author: PATRICIA RIVET MURRAY, Judge.

text:
    Kyle Aaron BROWN v. Taraunce Charles MARTIN and Central Parking System of Louisiana, Inc.
    No. 2010-CA-0799.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Tammy M. Nick, Nick Law Firm, L.C., Slidell, LA, for Plaintiff/Appellant.
    Michael R. Zsembik, Metairie, LA, for Defendant/Appellee, Central Parking System Of Louisiana, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

kThis is a tort suit arising out of an off-duty deputy, who was working a private detail for a parking lot owner, shooting and injuring an armed parking lot patron. The narrow issue presented is whether the trial court correctly concluded that the deputy, Taraunce Charles Martin, acted in self-defense and thus that the deputy’s private employer, Central Parking System of Louisiana, Inc., could not be vicariously liable to the injured patron, Kyle Aaron Brown. Finding no error in the trial court’s conclusion, we affirm the granting of Central Parking’s motion for summary judgment and dismissing Mr. Brown’s suit against it.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of January 26, 2008, Kyle Brown and two female friends went out partying in the New Orleans French Quarter. At about 4:00 a.m. on January 27, 2008, the trio returned to Mr. Brown’s car, which was parked in Central Parking’s lot located on Conti Street. When they reached the Conti Street lot, Mr. Brown became embroiled in a dispute with the occupants of a red truck. The driver of the red truck began to drive in circles around the trio, and the occupants in the truck began taunting and shouting at Mr. Brown. The trio continued walking towards Mr. Brown’s car. When they reached the car, Mr. |2Brown armed himself with a handgun, which he removed from under the driver’s seat. Despite the cold January weather, Mr. Brown took off his shirt. The two females got into the car, and Mr. Brown proceeded towards the red truck.

Meanwhile, the cashier and some customers in the parking lot alerted Deputy Martin that a man (later identified as Mr. Brown) was running around the lot with a gun and screaming and shouting at people. Deputy Martin, who was on foot, requested his partner, Walter Wilson, who was stationed in his vehicle, provide him with backup assistance. At that time, both Deputy Martin and Deputy Wilson were working a private detail for Central Parking. Deputy Martin then went to investigate the disturbance.

When Deputy Martin approached Mr. Brown in the parking lot, Mr. Brown was having words with the occupants of the red truck. Deputy Martin neither detained nor questioned the occupants of the red truck. Nor did he inform Mr. Brown that he was a law enforcement officer. Deputy Martin unsuccessfully attempted to calm down Mr. Brown, who was agitated. Deputy Martin instructed Mr. Brown, who appeared to be intoxicated, to get into his car and to leave the parking lot. In order to attempt to get Mr. Brown to leave, Deputy Martin told him “Go home. You been drinking. Go chill out and go home.” Deputy Martin also warned him that he was going to have to arrest him. Mr. Brown then drew his | ?,weapon, pointed it at the ground, and shouted several racial expletives. Deputy Martin then drew his gun and commanded several times, each time more forcefully, that Mr. Brown drop the gun. Mr. Brown ignored the commands. Instead, Mr. Brown pointed the gun at Deputy Martin and threatened to kill him, stating, “Well, f ... it, I’ll kill you.” In response to the threat, Deputy Martin fired several shots at Mr. Brown. It is undisputed that Deputy Martin fired nine shots and that Mr. Brown was hit between five and seven times. Although both Deputy Martin and his partner, Deputy Wilson, believed that Mr. Brown had fired a shot, it is undisputed that Mr. Brown did not fire any shots.

Mr. Brown was criminally charged with and convicted of aggravated battery of a peace officer with a firearm, a violation of La. R.S. 14:37.2. This court affirmed the conviction. State v. Brown, 09-0863 (La.App. 4 Cir. 12/2/09), 26 So.3d 845.

On January 29, 2009, Mr. Brown commenced this tort suit against Mr. Martin and both his alleged private employer, Central Parking, and his public employer, the Orleans Parish Criminal Sheriff, Marlin N. Gusman. Mr. Brown alleged that Deputy Martin was Central Parking’s employee at the time of the shooting and that Central Parking thus was vicariously responsible for his actions.

After answering the suit and generally denying the allegations of the petition, Central Parking filed a motion for summary judgment. In support of its motion for summary judgment, Central Parking introduced the entire transcript Mr. Brown’s January 27, 2009, criminal trial. The State’s three witnesses at the criminal trial were Deputy Martin; Deputy Wilson, who was Deputy Martin’s |4partner; and Derika Gibson, an off-duty deputy who witnessed the shooting from a vehicle parked near the parking lot entrance. The defense’s two witnesses were Alexandra Biggs, one of the females who accompanied Mr. Brown to the French Quarter; and Sergeant Randy Mannix, who served in the army with Mr. Brown and trained him in gun safety. The facts of this case, as presented at the criminal trial, are outlined in detail in this court’s opinion in Brown, supra. Summarizing, the pertinent facts are as follows:

The deputies’ [Deputy Martin’s and Deputy Wilson’s] testimony reflects that customers reported to the cashier that the defendant [Mr. Brown] was belligerent, hostile, and appeared to have been drinking, and he was running around the parking lot with a gun. Deputy Martin approached the defendant [Mr. Brown], and the defendant [Mr. Brown] pulled a gun from his waistband. Deputy Martin took cover behind a parked vehicle and Deputy Wilson provided backup. The testimony of the deputies as well as that of an observing, off-duty deputy [Deputy Gibson] reflects that the defendant [Mr. Brown] pointed the gun at Deputy Martin.
Deputy Martin testified that after making repeated attempts to calm him, the defendant [Mr. Brown] continued to resist his efforts. The defendant [Mr. Brown] grew increasingly belligerent, yelling expletives and racial slurs. Deputy Martin ordered the defendant [Mr. Brown] to drop his weapon and he refused. Deputy Martin then fired shots at the defendant [Mr. Brown]. The 911 supervisor authenticated the tape of the 911 call received in connection with the incident, in which a code 108, “officer needs assistance,” request was made.

Brown, 09-0863 at pp. 12-13, 26 So.3d at 852-53.

In opposing the summary judgment, Mr. Brown submitted excerpts from the criminal transcript and his own affidavit. In his affidavit, which is dated January 6, 2010, Mr. Brown attested that:

|fil. When Deputy Martin approached me I did not know he was a peace Deputy or law enforcement officer.
2. I armed myself only to protect my life and the lives of my companions as we were being threatened by the occupants of a red truck.
3. I would have been relieved to know that Deputy Martin was providing security as he did nothing in my presence to get rid of the threat presented by the occupants of the red truck and the truck itself.
4. I was shot five or six times and critically wounded as a result of those nine shots fired by Deputy Martin, (see exhibit “B”, an excerpt of my initial hospitalization and diagnosis.)
5. I had never formed the intent to fire my weapon at anyone before I was shot.
6. I never threatened Deputy Martin as I had nothing going on with him.
7. I merely reacted to a loud voice behind me which caused me to turn my body while armed.

The trial court granted Central Parking’s motion for summary judgment, denied Mr. Brown’s motion for new trial, and certified its judgment as final. This appeal followed.

DISCUSSION

Appellate courts review the grant of a summary judgment motion de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Samaha v. Rau, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. In determining whether summary judgment is appropriate the two issues a court must resolve are whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066, p. 4 (La.7/6/04), 880 So.2d 1, 5. Summary Ifijudgment shall 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.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id. (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). Simply stated, a “material” fact is “one that would matter on the trial on the merits.” Smith, supra.

The party seeking the summary judgment has the initial burden of affirmatively showing the absence of a genuine issue of material fact. Allen v. Integrated Health Services, Inc., 32,196, p. 3 (La.App. 2 Cir. 9/22/99), 743 So.2d 804, 806. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222, p. 4 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897.

“Favored in Louisiana, the summary judgment procedure ⅛ designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 04-0337, p. 7 JjCLa.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). 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. Jeanmarie v. Peoples, 09-1059, p. 7 (La.App. 4 Cir. 3/16/10), 34 So.3d 945, 950 (citing Willis v. Medders, 00-2507, p. 1 (La.12/8/00), 775 So.2d 1049, 1050 (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236)).

Central Parking’s motion for summary judgment was based on the affirmative defense of self-defense — that it could not be liable because its employee, Deputy Martin, was acting in self-defense when “he fired at the pistol [wjielding plaintiff after the plaintiff threatened to kill the uniformed deputy.” As the party pleading an affirmative defense Central Parking had the burden of proof. Jeanmarie, 09-1059 at p. 6, 34 So.3d at 950 (citing Touro Infimary v. Marine Medical Unit, Inc., 96-2506, p. 6 (La.App. 4 Cir. 5/12/97), 699 So.2d 90, 93).

Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. The law on self-defense involving deadly force is that generally “a person cannot use ‘deadly force’ (force likely to cause death or great bodily harm) unless he reasonably believes he is threatened with serious bodily harm.” Frank L. Ma-raist and Thomas C. Galligan, Jr., Louisiana Tort Law, § 2.09[2] (2nd ed. 2009)(Maraist & Galligan)(citing Mathews v. Stewart, 293 So.2d 209 (La.App. 3rd lsCir.1974)). The factors the jurisprudence considers in deciding whether the circumstances justified the use of deadly force include: (i) the character and reputation of the attacker, (ii) the attacker’s belligerence, (iii) the difference in size and strength between the parties, (iv) the attacker’s overt acts or threats of bodily harm, and (v) the possibility of a peaceful retreat. Roberts v. Boudreaux, 472 So.2d 166, 168 (La.App. 5th Cir.1985)(citing Levesque v. Saba, 402 So.2d 266, 270 (La.App. 4th Cir.1981)). “Many of these are the same factors applicable in any self-defense case.” Maraist & Galligan, supra.

Applying these factors to the facts of this case, we find the record reflects that the attacker, Mr. Brown, was belligerent— hostile and ready to start a fight. Indeed, Deputy Martin testified that he attempted to calm Mr. Brown down and instructed Mr. Brown to go home and cool off. The record further reflects that Mr. Brown engaged in an overt act — aimed a gun at Deputy Martin — and threatened bodily harm — threatened to kill. An analysis of these facts thus supports a finding that Deputy Martin was justified in using deadly force.

Similar to the determination of comparative fault, the issue of the applicability of the affirmative defense of self-defense is a fact-intense, totality of the circumstances determination. Freeman v. Teague, 37,982, pp. 5-6 (La.App. 2 Cir. 12/10/03), 862 So.2d 371, 374. As such, this determination is generally 1 Inappropriate for summary judgment. However, where reasonable minds cannot differ, the question of self-defense with a dangerous weapon is a question of law that may be resolved by summary judgment. Id.; Rance v. Harrison Co., 31,503, pp. 7-8 (La.App. 2 Cir. 1/20/99), 737 So.2d 806, 810 (holding when reasonable minds cannot differ, the question of comparative negligence is a question of law appropriate for summary judgment).

Mr. Brown acknowledges that his conviction for aggravated assault of a peace officer with a firearm can be used to establish that Deputy Martin was placed in a reasonable apprehension of receiving a battery. However, he contends that does not mean Deputy’s Martin’s subsequent actions of shooting him six to seven times were reasonable. He further contends that the outcome of the criminal case is not dispositive of this civil case. Mr. Brown’s argues that “[t]he undisputed facts in this case are that the Plaintiff was shot at nine times and was struck, six to seven times while the Plaintiff never fired his gun.” He points out that in his petition he alleged that the shots Deputy Martin fired at him were disproportionate to the degree of force necessary because after being shot, he fell down and then was repeatedly shot after he was already on the ground. The particular paragraph of the petition reads:

Taraunce Charles Martin observed the Petitioner pull the handgun out of his pocket and immediately drew his firearm and pointed it at the Petitioner. When Petitioner turned in the direction of Taraunce Charles Martin, Taraunce Charles Martin fired at the Petitioner, knocking him to the ground. Taraunce Charles Martin then looked down at the Petitioner and fired at least fire more shots at the Petitioner, hitting him four more times and critically wounding him.

|inMr. Brown’s primary contention is that summary judgment was improper because a genuine issue of material fact exists regarding whether Deputy Martin used excessive force. In support of this contention, Mr. Brown cites the testimony of the State’s three witnesses at the criminal trial. First, he cites Deputy Martin’s testimony that he remembered firing once, looking down, thinking that he heard return fire, and firing four more rounds. Second, he cites Ms. (Deputy) Gibson’s testimony that within a couple of shots Mr. Brown was down. Third, he cites Deputy Wilson’s testimony that he did not shoot his gun because once Mr. Brown was hit there was no need for him to fire. Based on this evidence, Mr. Brown contends that there is a genuine issue of material fact.

Central Parking counters that the State’s three witnesses all testified that Deputy Martin stopped shooting as soon as Mr. Brown went down. Although Ms. (Deputy) Gibson testified that Mr. Brown was down “[wjithin a couple of shots,” she further testified that she did not see Deputy Martin stand over Mr. Brown and shoot. Deputy Wilson testified that “[o]nce he [Mr. Brown] fell, that was the end of the shooting.” Deputy Martin testified that that he shot Mr. Brown until he went down. Deputy Martin further testified that he thought he shot Mr. Brown about five times and denied shooting him again after he hit the ground.

The opponent to a properly supported motion for summary judgment may not rest on the mere allegations or denials of his or her pleadings, but must respond by affidavits or as otherwise provided by law setting forth specific facts showing that there exists a genuine issue of material fact for trial. Coates v. Anco Insulations, Inc., 00-1331, p. 5 (La.App. 4 Cir. 3/21/01), 786 So.2d 749, 753. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967. Such is the case here. The record is devoid of any evidence supporting Mr. Brown’s contention that Deputy Martin used unreasonable force. Although Mr. Brown submitted his own affidavit in opposition to the motion for summary judgment, his affidavit does not state that Deputy Martin continued to shoot once Mr. Brown was on the ground.

Mr. Brown contends, in his brief, that “[discovery as to the trajectory of the bullets and the angle of entry can certainly be sought through the use of medical experts and since none of the bullets exited the Plaintiffs body, it is reasonable to assume that the Plaintiff was lying on a hard surface, such as the ground, that prevented the six to seven bullets from exiting the Plaintiffs body.” Mr. Brown’s speculation regarding the potential outcome of discovery, which was never requested in the trial court, is insufficient to establish a genuine issue of material fact. ‘While parties should be given a fair opportunity to present their claim, there is no absolute right to delay action on a motion for summary judgment until discovery is completed.” Jeanmarie, 09-1059 at pp. 8-9, 34 So.3d at 951. In this case, as Central Parking points out, Mr. Brown neither conducted any discovery nor represented that any discovery was needed before the trial court decided the motion for summary judgment. The record thus supports the trial court’s decision granting Central Parking’s motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Both Deputy Martin and Deputy Wilson were off-duty New Orleans criminal sheriff deputies who were working an approved paid private security detail at Central Parking’s Conti Street lot. Both of them worked full-time for the criminal sheriff's office transporting inmates to court and to medical appointments. At Central Parking, their responsibilities included patrolling the parking lot in question. At the time of the incident, both deputies were dressed in their sheriff uniforms. Although there is some dispute as to whether Deputy Martin's badge was visible, the factual dispute regarding the visibility of Deputy Martin’s badge does not create a genuine issue of material fact because it is not pertinent to the self-defense issue before us. The record in the criminal proceeding, which was introduced, “reflects that Deputy Martin was wearing his full deputy uniform with his badge clearly displayed on the front of jacket when he approached the defendant.” State v. Brown, 09-0863, p. 12 (La.App. 4 Cir. 12/2/09), 26 So.3d 845, 852.

      . Although Deputy Martin indicated that Mr. Brown was shouting racial expletives, the trio and the occupants of the red truck were all Caucasians.

      . Mr. Brown states in his petition that before the shooting, he "was employed by the United States Army and had served in Iraq. He has also been accepted into his local police academy and was scheduled to begin his employment the day after the shooting.”

      . Although Mr. Brown in his brief represents that he opposed the introduction of the entire transcript of the criminal trial, he does not assign as error the trial court's decision to allow the entire transcript to be considered on the motion for summary judgment.

      . Although the trial court’s judgment is certified as final, the judgment dismisses a party and thus, by definition, is final without being designated as such. La. C.C.P. art. 1915 A(l).

      . For purposes of the motion for summary judgment it is taken as true that Deputy Martin was acting within the course and scope of his employment with Central Parking.

      . We note that in 2006, the Legislature provided by statute, that "any person who uses reasonable and apparently necessary or deadly force to prevent a forcible offense against the person or his property, in accordance with La. R.S. 14:19 or 20 (criminal provisions governing self defense and justifiable homicide), is immune from civil action for the use of such force." Maraist & Galligan, supra.

      . As Mr. Brown points out, the use of force by law enforcement officers is governed by the reasonable force standard under La. C.Cr.P. art. 220 (which governs use of force for a lawful arrest) and Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). To determine whether an officer acted reasonably under the circumstances the jurisprudence considers the so-called Kyle factors; to wit: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee's escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officer as compared to the arrestee; and (7) the exigency of the moment. See also Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318 (finding Kyle factors apply in judging an officer’s reasonableness in approaching a suspect). Many of these factors are the same factors used in analyzing self-defense with deadly force.

      . As noted elsewhere, Ms. Gibson was an off-duty deputy who coincidentally was in the area and witnessed the shooting.


source: Caselaw Access Project

license: Public Domain

text:
    DISCOVER BANK v. Michael S. RUSHER.
    No. 2010-CA-0850.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.
    Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Eaton Group Attorneys, LLC, Baton Rouge, LA, for Plaintiff/Ap-pellee Discover Bank.

      Richard H. Ahamad, Southeast Louisiana Legal Services, New Orleans, LA, for Defendant/Appellant Michael S. Rusher.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

h Defendant Michael Rusher appeals the trial court’s judgment awarding principal, interest and attorney’s fees to Discover Bank on an open account. For the reasons that follow, we reduce the amount of attorney’s fees awarded and affirm the judgment in all other respects.

FACTS AND PROCEEDINGS BELOW

On July 31, 2009, Discover Bank filed a petition in First City Court for the City of New Orleans against individual account holder Michael Rusher alleging Mr. Rusher had defaulted on his credit card agreement and owed Discover Bank the outstanding balance of $19,900.41, plus 18% interest from April 30, 2009, and 25% attorney’s fees. On December 17, 2009, Discover Bank filed a motion for summary judgment and supporting documents asserting it was entitled to recover these same amounts. In his memorandum in opposition to the motion, Mr. Rusher did not contest the principal and interest owed but contended only that the amount of attorney’s fees demanded was unreasonable. The trial court heard the matter on March 4, 2010, and granted summary judgment the same day in favor of Discover 1 j>Bank for the amounts of principal and interest demanded, as well as 20% of the aggregate of principal and interest in attorney’s fees, which amounted to $4584.62 on the date of judgment. From this judgment, Mr. Rusher appeals.

ISSUES

The sole issue raised by the appellant is whether the amount of attorney’s fees awarded is excessive. In its appellee brief, Discover Bank argues that 20% in attorney’s fees is reasonable and also seeks additional attorney’s fees for the defense of this appeal. Because Discover Bank did not file an answer to the appeal, however, we are precluded from modifying the judgment in its favor. See La. C.C.P. art. 2133; Weber v. Crescent Ford Truck Sales, Inc., 393 So.2d 919, 924 (La.App. 4 Cir. 1981). Accordingly, we address only the issue raised by the appellant.

DISCUSSION

Appellate courts review the granting of summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lomax v. Ernest Morial Convention Center, 07-0092, p. 1 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 464-65.

La. R.S. 9:2781 provides, in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment Lon the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

In the instant case, the credit card agreement provides, in pertinent part:

Consequences of Default. If you [the cardmember] are in default, we [Discover Bank] may declare the entire balance of your Account immediately due and payable without notice. If we refer the collection of your account to an attorney or employ an attorney to represent us with regard to recovery of money that you owe us, we may charge you reasonable attorneys’ fees and court or other collection costs as permitted by law and as actually incurred by us, including fees and costs in connection with any appeal.

The trial court is vested with great discretion in arriving at an award of attorney’s fees, the exercise of which will not be reversed on appeal absent a showing of clear abuse of that discretion. Troth Corp. v. Deutsch, Kerrigan & Stiles, 06-0457 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1165 (Citations omitted). The factors to be considered by the trial court in making an award of attorney’s fees include the “ultimate result obtained; responsibility incurred; importance of the litigation; amount involved; extent and character of labor performed; legal knowledge; attainment and skill of the attorney; number of appearances made; intricacies of facts and law involved; diligence and skill of counsel; court’s own knowledge; and ability of party liable to pay.” Id., p. 3, 951 So.2d at 1165 (quoting S. Jackson & Son, Inc. v. Aljoma Lumber, Inc., 93-2531 (La.App. 4 Cir. 5/26/94), 637 So.2d 1311, 1313).

Mr. Rusher argues that the amount of attorney’s fees awarded herein is unreasonable because the trial court had no evidentiary basis for the award. He points out that Discover Bank failed to produce any evidence showing the actual hours spent and/or attorney’s fees charged in support of its motion for summary JjJudgment. Mr. Rusher also argues that the trial court’s oral reasons at the conclusion of the hearing demonstrate that the court failed to consider the factors listed in Troth, supra, particularly Mr. Rusher’s pauper status. More specifically, the appellant points to the trial court’s comments indicating that in some collection cases, usually those involving smaller accounts, the attorney’s fees awarded are not sufficient to cover the work done, so that by awarding a larger fee in a case such as the instant one, “It kind of works out. Of course, it’s not fair to your client [Mr. Rusher] that it happens that way.” Mr. Rusher argues that these comments prove that the trial court considered an improper “balancing” factor in rendering the attorney’s fee award. Additionally, Mr. Rusher contends that the contractual agreement between him and Discover Bank requires that any award of attorney’s fees be based upon the fees “actually incurred,” of which no proof was submitted in this case. Finally, Mr. Rusher urges that $4584.62 is an unreasonably high amount of attorney’s fees considering that this is a simple open account case with ho complex issues of law or fact. He therefore urges us to reduce the award to $250.00.

In response to the appellant’s arguments, Discover Bank asserts that Louisiana courts have repeatedly upheld 25% attorney’s fees as being reasonable in open account cases. See, e.g.: Cline v. George Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96), 685 So.2d 206; Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La. App. 4 Cir.1972); Cardinal Wholesale Supply, Inc. v. Rainbow Floor Covering, Inc., 432 So.2d 419 (La.App. 1 Cir.1983); Dyna International Corporation v. Mash-bum, 397 So.2d 1080 (La.App. 4 Cir.1981); Monlezun v. Fontenot, 379 So.2d 43 (La. App. 3 Cir.1979); Metropolis, Inc. v. Hanson, 434 So.2d 1207 (La.App. 1 Cir.1983). Additionally, the appellee notes that the principal amount owed is sizable in this case, and that Mr. Rusher’s counsel filed numerous discovery requests, which necessitated responses from counsel for Discover Bank.

Considering these arguments, we agree with the appellant that the trial court does not appear to have considered all the pertinent factors (as listed in Troth, supra) in determining that 20% attorney’s fees were appropriate in the instant case, but apparently did rely, at least partially, on an inappropriate “balancing” factor. However, we also agree with the appellee that, according to the jurisprudence, an award of 20% attorney’s fees in an open account case is not per se unreasonable. Because we review summary judgments de novo, this court has an obligation to examine the instant record for evidence of the Troth factors in order to determine whether the trial court abused its discretion.

Although Discover Bank did not put forth any evidence as to the hours spent or the attorney fees actually paid, the record shows that its counsel did the following:

(1)Issued a demand letter;
(2) Prepared and filed in the trial court the following: a Petition and Request for Admission of Fact (2 pages), a Motion and Memorandum in Support of Summary Judgment (6 pages), Interrogatories (2 pages), a Reply | f,Memorandum (2 pages), and a Request for Genuineness of Document and for Production of Document (1 Page);
(3) Represented plaintiff at the Summary Judgment hearing (7-page transcript).

Therefore the record demonstrates that some amount of fees that is reasonable for these services was actually incurred, which in our view satisfies the language contained in the contractual agreement between the parties. Considering the other factors, we note that a favorable result was obtained and that the amount owed by the defendant (nearly $20,000.00) is sizable, which factors weigh in favor of the plaintiff. Conversely, the relative simplicity of the legal and factual issues involved in this case; the amount of legal work done, which consisted of approximately fifteen pages of documents and one brief court appearance; and the defendant’s inability to pay all weigh in favor of Mr. Rusher.

Considering all the circumstances, we conclude that the trial court abused its discretion by awarding $4582.62, which we find to be an unreasonably high amount of attorney’s fees given the facts of the instant case. Accordingly, we reduce the amount of attorney’s fees awarded to $1000.00.

CONCLUSION

For the reasons stated, the judgment of the trial court is amended to reduce the amount of attorney’s fees awarded to $1000.00; in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . At the summary judgment hearing, in response to the trial judge's question, counsel for Mr. Rusher confirmed that he had propounded discovery to opposing counsel requesting information as to how much labor time had been spent on the case, but the response had been an objection to that interrogatory as calling for a legal opinion and/or being irrelevant. Counsel for Discover Bank, who indicated he was “standing in” for the Bank's regular attorney, did not refute the assertion of Mr. Rusher’s counsel in this regard.

      . The record contains an order signed by the trial court permitting the unemployed Mr. Rusher to proceed in forma pauperis. In his brief, Mr. Rusher also notes he is represented by pro bono counsel in this litigation.

      . These discovery requests do not appear in the record.


author: TERRI F. LOVE, Judge.

text:
    Deneka Marie VALLIUS v. Edna VALLIUS.
    No. 2010-CA-0870.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.
    Derek T. Russ, New Orleans, LA, for Deneka Marie Vallius.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

h Deneka Vallius seeks reversal of the trial court decision dismissing her petition for protection from abuse filed against her step-mother, Edna Vallius.

We find that the trial court abused its discretion in dismissing the petition for protection from abuse prior to a hearing on the merits, thus depriving the parties of the opportunity to present evidence and sworn testimony. Further, we find no evidence in the record to support a finding that the petition was frivolous. Therefore, the trial court abused its discretion in casting Deneka with all costs of the proceeding and the payment of Edna’s attorneys’ fees. We reverse the trial court’s premature dismissal of the petition for protection from abuse and the award of costs and attorneys’ fees and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On October 22, 2009, Deneka Vallius (“Deneka”) filed a petition for protection from abuse against Edna Vallius (“Edna”). The petition alleged that Edna informed Deneka’s uncle that Edna would kill Dene-ka if Deneka removed Edna’s children from their school. The petition further stated, “[a]s I write this decree she [Edna] is at my house breaking windows and the police are there. She | ?has also threatened the lives of Risque, Denesha, Elizabeth, Areil, and Claudette Vallius.” The court granted a temporary restraining order prohibiting Edna from going near Dene-ka’s home or work. The temporary restraining order also granted Deneka temporary custody of Elizabeth, Areil, and Claudette Vallius, the children of Edna and Risque. Risque Vallius is Deneka’s father.

On November 6, 2009, the trial court held a hearing on the petition for protection from abuse. The court denied the request for protection from abuse, finding Deneka misrepresented facts in the petition. The court ordered Deneka to pay all court costs and $500.00 in attorneys’ fees. The court found Deneka misrepresented herself when she sought temporary custody of Elizabeth, Areil, and Claudette and identified herself as a parent. The court also referenced documents which were filed in Jefferson Parish. However, the record does not contain a copy of any documents from Jefferson Parish. The court found that Deneka also misrepresented herself in the Jefferson Parish proceeding and referenced a telephone conversation with Commissioner Joyce from Jefferson Parish.

After this finding, although Deneka was not sworn in, the court allowed Deneka to speak. Deneka explained that she received assistance from a member of the clerk of court’s office in filling out the petition for protection from abuse. Dene-ka stated that while she was filling out the form, she received a telephone call informing her that Edna had just busted out windows at Deneka’s home, where her sick father, Risque, was residing. Deneka stated that the employee from the clerk of court’s office suggested that she seek temporary custody of the children since Edna was going to be arrested for the property damage. After allowing Deneka to speak, the court again referenced the Jefferson Parish proceedings and concluded that Deneka misrepresented herself before that tribunal and did not present the 1 sJefferson Parish tribunal with the order from Orleans Parish granting her temporary custody of Elizabeth, Areil, and Claudette.

The court dismissed the petition for protection from abuse with prejudice “on petitioner’s failure to prove by the appropriate standard the allegation contained in the Petition for Protection from Abuse.” The court also signed a second order that re-fleeted the amount of attorneys’ fees to be awarded. Deneka filed motions for appeal as to each order.

STANDARD OF REVIEW

Appellate courts review domestic protective orders for abuse of discretion. Culp v. Culp, 42,239, p. 6 (La.App. 2 Cir. 6/20/07), 960 So.2d 1279,1282, citing Rouyea v. Rouyea, 2000-2163, p. 5 (La.App. 1 Cir. 3/28/01), 808 So.2d 558, 561.

DISCUSSION

In this case, Deneka alleged that her stepmother, Edna, issued threats of violence against her and broke windows at Deneka’s home. Deneka filed a petition for protection from abuse pursuant to La. R.S. 46:2131, et seq.

Stepparents and stepchildren are included in the definition of “family members”. La. R.S. 46:2132(4). The statute also provides that “domestic abuse includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.” La. R.S. 46:2132(3). Our criminal code defines an “assault” as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. “Battery” is defined as “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. Lastly, the criminal |4code defines “simple criminal damage to property” as “the intentional damaging of any property of another, without the consent of the owner.” La. R.S. 14:56.

Clearly, Deneka stated a cause of action under La. R.S. 46:2131, et seq. Yet, the trial court failed to provide Deneka with the opportunity to prove her allegations. The trial court concluded that Deneka misrepresented her relationship to the children Elizabeth, Areil, and Claudette. The first page of the petition provides a space to list minor child(ren) and to detail the relationship of the minor children) to the petitioner. Deneka did not fill out this section. The second page of the petition lists the relationship between the Deneka and Edna as “parent, stepparent, or foster parent.” The third page contains the allegations of abuse. It is not until page four of the petition that the children are mentioned. Notably, while the petition seeks temporary custody of the children on page four, the petition lacks any reference that Deneka is the parent of the children. During the hearing, Deneka stated that while she was in the clerk’s office filling out the petition, with the assistance of an employee of the clerk of court’s office, she received a telephone call informing her that Edna broke windows at her home and that the police were called. Deneka stated that the employee suggested she seek temporary custody of the children as it was believed Edna would be arrested and Deneka’s father was sick. However, Deneka did not take the oath required by La. C.E. art. 603. While we are unable to consider her unsworn statement, the petition speaks for itself.

In the petition, Deneka did seek temporary custody of the minor children Elizabeth, Areil, and Claudette. Significantly, Deneka did not identify herself as a parent in the petition on page one. The petition is a pre-printed form utilized across the entire state of Louisiana. The pre-printed form provides a section to 1 Bname children on page one. Deneka left this section blank. There is no evidence in the record that Deneka misrepresented herself as a parent. As for Deneka seeking temporary custody of the children, the record lacks evidence that the seeking of temporary custody was done in bad faith.

The purpose of the statutes referenced herein is to “provide relief to victims of domestic violence by establishing a ‘civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.’ ” Branstetter v. Purohit, 2006-1435, p. 4 (La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743. This purpose is soundly defeated by a dismissal of the petition prior to a hearing on the merits.

The statute allows for modification of prior orders upon motion of a party. La. R.S. 46:2136(D). Edna filed a motion to expedite the hearing based on the temporary order granting Deneka temporary custody. Edna did not seek to modify the grant of temporary custody to Deneka, nor did the court allow Deneka the opportunity to seek modification to remove the request for temporary custody.

Additionally, the trial court referenced a pleading filed in Jefferson Parish as further evidence of a misrepresentation committed by Deneka. No such pleading was made a part of the record before this Court. Also, the appellant attached a police report to the appellant brief. The police report, was not introduced into evidence. “Evidence not properly and officially introduced cannot be considered, even if physically placed in the record. Documents attached to memoran-da do not constitute evidence and cannot be considered as such on appeal.” City of New Orleans v. Young, 2008-0653, pp. 2-3 (La.App. 4 Cir. 11/12/08), 999 So.2d 49, 1 citing Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88.

Given the evidence before us, we find the trial court abused its discretion in dismissing the petition for protection from abuse prior to a hearing on the merits, thus depriving the parties of the opportunity to present evidence and sworn testimony.

Additionally, the court cast Deneka with all costs of the proceeding and awarded attorneys’ fees in the amount of $500.00 to Edna. La. R.S. 46:2136.1 allows the court to order the non-prevailing party to pay all court costs and reasonable attorney fees of the other party if the court determines the petition was frivolous. There is no evidence in the record to support a finding that the petition was frivolous. We therefore find the trial court abused its discretion in casting Deneka with all costs of the proceeding and the payment of Edna’s attorneys’ fees.

DECREE

Accordingly, we reverse the trial court’s premature dismissal of the petition for protection from abuse and the award of costs and attorneys’ fees and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The trial court additionally referenced a conversation with Commissioner Joyce from Jefferson Parish. The content of this conversation was not disclosed during the November 6, 2009 hearing.


author: EDWIN A. LOMBARD, Judge. BONIN, J.,

text:
    STATE of Louisiana In the Interest of I.P.
    No. 2010-CA-0882.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Nelson Bowman, Juvenile Regional Services, New Orleans, LA, for Appellant, I.P.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

] jThis appeal is from an adjudication of delinquency. After review of the facts in light of the applicable law and arguments of the parties, we find that the juvenile court judge erred in denying the juvenile’s motion to dismiss the petition charging the juvenile as a second offender pursuant to La.Rev.Stat. 14:95(C). After review of the record, we find that sufficient evidence supports an adjudication of delinquency based upon a violation of La.Rev.Stat. 14:95, illegal carrying of a weapon, amend the adjudication accordingly, and remand the matter back to the juvenile court for sentencing.

Relevant Facts and Procedural History

On Mardi Gras day, February 16, 2010, I.P., the juvenile in this case, was detained as he attempted to flee a fight that erupted in the midst of the parade route crowd in the 800 block of Canal Street. Upon stopping the juvenile, New Orleans Police Department (NOPD) Officer Paige Broi-lette, who had observed the juvenile with his hand over his waistband “as if he was trying to hold onto something” ordered the juvenile to place his hands on the window of the building (an IHOP |2restaurant) in front of him so that she could pat him down for officer safety. As he did so, Officer Broilette first heard and then saw the gun (a black and silver 9 millimeter handgun) land on the ground near the juvenile’s feet after falling out of the juvenile’s right pant leg.

Because the juvenile was sixteen at the time of the incident, the juvenile was charged by delinquency petition and a hearing for continued custody was held the next day in juvenile court. In the petition, the State charged the juvenile with one count pursuant to La.Rev.Stat. 14:95, of “ILLEGAL CARRYING OF WEAPONS, 2ND OFFENSE, ... after having been adjudicated delinquent for CARRYING A CONCEALED WEAPON, A GUN, IN CASE NO. 2009313-02-DQ-B.” Defense counsel filed a motion to dismiss, arguing that juveniles cannot be charged as a second offender under La.Rev.Stat. 14:95C. This motion was denied on the merits on March 25, 2010 and that same day, at the conclusion of the hearing, the juvenile was adjudicated as delinquent in accordance with La.Rev.Stat. 14:95(C) of “Illegal Carrying of Weapons, Second Offense.” On April 22, 2010, the juvenile was placed with the Office of Juvenile Justice for a period of time not to exceed twelve months, said sentence to run concurrent with the juvenile’s commitment under active charges in another section of juvenile court. This timely appeal follows.

| ^Discussion

On appeal, the juvenile argues that a juvenile cannot be charged as second offender under La.Rev.Stat. 14:95(0 and, accordingly, it was error for the juvenile judge to deny his motion to dismiss. We agree.

La.Rev.Stat. 14:95 provides in pertinent part that “the intentional concealment of any firearm ... on one’s person” constitutes “Illegal carrying of weapons.” La. Rev.Stat. 14:95(A)(1). The juvenile in this case, however, was charged under La. Rev. Stat. 14:95(C) which provides that “[o]n a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.” Thus, the issue before the court is whether a juvenile can be validly charged under a statutory provision that requires a prior conviction as a predicate.

The State insists that the term “conviction” in La.Rev.Stat. 14:95(C) merely refers to successful prosecutions and is routinely used within the criminal justice system to refer to a juvenile adjudication. Accordingly, even though a juvenile system is civil in nature and a juvenile adjudication cannot be used to enhance a sentence for a felony committed as an adult, State v. Brown, 03-2788 (7/6/04), 879 So.2d 1276, the State asserts that a prior juvenile adjudication can be used as a basis for a subsequent juvenile adjudication because under La.Code Crim. Proc. art. 61, “the district attorney has entire charge and control over every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” The State argues that the distinction between the civil Ljuvenile justice system and the criminal justice system is, in reality, nonexistent because the terms have been used interchangeably in the dicta of judicial opinions.

However, the narrow issue before the court is not whether prior juvenile adjudications are relevant to subsequent juvenile adjudications but whether a juvenile can be charged under La.Rev.Stat. 14:95(C). When legislatively enacted wording is “clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La.Rev.Stat. 1:4. Legislative intent is determined “by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.” Moss v. State, 05-1963, p. 15 (La.4/4/06), 925 So.2d 1185, 1196. “A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature.” Id. Moreover, criminal statutes must be given a narrow interpretation any ambiguity in the substantive provisions of a statute as it is written is resolved in favor of the accused and against the State. State v. Carr, 99-2209, p. 4 (La.5/6/00), 761 So.2d 1271, 1274.

The rules of statutory construction are straightforward. The distinction between an adjudication and conviction is grounded in the unique notion of the juvenile system which is purposefully noncriminal or civil in nature and purportedly focused on rehabilitation. See In re C.B., R.B., T.C., S.C., et al, 97-2783 p. 7-18 (La.3/4/98), 708 So.2d 391, 395-401 (full discussion of the philosophy underlying the Louisiana juvenile justice system). Any perceived 1 ^shortcomings in this system and its underlying rationale may not be remedied by judicially eliminating legislatively mandated distinctions between the criminal and juvenile justice systems. The Louisiana Supreme Court has explicitly stated that “[a] juvenile adjudication is not a conviction of any crime.” Brown, 03-2788, p. 20; In re C.B., p. 17. Thus, by the clear terms of the statute which requires a prior conviction, a juvenile cannot be charged with an offense under La.Rev. Stat. 14:95(C). See La.Rev.Stat. 1:3 (words shall be construed according to the common and approved usage of the language). Nor do we find persuasive the State’s argument that its discretion to bring charges in the civil juvenile justice system should be unfettered based on Article 6 of the Louisiana Code of Criminal Procedure. We do not underplay the seriousness of a juvenile being arrested for a second time carrying an illegal weapon, particularly in the midst of a Mardi Gras day crowd, but, as the State concedes, the State can bring a prior adjudication to the juvenile court’s attention in other ways, such as during the sentencing phrase.

Upon review of the record, we find that there is sufficient evidence to support an adjudication of delinquency based on a charge of illegal carrying of a weapon in violation of La.Rev.Stat. 14:95(A). See La. Code Crim. Proc. art. 815(2). Accordingly, we amend the juvenile adjudication to reflect that finding and remand the matter back to the juvenile court for sentencing on the amended adjudication.

AMENDED AND, AS AMENDED, ADJUDICATION AFFIRMED; REMANDED FOR SENTENCING.

BONIN, J., Dissents with Reasons.

BONIN, J.,

Dissenting With Reasons.

hi respectfully dissent.

I agree with the majority’s conclusion that the juvenile judge erred in failing to grant I.P.’s motion to dismiss: “All objections to the proceedings, including objections based on defects in the petition and defenses capable of determination as a matter of law, may be raised by motion to dismiss.” La. Ch.C. art. 875 (emphasis added). But I dissent from the result. In my opinion, the proper relief is to dismiss the petition.

La. Ch.C. art. 804(3) in pertinent part defines a “delinquent act” to mean:

an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes of this state, ...

See also State ex. rel D.J., 08-0786 (La. App. 4 Cir. 2/11/09), 5 So.3d 923.

La. R.S. 14:3 provides that, “[t]he articles of this Code cannot be extended by analogy so as to create crimes not provided for herein ...” But in order for the charge in this case to be valid, we would have to countenance the creation of an offense by analogy. The petition by which this delinquency proceeding was commenced alleged that I.P. violated La. R.S. 14:95 C which provides that “[o]n a second conviction [for illegal carrying of weapons], the offender shall be | ^imprisoned with or without hard labor for not more than five years.” (emphasis added). Yet the “[fjacts which show that the child is a delinquent child” alleged in the petition, see La. Ch.C. art. 845(3), is that I.P. had been in possession of a handgun “after previously having been adjudged a delinquent” for carrying a concealed weapon, (emphasis added).

A motion to dismiss under La. Ch.C. art. 875 functions comparably to a motion to quash under La.C.Cr.P. art. 532. In reversing a trial court’s denial of an article 532 motion to quash because the “dangerous weapon” in an aggravated battery violation was “concrete on parking lot,” the Louisiana Supreme Court stated:

To have a valid trial it is sacramental that an offense punishable under a valid statute or ordinance be charged. And when an indictment is defective it should be quashed when it fails to charge the offense intended to be charged in the manner required by law. It will not do to base an indictment for a serious offense, as in this case, upon an allegation of fact which cannot conceivable satisfy an essential element of the crime ... [wjithout a dangerous weapon involved the offense would necessarily be one of a lesser grade. In doing so [relying upon a concrete parking lot as a dangerous weapon] the State is attempting to extend the article of the Code so as to create a crime not provided therein, contrary to the spirit and letter of the law.

State v. Legendre, 362 So.2d 570, 571 (La. 1978). The Legendre court reversed and set aside the trial court’s ruling and remanded for further proceedings in the trial court. Id. at 572. In failing to dismiss this petition as a matter of law, the juvenile judge upgraded “[m]isdemeanor-grade delinquent act” to a “[fjelony-grade delinquent act”. See La. Ch.C. art. 804(5) and (8), and La. R.S. 14:95 B(1) and C.

I would reverse and set aside the ruling and remand the matter to juvenile court for further proceedings. Therefore, I dissent.

      . The juvenile court could have granted leave to the petitioner to amend the petition. See La. Ch.C. art. 846.


author: MURRAY, Judge.

text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. PRODUCTION OPERATORS, INC.
    No. 2010-CA-0905.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Donald Bowman, Frederick Mulhearn, Shone T. Pierre, Miranda Conner, Antonio Charles Ferachi, Adrienne D. Quillen, Louisiana Department of Revenue, Legal Division, Baton Rouge, LA, for Plaintiff/Appellant.
    Jesse R. Adams III, Andre B. Burvant, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, Sr., Judge EDWIN A. LOMBARD).
   MURRAY, Judge.

|, This is a sales tax case. In an earlier decision, this court found the transactions at issue were taxable barters between Production Operators, Inc. (“POI”) and its customers and remanded for a determination of the sales price on which the sales taxes due could be calculated. Bridges v. Production Operators, Inc., 07-0648 (La. App. 4 Cir. 12/12/07), 974 So.2d 54 (Bridges I). On remand, the trial court determined that “[u]nder the unique facts of these transactions, there is simply no sale price that is subject to taxation.” From this decision, the Louisiana Department of Revenue (the “Department”) appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This sales tax dispute arises out of the Department’s audit of POI for the tax period January 1, 1997, through December 31, 1999. During the tax period, POI was a provider of natural gas compression services to companies engaged in the exploration and production of natural resources in Louisiana. POI’s services were provided pursuant to a standard gas compression contract with its customers. | ¡/Under the contract, the customer was required to provide compressor fuel (fuel gas) at no cost to POI. Following the audit, the Department determined that POI owed additional taxes on the customer-supplied compressor fuel. On September 28, 2000, the Department issued a proposed assessment of $129,652.96 in taxes and interest, which POI refused to pay.

On December 20, 2001, the Department filed this suit against POI seeking to recover taxes, interest, and attorney’s fees pursuant to La. R.S. 47:1561(3). POI answered the suit and filed a motion for summary judgment seeking an order that the Department vacate its assessment. The trial court granted POI’s motion and rendered judgment ordering the Department to vacate its assessment. In Bridges I, supra., this court reversed and remanded for a determination of the sales price on which the sales taxes due could be calculated.

On February 3, 2010, a trial was held at which three witnesses testified. To provide a background for deciding the factual issue presented on this appeal, we summarize the testimony of the three witnesses.

1. Arthur Champ

Arthur Champ, a revenue tax auditor specialist, was the Department’s only witness. Mr. Champ testified that the Department assessed tax liability on the cost of POI’s taxable use of natural gas in Louisiana. He acknowledged that the compressor fuel at issue was neither metered nor measured and that the | .^Department relied on theoretical calculations to determine the amount of compressor fuel POI used. He explained that the Department valued the compressor fuel using the spot market rate, which it calculated based on the Henry Hub market rate. He further explained that the Henry-Hub market rate is the rate used to value commercial quality gas — the type used in businesses and residences — and that the compressor fuel at issue is a lower quality gas.

2. Kirk Townsend

Kirk Townsend, a retired former employee and president of Exterran Company, testified on POI’s behalf. Mr. Townsend testified that he worked in the gas compression industry for thirty years. According to Mr. Townsend, Exterran (his former employer) acquired ownership of POI in 2000. He testified that he was familiar with POPs operations during the tax period (1997 to 1999). He explained that the service POI (and Exterran) provides is moving “stranded gas” — gas that will not flow on its own from point A to point B without being compressed. He further explained that the service generally is provided in very 14remote (or offshore) locations where no other power source (gas or electricity) is available.

Mr. Townsend identified a copy of POI’s standard contract, which he characterized as a typical boilerplate contract used in the industry. He testified that under the terms of the contract the customer is required to provide compressor fuel at no cost to POI; thus, “POI pays nothing to its customers for fuel gas [compressor fuel].” Mr. Townsend also characterized the contract as a negotiated, arms-length one. He indicated that in negotiating the contract only two things are mentioned regarding compressor fuel: its pressure— compressor fuel must have an adequate pressure to run the engine — and the content of any poisons in it.

Mr. Townsend testified that POI bills its customer a flat monthly fee for its service. He identified two invoices as representative samples of POI’s monthly billing invoices during the tax period. He testified that compressor fuel plays no role in calculating the amount of the flat monthly fee and that the fee is not adjusted for the amount of compressor fuel POI uses. He noted that neither POI nor its customer (the producer) keeps track of, measures, or meters the amount of compressor fuel POI uses. Mr. Townsend testified that “[t]here’s no accounting entry or ledger that says we [POI] used this much this month.”

In terms of economics, Mr. Townsend explained that the producer allows POI to use the compressor fuel at no cost because “it’s the most economical way for us to operate the piece of equipment.” Mr. Townsend characterized the quality of the compressor fuel as “minimally cleaned fuel gas” coming straight out of the | swell that could not be used in a business or residence. When asked about the concept that “businesses don’t give things away for free” and whether it applies in this particular factual scenario, Mr. Townsend replied “[n]ot at all.” He noted that worldwide in the industry it is understood that in this type of business relationship compressor fuel is provided to the compression company at no cost.

Answering the question of what would occur if the producer required POI to pay for the compressor fuel, Mr. Townsend replied that POI would, in turn, charge the producer the same amount as the producer charged it. He emphasized that “it’s a zero sum for us because we don’t get a benefit from it.” Stated otherwise, he testified that “if he [the producer] says, I’m going to charge you for using my fuel gas [compressor fuel], I’m going to charge him the same amount probably, plus some sort of handling fee for the gas that he’s charging me for.”

On cross-examination, Mr. Townsend testified that it would be uneconomical for POI to purchase a fuel source from a third party to run its compressors. He explained that bringing fuel in from another source would be completely uneconomical because POI provides its service at very remote locations. Indeed, he noted that this has never happened. As to whether it is possible, he replied “anything is possible, but it’s completely uneconomical.” On redirect, Mr. Townsend explained that “[i]f I had to do that, my fee would be huge.” He indicated that he absolutely would charge the fuel costs back to the customer, and the customer would most likely lose money on the whole deal because that would be “very cost prohibitive.”

| (iff. Lesa Adair

Lesa Adair, who also testified on POI’s behalf, was qualified as an expert in natural gas operations and valuation. Ms. Adair explained that gas typically is metered for the first time when it leaves the lease — at the facility line. She further explained that the facility line is the key place from an accounting perspective to meter the gas because it is the point where royalty owners get paid and severance taxes get collected. She noted that the problem with metering the gas before that point (at the wellhead) is that there is “gas and liquid together, and if you try to meter that, you just get garbage coming out of the meter reading, because it doesn’t know whether it’s looking at gas or liquid, and so it doesn’t know how to account for it.”

Ms. Adair corroborated Mr. Townsend’s testimony regarding the standard contract used by compression companies, like POI. She testified that the contract typically provides that “some gas needs to be consumed on the lease for the minerals to be produced in the first place” and that the compressor fuel is to be provided at no cost. Indeed, she noted that providing compressor fuel at no cost is “an accepted practice in the industry.” She indicated that the reason the producer allows the compression company to use the compressor fuel at no cost is because it is part of the cost of doing business.

Ms. Adair testified that the compressor fuel at issue is not commercial market quality gas and that there is no market for compressor fuel on the lease. In 17contrast, she described the Henry Hub as a unique location — delivery point — in the United States at which there is a huge market for commercial quality gas.

Addressing the hypothetical question of what would occur if the industry practice of allowing the compression company to use compressor fuel at no cost was changed, Ms. Adair testified that the economics of the deal likewise would change “[b]ecause POI would then be subject to gas price risk or commodity price risk that’s not part of their business offering today.” She noted that, at a minimum, there would be some type of “charge back mechanism to the producer, and they would have to negotiate how they would handle that.” She echoed Mr. Townsend’s testimony that the result would probably be a zero sum “because the third party compression operator is not going to absorb that fuel cost.”

Assuming POI would have to pay for the compressor fuel (and would charge it back to the customer), Ms. Adair testified that the value of the compressor fuel “would be negotiated between the parties.” She testified that if the producer would charge the compression company for the compressor gas, the producer would not charge the commercial market value; rather, the producer probably would charge the cost of actually producing the gas at the well and delivering it to the compressor. Based on the Energy Information Administration (a part of the Department of Energy) data for the tax period, Ms. Adair determined that the cost to produce at the well in Louisiana during the tax period was in the “32 to 33 cent per MCF range.”

| RBased on her experience, Ms. Adair reiterated that the producer typically does not charge anything to a compression company, like POI, for the compressor fuel. She testified: “It’s not accounted for. There’s no invoices for it. It’s not charged for at all.”

As noted earlier, the trial court, based on the evidence presented at trial, made a factual finding that under the unique facts of these transactions no sales tax is due. In accord with that finding, the trial court on February 24, 2010, rendered a judgment dismissing the Department’s petition with prejudice. On that same date, the trial court also issued written reasons for judgment stating:

This Court is called upon to determine how much, if any, sales tax is owed by Production Operators, Inc. (POI) to the State. After hearing all of the testimony, it is this Court’s conclusion that no sales tax is due. Under the unique facts of these transactions, there is simply no sales price that is subject to taxation.

From this judgment, the Department appeals.

DISCUSSION

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of whether those findings are manifestly erroneous. Stobart v. State Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Under the manifest error rule, an appellate court must give great weight to the trial court’s factual conclusions, and “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.(citing Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). Stated otherwise, “where there is conflict in the testimony, reasonable evaluations | flof credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The sole issue presented on this appeal is whether the trial court’s factual finding that under the unique facts of these transactions there was no sales price is manifestly erroneous. The term sales price is defined by statute as “the total amount for which tangible personal property is sold ... including any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise.” La. R.S. 47:301(13)(a).

The Department contends that the trial court erred in concluding that the sales price (value) of the compressor fuel is zero. The Department contends that if POI had to purchase a fuel source from a third party, it would have done so at the spot market rate. The Department further contends that POI has not suggested any alternative valuation methodology. According to the Department, using the spot market rate to impute a sale price to the barter transactions at issue therefore is reasonable.

POI counters that the record supports the trial court’s factual finding that no amount was paid by POI, in any form, for the compressor fuel and thus that there is l10no sales price. According to POI, the evidence presented at trial regarding the sales price — the amount, if any, it paid for the compressor fuel — is as follows:

• Under its contract with its customers, POI provided compression services to producers in the oil and gas industry;
• POI provided the equipment and personnel necessary to operate and maintain the compressor at the customer’s jobsite;
• The customers’ jobsites were typically in remote areas or offshore;
• The customers provided “at no cost to POI” fuel gas [compressor fuel] to operate the compressors;
• POI invoiced its customers a monthly charge for its services;
• POI’s use of the fuel gas [compressor fuel] was not negotiated between the parties;
• Neither POI nor its customers kept track of the amount of fuel gas [compressor fuel] used and did not associate any value with it for purposes of their contracts;
• The fuel gas [compressor fuel] provided to POI had not been processed and contained contaminants, including dust, liquids and sand, and did not meet the necessary specifications for use in commercial or residential settings; and
• There is no market for the fuel gas [compressor fuel] where it is provided to POI.

POI thus contends that the trial court’s finding that there is no sales price is not manifestly erroneous and should be affirmed. We agree.

In Bridges I, supra, this court held that the transactions between POI and its customers were taxable sales — barters. In so holding, we observed that POI received consideration from its customers in the form of compressor fuel. Addressing the consideration, we noted:

[T]he consideration that POI received in exchange for its compression services included not only the flat monthly fee but also the fuel |1Tnecessary for this process. We are persuaded by the Board’s argument that had its customers not provided the gas mixture to power its compressors, POI would have been required to obtain the fuel for the compressors from an outside source, incurring additional expense. It can be inferred that POI factored this saving into the calculation of its monthly rate.

Bridges I, 07-0648, pp. 11-12, 974 So.2d at 61-62. Given the procedural posture of the case (a reversal of a summary judgment in the taxpayer’s favor), we expressly declined to reach the factual issue of the amount of the consideration. ■ Bridges I, 07-0648, p. 12, n. 11, 974 So.2d at 62. Rather, we remanded for the trial court to take evidence on the issue and to make the factual determination. Id.

At the trial on remand, the evidence presented established that POI did not factor the compressor fuel cost savings into the calculation of its monthly rate. Rather, the evidence established that the parties did not consider the compressor fuel savings in their contract negotiations. The evidence further established that the monthly rate POI charged its customers was a flat fee, which did not vary based on the amount of compressor fuel POI used. The evidence still further established the lack of a market for the compressor fuel where it was provided to POI. Given the lack of a market for the compressor fuel, the Department’s reliance on the spot market rate to impute a sales price for it was misplaced. Moreover, POI’s witnesses testified that if its customers had charged it for the compressor fuel (or if it had to acquire such fuel from another source), POI would have passed that cost along to its customers; and the result would have been a zero sum.

11?Based on the evidence presented at trial, we cannot conclude that the trial court was manifestly erroneous in finding under the unique facts of these transactions there is no sales price and thus no taxes owed.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The parties also introduced various exhibits, including a sample gas compression contract and two sample invoices.

      . Although the Department’s witness refers to a taxable use, it is undisputed that this case involves only a claim for sales taxes. Bridges I, 07-0648, p. 1, n. 1, 974 So.2d at 55.

      . The basis for the theoretical calculations was data that POI’s engineering staff provided to the Department. As we noted in Bridges I, supra:

      At the request of the auditor, POI was able to provide a listing by compressor unit of the fuel used for each year and the engine specifications for several compressor engines to explain how it calculated the fuel used. The reports compiled by POI's engineering and operations departments were included as schedules as part of the Department’s audit report. The information about the quality of gas utilized, horsepower capacity of the engines and operating time of the engines used by POI were taken into account by its engineering and operations departments in compiling the reports, which identified the compressor fuel utilized. This information was also included in the audit.
      07-0648, p. 4, 974 So.2d at 57.

      . Mr. Champ testified that to account for the compressor fuel being a lower quality gas the Department recently went back and reduced the rate it used to value the compressor fuel at issue. He explained that the Department took the lowest monthly average of four different gas markets on a monthly basis and reduced that figure by an additional fifteen percent. However, he acknowledged that this reduction was not reflected in any of the documents that were introduced at trial.

      . In the oil and gas industry, mcf refers to 1,000 cubic feet.

      . The sales tax is levied upon the sales price of each item or article of tangible personal property when the property is sold at retail in Louisiana. La. R.S. 47:302(A). The amount of the sales tax is calculated based on the sales price. In contrast, the use tax is calculated based on "the cost price of each item or article of tangible personal property that has not been sold, but rather has been used, consumed, distributed or stored for use or consumption in Louisiana.” Bruce J. Oreck, Louisiana Sales & Use Taxation, § 2.9 (2d ed.1996). "Cost price is the lesser of (1) the actual cost of the property subject to the tax ... or (2) the reasonable market value of the tangible personal property at the time it becomes susceptible to the use tax.” Id,

      . POI's witness, Mr. Townsend, testified that it was impractical and uneconomical for POI to acquire compressor fuel from another source.


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

text:
    STATE of Louisiana v. Michael WILLIAMS.
    No. 2010-KA-0933.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant, Michael Williams.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

hOn 31 March 2009, the defendant, Michael Williams (“Williams”) was charged in count one of a bill of information with possession with intent to distribute heroin and in count two with being a felon in possession of a firearm. He pled not guilty at arraignment.

Williams filed motions to suppress the evidence and statement. Hearings on the motions were conducted on 16 July 2009 and 13 January 2010. The trial court granted the motion to suppress the evidence as it concerned the firearm and denied the motion with respect to all other evidence. Likewise, the court found no probable cause as to the charge of a felon with a firearm count, but found probable cause with respect to the remaining charge of possession with intent to distribute heroin. On the state’s application, this Court reversed the trial court’s ruling with respect to count two. State v. Williams, 10-0223, unpub. (La.App. 4 Cir. 3/2/10).

On 15 March 2010, Williams pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s ruling on the motion to suppress the evidence. On the charge of possession with intent to distribute heroin, the trial court sentenced him to fifteen years in the custody of the department of corrections and fined him $1,539.00. On the charge of being a 12felon in possession of a firearm the court sentenced Williams to ten years at hard labor and fined him $1,000. The sentences were ordered to be run concurrently.

Testimony at the hearings reflects that Detective Harry Stovall received information from a confidential informant (“Cl”) that narcotics were being sold by an individual known as “Ike” from a house located at 123 South Clark Street in New Orleans. On 27 January 2009, with the assistance of the Cl, Detective Stovall conducted a controlled buy from the location. On 30 January 2009, Detective Sto-vall obtained a search warrant for the Clark Street address.

On 3 February 2010, Detective Stovall along with several other officers proceeded to the Clark Street address where they began surveillance of the dwelling in order to determine if the subject identified as “Ike” was at the location. Shortly after commencing their surveillance, Detective Stovall observed the defendant exit the residence, enter a parked vehicle, and drive off. The detective informed the assisting officers of his observation, and they were able to stop the defendant without incident nearby. Williams was informed of the nature of the investigation, and Miranda warnings were issued.

After entering the residence, Detective Stovall observed a female, later learned to be Williams’ girlfriend and two small children.

During the search of the residence, three small packages of heroin were recovered from inside a DVD player located in what Detective Stovall believed to be Williams’ bedroom. A gun was recovered by Detective John O’Brien from another bedroom on the top shelf of a closet. In all, $2,539.00 was recovered from the residence.

After making these seizures, Detective Stovall advised Williams of his Miranda rights a second time. At that time Williams made a statement to the ^effect that the narcotics and the drugs were his and not his girlfriend’s. He subsequently recorded his own remarks on the Miranda form which he signed.

ERRORS PATENT

A review of the record for errors patent reflects that the trial court failed to require that Williams’ sentence on count two be served without the benefit of parole, probation or suspension of sentence mandated by La. R.S. 14:95.1. However, La. R.S. 15:301.1 A provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Hence, we need take no action to correct the trial court’s failure to specify that the Williams’ sentence for possession with intent to distribute heroin be served without benefit of parole, probation, or suspension of sentence. The correction is statutorily effected. La. R.S. 15:301.1 A.

ASSIGNMENT OF ERROR NUMBER 1

Williams contends that the trial court erred in denying his motion to suppress the evidence on the ground of an intentional misrepresentation by the affiant or, alternatively, because the warrant affidavit was insufficient and could not form the basis for a finding of probable cause.

A search warrant may only issue upon a showing of probable cause, which is established “when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d |41280, 1283 (La.1982). See also, State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962; State v. Rando, 03-0073 (La.App. 4 Cir. 4/9/03), 848 So.2d 19. The affidavit must give the magistrate sufficient information “to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983); see also, Green, supra; Rando, supra. The magistrate then must determine whether the affidavit sets forth sufficient information to conclude that a fair probability exists that evidence of a crime or contraband will be found in the place described in the warrant. The information supporting a finding of probable cause for the issuance of a search warrant must be contained within the “four corners” of the affidavit. Green, p. 8, 831 So.2d at 969

In Green, the court set forth the standard for appellate review of a magistrate’s determination of probable cause:

The task of a reviewing court is simply to insure that under the totality of the circumstances the issuing magistrate has a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, ... (1983). Accordingly, in Rodrigue, we stated, “The magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” [State v.] Rodrigue, 4B7 So.2d at 833. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. State v. Jenkins, 2001-0023 (La.6/22/01), 790 So.2d 626 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684, ... (1965)); State v. Loera, 530 So.2d 1271, 1278 (La.App. 2 Cir. 1988),....

Green, 02-1022 at p. 8, 831 So.2d at 969; see also, Rando, supra. The defendant bears the burden of proof to show that evidence seized pursuant to a search warrant should be suppressed. State v. Williams, 03-0302, p. 5 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, 754; Green, supra; Rando, supra.

In State v. Adams, 99-2123, pp. 5-6 (La.App. 4 Cir. 1/24/01), 779 So.2d 113, 117-118, this court discussed the validity of an affidavit which contains intentional misrepresentations or omissions:

Making a material and intentional misrepresentation to a magistrate involves a fraud upon the courts and will result in the invalidation of the warrant and suppression of the items seized. State v. Byrd, 568 So.2d 554 (La.1990); State v. Brown, 93-2089 (La.App. 4 Cir. 12/16/94), 647 So.2d 1250, unit den. 95-0497 (La.12/6/96), 684 So.2d 921. “Intentional” means a deliberate act designed to deceive the issuing magistrate. State v. Lamartiniere, 362 So.2d 526 (La.1978); State v. Ceasar, 97-1506 (La. App. 4 Cir. 9/24/97), 700 So.2d 242. However, if the misrepresentations or omissions are inadvertent, the warrant will be retested for probable cause after supplying that which had been omitted or striking that which had been misrepresented. State v. Lingle, 436 So.2d 456 (La.1983).

See also, State v. Rey, 351 So.2d 489 (La. 1977); State v. Page, 95-2401 (La.App. 4 Cir. 8/21/96), 680 So.2d 700.

In the case at bar, the affidavit in support of the warrant contained, in full, the following statements of fact:

Within 72hrs. inclusive of January 27, 2009, NOPD Narcotics Detective Harry Stovall received information from a reliable and confidential informant who had provided information in the past, which led to the arrests and convictions of numerous individuals. On this occasion the Cl provided information relative to a black male, in his early to late thirties, about 5' 10" tall, ^weighing about 180 lbs, medium brown complexion, bald head, several medium to long dreads coming from the hair on his chin known by the name of IKE selling cocaine and heroin from residence located at 123 South Clark Street.
The informant expressed his/her willingness to conduct a controlled buy in order to corroborate the information Detective Stovall routinely searched the informant to assure he/she was not in possession of any contraband or currency. The informant was supplied with funds allotted from NOPD expense funds and released. Detective Stovall was able to conceal himself in the area in question affording himself [an] unobstructed view of [the] front door of 123 South Clark Street. Detective Stovall observed as the informant approached [the] front door of 123 S. Clark Street and knocked. Seconds later, a black male subject matching the description of “Ike” answered the door and spoke with [the] informant. The informant spoke with the black male subject and handed him the supplied currency. The black male subject then re-entered [the] residence and allowed the Cl to wait near the corner of South Clark and Canal. Seconds later, the black male subject returned [to the] front door [and] exited it and met the Cl alon[g] the sidewalk in front of his residence and handed the informant a small object(s) [sic]. The informant then left [the] residence and relocated to a predetermined location to meet with Detective Stovall. Upon meeting with Detective Stovall, the inform[ant] handed to Detective Stovall two small plastic bags that contained a brown powder like substance and stated Ike was the person who s[old] he/she [sic] the heroin. After a closer view of the heroin like substance, Detective Sto-vall believed it to be consistent with that of heroin. Dete[ctive] Stovall who maintained custody and logged it into evidence at Central Evidence & Property under control number 200901380. At this time, based on Detective Stovall’s observations and information, which was corroborated by the controlled purchase, it is stro[ngly] believed by Detective Stovall that heroin is being stored and sold from 123 South Clark Street. Therefore it is respectfully requested tha[t an] order of search be signed and made issue with the court for 123 Clark Street.

Williams contends that numerous misrepresentations and or omissions contained within the warrant reflect a calculated effort to deceive the issuing 17magistrate or hide material facts such that the trial court should have found the warrant to be invalid.

Initially, Williams notes that Detective Stovall failed to inform the Magistrate that the Cl was in fact a paid informant. In State v. Blanchard, 99-599 (La.App. 5 Cir. 11/10/99), 749 So.2d 19, the defendant focused on the fact that the affidavit failed to relate that the informant had a prior record or that he was a paid informant. The court concluded that the omission did not appear to be intentional. Rather, the court concluded that it appeared that the investigating officers had “operated under the assumption that law enforcement officials, including judges, are generally aware that police frequently use informants who themselves might have criminal records or will aid police only in exchange for monetary compensation.” Id., p. 12, 749 So.2d at 27. We agree with the Fifth Circuit’s conclusion in this regard. We do not find that the omission was so intentionally misleading that it affected the magistrate’s decision.

The only other purported omission or misrepresentation identified by Williams relates to Detective Stovall’s failure to inform the magistrate that the powdery brown substance contained in two small plastic bags was not tested to confirm that the substance was in fact heroin. Although review of the affidavit reflects that Detective Stovall did not stipulate that the substance was not tested, nothing suggests that Detective Stovall intended to suggest that the substance was tested or that there was any basis, apart from the detective’s previous experience in conducting narcotics investigations, that the substance was heroin.

Other than these two examples, Williams does not point to any other material omissions or misrepresentations from the affidavit, and our review of |sthese two examples suggests that if anything they were inadvertent and fall short of suggesting that a fraud was perpetrated on the court.

The remainder of the defendant’s concerns with the warrant is all properly examined within the context of the sufficiency of the warrant to establish probable cause to search the residence.

Chief among Williams’ complaints is that the warrant failed to establish that the information supplied was not stale. “Staleness” is an issue when the passage of time makes it doubtful that the contraband sought in the warrant will be at the place where it was observed. State v. Williams, 00-0011 (La.App. 4 Cir. 5/9/01), 788 So.2d 515.

In suggesting that the information in the warrant was stale, Williams draws upon the analysis of State v. Thompson, 354 So.2d 513 (La.1978), where the Court noted that the timeliness of the facts relied upon should be in the affidavit; the Court found that because all the observations in the warrant were couched in the past tense, the absence of any time frame for the information was fatal.

Although the information in the warrant pertaining to the informant’s knowledge of drug sales occurring at the suspect residence lacked a specific time frame, Detective Stovall corroborated the Cl’s information by conducting a controlled buy that was completed within 72 hours of the application being submitted.

On this issue of timeliness, in State v. Williams, supra, we determined that although 15 days had passed between the first time information was received regarding pertinent drug deals and the subsequent application for a search warrant, and that five days separated the last transaction and the warrant application, the warrant was not stale.

lain State v. Stewart, 92-2536, (La.App. 4 Cir. 12/15/94), 648 So.2d 15, police received information from a reliable Cl that a suspect was selling heroin from a particular address. Two days later, the officer arranged for the informant to purchase heroin in a controlled buy; however, the warrant was not served until eight days later. We held that the above information was sufficient to warrant a man of reasonable caution to believe that heroin would be found on the premises, eight days after the warrant was issued and ten days after the controlled buy.

Accordingly, although the timeliness of some of the information contained in the warrant cannot be determined, the warrant contained enough critical information that was timely.

In suggesting that the Detective Sto-vall’s affidavit was insufficient, Williams also points to the lack of information suggesting that the Cl had been in the house in the past so as to confirm that there was a “stash” of heroin or cocaine contained therein. Williams notes that the Cl did not suggest that he was invited to return to make future purchases, which tends to demonstrate the unlikelihood of drugs being present in the future.

In support, Williams cites State v. Lewis, 385 So.2d 226 (La.1980), where no indication existed that the marijuana that was offered to the informant would be there when the warrant was executed. Lewis concerned the casual consumption of marijuana by the informant at an acquaintance’s apartment, and the warrant was not served until approximately two weeks after the unidentified quantity of marijuana was observed. The case is distinguishable.

| inThe defendant also notes no information was supplied indicating ongoing drug activity as was the case in State v. Fairbanks, 467 So.2d 87 (La.App. 4 Cir.1985), where surveillance indicated an unusual amount of foot traffic indicative of drug transactions.

Although no observations of that nature were documented, the Supreme Court has ruled that the controlled buy of a small amount of illegal drugs at a residence by a Cl is enough to give the police probable cause to secure a warrant for that address. See State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396; State v. Grey, 408 So.2d 1239 (La.1982); State v. Klar, 400 So.2d 610 (La.1981).

Finally, Williams contends that the foregoing deficiencies, coupled with the fact that Detective Stovall failed to field test the powdery brown substance, were insufficient to establish probable cause.

In State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, it was suggested that the affidavit failed to sufficiently establish that a crime had been committed. In considering the issue, the Court reflected on the nature of probable cause as follows:

From the outset, we note the trial court hinged its judgment on the fact that the affidavit failed to even establish that a crime had occurred. Although certainty of knowledge of the commission of a particular crime is frequently an important factor in the determination of probable cause, probable cause may exist when the commission of a crime has not been definitely established, but is reasonably probable under the totality of the known circumstances. State v. Simms, 571 So.2d 145, 149 (La.1990). The police therefore need not specify exactly what crime has been committed as long as they have probable cause to believe that a crime has been committed. See WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 3.1(b), p. 7 (1996) (stating that two conclusions necessary to the issuance of the search warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being [n connected with criminal activity, and that the items will be found in the place to be searched).
The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 ... (1949); Simms, 571 So.2d at 148. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 ... (1975); Rodrigue, 437 So.2d at 830. The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. Simms, 571 So.2d at 149; State v. Ogden and Geraghty, 391 So.2d 434 (La.1980). Likewise, probable cause will not be defeated simply because innocent explanations for an activity can be imagined. LAFAVE, SEARCH AND SEIZURE, § 3.2(e), p. 69. Probable cause exists if a “succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.” Id. at 70 (quoting United States v. Patterson, 492 F.2d 995 (9th Cir.1974)).

Id., p. 10, 831 So.2d at 969-970.

Here, although the substance was not submitted for testing, the circumstances of the transaction, coupled with the officers conclusions drawn from over 20 years of experience, confirm that it was reasonable to conclude from the information provided that the substance was in fact most likely heroin. At the very least, it was reasonable to conclude that substance was a counterfeit controlled dangerous substance prohibited by La. 40:967 A(2). Accordingly, the failure to submit the powdery brown substance for testing was not fatal.

We find the assignment of error is without merit.

^CONCLUSION

We affirm Michael Williams’ convictions and sentences.

AFFIRMED.

      . Although the trial court's ruling on the motion to suppress the evidence, as it affected count two of the bill of information, was previously the subject of review by this court, the constitutionality of the warrant itself was not at issue.

      . We note that in Louisiana, the time for executing a search warrant is limited by La. C.Cr.P. art. 163, which provides that a "search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.” The search warrant in this case was executed within three days of its issuance and therefore within the statutory time limit.