by Mr. Halmekangas with regard to ANPAC-LA are derivative of his claims against Mr. Harelson. Moreover, any alleged errors on the part of ANPAC-LA are a direct result of and stem from the information provided to it by Mr. Har-elson. Because Mr. Halmekangas’s claims against ANPAC-LA are derivative of those against the agent, ANPAC-LA contends that the plaintiffs claims against ANPAC-LA are governed by La. R.S. 9:5606. We agree.

In Klein v. American Life and Cas. Co., 2001-2336, pp. 4-5 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 531, writ denied 2003-2073 (La.11/7/03) 857 So.2d 497, and writ denied 2003-2101 (La.11/7/03) 857 So.2d 499, the First Circuit held that because the acts of an insurance agent are generally imputable to the insurer he represents, the per-emptive periods set out in La. R.S. 9:5606 apply to the claims against the insurer. Mr. Halmekangas’s claim against AN-PAC-LA is governed by La. R.S. 9:5606 and not by La. C.C. art. 3492.

Accrual date for calculation of the per-emptive period

La. R.S. 9:5606 provides two preemptive periods: one year from the date of the alleged negligent act or omission; or, one year from the date the negligence was discovered or should have been discovered, as long as that date is within three years of the alleged negligent act or omission.

Mr. Halmekangas contends that his action is not perempted under La. R.S. 9:5606 because it was filed less than one year after Hurricane Katrina, within one year of his discovery of the errors committed, and within three years of the date of the alleged wrongful act. The ANPAC defendants contend that Mr. Halmekangas | shad actual and/or constructive notice of the alleged errors associated with his policy more than one year prior to the filing of his lawsuit. To address this issue, this Court must determine when Mr. Halmek-angas discovered or should have discovered that he was underinsured.

The evidence presented establishes that on December 30, 2004, Mr. Halmekangas made an application for homeowner’s insurance with ANPAC-LA through Mr. Harelson. According to the affidavits filed into the record of these proceedings, Mr. Harelson forwarded to Mr. Halmekangas his Policy and his Amended and/or Reinstatement Declarations, all containing the Limits of Liability and property description, on at least five occasions prior to the date of loss. Mr. Halmekangas acknowledges having received these Declarations on at least two of these occasions, once in January 2005 and once in March 2005. However, he does not recall having received Page 2 — the page which describes his property as a single-family, 3400 square foot dwelling. He contends that the ANPAC defendants failed to prove actual mailing of this document to him and that this creates a material issue of fact which would preclude summary judgment in this matter. We disagree.

La. R.S. 22:873 addresses the Delivery of Policy. Subsection A provides as follows:

Subject to the insurer’s requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance. Delivery may be by the United States Postal Service, personal delivery, private courier, or by electronic transaction in accordance with the Louisiana Uniform Electronic Transactions Act, R.S. 9:2601 et seq.

As such, upon mailing of the policy by the insurance company to the insured, it is legally presumed that the plaintiff did, in fact, receive the documents. This Court faced this situation in Rapp v. GEICO Indemnity Co., 2005-0368, pp. 3-5 (La. App. 4 Cir. 2/8/06), 925 So.2d 626, 629. In Rapp, the trial court granted Geico’s | amotion for partial summary judgment on the issue of coverage. The plaintiff presented an affidavit that he did not receive the policy, and the insurer presented internal underwriting documents and an affidavit from an underwriter stating that the policy had been mailed. This Court found that the trial court’s granting of summary judgment was warranted.

This Court finds that there is ample evidence that ANPAC-LA sent the document at issue to Mr. Halmekangas. In his deposition, Mr. Harelson testified that upon receipt of the initial policy from AN-PAC and any subsequent amendments, he reviewed them for accuracy as to requested coverage and agreed upon premiums, signed them and mailed them to Mr. Hal-mekangas. Mr. Halmekangas admits having received the initial policy and having read it in January of 2005 and March of 2005. Additionally, in his responses to discovery, Mr. Halmekangas produced to the ANPAC defendants a copy of the Declarations page signed by Mr. Harelson. Mr. Halmekangas also produced the email transmission by which he had provided documents in his possession to his counsel. This transmission contained a complete copy of the signed Declarations, including Declarations Page 2 — Description of Your House, and “print dates” of January 3, 2005 and March 22, 2005. According to Mr. Harelson’s affidavit, he did not keep signed copies of these documents. Thus, only Mr. Halmekangas could have had them in his possession.

Despite Mr. Halmekangas’s contention that this factual dispute precludes summary judgment, we find that there is no issue of material fact as to Mr. Halmekan-gas’s receipt of his policy. The ANPAC defendants have presented sufficient proof that they mailed the policy and all pertinent pages of it to Mr. Halmekangas as early as January of 2005, and he acknowledges having received the policies on at least two occasions. As a result, the burden on this issue shifts to Mr. Halmekan-gas to produce factual support sufficient to establish that he will |inbe able to satisfy his burden of proof at trial. He has been unable to do so. His self-serving affidavit that he did not recall having received one page of a multi-page document is rebutted by the fact that this particular page was in his possession and he produced it to the defendants in discovery. We agree with the trial court that Mr. Halmekangas is not capable of carrying his burden at trial.

Having determined that Mr. Halmekan-gas is legally presumed to have received a copy of the policy no later than March 2005, and that all of the ANPAC defendants fall within the parameters of La. R.S. 9:5606, we address the question of whether Mr. Halmekangas’s claim was timely filed.

La. R.S. 9:5606 sets forth a one year peremptive period, and provides in pertinent part as follows:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect, is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
* * *
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended. (Emphasis added.)

The Louisiana Supreme Court addressed the issues of the duty of an agent and of the responsibility of the insured in Isidore Newman School v. J. Everett Eaves, Inc., 20092161, (La.7/6/10), 42 So.3d 352. In that case, Newman school filed an action against their insurance agency and the agency’s errors and | n omissions insurer, alleging that a broker from the agency was negligent in failing to advise school business managers that business income/extra expense (“BI & EE”) coverage under property and casualty insurance included tuition loss. Upon the closure of the school for two months following Hurricane Katrina, the school discovered that tuition loss was included in their BI & EE coverage and that they only had $250,000.00 of coverage. This amount was insufficient to cover the tuition losses they sustained. The school alleged that the broker and agency were negligent in failing to advise them that the amount purchased was insufficient, and that they misled the school into believing that the BI & EE coverage was limited to physical damages to buildings. The Louisiana Supreme Court held that Louisiana law does not impose upon an insurance agent the duty to advise a client as to the amount of insurance coverage to obtain. In so ruling, it restated that it is the insured’s responsibility to request the type of coverage and the amount of coverage needed, and to read the policy when it is received. The insured is deemed to know the policy contents. See also: Seruntine v. State Farm Fire and Cas. Co., 2010-1108 (La.9/3/10), 42 So.3d 968; City Blueprint & Supply Co., Inc. v. Boggio, 2008-1093, p. 8 (La. App. 4 Cir. 12/17/08), 3 So.3d 62, 67.

In the case at bar, the evidence establishes that Mr. Halmekangas received his policy in January and March of 2005. The policy lists coverage for his dwelling of only $342,000. It also indicates that the property was a 3400 square foot, single family, two-story dwelling. It was Mr. Halmekangas’s duty at that time to read the policy. Using either January 2005 (the date of the alleged negligent act) or March 2005 (the latest admitted date of the discovery of the alleged wrongful act), more than one year elapsed before Mr. Halmek-angas filed 112this action on June 21, 2006. Accordingly, we find that Mr. Halmekan-gas’ claims against the ANPAC defendants are perempted under La. R.S. 9:5606.

CONCLUSION

The judgment of the trial court is affirmed.

AFFIRMED

      . For ease of discussion, these three defendants are often referred to as "the ANPAC defendants.”

      . All claims against State Farm have been resolved.

      . There were no Other Structures to which Coverage B was applicable, so no payments were issued under this Coverage.