author: MADELINE JASMINE, Judge Pro Tempore.

text:
    STATE of Louisiana v. Bobby A. SMITH.
    No. 08-KA-579.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney Parish of Jefferson Gretna, LA, for Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

| ¿Defendant, Bobby A. Smith, has appealed his conviction and sentence for theft. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The defendant was charged by the Jefferson Parish District Attorney’s Office with theft of more than $1,000.00, a violation of LSA-R.S. 14:67 Defendant pled not guilty at arraignment. On February 13, 2008, defendant withdrew his not guilty plea and pled guilty as charged. The trial court sentenced defendant to five years at hard labor.

On the same day, the State filed a habitual offender bill of information alleging defendant was a second felony offender. Defendant entered an admission to the habitual offender bill. The district court vacated defendant’s original ^sentence and, in accordance with the plea agreement, imposed an enhanced sentence of five years at hard labor.

On May 5, 2008, defendant filed a pro se Motion to Amend and/or Modify Sentence in the district court, asking that his habitual offender sentence be reduced. He complained, in part, that the Department of Corrections was denying him “good time” credit as a habitual offender. The district court denied defendant’s motion in an Order issued on May 23, 2008. The court reasoned that defendant’s plea agreement showed he had agreed to the five-year sentence, and that LSA-C.Cr.P. art. 881 prohibits the district court from amending a sentence once the defendant has started serving it.

On May 13, 2008, defendant filed a Uniform Application for Post-Conviction Relief in the district court. He complained he received ineffective assistance of counsel at his guilty plea, in that his attorney led him to believe he would be eligible for “good time” credit when he was, in fact, ineligible to receive “good time.” Defendant also claimed his sentence was excessive. The district court interpreted defendant’s application as a motion for an out-of-time appeal. On June 23, 2008, the court issued an Order granting defendant an out-of-time appeal and dismissing his other post-conviction claims without prejudice.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), |4asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘ “a brief referring to anything in the record that might arguably support the appeal” ‘ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal |,4s wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the appellate court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Addressing the claim defendant made in his post-conviction relief application — that his trial attorney was ineffective in failing to inform him at the time of his guilty plea that he would not be eligible for “good time” credit— appellate counsel maintains there is nothing in the record to indicate defendant was misled as to the availability of “good time” (or lack thereof) in his case.

Appellate counsel points out that during defendant’s guilty plea colloquy, the district court informed him he would be sentenced to five years at hard labor, with credit for time served. The judge asked defendant whether he had discussed this information with his attorney, and defendant stated under oath that he had. Appellate counsel further notes that defendant’s guilty plea form shows the sentencing range for the charged offense and the sentence defendant would receive upon entering his plea.

The habitual offender waiver of rights form likewise shows the sentencing range defendant was subject to as a second felony offender, and that his agreed-upon sentence would be five years in the Department of Corrections. The judge explained to defendant that if he admitted to the allegations in the habitual offender [ fibill, he would be sentenced to five years at hard labor as a second felony offender. Defendant indicated he understood that. Appellate counsel points out that neither the guilty plea forms nor the colloquies show any mention of “good time” eligibility-

As his appellate counsel indicates, defendant is not eligible for diminution of sentence under LSA-R.S. 15:571.3, which provides, in pertinent part:

C. Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(m) A violation of R.S. 14:67 which is a felony.
and
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3) The inmate’s last conviction for the purposes of the Habitual Offender Law, was for a crime: (a) Committed during the period beginning September 16, 1975 through September 9, 1977, inclusive of both dates, and the sentence of the court specifically denies eligibility for diminution of sentence, or (b) committed on or after September 10, 1977.

Appellate counsel has filed a motion to withdraw as attorney of record, stating he has complied with the provisions of Anders and Jyles, and that he has notified defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed on his behalf and that he would have until September 3, 2008 to file a pro se supplemental brief. Defendant has not filed a supplemental brief.

Based on an independent review of the record, we find there are no non-frivolous issues that can be raised on appeal. When a defendant pleads guilty, he 17normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Defendant filed pre-trial motions to suppress inculpatory statements, evidence, and identification. None of those motions were heard or ruled on in the district court. Consequently, there are no trial court rulings defendant could have preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

Our review of the record indicates that the minute entry for defendant’s arraignment states “attorney not present this day” and Ms. LaCambra, defendant’s attorney, “was present for pretrial conference.” A review of the transcript indicates that the defendant, the judge, and the assistant district attorney were present in open court for the arraignment. The prosecutor stated on the record that there had been a pre-trial conference earlier in chambers, during which the dates for motions and trial had been set. The court’s clerk noted that attorney Jessica LaCambra had been appointed to represent defendant, and that Ms. LaCambra had requested that an attorney from I.D.B. represent defendant that day for arraignment.

There was a brief discussion about defendant’s bond, and then the following exchange took place:

THE CLERK:
You are going to enter a plea of not guilty.
THE WITNESS [defendant]:
Yes, ma’am.
THE COURT:
All right, sir, you have applied for an attorney, one has been appointed. She has asked one of the Indigent Defenders to stand in for you. I don’t know if that’s necessary, I’m going to enter a plea of 1 snot guilty. You have a lawyer, are you willing to do that without that lawyer here?
THE WITNESS:
Yes, sir.
THE COURT:
All right. Enter a plea of not guilty, your matter is going to be set along with the co-defendant. You will have two trial dates, one is your motion day, which is February 13th and one is your trial week, which is for the week of Monday, February 19th. Your lawyer, Ms. LaCambra, is fully aware of those dates, and she’ll be here, and she is also aware of her appointment as your lawyer. All right, because I spoke with her this morning—
THE WITNESS:
Okay

In State v. Rose, 271 So.2d 863 (La.1973), the defendant was tried by a jury and found guilty of armed robbery, LSA-R.S. 14:64. On appeal, the defendant complained his attorney was not present at arraignment. The Supreme Court noted that the minutes were silent as to whether counsel was present at the defendant’s arraignment, but found no error, because “the defendant did enter a plea of not guilty, and, pursuant to La.C.Cr.P. art. 516, counsel could have withdrawn the plea made by the defendant and entered any other motion or plea had he so desired.” Id. at 865.

As in Rose, defendant’s attorney could have — and did — change defendant’s plea after his arraignment. LSA-C.Cr.P. art. 516 provides: “When a defendant has pleaded at the arraignment without counsel, counsel subsequently appointed or procured before trial shall be given a reasonable time within which to withdraw any motion, plea, or waiver made by the defendant, and to enter any other motion or plea.”

In defendant’s Anders brief, appellate counsel does not discuss whether or not defendant’s waiver of counsel at his arraignment is a non-frivolous issue to be raised on appeal. However, we find based the Louisiana Supreme Court’s holding in State v. Rose, supra, that defendant’s waiver of his right to counsel at arraignment does not require briefing by appellate counsel under the provisions of An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

The transcript of the guilty plea indicates the trial court properly advised defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge ascertained that defendant understood those rights and that he wished to waive them and plead guilty. Additionally, defendant, his attorney, and the district judge signed a waiver of rights form which enumerated defendant’s rights and detailed the sentence he would receive pursuant to his guilty plea.

Defendant entered an admission to the allegations in the habitual offender bill of information. The district court properly advised defendant of his right to a habitual offender hearing and his right to remain silent. Defendant stated he understood those rights and wished to waive them. Defendant also completed a multiple bill waiver of rights form which contained the penalty range to which he was exposed, and the sentence he would receive.

In his application for post-conviction relief in the district court, defendant appears to have raised the issue of excessive sentence. However, defendant’s habitual offender sentence was part of a sentencing agreement. The defendant is precluded from raising a claim of exces-siveness on appeal when his sentence was imposed in conformity with a sentencing agreement which is set forth in the record at the time that he admitted to the allegations in a multiple bill. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

JjjCounsel’s adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion. Accordingly, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920, regardless of whether defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir. 1990). The following errors requiring corrective action were found in the record.

First, we note that the district court failed to advise defendant of the prescriptive period for filing an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. In the past, this Court has corrected this omission by ordering the trial court to properly advise the defendant of the prescriptive period in writing within ten days of the rendition of the opinion, and to then file proof in the record that the defendant received said notice. But recently, this Court followed the Second Circuit’s procedure in State v. Morris, 40,322, p. 5 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, of advising the defendant by way of the opinion rather than by remand. State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445. Accordingly, by this opinion, the defendant is advised that in accordance with LSA-C.Cr.P. art. 930.8 he has two years from the date his conviction and sentence become final to seek post-conviction relief.

|nSecond, the errors patent review reveals a sentencing error requiring correction: the commitment entry fails to note the grade of the offense. The commitment minute entry provides that the defendant pled guilty on “count 1) 14:67 F III THEFT valued at over $1000.00.” The commitment further provides the defendant pled guilty under R.S. 15:529.1 “on count 1) 14:67 F III THEFT as a second felony offender.” The crime of theft establishes grades of offense based on the value of the misappropriation. The statute specifically penalizes three grades of theft: that is, those valued at more than $500.00, LSA-R.S. 14:67(B)(1); more than $300.00 but less than $500.00, LSA-R.S. 14:67(B)(2), or less than $300.00, LSA-R.S. 14:67(B)(3). The theft statute contains no paragraph F.

In State v. Taylor, 07-474 (La.App. 5 Cir. 12/27/07), 975 So.2d 10, a case involving simple criminal damage to property, this Court noted that the commitment entry did not reflect the proper grade of offense. The matter was remanded for the district court to correct the commitment entry to reflect the proper grade of offense. Id. at 16. See also, State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d 508.

Accordingly, this matter is remanded and the district court is ordered to correct the commitment minute entry to correctly state the grade of offense for which the defendant was convicted.

Additionally, we note that the district court erred in failing to order that defendant serve the habitual offender sentence without benefit of probation or suspension of sentence, as required by LSA-R.S. 15:529.1 G. No corrective action is necessary, since LSA-R.S. 15:301.1 makes the provision self-operating. State v. Dorsey, 07-67, p. 7 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1131.

.CONCLUSION

For the foregoing reasons the defendant’s conviction and sentence are affirmed. This matter is remanded to the district court for the limited purpose of correcting the commitment.

AFFIRMED; REMANDED

      . Under LSA-R.S. 14:67 B(l), the greatest grade of the offense is actually theft in the amount of $500.00 or more.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mention, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Defendant waived his outstanding motions by entering a guilty plea without complaining that the district court had neither heard nor ruled on them. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . LSA-R.S. 15:529.1(D)(1)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the Defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Bell, 03-217, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Bobby TERRELL.
    No. 08-KA-1189.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Harry J. Morel, Jr., St. Charles Parish District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, Louisiana, for PlaintiffAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2The defendant, Bobby Terrell, was convicted of one count of attempted second degree murder of Kerry Armstrong, a violation of LSA-R.S. 14:30.1(14:27), and was sentenced to ten years at hard labor with credit for time served. The defendant takes this timely appeal.

On December 5, 2007, defendant shot Kerry Armstrong, during an altercation between the two men. Armstrong was shot four times and suffered injury to his hand and chest, and underwent surgery for a collapsed lung.

At trial, defendant contended first that he did not intend to shoot Armstrong and second that he acted in self-defense.

The testimony at trial established that during the afternoon of December 5, 2007, Armstrong encountered the defendant, whom he learned was with Ashton Lee, the person Armstrong stated had killed his (Armstrong’s) younger brother. Armstrong told the defendant that he was wrong for being with Ashton and bringing him around. Then, they had a fistfight for five minutes. Armstrong admitted that he started the fight. According to Armstrong, after a female companion broke up the fight, he and the defendant left. Armstrong testified that |3he thought that the defendant ran away to get a gun. Armstrong testified that he did not intend to try to kill the defendant, and he denied telling the defendant that he was going to kill him. Rather, Armstrong agreed that, he told the defendant not to be caught around Ashton Lee, in St. Rose. Armstrong testified that he was not carrying a gun on the day of the incident, and that he has never owned, carried, or held a gun.

The defendant testified that, on December 5, 2007 at approximately 2:30 p.m., he was near his home when Armstrong got out of a vehicle and ran towards him. According to the defendant, Armstrong had an evil look on his face and said, “ ‘Yeah, yeah. I heard who you was with. You was chilling with the nigger Ashton that killed my brother.’ ” According to the defendant, he did not say anything to Armstrong before Armstrong struck him. The defendant testified that they started fighting, and then Armstrong “clipped [him] on the ground.” The defendant testified that, two or three minutes later, a woman pulled Armstrong off him. Then, Lamar Nar-cisse, Armstrong’s cousin, got out of the vehicle and ran towards the defendant. The defendant testified that he got off the ground and ran away. According to the defendant when the fight was over, Armstrong said, “‘Yeah. I catch you Ashton [sic], next time, I’m going to kill you.’ ” The defendant testified that he armed himself with an unregistered gun because he was scared after the fight in which Armstrong had threatened him. According to the defendant, he had no doubt that Armstrong was serious and meant what he said.

Armstrong testified that, later that same day, he stopped at the Quick and Fast, while riding around with his cousin, Earnest Batiste, and a friend, Erin Carter. Armstrong testified that when he was leaving, while two or three steps from the door, the defendant was walking inside the store. According to Armstrong, they Lwalked right into each other, and then they both started fighting again. Armstrong testified that he was punching the defendant when he heard six shots fired. According to Armstrong, he was unconscious for five or ten seconds, and then he heard someone say, “Now, nigger, now.” Armstrong testified that when he came to his senses, he opened his eyes and saw that the defendant had shot him in his right hand, his dominate hand. Armstrong testified that the defendant shot him, and that he saw the gun in the defendant’s right hand. Armstrong described his hand as “tor[n] off.” He only felt the thumping of his hand. At some point, Armstrong also realized that the defendant also shot him in the chest. When asked, if “[his] sole belief for thinking that Beau shot you or [the defendant] shot you is that you were shot, right?,” Armstrong replied, “Who else going [sic] to shoot me?”

Armstrong testified that he ran out of the store in a direction to avoid the defendant’s parked car. Subsequently, he saw the defendant get into his car and drive away. He returned to the store, where he encountered Aneika Moliere, and requested that she take him to the hospital. Moliere testified that when Armstrong approached, he ran towards her holding his chest with a bloody hand that Moliere described as, “like blown off.” When Armstrong took off his shirt in her vehicle, she observed wounds on his chest and a hole in his side.

Ha Bui, the manager of the Quick and Fast on River Road, in St. Rose, testified that, on the day of the incident, Armstrong came into the store with another man that he had seen in the store before, as a customer. Bui described the subsequent events, as follows:

Next thing I know, I think [the defendant] came in right to the front of the store, and before I know it, I just saw a turn — -I was kind of |Bhelping the other customers, but a glimpse, I saw [Armstrong] had turned toward the other guy and kind of like they were — next thing you know they were fighting on the ground.... And the next thing I know, I heard, you know, shots fired, and I just ducked behind the counter. And that was it.

Later, in his testimony, Bui again stated, “the next thing you know [the defendant] walked in, and then he turned to look at him or whatever, and like I said, they were — they started fighting right there.”

When asked to describe the position of Armstrong and the defendant on the floor, Bui replied, “It’s — from what I could see, it like [Armstrong] is on top of [the defendant].” Subsequently, when asked if Armstrong was on top of the defendant, Bui responded, “Like I said, it like whenever they started fighting, it just — it’s like one lunged toward [the defendant], [Armstrong] lunged toward [the defendant], and I guess he’s on top of him.” According to Bui, he saw the fight between the defendant and Armstrong when it was initiated, and he never saw anyone else involved in the altercation.

Bui testified that he heard three or four shots fired while the defendant and Armstrong were on the ground. According to Bui, the shots were fired approximately 30 seconds after the defendant entered the store. Bui also testified that he did not see the defendant with the gun nor did he see the defendant discharge the gun. Bui testified that when the police processed the scene at the store they found two bullets stuck in the ceiling/roof and four shell casings. According to Bui, he ánd the police also found pieces of flesh stuck to the roof and on the newspaper stand.

The defendant testified that, on December 5th at approximately 6:00 p.m., sometime after his altercation with Armstrong, he decided to go to the Quick and Fast. The defendant testified that he did not know that Armstrong was inside the |0store when he entered. The defendant admitted a vehicle belonging to Armstrong’s cousin, Batiste, was outside the store. The defendant testified that when he entered the store someone other than Armstrong immediately hit him from the side. Then, Armstrong rushed towards him, began punching him, and knocked him to the ground. According to the defendant, he did not say anything to or make any gestures towards Armstrong before he was attacked. The defendant testified that Armstrong was on top of him, as he fought to defend himself from three men. The defendant testified that when the individuals started stomping on him, he fired his gun. According to the defendant, Armstrong was still on top of him at the time. The defendant testified that his eyes were closed when he fired the gun. The defendant claimed that he was not specifically aiming at Armstrong or anyone else. The defendant claimed that he did not think he would hit anyone when he fired the gun while it was on the ground. According to the defendant, he did not know how many shots he fired. The defendant testified that he fired his gun because he believed that “[Armstrong was going to kill [him] like he said earlier.” According to the defendant, he fired the gun out of fear, to stop the assault, and because it was necessary to protect his life. The defendant testified that he did not know whether Armstrong had a gun. The defendant responded negatively when asked if he knew that Armstrong had been shot. According to the defendant, he did not learn that Armstrong was shot until an hour and a half later. The defendant testified that, after the shooting, he dropped the gun in front of the store, when he tripped while running away. According to the defendant,' that was the last time he saw the gun. The defendant testified that he immediately left in his vehicle for Sli-dell because he thought he would be safe there.

Detective Bass testified that, upon entering the Quick and Fast, he observed blood by the door and on a newsstand, as well as several shell casings on the floor.

| yAccording to Detective Bass, no gun was recovered at the scene. Detective Bass testified that he viewed the video recording of the fight. However, part of the altercation occurred off camera. Detective Bass testified that he questioned a large group of people standing in the parking lot, and based on the information he received, he researched the defendant’s name.

Detective Bass testified that subsequently the defendant’s silver Camaro was located at an address on Camelia Court, in Slidell, belonging to Ashton, Arrol, and Arcenniel Lee. Detective Bass testified that both Arrol and Arcenniel Lee told him that they had spoken directly to the defendant, and that the defendant was involved in an altercation with three people at the time of the shooting. Detective Bass agreed that both Arrol and Arcenniel Lee stated that the defendant had discharged the gun without a particular target while being “stomped on.” Detective Bass also agreed that both Arrol and Arcenniel Lee stated that the defendant did not know if he had actually shot anyone. Detective Bass testified that Arcenniel Lee stated that the defendant told him that he dropped the gun at the front of the store.

At trial, Arcenniel and Arrol Lee testified the defendant came to their house on the date of the incident, at approximately 6:00 p.m. or 7:00 p.m. Arrol, Ashton, and Arcenniel Lee all testified that they did not learn anything about the incident from the defendant. Arcenniel Lee admitted that he told the police that the defendant told him that Armstrong said that he was going to kill him. Detective Bass admitted that Arcenniel Lee told him that the defendant stated that Armstrong was going to kill him.

Detective Bass admitted that his investigation did not find an eyewitness who saw the defendant with a weapon and, therefore, without the testimony of Arrol and Arcenniel Lee, there was no eyewitness evidence to suggest that the [^defendant was in possession of a gun. However, Detective Bass testified that he believed that the defendant shot Armstrong. Detective Bass oioined that the defendant was in possession of a gun based on the physical evidence collected at the Quick and Fast. Specifically, the four bullet holes in the ceiling, the four shell casings found on the floor, and the video recording that showed Armstrong on top of the defendant. In addition, Detective Bass opined that the defendant had the specific intent to kill Armstrong because of the physical evidence on the scene, the casings, the witnesses that saw the defendant enter the store, the short period of time the defendant was in the store, and the history between the defendant and Armstrong including the homicide of Armstrong’s brother. Detective Bass admitted that there was no evidence to contradict Bui’s statement that Armstrong was the aggressor, to suggest that the defendant said or did anything to Armstrong before the defendant was jumped, or that the defendant knew Armstrong was in the Quick and Fast.

In his sole assignment of error, the defendant alleges that the evidence is insufficient to convict, in that the state failed to prove the requisite intent to kill. Furthermore, the evidence fails to negate his contention that he acted in self defense. The State argues that it presented evidence to prove that the defendant intended to kill Armstrong when he shot him four times, at point blank range, hitting him in the chest, stomach, and hand, and that the evidence presented proved that the defendant was not acting in self-defense.

The standard of review for testing the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime-beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence may be either direct or circumstantial. Both the direct 13and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Gant, 06-232, p. 7 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This statute does not establish a stricter standard of review than the more general rational juror’s reasonable doubt standard; rather it is merely an evidentiary guide for the jury when considering circumstantial evidence. State v. Manning, 03-1982, p. 46 (La.10/19/04), 885 So.2d 1044, 1088, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005).

In cases involving circumstantial evidence, the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. State v. Davis, 92-1623, p. 11 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); See also, State v. Gant, 06-232 at 7, 942 So.2d at 1111. Rather, the reviewing court must evaluate the evidence in the light most favorable to the prosecution and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. Id. The reviewing court must not impinge on the jury’s finding of fact, in a criminal case, except to the extent necessary to guarantee constitutional due process. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

The trier of fact’s rational credibility calls, evidence weighing, and.inference drawing are preserved, because the sufficiency inquiry does not require a reviewing court to ask itself whether it believes that the evidence at trial | i0established guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 at 8, 772 So.2d at 83. An appellate court does not evaluate the credibility of witnesses, nor should it overturn the trial court on its factual determination of guilt. State v. Addison, 00-1730, p. 7 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. Instead, the appellate court must assure that the jury did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. State v. Mitchell, 99-3342 at 8, 772 So.2d at 83. The “ ‘appellate court is constitutionally precluded from acting as a ‘thirteenth juror’ in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact.’ ” Id. citing State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir. 12/29/93), writ denied, 94-0141 (La.4/29/94), 637 So.2d 460.

In order to prove second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had the specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1(A)(1). In order to sustain a conviction for attempted second degree murder, the State must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. LSA-R.S. 14:27 and LSA-R.S. 14:30.1. In order to support an attempted second degree murder conviction, the State is required to prove a specific intent to kill. State v. Barbarin, 04-1094, p. 8 (La.App. 5 Cir. 3/1/05), 900 So.2d 95, 100.

“Specific intent is ‘that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’ ” Id.; See also, LSA-R.S. 14:10(1). Specific intent is a state of mind; therefore, it need not be proven as a fact, but may be inferred from circumstances and actions of the accused, as well as the extent and severity of l^the victim’s injuries. Id. Specific intent to kill may be inferred from the defendant pointing a gun and firing at an individual. Id. Sufficiency of the evidence to support an inference of specific intent has been found, in most cases, where the proximity of the gunman to the victim when shot was fired was at close-range or point-blank. State v. Gant, 06-232 at 8, 942 So.2d at 1111.

In the present case, the defendant argues that the State failed to prove the requisite intent. The defendant claims that he was not the aggressor in the altercation. Rather, after his life previously had been threatened by Armstrong, he only shot the gun to defend himself because he was being beaten by Armstrong and two other men.

Louisiana jurisprudence has long held that the defendant in a homicide prosecution who asserts that his actions were in self-defense does not have the burden of proof. Rather, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Barnes, 491 So.2d 42, 45-16 (La.App. 5 Cir.1986). This Court has held that, in a non-homicide case, it is the defendant who bears the burden of production of evidence in support of his affirmative defense of self-defense, as well as the burden of persuading the trier of fact of the existence of facts constituting the defense by a preponderance of the evidence. State v. Barnes, 491 So.2d at 47. Cf: State v. Fluker, 618 So.2d 459 (La.App. 4th Cir.1993), in which the Fourth Circuit stated that it was the state who bore the burden of disproving self-defense in both homicide and non-homicide cases. We note that there is a split in the circuits concerning this issue.

More recently, in State v. Taylor, 04-54 (La.App. 5 Cir. 4/27/04), 874 So.2d 297, writs denied, 04-1326 (La.11/08/04), 885 So.2d 1122 and 04-1495 (La.11/08/08), 885 So.2d 1120, this Court did not find it necessary to re-visit the issue of who bears the burden of proof in a non-homicide case because it found |i2that, in that case, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the State proved beyond a reasonable doubt that the defendant did not act in self-defense. Id.

“[T]he lack of a weapon is not dispositive of the issue of self-defense, because it is the reasonableness of apprehension and not the actuality of danger that determines the question of self-defense.” Id., quoting State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 148. In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Theriot, 07-71 at 13, 963 So.2d at 1020. Also, the severity of the injuries to a surviving victim can be a factor in determining intent to kill. State v. Barbarin, 04-1094 at 9, 900 So.2d at 100.

In the present case, the State presented evidence that four casings were found, which indicated that the defendant fired four shots while Armstrong was on top of him. Armstrong sustained gunshot wounds to his chest and his right hand. Armstrong also suffered a collapsed lung and underwent surgery. The severity of the injuries inflicted upon Armstrong indicated the defendant’s intent to kill.

Defendant claims that he closed his eyes when he fired the four shots and that he did not aim the gun at the defendant, which proves that he did not have the intent to kill. The defendant’s claim is contradicted by the physical evidence. In this case, the defendant fired four shots and Armstrong was the only person wounded by the shots. Armstrong was on top of the defendant when he fired the shots, and all four shots were fired in the direction of Armstrong towards the ceiling. Two projectiles were found in the ceiling, and it appears that the other two projectiles continued through the roof.

| KjThe jury is the ultimate fact-finder in determining whether a defendant proved his condition, i.e., self-defense, and whether the state negated the defense beyond a reasonable doubt. State v. Theriot, 07-71, p. 13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, -unit denied, 07-1598 (La.2/1/08), 976 So.2d 715.

In order for an appellate court to reverse a conviction based on an alternative hypothesis of innocence, the appellate court must find that the jury could not have negated the potential alternative hypothesis for the defendant’s actions because specific intent to kill was not proven. State v. Mitchell, 99-3342 at 7, 772 So.2d at 83. (See, State v. Mitchell, in which the defendant argued that he lacked the requisite specific intent to kill based on an alternative hypothesis involving self-defense. State v. Mitchell, 99-3342 at 8, 772 So.2d at 83-84.) An appellate court cannot assume a reasonable alternative hypothesis exists when the jury has heard evidence of specific intent to kill to negate the alternative hypothesis. State v. Mitchell, 99-3342 at 8, 772 So.2d at 83.

We therefore find that the evidence was sufficient for a rational trier of fact to find beyond reasonable doubt that defendant had the requisite intent when attempting to kill Armstrong. Even assuming that the State bore the burden of proving that the defendant did not act in self-defense, the jury, viewing the evidence in the light most favorable to the prosecution, could have found that the State proved beyond a reasonable doubt that the defendant did not act in self defense. The only evidence presented concerning the defendant’s claim that he acted in self-defense is the defendant’s testimony that Armstrong threatened his life prior to the shooting. At trial, Armstrong admitted that he had a five-minute fistfight with the defendant, which he started. But, Armstrong denied threatening to kill the defendant during the fight. Instead, Armstrong testified that he told the defendant not to be caught around Ashton Lee, in St. Rose. According to ] 14Armstrong, he did not intend to try to kill the defendant. In fact, Armstrong testified that he thought that the defendant had run away in order to get a gun during the first altercation. Thus, the jury could have found that the evidence as presented by the state negated the defense of self-defense beyond reasonable doubt. We find no merit to the defendant’s assignment of error.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which warrant corrective action.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Armstrong admitted that he had two convictions for possession of cocaine, and that he was currently serving a five year sentence on a revocation by the drug court for failing to meet the standards, i.e., using drugs and failing to obtain employment. Armstrong admitted that he had crack cocaine and $400 on him when he was shot. Armstrong also admitted to dealing drugs to support his habit.

      . Detective Bass, investigating officer, testified that Armstrong told him that he did not see gun. He only heard the shots.

      . According to Armstrong, the defendant's nickname is Beau.

      . Detective Bass testified that Bui told him that the defendant punched Armstrong.

      . Detective Bass testified that the videotape and the testimony of Bui contradicted their statements.


author: MARION F. EDWARDS, Judge.

text:
    Jonah BERNSTEIN v. POWERHOUSE GYM OF METAIRIE, INC. d/b/a Anconas Gym, Joey Anconas, Jr., East-West Health and Wellness Center, Inc., The Liu Institute, Shawn Liu and Patrick Berry.
    No. 08-CA-790.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.
    Writ Denied May 22, 2009.

      Robert J. Young, Jr., Timothy J. Young, Robin Richmond Klibert, The Young Firm, New Orleans, Louisiana, for Plaintiff/Appellant.
    Bradford H. Felder, Huval, Veazey, Felder, Aertker & Renegar, L.L.C., Lafayette, Louisiana and Thomas H. Huval, Stephen C. Aertker, Jr., Attorneys at Law, Covington, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

1 ¿Plaintiff/ appellant, Jonah Bernstein (“Berstein”), appeals a summary judgment in favor of defendants/appellees, The Liu Institute and Shawn Liu, dismissing his suit with prejudice.

The matter arises out of an incident that occurred on January 7, 2005, when Bernstein was taking part in a martial arts class as a student of the Liu Institute. Bernstein, who attended Tulane University, alleged that he was struck in the face and head by instructor Patrick Berry (“Berry”) and injured. In his deposition, Bernstein stated that he signed up to take a class with Master (Shawn) Liu (“Liu”), which classes he attended once or twice a week. On January 7, 2005, Berry was the class instructor. Prior to that time, the classes had consisted of non-contact activities, such as stretching and jumping exercises, and form repetition with members of the group. The first contact activity took place on the day of the incident. Bernstein was wearing a helmet, chest gear, and boxing gloves. This | :iwas the first time the class would practice kick boxing with contact. Berry asked if Bernstein was ready to spar, and Bernstein consented.

During the match, the two began to throw and kick at one another. Bernstein took multiple punches and kicks to the right side of his head and forehead, falling to the ground. The match continued for a few minutes until a buzzer sounded. Because Bernstein believed this activity was part of the class, he did not ask Berry to stop. When he was hit very hard, he was dazed, or “out of it.” He was able to climb out of the ring on his own and did not complain of injuries to Berry or anyone at that time. A few days later, he described the incident to a nurse, who told him he would get better. However, he did not report the matter to a doctor for about two months. He suffered intense pain and pressure in his head for some months, with the strongest pain on the right side. This pain did not change after having been struck some time later with a paint gun or when he was again hit in a subsequent sparring match.

As a result of his injuries, Bernstein suffered from headaches, memory loss, nausea, and dizziness. In a medical report from the Tulane Clinic dated April 12, 2005, the examining physician noted that Bernstein reported he had temporarily lost consciousness in the sparring incident and had begun to experience frequent headaches on the right side, along with memory and concentration problems. According to the report, Bernstein had been shot in the head with a paint ball gun about ten days before but experienced no loss of consciousness. The neurological examination was normal, and it was determined that Bernstein had suffered a concussion with post-concussion syndrome accentuated by anxiety. A second consultation with another physician in August 2005 described an MRI and a CAT scan, taken earlier, that were normal. That doctor’s impression was that Bernstein | .¡suffered from minimal memory problems secondary to a post-concussion syndrome.

In opposing the Motion for Summary Judgment, Bernstein argued that there were issues of fact regarding adequate supervision of the class and the competency of the instructor. Bernstein further argued there was a breach of duty on the part of Liu and the Liu Institute, as well as on the part of Berry. Finally, Bernstein argued that discovery was incomplete, as the depositions of Liu and Berry had not yet been taken.

The trial court granted summary judgment, reasoning that, in order for Bernstein to recover, he would have to show that Liu breached a duty owed to him by acting in a wanton and reckless disregard for his safety. The court found that Bernstein had voluntarily participated in the match and was fully aware that contact would occur. It further noted that Bernstein participated for the entire bout and did not request the instructor to stop; he exited the ring and never complained to anyone associated with the class that he was injured. The court, thus, found the defendants did not act with a wanton or reckless disregard for Bernstein’s safety.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case.

Under LSA-C.C.P. art. 966(C)(2):

| ¿The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Whether the defendant breached that duty and whether that breach was a cause in fact of plaintiffs injuries are factual questions to be determined by the factfinder.

In the present matter, the trial court granted summary judgment after finding that Liu did not breach any duty owed to Bernstein. In so doing, the court made an impermissible finding of fact inappropriate in a Motion for Summary Judgment.

The contract between Liu and Bernstein in effect at the time of the incident contained the following provision:

All classes/sections are supervised by qualified personnel trained in the procedures and traditions of the martial arts.... Student understands that during the course of instruction, employees of LIU INSTITUTE INTERNATIONAL and/or other students or authorized persons will be engaged in a course of conduct requiring physical contact ... he/she gives full consent to such contact as is required by the training.... I understand and agree the LIU INSTITUTE INTERNATIONAL will not be held liable for any injuries, damages, etc. caused or not caused by or resulting or not resulting from the negligence of the owners, operators or persons in charge of such establishment, their agents, servants or employees.

| fiSuch provisions are limited under the law. According to LSA-C.C. art.2004, any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party or for causing physical injury to the other party. Liu correctly asserts on appeal that the viability of Bernstein’s action requires the application of- the duty/risk analysis, but contends that, considering the contract, Bernstein cannot establish that Liu breached a duty owed to him, and cannot establish that Liu acted with reckless or total disregard for his safety. We disagree.

The Louisiana Supreme Court has considered an analogous situation in which a corrections officer was injured during an “angry crowd” training exercise. There, the plaintiff testified that, when batons were used in previous exercises, they were wrapped and the officers wore protective gear. When he was injured, unpadded batons were used and the officers wore only helmets. Although there was no consent form involved in that case, the court analyzed the duty owed to such plaintiff:

Even assuming arguendo that Cole did initially consent to this harmful touching during the training exercise, we find that under the circumstances of this case, any consent given by Cole was vitiated. When a person voluntarily participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent.

The court went on to discuss the evidence and to conclude that the force used against the plaintiff was unnecessary and unanticipated. In the present matter, the Liu Institute and its instructors owed a duty to Bernstein not to engage in unnecessary and/or unanticipated force, and there appear to be questions of material fact as to whether such force was used. There is nothing in the record on 17appeal revealing the usual and/or expected level of activity at the point of instruction when the injury occurred, the force which Bernstein may have reasonably anticipated, or, in fact, the level of force that was actually used.

Further, although Bernstein was, in one sense, participating in a sporting activity, he was enrolled in the Liu Institute as a student of martial arts. In that respect, the relationship between Bernstein and Liu was in the nature of student and teacher. Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence. Responsibility attaches when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it. LSA-C.C. art. 2320. This article discloses another dimension of duty to Bernstein. Among others, there are questions of fact as to the competency and qualifications of Berry (as per the contract), the intended nature of the exercise in question, and the extent to which Liu may have prevented the damage that occurred.

For these reasons, we reverse the summary judgment in favor of Liu and remand the matter for further proceedings.

REVERSED.

      . Gray v. Am. Nat'l Prop. & Cos. Co., 2007-1670 (La.2/26/08), 977 So.2d 839.; Irula v. Jean, 06-927 (La.App. 5 Cir. 4/24/07), 958 So.2d 66 (citations omitted).

      . Irula v. Jean, supra.

      . Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564.

      . Id.

      . Cole v. State Dep't of Pub. Safety and Corrections, 2001-2123 (La.9/4/02) 825 So.2d 1134.

      . Id.


text:
    Kim Schlosser Tumminello, wife of/and Tim TUMMINELLO, et al v. COLUMBIA LAKESIDE HOSPITAL and Ana Bergeron, R.N. and Health Care Providers Service Organization Purchasing Group, et al. Kim S. Tumminello w/o & Tim Tumminello, et al. v. Dr. John Megison, Lakeside Women’s Speciality Ctn. et al.
    Nos. 08-CA-316, 08-CA-380.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.
    Writ Denied May 15, 2009.

      Gail D. Schlosser, Attorney at Law, Re-gel L. Bisso, Attorney at Law, Metairie, Louisiana, for Plaintiffs/Appellants.
    Jacqueline Blankenship, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, Attorney at Law, Me-tairie, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On February 17, 2000, plaintiffs, Kim and Tim Tumminello, on behalf of themselves and them minor child, Savannah, and Lorrel Schlosser, filed suit against Columbia Lakeside Hospital, Ana Berger-on, R.N. and her insurer, Dr. John Megi-son and his insurer, Louisiana Medical Mutual Insurance Company (“LMMIC”), Lakeside Women’s Specialty Center (“LWSC”) and its insurer, St. Paul Fire and Marine Insurance Company, and Vivian Locantro. This petition alleged the plaintiffs suffered damages after Kim suffered an allergic reaction to Ampicillin given to her while pregnant. As a result of the allergic reaction, an emergency C-section was performed. The baby, Savannah, now suffers from cerebral palsy.

Prior to the filing of this petition, this matter was submitted to a medical review panel. A decision by that panel on November 29, 1999 found that Dr. Megison and LWSC did not fail to meet the applicable standai'd of care. However, the panel found Columbia Lakeside Hospital did fail to comply with the appropriate standard of care.

[3Plaintiffs’ petition alleged Columbia Lakeside Hospital, Ana Bergeron, R.N., and Dr. Megison are qualified health care providers and those claims would, therefore, fall under the Louisiana Medical Malpractice Act. The petition alleged LWSC and Locantro are not qualified health care providers, therefore, plaintiffs allege the claims against them do not fall under the Act.

The LWSC filed a motion for summary judgment which was denied on August 5, 2003. The trial court found genuine issues of material fact existed. This Court denied LWSC’s writ application September 11, 2003. On March 14, 2006, LWSC and its insurer LLMIC filed another Motion for Partial Summary Judgment arguing that the LWSC is a qualified health care provider and is, therefore, covered under the medical practice act. In its memo in support of its motion for partial summary judgment, LWSC referenced previous court proceedings that had taken place before the filing of the current petition. In these previous proceedings, the trial court granted LWSC’s exception of prescription finding it to be a qualified health care provider and finding the matter must first go before a medical review panel, which the matter did. The LWSC further explained that the plaintiffs had settled with Columbia Lakeside Hospital in November 2001.

LWSC claimed in its motion that it was a qualified health care provider in 1997 because the surcharge had been paid on its behalf to the Patients Compensation Fund (“PCF”). A letter had been sent from the PCF in September 1998 indicating that LWSC was not qualified because the surcharge had not been paid. However, the letter indicated that Drs. Andonie and Me-gison were qualified and had paid the surcharge.

In the previous proceedings, LWSC had filed an exception of prematurity arguing that since the doctors were qualified, the limited liability company, LWSC, was also qualified and the insurance policy provided coverage for all employees ofJJLWSC. The trial court granted the exception, found LWSC to be a qualified health care provider because the physicians practicing as the LWSC were qualified. However, when plaintiffs filed their lawsuit, they alleged LWSC was not a qualified health care provider and a medical review panel was not necessary before filing of the petition, based on the letter previously received from the PCF.

In its motion for summary judgment, the LWSC argued that the previous ruling granting the exception of prematurity correctly found it to be a qualified health care provider because the doctors that comprised the LWSC company were qualified health care providers. The LWSC provided certificates of insurance for each of the doctors and argued that each had paid a surcharge to the PCF in 1997. LWSC alleged it was not necessary for the professional corporation to pay an additional surcharge itself.

A hearing on the motion for summary judgment was held April 12, 2006 and the trial court entered a judgment on April 26, 2006 granting the motion for partial summary judgment and finding LWSC to be a qualified health care provider. No supervisory writs or appeals were taken from this judgment.

On September 7, 2006, defendants Dr. Megison, LWSC, and LMMIC filed a Motion to Quash a Subpoena Duces Tecum from the plaintiffs. A hearing was held and at the hearing the plaintiffs agreed that the purpose of the subpoena duces tecum was to attempt to discover evidence regarding LWSC’s status as a qualified health care provider. During the hearing, the trial court stated the April 26, 2006 judgment, which found LWSC to be a qualified health care provider, was not a final judgment. However, the court went on to state it would not allow the plaintiffs to engage in a fishing expedition regarding the issue previously resolved by the court. The court further stated that it had reviewed the documents submitted with the motion for partial summary judgment, entered the summary judgment and |sthe plaintiffs had plenty of time to complete discovery before that time. The trial court also found the subpoenas were not properly served. A written judgment granting the motions to quash was signed by the trial court November 15, 2006.

Plaintiffs filed writs with this Court arguing the trial court erred in granting the motions to quash. This Court denied the writ application on February 6, 2007 finding no abuse of the trial court’s discretion. The Louisiana Supreme Court also denied writs on this issue.

On March 21, 2007, defendants filed a motion for partial summary judgment arguing the plaintiffs had already received the full amount recoverable under medical malpractice law when they settled with Columbia Lakeside Hospital for $227,000.00 and with the PCF for $1,950,000.00. Defendants contended the plaintiffs had no further claim to pursue. A hearing was held on June 19, 2007 and the trial court denied the motion in open court. A written judgment denying the motion was executed by the trial court on July 24, 2007.

On June 21, 2007, defendants filed another motion for partial summary judgment regarding the issue of Vivian Lo-cantro’s status as a qualified health care provider. She was an employee of LWSC and the trial court had previously held that LWSC was a qualified health care provider. Plaintiffs had filed a Fifth Supplemental and Amending Petition alleging Locantro was employed by LWSC as a medical assistant and was not a qualified health care provider. A hearing on this motion was held August 21, 2007. At that hearing, defendants argued that if there is a claim against Locantro, as an employee of LWSC, she should be considered a qualified health care provider because LWSC is a qualified health care provider. Thus, the claims against her must first be reviewed by a medical review panel.

| (¡Defendants also filed a motion for new trial on the motion for partial summary judgment regarding the issue of the plaintiffs’ previous settlement with Columbia and the PCF. Additionally, the plaintiffs filed a motion to revise the partial summary judgment previously granted by the trial court finding LWSC to be a qualified health care provider. Plaintiffs sought to have the April 26, 2006 judgment finding LWSC to be a qualified health care provider to be revised because they alleged LWSC did not pay the required surcharge to the PCF as required by law for all of its health care providers. First, plaintiffs argued the judgment could be revised pursuant to La. C.C.P. art.1915 since the previous judgment was not a final judgment. Second, plaintiffs argued LWSC was not a qualified health care provider because, pursuant to La. R.S. 40:1299.42, in order to be a qualified health care provider without paying an additional surcharge, LWSC would have to show that the surcharge was paid for every shareholder, partner, member, agent, or employee who was eligible for qualification.

Plaintiffs argued there was a genuine issue of material fact concerning whether the surcharge was paid for all physicians or employees of LWSC. Plaintiffs also submitted a new affidavit in which Kim stated she had been treated by a different doctor at LWSC during her pregnancy and LWSC had not shown proof of payment of a surcharge for that doctor. Therefore, plaintiffs claimed summary judgment previously granted by the trial court finding LWSC to be qualified was improper and should be revised.

In addition, plaintiffs again addressed the qualification of Locantro in the memo in support of the motion to revise. Plaintiffs argued Locantro was an employee of LWSC and no surcharge was paid on her behalf for 1997 or 1998 because she was only a medical assistant. Since no surcharge was paid on her 17behalf by LWSC, plaintiffs argued Locantro was ineligible for qualification, thus LWSC would not be qualified either, at least for the acts of Locantro.

In opposition to the motion to revise, defendants argued fust that plaintiffs had provided no evidence that the new doctor who allegedly treated plaintiff was employed by LWSC. Further, defendants submitted an insurance policy declaration sheet from 1997 and 1998 showing that doctor had indeed paid a surcharge to the PCF for those years. Additionally, defendants alleged that LWSC was qualified and responsible, as a qualified health care provider, for the acts of its employees, even if each employee cannot be independently qualified.

A hearing was held on August 21, 2007 on defendant’s motion for partial summary judgment, defendant’s motion for new trial, and some exceptions previously raised by defendants. The trial court ruled in open court denying the motion for new trial for the same reasons the summary judgment was granted in the first place, denying all exceptions, and granting defendant’s motion for partial summary judgment regarding Locantro’s status, finding her to be qualified under LWSC. Also in open court, the trial court designated the granting of the motion for partial summary judgment to be a final judgment. A written judgment was executed September 28, 2007 granting defendant’s motion for partial summai'y judgment regarding Lo-cantro’s status as qualified and designating that judgment as final. The judgment also denied defendant’s motion for new trial regarding the previous motion for partial summary judgment on the issue of the plaintiffs’ previous settlements, and denied all defendants’ exceptions.

On October 10, 2007, defendants filed a Request for Written Reasons for Judgment. The trial court provided Reasons for Judgment November 9, 2007. However, these written reasons referenced the trial court denial of plaintiffs’ motion to revise the partial summary judgment previously granted by the trial court |sfinding LWSC to be qualified. We note the actual judgment denying this motion to revise was not signed until November 16, 2007, and the matter had been heard by the trial court September 19, 2007 and taken under submission.

Then on November 28, 2007, the trial court provided Written Reasons for the September 28, 2007 granting of the motion for partial summary judgment regarding Locantro’s status. Plaintiffs filed a Petition for Appeal on December 3, 2007 regarding the granting of the motion for partial summary judgment on the issue of Locantro’s status that had been designated as final. On February 22, 2008, plaintiffs filed a Motion to Designate Judgments as Final Judgments. A hearing was held on April 8, 2008 and on April 14, 2008, the trial court signed a judgment designating the April 26, 2006 judgment granting the motion for partial judgment finding LWSC to be qualified as final and designating the November 16, 2007 judgment denying the motion to revise partial summary judgment to be final. Plaintiffs then filed this appeal on April 8, 2008.

DISCUSSION

On appeal, plaintiffs assert four assignments of error. First, plaintiffs assert the trial court erred when it ruled Locantro was a qualified health care provider on the grounds that the court had previously held LWSC to be a qualified health care provider and Locantro was an employee of LWSC. Second, plaintiffs contend the trial court erred when it ruled LWSC was a qualified health care provider because it had not paid a surcharge for 1997 and failed to prove that each of its shareholders, partners, members, agents, officers, or employees who are eligible for qualification as a health care provider are qualified health care providers and instead only provided evidence that three of its physicians were qualified. Third, plaintiffs argue the trial court erred when it denied plaintiffs’ motion to revise the ruling that LWSC is qualified. And finally, plaintiffs argue the trial court erred |9when it improperly refused to permit the plaintiffs to conduct discovery necessary to show that LWSC was not qualified.

Assignment of Error Number One

Plaintiffs argue that Locantro does not meet the definition of a health care provider, pursuant to the Medical Malpractice Act, therefore, she is ineligible for coverage. We agree with the plaintiffs that Locantro does not fall under the definition of a health care provider in La. R.S. 40:1299.41 and cannot be independently qualified as a qualified health care provider. However, we disagree with plaintiffs and find that she is eligible for coverage under the Medical Malpractice Act as a result of her employment with LWSC.

Locantro was employed as a medical assistant with LWSC. LWSC is a limited liability company, and under the definition in La. R.S. 40:1299.41, LWSC is a health care provider. Plaintiffs have alleged Lo-cantro engaged in acts of medical malpractice while in the course and scope of her employment with LWSC. We find, as the trial court did, that LWSC was a qualified health care provider and this issue is discussed in detail in assignment of error number two below.

An employee may be covered, and considered qualified, if included in the insurance coverage provided to a qualified health care provider. LWSC had such an insurance policy that covers alleged acts of malpractice. The insurance policies issued to LWSC also indicate that its employees are covered by the policy. For the year of 1997, LWSC has produced an insurance policy from St. Paul which provides that employees of LWSC are additional insureds. LWSC has also produced an insurance policy with LAMMICO for the year 1998 which also list employees as additional insureds. Therefore, Locantro was covered by the insurance policies issued to LWSC for the years 1997 and 1998. Since she is covered under the insurance policies as an employee of LWSC, and LWSC is a |inqualified health care provider, then Locantro is also considered a qualified health care provider and any medical malpractice claims against her fall under the Medical Malpractice Act.

Therefore, the trial court correctly granted defendant’s motion for partial summary judgment on the issue of Locan-tro’s status as a qualified health care provider.

Assignments of Error Number Two and Three

Plaintiffs argue essentially the same argument in both assignments of error number two and three. Plaintiffs argue that LWSC is not a qualified health care provider. First, we note that this issue is on appeal with us after the motion to revise was denied from the previous granting of the summary judgment in April 2006. While an appeal of the April 2006 judgment is untimely, we will address this issue of the qualification of LWSC since it is the subject of the 2007 motion to revise, which was designated a final judgment and has been timely appealed.

We agree with the trial court and find that LWSC is a qualified health care provider under the Medical Malpractice Act. First, LWSC clearly falls under the definition of a health care provider in La. R.S. 40:1299.41 A. LWSC is a limited liability company whose business is conducted principally by health care providers. Second, LWSC is qualified pursuant to La. R.S. 40:1299.42, which provides, in part:

A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided in Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with | nqualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider ...

LWSC has provided proof of financial responsibility and shown that the necessary surcharges were paid. LWSC has presented evidence that in 1997 there were three physicians that comprised the limited liability company: Dr. Andonie, Dr. Megison, and Dr. Fusilier. Certificates of insurance have been submitted for each of these individual doctors from St. Paul and LAMMICO for the years 1997 and 1998, respectively, which indicate malpractice insurance coverage for each physician. In addition, each physician paid the necessary surcharge to the PCF for those years. Since LWSC is a limited liability company, and in 1997 consisted of those three physicians, it was only necessary for financial proof and surcharges to be provided for those three individual physicians. Once that was accomplished, LWSC was automatically deemed qualified. It is not necessary for LWSC to pay an additional surcharge.

Therefore, we find LWSC to be a qualified health care provider and find the trial court correctly granted the motion for partial summary judgment and correctly denied the motion to revise the previous judgment.

Assignment of Error Number Four

By this assignment of error, plaintiffs argue the trial court refused to permit them to conduct discovery necessary to show LWSC was not qualified. Specifically, plaintiffs argue the trial court erred in granting defendants’ motion to quash plaintiffs’ subpoena duces tecum in 2006. We will not address this issue on this appeal. Following the granting of the motion to quash, plaintiffs filed a writ application with this Court. This Court denied the writ application on February 6, 2007. The Louisiana Supreme Court denied writs April 20, 2007. Therefore, this issue has been completely disposed of.

| ^Accordingly, we affirm the trial court’s judgment granting partial summary judgment in favor of defendants and finding Locantro to be a qualified health care provider and affirm the trial court’s denial of the plaintiffs’ motion to revise the partial summary judgment regarding the finding that LWSC was a qualified health care provider.

AFFIRMED.


author: MICHAEL E. KIRBY, Judge.

text:
    Neil C. McASKILL v. AMERICAN MARINE HOLDING COMPANY, et al.
    No. 2007-CA-1445.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2009.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, Landry & Swarr, L.L.G., New Orleans, LA, for Plaintiff/Appellant.
    Susan B. Kohn, Douglas R. Kinler, Michael D. Harold, James R. Guidry, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Defendant/Appellee (Eagle, Inc.).
    Samuel M. Rosamond III, Adam De-Mahy, Crawford Lewis, PLLC, New Orleans, LA, for Defendant/Appellee (Commercial Union Insurance Company).
    David J. Bourgeois, Corey M. Oubre, Jaime M. Cambre, Duplass Zwain Bourgeois Morton Pfíster & Weinstock, Metair-ie, LA, for Defendant/Appellee (Branton Insulations, Inc.).
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

| tPIaintiff appeals the trial court’s granting of defendants’ motion for summary judgment.

This litigation arises out of a claim for personal injuries filed by Neil McAskill for his contraction of malignant mesothelioma while he worked at the American Marine facility in New Orleans. Defendants Eagle, Inc. (formerly known as “Eagle Asbestos & Packing Co., Inc.” hereinafter “Eagle”), Branton Insulations, Inc., (hereinafter “Branton”), and Commercial Union, liability insurer of Branton, moved for summary judgment, arguing that there was no evidence that Eagle or Branton ever supplied asbestos insulation to American Marine, plaintiffs employer.

In opposition to those motions for summary judgment, plaintiff offered the following items of evidence:

1. Neil McAskill’s November 28, 2006 deposition.
2. Robert Honold’s September 24, 2007 deposition.
3. Sworn testimony of Fred Schuber,, President of Eagle.
|24. A Letter dated October 5, 1972,
from Fred Schuber to Frenchie Borde-lon, the insulation Superintendent of Avondale Shipyards.
5. Documents establishing that Eagle was the authorized insulation contractor for PABCO in Louisiana in the 1950’s-'60’s.
6. A Fiberboard document dated September 29, 1971, in which this manufacturer of PABCO, announced a new asbestos-free version of its previously asbestos-containing PABCO.
7. Sworn testimony of Eagle, as represented by Fred Schuber.
8. Sworn testimony of Tom Branton, President of Branton Insulations.
9. The affidavit of plaintiffs wife, Barbara, who worked at American Marine in the accounting department for roughly ten years beginning in August of 1969, which states she recalls processing invoices from Branton Insulations.

Defendants’ Motion for Summary Judgment argued that plaintiff presented no evidence that Mr. McAskill was exposed to any specific Eagle or Branton asbestos products by way of sale, distribution, supply and/or installation. The trial court granted Eagle and Branton’s motions.

DISCUSSION

Our review of this grant of summary judgment is de novo but governed by La. C.C.P. art. 966. Shambra, v. Roth, 04-0467, p. 2 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257, 1259.

Summary judgments are favored and factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and |3all doubt must be resolved in the opponents’ favor. Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 17 (La.2/29/00), 755 So.2d 226; Berthelot v. Avondale Industries, Inc., 2002-1779, (La.App. 4 Cir. 2/26/03), 841 So.2d 91; writ denied, 854 So.2d 368.

The trial court is not permitted to make credibility determinations on a motion for summary judgment. Independent Fire Insurance Co., supra p. 16, at 236. It is not the function of the district court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Knowles v. McCright’s Pharmacy, Inc., 34, 559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

In the instant matter, the plaintiff asserts that the district court erred by granting summary judgment in favor of Eagle and Branton. Appellant asserts that he presented evidence that a genuine issue of material fact exists, and that such evidence should be evaluated by a trier of fact to determine whether plaintiff was exposed to Eagle’s asbestos containing products and/or Branton’s. Specifically, as regards Branton, he contends purging of sales records constitutes an attempt to conceal asbestos information so as to avoid liability.

It is scientifically proven, and legislatively recognized, that a causal relationship exists between asbestos exposure and the occurrence of mesothelioma.

|4The deposition of Mr. Robert J. Honold identifies both Eagle and Branton as insulation vendors to American Marine, plaintiffs employer, and states that the insulation products sold to American Marine, especially the insulation for the exhaust systems, contained asbestos. Mr. Honold knew the plaintiff as an employee of American Marine, a fact that is not contested. Mr. Honold stated that he was familiar with both Kaylo and Pabco (asbestos containing insulation products of the time) and that they were used at American Marine.

As to the basis for Mr. Honold’s testimony that Eagle was a vendor to American Marine, Mr. Honold’s responded:

When I got involved in the purchasing side of it, the customer relationships were already established. The vendors and so forth were all there. You used the same people mostly over and over.

Moreover, Mr. Honold related that American Marine got mostly pipe insulation from Eagle, that he was put in charge of phasing out the asbestos containing insulation.

The record contains the sworn testimony of Fred Schuber, the President of Eagle, who acknowledged that prior to the early 1970s, all industrial pipe insulation contained asbestos. As corporate representative of Eagle, he believed the switch from the old asbestos pipe insulation to the asbestos-free pipe insulation to have been made around the mid-seventies.

The record also contains an October 5, 1972 letter from Mr. Schuber, to Frenchie Bordelon, the Insulation Superintendent of Avondale Shipyards, in which Mr. Schuber states:

| a As you are well aware, the use of asbestos-free insulation materials is something that is fairly new and, while all of the recognized manufacturers are in the process of developing asbestos-free products, it will probably be some time before full production is attained.

This October 5, 1972 letter also acknowledges that Eagle represented Pabco Manufacturers. Substantiating this statement, plaintiff also includes in the record a January 10, 1953 Agreement establishing Eagle Asbestos & Packing Co., Inc, as a Pabco Engineering Service Unit, thereby giving Eagle, inter alia, some distributing rights for Pabco’s asbestos-containing insulation products. The record also includes another Authorized Insulation Contractor Agreement dated August 22, 1961, between Eagle and another manufacturer, Phillip-Carey Manufacturing Co., of asbestos containing insulation.

Also in the record is a September 29, 1971 document from Fiberboard, the manufacturer of Pabco, announcing a new asbestos-free version of its previously asbestos-containing Pabco. This announcement artfully notes the change in phasing out the asbestos containing insulation and limiting its future sale to present inventory if and only if written request is also made for it by the buyer. The announcement goes on to state that if it generates questions, to call the regional sales managers. Not once in the announcement are health concerns raised as the motivation for the change.

Mr. Neil McAskill testified by deposition that beginning in 1952 he was exposed to asbestos as a mechanic working for American Marine in one building that contained the pipe shop and other facilities. This exposure was by virtue of working with and around asbestos containing insulation products including pipe 1 fiinsulation and cloth. Moreover, he testified he had hands on experience applying insulation.

Additionally, the affidavit of Barbara McAskill establishes that she worked in the accounting department at American Marine for approximately ten (10) years beginning in August of 1969, and she recalls processing invoices from Branton In-sulations.

In essence, Eagle argues that Mr. Ho-nold’s response is based upon circumstantial evidence and he has no documents to confirm his belief. Branton makes similar arguments, akin to asserting that the plaintiff/deceased employee need prove exactly what the corporate offices knew. This is not the test for summary judgment. Here, plaintiff has put forth evidence that permits a reasonable mind to conclude that Eagle and Branton sold asbestos containing insulation products to American Marine. Thus, American Marine employees, such as Mr. McAskill, were exposed to their asbestos containing products.

Also, in Branton’s case, the employee cannot be expected to produce documents from Branton when its corporate representative testified that Branton had “purged”/destroyed relevant documents/evidence in 1982.

Defendants raise the applicability of Thibodeaux v. Asbestos Corp. Limited, et al., 2007-0617 (La.App. 4 Cir. 2/20/08), 976 So.2d 859. We find Thibodeaux distinguishable in that this Court found that the plaintiffs neither produced evidence that asbestos was used by the defendant while Mrs. Thibodeaux worked in the facility, nor produced evidence to show that Mrs. Thibodeaux was exposed |7to asbestos if it was present. Thibodeaux, 07-0617, p. 13, 976 So.2d at 867. In the case sub judice, the plaintiff has presented evidence to substantiate that he was actively engaged in working with and actually handling asbestos insulation.

Vodanovich v. A.P. Green Industries, Inc., 03-1079 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, stands for the proposition that in latent mesothelioma cases, where the human body is injured over time due to chemical exposure, the plaintiff need show only that the defendant’s asbestos-containing product was a substantial factor in causing his alleged disease. This burden can be met by simply showing that he was actively working with asbestos-containing materials, such as insulating pipes or exhaust systems. Grant v. American Sugar Refining, Inc., 06-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746. Moreover, Voda-novich, supra, is likewise distinguishable because that record lacked evidence that the plaintiff was exposed to any asbestos fibers as a result of any repair work done by thé ship repair companies.

Medical science has proven a causal relationship between asbestos exposure and mesothelioma above background levels. Thus, such asbestos exposure is a causative factor in producing the disease. Torrejon v. Mobil Oil Co., 03-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877.

In Hennegan v. Cooper/T. Smith Steve-doring Co., 2002-0282 (La.App. 4 Cir. 12/30/02), 837 So.2d 96, we acknowledged certain medical principles regarding asbestos cases. First, brief exposures to asbestos have caused mesothelioma in persons decades later. Second, every non-trivial exposure to | ¡¡asbestos contributes to and constitutes a cause of mesothelioma. Hen-negan, supra, p. 8-17, at 103-107.

It is reasonable to conclude that plaintiffs work in the shipyard with asbestos-containing insulation actively exposed him to greater than a background level. At any rate, this creates a genuine issue of material fact that is not proper for summary judgment.

The standard of review for granting summary judgment is whether there exist genuine issues of material fact and, in this matter, any doubt must be resolved in favor of the non-moving party. La. C.C.P. art. 966. Here, whether the depositions in the record and circumstantial evidence can convince a trier of fact that plaintiff, Mr. McAskill, was exposed sufficiently to asbestos containing materials sold by Eagle and Branton is one upon which reasonable minds may disagree. Grant v. American Sugar Refining, Inc., 06-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, [analyzed the sufficiency aspect to the test for asbestos exposure]. Therefore, it is not susceptible to summary judgment.

For the aforementioned reasons, we reverse the trial court’s granting of summary judgment and remand for further proceedings in accord with this opinion.

REVERSED AND REMANDED.

      . We take judicial notice of the facts that led to the promulgation of OSHA regulations which were enacted to cease the use of asbes-los because of the adverse health consequences that inflicted those who were exposed to it.