author: GASKINS, J.

text:
    Keith BROWN, Plaintiff-Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 47,089-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2012.

      Roland V. McKneely, III, for Plaintiff-Appellant.
    Zelda Tucker, Tyler & Johnson, L.L.C., Shreveport, LA, by Tommy J. Johnson, for Defendant-Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

|?This appeal involves an insurer’s alleged failure to make medical payments owed under its policy after its insured, plaintiff Keith Brown, was injured in a car wreck. The insurer successfully sought summary judgment. The plaintiff appeals. We affirm the trial court judgment.

FACTS

On June 30, 2008, the plaintiff was injured in a two-car accident while riding as a guest passenger of Michael Darnell; that vehicle was insured by Southern United Fire Insurance Company (“Southern”). The other car, driven by Ronald Moseley, was insured by Shelter Mutual Insurance Company (“Shelter”).

At the time of the accident, the plaintiff had an auto policy -with State Farm Mutual Automobile Insurance Company (“State Farm”) which required it to provide medical payments up to $10,000 to the plaintiff if he was injured in an auto accident. On July 8, 2008, State Farm was notified of the accident, and a claim was set up for the loss under the medical payments coverage. On July 18, 2008, State Farm was contacted by the office of Dr. Diane Sino at the Chiropractic Health Center and advised that Dr. Sino would be providing medical treatment to the plaintiff for the injuries he sustained in this accident. Thereafter, State Farm paid the submitted bills. In some instances, however, certain items on the bills were not paid due to invalid |sprocedure codes, the code’s inclusion in another procedure on the bill or because the code was used more than normally expected per visit. On those occasions, the doctor and the plaintiff were informed of the reasons for nonpayment in explanation of review forms. The record does not indicate that either the doctor or the plaintiff contested any of these nonpayments after receiving these explanation of review forms.

On August 5, 2008, the plaintiff was involved in another auto accident. On September 10, 2008, he informed State Farm that this accident had occurred and that Allstate Insurance Company would be responsible for the medicals incurred for that loss. This was confirmed in a three-way conference call between adjusters for the two insurance companies and the plaintiff. During this conversation, Allstate gave State Farm its claim number and told State Farm to forward its medical payments demand for reimbursement. The last payment made by State Farm to Dr. Sino was for treatment rendered on September 3, 2008; this payment was made prior to State Farm receiving notice of the second accident. On September 30, 2008, State Farm sought a refund from Allstate for inadvertent payments made prior to notification. However, the record does not indicate the outcome of this request.

|4In October 2008, State Farm received a letter from the plaintiffs lawyer advising of his representation of the plaintiff. In December 2008, the plaintiff filed suit against the drivers in the June 2008 accident and their insurers.

In May 2009, State Farm advised the plaintiffs attorney that it intended to pursue a subrogation claim of $3,894.82. (Review of the record indicates that this was the full sum paid out by State Farm pursuant to its medical payments coverage for the claim opened for the June 2008 accident.) State Farm requested that he take no action that might jeopardize these rights. In a letter dated August 18, 2009, plaintiffs counsel informed State Farm that he would protect State Farm’s subro-gation claim and receive a 40 percent fee pursuant to Moody v. Arabie, 498 So.2d 1081 (La.1986), but that he did not represent State Farm. In a fax to plaintiffs counsel dated August 18, 2009, State Farm confirmed its understanding that plaintiffs counsel was protecting its subrogation claim and that he agreed to pay State Farm $2,357.69, which was the full amount of its subrogation claim of $3,894.82, less the 40 percent attorney fees.

On August 18, 2009, the plaintiff reached a settlement with Moseley and Shelter. A “receipt and release” was executed on August 28, 2009, settling the plaintiffs claims against Moseley and Shelter for $13,000. The document included the following language:

| .^Claimant specifically reserves all rights against MICHAEL DARNELL and SOUTHERN UNITED FIRE INSURANCE COMPANY, which defendants are not made part of this agreement.
This Receipt and Release covers all rights and claims of every nature and kind whatsoever, known and unknown, that said claimant may have now or which may subsequently arise as a result of said incident. Claimant agrees to hold the released parties harmless from any and all claims, suits and rights of every nature and kind whatsoever arising as a result of said incident, in addition to the payment of any attorney fees incurred in defending such claims or enforcing this provision.
IT IS FURTHER UNDERSTOOD AND AGREED that Claimant and his attorney represent and warrant that any and all liens and claims, including but not limited to the subrogation claim of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, will be satisfied from the settlement funds set forth herein and that Claimant and his attorney will indemnify and hold harmless the released parties regarding said liens and claims.

A check dated August 21, 2009, for $10,642.31 was issued payable to the plaintiff and his counsel. A cheek payable to the plaintiff and State Farm in the amount of $2,357.69 was also issued on August 21, 2009. In a letter dated September 11, 2009, plaintiffs counsel forwarded this check to State Farm, stating that it represented “full and final settlement for any subrogation rights that you have against Mr. Brown for payments made in reference to the accident of June 30, 2008.”

In the meantime, plaintiffs counsel sent a certified letter dated August 14, 2009, to State Farm stating that an outstanding balance of $458.18 was owed to Dr. | fiSino; the letter was not received by State Farm until at least August 19, 2009. The attorney faxed a statement of account from Dr. Sino to State Farm. Review of this document indicates that the amount of $458.18 includes charges for treatment rendered after the second accident, as well as the previously mentioned uncontested nonpayments from the first accident. In September 2009, State Farm sent the attorney a letter reminding him of the process for payment of medical bills.

On September 24, 2009, the plaintiff sent State Farm a demand letter for $458.18. On November 12, 2009, the plaintiff filed the instant suit against State Farm, alleging nonpayment of his medical bills in the amount of $458.18; he requested damages and attorney fees for bad faith under La. R.S. 22:1973 and La. R.S. 22:1892. State Farm filed a general denial answer.

In March 2010, the plaintiff settled his claims against the remaining driver and his insurer. He received $5,000 from Darnell and Southern. This receipt and release contained the following provision:

Appearer [Keith Brown] further declares that ... he does hereby agree, bind and obligate [himself] to indemnify, hold harmless and defend all parties herein released of and from any and all claims or demands by any person, natural or legal, arising out of the accident of June 30, 2008, for payment or reimbursement of any cost arising from the disability of or medical care for KEITH BROWN. Appearer further agrees, binds and obligates himself to pay 17any and all medical liens for medical services arising from the accident of June 30, 2008, both known and unknown at the time of this settlement and to hold the parties released herein harmless, defend and to indemnify them of and for any and all claims or demands by any person, natural or legal asserting a medical lien.

In May 2011, State Farm filed a motion for summary judgment. It asserted it was not given notice of the amounts denied prior to the plaintiffs settlement with the liability carrier and that the settlement impaired its subrogation rights. In support of its claim, State Farm submitted an affidavit by one of its claims representatives, Susan Albritton. Ms. Albritton stated that after receiving notice of the June 2008 accident, State Farm paid bills submitted on the plaintiffs behalf by Dr. Sino. She detailed the history of State Farm’s payment of the plaintiffs claims from the time it was first informed of the June 2008 accident, until it was informed of the August 2008 accident, including its inadvertent payment of some bills attributable to the second accident. She also stated that State Farm did not receive additional medical bills for the June 2008 accident other than those already submitted and paid through September 10, 2008. State Farm also submitted Dr. Sino’s medical and billing records, as well as discovery responses by both parties.

The plaintiff filed an opposition to the motion for summary judgment. In support of his opposition, the plaintiff filed his own affidavit verifying that he had coverage provided by State Farm on the day of the June 2008 accident. Notably he |sdid not contradict any of the facts set forth in Ms. Albritton’s affidavit. Counsel for the plaintiff also submitted an affidavit, detailing his interaction with State Farm and the facts surrounding the settlement agreement reached with Moseley and Shelter on August 18, 2009.

A hearing was held on June 22, 2011. At the conclusion of argument, the trial court granted State Farm’s motion for summary judgment. A judgment in conformity with the court’s ruling was signed on June 24, 2011. The plaintiff appealed from the ruling granting State Farm’s motion for summary judgment.

LAW

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805.

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, |fldepositions, 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); Palmer v. Martinez, supra.

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 moving 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).

When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party “may not rest on the mere allegations or denials of his pleading,” but his response, by affidavits or other proper summary judgment evidence, “must set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B); Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053.

| inInsurance

An insurer need not pay a disputed amount in a claim for which there are substantial, reasonable and legitimate questions as to the extent of the insurer’s liability or of the insured’s loss. However, an insurer must pay any undisputed amount over which reasonable minds could not differ. Louisiana Bag Company, Inc. v. Audubon Indemnity Company, 2008-0453 (La.12/2/08), 999 So.2d 1104.

Whether or not a refusal to pay benefits is arbitrary, capricious, or without probable cause depends primarily on the facts known to the insurer at the time of its action. Scott v. Insurance Company of North America, 485 So.2d 50 (La.1986).

DISCUSSION

Our review of the evidence submitted on summary judgment reveals that the $458.18 claim from Dr. Sino may be broken down into two categories. The first includes items submitted to State Farm and denied due to invalid procedure codes, inclusion in another item on the same bill, or submission of multiple codes for the same thing for the same visit. These items totaled $252.86. The second category were items for treatments after the second accident; these amounted to $205.32.

On average, State Farm issued checks to pay the plaintiffs medical bills within approximately eight days of the date of treatment. On at least seven occasions, the bills were paid in full. On seven occasions, the only items not paid in a bill were a |nsecond — and possibly duplicative — $20 charge for hoi/cold pack. The $20 second hot/cold pack charge was denied for two additional doctor visits when other items were not paid as well. The other items not paid involved problems with the codes given; these code issues were explained on the explanation of review forms sent to the plaintiff and Dr. Sino. However, the record does not indicate that the plaintiff or Dr. Sino brought any of these denials to State Farm’s attention or sought review of them after receiving the forms. Furthermore, once informed that there were problems with the codes given for these items, they apparently made no effort to supply State Farm with valid codes which might have rectified the matter.

We note that the undisputed charges were paid in a timely manner. As to the disputed charges, State Farm gave the plaintiff a timely explanation of its nonpayment of them. The plaintiff did not contest the nonpayments of the disputed charges. To the contrary, they were tacitly accepted by the plaintiff and his attorney when they utilized the sum of $3,894.82 — which did not include the disputed charges — as the full amount for State Farm’s claim in the plaintiffs settlement proceedings. (It was also apparently the amount used to calculate the Moody fee paid to plaintiffs counsel.) Under these circumstances, we cannot say that State Farm was unreasonable |12in not paying the $252.86 for disputed items denied due to codes, much less that it was arbitrary or capricious in doing so.

As to the $205.82 in charges incurred after the second accident, we cannot say that State Farm was wrong for not paying them either. According to the affidavit of State Farm’s representative, the plaintiff himself called State Farm to inform it of the second accident and Allstate’s responsibility for his resulting medical treatments. There was a conference call between the plaintiff, State Farm and Allstate in which State Farm was advised how to seek reimbursement for claims it had already paid which resulted from the second accident. The plaintiff does not contradict any of this in his own affidavit. Therefore, we find that, for summary judgment purposes, there is no dispute as to this fact. Since the insured modified the contract with the insurer through his instruction to allow Allstate to pay the medical bills he incurred after the August 2008 accident, the insured cannot now accuse its insurer, State Farm, of wrongdoing for its compliance.

An insurer owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. La. R.S. 22:1973 (formerly La. R.S. 22:1220). Nothing in this record indicates that State Farm breached these duties to the plaintiff in the instant case.

11RBased upon the record before us, we find that summary judgment in favor of State Farm was appropriate.

CONCLUSION

The trial court ruling granting summary judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company, is affirmed. Costs of this appeal are assessed against the plaintiff, Keith Brown.

AFFIRMED.

      . State Farm's claim representative asserted in her affidavit that it did not receive the letter until August 21, 2009. In his affidavit, the plaintiff's attorney states that it was received on August 19, 2009. The date on the certified return receipt in the record is illegible.

      . These included two charges of $11.27 for biofreeze tube (invalid procedure code); one charge of $45.00 for a report of findings (code included in other procedure on bill), and one charge of $5.32 for postage (invalid procedure code).

      . Because we have resolved the matter on another basis, we pretermit the issue of sub-rogation,


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Mark STRICKLAND v. Joshua MASON, Carl W. Mixon and State Farm Mutual Automobile Insurance Company.
    No. 2011 CA 1895.
    Court of Appeal of Louisiana, First Circuit.
    May 23, 2012.

      Sean D. Fagan, Locke Meredith, Corey Orgeron, Baton Rouge, LA, for Plaintiff/Appellant, Mark Strickland.

      Henry G. Terhoeve, Brad M. Bou-dreaux, Baton Rouge, LA, for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

|?This is an appeal from a summary judgment rendered against plaintiff/appellant, Mark Strickland, and in favor of defendants/appellees, Carl Mixon and State Farm Mutual Automobile Insurance Company (State Farm.) For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 12, 2008 Mr. Mark Strickland applied for and was issued a policy of insurance by State Farm, effective August 12, 2008. On his application, Mr. Strickland advised State Farm that his driver’s license was issued on August 28, 2007, less than three years prior to the date of the application, and he provided his mailing address to State Farm, as follows:

Southern University
SU Box 13716
Baton Rouge, La. 70813-3716

State Farm does not dispute that Mr. Strickland’s address was incorrectly entered into its database, as follows:

Southern University
Southern University
Baton Rouge, La. 70813-0001

State Farm later determined that it could not continue Mr. Strickland’s insur-anee because he had not been a licensed driver for three years. State Farm attempted to mail a notice of cancellation to Mr. Strickland on August 25, 2008, stating that his insurance coverage would terminate, effective September 24, 2008, at 12:01 a.m. However, due to State Farm’s error, the notice was sent to the erroneous address contained in State Farm’s database rather than the correct address on the application.

laOn October 5, 2008 Mr. Strickland, as a passenger in his vehicle, was involved in an accident. He was ejected from the vehicle and suffered severe injuries. State Farm denied coverage to Mr. Strickland under the uninsured/underinsured motorist portion of his August 12, 2008 policy on the basis that the policy had been terminated on September 24, 2008.

Mr. Strickland filed suit against State Farm and Carl Mixon (the insurance agent through whom Mr. Strickland procured the policy), alleging that State Farm’s failure to mail the notice of cancellation to his correct address rendered the cancellation ineffective. State Farm alleged that even though it admittedly mailed the cancellation to an incorrect address, it was ultimately delivered to Mr. Strickland. Thus, State Farm contended that the notice of cancellation was effective and there was no policy of insurance issued to Mr. Strickland by State Farm on the date of the accident that would provide coverage to him for the injuries he sustained. State Farm filed a motion for summary judgment, arguing that there were no genuine issues of material fact as to whether it had met the statutory and contractual require-merits of mailing the notice of cancellation to Mr. Strickland.

After a hearing on the motion for summary judgment, the trial court granted judgment in favor of both Carl Mixon and State Farm. Mr. Strickland appeals, urging the following assignments of error:

1. The trial court erred as a matter of law in finding that State Farm satisfied the policy’s contractual requirements for cancellation of coverage.
2. The trial court erred as a matter of law in finding that State Farm satisfied the statutory requirements for cancellation of coverage.
3. The [tjrial [cjourt erred as a matter of law by dismissing plaintiffs claims against Carl Mixon.

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover 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. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam).

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial |son that issue and summary judgment is appropriate. Id., 04-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. And only if the moving party will not bear the burden of proof on the issue at trial can he point out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, such that the non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. See LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, unit denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, 879 So.2d at 738-39.

IrI. Assignments of Error Numbers One and Two-Whether State Farm met the statutory and contractual requirements to effectively terminate coverage

Louisiana Revised Statutes 22:887 governs the cancellation of insurance policies and states, in pertinent part, that:

A. Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
(l)(a) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than thirty days prior to the effective date of the cancellation except when termination of coverage is for nonpayment of premium.
(2) Like notice must also be so delivered or mailed to each mortgagee, pledg-ee, or other known person shown by the policy to have an interest in any loss which may occur thereunder. For purposes of the Paragraph, “delivered” includes electronic transmittal, facsimile, or personal delivery.
B. The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the post office upon failure to find, or deliver the mailing to the addressee.

(Emphasis added.)

The language of the policy of insurance issued to Mr. Strickland by State Farm essentially mirrors the statutory requirements. The policy states, in pertinent part, that:

|78. Cancellation
(1) We may cancel this policy by mailing or delivering a written notice to the most recent policy address that we have on record for the named insured.
(2) The date cancellation is effective will be at least:
(b) 30 days after the date we mail or deliver the cancellation notice if the cancellation is because of any other reason [than for non-payment].

(Emphasis added.)

Thus, there are two ways by law that State Farm could have effected notice of cancellation in this matter:

1) Actual delivery 30 days prior to the cancellation; or
2) Mailed delivery of the notice to the statutorily required address.

State Farm accomplished neither. Its only evidence of actual receipt is Mr. Strickland’s own testimony. In oral reasons for judgment, the trial court stated, “I’ve got the record reflecting proof of notice of mailing as required; proof of receipt prior to the effective date of cancellation.” Thus, it concluded that “[w]hat was sought to be accomplished was accomplished.” This is true only from the perspective of the insurance company. The record does not contain proof of receipt prior to the date of cancellation. What was sought to be accomplished was to give Mr. Strickland a chance to buy other insurance and to protect the public from uninsured drivers. These are the goals of the statute, and they were not accomplished.

The trial court’s judgment in this case relied on its erroneous conclusion that the evidence proved Mr. Strickland received the notice prior to the effective date of cancellation. However, Mr. Strickland actually testified that he received a letter from State Farm less than a week before the October 5, 2008 accident, which is not 30 days prior to the September 24, [ «2008 cancellation date. State Farm cannot rely on the testimony of Mr. Strickland to prove actual notice and then ignore his testimony as to when it was received. Thus, the trial court erred in its conclusion. The purpose of a notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection. Broadway v. All-Star Ins. Corp., 285 So.2d 536, 539 (La.1973), citing American Fidelity & Casualty Company v. Knox, 164 F.Supp. 3 (W.D.La.1958).

Moreover, it is undisputed that the notice was mailed to the incorrect address. Evidence of improper mailing of a notice of cancellation creates an issue for the fact finder to resolve. Johnson v. Farm Bureau, 2011-0476 (La.5/6/11), 60 So.3d 607, 608, see also Doucet v. State Farm, 1999-663 (La.App. 5 Cir. 11/30/99), 748 So.2d 1228 (wherein the trial court found, and the appellate court affirmed, that State Farm did not properly cancel an insured’s coverage because it did not meet the minimum requirement to mail the notice to the named insured at the insured’s address, but instead mailed the notice to her fiance. Thus, the court held that the policy was in effect at the time the. accident occurred.)

State Farm cannot rely on its own screw-up in its internal database to deny coverage when it received the correct address on its application.

State Farm did not meet its evidentiary burden of proof in this case. It failed to prove actual receipt prior to termination, and it admits improper mailing. Thus, State Farm is not entitled to summary judgment. These assignments of error have merit.

2. Assignment of Error Number Three—Mr. Mixon’s liability

In his third assignment of error, Mr. Strickland argues that the trial court erred in dismissing his claims against Carl Mixon, the agent through whom he applied for and was issued the policy of insurance. As stated |9earlier, at the time of his application, Mr. Strickland told Mr. Mixon that his driver’s license had been issued on August 28, 2007, and that he had not been licensed to drive for three years and the application so reflected. Thus, Mr. Mixon accepted two months of premium payments from Mr. Strickland and issued him a policy of insurance for which he knew Mr. Strickland was not qualified for.

Moreover, Mr. Strickland also argues that Mr. Mixon possessed his correct mailing address and that it was Mr. Mixon who incorrectly entered his address into the State Farm database. Thereafter, Mr. Mixon was sent a courtesy copy of Mr. Strickland’s notice of cancellation. These facts raise the issue of whether, if Mr. Mixon knew the correct address, and he knew that the notice was issued to the wrong address, should he have personally notified Mr. Strickland that his insurance was to be terminated? In brief to this court, State Farm argues that LSA-R.S. 22:887(H) is clear that Mr. Mixon was under no duty to personally notify Mr. Strickland of the cancellation.

While we agree Mr. Mixon was not primarily responsible for giving any notice of cancellation to Mr. Strickland, he should have known Mr. Strickland did not qualify for the insurance he was issued, and he may be responsible for the incorrect address used in this case. We cannot foreclose the possibility that, under the facts of this ease, he may have had some duty to correct his own errors when they became apparent to him.

[inBecause there remain genuine issues of material fact relating to Mr. Mixon’s issuance of the policy and/or fault in entering an incorrect address into the database, summary judgment in favor of Carl Mixon is also precluded in this case. This assignment of error has merit.

CONCLUSION

For the reasons assigned herein, the judgment of the Nineteenth Judicial District Court, granting the motion for summary judgment in favor of the defendants/appellees, State Farm Mutual Automobile Insurance Company and Mr. Carl Mixon is reversed. This case is remanded to the district court for further proceedings consistent with this opinion. The costs of this appeal are to be borne by State Farm Mutual Automobile Insurance Company and Mr. Carl Mixon.

REVERSED AND REMANDED.

      . While the application indicates a "Purch Dt” of August 11, 2008, it also indicates an "App Date” of August 12, 2008. We will assume that the application was completed and accepted by State Farm on August 12, 2008.

      . We note that Mr. Strickland’s license issue date was evident on the face of Mr. Strickland’s application and was therefore known to the agent at the time the policy was issued.

      . Louisiana Revised Statutes 22:887(H) provides that: "Notice of cancellation or nonre-newal given by the insurer in accordance with this Chapter shall be deemed sufficient. The producer shall not be required to give any separate or additional notice of cancellation or nonrenewal.’’ "Producer” is defined in LSA-R.S. 22:46(13.1) as "a person required to be licensed under the laws of this state to sell, solicit, or negotiate insurance and includes all persons or business entities otherwise referred to in this Code as "insurance agent”, "agent”, "insurance broker”, "broker”, "insurance solicitor”, "solicitor”, or “surplus lines broker”.”


author: GAIDRY, J.

text:
    LIVINGSTON PARISH SCHOOL BOARD, through its SALES AND USE TAX DIVISION v. HWY 43 CORNERSTORE, LLC, Raymond K. Goodwin, and Brandy L. Goodwin.
    No. 2012 CA 0103.
    Court of Appeal of Louisiana, First Circuit.
    May 23, 2012.

      Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, for Plaintiff/Appellant Livingston Parish School Board Sales and Use Tax Division.
    Raymond K. Goodwin, Brandy L. Goodwin, Independence, LA, Defendant/Appel-lee Pro Se.
    Hwy 43 Cornerstore, LLC, Independence, LA, for Defendant/Appellee.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

| ¿This is an appeal of a judgment on a summary proceeding for collection of delinquent sales and use tax, injunction, and petition for attorney’s fees. Plaintiff/appellant is the Livingston Parish School Board, through its Sales and Use Tax Division (“Collector”), and Defendants/appel-lees are Hwy 43 Cornerstore, L.L.C., Raymond K. Goodwin, and Brandy L. Goodwin (collectively “Taxpayers”). The 21st Judicial District Court ruled that Taxpayers were liable to Collector for delinquent taxes, denied the injunction, and granted attorney fees. Collector now appeals the award amounts and the denial of the injunction. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The instant case is substantially related to a previous lawsuit brought by Collector, captioned Livingston Parish School Board, through its Sales and Use Tax Division v. Jp3 Grocery & Deli. LLC, et al., docket number 130,755 of the 21st Judicial District Court. In that lawsuit, a Stipulated Consent Judgment was signed by all parties and the trial judge, Honorable Elizabeth P. Wolfe, on December 13, 2010, ordering the taxpayers/defendants to pay delinquent sales and use taxes to Collector in the sum of $17,360.87, and to pay an additional 10% of that amount in attorney fees ($1,736.09). The court gave the taxpayers until January 12, 2011 to pay these amounts to collector. If the taxpayers did not pay, the court would enforce a lien against the taxpayers’ property in favor of Collector and enjoin the taxpayer’s business from further operation until all [.-¡delinquent monies were paid. The judgment was subsequently recorded by Collector in the Livingston Parish mortgage records. All appeal delays had run without the taxpayer filing any motions for appeal, and the judgment became final and nonappealable.

In the petition of the instant case, filed August 5, 2011, Collector claims the judgment of the previous suit went unpaid after the imposed deadline and remains unpaid to this day. Although the defendants in the instant suit are different from those in the previous one, Collector claims that Hwy 43 Cornerstore, L.L.C., Raymond K. Goodwin, and Brandy L. Goodwin are all “successors” of the “predecessor” business, 43 Grocery & Deli, L.L.C., and its owner, Betty Goodwin; as such, Taxpayers are liable for the unpaid debts of their predecessors pursuant to La.R.S. 47:337.21. Collector now claims that the total tax debt of Taxpayers and their predecessor, compounded with interest, is $22,501.96.

In addition to the tax debt, Collector petitioned for an injunction against Taxpayers’ business until all aforementioned debts are paid, as well as attorney fees in 10% of the total tax debt. Collector attached as an exhibit to its petition an affidavit of correctness for the total tax debt amount.

Taxpayers never filed any answers, affirmative defenses, discovery, or pleadings of any sort. The matter came up for summary proceeding on October 31, 2011. Raymond and Brandy Goodwin appeared pro se and on behalf of Hwy 43 Corner-store, L.L.C. The Honorable Zorraine Waguespack rendered judgment on the same day. In the judgment, the court |4held Taxpayers liable individually and in solido for only the tax debts incurred during the time they owned and operated Hwy 43 Cornerstore, L.L.C. ($1,359.40), but not the tax debt of their predecessors. The court denied the injunction of Taxpayers to operate their business while their tax debts remained outstanding, and Collector was awarded $350.00 in attorney fees, which, while it is above 10% of the actual award, Collector had prayed for attorney fees to be 10% of the total tax debt of Taxpayers and their predecessors, which Collector claims to be $22,501.96, plus interest.

Collector filed a motion for a suspensive appeal on November 9, 2011, which was granted the same day. The appeal is now before this Court.

ASSIGNMENTS OF ERROR

Collector’s assignments of error are listed as follows:

(1) The trial court erred in failing to find that Collector’s petition was pri-ma facie correct and properly attested to in accordance with La.R.S. 47:337.61, and by failing to grant Collector judgment in its favor as prayed for when Taxpayers failed to file any defenses, whether by exception or to the merits, as required by La.R.S. 47:337.61(2).
(2) The trial court erred in considering Taxpayers’ defenses when Taxpayers failed to file any, whether by exception or to the merits, as required by La.R.S. 47:337.61(2).
(3) The trial court erred in denying Collector’s claim seeking to impose liability against Taxpayers for the Livingston Parish sales tax debts of its predecessor, 43 Grocery & Deli, L.L.C.
(4) The trial court erred in finding that Collector’s final Stipulated Consent Judgment against 43 Grocery & Deli, L.L.C. for Livingston Parish sales taxes, penalties, interest, attorney fees, and court costs precluded Collector from also obtaining judgment against Taxpayers for 43 Grocery & Deli, L.L.C.’s tax debts pursuant to 47:337.21.
(5) The trial court erred in denying Collector’s request that Taxpayers be enjoined from the further pursuit of business in Livingston Parish until all sums found due are paid in full.
(6) The trial court erred in allowing Taxpayer an arbitrary thirty (30) day deadline to pay the amounts awarded in the Judgment.
(7) The trial court erred in awarding statutory attorney fees pursuant to La.R.S. 47:337.13.1 in the amount of only $350.00.

STANDARD OF REVIEW

The assignments of error call into question both the trial court’s interpretation of the various pertinent statutes of Title 47 of the Louisiana Revised Statutes, as well as the court’s findings as to the merits and evidence. As the appeal contains mixed questions of law and fact, we apply the manifest error standard of review. See Moore v. Department of Police, 2006-1217, p. 3 (La.App. 4 Cir. 1/17/07), 950 So.2d 96, 97, Dufrene v. Morgan Equipment Rental, Inc., 98-1582 (La.App. 1 Cir. 9/24/99), 754 So.2d 1000,1005.

DISCUSSION

Louisiana Revised Statutes 47:337.61 provides an expedited means of adjudicating all tax-related claims through summary proceeding. A summary proceeding was held by the trial court on October 31, 2011. Whenever a taxing authority petitions a court for one of these summary proceedings, La.R.S. 47:337.61(4) details what the taxing authority must present to the court:

Whenever the pleadings filed on behalf of the taxing authority, ... or collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything of the contrary shall rest wholly on the defendant or opposing party.

Effectively, in order for a tax collector’s affidavit to establish a prima facie case and shift the burden of proof to the opposing party, the affiant must allege that all of the facts concerning the pleadings are “true to the best of the affiant’s knowledge or belief;” without this personal attestation by the affiant, the taxing authority neither meets nor shifts its burden of proof. |Strain v. Tony Crosby’s Furniture Gallery, 2008-1807 (La.App. 1 Cir. 3/27/09), 9 So.3d 1017,1019,1020.

Collector did include an affidavit of correctness along with its petition, attached as Exhibit “E” and found in the record. The affiant is a Philip D. Bergeron, CTE, employed as Assistant Sales Tax Director of the Sales and Use Tax Division of the Livingston Parish School Board. His testimony is that he read Collector’s petition, and that all of the allegations contained therein are true and correct “to the best of his knowledge and belief.” Collector’s petition therefore makes a pri-ma facie case according to 47:337.61(4) and shifted the burden of proof to Taxpayers.

Taxpayers did not file any pleadings in the instant case. They did not propound discovery, nor did they plead affirmative defenses of any kind. The only action found in the record that was taken by Taxpayers was their appearance in court on October 31, 2011. There Raymond Goodwin testified on his own behalf, and apparently on the behalf of Hwy 43 Cornerstore, L.L.C.

Louisiana Revised Statutes 47:337.61(2) states, in pertinent part:

All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. (Emphasis added,)

It is clear by the language of this statute that if Taxpayers had any defenses to present, they should have been filed with the court prior to October 31, 2011. The trial court was erroneous to allow and accept the testimony of Mr. Goodwin, which we believe influenced the trial court’s judgment. Since Mr. Goodwin’s testimony should not have been considered by the trial court, it will not be considered in this opinion.

17Collector claims that Taxpayers are liable for the tax debt of 43 Grocery & Deli, L.L.C. and Ms. Betty Goodwin, who were predecessors to Taxpayers’ business. Since we cannot consider Raymond Goodwin’s testimony from October 31, 2011 on this issue, we look to the rest of the record to determine whether this tax predecessor relationship exists.

Taxpayers filled out a Tax Account Application with Livingston Parish prior to opening their business. Most notably, Taxpayers stated in the application that the business would have one location in the parish, that the legal name of the business would be Hwy 43 Cornerstore, L.L.C., and that the business had separate physical and mailing addresses in Independence, Louisiana. The “contact person” of the business would be Raymond Goodwin. Established as a limited liability company, the two members were Raymond and Brandy Goodwin, with Raymond named as the agent for service of process. The nature of business is given as “Retail Sales, Convenience Store.”

First we note the striking similarity between the business names of Taxpayers and the alleged predecessors. Also, we note that Ms. Betty Goodwin is the mother of Raymond Goodwin. We further note that the address of both 43 Grocery & Deli, L.L.C. and Ms. Goodwin, as it appears on the judgment rendered against them and in favor of Collector on December 13, 2010, is the same address of Hwy 43 Cornerstore, L.L.C., and is also given as a valid address for service of process on Raymond and Brandy Goodwin. Collector had also sent a tax bill to Taxpayers, where they were assessed for the tax debt of the predecessors as well as their own.

Since Collector has established a prima facie case against Taxpayers, we can assume that Collector’s evidence is competent. See Richard v. Tri-J Indus. Const., Inc., 478 So.2d 215, 216, 217 (La. App. 3 Cir.1985). Prima \ ¡facie evidence is defined as evidence sufficient to establish a given fact which, if not rebutted or contradicted, will remain sufficient. Harris v. Regional Transit Authority, 95-0282 (La.App. 4 Cir. 9/28/95) 662 So.2d 134, 137. It is clear that Taxpayers stepped into the shoes of the predecessors, so to speak, and assumed both the assets and liabilities of the predecessors. We therefore find that 43 Grocery & Deli, L.L.C. and Betty Goodwin are the tax predecessors of Taxpayers, making Taxpayers liable for their unpaid tax debt, according to La.R.S. 47:337.21(A), which states, in pertinent part:

If any dealer liable for any tax, interest, or penalty levied hereunder sells his business or stock of goods or quits the business, he shall make a final return and payment within fifteen days after the date of selling or quitting the business. His successor, successors, or assigns, if any, shall -withhold sufficient of the purchase money to cover the amount of such taxes, interest, and penalties due and unpaid until such time as the former owner shall produce a receipt from the collector showing that they have been paid, or a certificate stating that no taxes, interest, or penalties are due. If the purchaser of a business or stock of goods fails to withhold purchase money as above provided, he shall be personally liable for the payment of the taxes, interest, and penalties accrued and unpaid on account of the operation of the business by any former owner, owners, or assigns.

It is clear from the record that Taxpayers did not follow the procedures outlined in 47:337.21(A) and are now personally liable for the tax debt, including interest and penalties, of the predecessors. The trial court was manifestly erroneous to not hold Taxpayers liable for the predecessors’ tax debt.

As Taxpayers have failed to pay their tax debts, Collector properly sought injunction as an additional remedy. This remedy is provided by La.R.S. 47:337.33, which states, in pertinent part:

A. (1) On motion in a court of competent jurisdiction, the collector may take a rule on a taxpayer, to show cause in not less than two or more than ten days, exclusive of holidays, IflWhy the taxpayer should not be ordered to cease from further pursuit of his business for failure to pay to the taxing authority amounts collected from others by his business as sales and use tax, along with any interest, penalty, and costs related to such tax. Such rule may be taken only for amounts due as a result of assessments or judgments which have become final and nonap-pealable.
* * *
(3)(a) If the rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the taxing authority, and the court shall enjoin and prohibit the taxpayer from the further pursuit of his business until such time as he has paid the delinquent tax, interest, penalties, and all costs or has entered into an agreement with the collector to do so. (Emphasis added)

Collector presented to the trial court a final, nonappealable judgment against Taxpayers’ predecessors, which would now be the liability of Taxpayers. Collector was able to file a rule for injunction against Taxpayers under 47:337.33(A)(1), which the trial court was required to grant under 47:337.33(A)(3)(a) with respect to the debt of the predecessors only. There is no provision in the statute that allows a trial court to suspend the injunction for any time or until the tax debt is paid. When the law states in 47:337.33(A)(3)(a) that the court “shall enjoin” the taxpayer from further pursuit of business, we see no way to interpret the language in such a liberal manner as to permit a court to grant a taxpayer time to pay a tax debt before issuing the injunction. Since we can find no basis in the law for the thirty day delay for Taxpayers to pay what was awarded to Collector, we find this part of the trial court’s judgment to be arbitrary. The trial court was further in error in denying the injunction against Taxpayers, when it was statutorily required to do so.

Finally, Collector requested that it be awarded attorney fees in accordance with La.R.S. 47:337.13.1. The pertinent section of that statute reads:

_[1S(A)(2) If any taxes, penalties, or interest due to and final under this Subtitle are referred to an attorney at law for a collection action, an additional charge for attorney fees, in the amount of ten percent of the taxes, penalties, and interest due, except with respect to amounts timely paid under protest with a return that is not delinquent, or paid under protest to a vendor in accordance with law, shall be paid by the taxpayer to the local collector; provided, however, that the amount paid for attorney fees shall be subject to the discretion of the court as to reasonableness.

As stated earlier, we find Taxpayers are liable for their own tax debt, as well as their predecessors’, including interest. In accordance with this statute, attorney fees should be awarded as ten percent (10%) of that amount, but subject to the discretion of the court. We believe that the attorney fees can be higher or lower than ten percent, if that would be reasonable in the instant case.

We note at the outset that only a summary proceeding was had. No defenses or exceptions were filed by Taxpayers. Taxpayers did not propound discovery. All of these actions would have increased the work for the attorneys hired by Collector. As such, a judgment in this case was rendered relatively quickly. Where the trial court decided to award Collector only the tax debt personally incurred by Taxpayers, the awarded attorney fee of $350.00 seemed adequate; however, we submit that the trial court’s judgment was in error. Taxpayers’ liability included both their and their predecessors’ tax debts, totaling $22,501.96, plus interest. In that circumstance, $350.00 would appear to be an inadequate amount for attorney fees. Upon remand, the trial court will have to reconsider the attorney fees relative to Collector’s adjusted award. While we disagree with the trial court’s awarding Collector only the personal tax debt of Taxpayers, we do not disagree with the trial court’s methodology in calculating attorney fees.

In CONCLUSION

The trial court’s judgment is manifestly erroneous in several ways: it does not recognize that the Collector had made a prima facie case; it improperly considered testimony by Raymond Goodwin; it does not award Collector the tax debt and interest of Taxpayers’ predecessors, 43 Grocery & Deli, L.L.C. and Betty Goodwin; and it did not immediately enjoin Taxpayers from conducting business until Collector’s award was paid. We therefore affirm the trial court’s judgment in favor of Collector and against Taxpayers for their own tax debt, but reverse the trial court’s denial of Taxpayers’ liability for their predecessors’ tax debt, with interest. We also reverse the trial court’s denial of the injunction sought by Collector against Taxpayers, which is to be effective immediately until Taxpayers have paid all awards to Collector. We reverse the trial court’s award of $350.00 in attorney fees and remand for the trial court to calculate reasonable attorney fees pursuant to La.R.S. 47:337.13.1, based on the total tax debts of Taxpayers personally and that of their predecessors.

DECREE

The decision of the lower court in favor of Collector and against Taxpayers in the amount of $1,359.40 is affirmed.

The denial of the lower court to award Collector the delinquent tax debt of Taxpayers’ predecessors, 43 Grocery & Deli, L.L.C. and Betty Goodwin, against Taxpayers is reversed and judgment is hereby awarded in favor of Collector and against Taxpayers in the amount of $22,501.96, together with interest.

The denial by the lower court to enjoin Taxpayers from further conduct of business until all due sums are paid to Collector is reversed, and Taxpayers are to be so enjoined immediately.

| isThe lower court’s order to grant Taxpayers thirty (30) days to pay all sums due to Collector is reversed and upon remand the trial court is directed to enter judgment in favor of the Collector and against defendants in the amount of $22,501.96, together with interest. Said judgment shall make specific reference to the prior judgment in favor of the Collector against 43 Grocery & Deli, L.L.C. dated December 13, 2010 and recorded in the Livingston Parish mortgage records so that the inscription thereof may be canceled in the event payment is made. All sums due to Collector by Taxpayers are to be due immediately.

The lower court’s decision to grant Collector $350.00 in attorney fees is reversed and remanded to the lower court to be granted in accordance with this opinion and La.R.S. 47:337.13.1.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      . The defendant/taxpayer in that matter is not the same as Taxpayer in the instant case.

      . The owner/operator of 43 Grocery & Deli, L.L.C. was Ms. Betty Goodwin, mother of Raymond K. Goodwin, one of the taxpayers in the instant case.

      . File number 733932, Book 1839, Page 11.

      .Neither Raymond nor Brandy Goodwin are licensed to practice law in the State of Louisiana. While they may represent themselves, their representing and advocating for Hwy 43 Cornerstore, L.L.C. may have been an unauthorized practice of law under La.R.S. 37:213.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Robert Franklin BRUCE, Appellant.
    No. 47,055-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 25, 2012.

      Robert Franklin Bruce, Pro Se.
    Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    R. Christopher Nevils, District Attorney, Steven D. Crews, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY, and SEXTON (pro tempore), JJ.
   BROWN, Chief Judge.

1 ,A bill of information filed on August 30, 2007, charged defendant, Robert Franklin Bruce, with theft over $500, a violation of La. R.S. 14:67. The bill charged that “on April 12, 2007, Bruce did willfully, intentionally, and unlawfully commit a theft of approximately $8,500, the property of A.J. Wilson.” Having waived a jury trial, defendant was tried by the court. Following the presentation of evidence, the trial judge found defendant guilty as charged and imposed a sentence of ten years at hard labor to run consecutive to any sentence that he was currently serving. Defendant appealed his conviction and sentence. For the following reasons we affirm.

Facts

In March 2007, A.J. Wilson was given a house located on Crossroads Church Road in a rural area of Winn Parish, Louisiana, with the stipulation that the house had to be moved from the property. Wilson contacted AAA House Moving & Foundation Repair (hereinafter “Triple A”) to inquire about having the house and a small building moved. Defendant, Robert Franklin Bruce, met with Wilson and gave him an estimate of $8,500 to move the house and $500 to move the small building. On March 21, 2007, a contract showing signatures by “Albert Wilson” and “Johnnie Adams” was executed. Bruce signed Adams’ name on the contract, but told Wilson that he owned the business and that it was only in Johnnie Adams’ name due to defendant’s divorce and credit situation. Bruce said that he and Adams were living together and were going to get married.

|2In preparation of having his house moved, Wilson took off three weeks of work to cut rights of ways, cutdown hardwood trees, remove a porch from the side of the house, and uproot and remove stumps. On Thursday, April 12, 2007, Bruce told Wilson to pay him in full or he would not be able to get the house moved for six to eight months. Wilson gave Bruce a check made payable to Triple A in the amount of $8,500 to move the house. It is not clear how the $500 for the small building was paid. Wilson asked Bruce for a receipt and Bruce gave him a copy of the contract on which he had handwritten “Pd ck # 1360” and “Pd in full.” The check was not entered into the record.

On Friday, April 13, 2007, a crew from Triple A came and moved the small building. The following Monday, April 16, the crew completed the relocation of the small building. When Tuesday came and Triple A had not shown up to move the house, Wilson called Bruce and was informed that Triple A’s truck had broken down. Wilson drove to Alexandria later that day and had lunch with Bruce. Defendant told Wilson that he would refund his money, but Wilson said, “No. Move my house.” Bruce assured Wilson that the crew would be on location to move the house the next day.

The next day no one from Triple A showed up to move Wilson’s house. Wilson called Bruce again, and this time he was told that it was raining and Bruce would have to wait until it stopped raining. Later that morning Wilson called the Alexandria Police to inquire into the weather. The Alexandria Police told Wilson that it had stopped raining hours earlier.

| ^Wilson’s banker, who financed the move, was becoming concerned with all of the delays. Bruce and Johnnie Adams spoke with the banker and they agreed to refund Wilson’s money if the house was not moved by April 30, 2007. This agreement was handwritten at the bottom of the original contract and faxed to Wilson’s banker on April 18, 2007.

At some point during this time, a crew from Triple A jacked up Wilson’s house. The house started to split and they stopped work. After the continuing delays and excuses from Bruce, Wilson grew tired of waiting. He asked Bruce to refund his money. Bruce informed Wilson that he would need to send something in writing to Bruce’s attorney requesting his money back. Unable to ascertain the attorney to send the request to, Wilson contacted the authorities.

After a police investigation, Bruce was charged by bill of information with felony theft. At the time of his arrest, Bruce was on probation stemming from a 1998 conviction for illegal possession of stolen things and theft over $500 in Alexandria, Rapides Parish, Louisiana. He had been sentenced to ten years at hard labor to be followed by five years’ probation. Apparently, Bruce served the ten-year sentence and with good time was released. As a result of the present charge, his probation was revoked on September 25, 2007. Johnnie Adams was also charged with felony theft, but the cases were not consolidated. Adams had agreed to pay half the money owed to Wilson and as of the trial had paid back $2,250. Bruce had not paid anything.

l4Prior to trial, the state gave notice that it intended to introduce evidence of other crimes, wrongs or acts pursuant to La. C.E. art. 404 B(l) to show system, knowledge and intent. Defendant objected to this evidence. Because it was a bench trial, the court announced that it would hear the evidence at trial and then rule. The following testimonies were heard:

Scot Stewart

Scot Stewart testified that in January 2006 he contacted Bruce about moving a house. Bruce drafted a contract, which both parties signed. Stewart gave him a deposit check, which represented half the total amount due under the contract. The contract stipulated that Bruce was to begin moving the house within 10 days, by January 25, 2006. When Bruce never arrived, Stewart made multiple phone calls, during which Bruce would tell Stewart that he was next on the list. Finally, Stewart sent Bruce a letter informing him that if he failed to move the house by April 21, 2006, Stewart would contact the sheriff and district attorney to file charges of fraud.

In May 2006, Stewart received a letter from Bruce telling him that he would not be able to move the house for various reasons and if Stewart wanted a refund he should send him something in writing. Stewart responded by sending a letter requesting his money back. As of the hearing, Stewart had yet to receive any money from Bruce.

Greg Easterling

Greg Easterling testified that in October 2006, he had a contract with Bruce in which the parties agreed that Bruce would move Easterling’s house by November 11, 2006. Although Easterling gave Bruce a deposit check for | F)$4,000, Bruce never showed up and in December 2006 Easter-ling had to hire someone else to move the house. The district attorney’s office was later able to collect Easterling’s $4,000, but Easterling said he was out $24,000 because of Bruce.

Quincy Carter

Quincy Carter contacted Bruce in December 2006 about moving a house. Carter said that Bruce wanted a total of $4,500. Carter paid him $2,250 up front as a deposit. Bruce’s secretary at the time, Johnnie Adams, was with him. Bruce never moved the house and only after the sheriffs department got involved did Bruce refund Carter’s money.

The trial court held that all three witnesses’ testimony and the corresponding exhibits were admissible under La. C.E. art. 404 B(l) and the guidelines established in State v. Prieur, 277 So.2d 126 (La.1973). Defense counsel objected to the admission of this evidence.

Following the presentation of the testimony and exhibits, the trial court stated that without the evidence of the other crimes, wrongs or acts Bruce’s guilt was nonetheless proven beyond a reasonable doubt. The court stated that “this was a course of conduct that Mr. Bruce engaged in over a long period of time and in some eases when his hand was called or when the criminal pressure got on him, he would refund the money and somehow avoid prosecution. In the Wilson case everything just kind of fell apart.”

The trial court sentenced defendant to the maximum sentence of ten years at hard labor, with credit for time served. The sentence was imposed to run consecutive to any other sentence that Bruce was currently serving. | (¡Bruce had been in jail on the probation revocation since his arrest in 2007. The defense objected to the sentence as being excessive and made an oral motion for the court to reconsider the sentence, which was denied. This appeal ensued.

Discussion

Sufficiency of the Evidence

The standard for reviewing a claim of sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could reasonably find the defendant guilty because all elements of the offenses charged were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Sutton, 436 So.2d 471 (La.1983).

Review of sufficiency of the evidence does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So.2d 753 (La.App. 2d Cir. 1984). It is the function of the trial court or jury to assess credibility and resolve conflicting testimony. State v. Clower, 30,-745 (La.App.2d Cir.06/24/98), 715 So.2d 101. A reviewing court accords great deference to the factfinder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913.

17Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. La. R.S. 14:67.

Implicit in a charge of theft by fraud is the allegation that the defendant had no intent to carry out his promise. State v. Hardy, 376 So.2d 131 (La.1979). Though a question of fact, intent must necessarily be inferred from the circumstances of the transaction. See State v. Sepulvado, 93-2692 (La.04/08/96), 672 So.2d 158, cert. denied, 519 U.S. 934, 117 S.Ct. 310,136 L.Ed.2d 227 (1996).

Bruce’s main argument concerning the sufficiency of the evidence is that the state failed to prove that he received any of the funds from the $8,500 Wilson paid to Triple A. Bruce relies on his repeated argument that Adams was the owner of Triple A and the only signatory on the business checking account. Therefore, he did not and could not have accessed the funds. This argument, however, contradicts the testimony of both Wilson and Adams. Wilson testified that Bruce told him that he was the actual owner of Triple A. Whenever Wilson would call to inquire into why the house had not been moved and when the job would be accomplished, it was Bruce who always gave the excuses and provided Wilson with another time frame. Adams’ testimony revealed that, while she was the only signatory to the checking account, Bruce would often use the account’s ATM card to | ¿withdraw money. According to Adams, at the time of the Wilson job, Bruce was the actual owner of Triple A.

There was much contradiction between the testimonies of Bruce and Wilson and Bruce and Adams. The trial court made a credibility determination, and decided not to accept any of Bruce’s testimony that was in conflict with that of Wilson and Adams. Considering the great deference accorded to a trial court to assess credibility, we cannot say that its factual determination that Bruce took Wilson’s property is erroneous.

Much of the trial court’s findings and the arguments during trial focused on whether Bruce or Johnnie Adams owned Triple A at the time of the Wilson contract, and whether Bruce had access to the funds in the Triple A bank account. These facts bear on the “taking” element of theft. Regardless of Adams’ position, Bruce was clearly a principal in the taking of Wilson’s money. Thus, we must look to the “intent” element.

Bruce, who operated a house moving business, was paid $8,500 by A. J. Wilson to move Wilson’s house. It was alleged that the money was given based upon fraudulent representations or promises by Bruce to immediately move Wilson’s house. The basis of the charge is that defendant had no intent to carry out his promises at the time the money was given. See State v. Hardy, supra.

An intent to defraud must necessarily be inferred, and the relevant time period is when the victim is induced to part with his money or property. The crime was complete when Bruce obtained the money from Wilson. This was done by telling Wilson that the full amount must be paid Ror the house would not be moved for several months. As stated by the trial judge, defendant got as much money as he could up front and never intended to fully perform the contract. Bruce did as little as possible to obtain the money, or satisfy his obligation. In this case, he moved the small building for an additional $500. When contacted by the bank and with threats of prosecution, he made a show of jacking up the house. When further delays occurred and Wilson demanded the return of his money, Bruce told Wilson to send something in writing to his attorney. This was Bruce’s modus operand).

After reviewing the record, and after giving due deference to the trial judge’s factual conclusions, we hold that the trial judge did not err when he found that Bruce misrepresented his intention to fully perform the contract with Wilson within the stated time frame. As stated in Hardy, supra, intention not to meet a future obligation is a question of fact and misrepresentation of a present state of mind as to such intention is a false representation of an existing fact. In this case, the trial judge found that when Bruce was paid he misrepresented his intention to perform a future obligation, i.e., the moving of the house within the stated time frame. Because this was an issue of fact, we give great deference to the trial judge’s findings. We cannot conclude that the trial judge’s findings of fact and his conclusion as to the intent to defraud by false pretenses were clearly wrong. Sufficient evidence exists in the record to support the trial judge’s conclusion that Bruce deliberately misrepresented his intention to perform the job.

| mAs the trial court found, “this was a course of conduct that Mr. Bruce engaged in over a long period of time and in some cases when his hand was called or when the criminal pressure got on him, he would refund the money and somehow avoid prosecution. In the Wilson case everything just kind of fell apart.”

Accordingly, we find that, after viewing the evidence in the light most favorable to the prosecution, the trial court could have reasonably concluded that Bruce’s guilt was proven beyond a reasonable doubt.

La. C.E. art. 404(B)(1)

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973).

However, evidence of “other crimes, wrongs, or acts” may be admissible if the state has an independent and relevant reason for the evidence, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App.2d Cir.04/19/06), 929 So.2d 789. The probative value of the extraneous crimes evidence must outweigh its | n prejudicial effect. La. C.E. art. 403; State v. Jacobs, 99-0991 (La.05/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024 (La.1979).

Where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed. State v. Jackson, supra.

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.05/22/95), 655 So.2d 1326, ceH. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Roberson, supra.

In the case sub judice, the other crimes, wrongs or acts evidence showed that Bruce engaged in a repeated pattern of contracting to perform work, receiving up front payment for the contracted work, and performing little or no work in furtherance of fulfilling the contract. After months of delays and excuses, if the victim sought intervention from law enforcement and/or the district attorney’s office, Bruce would refund some or all of the money paid. All of these prior acts occurred within a year of the present crime. While the evidence of defendant’s other acts was prejudicial, its probative value outweighed the prejudicial effect as it helped form the basis of an essential element of the charged crime; specifically, Bruce’s intent to defraud Wilson. Defendant repeatedly took payment for future obligations | ,2that he would fail to perform. He did this once again when he took Wilson’s $8,500. Thus, we do not find that the trial court abused its discretion in admitting the evidence of other crimes, wrongs, or acts.

Excessive Sentence

A theft under La. R.S. 14:67, when the thing taken or misappropriated is valued at $500 or more, carries a maximum sentence of ten years’ imprisonment, with or without hard labor, and an optional maximum fine of $3,000. La. R.S. 14:67.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict needless pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/02/11), 77 So.3d 1047.

Prior to imposing sentence the trial court reviewed the PSI, which listed prior felony convictions and that Bruce was on probation for a similar crime when the acts involved in the present case occurred. The trial court took cognizance of the aggravating and mitigating factors listed in La. C. Cr. P. art. 894.1. Taking all of this into consideration, the trial court found that Bruce was in need of correctional treatment provided most effectively by commitment to an institution, and that a lesser sentence would not reflect properly on the seriousness of defendant’s crime.

Considering defendant’s extensive criminal history, we do not find that the trial court committed a manifest abuse of discretion in sentencing 113him to ten years at hard labor. The sentence is neither grossly disproportionate to the seriousness of the offense nor is it a purposeless infliction of pain and suffering.

Error Patent

La. C. Cr. P. art. 873 requires that 24 hours must lapse after a motion for new trial is overruled and before the defendant is sentenced, unless the defendant waives the delay. Bruce was sentenced immediately after his motion for new trial was denied and the record does not indicate that he waived the delay. In fact, the transcript shows that Bruce vocally objected to the trial court that the delay was not being observed when he was brought back in that afternoon for notice of his rights under La. C. Cr. P. art. 930.8. However, the defendant does not raise any objection in his appeal and there is no showing of prejudice, so the error is harmless.

Conclusion

For the aforementioned reasons, the conviction and sentence of defendant, Robert Franklin Bruce, is affirmed.

AFFIRMED.

      . Johnnie Adams was also charged, but the two cases were not consolidated. She did, however, testily as a defense witness.


author: PARRO, J.

text:
    Brenda SPARNECHT v. AMAR OIL COMPANY.
    No. 2011 CW 1986.
    Court of Appeal of Louisiana, First Circuit.
    June 1, 2012.
    William Ken Hawkins, Ponchatoula LA, for Plaintiff-Respondent Brenda Spar-necht.
    Janna C. Bergeron, Lawrence B. Frie-man, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Covington LA, for Defendant-Relator Amar Oil Company.
    Before PARRO, GUIDRY, and HIGGINBOTHAM, JJ.
   PARRO, J.

12Amar Oil Company appeals a judgment quashing an independent medical examination scheduled by the Director of the Office of Workers’ Compensation. For the following reasons, we convert this appeal to an application for a supervisory writ, grant the writ, reverse the judgment, and remand this case to the workers’ compensation judge, who is ordered to reinstate the independent medical examination.

FACTUAL AND PROCEDURAL BACKGROUND

Brenda Sparnecht (Sparnecht) was employed as a cashier by the Amar Oil Company (Amar). While in the course and scope of her employment, Sparnecht was involved in an accident, causing injury to her back. Following the accident, Sparnecht sought and obtained medical treatment for this injury from Dr. Fred DeFrancesch (Dr. DeFrancesch), a phy-siatrist who specializes in physical medicine and rehabilitation. Since the commencement of treatment, Sparnecht has received numerous injections and procedures. All of these treatments have been approved and paid for by Amar or its workers’ compensation insurer. Dr. De-Francesch recommended that Sparnecht undergo a fourth radiofrequency ablation bilaterally at L3, L4, and L5, and he opined that without this treatment, she was unable to perform any work.

Sparnecht was also evaluated by Amar’s physician, Dr. Daniel Trahant (Dr. Tra-hant), who specializes in neurology and electromyography. Dr. Trahant was of the opinion that Sparnecht had no objective neurological findings or abnormalities that would prevent her from resuming work. Dr. Trahant believed that Spar-necht had suffered a lumbar strain in the accident, and he could not relate that particular work injury to her ongoing complaints. Dr. Trahant was ultimately of the opinion that Sparnecht did not need any further medical procedures and was able to return to work.

Since there was a clear dispute in the opinions of these medical professionals, Amar requested an independent medical examination pursuant to LSA-R.S. 23:1123. See LSA-R.S. 23:1317.1. The Director of the Office of Workers’ Compensation (Director) reviewed and ^granted the request. The Director subsequently scheduled an independent medical examination with Dr. John E. Nyboer, another specialist in physiatry. Before the examination was performed, however, Sparnecht filed a disputed claim for compensation and a motion to quash the independent medical examination. See LSA-R.S. 23:1317.1(F).

After a hearing, the motion to quash the independent medical examination was granted by the workers’ compensation judge (WCJ). The July 27, 2011 judgment was based on the WCJ’s conclusion that two doctors of the same specialty must have differing opinions as to the condition of the employee in order to authorize an independent medical examination pursuant to LSA-R.S. 23:1123. Therefore, since Dr. DeFrancesch specialized in physiatry and Dr. Trahant was a neurologist, it was the WCJ’s opinion that the requisite trigger for an independent medical examination had not been met.

JURISDICTION

We note that in briefs to this court, the parties have disclosed that there is an ongoing lawsuit in this matter that was commenced by the filing of an earlier disputed claim for compensation. That being the case, the July 27, 2011 judgment on the motion to quash the independent medical examination is not a final and appeal-able judgment. See LSA-C.C.P. arts. 1915(B) and 2083(C). However, because the precise issue presented in this matter has not previously been addressed by this court, we will exercise our supervisory jurisdiction, convert this appeal to an application for a supervisory writ, and grant the writ. Cf. Gaylord Chem. Corp. v. Short, 11-0321 (La.App. 1st Cir.11/9/11), 81 So.3d 34, 35-36 (A final judgment had earlier been rendered in the suit for workers’ compensation benefits. Therefore, there was nothing pending, and the only issue before the court was that raised by the filing of a new disputed claim form regarding the independent medical examination. This court handled the issue under its appellate jurisdiction.)

ANALYSIS

The issue of whether the legislature intended that two doctors of the same specialty must have differing opinions as to the condition of an employee before an independent |,¡medical examination can be ordered pursuant to LSA-R.S. 23:1123 has not yet been decided by this court. This issue constitutes a question of law, and must be reviewed de novo. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037,1045. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. Louisiana Civil Code article 11 provides that the words of a law must be given their generally prevailing meaning. Thus, the first part of our analysis is to look at the words of the statute at issue.

When the judgment in this case was rendered, Louisiana Revised Statute 23:1123 provided, in relevant part:

If any dispute arises as to the condition of the employee, capacity to work, or the current medical treatment for the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director, (emphasis added).

In this statute, the language clearly and unambiguously states that the Director shall order a medical practitioner to make an examination of the employee if any dispute arises as to the condition of the employee, his or her capacity to work, or the current medical treatment for the employee. There is no language in LSA-R.S. 23:1123 that would suggest that there must be a dispute “between two doctors of the same specialty,” as the WCJ has concluded. On the contrary, a law shall be applied as written and all words of a law must be given their generally prevailing meaning. In the application of these principles, any dispute arising as to the condition of the employee should be sufficient to mandate an independent medical examination, provided the prerequisites of LSA-R.S. 23:1317.1(A) are met.

Even if there were any doubt as to the plain language of the statute, the legislative Ishistory of LSA-R.S. 23:1123 does not reveal any intent on behalf of the legislature to require that disputing opinions must originate from doctors of the same specialty. Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law also involves the search for the legislature’s intent. See LSA-C.C. art. 2; Louisiana Mun. Ass’n v. State, 04-0227 (La.1/19/05), 893 So.2d 809, 836. The legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, 576. In the present case, the legislature had the opportunity to change the pertinent language of the statute in 2010 and 2012 when it made other amendments, but it chose not to do so.

In 2010, the Louisiana Legislature amended LSA-R.S. 23:1123. The legislature did not change or modify the words “any dispute,” but did expand the subjects to which “any dispute” would apply by adding the phrase “capacity to work, or the current medical treatment for the employee.” The statute was again amended in 2012 to remove the phrase “or the current medical treatment for the employee.” See 2012 La. Sess. Law Serv., Act 235, § 1, approved May 22, 2012. In the legislative history, it is noted that the purpose of this statute is “to provide for an examination of an injured employee when certain disputes arise.” Louisiana 2010 Session Law Service Preamble for the 2010 amendment (2010 La. Acts, No. 3, § 1). In looking at these revisions and the intent of the legislature, there is no indication that the legislators were seeking to limit disputes concerning the condition of an employee to doctors of the same specialty in order to justify an independent medical examination.

Applying the plain interpretation of the statute to the facts of the present case, Sparnecht was examined by two doctors, albeit not of the same specialty. These doctors expressed differing opinions about the condition of Sparnecht, her need for further treatment, and her ability to' perform work. Dr. DeFrancesch opined that Sparnecht needed another radiofrequency ablation procedure, and without it, she could not resume work. Dr. Trahant, on the other hand, opined that Sparnecht had suffered a lumbar strain, believed that her current pain was unrelated to her work injury, and believed that she could return to work. That being the case, there is a clear dispute between these two doctors as to IflSparnecht’s condition and her capacity to work, which should serve as the prerequisite for an order to submit to an independent medical examination.

CONCLUSION

We convert this appeal to an application for supervisory writ and grant the writ.

Based on our analysis of the relevant statute, we reverse the judgment and remand this case to the workers’ compensation judge, who is ordered to reinstate the independent medical examination. Costs of this writ are assessed to Brenda Spar-necht.

APPEAL CONVERTED TO AN APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED AND REMANDED WITH ORDER.

HIGGINBOTHAM, J., concurs.

      . Sparnecht claims that, while reaching for cups in a storeroom at 5:30 a.m., a case of drinks fell struck her and caused her to fall, resulting in her injury.

      . The WCJ also noted that in the past, Director had routinely denied an independent medical examination if the two disputing physicians were not of the same specialty.

      . Louisiana Revised Statute 23:1317.1(A) states:
      Any party wishing to request an independent medical examination of the claimant pursuant to R.S. 23:1123, 1124.1, and 1291 (B)( 10) and (11) shall be required to make its request at or prior to the pretrial conference. Requests for independent medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination.
      A recent amendment did not change the prerequisites for an independent medical examination, but removed the references to other statutory provisions, in addition to LSA-R.S. 23:1123 and 1124.1, that are not relevant to this opinion. See 2012 La. Sess. Law Serv., Act 235, § 1, approved May 22, 2012.

      . See 2010 La. Acts, No. 3, § 1, effective May ll, 2010.