author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Jacque NAILOR.
    No. 10-KA-1062.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, E. Clifton Milner, Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Jacque Nailor (“Nailor”), has filed this appeal seeking review of his convictions on two counts of criminal acts and the respective sentences. Nailor was charged in Count 1 with aggravated battery in violation of La. R.S. 14:34, and in Count 2 with aggravated assault with a firearm in violation of La. R.S. 14:37.4. Nailor was arraigned, in absentia, and a plea of not guilty was entered on his behalf. In due course, the case was tried before a six-person jury, which unanimously found Nailor guilty of the responsive verdict of simple battery as to Count 1, and guilty as charged with respect to Count 2.

Nailor was sentenced to six months in Parish Prison on Count 1, to run consecutively to his five-year sentence at hard labor for Count 2. Three years of the sentence on Count 2 was suspended, and Nailor was placed on active probation for a period of five years. Nailor was ordered to pay court costs, a fine in the amount of $4,000, and various fees. Special conditions of probation were also imposed.

|3Nailor filed a motion for reconsideration of sentence, which was denied, and a motion for appeal, which was granted.

FACTS

This crime resulted from an altercation between the father (Steven Cain) and the maternal grandfather (Nailor) of a minor child during the return of the child to the mother after a visitation with the father. In the incident, Mr. Cain’s current wife, Renique Smith, was injured.

The testimony at trial shows that Steven Cain is the father of Steven Cain, Jr., and the husband of Renique Smith. Brittany Nailor is his son’s mother, and in 2008, Mr. Cain and Ms. Nailor followed a court-ordered visitation schedule with regard to Steven Cain, Jr. As per the custody arrangement, Mr. Cain would return his son to the home of Brittany Nailor’s grandmother, Ethel Nailor, on Sundays in the summer between 2:00 and 4:00 p.m. Brittany Nailor would pick the child up from that location.

On June 8, 2008, Nailor, Brittany Nai-lor’s father, was at the home when Mr. Cain brought his son there in accordance with the custody order. This was the first time neither Ethel nor Brittany Nailor were at home to receive the child.

Nailor testified that he lived in Georgia at the time of trial, having moved there to work at the VA Hospital following Hurricane Katrina. He also explained that he is the father of Brittany Nailor and the grandfather of Steven Cain, Jr. He was at his mother’s (Ethel Nailor) home on June 8, 2008 at approximately 2:00 in the afternoon. He was there to pick up his grandson because his daughter could not, and his mother was at work.

It appears from testimony at trial there was tension between Nailor and Steven Cain before this incident.

^According to Mr. Cain’s testimony, when he arrived, Nailor met him in the driveway while armed with a gun in his pocket and appeared very angry. Nailor told the child to go inside the house. Mr. Cain said that he stayed where he was in the driveway. Mr. Cain’s wife, Renique Smith, who also saw the gun, got out of the car and dialed 9-1-1.

After Ms. Smith called 9-1-1, Nailor went inside and put the gun away before coming back outside seconds later with a pit bull. While his wife was still on the phone with the police, Mr. Cain was “easing back” toward his car. He did not exchange words with Nailor at that time. Ms. Smith was standing on the neighbor’s lawn, while Nailor was yelling at her. Nailor subsequently put the dog away, came back outside, and approached Mr. Cain and his wife. Nailor then “put his hands” on Ms. Smith, at which time Mr. Cain told Nailor to stop. Mr. Cain walked over to the driver’s side of the car and popped the trunk of his car from the inside to “create a diversion” so that he and his wife “could get in the car and leave.” When Mr. Cain walked to the driver’s side of the car, Nailor left for a split second before coming back out of the house firing a gun. Mr. Cain ran around the car toward his wife then ran down the street as Nailor fired approximately nine or ten shots at him. Mr. Cain ultimately entered an alleyway approximately two houses away and entered a backyard. When Mr. Cain jumped a gate, two bullets hit the gate behind him. Once the shooting stopped, Mr. Cain exited the backyard where he was and found Ms. Smith lying on the ground in the driveway. She had been shot.

Mr. Cain called 9-1-1 and stayed with his wife until EMS arrived ten minutes later. While she left in the ambulance, Mr. Cain stayed behind to answer questions by police. He signed a consent form giving officers the right to search his car and later was allowed to leave the scene. Mr. Cain testified that he was ^unarmed and never threatened Nailor with a gun, or showed him a weapon. He further identified Nailor in open court.

Nailor testified at trial. He stated that he was concerned for his welfare and that of his grandson at the time of Mr. Cain’s arrival. Nailor explained that he and Mr. Cain had a prior conversation during which Mr. Cain stated “he was going to get me and do something to me.” Consequently, he met Mr. Cain at the door with a gun in his pocket. When Mr. Cain dropped off the child, Nailor told his grandson to go into the house.

Nailor testified that, after he dropped off his son, Mr. Cain was giving Nailor “a real look.” Nailor was concerned that Mr. Cain was armed. Nailor pulled his gun out of his pocket, and asked Mr. Cain if he was armed. Nailor asked Mr. Cain to pull up his shirt and turn around to ensure he did not have a gun as he pointed his own gun at Mr. Cain. Once Nailor felt safe, he put his gun inside on the sofa.

Nailor went outside again and found Mr. Cain still standing quietly in the driveway. Ms. Smith exited the car with a cell phone and told Nailor that she had seen the gun and that she was calling 9-1-1. Nailor told Ms. Smith that the gun was in the house and that she and Mr. Cain had to leave the property. Nailor stated that Ms. Smith pushed him with her finger. Mr. Cain told Nailor not to hit his wife. An argument broke out between Nailor and Ms. Smith during which Nailor told her to get back into her car and not to interfere in the conversation between Nailor and Mr. Cain. Nailor denied that he ever brought a dog outside.

While Nailor was arguing with Ms. Smith, he saw Mr. Cain out of the corner of his eye “dash” to his car. Thinking that he had been tricked, Nailor turned and ran back into the house because he thought Mr. Cain was going to get a gun. By the time Nailor went back outside, Mr. Cain was “digging in the trunk.” Nailor testified that he fired the first shot into the air. Nailor stated that, after he fired the [afirst shot, Mr. Cain bent over into the trunk real fast and it appeared to Nailor that Mr. Cain had something in his hand. At that time, Nailor fired a second shot. Nai-lor moved forward and fired a third shot, at which point Mr. Cain ran. Nailor headed back toward the house and encountered Ms. Smith who told him that he had just shot her. Nailor went into the house, put the gun on the table, and called 9-1-1 to get help for Ms. Smith. Nailor testified that he recalled firing his weapon three or four times. He was fearful that Mr. Cain was going to get a gun from the trunk of his car, based upon Mr. Cain’s previous telephone threat.

On cross-examination, the State reviewed Nailor’s voluntary statement with him for discrepancies. Nailor’s statement did not indicate that Ms. Smith had pushed him. The statement also did not indicate that Mr. Cain dug through the trunk of his car. In the statement, there was no reference to a warning shot. Nailor stated that he fired about nine times, and his intention was to kill Mr. Cain because Nailor believed that Mr. Cain was trying to kill him. Nailor stated that he never intended to shoot Ms. Smith. When he realized Ms. Smith had been shot, Nailor called 9-1-1, but he did not help Ms. Smith in any way. Nailor admitted that he fired the shot that hit Ms. Smith.

LAW AND ANALYSIS

In brief to this Court, Nailor assigns two errors. In his first assignment of error, Nailor contends that the State failed to prove beyond a reasonable doubt that he had not acted in self-defense. The State responds that the evidence at trial demonstrated that Nailor was the aggressor in the incident and was, therefore, not allowed to claim self-defense.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the 17essential elements of the crime beyond a reasonable doubt. Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.

Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.

Aggravated assault with a firearm is defined as “an assault committed by the discharge of a firearm.” In this case, Nailor does not argue that the State failed to prove the elements of aggravated battery. Rather, Nailor contends the jury should have found him not guilty because the State failed to carry its burden of proving that he did not act in self-defense.

La. R.S. 14:18, in relevant part, provides:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
|s(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed....
La. R.S. 14:19 further provides:
A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

La. R.S. 14:21 states: “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

This Court has concluded that a defendant has the burden of proving by a preponderance of the evidence that his actions were in self-defense or in defense of others in a non-homicide case. That holding was reinforced by State v. Steele, wherein this Court stated: “[T]he law in this circuit is that the defendant, in a non-homicide case, has the burden to establish, by a preponderance of the evidence, that he acted in self-defense.”

The defense of self-defense in a non-homicide situation requires a dual inquiry: an objective inquiry into whether the force used was reasonable under the circumstances, and a subjective inquiry into whether the force was apparently necessary.

lain the present case, we find the jury could have found from the evidence that the discharge of the firearm by Nailor was not reasonable under the circumstances or that Nailor could not have subjectively thought the discharging of the firearm was apparently necessary to defend himself.

The record shows that, although Nailor claimed he had received a vague threat on the telephone from Mr. Cain prior to June 8. 2008, Mr. Cain demonstrated to Nailor that he was unarmed as he dropped off his son in the driveway. In contrast, Nailor had armed himself prior to the encounter with Mr. Cain and Ms. Smith. Nailor placed his own gun inside the home but retrieved it again when he saw Mr. Cain near the trunk of his car. Nailor never verified that Mr. Cain had a weapon in his possession, even after firing at him and Ms. Smith repeatedly. Before discharging the firearm for the first time, Nailor could have simply locked himself inside his home and called the police.

To the extent that there was conflicting evidence and testimony at trial about whether Mr. Cain actually reached into his trunk, the resolution depends on the determination of credibility of the witnesses. The credibility of witnesses will not be reweighed on appeal. The jury evidently credited Mr. Cain and Ms. Smith’s version of the events, that Mr. Cain did not reach into the trunk of his car prior to when Nailor opened fire on them.

Furthermore, as noted above, La. R.S. 14:21 states that “a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” An aggressor would have to retreat before he could use deadly force in [ Tnself-defense, since his initial aggression created the dangerous situation. In this case, Nai-lor’s own statements show that he made no move to retreat from what he considered to be a dangerous conflict. To the contrary, he used deadly force repeatedly on two unarmed individuals. Therefore, as the aggressor, Nailor was precluded from arguing self-defense.

We find no merit in this assignment.

In the second assignment of error, Nailor asserts the trial court erred in imposing an excessive sentence. Specifically, Nailor contends that his sentence of five years of imprisonment at hard labor with three years suspended is excessive for a first-time offender.

The State responds that Nailor’s claim that the trial court misinterpreted “several key facts” has not been preserved on appeal because it was not raised in his motion to reconsider sentence. The State further argues that the record reflects that the court considered mitigating factors in imposing Nailor’s sentence. -

In his Motion For Reconsideration of Sentence, Nailor listed nine factors that he believe mitigated against the sentence he received:

(1) Nailor is a former member of the United States Marine Corps;
(2) Nailor has no previous record;
(3) Nailor was not convicted of the more serious charge of aggravated battery;
(4) Nailor is forty-five years old;
(5) Five years is the maximum sentence and is, therefore, excessive;
(6) Nailor is unable to pay any fines and costs because he is incarcerated;
(7) The additional fees, Commissioner Court and I Can, cannot be paid because he is incarcerated and because they exceed the statutory maximum fine. Furthermore Nailor has a disability and will not be employed upon release;
ln(8) The restitution on the simple battery is illegal because he has already received the maximum sentence on that charge; and
(9) Nailor’s disability prevents him from doing manual labor.

As can be seen from the above, the State is correct in its assertion that Nailor did not argue the misinterpretation of facts by the trial judge as a basis for reconsideration of sentence. La.C.Cr.P. art. 881.1(E) provides: “The failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exeessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Therefore, we agree with the State that these specific claims are not properly before this Court on appeal.

However, mitigating factors that Nailor argued in his Motion For Reconsideration and now re-urges on appeal are properly before this Court for review. Specifically, Nailor claims that the district court gave little consideration to the fact that he is in his mid-forties and has no prior criminal record and that he is a veteran.

Contrary to Nailor’s assertion, the record shows that the trial court did, in fact, consider Nailor’s life history when imposing the sentence. The trial court took the sentencing guidelines of La. C.Cr.P. art. 894.1 and noted that Nailor had an “exemplary record” prior to the incident. The court also noted Nailor’s armed forces service and his honorable discharge.

Nailor further urges that the maximum sentence for aggravated assault with a firearm is excessive. Both the United States and the Louisiana Constitutions 1 ^prohibit the imposition of excessive or cruel punishment. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. Trial judges are granted great discretion in imposing sentences and a sentence will not be set aside as excessive absent clear abuse of that broad discretion.

In reviewing a sentence for exces-siveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 8) the sentence imposed for similar crimes by the same court and other courts.

In sentencing Nailor, the trial court stated:

I can’t begin to say, sir, how serious your offense was, in the Court’s opinion. The action that you took that day was completely uncalled for. And I hope you realize, as you sit here today, you were literally inches between an aggravated battery, an aggravated assault with a firearm charge and that of possibly first degree murder.

Based on the facts of this case and the sentencing transcript, we do not find the trial court abused its discretion in sentencing Nailor. Accordingly, we find no merit in the excessive arguments.

| ip,For the foregoing reasons, the convictions and sentences from which Nailor appeal are affirmed.

AFFIRMED

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

      . State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

      . State v. Rosiere, 488 So.2d 965, 968 (La.1986).

      . State v. Mussall, 523 So.2d 1305, 1309 (La.1988).

      . State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798.

      . La. R.S. 14:37.4.

      . State v. Barnes, 491 So.2d 42, 47 (La.App. 5 Cir. 1986).

      . 01-1414 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03), 853 So.2d 632.

      . State v. Barnes, 491 So.2d at 44-47 (La.App. 5 Cir.1986) (emphasis as found in the original).

      . State v. Freeman, 427 So.2d 1161 (La.1983).

      . State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 660.

      . State v. Spears, 504 So.2d 974, 977 (La.App. 1 Cir. 1987), writ denied, 507 So.2d 225 (La.1987).

      . State v. Schieffler, 02-1047 (La.App. 5 Cir. 2/25/03), 841 So.2d 1000, writ denied, 03-0741 (La.9/19/03), 853 So.2d 636.

      . U.S. Const. amend. VIII; La. Const. of 1974, art. I, § 20.

        . State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Bacuzzi, 97-573 (La.App. 5 Cir.1/27/98), 708 So.2d 1065, 1068, 1069.

      . State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340.

      . State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

      . Id.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Terry LABEAU.
    No. 11-K-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Respondent.
    Graham Bosworth, Attorney at Law, Gretna, LA, for Defendant/Relator.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

hOn August 27, 2010, the Jefferson Parish District Attorney charged the relator, Terry Labeau (“Labeau”), with one count of possession of cocaine, a violation of La. R.S. 40:967(C). Labeau filed a motion to suppress statements and evidence. On January 18, 2011, the motions to suppress were heard and denied.

Labeau filed an application for supervisory writs in this Court in March 2011. In a two-to-one decision, we denied writs, finding no reason to exercise our supervisory jurisdiction on the showing made and noting that Labeau had an adequate remedy on appeal, if convicted. State v. Labeau, 11-K-246 (La.App. 5 Cir. 3/18/11) (unpublished writ). Judge Johnson dissented with Reasons. Labeau filed an application for supervisory writs in the Louisiana Supreme Court and, on June 24, 2011, the supreme court granted the writ application, remanding the matter to this Court for briefing, argument, and opinion. State v. Lebeau, 11-0733 (La.6/24/11), 64 So.3d 207.

As per the order, the matter was set, heard, and submitted on September 13, 2011. Prior to the issuance of this Court’s opinion on the issues presented, Labeau filed a Motion To Withdraw Writ Application, informing this Court that the criminal case has now been resolved in the district court.

Therefore, there can be no further relief available through this writ. It is well-settled that “courts will not decide abstract, hypothetical or moot 12controversies, or render advisory opinions with respect to such controversies.” A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Accordingly, by this opinion, we dismiss the writ application as moot.

DISMISSED AS MOOT

      . State v. Malone, 08-2253, p. 2 (La.12/1/09), 25 So.3d 113 (quoting Cat’s Meow, Inc. v. City of New Orleans, 98-0601, p. 8 (La.10/20/98), 720 So.2d 1186, 1193).

      . Id.


author: BROWN, Chief Judge. MOORE, J.,

text:
    STATE of Louisiana, Appellee v. Satonia SMALL, Appellant.
    No. 46,632-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 16, 2011.

      Elton B. Richey & Associates, LLC, by Elton B. Richey, Jr., Christopher Hatch, Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Dhu Thompson, R. Bennett Langford, III, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

|, Defendant, Satonia Small, was convicted by a unanimous jury of second degree felony murder, that is, an unintended killing that occurred during the perpetration of a felony, in this case, cruelty to juveniles. She was sentenced to the mandatory term of life at hard labor without parole. Defendant has appealed her conviction and sentence. We now affirm.

Discussion

Defendant claims error in that the evidence presented was insufficient to convict, in the admission of substantive evidence of a prior crime, that Louisiana’s felony murder provision is unconstitutionally vague, and that a life sentence without benefits was, in this case, excessive.

I. Sufficiency of the Evidence

Defendant first asserts that the evidence was insufficient to prove beyond a reasonable doubt that she was guilty of the second degree murder of her six-year-old daughter, who died as a result of injuries sustained in a fire on a night that defendant left the child, along with her seven-year-old son, at home alone to go drinking with a friend. In particular, defendant claims that the evidence was insufficient to support the underlying felony of cruelty of juveniles.

Applicable Legal Principles

At the time of the fire, January 20, 2008, La. R.S. 14:30.1(A) provided in part that:

Second degree murder is the killing of a human being:
(2)(a) when the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles [or] second degree cruelty to | ^juveniles ... even though (she) has no intent to kill or to inflict great bodily harm.

Under the theory of felony murder as provided in La. R.S. 14:30.1(A)(2), the state is not required to prove that the defendant possessed a specific intent to kill or inflict great bodily harm. This provision defines second degree murder as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of certain enumerated felonies, including cruelty to juveniles or second degree cruelty to juveniles even though she has no intent to kill or to inflict great bodily harm. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 934, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). Thus, under the explicit language of this provision, specific intent to kill or to inflict great bodily harm is not an essential element of felony murder under La. R.S. 14:30.1(A)(2).

La. R.S. 14:93(A) provides in part that: Cruelty to juveniles is:
(1) the intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
La. R.S. 14:93.2.3(A) provided that:
(1) Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.
(2) For purposes of this Section, “serious bodily injury” means bodily injury involving protracted and obvious disfigurement or protracted [Joss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to sustaining the verdict, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard is now legislatively embodied in La. C. Cr. P. art. 821, and it 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, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/06/09), 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 any witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, appeal after new sentencing hearing, 45,133 (La.App.2d Cir.04/28/10), 36 So.3d 396, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Evidence Presented at Trial

On January 20, 2008, defendant, a single mother, lived in an apartment in Shreveport, Louisiana, with her two children: a six-year-old [.< daughter, S.S., and a seven-year-old son, J.S. On that date, at approximately 10:00 at night, defendant left the children unattended in their upstairs apartment to visit a friend, Patrina Gay. Defendant drove to Patrina’s house; they then drove to a liquor store, bought some vodka, then went back to Patrina’s house to drink.

Around midnight, the residents of the apartment beneath defendant’s saw a light outside their window; upon investigation, they discovered a fire in defendant’s apartment. Ronnie Jackson ran around and warned his neighbors of the fire. As he was doing so, he heard a thump; Jackson then saw that defendant’s seven-year-old son had jumped to the ground from the second floor balcony.

Jackson, who realized that defendant’s daughter was not outside, ran up the stairs and tried to kick in the front door of defendant’s apartment, but the door was locked, and the flames were rising; he was unable to get in to rescue the child. A passing Shreveport police officer, Marcus Hines, stopped at the scene and called for the fire department. Officer Hines and a fellow officer, Steven Plunkett, also tried unsuccessfully to kick in the front door of defendant’s apartment.

Firefighters arrived and broke down the apartment door to search for defendant’s daughter. The apartment was full of smoke from floor to ceiling. As they were searching, part of the roof caved in, clearing the IfiSmoke. The firefighters then found the limp body of the six-year-old child in a back bedroom. Paramedics were unable to revive the child at the scene, so she was transported to the hospital where she was placed on life support.

One of defendant’s neighbors called Pa-trina Gay to tell her that defendant’s apartment was on fire. Defendant returned home and was arrested by the police. Defendant was wearing gold-colored “going out” clothes and was visibly intoxicated.

The six-year-old child died on January 25, 2008. Forensic pathologist Frank Per-etti performed an autopsy and stated that the cause of death was anoxic encephalopathy with pneumonia, complicating smoke, and soot inhalation. Basically, he explained, the child died from lack of oxygen to her brain caused by smoke inhalation. Without objection, Dr. Peretti testified that, in a fire, children generally run for protection, such as to a bedroom, under the bed or covers, or to a closet or a basement.

Chris Robinson, a Shreveport Fire Department investigator, examined the scene and took a number of photographs which were shown to the jury. Robinson discovered that the fire started on the electric stove top where he found a pot that had melted to the back right burner. Because of the severity of the fire, he was unable to determine what furniture or items had been lost in the fire. Robinson said that out of more than 100 other kitchen fires that he had investigated, there had been only one fatality; according to him, a kitchen fire is not a “fast developing” fire.

A few days after the fire, SPD Detective Farquhar interviewed defendant. Det. Farquhar informed defendant that at that time she was | Joeing charged with second degree cruelty to a juvenile and read her Miranda rights to her. Defendant agreed to speak with Det. Farquhar and Detective Patrick McConnell. She explained that she had gone with her friend Patrina to a nearby McDonald’s to get something to eat, and they were waiting in line at the drive-thru when the neighbor called to tell her that the apartment was on fire. Defendant said that she had not had anything to drink and had been gone less than 20 minutes when she got the neighbor’s call. Defendant told detectives that the children were asleep when she left and that she was not cooking anything on the stove.

The officers then confronted defendant with their knowledge that the state had previously taken her children away because she had left them home alone. They also informed her that her daughter was in a permanent vegetative state. At that point, defendant admitted that she had been at Patrina’s house, although she said it had been for no more than an hour, and the children had been asleep when she left. Defendant admitted drinking “two or three cups” of vodka at Patrina’s house. Ultimately, defendant described the event as a “horrible, horrible accident.”

The state presented evidence of other crimes, wrongs or acts pursuant to La. Evidence Code Article 404(B). The state had provided defendant with pretrial notice of their intent to use this evidence. Over defendant’s objection, the court allowed the jury to hear this evidence. Approximately one year prior to this incident, in December 2006, defendant was charged with criminal abandonment of her two children in the Shreveport City Court. She pled guilty in May 2007.

|7In addition to the fact of defendant’s conviction, the jury heard the entire plea colloquy detailing the facts of the previous offense and were shown 8 x 10 photographs of the apartment defendant and her children shared at that time.

In that case, a neighbor had called and told the police that there were children home alone, and that they were outside in 28 degree weather. The 8 x 10 color photos depicted defendant’s apartment in an unkempt condition. Shreveport Police Officer Brandon Chandler, who investigated the 2006 complaint, testified that he took the photos and when he arrived at the apartment, both children were inside with no adult present. Chandler testified that the condition of the apartment shocked him, even as a five-year veteran police officer, and he described the apartment as “unhealthy, deplorable, just truly unbelievable.” He further testified that defendant did not return home that night until 12:30 or 1:00 a.m., and that the children were removed by Child Protective Services.

During the guilty plea colloquy (in May 2007), the judge asked defendant whether this would ever happen again. Defendant’s response was, “Never, never.... I promise you that, because I learned a valuable lesson, because my kids is all I got.”

Defendant opted not to testify. A unanimous jury convicted defendant of second degree murder.

| ¡¡Analysis

In this appeal we are to consider the offense of second degree murder by means of cruelty of juveniles. In order to prove that defendant committed second degree murder, the state had to show, inter alia, that defendant was committing either second degree cruelty to juveniles or cruelty to juveniles when the child died, and a legal causation between the underlying felony, cruelty to juveniles, and the child’s death.

In this particular case, the mental element for both of the underlying cruelty to juveniles offenses was “criminally negligent mistreatment or neglect.” No proof of specific or general intent vis-a-vis mistreatment or neglect is required. To prove cruelty under these statutes, the state had to show that the defendant’s act or failure to act constituted mistreatment or neglect. There is no requirement of an intent to cause the child unjustifiable pain or suffering (cruelty) or serious bodily injury or neurological impairment (second degree cruelty). See State v. Duncan, 02-0509 (La.App. 1st Cir.09/27/02), 835 So.2d 623, writ denied, 03-0600 (La.03/12/04), 869 So.2d 812.

Criminal negligence is defined in La. R.S. 14:12 as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

Unlike general or specific criminal intent, criminal negligence is essentially negative, that is, extreme indifference. Rather than requiring the accused intend some consequence of her actions, criminal negligence is | ¡found from the accused’s gross disregard for the consequences of her actions. State v. Martin, 539 So.2d 1235 (La.1989). Ordinary negligence does not equate to criminal negligence. The state is required to show more than a mere deviation from the standard of ordinary care. State v. Jones, 298 So.2d 774 (La. 1974); State v. Wilcoxon, 26,126 (La. App.2d Cir.06/22/94), 639 So.2d 385, writ denied, 94-1961 (La.12/16/94), 648 So.2d 386, overruled in part on other grounds, State v. Tolbert, 03-0330 (La.06/27/03), 849 So.2d 32.

Comments to La. R.S. 14:93 suggest that the laws governing the jurisdiction of the juvenile court should be consulted to determine what constitutes neglect. Under La. Ch. C. art. 603(14), “neglect” is the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.

In December 2006, defendant was arrested for leaving these children alone while she went out. At that time, the children were taken by Child Protective Services. In court in May 2007, defendant was informed by the judge that her conduct constituted neglect. Defendant pled guilty and promised the court that it would “never, never” happen again. Defendant understood that she was responsible for the safety and welfare of the children. She understood that leaving these young children unattended and locked in her apartment was neglect that endangered their safety. Yet, less than a year after her conversation with the judge at her guilty plea hearing, 110she again abandoned these children while she went off drinking with a friend. Her extreme indifference endangered these children by placing them in a situation which exposed them to harm, injury or loss.

A 12-person jury unanimously found defendant guilty of second degree murder. Reviewing the evidence presented at trial, we find that the jury could have reasonably determined that defendant’s conduct in leaving her two young children home alone late at night without thought of the potential dangers they could have encountered during her absence, i.e., an intruder or burglar, an injury caused by horseplay between the children, the ingestion of medications or ordinary household poisons or chemicals improperly stored, an emergency caused by inclement weather, or as happened in the instant case, a fire, amounted to a gross deviation below the standard of care expected from a reasonably careful person under like circumstances and therefore constituted criminally negligent neglect which caused unjustifiable pain or suffering (La. R.S. 14:93) and/or serious bodily injury or neurological impairment (14:93.2.8) and which ultimately resulted in her daughter’s death. We cannot question the jury’s determination on this factual issue.

II. Constitutionality of La. R.S. 14:30(A)(2)

Defendant next argues that Louisiana’s second degree felony murder provision is unconstitutionally vague because it does not explicitly include a causation requirement. Defendant argues that the neglect in this case did not create a special danger to human life and could not serve as a predicate to felony murder. Furthermore, according to defendant, there is no | n distinction between negligent homicide and second degree murder predicated upon criminally negligent cruelty to juveniles.

We conclude that cruelty to juveniles does pose a special danger to human life in the abstract and may properly serve as a predicate to a felony murder charge. Defendant’s extreme indifference endangered the welfare and safety of these very young children and defendant should have foreseen the possibility of harm or injury. La. R.S. 14:8 provides that criminal conduct, even when based only on criminal negligence as in the instant case, is conduct that produces criminal consequences. Furthermore, while defendant’s conduct may be punishable under more than one criminal statute, prosecution is permitted under any applicable statute. See La. R.S. 14:4. Thus, we must reject this argument.

III. Admissibility of Evidence of Other Crimes, Wrongs, or Acts

Defendant next urges that the trial court abused its discretion by allowing the introduction of substantive evidence of her prior conviction for child abandonment, especially photographic evidence from that prior conviction depicting the bad condition of her previous apartment, as well as testimony describing her prior living quarters.

As a general rule, courts may not admit evidence of other crimes, wrongs or acts of the defendant to show that he or she is a person of bad character who has acted in conformity therewith. La. C.E. art. 404(B)(1); State v. Galliano, 02-2849 (La.01/10/03), 839 So.2d 932, on subsequent appeal, 05-962 (La.App. 5th Cir.08/29/06), 945 So.2d 701, writ denied, 06-2367 (La.04/27/07), 955 So.2d 682. The state may, however, introduce 112evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1); State v. Rose, 06-0402 (La.02/22/07), 949 So.2d 1236, on remand, 05-0396 (La.App. 4th Cir.04/13/07), 955 So.2d 270, writ denied, 07-0744 (La.11/02/07), 966 So.2d 601; State v. Galliano, supra.

The state must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Id.; State v. Prieur, 277 So.2d 126 (La.1973). The state must also prove that the defendant committed the other acts. Id. If the probative value of the other crimes, wrongs or acts evidence is substantially outweighed by the danger of unfair prejudice, then the evidence must be excluded. La. C.E. art. 403; State v. Galliano, supra.

The state provided defendant with reasonable notice of its intent to use evidence of the prior conviction, and a Prieur hearing was held. If not the subject of a conviction, proof of the prior bad acts must be by clear and convincing evidence. As stated above, in this case defendant was convicted. Defendant’s argument is that the trial court erred in admitting substantive evidence of her prior conviction, specifically photographs and testimony about the condition of her previous apartment.

After consideration of the evidence and arguments of both attorneys, the trial court determined that the evidence of the prior incident was admissible to establish intent, knowledge, and absence of mistake or accident. We find no abuse of discretion in this ruling. The evidence of the | isprior incident of abandonment, including the plea colloquy and the photographs of defendant’s cluttered and dirty apartment, demonstrates a history of neglect. It has value to show the improbability or unlikelihood that defendant acted unknowingly or by mistake or accident when she neglected her parental responsibilities and left her two children asleep in a locked apartment to go drinking with a friend. See State v. Galliano, supra.

Further, we note that child abuse and neglect differs from other crimes in that it is done in secret, in the privacy of a home, and against a child too young to call for help. Such neglect is usually not confined to one instance but is likely to be part of a systematic pattern. A pattern, plan or scheme of neglect is relevant and admissible as other crimes, wrongs, or acts evidence.

While this evidence was prejudicial, we cannot say that its probative value was outweighed by the prejudicial effect the evidence posed, i.e., this evidence did not rise to the level of undue or unfair prejudice when balanced against its probative value. See State v. Bose, supra.

IV. Trial Court’s Failure to Depart Downward from Mandatory Life Sentence

According to defendant, the trial court erred when it refused to deviate downward from the mandatory life sentence provided for second degree murder. In light of her particular circumstances and this offense, defendant urges that the mandatory life without parole sentence is constitutionally excessive.

Mandatory sentences under La. R.S. 14:30.1 have been consistently upheld as constitutional and consistent with the federal and state | ^constitutional provisions prohibiting cruel, unusual or excessive punishment. State v. Woods, 44,491 (La.App.2d Cir.08/19/09), 16 So.3d 1279, writ denied, State v. Scott, 09-2084 (La.04/09/10), 31 So.3d 380; State v. Wright, 42,956 (La.App.2d Cir.03/05/08), 978 So.2d 1062, writ denied, 08-819 (La.10/31/08), 994 So.2d 532. A court may depart from a mandatory minimum sentence only if it finds that the defendant presented “clear and convincing evidence” to rebut the presumption of constitutionality, which requires a showing that she is exceptional, i.e., “because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, 676, quoting State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, writ denied, 95-3010 (La.03/22/96), 669 So.2d 1223 (Plotkin, J., concurring).

We find, as did this court in State v. Woods, supra, that the gravity of the instant offense and the culpability of defendant, who had a prior conviction for child abandonment for leaving her young children unsupervised to go out with a friend, warrants no downward departure from the legislatively mandated life sentence. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

MOORE, J.,

concurs.

hi respectfully concur in the majority’s result, but I differ with its treatment of the third assignment of error. The district court erred in admitting into evidence photographs showing the “deplorable” condition of Ms. Small’s apartment in December 2006, when she was arrested for conduct that resulted in her 2007 guilty plea to criminal abandonment.

Evidence of prior bad acts is not admissible to prove the character of a person in order to show that she acted in conformity therewith. La. C.E. art. 404 B(l). The risk is that unrelated evidence might depict the defendant as a “bad person.” State v. Jacobs, 99-0991 (La.5/15/01), p. 24, 803 So.2d 933, 950. Nevertheless, such evidence may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or aceident[.]” Id. The state charged Ms. Small with second degree murder under the theory of felony murder, which prohibits the killing of a human being when the offender is engaged in an enumerated offense “even though he has no intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1 A(2). The state neither alleged nor proved that Ms. Small had any intent to kill or inflict great bodily harm on Sha’Je’Burne. It is incongruous to admit evidence of other bad acts to prove intent when the offense of conviction does not require proof of intent. See State v. Ghoram, 290 So.2d 850 (La.1974).

Even if evidence of prior bad acts is otherwise admissible, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. C.E. art. 403. The district court allowed a recitation of the plea colloquy from |2the prior offense, and the testimony of Officer Chandler, who investigated that incident; beyond this, the color photos of Ms. Small’s prior apartment were sorely irrelevant and grievously prejudicial. They show that in 2006, she was an ineffective housekeeper and parent, but they depicted a different apartment and did not prove that the place that burned in January 2008 was in a similar state prior to the fire. Her act of neglect in the instant offense was a temporary absence from the home, not her slovenly domestic skills. There was no evidence that the January 2008 fire was more likely to start or spread because of a cluttered floor. Keeping a dirty house in 2006 is simply not relevant to the charge of leaving the children alone in 2008, but it definitely smeared Ms. Small as a bad person. This is precisely the type of prejudice that Art. 403 forbids.

Nonetheless, the verdict rendered was “surely unattributable” to this error. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 100. I therefore concur in affirming Ms. Small’s conviction and sentence.

      . Neither provision has changed substantively since 2008.

      . Both of the officers remained with J.S. until units from the Shreveport Fire Department arrived. Officer Plunkett testified, without objection, that he "was talking to [J.S.] and he said they started to cook something and it caught on fire and his sister ...” At that point, the prosecutor interrupted and continued the questioning about other matters. J.S. did not testify.

      . The court gave defendant a 60-day suspended sentence, and she was placed on one year of unsupervised probation. Defendant was also required to prove that she had completed a parenting class,


author: DANIEL L. DYSART, Judge.

text:
    Helen DUCKWORTH v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY. Tony Smith v. Louisiana Farm Bureau Mutual Insurance Company.
    Nos. 2011-CA-0837, 2011-CA-1143.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.
    Al J. Robert, Jr., Law Office of Al J. Robert, Jr., LLC, New Orleans, LA, for Plaintiffs/Appellants.
    Andrew L. Plauché, Jr., James K. Orde-neaux, Scott H. Mason, Plauché Maselli Parkerson L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

I,The two captioned cases, although from two separate jurisdictions, were consolidated for consideration in this Court because the cases are factually similar and the issue to be decided is the same. Each of the trial courts granted an Exception of Prescription filed by the defendant, Louisiana Farm Bureau Mutual Insurance Company [hereinafter “Farm Bureau”], and each plaintiff has appealed. For the following reasons, we affirm both trial court judgments.

Factual and Procedural Backgrounds— Helen Duckworth:

Ms. Duckworth claimed damages to her home in Arabi, Louisiana, as a result of Hurricane Katrina, which struck the New Orleans metropolitan area on August 29, 2005. She retained counsel and was a named plaintiff in a mass joinder complaint filed on August 29, 2007 entitled, “Acevedo v. AAA Insurance ” in the United States District Court for the Eastern District of Louisiana. That suit was subsequently dismissed because it was filed in a court of incompetent jurisdiction. Ms. Duckworth filed the subject lawsuit on December 30, 2008, in the 34th Judicial District for the Parish of St. Bernard. She alleged that prescription had been ^interrupted pursuant to Louisiana Civil Code Article 3463, with the filing of the lawsuit filed in federal court.

In February 2011, defendant Farm Bureau filed Peremptory Exceptions of Prescription and/or Peremption and No Right of Action and Answer and Affirmative Defenses. A hearing was had on April 8, 2011.

Ms. Duckworth argued in opposition that when she filed the instant lawsuit in December of 2008, the allegations made of underpayment of damages and bad faith penalties were also claims alleged in at least one class-action that named Farm Bureau as a defendant, Vinturella v. Louisiana Farm Bureau Insurance Company, which was filed in Civil District Court on August 24, 2006. Thus, because she was a putative member of a class action filed in a court of competent jurisdiction, prescription was suspended and the instant lawsuit was timely.

The trial court granted Farm Bureau’s Exception of Prescription, and dismissed plaintiffs suit, with prejudice.

Factual and Procedural Backgrounds— Tony Smith:

Tony Smith, who claimed damage to his home in Orleans Parish from Hurricane Katrina, filed the subject lawsuit on December 30, 2008, in the Civil District Court for the Parish of Orleans. Mr. Smith also argued that prescription had been interrupted due to the filing of the Acevedo lawsuit in federal court.

Farm Bureau filed identical exceptions and an answer and affirmative defenses in Civil District Court as had been filed in the 34th Judicial District.

Mr. Smith opposed the exception of prescription arguing that he filed his individual lawsuit alleging underpayment of damages and bad faith penalties, | swhich were claims in at least two class actions of which he was a putative member: Vinturella v. Louisiana Farm Bureau and State of Louisiana v. AAA Insurance. He asserts that his status as a putative member of those two actions therefore suspended the running of prescription against him.

Following a hearing, the trial court issued a judgment and written reasons on June 20, 2011, granting Farm Bureau’s Exception of Prescription.

DISCUSSION:

The standard of review for an appellate court reviewing the grant of an exception of prescription is whether the trial court’s finding of fact was manifestly erroneous. Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 4 (La.3/15/11), 62 So.3d 721, 726; Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267.

In their petitions for damages, both Ms. Duckworth and Mr. Smith claimed that prescription was interrupted by the filing of the “mass joinder” action in federal court, Acevedo v. AAA Ins. Co. However, Louisiana Civil Code art. 3463, on which plaintiffs originally relied to argue an interruption of prescription, was rendered inapplicable upon the federal court’s dismissal of the suit and plaintiffs’ concession that the Acevedo case was filed in a court of incompetent jurisdiction.

Faced once again with the prescription issue, plaintiffs argued in opposition to the exceptions of prescription that prescription was suspended because they were putative plaintiffs in lawsuits filed in Civil District Court on August 24, 2006, namely, Vinturella v. Louisiana Farm Bureau and State of Louisiana v. AAA Insurance. Plaintiffs redirected their argument to rely on La.Code Civ. Proc. art. 596, the prescription article applicable to class and derivative actions.

|4PIaintiffs argued that the plain language of Article 596 suspended the running of prescription on their claims. They cited Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La.3/15/11), 62 So.3d 721, in support of their position that the time periods contained in insurance contracts are prescriptive in nature and are subject to all laws governing liberative prescription. Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. Civ.Code art. 3447.

There are two Louisiana appellate court decisions which address the impact of Louisiana Code of Civil Procedure art. 596 on cases with the same factual scenarios as these consolidated cases: Katz v. Allstate Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, and Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.3d 1071, writ denied 10-2244 (La.12/17/10), 51 So.3d 14. Additionally, the United States District Court for the Eastern District of Louisiana recently ruled similarly in Dixey v. Allstate Ins. Co., 09-443 (E.D.La.9/21/11), 2011 WL 4403988.

All three cases hold that a plaintiff forfeits his entitlement to rely on the suspension provisions of La.Code Civ. Proc. art. 596 when he files an individual lawsuit prior to the certification of the class in the lawsuit upon which he relies to suspend prescription.

In both cases before us, the plaintiffs filed individual lawsuits prior to the certification of the two class actions upon which they rely. Although both plaintiffs argue that they did not “opt out” of the class actions suits, as Judge Murray stated in her concurrence in the Katz case:

[[t]he mover] cites federal district court cases from various jurisdictions which hold that a plaintiff who files an independent action before a determination on class | ¡^certification has been made cannot benefit from the tolling of prescription applicable to putative class members under federal law. The underlying rationale for this rule, which is that the plaintiff has effectively “opted out” of the class action by filing his own suit, seems to apply to the instant situation as well.

Katz, 04-1133, p. 7, 917 So.2d at 447-48.

Applying the above rationale and the holding in the Katz case, upon which this Court must rely, we find that both the judgment of the 34th Judicial District Court and the judgment of the Civil District Court are correct. Accordingly, the rulings are affirmed.

AFFIRMED

      . The named defendant, Farm Bureau, is a Louisiana corporation, and therefore, the requirement of diversity was not present for jurisdiction to be proper in federal court.

      . Civil District Court for the Parish of Orleans, Docket No. 2006-8340.


author: CHARLES R. JONES, Judge. BELSOME, J.,

text:
    Charles FEIST v. Dr. Anthony R. FERGUSON, DPM.
    No. 2011-CA-0643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.
    Thomas B. Calvert, Thomas B. Calvert, APLC, Metairie, LA, for Plaintiff/Appel-lee.
    J. Don Kelly, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

_jjThe Appellant, Dr. Anthony Ferguson, seeks review of the judgment of the district court granting the motion for summary judgment of the Appellee, Charles Feist, on the issue of liability. Finding that the district court did not err in determining that there was no genuine issue of material fact, we affirm the judgment of the district court.

In December 2001, Dr. Ferguson performed a bunionectomy with base wedge osteotomy, 2.7 cortical screw fixation and arthroplasty, on the right foot of Mr. Feist. After the surgery was performed, Mr. Feist developed peripheral vascular disease and was unable to have any further surgeries performed. Subsequently, he lodged a complaint with the State and a medical review panel was empanelled. After the panel dissolved, Mr. Feist filed suit against Dr. Ferguson alleging a lack of informed consent, and that Dr. Ferguson committed medical malpractice because he failed to obtain a pre-operative weight-bearing 12surgical x-ray and failed to develop an appropriate surgical plan to treat Mr. Feist.

In 2009, after the matter was set for trial, Mr. Feist filed a motion for summary judgment on the issue of liability. Thereafter, Dr. Ferguson retained an expert, Dr. Denardo Dunham, who was subsequently scheduled to be deposed by Mr. Feist. The hearing on the motion for summary judgment was continued after Dr. Ferguson retained Dr. Denardo Dunham as an expert. Thereafter, a motion to compel and a motion for sanctions were filed by Mr. Feist, which were respectively granted and denied by the district court. The hearing on the motion for summary judgment of Mr. Feist was heard in January 2011, and was granted by the district court. This timely appeal followed.

Dr. Ferguson raises two (2) issues on appeal:

1. The district court committed error in finding there was no material issue of fact in a case where two equally qualified experts had differing views on whether Dr. Ferguson breached the applicable standard of care.
2. The district court committed error in finding there was insufficient evidence to refute the allegation that Dr. Ferguson breached the applicable standard of care.

Appellate court review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 2005-0357, p. 3 (La.App. 4 Cir. 2/15/06), 926 So.2d 16, 18. Furthermore, a motion for summary judgment will be granted if the pleadings, depositions, answers to | (¡interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

While Dr. Ferguson raises two issues on appeal, we find that the issues raised are connected and will address them jointly. Dr. Ferguson argues on appeal that the district court erred in finding there was no material issue of fact in a case where two equally qualified experts had differing views on whether Dr. Ferguson breached the applicable standard of care, and that the district court erred in finding there was insufficient evidence to refute the allegation that Dr. Ferguson breached the applicable standard of care. At the hearing on the motion for summary judgment, the district court determined that there was “insufficient evidence to refute the allegation that Dr. Ferguson breached the standard of care.” We agree.

Mr. Feist retained a podiatrist, Dr. Randall Beckman, to establish that Dr. Ferguson breached the standard of care and that the breach |4caused Mr. Feist’s injuries, and he submitted his affidavit in support of his motion for summary judgment. In his opposition, Dr. Ferguson presented podiatrist Dr. Denardo Dunham, who opined in his affidavit that he (Dr. Ferguson) did not deviate from the standard of care.

The crux of Dr. Ferguson’s argument on appeal is that with competing expert witnesses testifying in opposing viewpoints, a genuine issue of material fact had to exist. He further argues that any credibility determination regarding the methodology, scientific training, experience, or character in light of the criminal charges (if admitted into evidence at trial) pending against Dr. Dunham, are all factors for the trier of fact to consider in determining which expert to believe. However, these are not proper considerations on summary judgment pursuant to our jurisprudence. Dr. Ferguson argues that our Court held that “[f]irst, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Hendrickson v. Guillory, 08-0930, p. 3 (La.App. 4 Cir. 5/18/09), 15 So.3d 256, 258.

The district court, however, held that there was insufficient evidence presented to refute the allegations of Mr. Feist. The determination made by the district court was not one of credibility, but sufficiency. In our de novo review of the competing affidavits, the affidavit of Dr. Dunham does appear to be conclusory. In his affidavit, Dr. Dunham states that he has personal knowledge of the facts and | ¿opinions contained within the instant case. He further states he has performed the procedure that was performed by Dr. Ferguson on Mr. Feist: bunionectomy with base wedge osteotomy, 2.7 cortical screw fixation and arthroplasty. However, he goes on to say that he reviewed the medical records at issue and concludes that there was no breach of the applicable standard of care by Dr. Ferguson. Dr. Dunham never discloses how he reached the conclusion that malpractice was not committed or how Dr. Ferguson did meet the requisite standard of care. The starkness of the affidavit of Dr. Dunham evidences how substantively deficient it is.

Additionally, the failure of Dr. Dunham to state how he reached his conclusions is especially detrimental to the opposition presented by Dr. Ferguson because Mr. Feist supported his motion for summary judgment with an expert who did explain and set forth the facts of why he opined that Dr. Ferguson deviated from the standard of care. Dr. Beckham determined that Dr. Ferguson committed malpractice because he did not perform weight bearing x-rays prior to performing surgery on Mr. Feist. Dr. Beckham further explained that the failure of a podiatrist to conduct such an x-ray prior to performing a bunionectomy with base wedge osteotomy, 2.7 cortical screw fixation and arthroplasty, second, right foot “prevents the surgeon from adequately and throughly [sic] planning the surgical procedure” and “prevents the surgeon from determining the exact bone structure and physiology of the foot at issue.” Thus, in the instant matter, we are not presented with two affidavits of the same caliber, which could possibly create a | (¡genuine issue of material fact as to whether Dr. Ferguson deviated from the standard of care when he did not perform a pre-opera-tive x-ray of the foot of Mr. Feist. Affidavits of experts which present only conclusions are insufficient to defeat summary judgment. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 11 (La.2/29/00), 755 So.2d 226, 233; see also Bertrand v. Air Logistics, Inc., 2001-1655, p. 7 (La.App. 3 Cir. 6/19/02), 820 So.2d 1228, 1234. Thus, we find the affidavit of Dr. Dunham is insufficient. Additionally, we note that the affidavit of Dr. Dunham is neither dated by himself nor the notary. This error as to form further detracts from our consideration of the affidavit.

In the matter sub jtidice, Dr. Ferguson cannot create a genuine issue of material fact when his expert failed to explain how Dr. Ferguson complied with the standard of care when he performed the surgery at issue. Thus, we find that the issues raised by Dr. Ferguson are without merit.

DECREE

For the forgoing reasons, the judgment of the district court is affirmed.

AFFIRMED

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

111 agree with the result reached by the majority but write separately to emphasize that summary judgments deprive litigants of the opportunity to present their evidence to a factfinder and therefore should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, p. 17 (La.2/29/00), 755 So.2d 226, 236. Accordingly, summary judgment is generally inappropriate when a court is faced with competing affidavits. See, e.g., Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234.

As the majority acknowledges, however, the court in this case was not faced with two competing affidavits. Rather, the court was presented with two affidavits, one of which was conclusory and wholly devoid of specific facts to support the conclusion that Dr. Ferguson did not breach the standard of care. Such affidavits are not sufficient to defeat summary judgment. Cheramie Services, Inc. v. Shell Deepwater Prod., Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053, 1062; Sizeler Prop. Investors, Inc. v. Gordon Jewelry Corp., 550 So.2d 237, 242 (La.App. 4th Cir.1989), writ denied, 551 So.2d 1327 (La. 1989). Thus, under these particular 12facts and circumstances, the trial court’s grant of summary judgment was appropriate. I respectfully concur and join the majority in its reasons for judgment.

      . It is not clear from the record as to what conclusion the medical review panel reached.

      . The details of the motion to compel and motion for sanctions are not germane to our review of the instant appeal.

      . At the time the motion for summary judgment was to be heard in 2011, there were criminal charges pending against Dr. Dun-ham in Orleans Parish Criminal District Court.


author: MAX N. TOBIAS, JR., Judge. DYSART, J.,

text:
    STATE of Louisiana v. Generio ALLEN.
    No. 2011-KA-0693.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Michael Redmann, Assistant District Attorney, New Orleans, LA, for Appellant.
    Kenneth J. Beck, Gretna, LA, for Appel-lee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

^In this bond forfeiture proceeding, the appellant, State of Louisiana, appeals the trial court’s setting aside of two judgments of bond forfeiture that were rendered when the defendant, Generio Allen (“Mr. Allen”), was not surrendered before the expiration of the statutory six-month surrender period. The commercial surety bonds totaling $40,000.00 were posted by American Bankers Insurance Company (“American Bankers”) through its authorized agent, Bayou-James Bail Bonds (“Bayou-James”). For the following reasons, we reverse the trial court judgment.

Mr. Allen was arrested on 29 June 2009, for two heroin-related charges. He appeared for a hearing held on 30 June 2009, whereat the court set his bail at $25,000.00 for distribution of heroin (Count 1) and $15,000.00 for possession with intent to distribute heroin (Count 2). Mr. Allen contracted with Bayou-James for two separate commercial surety bonds and bonded out of jail. The bonds were underwritten by American Bankers.

The prosecution of the drug charges against Mr. Allen was instituted by the state on 1 September 2009, and was arraigned on 7 October 2009. On 11 January ] 22010, the trial court appointed an attorney to represent him and he was ordered to appear for a hearing on motions scheduled for 29 January 2010. Mr. Allen failed to appear on 29 January 2010 as ordered. The state moved for forfeiture of the bonds, and on that same day, the trial court rendered and signed two judgments of bond forfeiture against Mr. Allen and American Bankers, and in favor of the state totaling $40,000.00. In accordance with La.C.Cr.P. art. 349.3, notices of signing of the judgments were mailed on 3 March 2010, to Mr. Allen, American Bankers, and Bayou-.James.

On 27 August 2010, within six months of the mailing of the notices of judgment, American Bankers filed a motion for extension of time within which to surrender Mr. Allen and be relieved of the bond obligations. The state responded on 28 September 2010, filing an exception of no cause of action asserting that the law does not allow an extension of time to surrender an accused except pursuant to La.C.Cr.P. art. 345(1) where “a fortuitous event has occurred and ... the event has made it impossible to perform as required under the contract.” The matter was not immediately heard by the trial court.

On 5 October 2010, Mr. Allen was apprehended by American Bankers and surrendered to the Orleans Parish Prison. Thereafter, on 28 October 2010, American Bankers filed a motion to set aside the judgment of bond forfeiture and a petition for nullity of judgment on the grounds that a motion for extension of time had been timely filed and that the fugitive was then in custody.

American Bankers’ motion was heard on 29 November 2010, at which time American Bankers conceded that Mr. Allen was not returned until 22 days after the ^expiration of the six-month period set forth in former La. R.S. 15:85(10)(1), but argued the trial court had the authority to grant an extension of time beyond the initial automatic six-month period. American Bankers argued that, upon information and belief, Mr. Allen was in federal protective custody as an unindicted co-conspirator in a federal case thereby preventing American Bankers from being able to timely apprehend and surrender him to the court during the initial six-month period.

The trial judge stated that she would have granted the surety an extension of at least 30 days for it was her understanding that Mr. Allen was “an unindicted co-conspirator in a sealed indictment in Federal Court.” She concluded that such constituted a “fortuitous event” under La. C.Cr.P. art. 345(1), and further found that Mr. Allen was apprehended and surrendered to the court 22 days beyond the expiration of the six-month period. She signed a written judgment on 3 December 2010 setting aside the judgments of bond forfeiture. The state timely appealed.

The sole issue presented by this appeal is whether the trial judge abused her discretion when she determined sufficient grounds existed in accordance with La. C.Cr.P. art. 345(1) to allow American Bankers an extension of time beyond the six-month statutory period in which to satisfy the two judgments of bond forfeiture by surrendering Mr. Allen.

The state argues the trial court erred (a) in determining that the evidence supports a finding that a fortuitous event occurred, making it impossible for American Bankers to timely apprehend and surrender Mr. Allen within the statutory six-month period, and (b) that absent satisfactory proof that a fortuitous |4event preventing timely performance by the surety under the contract existed, the trial court lacked authority to grant American Bankers an extension of time and, consequently, the bond forfeiture should not have been set aside. We agree.

Prior to 2006, the trial court lacked discretion to extend the automatic six-month-period provided to sureties involving bonds having a face value of under fifty thousand dollars within which to apprehend and surrender a defendant to the state. In 2006, largely in response to the difficulties experienced by law enforcement officials to timely locate some criminal defendants following the devastation and destruction left in the aftermath of hurricanes Katrina and Rita, by La. Acts 2006, No. 466, the legislature enacted La.C.Cr.P. art. 345(1), which created an exception whereby the court in its discretion could extend the six-month period to surrender the defendant upon a showing by the surety “with proof satisfactory to the discretion of the court ” that a fortuitous event had occurred |fipreventing timely performance under the contract. See State v. De La Rosa, 43,-696, p. 4 (La.App. 2 Cir. 10/22/08), 997 So.2d 165, 168. As originally enacted in 2006, the trial court had discretion to determine whether or not the evidence presented by the surety established that a fortuitous event had occurred and whether such event made the surety’s ability to perform under the contract impossible. American Bankers argues that “the language of the statute is broad and encompassing” and that it “is flexible to a variety of circumstances and gives the trial judge vast discretion.”

However, in 2010, La.C.Cr.P. art. 345(1) was amended by La. Acts 2010, No. 914, § 1 (effective 15 August 2010), and the trial court’s discretion to extend the six-month period was removed and/or greatly restricted. Specifically, the | (¡amendment substituted in article 345(1) “the court that a fortuitous event has occurred and that the event has made it impossible to perform as required by the contract” for “the discretion of the court that a fortuitous event has occurred and that such event has made his performance required under the contract impossible to perform.” (The discretion language was removed.) Thus, the determination as to whether the evidence presented sufficiently established that a fortuitous event occurred and that such event made timely performance under the contract impossible was no longer a subjective determination, but rather, an objective one. Because the amendment is procedural in nature, and no legislative expression to the contrary exists, it is to be applied both prospectively and retroactively, and thus applies to the instant case. See La. C.C. art. 6 and the 1987 revision comments thereto.

[7“Fortuitous event” is defined in La. R.S. 15:83 “as one that, at the time the contract was made, could not have been reasonably foreseeable by the surety.” La. R.S. 15:83, which sets forth the nature of the bail bond obligation, states:

A. As criminal bail bonds are contractual and civil in nature, their creation and enforcement are governed both by the laws applicable to civil contracts and by the laws set forth in the statutes and code articles governing criminal procedure.
B. The surety, when entering into a criminal bail bond obligation, must consider the risks of his undertaking and assume those risks reasonably foreseeable.
1SC. (1) The surety is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event.
(2) A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen by the surety.
(3) A declaration of a disaster which qualifies for relief and assistance under Chapter 68 of Title 42 of the United States Code, the “Robert T. Stafford Disaster Relief and Emergency Assistance Act,” meets the definition of a fortuitous event.

At the hearing on American Bankers’ motion to set aside the bond forfeitures, American Bankers argued that the “fortuitous event” that occurred was that Mr. Allen was an unindieted co-conspirator in a sealed indictment in Federal Court. In her oral reasons for judgment, the trial judge agreed that this constituted a fortuitous event; however, no documentation whatsoever was introduced at the hearing establishing this alleged fact. (Even if such documentation had been introduced into evidence, we do not find that such would constitute a fortuitous event because remedies exist in the law that would provide American Bankers with a means to get Mr. Allen into court.) The only evidence presented was the testimony of the bail bondsman, Lutwick Butscher, who testified as follows:

BY MR. REDMANN:
Q. Mr. Butscher, you said that you picked up Generio Allen before?
A. Yes, right after we apprehended him I told you that after we picked up Generio Allen that he started talking in the car that he wanted me to call his informant, this guy from the Federal—
BY THE COURT:
When you picked up who?
BY MR. BUTSCHER:
When I picked up Generio Allen.
BY THE COURT:
|aWhat date did you pick him up?
BY MR. BUTSCHER:
It had to be October 5th, whatever—
BY MR. REDMANN:
Q. Did you pick him up from a Federal prison?
A. No.
BY THE COURT:
Well, how’d you find him?
BY MR. BUTSCHER:
We had an informant tell us that he was—
BY THE COURT:
He obviously wasn’t in custody if he got in your car.
BY MR. BUTSCHER:
What’s that?
BY THE COURT:
He was not in custody anywhere?
BY MR. BUTSCHER:
He wasn’t in custody anywhere, but he was — after he got in the car he said he was working.
BY THE COURT:
So you found him at a house — hotel somewhere, at a residence?
BY MR. BUTSCHER:
I found him at a residence, yes.
BY THE COURT:
And so you get him in a car. You getting ready to turn him in and on the way there he says, I need to call somebody?
BY MR. BUTSCHER:
Correct. He needed to call somebody in the — His Federal informant guy, whoever he needed to call. And the time we get him booked — the time we put him in — we surrender him in jail he’s being booked under Federal custody.
BY THE COURT:
Was there a warrant out for him federally?
BY MR. BUTSCHER:
ImThere was a seal—
BY THE COURT:
A sealed indictment?
BY MR. BUTSCHER:
A sealed indictment.
BY THE COURT:
What else do you want to ask him? Don’t ask him anything about the fight you have going on with Rufus Johnson, because I’m not interested.
BY MR. REDMANN:
Okay, Judge.
Q. So to be clear, you picked him up. He was at a residence. What residence was he at?
BY RETIRED JUDGE C. HEARN TAYLOR:
Asked and answered, Your Honor. It was very clear.
BY THE COURT:
It doesn’t matter where he was. He wasn’t in custody.
BY MR. REDMANN:
He wasn’t in custody. Okay. No more questions, Judge. Thank you.
BY THE COURT:
Do you have any questions?
BY RETIRED JUDGE C. HEARN TAYLOR:
I have no questions, Your Honor.

Pursuant to La.C.Cr. P. art. 345(1), not only must the event be “fortuitous,” it must also make performance by the surety impossible. Thus, even if we were to conclude from the evidence (which we do not) that Mr. Allen was, in fact, an unindicted co-conspirator in a sealed indictment working as an informant for the federal government, and that this constituted a “fortuitous event” that could not have been reasonably foreseen by American Bankers at the time it posted the bonds, we find no evidence in the record substantiating American B anker s’ _J_y contention that this “event” rendered its timely performance under the contract impossible. The record lacks proof showing Mr. Allen was being detained or held in custody in any manner, not only at the time he failed to appear in court on or after 29 January 2010 until he was ultimately apprehended on 5 October 2010 at a private, local residence — not in a federal prison or a foreign jurisdiction. The testimony of the bail bondsman further noted that Mr. Allen was working at the time he was apprehended. Moreover, the record contains no evidence explaining what, if anything, changed in Mr. Allen’s circumstances between the expiration of the six-month period and 22 days later that made it impossible for American Bankers to locate, but possible to locate him on 5 October 2010.

Because we find the record lacks sufficient proof pursuant to La.C.Cr.P. art. 345(1) establishing that a fortuitous event occurred or that it was impossible for American Bankers to locate Mr. Allen and surrender him to the state within the statutory six-month period, we hold the trial judge was without discretion to grant American Bankers an extension of time to apprehend and surrender Mr. Allen. Accordingly, we further hold that the trial judge’s setting aside of the two judgments of bond forfeiture was in error.

For the foregoing reasons, the judgment granting American Bankers Insurance Company’s motion to set aside two judgments of bond forfeiture is reversed.

REVERSED.

DYSART, J., dissents, with reasons.

DYSART, J.,

dissents, with reasons.

hi respectfully dissent. There is no dispute, as regards the factual background and timeline of this matter. American Bankers Insurance Company (hereafter American) posted an aggregate Forty Thousand and no/100 ($40,000) Dollars in commercial surety bonds to secure the appearance of defendant, Generio Allen. Allen failed to appear as ordered on January 29, 2010, and upon the motion of the State, the trial court signed two written judgments of bond forfeiture against American in favor of the State of Louisiana for a total of $40,000. On March 3, 2010, the Clerk of Court of Orleans Parish Criminal District Court mailed notice of the signing of the judgments in accordance with La. Code Crim. Proc. art. 349.3. On August 27, 2010, within six months of the notice, American filed a “Motion for Extension of Time Within Which to Bring Defendant to Court and Be Relieved of Bond Obligation” in accordance with La.Code Crim. Proc. art. 345(1). In response, the State filed an “Exception of No Cause of Action.” Before a hearing was scheduled on American’s motion, the defendant was surrendered to the court on October 5, 2010. The contradictory hearing on American’s motion was heard by the trial court on November 29, 2010. The only witness to testify at the hearing, the bondsman who apprehended and surrendered the defendant, was called by the State. He testified that when he surrendered the defendant, he was booked under ^federal custody. He further testified that there was a “sealed indictment” against Generio Allen. The trial court ruled in favor of American holding that since the court did not have a contradictory hearing prior to the defendant being surrendered, it would have granted an extension based upon the information presented at the hearing.

In its sole assignment of error the State maintains that the trial court abused its discretion by finding sufficient grounds under La.Code Crim. Proe. art. 345(1) to set aside the bond forfeiture.

The statute at issue provides, in part:

In addition to and not withstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform ...
The court in its discretion may do any of the following:
(1) Set aside the forfeiture and grant the nullity;
(2) Grant an extension of time up to three hundred sixty-six days from the expiration of the initial time period allowed for the surrender of the defendant from the date of the mailing of proper notice of bond forfeiture ...
(3) Deny the relief.

Although 345(1) was amended in 2010 to remove some language allowing for the court’s discretion, the language of the statute is nonetheless broad and open to a variety of instances within the discretion of the trial court. The mover must provide proof satisfactory to the court that a fortuitous event has occurred making it impossible to perform as required under the contract. In the present case the trial court held: “Because he [the defendant] was an unindicted co-conspirator in a sealed indictment in Federal Court. I think that would have been sufficient grounds to give them a little bit additional time to get here.”

In State v. Rice, 36,401 (La.App. 2 Cir. 9/18/02), 827 So.2d 1180, the court held that the bondsman’s excuse for not producing the defendant was insufficient |ato warrant an extension to produce the defendant for court. None of the enumerated reasons for allowing an extension were satisfied, i.e., the bonding company did not claim that the defendant was being detained in Canada, but merely, that he had been located in Canada.

In the instant case, Allen was not being physically detained and was actually located living in a residence. However, he was also under a federal indictment, indicating that he was being “hidden” until he could testify. This fact was corroborated by Allen being checked into the federal tier at central lock-up when he was surrendered to officials in New Orleans.

Accordingly, I find that the trial court acted within its discretion to interpret the particular facts of this case, and analogize Allen’s status as an unindicted co-conspirator under federal indictment with being detained. See La.Code Crim. Proc. art. 349.9 A(2). I would therefore affirm the decision of the trial court.

      . A co-defendant, Trevelle Roundtree, is also charged in the bill of information; this appeal does not involve Mr. Roundtree.

      . La. R.S. 15:85(10)(a) is now codified in La. C.Cr.P. art. 349.8(A). The former six-month period has been changed to a 180-day period.

      . See State v. McCoy, 04-0490, p. 6 (La.App. 5 Cir. 11/16/04), 889 So.2d 1026, 1030; State v. Rice, 36,401, p. 5 (La.App. 2 Cir. 9/18/02), 827 So.2d 1180, 1184; State v. Doyle, 96-1000, 96-1004, pp. 4-6 (La.App. 4 Cir. 11/20/96), 684 So.2d 498, 501; State v. McCreary, 619 So.2d 755, 759 (La.App. 4th Cir.1993).

      . The act added La. R.S. 15:83, 85(12), 85(13) and La.C.Cr.P. arts. 345(1) and (J) and 955(F). Notes to the act state:
      This Act specifically recognizes that hurricanes Katrina and Rita caused significant and devastating destruction of personal and real property, and resulted in the mandatory evacuation, relocation, and displacement of many residents in several parishes of the state of Louisiana. It also recognizes that the devastation caused by the hurricanes resulted in the governor declaring a disaster or emergency by executive order or proclamation pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act for certain parishes. Further, it is recognized that the damages caused by these hurricanes have made it impossible for sureties and law enforcement officials to locate some defendants.

      .As enacted in 2006, La.C.Cr.P. art. 345(1), provided:
      In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the discretion of the court that a fortuitous event has occurred and that such event has made his performance required under the contract impossible to perform. A motion seeking relief pursuant to this Paragraph must be filed within twelve months from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:
      (1) Set aside the forfeiture or grant the nullity.
      (2) Grant an extension of time up to twelve months from the expiration of the initial six month time period from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.
      (3) Deny the relief. [Emphasis supplied.]

      . The 2010 amended version of La.C.Cr.P. art. 345(1) states, in pertinent part:
      In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform as required under the contract.... The court in its discretion may do any of the following:
      (1) Set aside the forfeiture or grant the nullity.
      (2) Grant an extension of up to three hundred sixty-six days from the expiration of the initial period allowed for the surrender of the defendant from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.
      (3) Deny the relief.

      . La. C.C. art. 6 states: "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”

      . In pertinent part the comment states:
      (b)According to a well-settled rule of statutory interpretation, a substantive law applies prospectively only, unless it expressly or impliedly provides that it be applied both prospectively and retroactively. Of course, retroactive application of substantive laws is possible only to the extent that it is constitutionally permissible.
      (c) According to a well-settled rule of statutory interpretation, procedural and interpretative laws apply both prospectively and retroactively unless they violate vested rights or obligations of contracts.
      (d) Article 6 makes no reference to so-called remedial legislation because of the multiplicity of meanings assigned to it. A remedial law may be procedural, interpretative, or substantive. A procedural law is remedial in the sense of dealing with the remedy rather than with the right itself. An interpretative law is remedial in the sense of remedying an error or ambiguity in the prior law. In both situations the new law may, in principle, apply retroactively even in the absence of express language to that effect. However, a substantive law may also be, and often is, called remedial when it remedies an existing social problem resulting from a gap, silence, or deficiency of the prior law. In such a situation, the new law should not be applied retroactively, absent a contrary and constitutionally permissible legislative directive. [Internal citations omitted.]

      .Similarly, under the Civil Code, "an obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible,” unless the obligor “assumed the risk of such a fortuitous event.” La. C.C. art. 1873.
      Revision Comment (c) to La. C.C. art. 1873 states: “As a matter of legal semantics, ‘impossibility of performance' is the English equivalent of the French 'cas fortuit ou force majeure.’ In spite of strenuous doctrinal efforts to distinguish between cas fortuit (fortuitous event) and force majeure (irresistible force), the jurisprudence, in France, Louisiana, and even at common law, uses the two expressions interchangeably. Modern codes have eliminated one or the other of the two expressions ... The expression ‘fortuitous event’ has been chosen for this revision because it implicitly encompasses the companion concept, especially when the event must be such as to make performance impossible, as this Article provides.” [Internal citations omitted.] A “fortuitous event” is defined by the Civil Code as "one that, at the time the contract was made could not have been reasonably foreseen.” La. C.C. art. 1875. “When the entire performance owed by one party has become impossible because of a fortuitous event, the contract is dissolved.” La. C.C. art. 1876. However, an obligor is "not released from his duty to perform under a contract by the mere fact that such performance has been made more difficult or more burdensome by a fortuitous event.” Payne v. Hurwitz, 07-0081, p. 8 (La.App. 1 Cir. 1/16/08), 978 So.2d 1000, 1005. In short, nonperformance of a contract is not excused by a fortuitous event where it may be carried into effect, although not in the manner contemplated by the obligor at the time the contract was entered into. Associated Acquisitions, L.L.C. v. Carbone Properties of Audubon, L.L.C., 07-0120, pp. 7-8 (La.App. 4 Cir. 7/11/07), 962 So.2d 1102, 1107.