author: WILLIAMS, J.

text:
    STATE of Louisiana in the Interest of L.D. and L.M.
    No. 47,226-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Keesha M. Bordelon, Rayville, LA, for Appellant, State of Louisiana, Department of Children and Family Services.
    Elizabeth C. Brown, West Monroe, LA, for Appellees, L.D. and L.M.
    Bobby R. Manning, Monroe, LA, for Appellees, T.D. and F.B.
    Kenneth M. Trahan, for Appellee, V.M.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

hThe Louisiana Department of Children and Family Services (“the Department”) appeals the juvenile court’s ruling that the Department failed to meet its burden of proving the grounds for termination of the parental rights of F.B., the father of L.M. For the following reasons, we reverse and render.

FACTS

V.M. (“the mother”) is the mother of L.D., born October 22, 2003, and L.M., born April 13, 2006. On March 18, 2008, the Department received a report that the mother, who had a long history of drug use, had left the children in the care of her sister, and the sister was no longer willing and/or able to care for them. The report was investigated, and no known suitable relatives were located to care for the children at that time.

On March 28, 2008, the Department requested and obtained an Instanter Order to remove L.D. and L.M. from the custody of the mother and place them in the custody of the Department. In the affidavit in support of the Order, T.D. was alleged to be the father of L.D., and R.S. was alleged to be the father of L.M. However, a DNA test verified that R.S. was not L.M.’s biological father.

On July 8, 2008, L.D. and L.M. were adjudicated children in need of care and continued in the custody of the Department. Pursuant to case plans formulated by the Department, the primary goal was reunification of the children with the mother. The secondary goal was to grant guardianship of the children to a suitable relative. Initially, the children were placed in the home of their maternal great-aunt; however, months later, the great-aunt 12returned the children to the Department, due to “personal problems.” Since then, the children have remained together, but have been placed in various foster homes in several different parishes.

Over the course of one year, the mother sporadically complied with portions of the case plan. However, she failed to comply with the majority of the plan, largely due to her drug addiction and related problems.

On September 24, 2009, the Department was informed that F.B. was the alleged biological father of L.M. Initially, the whereabouts of F.B. were unknown. However, the following year, the Department discovered that F.B. was incarcerated and was a participant in the Ouachita Parish Work Release program. On July 12, 2010, a case worker visited F.B., who verbally acknowledged that L.M. was his daughter. A case plan was formulated and provided to F.B. with regard to L.M. Subsequent DNA testing proved that F.B. was the biological father of L.M.

Meanwhile, on March 26, 2010, a permanency hearing was held. Pursuant to a judgment signed on that date, L.D. and L.M. were placed in the permanent custody of the Department, pending certification of the children for adoption. Subsequently, on August 30, 2010, the Department filed a petition to involuntarily terminate the parental rights of the mother and both fathers, T.D. and F.B. At the time of the hearing, which was held on September 23, 2011, the mother and both fathers were incarcerated. _Jj20nly F.B. and Susan Green, a foster care worker for the Department, testified at the hearing.

Ms. Green testified that the case had been assigned to her since April 2010. She stated that the Department did not discover the whereabouts of F.B. until approximately July, 2010. Ms. Green also stated that F.B. had been incarcerated the entire time the Department had been in contact with him; however, she and F.B. had “had a couple of face-to-face conversations.” She further testified that F.B. had not had any significant contact with L.M. He had not written any letters, made any phone calls or made any effort to communicate with the child. Ms.- Green also stated that F.B. had not provided any financial support for L.M. since the time the child entered state custody. Ms. Green testified that the Department recommended termination of F.B.’s parental rights because he had not communicated with the child and had not provided any significant contributions to the child’s care.

F.B. testified that his current release date is May 18, 2012. He expressed his desire to have a relationship with his daughter and testified that he would be able to provide a home for her after his release from jail. ^According to F.B., he and the child would reside with his grandmother. F.B. testified that he earned $50 every two weeks when he was in the Work Release program in 2010; however, he was not aware that he could have sent money to the Department to financially support his child. He testified that he was never informed that his case plan required him to provide financial support for the child. Additionally, F.B. testified that he was not informed that he could communicate with the child through the Department until “the other day when we had the Parent Team Conference.” F.B. stated that he was aware that he had a case plan, but he believed that the case plan was “[t]o try to do better and find a home.”

When questioned by the court, F.B. testified that he was aware of his case plan but he had never received any copies of case plans pertaining to the child until “the other day.” He testified that he met with Ms. Green for the first time in 2010, and she informed him that “they were trying to terminate the rights.” F.B. stated that he informed Ms. Green that he did not want his parental rights terminated and he asked her how he could avoid having his rights terminated. According to F.B., he had seen L.M. in 2007 and he “felt like she was my daughter.” He stated that he tried to visit her “a couple of times,” but he was prevented from doing so by “her side of her family[.]” F.B. further testified that he had purchased clothing for L.M. on one occasion, but her family refused to accept the clothing, so he gave the items to his sister. He admitted that he “bumped into [the mother’s] sister” in 2010, and she informed him that L.M. was in foster care. He stated that he “tried to find out what was going on,” but claimed that he did not know | ¡¡that he could have contacted the Department to determine the whereabouts of his daughter.

After hearing the testimony, the court found that the Department had failed to prove, by clear and convincing evidence, the grounds set forth in LSA-Ch.C. art. 1015. The court stated:

As it relates to [F.B.], he was sentenced to six years in 2009 and given credit for time served and his [release] date is May of 2012[.]
[T]he standard of proof is clear and convincing, and because he is incarcerated, it does not make it automatic termination. You have to take into consideration the amount of time that is involved here as in regards to [F.B.]. Even though he was on Work Release, his income was only fifty dollars every two weeks and he was not advised, according to his testimony, [of his] obligation ... to send money to the State in support of [L.M.]. He was just advised of this at the last Team conference held on the 13th of this month.

However, the court made no determination regarding the best interest of the child.

The Department now appeals.

DISCUSSION

The Department contends the juvenile court erred in failing to terminate F.B.’s parental rights. The Department argues that F.B. abandoned L.M. by failing to maintain significant contact by visiting or communicating with her, and by failing to provide significant contributions to her care and support for any period of six consecutive months. The Department also contends F.B. failed to substantially comply with a court-approved case plan for services for a period of three years, and there is no | r,reasonable expectation of significant improvement in F.B.’s condition or conduct in the near future.

LSA-Ch.C. art. 1015 provides, in pertinent part:

The grounds for termination of parental rights are:
(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; therd has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
(6)The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.
* *

17In parental termination proceedings, courts must balance the two private interests of the child and the parents. A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. The child has a profound interest, often at odds with those of his or her parents, in terminating parental rights that prevent adoption and inhibit establishing stable, long-term relationships found in a home with proper parental care. LSA-Ch.C. art. 1001; State ex rel. J.T., 46,174 (La.App.2d Cir.3/2/11), 58 So.3d 1015.

In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel. G.J.L., 2000-3278 (La.6/29/01), 791 So.2d 80; State ex rel. A.R.H. v. Hines, 35,800 (La.App.2d Cir.2/27/02), 810 So.2d 1166. In all proceedings, when a ground justifying termination of parental rights is proven, the primary concern is to secure the best interest of the child. Id. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parent to be terminated. Id.

Termination of parental rights is a severe and final action, so the state must satisfy an onerous burden of proof, establishing each element of a ground for termination by clear and convincing evidence. LSA-Ch.C. art. 1035(A); State ex rel. C.M.M. v. T.P.M., 42,238 (La.App.2d Cir.5/9/07), 957 So.2d 330. Although LSA-Ch.C. art. 1015 provides several grounds for involuntary termination of parental rights, only one ground need be established. State ex rel. S.N.W. v. Mitchell, 2001-2128 (La.11/28/01), 800 So.2d 809; State ex rel. J.T., supra.

The purpose of a termination proceeding is to serve the best interest of the child which includes achieving permanency and stability for the child. State ex rel. D.S.C. v. J.C.R., 35,893 (La.App.2d Cir.2/27/02), 811 So.2d 198. The trial court’s factual findings in termination of parental rights cases are subject to the manifest error standard of review. State ex rel. B.H. v. A.H., 42,864 (La.App.2d Cir.10/24/07), 968 So.2d 881; State in the Interest of K.L.B. v. Biggs, 29,512 (La.App.2d Cir.2/28/97), 690 So.2d 965.

Based on this record, we find that it is in the best interest of L.M. to terminate F.B.’s parental rights. L.M. is five years old and has been in state custody four years. According to F.B., he has always known L.M. was his biological child. He testified that he attempted to visit the child “a couple of times” but her family refused to allow him to visit her. He made no attempt to seek legal recourse to establish paternity or to obtain visitation. F.B. also admitted that he learned that L.M. was in foster care in 2010; however, he made no attempt to ascertain the whereabouts of the child, to communicate with the child or to contribute to the child’s care and support. Although F.B. is currently incarcerated, it is clear from his own testimony that he had not made any effort to form a relationship with his child even before his incarceration. He is a complete stranger to L.M., who met him once in 2007, and again only days before the hearing. The main constant in L.M.’s young life is her sister, with whom she shares a close bond. At this point, it | flwould undoubtedly be traumatic to separate L.M. from her sister and attempt to reunite her with a father whom she does not know.

We also find that the Department met its burden of proving that F.B. failed to provide significant contributions to the child’s care and support for a period of six consecutive months and failed to maintain significant contact with the child by communicating with her for a period of six months. There is no question that this child has been in the custody of the Department for nearly four years. Although the DNA results were not received until 2011, F.B. admitted that he knew L.M. was his child. Yet, he did not financially contribute to her care before she entered state custody, nor has he provided for her since then. Additionally, F.B. had seen the child only one time before she entered state custody, and had only made “a couple of’ attempts to visit with her in her entire life. Even after learning that the child was in state custody, F.B. made no attempt to learn her whereabouts, to communicate with her or to contribute to her support. Accordingly, we conclude that the juvenile court was manifestly erroneous in finding that the Department failed to meet its burden of proving the grounds for termination of F.B.’s parental rights.

CONCLUSION

IT IS ORDERED, ADJUDGED AND DECREED that the portion of the juvenile court’s judgment maintaining F.B.’s parental rights to L.M. is reversed. F.B.’s parental rights to L.M. are hereby permanently and irrevocably terminated, and the child is freed for adoption. Costs of this appeal are assessed to the appellee, F.B.

REVERSED AND RENDERED.

      . The mother had been arrested and charged with various offenses, including first degree robbery, attempted robbery and unauthorized use of an access card.
      On April 26, 2009, F.B. was convicted of theft of a motor vehicle. On that same date, he was sentenced to serve six years at hard labor, suspended. He was placed on supervised probation; however, his probation was revoked following his arrest for domestic abuse.
      In 2004, T.D. was charged with the attempted second degree murder of V.M. He was convicted as charged and is currently serving 25 years in prison without benefit of probation, parole or suspension of sentence.

      . At the conclusion of the hearing, the court did not issue a ruling with regard to the mother’s parental rights.- The court found that termination of T.D.’s parental rights was in the best interest of L.D. The record before us does not indicate whether T.D. appealed the court's ruling. Thus, the only issues addressed in this appeal pertain to the parental rights of F.B. as to L.M.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    Belinda Jones MORALES, et al. v. DAVISON TRANSPORTATION SERVICES, INC., et al. Jose Saldana v. John C. Meshell, et al. John Meshell, through his Co-Guardians, Tracie Meshell and Allison Dugal v. State of Louisiana, Dept. of Transportation and Development, et al.
    Nos. 47,074-CA, 47,075-CA, 47,076-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Michael J. Mestayer, APLC, New Orleans, LA, Robert L. Depper, for Appellants, John Meshell, Through his Co-Guardians, Trade Meshell & Allison Du-gal, Individually and as Natural Parent of Justin Meshell & Jeremy Meshell.
    Mary Thomason, for Appehant, Allison Dugal.
    Davenport, Files & Kelly, L.L.P., Monroe, LA, by W. David Hammett, David W. Hugenbruch, Belinda Jones Morales, for Appellants, Melissa Jones Hayes & Bobbie Jones Whitney, Individually & o/b/o the Estates of Their Parents, Carlos Jones & Susanne Jones (deceaseds).
    Breithaupt, Dunn, DuBos, Shafto & Wolleson, LLC, Monroe, LA, by Michael L. DuBos, K. Lamar Walters, III, for Ap-pellees, Jose Saldana & State of Louisiana, through the Dept, of Transportation & Development.
    Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Caldwell Roberts, Jr., for Appellees, Davison Transportation Services, Inc., Davison Transport, Inc., Genesis Energy, Inc., Genesis Energy LP & Liberty Mutual Ins. Co.
    Barrasso, Usdin & Kupperman, New Orleans, LA, by Susan Muller Rogge, for Appellee, Liberty Mutual Ins. Co.
    Hudson, Potts & Bernstein, by Gordon L. James, Donald H. Zeigler, III, Monroe, LA, Tia C. Ghattas, for Appellee, Bostrom Seating, Inc. (Accuride).
    McGlinchey Stafford, PLLC, New Orleans, LA, by Patrick John O’Cain, for Appellee, Daimler Trucks North America, LLC.
    James Ryan, III, New Orleans, LA, for Appellee, Argonaut Insurance Co.
    Thomas Livingston Gaudry, Jr., Michael Don Peytavin, Gretna, LA, for Appellee, Steadfast Insurance Co.
    Theus, Grisham, Davis & Leigh, by Phillip Doyce Myers, Monroe, LA, John William Strange, Baton Rouge, LA, for Appel-lee, American Home Assurance Co.
    Gieger, Laborde & Laperouse, New Orleans, LA, by Margaret Louise Sunkel, for Appellee, Lexington Insurance Co.
    Law Office of Kirby D. Kelly, Shreveport, LA, by Sean Landry, for Appellee, Jose Saldana.
    Leanne M. Broussard, Assistant Attorney General, for Appellee, State of Louisiana, Through the Dept, of Transportation & Development, Office of Risk Management.
    Before STEWART, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| T This case arises out of a tragic multi-vehicle, multi-collision wreck on 1-20 on November 7, 2007. Multiple lawsuits were filed and consolidated. The only matter before this court on appeal is the granting of summary judgment in favor of the State of Louisiana, Department of Transportation and Development (“DOTD”), and dismissing it from the suits. Plaintiffs Morales and Meshell appeal. For the reasons stated herein, we affirm.

FACTS

On November 7, 2007, DOTD was engaged in a mobile maintenance operation on the inside shoulder of westbound 1-20 in Madison Parish. A motor grader, driven by DOTD employee Glen Jones, was scraping vegetation and dirt build-up from the inside shoulder of the Interstate. An attenuator truck, driven by DOTD employee Jose Saldana, was shadowing the motor grader. The attenuator truck was equipped with a working arrow board directing traffic away from the motor grader and into the right (or outside) lane of travel. The shadow vehicle was also equipped with revolving strobe lights, which were activated and working properly, and a large sign which read “CAUTION-SLOW MOVING VEHICLE AHEAD.” The record confirms that the stretch of Interstate where the work was being done is straight and level, with no curves or sight obstructions of any kind.

The two vehicles were traveling slowly down the inside shoulder of the Interstate, partially in the inside/fast lane of travel. DOTD maintains that the vehicles were traveling 3-5 mph. Plaintiffs argue that the vehicles were traveling below 3 mph.

|9A freightliner, driven by John Meshell, was approaching the work vehicles from the rear at a high rate of speed. Mr. Meshell was traveling in the inside lane attempting to pass another freightliner driven by Wendall Butcher. Mr. Butcher testified that Mr. Meshell swerved to the right as he barely passed Mr. Butcher’s truck in an effort to avoid hitting the attenuator truck. Mr. Meshell, however, clipped the back right corner of the shadow vehicle. This collision caused the attenuator truck to hit the motor grader and ricocheted Mr. Meshell’s truck across the median where it collided with an SUV traveling in the opposite direction. Carlos and Susanne Jones were the occupants of the SUV and both were killed. The surviving children of the Joneses are the Morales Plaintiffs. Mr. Meshell suffered injuries from both collisions, including a permanent brain injury. Mr. Meshell’s co-guardians filed suit on his behalf. Mr. Saldana suffered injuries as well and sued for damages.

DOTD filed a Motion for Summary Judgment asserting that it complied with the Manual for Uniform Traffic Control Devices (“MUTCD”) and the Maintenance Traffic Control Handbook (“Handbook”), which was derived from the MUTCD in order to assist DOTD employees in implementing the directives of the manual. DOTD argues that its compliance with the MUTCD and Handbook relieved the department of any liability for the accident. The trial judge found no “apparent issues of material fact” and further agreed that “DOTD was in fact in compliance |swith the regulations and therefore the law is in favor of DOTD for summary judgment.” This appeal ensued.

DISCUSSION

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Sensebe v. Canal Indem. Co., 10-0703 (La.1/28/11), 58 So.3d 441; Tillman v. Eldridge, 44,460 (La.App.2d Cir.7/15/09), 17 So.3d 69. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Generally, the party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, it is not necessary to refute every element of the claim. In that case, the |4moving party need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). The burden then shifts to the adverse party to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2).

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. La. R.S. 48:21(A); Netecke v. State ex rel. DOTD, 98-1182 (La.10/19/99), 747 So.2d 489. This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Netecke, supra.

More specifically, in the recent decision of Skulich v. Fuller, 46,733 (La.App.2d Cir.12/14/11), 82 So.3d 467, this court recognized the well-settled law that compliance with the provisions of the MUTCD, which is mandated by La. R.S. 32:235, is prima facie proof of DOTD’s absence of fault when an injured motorist attempts to predicate DOTD’s liability on improper signalization or road marking. La. R.S. 32:235(E). We also noted that prima facie proof is sufficient only if not rebutted or contradicted. Skulich, supra, citing Donavan v. Jones, 26,883 (La.App.2d Cir.6/21/95), 658 So.2d 755, writs denied, 95-1786, 95-1891 (La.11/3/95), 661 So.2d 1379.

| pin support of its Motion for Summary Judgment, DOTD introduced the MUTCD and Handbook and noted adduced testimony (at the hearing on the motion) and affidavit evidence that it was in compliance with the MUTCD. Generally, the MUTCD establishes STANDARDS which are mandatory for the DOTD workers to follow, GUIDELINES which are suggestions, based on engineering judgment, and OPTIONS which may be utilized. The road grading work in the case sub judice falls within the STANDARD for a mobile work zone which is defined as “work that moves intermittently or continuously.” The temporary traffic controls for such work on freeways is also set forth in the MUTCD — the only STANDARD or mandatory requirement is an arrow board. There is a GUIDELINE, or suggestion, for the mobile operation that includes two shadow vehicles. This is not, however, a requirement.

In addition, the affidavit of Kirk Gallien, Assistant District Administrator for Operations for DOTD, attests that the MUTCD does not require the use of any shadow vehicles for mobile operations such as the one in the instant case. Further, Mr. Gal-lien attested that the use of a single shadow vehicle, with a flashing arrow board and crash attenuator, revolving strobe-type light and “CAUTION-SLOW MOVING VEHICLE AHEAD” sign for the mobile operation at issue complied with the STANDARDS of the MUTCD and the Handbook.

With this evidence, the burden then shifted to Plaintiffs to produce evidence showing that there was a genuine issue of material fact as to whether DOTD had a duty to do more. In his testimony at the hearing, | (¡Plaintiffs’ expert, Donald Moore, agreed that DOTD was in compliance with the only STANDARD of the MUTCD. Plaintiffs go to great efforts to create issues of material fact, arguing that additional warnings should have been employed by DOTD and that GUIDELINES should have been implemented. However, there is simply no evidence that DOTD failed to comply with the only mandatory regulations in place at the time of the accident.

The record consistently indicates that the road was flat and straight and there were no physical characteristics of the Interstate or sight obstructions that warranted extra cautionary or warning devices. In fact, the only STANDARD required by the MUTCD was an arrow board; and, in this case, there was one shadow vehicle in use, which exceeds the requirements of the MUTCD for this type of maintenance operation. Plaintiffs urge that the factual discrepancy in testimony regarding the speed at which the operation was moving is a material fact bearing on compliance and should preclude summary judgment. We disagree. Mr. Gallien testified that an occasional drop ■ in speed below 3 mph would not change the classification of the operation or the advance warning requirements. The operation was continuously moving and the advanced warnings exceeded the minimum requirements of the MUTCD.

In summary, DOTD supported its motion with evidence of compliance with the MUTCD in warning the motoring public of the slow moving grading operation at issue. Nowhere do Plaintiffs’ experts sufficiently rebut this evidence. Our de novo review, therefore, leads us to |7conclude that summary judgment was properly granted in favor of DOTD and dismissing it from the suit.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of the State of Louisiana, Through the Department of Transportation and Development, and dismissing it from the suit is affirmed. Costs of appeal are assessed equally to Plaintiffs Belinda Jones Morales, et al., and John Meshell, Through his Co-Guardians, Trade Meshell and Allison Dugal.

AFFIRMED.

      . On appeal, DOTD further asserts immunity under the discretionary function exception in La. R.A. 9:2798.1. In light of our ruling that summary judgment was properly granted in favor of DOTD, we pretermit any discussion of this additional argument.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellant v. Anthony R. BANKS, Appellee.
    No. 46,911-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Loyd Kenneth Thomas, Shreveport, LA, for Appellee.
    Charles R. Scott, II, District Attorney, Brady D. O’Callaghan, Assistant District Attorney, for Appellant.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

| jThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Anthony R. Banks, defendant, filed a motion to quash the bill of information against him, which the trial court granted. The State has appealed that judgment. For the following reasons, the trial court’s judgment is reversed and the matter is remanded to allow the State to proceed with the charges against the defendant.

Facts

On February 17, 2009, Banks was charged by bill of information with armed robbery, possession of a firearm by a convicted felon, and possession of stolen firearms in Docket No. 275,361 in Caddo Parish, Louisiana. The bill of information alleged that the offenses were committed on January 21, 2009, and the victim was Kevin Powell. When that matter came to trial on September 27, 2010, the State dismissed the charges against Banks.

On January 25, 2011, Banks was charged again by bill of information with the offenses of armed robbery with a firearm (violations of La. R.S. 14:64 and 14:64.3) and possession of a firearm by a convicted felon (La. R.S. 14:95.1). These charges arose out of the same facts and circumstances as the offenses in the previous criminal prosecution against him. Banks pleaded not guilty, and on February 14, 2011, filed a motion to quash the bill of information, claiming that the State’s actions violated his rights to a speedy trial, due process, and against double jeopardy.

The trial court granted Banks’s motion. In quashing the State’s bill of information and dismissing the charges against Banks, the trial court looked to La. C. Cr. P. art. 576, which allows a new prosecution when previous |2charges have been properly dismissed, providing that the new prosecution is timely. The trial court noted that the State’s dismissal and new prosecution violated art. 576 and, by implication, Banks’s right to a speedy trial. This appeal by the State ensued.

Discussion

The State argues that the trial court erred in granting the motion to quash, because the law and jurisprudence are clear that unless a defendant’s constitutional, rather than statutory, right to a speedy trial is violated, the district attorney has complete discretion over the dismissal and reinstitution of prosecutions within his jurisdiction. We agree.

State v. Batiste, 2005-1571 (La.10/17/06), 939 So.2d 1245, is precisely on point. In Batiste, the Supreme Court noted that a trial court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstitut-ed charges should be decided on a case-by-case basis. Id. at 1249. The Batiste court further noted that:

“[Wjhere it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.”

Id., citing State v. Love, 2000-3347 (La.05/23/03), 847 So.2d 1198, 1209. In Batiste, the court concluded there was no indication that the prosecution was “flaunting his authority at the expense of the defendant.” We conclude the same in the case at hand.

| ¡¡There is no question that the district attorney has control of criminal prosecutions, including dismissal and reinstatement of cases. Louisiana C. Cr. P. art. 691 states:

The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court.

The only limitations on the State’s ability to reinstate charges previously dismissed by a district attorney are seen in La. C. Cr. P. art. 576, which states:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer. A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

Under La. C. Cr. P. art. 578, the State has two years from the institution of the prosecution to bring the defendant to trial on a noncapital felony offense.

Here, we do not find that the second bill violates Banks’s right to a speedy trial, either statutorily or constitutionally. As far as the statutory requirements, we note that the State’s actions were timely as required under La. C. Cr. P. arts. 576 and 578. As stated, on September 27, 2010, the day of Banks’s trial in Docket 275,361, the State dismissed the charges under the bill of information before any witnesses had been sworn. Despite Banks’s assertion to the contrary and the trial court’s statement in its ruling, the record clearly reflects that Banks and his attorney were present in court. They made no comment regarding the dismissal. On January 25, 2011, the State filed another bill of information in a new proceeding against Banks (Docket No. 293,875), which was based on the same offense. Applying the time restraints stated in La. C. Cr. P. arts. 576 and 578, the State had two years from institution of the prosecution against Banks or six months from the date of the dismissal, whichever was longer. That date would have been March 27, 2011; thus, the reinstatement of charges against Banks on January 25, 2011, was timely, and the statutory requirements to proceed against him were met.

Further, Banks had filed a motion to suppress identification evidence because the victim had died — said motion was filed a mere nineteen days prior to the date of trial. As evidenced by the trial transcript from September 27, 2010, that motion to suppress was still pending at the time the case was dismissed by the State. Under La. C. Cr. P. art. 580, the filing of the motion to suppress acted to suspend the time within which the prosecution had to commence under La. C. Cr. P. art. 578, which further shows that the State was acting within the requisite time constraints to proceed against Banks.

IfiNor do we find that Banks’s constitutional right to a speedy trial was violated as he claims. The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is a four-factor test found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also State v. Sparks, 1988-0017 (La.05/11/11), 68 So.3d 435, cert. denied, El-Mumit v. Louisiana, — U.S. —, 132 S.Ct. 1794, 182 L.Ed.2d 621 (03/26/12); State v. Logan, 45,136 (La.App.2d Cir.04/14/10), 34 So.3d 528, writ denied, 2010-1099 (La.11/05/10), 50 So.3d 812. The factors include: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant.

First, as already discussed, we note that the length of delay in this case did not exceed that allowed by law. We do not deem the length of time expended in this matter unreasonable. Second, the reason for the dismissal was not specified; however, as argued by the State, it had no prescription concerns because Banks’s motion to suppress was pending and worked to suspend prescription. Notably, the motion to suppress was filed within the month prior to the trial, indicating that the case was continuously proceeding. It does not appear that the dismissal was a ploy by the State for avoiding the time limitation for commencement of trial established by La. C. Cr. P. art. 578. The record does not contain any motions to continue the trial, nor do the minutes indicate that the State used any dilatory tactics to prevent trial. Third, Banks did filed a pro se motion for speedy trial in May 2010. Pri- or to that, several court appearances had occurred, during one of which Banks had filed a motion for discovery and production of documents. | (Again, there does not appear to be any undue delay that would have necessarily prompted Banks to file his motion. Finally, the last factor to be considered is the prejudice to the defendant. In this case, Banks was unable to allege any prejudice that resulted from the dismissal and later reinstitution of the charges against him, and there is no prejudice to be found in the record. Considering the Barker factors, there has been no showing that Banks’s constitutional right to a speedy trial was violated.

Therefore, under the specific facts of this case, we do not find that Banks’s right to a speedy trial, either statutorily or constitutionally, were violated. The trial court erred in granting Banks’s motion to quash and dismissing the State’s bill of information against him.

Conclusion

For the foregoing reasons, the judgment of the trial court granting the motion to quash filed by Anthony R. Banks is reversed. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


author: WILLIAMS, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Seth Allen FOSTER, Appellant.
    No. 46,897-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2012.

      Christopher Hatch, Shreveport, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Dale N. Montgomery, II, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Seth Allen Foster, was charged by bill of information with computer-aided solicitation of a minor, in violation of LSA-R.S. 14:81.3. Following a jury trial, the defendant was found guilty of attempted computer-aided solicitation of a minor (LSA-R.S. 14:27 and 14:81.3). The trial court sentenced defendant to serve 18 months at hard labor without the benefit of parole, probation or suspension of sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

In January 2007, the defendant was charged with computer-aided solicitation of a minor. Defendant filed a motion to quash on the grounds that LSA-R.S. 14:81.3 was unconstitutionally overbroad, vague and violated his due process rights. After a hearing, the trial court denied the motion to quash.

On October 13, 2009, prior to the jury trial, the court conducted a hearing and determined that defendant’s statement to police following his arrest was admissible. At trial, the state presented the testimony of Matthew Wright, an agent who investigates cyber crimes and commercial fraud cases with the Department of Homeland Security. Agent Wright was accepted as an expert in computer and cellular phone forensics and undercover internet operations. Agent Wright explained that as part of his former job with the Northwest Louisiana Internet Crimes Against Children Task Force, he entered online chat rooms available in Louisiana and posed as an underage child. Agent Wright explained that Yahoo, the internet provider, recommended that persons entering its chat rooms be at least age 18, but did |2not require verification of a person’s age.

On November 21, 2006, Agent Wright signed onto a Yahoo profile with the screen name “liltaraleel2,” posing as a 13-year-old girl from Bossier City. Agent Wright encountered the defendant, who was using the screen name “turkeyleg30.” Defendant sent an instant message asking “liltaralee” her age. Wright answered “thirteen and you?” Defendant responded “that’s a little young, lol [laughing out loud]” and said he was 24 years old. Defendant then asked why the girl was home from school and liltaralee replied that school was out for Thanksgiving break. Liltaralee said that she attended Green-acres Middle School in Bossier City.

In response to defendant’s request for photos of liltaralee, Wright sent him three images of a teenage girl. After viewing the photos, defendant said that he was “in the mood,” and that liltaralee would have to come up with a topic for conversation because “I only want to talk about sex.” Agent Wright responded, “I just don’t know how to talk about sex.” Defendant asked liltaralee what she wanted to know about sex and followed up by asking whether she had ever “done anything with a guy.” Agent Wright responded, “yeah, kissed and stuff.” Defendant asked what “stuff’ meant and Agent Wright said “like messed around.” Defendant asked liltara-lee if she had a cell phone so he could text her later. Agent Wright responded by asking for defendant’s cell phone number, which he provided. Defendant told liltara-lee to send him a text before 1:00 p.m. because he had to go to work.

Wright retrieved a cell phone from the Bossier City Marshall’s Office |sand sent a text message to defendant. Wright testified that he was unable to obtain all of the text messages from the phones, but read the recovered messages at trial. Wright stated that defendant sent a text asking if liltaralee had a camera phone because he “was ... thinking bad stuff’ and “wanted to see naked pictures” of liltaralee. Defendant then asked if liltaralee looked good naked and whether she had ever experienced an orgasm before. Wright, responding as liltaralee, stated “I don’t think I have,” to which defendant replied, “[h]mm, makes me want to give you one.” Defendant continued texting sex-related questions, asking if liltaralee had ever tried to give herself an orgasm, whether she had hair “down there” or shaved, and whether she was wearing underwear while texting him.

Wright testified that the following day he sent additional text messages posing as liltaralee to defendant. During the conversation, the defendant indicated that he was interested in coming to visit liltaralee, but thought that it might be a setup. When liltaralee expressed a fear of getting pregnant, defendant explained that she would not get pregnant because he would “pull out.” Wright tried to schedule a meeting for 4:00 p.m., but defendant never showed up. Police then identified defendant through his cell phone number and arrested him at his place of employment.

Prior to making a statement to police, the defendant signed a waiver of his Miranda rights. Agent Wright testified that defendant admitted he was the individual who had been communicating with liltara-lee via text messages and Yahoo instant messages. He also gave police permission to search his cell phone and computer. When asked whether he believed he |4had been speaking to a 13-year-old girl, defendant said that he thought the other person might have been his friend playing a prank or a police officer.

The state also called Scott Tucker, a detective with the Webster Parish Sheriffs Office, as a witness. Detective Tucker testified that he assisted Agent Wright in arresting the defendant, who was 24 years old at the time. Detective Tucker stated that he obtained defendant’s birth date by viewing his driver’s license. On cross-examination, Detective Tucker admitted that he had not made a copy of defendant’s driver’s license and that he was not sure where defendant’s date of birth was written. However, Detective Tucker testified he recalled that defendant had said he was 24 years old at the time of the arrest.

Subsequently, the jury found the defendant guilty of the lesser offense of attempted computer-aided solicitation of a minor. The trial court sentenced defendant to serve 18 months imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant’s motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

The defendant contends the evidence presented was insufficient to convict him of attempted computer-aided solicitation of a minor. Defendant argues that the state failed to prove that he reasonably believed that he was communicating with a person who had not attained the age of 18 because of his statement to liltaralee that he believed their communication could be a “setup” and to police that he thought liltaralee might have been a friend of his playing a prank. Defendant further argues that the state failed to prove |Bhe was 18 at the time of the offense, as required by the statute, because no documentary evidence of his age was produced at trial.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Baker, 46,089 (La.App.2d Cir.3/2/11), 58 So.3d 571.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Shivers, 43,731 (La.App.2d Cir.12/3/08), 998 So.2d 877.

LSA-R.S. 14:81.3, at the time of the offense, provided in pertinent part:

A. Computer-aided solicitation of a minor is committed when a person eighteen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct ..., or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or person reasonably believed to have not yet attained the age of eighteen.

The legislature has defined the term “sexual conduct” to include actual or simulated sexual intercourse, masturbation, lewd exhibition of the genitals or any lewd or lascivious act. LSA-R.S. 14:81.3(D). The Louisiana Supreme Court has broadly defined lewd or lascivious conduct as any act which is lustful, obscene, indecent or tends to deprave the morals with respect to sexual relations. State v. Jones, 2010-0762 (La.9/7/11), 74 So.3d 197.

Any person who, having a specific intent to commit a crime, does or 17omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. Mere preparation to commit a crime shall not be sufficient to constitute an attempt. LSA-R.S. 14:27. Thus, specific intent to commit a crime is an element of an attempted offense and the state has the burden of proving the defendant’s specific intent to commit the charged crime. State v. Prine, 44,230 (La.App.2d Cir.5/20/09), 13 So.3d 758. The state must also prove that the offender committed or omitted an act for the purpose of accomplishing his object. The trier of fact must determine whether the defendant acted toward the commission of a crime by examining the totality of the circumstances. Jones, supra; Brine, supra.

Specific criminal intent is the state of mind that exists when the offender actively desired the proscribed criminal consequences to follow his act or failure to act. Jones, supra. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. LSA-R.S. 14:10(1); State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

In this case, defendant was informed that liltaralee was a 13-year-old student on school break and was sent photographs depicting a girl of that age. Despite his expression of amusement (“lol”) about her age, defendant did not express disbelief that he was communicating with a young girl after | ¡¡receiving the photographs. Instead, defendant began talking about sexual matters with a person whom he believed to be 13 years old, asking about her sexual experience, whether she “looked good naked” and telling her that he wanted to give her an orgasm and that she should try masturbating. Based upon the evidence presented, the jury could have found that defendant had the specific intent to use electronic text communication to contact a person reasonably believed to be under age 18 to persuade her to participate in sexual conduct, which includes sexual intercourse or masturbation. In addition, the jury could have found that by telling liltaralee to send a text message to his cell phone number, enabling him to send a text expressing his wish to see nude photos of liltaralee, defendant committed an act for the purpose of accomplishing computer-aided solicitation of a minor.

In his appellate brief, the defendant contends the evidence failed to show he reasonably believed he was communicating with a minor and that he was 18 years old at the time of the offense. The logs of online instant messages and recovered text messages were introduced into evidence. The jury also heard the testimony of Agent Wright regarding the defendant’s expressed concerns about the true identity of liltaralee when the meeting arrangements apparently raised his suspicions. Contrary to defendant’s contention, the evidence presented, considered in the light most favorable to the prosecution, supports a finding that defendant reasonably believed he was communicating with a girl under the age of 18. Additionally, in one of his first messages, defendant stated that he was 24 years old.

Based upon this record, we conclude that the jury could reasonably | flhave found that the defendant possessed the requisite intent to commit computer-aided solicitation of a minor and committed an act to accomplish the crime. Consequently, the evidence presented was sufficient to support the conviction for attempted computer-aided solicitation of a minor. Thus, the assignment of error lacks merit.

Constitutionality of the Statute

The defendant contends the 2006 version of LSA-R.S. 14:81.3 is unconstitutional. Defendant argues that because 17 is the age of consent for sexual purposes in Louisiana, the statute is unconstitutionally overbroad in criminalizing electronic textual communication regarding sexual activity between an 18-year-old and a person who is 17 years old.

As previously stated, at the time of the offense in 2006, LSA-R.S. 14:81.3 prohibited an 18-year-old from using electronic text communication to contact a person reasonably believed to be under age 18 with the intent to persuade the person to participate in sexual conduct. Statutes are generally presumed to be constitutional and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Hatton, 2007-2877 (La.7/1/08), 985 So.2d 709; State v. Fleury, 01-0871 (La.10/16/01), 799 So.2d 468; State v. Flores, 27,736 (La.App.2d Cir.2/28/96), 669 So.2d 646.

The right to free speech is subject to reasonable legislative regulation. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); U.S. v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The United States Supreme Court has held that obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. Williams, supra; State v. Whitmore, 46,120 (La.App.2d Cir.3/2/11), 58 So.3d 583.

A state’s interest in safeguarding the physical and psychological well-being of a minor is compelling. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. Whitmore, supra; State v. Penton, 08-0551 (La.App. 1st Cir.10/31/08), 998 So.2d 184. Louisiana statutory law prohibits the solicitation of a child for sex. See LSA-R.S. 14:42(A)(4) and 14:27 (attempted aggravated rape of a child under age 13); LSA-R.S. 14:80(A)(1) and 14:27 (attempted felony carnal knowledge of a juvenile).

A statute is facially invalid on First Amendment grounds if it prohibits a substantial amount of protected speech. This doctrine seeks to strike a balance between competing social costs. In order to maintain an appropriate balance, the statute’s overbreadth must be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed. Williams, supra; Whitmore, supra. The first step in overbreadth analysis is to construe the challenged statute to determine what speech is restricted. The second step is to ascertain whether the challenged |nstatute criminalizes a substantial amount of protected activity. Williams, supra; Whitmore, supra.

In the present case, the defendant has failed to meet his burden of rebutting the presumption that the 2006 version of LSA-R.S. 14:81.3 is constitutional. As this court pointed out in Whitmore, supra, Section 81.3 seeks to prohibit the online solicitation of minors for sex and such illegal transactions are excluded from First Amendment protection. In addition, the statute advances the state’s compelling interest in protecting children from sexual exploitation and abuse. The material which the defendant claims should be protected-electronic communication by persons 18 years of age or older, made to solicit sex from 17-year-olds-is not a broad category of speech, but is quite narrow in scope.

Based on the applicable law and the circumstances of this case, we find that there has been no showing that Section 81.3 is substantially overbroad. Consequently, we conclude that the statute is constitutional. This assignment of error lacks merit.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that a lesser sentence is appropriate considering his background and the facts of the offense.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied 96-0836 (La.9/20/96), 679 So.2d 430. The penalty for attempted computer-aided solicitation of a minor is a fíne of not more than $5,000 and imprisonment at hard labor for not more than 5 years without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:81.3 and 14:27(D).

Prior to imposing sentence, the trial court reviewed a presentence investigation (PSI) report, which showed that defendant did not have a criminal history. The court considered the guidelines of Article 894.1, finding that this was a “very serious crime” and that a lesser sentence would deprecate the seriousness of the offense. The court was aware of defendant’s age, that he was a high school graduate and that he had been employed.

The record demonstrates that the trial court took cognizance of the sentencing factors set forth in Article 894.1, specifically noting that the 11sdefendant was a first offender. The 18-month sentence imposed was on the lower end of the statutory sentencing range for the offense of conviction.

Additionally, the sentence is not grossly out of proportion to the seriousness of the offense. The evidence showed that defendant believed he was communicating with a 13-year-old girl when discussing sexual matters in a lewd manner. The nature of the conversation was sexually explicit, extremely inappropriate and unsettling. There was no showing that the trial court abused its discretion in sentencing this defendant. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

We have reviewed the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|, Since the crime of computer-aided solicitation of a minor is an offense defined by the legislature in the nature of an attempt, I find error patent in the conviction for attempted computer-aided solicitation of a minor. The jurisprudence shows that an attempt conviction for an inchoate or attempt crime is improper so that the option given to the jury in this case to return the responsive verdict was error. State v. Dryer, 388 So.2d 374 (La.1980); State v. Eames, 365 So.2d 1361 (La.1978); State v. Sloan, 32,101 (La.App.2d Cir.8/18/99), 747 So.2d 101.

The operable language of the charged offense under La. R.S. 14:81.3 provides for “the use of electronic textual communication” by the defendant “for the purpose of or with the intent to persuade, induce, entice, or coerce” “a person reasonably believed” to be a minor “to engage or participate in sexual conduct.” The act in furtherance of the crime begins with the communications referencing lewd and lascivious sexual conduct, and yet at the same time, the crime is completed. Nevertheless, beyond such communications, if a completed lewd and/or violent sexual act occurs with the minor child victim, there are other crimes such as indecent behavior with juveniles or rape that proscribe such criminal conduct and define acts beyond the inchoate attempt to entice the victim which the present charge addresses. Like the difference between the crime of assault, which places the victim in reasonable apprehension of receiving a battery, and the battery itself, the crime of computer-aided solicitation recognizes the harm to society for the attempted actions of communications toward the victim.

12In their treatise on Louisiana jury instructions, Professors Cheney C. Joseph and P. Raymond Lamonica note in comments as follows regarding La. R.S. 14:81.3:

Since the offense is arguably in the nature of a “solicitation or attempt,” attempt may not be a proper responsive verdict. See State v. Dyer, 388 So.2d 374 (La.1980). Until a definitive jurisprudential or statutory resolution of this issue is available, the court should require counsel’s legal arguments before deciding whether or not to instruct on attempt as a responsive verdict.

Cheney C. Joseph & P. Raymond Lamoni-ca, Criminal Jury Instructions, § 10.81.3, 17 Louisiana Civil Law Treatise (2d ed.2003).

In § 10.92A(11) of the same Treatise, the writers discuss La. R.S. 14:92 A(ll), contributing to the delinquency of juveniles, which is defined as “the intentional enticing, aiding, soliciting, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen to become involved in crime of violence or drug felonies.” The writers then observe in comments:

The offense, if committed by “enticing,” is in the nature of an attempt but an “attempt to entice” would not be a proper responsive verdict. See State v. Eames, 365 So.2d 1361 (La.1978).

Id., 10.92A(11). Likewise, in 52 La. L.Rev. 1083, Dale Bennett and Professor Joseph discussed inchoate crimes as follows:

Similarly, the Louisiana Supreme Court has held in State v. Eames and State v. Dyer that the legislature did not intend for the general attempt article to apply to offenses which are themselves in the nature of an attempt. In Eames, the court set aside a conviction for attempted inciting to riot on the theory that the inciting offense is itself in the nature of an attempt. In Dyer, the court held that there can be no attempt to carry a concealed weapon because the offense of carrying a concealed weapon is itself in the nature of an attempt. Whether or not one agrees with the ultimate resolution of these cases, it is logical for the supreme court to conclude that the general attempt article was not intended to apply to offenses which the court finds are themselves in the nature of an attempt.

| oDale Bennett and Cheney Joseph, The Louisiana Criminal Code of 19i2-Doctri-nal Provisions, Defenses, and Theories of Culpability, 52 La. L.Rev. 1083, 1107 (1992).

From these prior rulings of the Supreme Court, the responsive verdict of attempted computer-aided solicitation of a minor requires reversal of this conviction.

      . In 2008, LSA-R.S. 14:81.3 was amended to prohibit a person 17 years of age or older from contacting, through the use of electronic textual communication, a person "who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen” with the intent to persuade the person to engage in sexual conduct.


author: CARAWAY, J.

text:
    Rick DUCKETT, Plaintiff-Appellant v. GRAMBLING STATE UNIVERSITY and the Louisiana Board of Trustees for Colleges and Universities, a/k/a University of Louisiana Systems, Defendants-Appellees.
    No. 47,082-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 18, 2012.

      Gregory Scott Moore, for Appellant.
    Decuir Clark & Adams, L.L.P., Baton Rouge, LA, by Winston G. Decuir, Sr., for Appellees Jason M. Decuir.
    Before STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

_JjIn this case, the plaintiff was recruited by the university president and athletic director to become a head basketball coach at the state university. The plaintiff left a higher paying coaching job in another state on the assurance that he would receive a four-year term employment contract. The president of the university made that promise subject to the approval of the management board for the institution as required by Louisiana law. Upon plaintiffs commencement of the job in Louisiana and for over a year thereafter, the management board did not act to consider the four-year contract and plaintiff was then fired. He now brings this action asserting in this appeal the claim of detrimental reliance under Civil Code Article 1967. The trial court dismissed the claim on the university’s motion for summary judgment. Finding material issues of disputed fact, we reverse the summary judgment.

Facts

This appeal stems from an employment dispute between Rick Duckett and Gram-bling State University (“GSU”), through its Board of Supervisors for the University of Louisiana System (the “Board”). In 2008, GSU’s president, Dr. Horace A. Judson, and its athletic director, Troy Math-ieu, recruited Duckett to be the head coach of their men’s basketball team. At the time of his recruitment by GSU, Duckett had been the assistant men’s basketball coach at the University of South Carolina for seven years. In addition to his annual salary of $119,148 in South Carolina, his wife also made $53,200 per year as a senior claims representative at State Farm.

|2On May 12, 2008, Judson offered Duck-ett the position of head coach for the men’s basketball team. Specifically, his letter stated as follows:

I am pleased to offer you the unclassified position of Men’s Head Basketball Coach at Grambling State University, pending approval of the Board of Supervisors of the University of Louisiana System. This is a regular, full-time, 12-month position at a beginning salary rate of $103,000, effective June 9, 2008. This offer is for a four-year contract period effective as of that date. This employment offer also includes a one-time moving allowance of up to $8,000.... Should you accept this offer, you will report to the Athletic Director, Mr. Troy Mathieu, who will provide you with your specific job responsibilities and other operating policies and procedures. Your reply will be needed immediately.

While Duckett was initially hesitant about quitting a secure job prior to finalizing a contract, Duckett asserts that Judson and Mathieu assured him that the Board had already agreed to approve his contract. In his affidavit, Duckett stated that he “spoke to Judson and Troy Mathieu and was advised that they ‘had already run my offer up the flagpole’ and that they had been assured by the Board of Supervisors that it would accept [his] contract upon presentment.” Since they assured him that “the approval by the Board was a mere formality and that upon our reaching an agreement on a contract, the contract would be promptly presented to the Board for its consideration and approval,” Duck-ett accepted the job offer on May 14, 2008. Thereafter, Duckett quit his job, moved his family to Louisiana, and began his position as GSU’s head basketball coach.

By August, the parties had apparently agreed on the final provisions of the employment contract, and on August 20, 2008, GSU’s legal representative provided Duck-ett, through his attorney Stu Brown, with a | ciformal contract ready for signature. This contract provided for a four-year term of employment that would commence on June 2, 2008, and end on June 30, 2012. Duckett’s salary for the first year was set at $103,000, but his salary would increase annually by $3,000 to $112,000 for the final year. The contract provided for liquidated damages if GSU prematurely terminated Duckett’s employment without cause. If terminated without cause, the contract stated that Duckett would receive his remaining base salary for that current year, his salary from his last contract year ($112,000), and any incentives earned.

Duckett quickly signed this contract and sent it to Judson to sign and submit to the Board on October 24, 2008, the next available Board meeting. While the October Board minutes listed the approval of Duck-ett’s employment contract as an agenda item, the minutes reflect that “at the request of Dr. Horace Judson, President, this item was deferred.”

Although the approval of the contract was deferred by the Board, no one informed Duckett that his contract had not been approved until November 24, 2008, when GSU sent him a summary of eight recommended changes to his employment contract. It is not clear from the record whether these proposed changes came from Judson or the Board. However, Dr. Randy Moffett, the President of the Board, suggests in his affidavit that these contract amendments were proposed by the Board. Again Judson assured Duckett that everything was fíne. Since he was in the middle of the basketball season, Duckett did not have free time to deal with the contract and once again, relied on Judson’s assurances. Nevertheless, the amended 1 ¿contract was virtually the same as the original contract regarding the term of employment and made alterations only in the liquidated damages provisions.

As a result of the November 24, 2008 revised contract, Duckett’s attorney sent a letter, on January 8, 2009, agreeing to six of the eight proposed amendments to the contract. Additionálly, he voiced Duck-ett’s surprise that the August contract had not been considered the final agreed-upon contract, especially considering it was written by GSU and signed by Duckett.

As Duckett’s employment continued into its second year in June 2009, his salary was apparently raised in accordance with his initial agreement with Judson and the proposed contract. On August 11, 2009, a GSU attorney provided Duckett’s attorney with a revised employment contract that incorporated only the six amendments that Duckett accepted. The cover sheet stated that “we would like to submit the final contract for Board approval at our upcoming Board Meeting. If possible, please return the signed contract by the close of business today.” Since there was a Board meeting on August 24, 2009, Duckett signed the contract on the day that he received it and sent it to Judson, who also signed it. Despite these facts, Duckett’s employment contract was never presented to the Board for approval nor was Duckett informed that the Board never considered it.

Duckett received a termination letter, by hand delivery, from Judson on September 24, 2009. In particular, this letter stated that:

This is to inform you that your unclassified at-will employment at Grambling State University will officially end at the close of | ¡¡business on October 31, 2009. Effective at the close of business on Thursday, September 24, 2009, you will be placed on paid administrative leave until your employment officially ends.

There is no evidence presented indicating that Judson’s termination of Duckett’s employment resulted from the vote and authorization of the Board.

Upon receipt of Judson’s letter, Duckett made demand for his remaining salary for his current contract year, 2009-2010, and his final year’s salary of $112,000 as specified under the proposed written contracts. GSU, however, refused his demands. Since his employment ended, Duckett has been unable to find a full-time job, forcing him to receive unemployment benefits, sell his house at a loss, and exhaust his retirement savings in order to support his family-

Duckett filed a petition against GSU through the Board on May 19, 2010. Duckett’s petition set forth a breach of contract claim. Alternatively, the plaintiff asserts a cause of action based on the theory of detrimental reliance. Since the Board never approved Duckett’s contract, the defendant filed a motion for summary judgment on February 25, 2011. The defendant presented the affidavit of Moffett as evidence of the lack of a contract. Mof-fett’s affidavit stated that:

He further deposes that he was aware that his staff had reviewed on several occasions the proposed contract for Rick Duckett, head men’s basketball coach at Grambling State | ^University.... In or about April 2009, the terms of the contract could not be agreed upon and he did not recommend Rick Duckett’s contract for approval through the Board of Supervisors for the University of Louisiana System nor was it ever placed on the University of Louisiana System Board agenda for approval. Mr. Duck-ett’s contract was never voted upon nor approved by the Board of Supervisors for the University of Louisiana System.

At the hearing on the motion for summary judgment, the trial court reviewed and followed the holding in J.D. Barnett v. Board of Trustees for State Colleges and Universities, 00-1041 (La.App. 1st Cir.6/22/01), 809 So.2d 184. The trial court stated that Duckett, like Barnett, failed to provide any factual support for an element of his breach of contract claim, i.e., that there was an authorized contract. As for the plaintiffs detrimental reliance theory, the trial court considered it noteworthy that Duckett, like Barnett, had been informed from the beginning that Board approval was a necessary prerequisite to his employment contract. Although the trial court felt that Duckett was reasonable in relying upon the representations, the trial court did not believe that Judson and Mathieu’s promises could be imputed to the Board. The trial court concluded that persons negotiating with agencies of the state do so charged with knowledge of the laws and knowledge that the validity of their acts is subject to those laws, citing Brodhead v. Board of Trustees for State Colleges and Universities, 588 So.2d 748, 752 (La.App. 1st Cir.1991), writ denied, 590 So.2d 597 (La.1992), and State through Dep’t of Highways v. City of Pineville, 403 So.2d 49 (La.1981). As a result, the trial court granted the defendant’s summary judgment motion and dismissed the plaintiffs case.

| tDiscussion

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773.

The motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049; Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App.2d Cir.4/4/01), 785 So.2d 101.

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Knowles, supra. Issues that require the determination of reasonableness of acts and the conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Rhymes v. Winn-Dixie Louisiana, Inc., 10-1357 (La.App. 3d Cir.3/9/11), 58 So.3d 1068; Granda v. State Farm Mut. Ins. Co., 04-1722 (La.App. 1st Cir.2/10/06), 935 So.2d 703, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326.

In Duckett’s appellate argument he concedes that a valid contract between himself and GSU, through the Board, was never confected. Nevertheless, asserting his alternative plea of detrimental reliance, he claims that issues of material fact bearing on that cause of action require reversal of the trial court’s grant of summary judgment. Despite Duckett’s concession of no contract, we will first review the reason for the admitted deficiency in the proposed contract and examine the scope of recovery of contractual damages which a valid four-year term employment contract would have afforded him. Review of the contract claim reveals a contrast to Duckett’s detrimental reliance claim and the material facts and available recovery for such claim.

In this case, the parties intended to enter into an employment contract with a four-year term. This fact is clearly shown through the employment offer itself and the numerous contract drafts. Yet from the beginning, the finalization of their employment contract was always conditioned upon receiving the Board’s approval. Thus, any assertion by Duckett of an apparent authority by Judson and Mathieu to bind the public institution to a term contract cannot be made. The requirement for Board approval is set forth in La. R.S. 17:3305(A), as follows:

The head of each college and university shall appoint and fix the salaries and the duties of the members of the faculty and administrative and professional staff for the college or university he heads, subject to the recommendation of the president or chief administrative officer of the system and approval of the appropriate management board.

|9In this case, it is not disputed that the Board, as the “appropriate management board” of GSU, never voted on nor approved Duckett’s employment contract.

The Civil Code provides the remedy for employees hired for a term of years upon the breach of a term employment contract. Louisiana Civil Code Article 2749 provides:

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

Therefore, with the defect in the contract formation, Duckett is not entitled to recover the salary that he would have been paid for the following 2-1/2 years or the discussed liquidated damages as if he had a valid employment contract for a term.

Additionally, before consideration of Duckett’s claim of detrimental reliance, it should be observed that GSU and Duckett were in a tacit contractual employment relationship for all the time Duckett devoted to the university and for which GSU made payment of his salary. This was an at-will employment relationship under which GSU was obligated to pay the salary for the time period of Duckett’s actual services as an employee. Because of the public policy reflected in La. R.S. 17:3305(A), the additional term obligation and the greater potential liability resulting from Civil Code Article 2749 could not arise in the absence of Board approval.

In the 1984 revision of the Civil Code provisions for conventional obligations, new Article 1967 for the first time incorporated into our law | ^“detrimental reliance as an additional grounds for enforceability.” La. C.C. art. 1967 and its Revision Comment (a). Article 1967 provides:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

In comparison to this new addition to our law, the common law, Restatement (Second) of Contracts § 90(1) (1981), provides for detrimental reliance, as follows:

A promise which the promisor should reasonably expect to induce action or forebearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Apart from the last sentence of Article 1967 dealing with an informal gratuitous promise, the detrimental reliance principle in Louisiana is similar to that expressed in the common law restatement.

Since the passage of Article 1967, the Louisiana Supreme Court has not yet had occasion to employ the new detrimental reliance law in any case after trial with reliance damages awarded to an aggrieved party. The court did however discuss the claim in Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, where it partially reversed a summary judgment which had dismissed the plaintiffs claim for detrimental reliance against the City of Lafayette. The court stated:

The City argues, initially, that Suire’s detrimental reliance claim must fail, as a matter of law, because there was no contract |nbetween Suire and the City. But, as noted above, proof of a detrimental reliance claim does not require proof of an underlying contract. This is so because detrimental reliance is not based upon the intent to be bound. Morris [v. People’s Bank & Trust Co. of Natchitoches, 580 So.2d 1029 (La.App. 3d Cir.1991), writs denied, 588 So.2d 101, 102 (La.1991) ], 580 So.2d at 1036 (quoting A Student Symposium, The 1984 Revision of the Louisiana Civil Code’s Articles on Obligations: Detrimental Reliance, 45 La.L.Rev. 747, 765-66 (1985)). Rather, the basis of detrimental reliance is “the idea that a person should not harm another person by making promises that he will not keep.” Id. Thus, the focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promi-sor should have expected the promisee to rely upon it, and whether the promis-ee so relies to his detriment. Id. Therefore, we reject the City’s argument that Suire’s detrimental reliance claim should be dismissed as a matter of law because Suire cannot establish a valid, enforceable contract.

Id. at 59.

As noted, the Suire ruling also involved a separate claim for breach of an oral contract between the City and the plaintiff. The summary judgment’s dismissal of that contract claim, which the Supreme Court affirmed, was not based upon the failure to follow a statutory rule for the confection of such City contact or any deficient power of the City’s agents to bind the City.

In contrast, the present case poses a different question. Since GSU’s agents were statutorily prohibited from binding the governmental institution to a term employment contract with Duckett, can the alleged cause of action for detrimental reliance, resting on those same agents’ promises, bind GSU for damages different from those of the completed term contract? The trial court recognized no difference between Duckett’s claims for breach of the unauthorized four-year contract and detrimental reliance. Our remanding of the case for trial for adjudication of any disputed fact issues requires us to 1^identify the material differences between the two separate causes of action by addressing the above question.

The language of Article 1967 addresses the consequences of one party’s knowledge concerning the effect of his inducement/promise made to another. Yet, the knowledge and acts of the unauthorized agent of such party can obviously result in something different. In this case, the party is GSU, and its agents who made the promises to Duckett are not even named defendants. The president of the university and its athletic director were unauthorized to bind GSU to a term employment contract and they advised Duck-ett of that limitation. Did they make additional promises within their authority or apparent authority from GSU upon which Duckett could reasonable rely to his detriment?

The record in this summary judgment proceeding indicates a two-step procedure for the GSU hiring process for a coach. First, the determination of the qualifications of the coach through the initiation of the interview process to his actual selection was apparently within the specific authority of the athletic director and the university president. After the person is selected, the Board then votes to enter into any contract negotiated in the selection process which might bind the university long term. This dual process has the following important features. The university’s agents, Judson and Mathieu, are delegated discretion and authority to act in the search process and make the selection of the coach. Second, the economic details of the ultimate contract of employment are necessarily involved in the decision process in both phases of the hiring procedure. The bridge |i:ibetween the two phases of the process in this case was Judson’s promise to present and support the four-year contract before the Board immediately in the summer of 2008 as Duckett came to Louisiana and commenced his first basketball season later in the fall. Judson’s ability to make such promise to Duckett in the process of his selection of a coach appears to be within his authority granted by the university. Duckett’s claim is that Judson’s promise to promote and move the four-year contract through the Board approval process was the enforceable promise upon which he reasonably relied and that Judson breached that promise.

A very similar case decided by the application of the detrimental reliance theory of the Second Restatement of Contracts is McAndrew v. School Committee of Cambridge, 20 Mass.App.Ct. 356, 480 N.E.2d 327 (1985). In that case the managing directors for music education in the school district interviewed and selected the plaintiff to fill a band director position immediately before the start of the school year. The plaintiff had become aware of the opening while living in Georgia and his acceptance of the job caused his move to Massachusetts. Plaintiff was told that his employment had to be approved by the school district committee in accordance with a statutory provision for school governance. However, “he was assured that approval would be no more than a ‘rubber stamp’ which would be granted upon the recommendation of the directors.” Id., 480 N.E.2d at 329. The directors also told the plaintiff of their informal polling of the members of the committee, and plaintiff even contacted one of the committee members. Upon plaintiffs commencement of this job, the |14directors never submitted his name to the superintendent of schools and the school committee, and after 3-1/2 weeks of teaching, plaintiff was fired. Plaintiff sued for the breach of a one-year teaching contract and his entire salary for the year, and alternatively for detrimental reliance.

The Massachusetts court of appeal first ruled that the public policy interest of the statute requiring formal approval of the school district committee precluded the award of damages for the breach of the proposed one-year contract. However, turning to the alternative claim for detrimental reliance, the court explained:

While [the statute] denies the directors ultimate hiring authority, the statute does not preclude the interviewing and negotiating with prospective applicants by subordinates of the school committee. Implicit in the jury verdict is a finding that, at the very least, the directors gave the plaintiff a subsidiary promise that, barring some valid reason, they would submit his name to the superintendent and the school committee. The record does not suggest that this subsidiary promise to recommend the plaintiff was beyond their authority or that it offends any statute or legislative policy.
* ⅝ M* * * *
No rule requires that agents of the defendants, acting within the scope of their authority, be totally exempt from the principles of fair dealing or be permitted to act arbitrarily. On the record before us, the promise does not require any relaxation of the requirements of law intended to protect the public interest and appears authorized. Indeed, the promise may be viewed as vital and proper to obtain needed services for the defendants. We see no reason not to enforce it.

McAndrew, supra, 480 N.E.2d at 331. Citing the section of the Restatement of Contracts, the court concluded that “[t]here is no question that the directors’ subsidiary promise falls within the section and that reliance can form the basis of an enforceable promise in Massachusetts.”

In contrast to the view of detrimental reliance of McAndrew, GSU cites the examination of such claim under Article 1967 in J.D. Barnett, \^supra. Barnett involved the promotion of a coach at Northwestern State University of Louisiana (“NSU”) to the job of athletic director. Barnett had existing employment as the head basketball coach at the time that NSU’s president, Dr. Alost, began a process to first give Barnett the dual title role of coach and athletic director in the final year of the employment of the existing athletic director (“AD”), who was retiring. Substantively, however, the retiring AD was to remain in his duties during that year. This employment change was to be followed one year later by full promotion of Barnett into the AD position as the AD retired. The Board of Trustees for State Colleges and Universities partially approved the coach’s advancement, giving him only however the title of associate AD. This also involved no change in his salary. However, before the AD position came open the following year, Dr. Alost retired from the presidency. The new university president eventually selected a different AD instead of Barnett.

After affirming the trial court’s determination of no breach of contract, the First Circuit examined the critical elements for a claim for detrimental reliance. The court again reiterated that the president’s promise for the promotion of plaintiff to AD was always presented with the requirement of the Board of Trustees’ approval as required by law. The most significant reason for the court’s decision rejecting the claim rested on the failure of plaintiff to demonstrate a change of position in reliance on the president’s promise. Unlike Duckett, who was encouraged to leave his employment in another state where he was receiving a greater salary, Barnett made no such change in employment. Thus, the president’s promise | ,fiof a promotion did not cause Barnett to act to his detriment. Likewise, while the Barnett court dismissed the president’s authority as an agent to bind the Board of Trustees and the institution by promises of the possible promotion, we find that the recruitment authority for potential coaches was authority in Judson and Mathieu to negotiate with and coax new candidates to leave their positions and come to GSU. Moreover, because of these factual differences between this case and Barnett, summary judgment is not the appropriate procedure for the present facts to be weighed. Suire, supra.

Accordingly, from review of the law of detrimental reliance under Article 1967 and in view of the clear change in position made by Duckett resulting from Judson’s alleged inducement to come to GSU, we find material fact issues which require a trial on the merits. While GSU may not be held liable for any salary after Duck-ett’s termination or for liquidated damages, the reduction of Duckett’s salary upon his move to Louisiana amounts to a different damage claim. On remand, Article 1967 gives the trial court authority to fashion a remedy for any injustice that may be established while at the same time not offending the policy of La. R.S. 17:3305(A).

Conclusion

Finding material issues of fact regarding appellant’s claim for detrimental reliance, we reverse the summary judgment rendered by the trial court. Costs of this appeal are assessed to appellees in the amount of $122.00, in accordance with La. R.S. 13:5112.

REVERSED AND REMANDED.

STEWART, J., concurs with the result.

SEXTON, J., Pro Tempore, concurs in the reversal of the summary judgment.

      . The negotiations were being conducted between Winston Decuir and Linda Law Clark (attorneys for GSU and the Board) and Stu Brown (Duckett’s attorney).

      . Duckett’s initial petition referred to the defendant as "Grambling State University through the Louisiana Board of Trustees for Colleges and Universities a/k/a University of Louisiana Systems,” but the defendant’s answer informed the plaintiff that the defendant’s name was incorrectly stated. After obtaining the court's permission, the plaintiff amended his petition to correct the defendant’s name on July 15, 2010. The defendant’s correct name is the Board of Supervisors for University of Louisiana System, the Management Board of Grambling State University.