author: CARAWAY, J.

text:
    ELITE COIL TUBING SOLUTIONS, LLC, Plaintiff-Appellant v. Weldon Joseph GUILLORY, Bobby Gill, Jr. and HCC-High Capacity Coil, LLC, Defendants-Appellees.
    No. 47,205-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Bodenheimer, Jones & Szwak, LLC, Shreveport, LA, by David A. Szwak, for Appellant.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Michael D. Lowe, Brian A. Homza, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

| jThe trial court granted a partial summary judgment in favor of the defendant employee finding a noncompetition clause in an employment agreement unenforceable for failure to specify parishes. Finding that the appellant failed to produce factual support in opposition to appellees’ motion to establish that it could satisfy its eviden-tiary burden to enforce the clause, we affirm.

Facts

Elite Coil Tubing Solutions, LLC (“Elite”), a limited liability company established in 2006, has its principal place of business in Caddo Parish. The business services the oilfield, including coil tubing services. Elite hired Weldon Guillory on June 15, 2006, as its Manager of Operations. Guillory worked in that capacity until his resignation on October 15, 2010.

Upon his employment, Guillory and Elite entered into an employment agreement which included the following paragraph (hereinafter the “Noncompetition Covenant”):

11. Restrictive Covenant. The business of the Company is coil tubing. During the term of this agreement and for the period of two years after the termination or expiration of the Agreement, the Employee shall refrain within a radius of 200 miles from the [all] places of the Company’s business, from directly o[r] indirectly, owning, managing, operating, controlling, being employed by, participating in, or being connected in any business similar to the Company within that same area during that same period. After termination or expiration of the Agreement, these restrictions on competition and solicitation shall not be applicable in any area within which the Company permanently ceases to carry on a like business. In the event of the Employee’s actual or threatened breach of this paragraph, the Company shall be entitled, without the |2necessity of a bond, to a temporary restraining order and injunction restraining the Employee from violating its provisions. Nothing in this Agreement shall be construed to prohibit the Company from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages from the Employee.
In the event the Company is required to hire an attorney to enforce, enjoin or defend this restrictive covenant or any other term of the Agreement, the Employee shall reimburse the Company for the reasonable attorney’s fees and costs associated therewith.
Because of the fact that it would be difficult and impractical to calculate and ascertain the damage the Company would sustain from the breach of this covenant by Employee, the parties hereto assess and fix as liquidated damages for any breach, the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO/lOO ($250,000) DOLLARS. Employee further agrees to pay such liquidated damages along with all costs and expenses incurred by the Company, including reasonable attorney’s fees, in enforcing the payment of such damages. In the event Employee breaches this covenant, and in the further event Employee pays the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO/100 ($250,000) DOLLARS and all the costs therewith, Employee shall therefore be permitted to compete and solicit within the above-specified geographic area.

The employment agreement also contained a Disclosure of Information clause which prohibited Guillory from disclosing Elite’s customer list to anyone. It did not include a severability/reformation clause.

Elite also hired Bobby Gill on July 15, 2008, and he worked as Elite’s controller until his resignation on December 18, 2010. Gill executed no employment agreement with Elite during his employment.

After leaving the employment of Elite, both Guillory and Gill began working for HCC-High Capacity Coil, LLC (“HCC”). The limited liability company had its principal place of business and headquarters located in Bossier Parish, some 25 miles from Elite’s headquarters. HCC is allegedly a direct competitor with Elite in the business of coil tubing services.

LOn March 24, 2011, by letter, Elite requested that both Guillory and Gill cease any competitive activities. When no response was forthcoming, Elite instituted suit against the two former employees and HCC (“the defendants”) on June 16, 2011. In relevant part, the suit alleged that HCC was “created through a partnership of Gill and Guillory, who each hold membership and ownership interests in the company.” Gill and Guillory deny these facts. Further, Elite alleged that Guillory contacted numerous vendors during his employment with Elite and gathered Elite’s customer price and equipment lists and confidential business records. Elite claimed that Gill and Guillory “contacted numerous employees of plaintiff and used wage information from records to solicit away and hire new employees.” Elite urged that Gill and Guillory “contacted vendors and acquired equipment used to directly compete with plaintiff.” Elite also alleged that during their employment, Gill and Guillory discussed establishing a competing business and that Gill continued to work for Elite and failed to disclose his partnership with Guillory. Elite asserted that Gill and Guil-lory “secured assets including coil tubing units to directly compete with plaintiff in Parishes in Louisiana where plaintiff conducts business and operations.” Elite urged that both Gill and Guillory “knew each Parish in Louisiana where plaintiff conducted and conducts business and operations due to their positions held in plaintiffs business” and that the “business operations and solicited work by defendants, Guillory and Gill and HCC, is well within the 200-mile radius of plaintiffs business operations and base in Caddo |4Parish.” Additionally, the suit alleged defendants’ violation of Louisiana Unfair Trade Practices law.

Elite sought damages, including the above-noted liquidated damages provided for in the employment agreement, specific performance under the employment agreement, declaratory judgment declaring the validity of the employment agreement, and injunctive relief for all claims. Nevertheless, no preliminary injunction proceeding was conducted.

On July 6, 2011, the defendants filed a motion for partial summary judgment seeking dismissal of any claims arising from the breach of the Noncompetition Covenant for failure to comply with La. R.S. 23:921 because no parishes were specified. In support of the partial summary judgment, the defendants included the affidavits of Gill and Guillory who admitted that they worked for Elite and were currently employed by HOC. Both denied being members of HCC. Gill stated that he did not execute a restrictive covenant with Elite and Guillory admitted that he did. The defendants also attached a copy of Guillory’s employment agreement in support of the partial summary judgment.

Elite opposed the summary judgment contending that the defendants established advertising in all locations where it conducted business and had formed an internet web site for purposes of spreading information, advertising and directly competing with plaintiff in areas located within a 200-mile radius of plaintiffs operations. Elite also argued that the restrictive Non-competition Covenant complied with La. R.S. 23:921 because at the time of its execution, it was impossible to anticipate in which | ^parishes Elite might do business. Attached in opposition to the summary judgment was the affidavit of James Hardy, the sole owner and member of Elite, who offered only that Elite “did business in certain Parishes and Counties, in Louisiana and Texas.”

The partial summary judgment came for hearing on September 22, 2011. After hearing the arguments of counsel, the trial court granted partial summary judgment in favor of the defendants stating as follows:

I just wanted to make it clear again that the only thing before us today is what’s in Paragraph 11, and I think that everybody would acknowledge that in the Second Circuit as of now that Paragraph 11 does not comply with 23:921C, and so it is unenforceable, and so any request for injunctive relief or declaratory judgment or the request for liquidated damages under the provisions of that paragraph the defense should prevail on its motion for partial summary judgment.

This appeal by Elite ensued.

Discussion

On appeal, Elite raises its same argument presented in opposition to the partial summary judgment, that the Non-competition Covenant is legally sound and not overly broad. Due to the parties’ inability to anticipate where Elite’s business operations would “move and flow over time,” Elite claims that the 200-mile area was justified. Elite argues that La. R.S. 23:921 does not require that each parish or county be stated by name and that it was acceptable “for Appellant and Guillory to agree that the [200-mile radial linear] geographic limitation was specific.” In oral argument before this court, Elite further contends that the 200-mile radius was intended to reach from the location of any oil well site where Elite may be performing well services on and after the termination of Guillory’s employment. Elite also | (¡contends that the trial court erred in not finding La. R.S. 23:921(C) vague and ambiguous, in failing to reform the Noncom-petition Covenant and in dismissing Elite’s claims for declaratory, injunctive and liquidated damages.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. USAA Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544; Laird v. Laird., 46,459 (La.App.2d Cir.6/22/011), 69 So.3d 1173; Pruitt v. Nale, 45,483 (La.App.2d Cir.8/11/10), 46 So.3d 780. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Duncan, supra; Laird, supra. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. The proceeding is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’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 17factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). The failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Laird, supra; Pruitt, supra; Upchurch v. State, ex rel. Louisiana Dept. of Transp., 45,761 (La.App.2d Cir.1/5/11), 57 So.3d 361, writs denied, 11-0362, 11-0363 (La.5/20/11), 63 So.3d 977.

On a motion for summary judgment, the district court cannot make credibility determinations or weigh conflicting evidence. In deciding a motion for summary judgment, the district court must assume that all affiants are credible. Laird, supra; Brooks v. Minnieweather, 44,624 (La.App.2d Cir.8/19/09), 16 So.3d 1244. The credibility of a witness is a question of fact. Laird, supra; Davis v. Delta Bank, 42,529 (La.App.2d Cir.11/7/07), 968 So.2d 1254, writ not considered, 07-2473 (La.2/22/08), 976 So.2d 1276.

In 2006, La. R.S. 23:921 (hereinafter the “Statute”) read in relevant part as follows:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
(2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.
H. Any agreement covered by Subsections B, C, E, F, or G of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.

A noncompetition agreement is to be construed according to the general rules of contract interpretation. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. A covenant not to compete contained in an employment agreement is disfavored in Louisiana because it may function to deprive a person of his livelihood. Such a covenant will be enforced only if it meets narrowly drawn criteria set forth in La. R.S. 23:291. SWAT 24, supra. To that end, La. R.S. 23:291(0 sets forth an [ exception allowing restrictions on competition. Action Revenue Recovery, LLC v. eBusiness Group, L.L.C., 44,607 (La.App.2d Cir.8/19/09), 17 So.3d 999. This exception, however, must be strictly construed and agreements con-fected pursuant to this provision must strictly comply with its requirements. SWAT 24 supra; Regional Urology, L.L.C. v. Price, 42,789 (La.App.2d Cir.9/26/07), 966 So.2d 1087, writ denied, 07-2251 (La.2/15/08), 976 So.2d 176. The lack of a geographical restriction in a non-competition agreement is fatal to the agreement and renders it invalid and unenforceable. Heart’s Desire, L.L.C. v. Edwards, 46,222 (La.App.2d Cir.4/27/11), 2011 WL 1630175; Action Revenue Recovery, supra; Sentilles Optical Services, Div. of Senasco, Inc. v. Phillips, 26,594 (La.App.2d Cir.3/1/95), 651 So.2d 395.

In this court’s recent ruling in West Carroll Health System, L.L.C. v. Tilmon, 47,152 (La.App.2d Cir.5/16/12), 2012 WL 1698145, we reviewed the sufficiency of the evidence by which an employer sought to enjoin its former employee under a non-competition agreement. The employee began new employment activities in health care in Morehouse Parish adjacent to the former parish of his employment, West Carroll. Morehouse was specifically named as a parish within the geographic restriction of the noncompetition agreement. This court first found that the employer met its initial burden by showing that it carried on a like business in More-house due to its sizable client base in that parish. Nevertheless, its territorial client-based interest in Morehouse was only part of the employer’s burden of proof under Section C of the Statute. The employer was also required to |indemonstrate the particular impact upon its business caused by the employee’s new employment activities. For this latter element of proof for the enforcement of a noncompetition agreement under the Statute, the employer’s evidence in Tilmon was insufficient, and the injunction action against the former employee was dismissed.

In the present case, while Elite seeks a permanent injunction, it did not seek preliminary injunctive relief. Nevertheless, Elite’s burden at trial to obtain a permanent injunction under the Noncompetition Covenant was called into question by defendants’ motion for partial summary judgment. Through its opposition to that motion, Elite was required to produce evidence sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). In view of the tests for an enforceable noncompetition agreement as expressed in Tilmon, we find that Elite failed in its opposition to defendants’ motion to show that it might prevail at trial.

First, Elite’s petition does not allege any details of the business it “carries on” in the 200-mile geographic limit. Second, the record contains very little summary judgment evidence detailing the nature of Elite’s business. Next, there was no evidence brought forth by Elite showing its business-interest in Bossier Parish regarding its clients and the number of jobs performed by Elite in that parish. Finally, with its business-interest in Bossier Parish unproven, Elite’s opposition to the motion for partial summary judgment does not demonstrate the particular impact on Elite’s business caused by defendants’ new Bossier venture. Accordingly, the trial |^court’s grant of the motion for partial summary judgment is affirmed on the insufficiency of Elite’s evidence.

Additionally, this insufficiency in Elite’s pleadings and opposition evidence further answers its other argument. Elite’s primary argument was that its 200-mile radius limit is an allowable specification of parishes or portions thereof so as not to offend the geographical requirement of the Statute. Nevertheless, even assuming the possibility for such specification of a geographic limitation under the Statute, Elite’s failure to meet its burden of proof in opposition to the motion for summary judgment likewise requires dismissal of its claim. There was no evidence presented demonstrating how Elite “carries on” its business throughout the 200-mile area which is the essential statutory test for establishing a geographical limit in the first place. Moreover, there was no savings clause in the employment contract allowing by reformation the 200-mile area to be reduced or limited to the immediate area surrounding Elite’s place of business such as Bossier Parish where it “carries on” like business activities. See SWAT 24, supra, pp. 308-309 and its review of AMCOM of Louisiana, Inc. v. Battson, 28,171 (La.App.2d Cir.1/5/96), 666 So.2d 1227, reversed, 96-0319 (La.3/29/96), 670 So.2d 1223.

As a final matter, the trial court’s dismissal of Elite’s claims for liquidated damages is also affirmed. Those penalties relate to the Noncompetition Covenant which was never shown to be enforceable. We express no opinion as to the propriety under the Statute of a liquidated damage provision in a noncompetition provision.

11¡>Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Elite.

AFFIRMED.

      . Louisiana courts have held that non-solicitation clauses are also required to meet the requirements of La. R.S. 23:921.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    WON SUK LEE, M.D., and Kathryn Lee, Plaintiffs-Appellants v. HOLYFIELD CONSTRUCTION, INC., Defendant-Appellee.
    No. 47,204-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.
    Rountree Law Offices, Monroe, LA, by James A. Rountree, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by Gerald M. Johnson, Jr., Alexander J. Mijalis, The Cohn Law Firm, Baton Rouge, LA, by David M. Cohn, Bartley P. Bourgeois, for Appellee, Holyfield Construction, Inc.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Robert Kennedy, Jr., for Appellee, Employers Mutual Cas. Co.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

| ]Dr. and Mrs. Won Suk Lee appeal a judgment based on a jury verdict that awarded them $250,000 in repair or replacement cost under the New Home Warranty Act (“NHWA”), La. R.S. 9:3141-3150, less $83,338 for the balance due on the building contract, and denied their claim for delay damages for late completion of the house. The Lees contest one evidentiary ruling of the district court and the jury’s failure to award delay damages. For the reasons expressed, we affirm.

Factual and Procedural Background

Dr. Lee is an OB-GYN in Monroe; his wife, Kathryn, is a chemist and now a full-time homemaker. Largely on the strength of Joe Holyfield’s (hereinafter “Holyfield”) reputation for building doctors’ homes, in December 2005 the Lees contracted with Holyfield to build them a custom 5,484 sq. ft. (7,600 sq. ft. under the roof) house on an 8-acre tract on Heron Trail in West Monroe. The contract price was $1,132,114 and the completion date was to be November 30, 2006.

Ms. Lee was intensely interested in the construction process, usually visiting the site daily and prompting many change orders. With these changes, the final price rose to about $1.3 million. The house was not ready on November 30, 2006; Holy-field ascribed the delay not to the plethora of change orders but to abnormally wet weather in early 2006.

The Lees moved in on April 4, 2007. Within weeks Ms. Lee began to notice a stale, musty odor, chiefly in the master bath and closet. By early July she spotted “strings of green stuff,” which she reported to Holyfield; two of his workers came out and sprayed the area with bleach. This, 12however, did not abate the problem, and Ms. Lee complained that Holyfield avoided her calls and generally stalled for most of July. The Lees hired an engineer, a home inspector and an industrial hygienist who turned up a host of deficiencies: they compiled a punch list with 44 complaints. Concerned about the possible effect of mold on Ms. Lee and their two daughters, the Lees moved out on September 14, 2007. The house has been vacant ever since.

The Lees filed this suit under NHWA in November 2007. They alleged that the moisture and mold problem, plus myriad other defects, made the house uninhabitable. Holyfield conceded that various items were indeed defective, but maintained that he could repair them if only the Lees let him.

The case proceeded to a six-day jury trial in November 2010. The evidence was extremely detailed, as the Lees, Holyfield and their respective experts discussed all 44 items on the punch list. The Lees’ expert contractor, Warner, testified that repairs would cost at least $525,000; Holy-field and his expert environmental engineer, Dowling, estimated that repairs and mold remediation would not exceed $47,500. The Lees admitted that they never paid Holyfield his final $83,338 draw. Dr. Lee testified that at one point he asked Holyfield to buy back the house for $1.3 million, if the problems could be so easily addressed, but he declined; Holy-field conceded at trial that he could not afford to buy the houses he built.

Is Overview of Trial Evidence

Because the issue on appeal is an evi-dentiary ruling, this court will not belabor the profuse evidence covering all aspects of the trial. The only issue germane to the appeal is the brick. Prior to construction, Holyfield drove Ms. Lee around to various buildings in Monroe, showing her exterior brick. Their testimony differed, but Ms. Lee’s choice, either suggested or merely approved by Holyfield, was an antique, sun-dried, southwestern-style brick that everyone agreed was artistically striking. Unfortunately, this style of brick is much more porous than modern, kiln-baked brick, and was unsuited to the Lees’ house, in which one wall was partially submerged into the slope of the terrain. The Lees’ experts also testified that workers improperly applied mortar on the corner joints, left inadequate space (a vapor barrier) between the brick and wallboard, improperly installed flashing at the base of the walls and around the windows, and failed to install “weep holes” in the walls. Because of these deficiencies, rainwater constantly soaked into the west wall and could not escape, leaving the interior wall damp and prone to mold. At trial, Holy-field admitted that the brick had to be removed and replaced with a modern brick.

About two weeks before trial (and after discovery deadlines had run) another round of heavy rain pelted the area; the Lees argued that on a check of the vacant house, they discovered, for the first time, a puddle of water in a closet by the west wall. They got their new contractor, Warner, to remove all the exterior brick from the west wall; they argued that this was to pinpoint the cause of the problem. Holy-field, however, argued that the Lwater situation was “staged,” primarily so the jury would think the house was not substantially complete and the contract never fulfilled. Holyfield moved to exclude any testimony concerning what Warner found when he removed the bricks.

The district court granted Holyfleld’s motion, noting that the Lees provided no reports to the defense, and that allowing expert testimony at that late date would amount to “trial by ambush.” On the final day of trial, the jury toured the house, but the court admonished them that the wall had been only recently removed. The Lees’ experts were not permitted to testify about what they just recently found inside the wall.

Verdict and Judgment

In response to special interrogatories, the jury found the house was defective because Holyfield failed to comply with building standards; repair or replacement cost was $250,000; the Lees failed to make reasonable efforts to mitigate the damage; the house was not substantially complete by November 30, 2006; even though completion did not occur until April 4, 2007, the Lees sustained no damages for late completion; the Lees sustained no nonpe-cuniary damages; and the Lees still owed Holyfield the final $83,338 payment.

Judgment was rendered in accordance with these findings. The judgment also incorporated posttrial rulings assessing expert witness fees of $6,250, incidental costs of $700 and attorney fees of $24,000.

[aThe Lees have appealed, raising two assignments of error.

Discussion: Evidentiary Ruling

By their first assignment of error, the Lees urge the district court erred in refusing to permit testimony concerning what was revealed by the removal of brick in November 2010. They contend that they faced a dilemma when they discovered the puddle in the closet long after the discovery deadline had run: they had to decide whether to ignore the damage or try to discover its cause, and they chose the latter. They felt this was reasonable because res judicata would bar evidence of some other cause. Further, they show that they notified Holyfield’s counsel by email on November 6 and phone call on November 8; Holyfield inspected the site on November 10; and they did not deny him the chance to be present when the brick was removed. They conclude that under these facts, the evidence was relevant under La. C.E. art. 402 and not unduly or unfairly prejudicial. They concede the trial court’s discretion in ruling on the probative value of evidence but maintain that this ruling resulted in gross unfairness and mandates a new trial.

Holyfield replies that the ruling was no abuse of discretion. The brick could have been removed much earlier, as the Lees owned and controlled the house, and the timing right before trial supports the court’s finding of “trial by ambush.” He also argues that the evidentiary ruling did not affect a “substantial right of the party,” under La. C.E. art. 103 A: the Lees already presented copious evidence of alleged defects in the brick wall, especially the porosity of the brick and the narrow vapor barrier, so any additional | ^findings from their llth-hour “destructive testing” were cumulative. Finally, he submits that the Lees failed to proffer the excluded evidence, and thus waived the right to complain on appeal. La. C.C.P. art. 1636; Hudspeth v. Smith, 42,647 (La.App. 2 Cir.11/7/07), 969 So.2d 793.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. The district court has great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Medine v. Roniger, 2003-3436 (La.7/2/04), 879 So.2d 706; Hays v. Christus Schumspert Northern La., 46,408 (La.App. 2 Cir.9/21/11), 72 So.3d 955. On appeal, the court must consider whether the contested ruling was erroneous and whether the error affected a substantial right of the party. La. C.E. art. 103 A; Hays v. Christus Schumpert, supra. If not, reversal is not warranted. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Hays v. Christus Schumpert, supra.

We recognize the- competing claims of prejudice. The Lees alleged that they discovered the puddle of water on November 4 or 5, 2010, long |7after the discovery deadline and shortly after a pretrial conference in which the court agreed to let the jury tour the house. Sensing an opportunity to identify the cause of the leak, they wanted to take down the wall, and they notified Holyfield’s counsel of this several times before they proceeded. Ho-lyfield countered that allowing the jury to see the dismantled wall would create the impression that the house was not completed, and regardless of the rain event that caused this puddle, the Lees had had ample opportunity to examine or disassemble the wall before the eve of trial. On this record we do not find that the court abused its discretion in excluding the requested evidence. Although the Lees’ position may be perfectly sincere, we agree that given the timing, admitting this evidence would have created more prejudice for Holyfield than denying it would have for the Lees.

Moreover, the evidence concerning the defects in the bricks and the construction of the wall was prodigious. The Lees’ home inspector, Burroughs, used infrared tomography to trace the sources of the moisture; he confirmed it was coming through the wall of the master bath and closet because there were no proper roll-out shields, taping on the substructures or flashing on the windows. Their expert in building code compliance, Morris, also testified that the flashing and mortar were improperly installed and the vapor barrier too small. Their expert in industrial hygiene, Grevemberg, confirmed that as early as July 2007 he found excessive moisture in the lower part of several walls. Their expert engineer and architect, Madden, also testified that the wall had no flashing or weep holes, thus allowing moisture to condense and create an environment for mold.

lsOn this showing, the jury found that the house was defective because Holyfleld failed to comply with building standards. The Lees have not shown that any further findings of defects, or new theories of how water entered the wall, would have added to their very comprehensive case of defect or the ultimate verdict. Simply put, we do not find that the exclusion of the new evidence could have had any substantial effect on the outcome of the case. Even if the ruling was error, reversal is not warranted. Hays v. Christus Schumpert, supra.

This assignment of error lacks merit.

Delay Damages

By their second assignment of error, the Lees urge the jury was manifestly wrong in finding that they suffered no damages for the delay in construction. They argue that the jury’s finding of a 125-day delay in completion is simply inconsistent with the denial of delay damages. They also show that Holyfield admitted that Ms. Lee’s numerous change orders did not cause the delay. They con-elude that the judgment should be amended to award construction interest from November 30, 2006, until April 4, 2007, which they calculate at $19,270.55.

Holyfield responds that despite “considerable evidence,” the jury found that the Lees suffered no loss by delaying their move-in until April 4, 2007, and this finding is not clearly wrong.

If a builder violates the NHWA by failing to perform as required by the warranties of the Act, any affected owner shall have a cause of action | ¡¡against the builder for actual damages, including attorney fees and costs, arising out of the violation. La. R.S. 9:3149. Actual damages include losses for undue hardship and delay. Cosman v. Cabrera, 2009-0265 (La.App. 1 Cir.10/23/09), 28 So.3d 1075. The obligor is liable for damages caused by his own delay. La. C.C. art. 1874. Excessive rainfall has been held to excuse the delayed performance of a building contract. Davis v. Tillman, 370 So.2d 1323 (La.App. 2 Cir.1979), and citations therein. Change orders have also been held to excuse delay. King Bros. Bldg. Contractors v. McCullen, 393 So.2d 413 (La.App. 1 Cir.1980).

Holyfield conceded that the house was not finished on time and that much of his work was defective. However, he also testified that the winter and spring of 2005-2006 were “extremely wet,” resulting in delays of “as much as a month” between February and April. While he diplomatically stated that he could not recall how many change orders he received, Ms. Lee acknowledged placing some 35-36 of these. She also described visiting the site virtually every day and taking active interest in every aspect of construction, facts which the jury could have viewed as tending to impede progress. On this record, the jury was entitled to find that the 125-day delay did not primarily result from Holyfield’s failure to perform the contract. We perceive no manifest error, and this assignment lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed at the Lees’ cost.

AFFIRMED.

      . A finding that the house was never completed would remove the limited liability of NHWA. See Thorn v. Caskey, 32,310 (La.App. 2 Cir. 9/22/99), 745 So.2d 653.

      . The Lees concede that the figure listed in Exhibit P-43, $19,733.05, is erroneous.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Ricky L. BROWN, Appellant.
    No. 47,174-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Lavalle B. Salomon, APLC, Monroe, LA, by Lavalle B. Salomon, for Appellant.
    James Edward Paxton, District Attorney, Linda Lee Kinkaid Watson, Damon Daniel Kervin, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

|!Ricky L. Brown was found guilty of attempted illegal use of a weapon, a violation of La. R.S. 14:27(D)(3) and La. R.S. 14:94(A). He was sentenced to nine months’ imprisonment at hard labor with credit for time served, consecutive to a misdemeanor sentence. He appeals. We affirm.

BRIEF OUTLINE OF SALIENT FACTS

On the late evening of September 7, 2009, Ricky L. Brown called the Tensas Sheriffs Office requesting the help of law enforcement at his club, the R & B Lounge. Three deputies were dispatched. While the deputies were en route, the dispatcher notified them of another 9-1-1 call about a man brandishing a gun at the lounge.

The deputies arrived at the lounge and briefly spoke with family members of the victims. They reported that the defendant was holding their children at gunpoint. The deputies could hear noises coming from the pier behind the lounge. The dispatcher, who had remained in constant telephone contact with the victims, informed the deputies that all involved parties were on the pier. The deputies saw the armed defendant on the pier, along with two young men further out the pier. The deputies ordered everyone to get down. All except the defendant complied. Brown dropped his firearm, but did not get on the ground. A deputy moved him away from the gun and the pier.

Following a brief investigation on the scene, deputies learned that the defendant had fired a gun at least once. Brown was arrested and initially charged with four counts of aggravated assault with a firearm, a violation of La. R.S. 14:37.4, and four counts of false imprisonment with a dangerous | ¡weapon, a violation of La. R.S. 14:46.1. Prior to trial, the defendant’s charges were amended to four counts of false imprisonment with a dangerous weapon, a violation of La. R.S. 14:46.1, and illegal use of a weapon, a violation of La. R.S. 14:94(A).

TESTIMONY

Tensas Sheriff’s Deputy Jimmy Brown testified that:

• he arrived at the club at the same time as Deputy Gillis and Major Spillman;

• family members told him that the defendant was on the pier with a gun;

• he and Gillis drew their guns and ordered everyone on the pier down;

• he saw the defendant put down the gun he was holding;

• no one else had a weapon;

• two males were on the pier and two females were in a boat;

• the defendant was apparently agitated;

• Spillman advised that a shot had been fired;

• the .357 revolver contained five live shells and one spent cartridge;

• when the defendant was placed under arrest, he was transported first to the hospital because of chest pains and then transported to jail;

• the victims had been drinking at the lounge;

• he had minimal contact with the victims;

• he was unable to determine when or where the weapon was fired;

• no one was struck by a bullet; and

• the spent projectile was never recovered.

| /Tensas Sheriffs Deputy Robert Stroud testified that:

• he was the supervisor of the 9-1-1 center and was on duty when the defendant called requesting law officers at the R & B Lounge;

• he knew the defendant and recognized his voice on the call;

• he dispatched three deputies to the location;

• four minutes later, another 9-1-1 call was received from April McMorris who reported that a man was holding a gun on her and her friends;

• until she called, the deputies had been unaware that a gun was involved;

• he stayed on the phone with McMorris while the deputies were en route;

• all parties could be heard arguing on the 911 recording;

• other victims took turns providing him with information while awaiting the arrival of the deputies;

• he heard the defendant curse and say “back up, back up”; and

• he heard no shots fired during the 9-1-1 call.

Tensas Sheriffs Investigator Mark Guy testified that:

• he booked the defendant;

• the defendant was advised of his rights and acknowledged them in writing;

• Guy read for the jury both statements written by the defendant;

14* he informed the jury that he had been POST-certified;

• he had been taught that officers should not fire warning shots because doing so was tantamount to random firing and could possibly cause injury; and

• random warning shots can also cause situations to escalate unnecessarily.

Tensas Sheriffs Deputy Darrell Gillis testified that:

• he responded to the R & B complaint with Brown and Spillman;

• the three lawmen arrived on the scene about the same time;

• Spillman stayed near the bar while the other two approached the pier;

• the area was dark, so they used flashlights which showed everyone;

• they announced their presence and ordered everyone to the ground;

• the two young males complied;

• the defendant did not comply, though he put his gun down;

• the defendant shouted profanities;

• the defendant was handcuffed, arrested, and Mirandized;

• he transported the defendant to the sheriffs office;

• the victims were not intoxicated or acting belligerently;

• he saw no one else with a gun that night; and

|s* no shots were fired while Gillis was on the scene.

Michael Hayden testified that:

• he was staying at his family’s lake house during the Labor Day weekend;

• he, his girlfriend, Laura Weeks, his cousin April McMorris, and a friend-, Tyler Durosset, were out in a boat swimming and drinking beer;

• they decided to stop by the bar to see if any of their friends were there;

• they tied up at a pier behind R & B’s;

• he knew the pier belonged to the defendant, but he did not believe it would be a problem parking there, analogizing the pier to a parking lot for cars;

• they all approached the bar, but only Laura and April went inside;

• they came back out almost immediately, followed by the defendant;

• the defendant asked for identification;

• none of the four had any ID, so the defendant said they could not enter;

• the four told the defendant that they were all over 21 and they had been to the lounge a few times so he could let them in without identification;

• one of the four told the defendant that Hayden’s father owned a business;

• “things started getting a little aggressive on that point”;

• the females began to walk toward the pier;

• the defendant asked where they were going;

• he had initially told the defendant their boat was docked five piers down;

• he didn’t want the defendant to follow them back or chase them;

R* Laura, April, and Tyler walked toward the boat;

• when Hayden turned to do so, the defendant grabbed his shirt;

• he asked the defendant to let him go, but the defendant would not do so;

• the defendant then ran inside the lounge;

• all four of the victims ran down to the pier to get back onto the boat;

• as they arrived at the pier, they heard a gunshot;

• when they turned, they saw a flashlight;

• the four kept running down the pier;

• the females jumped into the boat;

• the two males were trying to untie the boat;

• the defendant reached the pier with a flashlight and pistol in hand;

• the defendant told the group not to leave or he would shoot them;

• he kept telling the defendant that the group only wanted to leave;

• the defendant would not allow them to do so;

• he pulled the rope from the defendant and said, “We’re gonna leave”;

• the defendant cocked the gun and aimed it at him (Hayden) and threatened to shoot;

• when Tyler approached, the defendant yelled for him to “back up, back up”;

• none of the members of his group ever touched the defendant;

• the defendant used a lot of profanity and threats;

• the shot was loud and was in close proximity to them;

• they heard a gunshot and looked back to see the defendant “right there”; and

17* he realized that the defendant was chasing them when he heard the shot.

April McMorris testified that:

• the four went out on a party barge (boat) for a night ride, drinking beer;

• they docked at the pier, which she thought was owned by the lounge;

• she and Laura were inside the lounge when Laura realized she could not bring her beer inside so she told her she needed to pour it out;

• as they moved to leave, the defendant followed them out the door;

• he asked if they had identification and none of them did;

• they attempted to explain to him that the four of them were of age and had been to the lounge before, trying to get him to let them in;

• she saw this wasn’t working, so she, Laura, and Tyler walked away;

• Hayden remained to talk with the defendant;

• she told Hayden that they didn’t want to go in that “trashy place anyway”;

• the confrontation escalated;

• Hayden then said something to the defendant, who grabbed his shirt collar;

• Hayden told everyone to run, which they did;

• the defendant went into the bar as they ran toward the pier;

• they heard a loud gunshot which caused them to run faster;

• when they reached the pier, the two females jumped into the boat;

• she was digging for the keys and when she finally turned to look, she saw the defendant pulling the boat rope from Hayden and pointing a gun at him;

• Tyler was trying to untie the boat and the defendant was trying to stop him;

Is* the defendant said they would float off before they drove off;

• he also told the group he would blow their heads off;

• the two females hid on the boat and called the police and family members;

• she made their first 9-1-1 call and then gave the phone to Laura;

• she was afraid for the safety of her friends and family members;

• the four of them did nothing to provoke the defendant to this extent; and

• they ran to the pier.

Laura Weeks testified similarly to April McMorris, stating that:

• the group rode the boat to the pier and went to the bar;

• she saw a sign that read, “No outside drinks allowed”;

• she turned around because she had a beer in her hand;

• the defendant approached the group and asked for identification;

• she did not know the defendant, but assumed he was a lounge employee;

• they ran to the pier and heard a gunshot while they were running; and

• the defendant came to the end of the pier after the gunshot as they were untying the boat, as they were frightened and trying to leave quickly.

Thomas Weeks, Laura Weeks’ father, testified that:

• he received a call that the four were being held at gunpoint at the lounge;

• he dressed and went to the lounge along with Hayden’s father and others;

• they could not find the children in the lounge;

• Hayden’s voice was heard coming from the pier;

|s* at that time the sheriffs deputies arrived;

• the parents identified themselves and explained what they knew thus far;

• the parents drove their vehicles down a road leading to the pier;

• they then could see the children at the end of the pier;

• he heard the defendant threaten them to stay away;

• he was unsure if the defendant was referring to the parents or the children;

• the deputies arrived and ordered everyone down;

• the boys complied, but the defendant did not;

• as the defendant was moved from the pier, he asked to approach the victims;

• his daughter was distraught and was crying out of control; and

• he noticed none of the victims were intoxicated.

Michael Ray Hayden, Michael Hayden’s father, testified that:

• he knew the defendant had visited the lounge on at least a few occasions;

• the defendant had given Mr. Hayden a “burn pit”;

• his wife woke him up, and they drove to the lounge;

• they could not find the group inside the lounge;

• after the deputies arrived, they all drove to the pier;

• he could see the defendant holding a gun to his son’s head;

• he saw Tyler trying to keep them separated, and

• he heard the defendant threaten the new arrivals.

| U)Tensas Parish Sheriff Ricky Jones testified that:

• similar incidents had taken place at the defendant’s lounge over the years;

• on April 28, 2006, the defendant sprayed Mace on a brother and sister following an argument about beer being placed on a pool table;

• as they left, the couple was sprayed with Mace;

• the sister was kicked as she was walking out of the door; and

• the defendant was arrested for two felonies, but pled to two misdemeanors.

Tensas Deputy Earnest Spillman testified that he spoke with all of the witnesses but he did not write a written report or make any notes.

Emily Mae Brown, the defendant’s great niece, testified that:

• she was working as a bartender at the lounge on the night of the incident;

• he saw three or four “kids” walk into the lounge and stand around;

• one or two came in with drinks, which was prohibited by lounge policy;

• she saw the defendant walk the group outside;

• she noted that he returned and got a telephone to call the police;

• individuals often arrived at the lounge by boat and docked at the pier; and

• she did not hear the gunshot that night, as she was inside.

The defendant testified that:

• his business, home, and pier are all located in close proximity;

• he did not allow bar patrons to use the pier on a regular basis, due to his fear ^hat an intoxicated person would fall off Pier and drown;

* previously been convicted of a misdemeanor;

• he had an innocent version of the incident described by the sheriff;

In* the victims arrived 15 minutes before the bar was due to close at midnight;

• his attention was drawn to the girls because they had beer in their hands;

• he asked for their identification and asked them to discard the beer bottles;

• none had identification, and they looked underage to him;

• after discarding the bottles, the four left the bar;

• he followed them outside and asked how they had arrived;

• they replied they had parked five piers down;

• Hayden said his father told him he could come to the lounge;

• the group was polite at this point;

• Tyler told him he had been in the lounge on a prior occasion;

• he replied that with no proof of age, they could not enter;

• Hayden then threatened him;

• he asked them to leave, but they started walking off toward his house;

• the group started talking louder and cursing;

• when he asked one of the girls where they were going, she cursed him;

• he told them he was calling the sheriff;

• Hayden tried to knock the phone out of his hand and then ran away;

• they ran toward his house so he went inside and got a light as well as his gun because he was uncertain what might happen as he chased the group;

112* he kept money and equipment in his shed;

• he didn’t know whether they were armed;

• when he got to his house, he could see the pier at this point and the individuals were kicking his rod reels and tackle boxes into the water;

• he hollered at them to stop what they were doing;

• when they did not stop, he fired his gun into the air;

• three of the group jumped into the boat, leaving Tyler on the pier;

• he grabbed and held the rope, telling them to calm down because the sheriffs department was on the way;

• he and the young people continued jawing;

• he believed he was protecting his property, protecting his body and if he didn’t have the gun, he would have been whipped on the pier;

• he shot into the air, not over the water or in the group’s direction;

• he fired only after he “hollered” at the group to stop and they did not do so;

• he kept saying “back up, back up” on the 9-1-1 recording, because Tyler kept advancing toward him and he was unsure of his intentions; and

• $500 worth of his property had been kicked off the pier into the water.

DISPOSITION

The jury found the defendant not guilty of all four counts of false imprisonment, but guilty of the responsive verdict of attempted illegal discharge of a weapon, with a total exposure of one year at hard labor. He was sentenced to nine months at hard labor, consecutive to a misdemean- or sentence.

J^DISCUSSION

Sufficiency

The defendant claims the state failed to present sufficient evidence to support a conviction of attempted discharge of a dangerous weapon in that the state failed to prove that the “shot” fired by the defendant could have resulted in death or great bodily harm. The state counters that sufficient evidence was presented for the jury to find that the shot fired by the defendant could have resulted in death or great bodily harm as required to support a conviction for illegal use of a weapon.

Our law on sufficiency is well settled.

| ^Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being. La. R.S. 14:94(A).

In order to prove illegal use of weapons, the state must prove beyond a reasonable doubt that the defendant (1) intentionally or in a criminally negligent manner discharged a firearm, and (2) that he did so when it was foreseeable that death or great bodily harm to a person might result. State v. Davillier, 46,625 (La.App.2d Cir.11/2/11), 83 So.3d 22.

Our law on the analysis of an attempt is clear.

During the trial of the matter the state presented sufficient evidence for the jury to find that the defendant (1) intentionally discharged a firearm, 11sand (2) that he did so when it was foreseeable that death or great bodily harm to a person might result. The state’s witnesses testified that they were attempting to leave the defendant’s lounge after they were unable to get in and following an argument with the defendant. While running through a dark area between the defendant’s lounge and the pier where their boat was docked, they heard a shot, then shortly after, the defendant was behind them demanding they not leave the area.

The defendant’s testimony during the trial was itself sufficient to establish the essential elements of the offense.

The defendant’s case is distinguishable from State v. Cain, 2009-390 (La.App.3d Cir.11/4/09), 21 So.3d 1104.

| )(iWhile the defendant contends he fired straight into the air, there were others in the vicinity at the time the shot was fired, at minimum, the four individuals he was chasing down the pier. Considering that many individuals were patrons at the lounge that night, it would have been foreseeable that any one of them could have been along the path toward the parking lot behind the lounge at the time the shot was fired. Additionally, all of the victims who testified indicated they heard the shot being fired and reacted to it because they were frightened by the sound of the gunshot and it caused them to run faster toward the boat. Further, the defendant fired the shot during the night in a dimly lit area. See also, State v. Matthews, 2010-1507 (La.App.4th Cir.6/15/11), 70 So.3d 116.

The jury reasonably concluded that the state presented sufficient evidence to meet its burden of proving the defendant illegally discharged his weapon.

Review of Sentence

The defendant argues that the trial court erred in imposing an excessive sentence and that the trial court failed to articulate adequate reasons for justifying the sentence. He urges that a lesser sentence would be more appropriate, considering his background and the instant circumstances.

The state responds that the trial judge adequately considered the guidelines in particularizing the sentence for this defendant and this sentence is not excessive considering his increasingly violent and dangerous responses to the patrons at his bar.

117Our law on the review of sentences is well settled.

The applicable penalty provision of La. R.S. 14:94 provides:

B. Except as provided in Subsection E, whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.

11RThe applicable penalty provision of La. R.S. 14:27(D) provides:

(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

According to the defendant, the trial court failed to consider his health, his work history, his family obligations, or his other personal circumstances. He urges that the trial court’s analysis of this event, and previous altercations, was flawed.

We disagree. During the sentencing hearing, the trial judge exhaustively detailed the reasons for imposing this sentencing, including:

• that a presentence investigation revealed prior misdemeanor convictions;

• that the court presided over the trial of the defendant’s prior misdemeanor convictions, for which he received a suspended sentence;

• the precise analysis of the factors listed in La. C. Cr. P. art. 894.1;

• that there were no mitigating factors present and no justification for the defendant’s actions;

• that his previous misdemeanor convictions and this offense were all committed against his bar patrons, with the level of violence increasing;

• that the court did not feel that the defendant would respond affirmatively to another term of probation;

• that the defendant lacked remorse; and

• that, at trial, the defendant denied his guilt in the prior convictions.

| mThe defendant admits that he did not receive the maximum sentence. Based on the record before this court, it is clear that the trial court carefully considered the appropriate factors in determining a proper sentence. There is nothing here to indicate that the trial court failed to consider any special circumstances or issues surrounding his health, work history, family obligations, or other personal circumstances. The defendant does not favor us with what factors were ignored by the trial court. Without more, it cannot be said that the information contained in the pre-sentence investigation report was insufficient. There is nothing about this sentence that shocks the sense of justice. Considering the defendant’s actions on that night against the unarmed individuals, a one-year maximum sentence would not have been excessive. This nine-month sentence is appropriate.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The defendant blurted out: "I’m not getting down on my own damn property. These m* * * *r — f* * * * *s are trespassing.”

      . "Don’t pull the rope out of my hand,

      . Gist of defendant’s first written statement was that the victims came to his bar without identification and he asked them to leave. They indicated they were "Haydens” and the defendant was making a big mistake. The group told the defendant their boat was about five piers down at a friend’s pier. The Hayden boy started to get smart and the group threatened him. He called the law and when he came out the group ran to his pier. He chased them to the pier. They were telling him there was nothing he could do to them and they threatened him again. The "yanker rope” was pulled out of his hand and he asked the group to wait until a deputy arrived. The group was on his property without his permission.
      Gist of defendant’s second written statement was that the defendant asked to speak with the Sheriff and “they” refused to call him. He asked for his medication, but the request was refused. He had heart problems and was having chest pains. He was arrested and handcuffed on his own property and the judge was refusing to release him from jail the next day. The judge was the same judge who filed charges on him before, when his "kin was involved.” He had rights and they were being ignored.

      . "POST” is an acronym for Peace Officer Standards and Training, the agency responsible for law officer certification in Louisiana.

      . "Damn it. I'm not getting off my pier. This is my m* * * *r — P * * * *g pier. These m* * * *r — P * * * *s are trespassing.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      - One of the females responded, "none of your m* * * *r — IP * * * *g business.”

      . This detail is omitted in his statement on the night of the incident.

      . The defendant exclaimed: “Wait a minute— Where's that bitch going?”

      . Her initial statement indicated that they walked, but at trial she insisted they ran.

      . "The first m* * * *r — f* * * *r that steps foot on this pier, I'll kill him.”

      ."The first m* * * *r — f* **'r that steps on my dock, I’ll kill you.”

      .The defendant thought the young man was saying "Haddad” and not Hayden. "Had-dad” was not a familiar name to the defendant.

      . Tyler allegedly said: "You know, you need to have your ass whipped.”

      . "Ain’t none of your m*** *r — P * * * *g business.”

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.

      . Proving an attempt requires proof of specific intent to commit a certain crime. Proof of only criminal negligence would not be sufficient to sustain this conviction.

      . La. R.S. 14:27 provides in pertinent part:
      A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. Attempt requires both the specific intent to
      commit a crime and an act for the purpose of, or an "overt act," tending directly toward accomplishment of that crime. State v. Prine, 44,229 (La.App.2d Cir.5/20/09), 13 So.3d 758, writ denied, 2009-1361 (La.2/5/10), 27 So.3d 298. Specific intent to commit a crime is an element of an attempted offense. The state has the burden of proving the defendant’s specific intent to commit the charged crime. Id. Conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the prescribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. Id. The determination of whether the requisite intent is present is for the trier of fact. State v. Hill, supra.

      . The defendant testified he was turning the corner of his house and he was able to see the group of victims on his pier. He shouted for them to stop; however, when they did not heed his call or demand, he chose to fire his weapon into the air. It is certainly foreseeable that death or great bodily injury could have occurred to one of those individuals on the pier by the discharge of the weapon. Apparently, the defendant must have been within shouting distance for the group to hear him. It is definitely foreseeable that a randomly fired errant bullet could also travel that distance as well. The defendant’s argument is basically that he fired the warning shot to stop the group; however, he also wishes it to be believed that the group could not have possibly been in any danger of receiving any injury from the discharge of the weapon. It was certainly reasonable for the jury to reject the defendant’s contentions. Considering the fact that he was chasing four individuals and that he was a short distance from his lounge and his house, it was definitely foreseeable that death or great bodily harm to a person might have resulted from the discharge of the defendant’s weapon.

      . In Cain, the Third Circuit reversed a conviction for illegal use of a weapon after finding that it was not foreseeable that a shot fired into the air by the defendant could have resulted in death or great bodily harm so as to support conviction when the evidence showed that there was no one else in the area other than an officer who was investigating a complaint. The officer testified that the defendant fired straight up into air, not in the direction of the complainant's home or officer's person or vehicle. The shot was fired while the officer was still in his vehicle and the officer testified he did not hear or see where the bullet came down and the bullet impact did not cause him to flinch or take cover. Additional factors considered were the fact that the defendant and the complainant lived on land comprising many acres, with defendant living on the back five acres with numerous trees. Additionally, the defendant and his wife were the only residents on the property.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir. 12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.
      A defendant’s lack of remorse is a proper sentencing consideration. State v. Birch, 43,119 (La.App.2d Cir.3/19/08), 979 So.2d 643; State v. Robinson, 33,921 (La.App.2d Cir. 11/01/00), 770 So.2d 868; State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775.
      Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

      . "[fjrom fist to Mace and now to firearms.”

      . The defendant told his probation officer that he had been falsely accused.


text:
    STATE of Louisiana, Appellee v. Walter Lee ANDERSON, Appellant.
    No. 47,175-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.

      James E. Paxton, District Attorney, Edwin Moberley, Anita T. Mack, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

|,The defendant, Walter Lee Anderson, was sentenced to serve 30 years at hard labor after he pled guilty to manslaughter, a violation of La. R.S. 14:31. He now appeals, claiming that his sentence is unconstitutionally excessive. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

A Madison Parish Grand Jury indicted the defendant on four charges that included second degree murder of Donald L. Lewis (La. R.S. 14:30.1), unauthorized entry of an inhabited dwelling (La. R.S. 14:62.3), possession of or dealing in firearms with obliterated number or mark (La. R.S. 14:95.7), and attempted second degree murder of William Robinson (La. R.S. 14:30.1). The defendant pled not guilty to all charges. On April 14, 2011, defendant withdrew his not guilty plea and pled guilty to an amended bill of indictment charging him with manslaughter of Donald Lewis.

According to the defendant, he and his former girlfriend, Victoria Toldson, lived together in Toldson’s apartment located at 300 Claxton Street, Apt. # 31 in Tallulah until Toldson broke up with him four days prior to the shooting. The couple had two children, one of whom is now deceased. On the evening of March 24, 2010, the defendant made several harassing telephone calls to Toldson. Early on March 25, 2010, at approximately 2:30 a.m., the defendant went to Toldson’s apartment armed with a .38 special revolver with an obliterated serial number. After Toldson would not let him in, the defendant shut off the electricity to the apartment by pulling the breaker switch. He then went to the apartment door, broke it 12down and forced his way inside.

Toldson, her friend Coneshia Coleman, William Robinson and Toldson’s new love interest, Donald Lewis, age 17, were in the apartment. Toldson immediately asked Coleman to call the police, at which time the defendant pulled the phone cord out of the wall and punched Toldson in the face. A fight ensued between the defendant and Lewis. As the others were climbing out of a back bedroom window, they heard gunshots.

The Madison Parish Sheriffs Office responded to a call at the apartment in reference to shots being fired. Investigator James Rash, the first officer on the scene, switched the breaker box on and found Lewis lying lifeless on the apartment floor with a pistol, later identified as his own, laying approximately three feet from his body. The defendant was subsequently arrested. He confessed to shooting Lewis, but stated that it was in self-defense. Based on information obtained, the police located the .38 caliber pistol used in the homicide in a storage bin behind Apt. 139 of the Martin Luther King apartments where the defendant lived, which are located at 112 James Street in Tallulah. At the guilty plea, he admitted to the facts recited, but he maintained that he shot Lewis when Lewis was on top of him, beating him with a pistol and his fists.

On June 9, 2011, the defendant appeared for sentencing. Prior to imposing the defendant’s sentence, the trial court considered the guidelines set forth in La. C. Cr. P. art. 894.1 and reviewed the PSI which contained a statement from the defendant wherein he admitted that he acted out of feelings of jealousy. The PSI also contained a statement from the victim’s | smother; she asked that the court impose the maximum penalty of 40 years imprisonment.

The court reviewed the defendant’s social history. Anderson was reared by his grandparents, Mildred and Jessie Anderson, until his grandmother died when he was in the sixth grade. He then moved to Fayette, Mississippi to live with his mother, Sheila Anderson. He attended Jefferson County High School, but dropped out after completing the 9th grade. He moved back to Tallulah and attended Youth Build and a vo-tech program in welding. At the time of the incident, the defendant was only 22 years old. He had a six-year relationship with Victoria Toldson. The couple had a daughter and son together, but the son died at age ten months from an enlarged heart. His daughter, age 5, continues to live with her mother.

The court noted that Anderson had no criminal history as a juvenile or as an adult, except for the instant conviction. Anderson admitted that he used marijuana daily. The defendant was described by his family, friends and clergymen as a quiet, well-mannered, loving and non-violent person. They and Anderson, who has expressed remorse over the shooting, asked the court for leniency. The court expressed its belief that the defendant’s actions were out of character. He was acting out of a jealous rage because a younger man had taken his place as Told-son’s lover in the apartment they once shared with their children.

On the other hand, the court noted that the facts of this case could warrant a conviction for murder rather than manslaughter. Anderson made numerous harassing telephone calls to Toldson. He deliberately turned off |4the breaker that supplied electricity to the apartment. He banged on the apartment door repeatedly, and when he was denied entry, he broke the door down. Once in the apartment, he pulled the telephone line out of the wall and the fight with Lewis ensued. The court noted that Anderson’s actions that led to the fight made him the aggressor, and he was not acting in self-defense, even though the victim had an adult criminal record at age 17, and was known to the court as a troublemaker.

After considering these mitigating (jealousy, social history, and lack of criminal past) factors against the fact that Anderson was clearly the aggressor, and noting that the facts could have supported a conviction and sentence for first or second degree murder, the court sentenced the defendant to serve 30 years’ imprisonment at hard labor. The court also noted that under La. R.S. 15:571.3, Anderson would be required to serve 85% of his sentence before being eligible for parole.

On July 7, 2011, the defendant filed a motion to reconsider the sentence wherein he argued that the trial court failed to consider the victim’s criminal history in light of the defendant’s self-defense claim, and that the court failed to consider the hardship his imprisonment would have on his five-year-old daughter. The trial court issued a written ruling on July 27, 2011. Specifically, the trial court noted that the defendant’s intentional behavior of turning off the electricity, breaking into the apartment with a firearm, shooting at the other occupants and shooting the victim, did not present a factual basis for his self-defense claim. Further, the court also did not find the victim’s criminal history to be a mitigating circumstance, |aconsidering that the incident began as a result of the defendant’s actions. While the court noted it was unfortunate that the defendant’s daughter would grow up with her father in prison, there was no evidence presented that the defendant shared a close relationship with his daughter. Based upon those facts, the court denied defendant’s motion to reconsider the sentence. The defendant now appeals, claiming that the sentence imposed is excessive.

DISCUSSION

By his first assignment of error, the defendant alleges' that the trial court erred in imposing an unconstitutionally excessive sentence. He contends that the 30-year sentence is nothing more than a purposeful infliction of pain and suffering when one considers that the defendant had no prior criminal history and was acting in self-defense. He argues that a shorter sentence of imprisonment followed by supervision would be more appropriate in this case.

The state argues that the defendant’s actions prevented him from claiming self-defense. Additionally, the defendant received great leniency by pleading to manslaughter, where his actions were enough for a conviction of first or second degree murder, which both carry more severe penalties. Further, the trial court reviewed the factors set forth in La. C. Cr. P. art. 894.1, the defendant’s statement, the victim’s mother’s statements, and also considered the defendant’s lack of criminal history, all prior to imposing the defendant’s 30-year sentence.

IfiLa. R.S. 14:31 provides a maximum penalty of imprisonment at hard labor for forty years for manslaughter.

Appellate courts utilize a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

17Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

Although this young defendant lacked a criminal history prior to the current conviction of manslaughter, there appears to be no abuse of discretion by the trial court when it imposed the 30-year sentence. Prior to sentencing the defendant, the court conscientiously reviewed factors set out in the guidelines of La. C. Cr. P. art. 841 as well as the PSI. The court reviewed the defendant’s social history, lack of a criminal record, comments Land letters from family and friends, and the statements of remorse expressed by the defendant. It concluded that while the defendant’s intentional actions were a result of a jealous rage and out of character, but were also the inexcusable acts of an aggressor not acting in self-defense. The court also noted that the victim’s mother’s statement pleaded to the court to impose the maximum sentence of 40 years’ imprisonment.

The trial court recognized that the defendant received the benefit of a more lenient sentence by pleading guilty to manslaughter, even though the facts of the case were arguably sufficient for a conviction of either first or second degree murder, which carry penalties of life imprisonment or possibly even death.

Considering all of the above, we conclude that the sentence imposed by the trial court is not excessive. The court adequately considered all relevant factors in imposing sentence, and the 30-year sentence is neither grossly disproportionate to the severity of the offense of manslaughter, nor is it shocking to our sense of justice.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: IRVING, P.J., for the Court:

text:
    Bart UDE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00329-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.
    Rehearing Denied July 24, 2012.

      Bart Ude, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J., for the Court:

¶ 1. On April 15, 2005, the Oktibbeha County Justice Court found Bart Ude guilty of “stalking on the telephone.” Ude received a suspended six-month sentence, pending two years of good behavior, and a $500 fine. Ude appealed to the Oktibbeha County Circuit Court and requested a jury trial, which the court denied. The circuit court proceeded with a trial de novo via bench trial and found Ude guilty of stalking. Ude appealed his conviction to the Mississippi Supreme Court, which assigned the case to this Court. We reversed the circuit court’s judgment and remanded the case for a jury trial. Ude v. State, 992 So.2d 1213, 1220 (¶ 26) (Miss.Ct.App.2008). On remand, the circuit court, rather than conduct a jury trial as ordered by this Court, issued a writ of procedendo, dismissing Ude’s case and directing the justice court to enforce its judgment.

¶ 2. Ude raises numerous issues on appeal, which we have consolidated into three issues for brevity and clarity. We will consider whether: (1) the circuit court erred in issuing the writ of procedendo; (2) double jeopardy prohibited the circuit court from holding a trial on January 25, 2010; and (3) the circuit court erred when it failed to inform Ude that he had a right to have counsel appointed for him.

¶ 3. We hold that the circuit court erred in issuing the writ of procedendo. Accordingly, we reverse the order of the circuit court granting the writ of procedendo and again remand this case for a jury trial. As the issues of double jeopardy and the right to court-appointed counsel may resurface on remand, we will briefly address them.

FACTS

¶ 4. Following this Court’s remand in Ude’s initial appeal, the circuit court set the ease for retrial on the first day of the January 2009 term. Ude moved for a continuance to obtain legal representation. The court granted the motion and set Ude’s trial for the first day of the April 2009 term. At Ude’s request, the circuit court continued the case two additional times between April 2009 and January 2010. Each continuance was intended to allow Ude an opportunity to retain counsel. The State insists that, following the last continuance, the circuit court told Ude that his case would be heard in January 2010 even if he had not obtained counsel.

¶ 5. When the circuit court called the case for trial on January 25, 2010, Ude was not present. Ude’s name was called three times in open court, but there was no response. The State requested a writ of procedendo, which the circuit court granted.

¶ 6. Additional facts, as necessary, will be discussed during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Writ of Procedendo

¶ 7. Ude contends that double jeopardy and the mandate rule prohibited the issuance of the writ of procedendo. According to the mandate rule, also known as the law-of-the-case doctrine, “a mandate issued by [a superior court] ‘is binding on the trial court on remand....’” Pub. Employees’ Ret. Sys. v. Freeman, 868 So.2d 327, 330 (¶ 10) (Miss.2004) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953,.960 (¶22) (Miss.2002)). When Ude first appealed the circuit court’s judgment, this Court reversed and remanded the case for a jury trial. Thus, the circuit court was bound by this Court’s directive on remand and erred in issuing the writ of procedendo.

¶ 8. “A writ of procedendo is issued by a court of superior jurisdiction to a court of inferior jurisdiction to enforce the lower court’s judgment.” Ferrell v. State, 785 So.2d 317, 319 (¶ 7) (Miss.Ct.App.2001) (citing Pool v. State, 176 Miss. 514, 515, 169 So. 886, 887 (1936)). In this case, there was no standing judgment to which a writ of procedendo would apply. Once Ude appealed the justice court’s judgment to the circuit court, he was entitled to a trial de novo and “the case [was to] be tried anew[,] as if it were originally instituted in the circuit court....” Statham v. Miller, 988 So.2d 407, 410 (¶ 16) (Miss.Ct.App.2008) (quoting Lucedale Commercial Co. v. Strength, 163 Miss. 346, 352-53, 141 So. 769, 769 (1932)). Thus, by ■virtue of Ude’s appeal to the circuit court, the justice court’s judgment was vacated. Additionally, once Ude appealed the circuit court’s judgment and obtained a reversal from this Court, the circuit court’s judgment was no longer valid. Therefore, there was no judgment to which the writ could apply.

2. Double Jeopardy

¶ 9. Ude argues that double jeopardy prohibited the circuit court from holding a trial on January 25, 2010. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article 3, Section 22 of the Mississippi Constitution protect against “a second prosecution for the same offense” after conviction or acquittal and against “multiple punishments for the same offense.” Foreman v. State, 51 So.3d 957, 960 (¶ 8) (Miss.2011) (quoting Graves v. State, 969 So.2d 845, 847 (¶ 7) (Miss.2007)). However, “[w]hen a criminal defendant successfully obtains a reversal and remand of the [circuit] court’s judgment, [granting] a new trial does not amount to double jeopardy.” Ward v. State, 914 So.2d 332, 336 (¶ 11) (Miss.Ct.App.2005) (citing Hester v. State, 749 So.2d 1221, 1224 (¶ 14) (Miss.Ct.App.1999)). We should point out that, contrary to Ude’s assertion, the circuit court did not hold a trial on January 25, 2010; instead, the court erroneously issued a writ of procedendo. Even if the circuit court had held a trial on January 25, 2010, a new trial on remand would not have constituted a double-jeopardy violation because Ude had successfully obtained a reversal of the circuit court’s judgment.

3. Right to Counsel

¶ 10. Ude argues that he should have been informed of his right to have counsel appointed for him. The United States Supreme Court has held that state-appointed counsel must be offered to indigent defendants in all criminal cases in which imprisonment is ordered. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). But exposure of an indigent criminal defendant to potential imprisonment does not warrant the appointment of counsel at public expense. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Additionally, Mississippi Code Annotated section 99-15-15 (Rev.2011) states that “when any person shall be charged with a ... misdemeanor punishable by confinement for ninety days or more ... the court ... being satisfied that such person is an indigent person and is unable to employ counsel, may ... appoint counsel to defend him.” (emphasis added). This statute does not, however, require that counsel be appointed.

¶ 11. There is no evidence in the record that Ude was indigent on January 25, 2010. Ude never stated that he could not afford to retain an attorney. In fact, Ude repeatedly told the circuit court that he was actively seeking counsel to represent him and even stated on two occasions that he had retained counsel. Thus, the circuit court did not err in failing to sua sponte advise Ude of his right to court-appointed counsel. However, because Ude has since been declared indigent, the circuit court, on remand, shall appoint counsel to represent him if it finds that Ude remains indigent and determines that in the event of conviction, Ude likely will be sentenced to serve a period of incarceration. In this regard, we note that the crime of stalking carries a penalty of either imprisonment or fine, or both.

¶ 12. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The proper remedy for Ude’s absence, perhaps, would have been to try Ude in absentia on the charges. See Blanchard v. State, 55 So.3d 1074, 1077-78 (¶ 17) (Miss.2011).

      . Ude requested and received in forma pau-peris (IFP) status after perfecting this appeal.

      . Mississippi Code Annotated section 97-3-107 (Rev.2010) provides in pertinent part:
      (1)(a) Any person who purposefully engages in a course of conduct directed at a specific person, or who makes a credible threat, and who knows or should know that the conduct would cause a reasonable person to fear for his or her own safety, to fear for the safety of another person, or to fear damage or destruction of his or her property, is guilty of the crime of stalking.
      (b) A person who is convicted of the crime of stalking under this section shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.