author: MICHAEL E. KIRBY, Judge. ARMSTRONG, C.J.,

text:
    ABUNDANCE SQUARE ASSOCIATES, L.P. and Treasure Village Associates, L.P. v. Erroll G. WILLIAMS, In his Official Capacity as Assessor for the Third Municipal District for the City of New Orleans, and the City of New Orleans.
    No. 2010-CA-0324.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.
    James M. Garner, Steven I. Klein, Christopher T. Chocheles, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Kenneth E. Pickering, Pickering & Co-togno, New Orleans, LA, for Defendant/Appellee, Erroll G. Williams, etc.

      (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

hThe plaintiffs, Abundance Square Associates, L.P. (“Abundance Square”) and Treasure Village Associates, L.P. (“Treasure Village”) , filed suit against the City of New Orleans (“the City”) and Erroll G. Williams, in his capacity as Assessor for the City’s Third Municipal District, challenging the 2008 ad valorem tax assessments on housing development properties owned and operated by the plaintiffs. From a district court judgment that upheld the assessments, the plaintiffs now appeal.

FACTS AND PROCEDURAL HISTORY

The Desire Housing Projects were constructed in New Orleans in 1949 as part of the United States Housing Program. At the time, the City executed a Cooperation Agreement with the Housing Authority of New Orleans (“HANO”), the local housing authority funded by the U.S. Department of Housing and Urban Development (“HUD”). Pursuant to the Cooperation Agreement, HANO would own and operate housing projects, including Desire, through which the City could | ¡.provide low-rent housing. The Cooperation Agreement specifically stated that the housing projects would be “exempt from all real and personal property taxes levied and imposed by any taxing body.”

In 1992, the federal government launched Hope VI, a program aimed at replacing dilapidated, obsolete public housing projects with new, redesigned mixed income housing units. Pursuant to Hope VI, HUD issued grants to cities and local public housing authorities for physical revitalization and management improvements. HUD also encouraged the housing authorities to develop public/private partnerships with private sector developers and management firms to build, own and operate the new units.

In the late 1990’s, the City razed Desire as part of a revitalization plan under the Hope VI program. At the request of HANO’s general counsel, the City Attorney issued an opinion on September 16, 2002, stating that the 1949 Cooperation Agreement was still in effect and the new low-rent housing units to be constructed as “part of the Desire Hope IV[sic] Revitalization Plan can be included as a part of the ‘Project’ as defined in the Cooperation Agreement....”

In October 2002, HANO executed a Ground Lease and a Regulatory and Operating Agreement with Abundance Square, wherein HANO leased ninety-eight (98) acres of real property, the site of the former Desire Housing Projects, to Abundance Square. The agreement provided that, HANO, with the assistance of Abundance Square, would develop the real property into seventy-three (73) multi-fam-ily rental units that Abundance Square would operate and manage (the | s“Abundance Square Apartments”). Significantly, the Ground Lease provided that Abundance Square would own the Abundance Square Apartments until the lease expired in 2077.

Under the Abundance Square Regulatory and Operating Agreement, all seventy-three (73) units in the Abundance Square Apartments had to be operated as “qualified low-income units” under Section 42 of the U.S. Internal Revenue Code. Of the qualified low-income units, forty-eight (48) had to be operated as “public housing” under Section 3(b) of the U.S. Housing Act and fourteen (14) as Section Eight-“project based vouchers.”

In August 2003, HANO executed a similar Ground Lease and Regulatory and Operating Agreement with Treasure Village, wherein HANO leased real property, also part of the former Desire site, to Treasure Village. Pursuant to the agreement, HANO and Treasure Village developed the property into thirty-four (34) multifamily units that Treasure Village operated and managed (the “Treasure Village Apartments”). The Ground Lease provided that Treasure Village would own the Treasure Village Apartments until the lease expired in 2088.

The Treasure Village Regulatory and Operating Agreement required all thirty-four (34) units to be operated as qualified low-income units and, of those, twenty-three (23) had to be operated as public housing and six (6) as Section Eight— project based vouchers.

For the 2008 tax year, the City assessed ad valorem taxes in the amount of $25,508.00 on the Abundance Square Apartments and $11,771.43 on the Treasure | .(Village Apartments. The plaintiffs paid the taxes under protest and filed suit, alleging that the properties are exempt from ad valorem taxation pursuant to Louisiana Const. Art. VII, § 21(A).

At the trial, Assessor Williams testified that improvements on immovable property are exempt from taxation only if the improvements are owned by a public entity, or owned by a non-profit corporation that used the property exclusively for a charitable purpose. He explained that the Abundance Square and Treasure Village Apartments were taxed because they are owned by private entities. In ruling, the trial court stated that it would “follow the opinion of the assessor” and rendered a written judgment denying the plaintiffs’ claims to recover the 2008 ad valorem taxes.

ASSIGNMENTS OF ERROR

The plaintiffs raise the following assignments of error on appeal:

1. The trial court erred in holding that the mere fact that a private entity owns property is enough to preclude the property from being exempt from ad valorem taxes pursuant to La. Const. Art. VII, § 21(A).
2. The trial court erred in failing to find that the properties should be exempt because the properties (or, at minimum, the “public housing” units therein) have “vested” in the public.
3. The trial court erred in failing to find that the properties serve a public purpose.

|SLAW AND DISCUSSION

Louisiana Const. Art. VII, § 21(A) provides that “[pjublic lands [and] other public property used for public purposes” are exempt from ad valorem taxation.

“Exemptions from taxation are strictly construed, an exemption being an exceptional privilege which must be clearly and unequivocably and affirmatively established.” Holley v. Plum Creek Timber Co., Inc., 38,716, p. 7 (La.App. 2 Cir. 6/23/2004), 877 So.2d 284, 290, citing Hibernia Nat’l Bank in New Orleans v. Louisiana Tax Comm’n, 195 La. 43, 196 So. 15 (1940).

To be exempt under La. Const. Art. VII, § 21(A), the property must be public, and it must be used for a public purpose. Slay v. Louisiana Energy and Power Auth., 473 So.2d 51, 53 (La.1985).

The Louisiana Supreme Court acknowledged that property can “vest” in the public even though the “title be not in the public.” Adm’rs of Tulane Educ. Fund v. Board of Assessors, 38 La. Ann. 292 (1886), 1886 WL 4310, *4 (hereinafter “Tulane Administrators ”). In Tulane Administrators, the Board of Administrators of the Tulane Education Fund (“the Administrators”) filed suit to annul the 1885 tax assessment imposed on property donated by Paul Tulane to promote the education of the white youth in New Orleans. The Administrators previously challenged the 1883 tax assessment on the same property and the Louisiana Supreme Court held that the property standing alone did not have a constitutional tax exemption. See State ex rel. Board of Admrs. Tulane Ed. Fund v. Bd. Of Assessors, 35 La. Ann. 668 (La.1883).

^Shortly thereafter, however, the Louisiana Legislature passed Act 43 of 1884, which transferred the ownership and operation of the “University of Louisiana” to the Administrators. Pursuant to Act 43, the Administrators, in a contract with the State, agreed to devote all their revenues to the public purpose of maintaining and developing the University of Louisiana. Tulane Administrators, 1886 WL 4310, at *1. Though the expressed purpose of Act 43 was “fostering, maintaining and developing the University of Louisiana,” the Court noted the “evident purpose” was “to effect an exemption of the [Administrators’] property from taxation.” Id.

The issue before the Court was “whether the dedication by the Tulane Administrators of all their revenues to the support and maintenance of the University of Louisiana is such dedication to public use as will exempt their property from taxation propria vigore.” Id. at *2. The Court explained that the “Legislature cannot exempt from taxation property that is constitutionally liable to it, but an owner of property may translate it into the domain of constitutional exemption by dedicating it to a public use.” Id. at *4. The Court reasoned:

The character of taxability is not inef-faceably stamped on property, and it may be removed by the act of the owner. Whenever he dedicates it to public use it passes under the dominion of the exemption that is accorded to public property.

\7Id. Because the Administrators dedicated its property to public use by “consecrating” all revenues to pay for the maintenance and operation of the university, the Court held that the university constituted exempt public property even though “the title be not in the public.” Id.

In Holley, supra, Georgia-Pacific Corporation, a private landowner, leased 25,-480 acres of land to the Louisiana Department of Wildlife and Fisheries (“LDWF”) to be used for a wildlife management area (“WMA”) as defined in La. R.S. 56:8(108). LDWF agreed to maintain and manage the property for hunting and fishing by the public. As a result of the lease, Georgia-Pacific claimed an exemption from ad valo-rem taxes under La. R.S. 56:24. A local resident filed suit, claiming that Georgia-Pacific’s land was not dedicated to public use and that La. R.S. 56:24 was unconstitutional because the legislature could not exempt property from ad valorem taxes. The plaintiff argued that the property fell into none of the categories of tax exempt property specified in La. Const. Art. VII, § 21.

The Second Circuit Court of Appeal, like the trial court, concluded that the lease of private property to the LDWF for the public purpose of establishing a WMA fell within the exemption from taxation contained in La. Const. Art. VII, § 21.

|sThe Court determined that the legislature, in enacting La. R.S. 56:24, specifically granting a tax exemption on property used for a WMA, did not exceed its authority, and upheld the constitutionality of the statute. Holley, 38,716, p. 10, 877 So.2d at 291-92. The Court acknowledged that “[n]o particular form of deed, or deed at all, is necessary for the dedication of land to the public; it suffices that the owner permits the land to be used by the public with the intention of making the dedication.” Id., 38, 716, p. 9,877 So.2d at 290. The Court further noted that property “consecrated to public use [ ] is not taxable irrespective of the nature of the ownership.” Id., citing Warren County, Mississippi v. Hester, 219 La. 763, 54 So.2d 12 (1951).

In Warren County, supra, Warren County, a political subdivision of the State of Mississippi, owned a toll bridge spanning the Mississippi River between Vicksburg, Mississippi, and the town of Delta, in Madison Parish, Louisiana. In 1948, the county sued to recover the taxes it paid to Madison Parish under protest, claiming that the bridge was tax exempt because it was “dedicated to a public use.” Warren County, 219 La. 763, 773, 54 So.2d 12, 15 (1951).

In evaluating the claim, the Louisiana Supreme Court reiterated the well-settled jurisprudence that “‘[property dedicated to public use, the revenues of which serve a public purpose, is public property, although the title be not in the public.’ ” Id. at 774, 54 So.2d at 15 (citation omitted). Because Warren County used a substantial portion of the toll revenues to satisfy the debt it incurred in acquiring the bridge, the Court concluded the toll bridge was not dedicated to public use. The Court stated, “[i]f the revenues derived from the tolls of the bridge | swere being used exclusively for its maintenance and economic operation, it might be reasonable to rule that there has been a dedication. But those are not the facts of the case.” Id. at 775-76, 54 So.2d at 16. Thus, as it did in Tulane Administrators, the Court considered how the money derived from property was used in determining whether that property was dedicated to the public use and, therefore, tax exempt.

The issue of whether a local housing authority’s development, maintenance and operation of low-rent housing served a public purpose was addressed by the Supreme Court in State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725 (1938). In that case, the Louisiana Legislature passed Act 275 of 1936, the “Slum Clearance” or “Housing Authority” Act, which authorized certain cities to create a local housing authority if they found a lack of safe or sanitary dwelling accommodations in the city available to low-income families at affordable rental rates. After the City of New Orleans created HANO to build “low-rent housing,” i.e., housing projects, the Louisiana Attorney General filed suit, claiming that appropriating funds and expropriating private land to build housing projects would not serve a public purpose. The Supreme Court disagreed, concluding that HANO’s building and maintenance of the projects to “eradicate the slum menace” for health and safety reasons served a public purpose because the City, through HANO, was performing a primary function of municipal government. Id. at 735,182 So. at 733.

The record indicates that Assessor Williams taxed the Abundance Square and Treasure Village Apartments because they are owned by private, for-profit partnerships and that he did not consider whether or not they served a public purpose. According to Mr. Williams, the question of whether the improvements, |10ie., rental units, on the immovable property are taxable is “purely a determination of ownership.”

Louisiana jurisprudence holds that ownership alone is not the determining factor and that privately owned property may be dedicated to public use to attain tax exempt status. See Tulane Administrators, supra; Holley, supra. Moreover, how the revenue derived from private property is used may be considered in determining whether the property is dedicated to public use. See Warren, supra.

The evidence discloses that the Abundance Square and Treasure Village Apartments are all “tax credit” units, meaning IRS regulations prohibit an owner from renting the unit to anyone earning more than sixty (60) percent of the area median income (AMI). Pursuant to the respective Regulatory and Operating Agreements, a majority of the units in the Abundance Square Apartments (48 of 73) and Treasure Village Apartments (23 of 34), must be “PHA-Assisted Units,” which are defined as a “dwelling unit in the Development designated as such by Owner and operated and maintained as a ‘public housing’ unit in accordance with Public Housing Requirements.”

Mr. Ralph Massaro, the controller for Interstate Realty Management Company, the property manager for the Abundance Square and Treasure Village Apartments, testified that the rents paid by the residents of the public housing units are restricted by their income level. He explained that the amount paid by each public housing resident differs depending on their income so that a person making ten percent of the AMI will pay less that the person making thirty-five percent of it. According to Mr. Massaro, although a person may qualify for Section 8 Invoucher assistance, he (she) may not be eligible for a PHA-Assisted Unit, which is reserved for those in the lowest income tiers.

The Regulatory and Operating Agreements also recognize that, in operating the public housing units, the owners (plaintiffs) will not likely be able to recoup the operating costs and, thus, HANO will subsidize the operation of the PHA-Assisted Units. However, in the event the owners (plaintiffs) make a profit in operating the PHA-Assisted Units, the Regulatory and Operating Agreements mandate that those profits be deposited into the “Affordability Reserves,” an escrow account whose funds are to be used solely for the benefit of the PHA-Assisted Units. Moreover, if the owners (plaintiffs) fail to comply with the specific terms of the Regulatory and Operating Agreements, the Ground Leases will terminate, effectively vesting ownership of the rental units in HANO.

Assessor Williams does not dispute that the Regulatory and Operating Agreements prohibit the plaintiffs from earning a profit from operating the public housing or PHA-Assisted Units. Likewise, he does not dispute that the plaintiffs have used the money derived from the rental of the public housing units strictly for the operation and maintenance costs of those units.

To the extent the plaintiffs are contractually and legally obligated to operate and maintain forty-eight (48) rental units in the Abundance Square Apartments and twenty-three (23) in the Treasure Village Apartments as public housing or PHA-|Assisted12 Units, we conclude those units have been dedicated to public use, clearly serve a public purpose and, thus, are exempt from ad valorem taxes under Louisiana Const. Art. VII, § 21(A).

DECREE

Accordingly, the judgment of the trial court is amended, in part, to grant Abundance Square a return of the 2008 ad valorem taxes paid under protest on the forty-eight (48) PHA-Assisted Units in the Abundance Square Apartments. The judgment is further amended to grant Treasure Village a return of the 2008 ad valorem taxes paid under protest on the twenty-three (23) PHA-Assisted Units in Treasure Village Apartments. Insofar as the judgment denies the plaintiffs’ claims for a refund of the 2008 ad valorem taxes paid on the remaining units in the Abundance Square and Treasure Village Apartments, the judgment is affirmed.

AFFIRMED AS AMENDED.

ARMSTRONG, C.J.,

Concurs in Part and Dissents in Part.

|,I would affirm the judgment of the trial court in its entirety. Abundance Square Associates, L.P., Treasure Village Associates, L.P., and Michaels Development Company are all for-profit entities. Exemptions from taxation are strictly construed, an exemption being an exceptional privilege which must be clearly and unequivocally and affirmatively established. Holley v. Plum Creek Timber Co., 38,716 (La.App. 2 Cir. 6/23/2004), 877 So.2d 284; Hibernia National Bank in New Orleans v. Louisiana Tax Commission, 195 La. 43, 196 So. 15 (1940).

I find that Holley, supra, and Administrators of Tulane Educational Fund v. Board of Assessors, 38 La.Ann. 292 (1886), the two cases which form the foundation of the plaintiffs’ case, are not persuasive.

Holley, supra, concerns a special tax exemption granted to private landowners who lease property to the State Department of Wildlife and Fisheries without compensation for use as wildlife management areas. This special statutory exemption has no relevance to the instant case.

| ¾Administrators of Tulane Educational Fund involves a contract between the State and the Tulane Administrators to take over the operation of the University of Louisiana. The Louisiana Supreme Court noted that:

The Act of 1884 declares that the plaintiffs’ revenues are devoted to public use, and as a legal consequence the property that produces them is exempt from taxation unless we are prepared to say that the legislative discretion has been unlawfully or evasively exercised, for that is said to be the criterion by which a court is to test it.

Id. As was the case with Holley, the special contract and statute involved in Administrators of Tulane Educational Fund distinguish it from the instant case.

Based on the foregoing, I find no error in the judgment of the trial court. Therefore, I respectfully concur in only that part of the majority opinion denying the plaintiffs’ claims for a refund of the 2008 ad valorem taxes paid on the non-PHA-Assisted Units. I respectfully dissent from that portion of the majority opinion ordering a return of the 2008 ad valorem taxes paid under protest on PHA-Assisted Units by Abundance Square and Treasure Village.

      . Abundance Square and Treasure Village are for-profit Louisiana limited partnerships affiliated with Michaels Development Company, a New Jersey Corporation and the largest affordable housing developer in the United States.

      . At the trial, Assessor Williams acknowledged that the plaintiffs are entitled to a revised tax bill for 2008 because the $25,508.00 and $11,771.43 assessments inadvertently included assessments on the publicly owned land, which is tax exempt. The parties stipulated that the plaintiffs paid the full amounts under protest and are due a refund for the taxes paid on the land.

      . The Louisiana Constitution of 1845 provided that a university was to be established in New Orleans named the University of Louisiana. The Louisiana Constitutions of 1864 and 1868 repeated the injunction to the Louisiana Legislature to maintain it. The Louisiana Constitution of 1879 recognized the University of Louisiana and, for the first time, provided for an annual limited appropriation of $10,000.00.

      . The Louisiana Legislature, by enacting Act 43 of 1844, contemplated creating a "new” university through a constitutional amendment and re-designating the University of Louisiana as “Tulane University of Louisiana.” See Tulane Administrators, 1886 WL 4310, at* 1-2.

      . La. R.S. 56:24 provides:
      The [LDWF] may contract with any private landowner for the use of his lands for a term of not less than twenty-five years for the purpose of establishing wildlife management areas, and may agree, where such use is granted without compensation or payment therefor, that the land shall be relieved of all state, parish, and district taxes, except in cases where a tax has been contracted to be levied thereon for the retirement of a bond issue or for other outstanding debts or obligations, so long as the lands are used for the purpose stated. Any existing agreement to the foregoing effect is validated.

      . In 1947, Warren County had issued $7,000,000.00 in revenue bonds to purchase the bridge from Vicksburg Bridge Company, a Delaware Corporation.

      . See Abundance Square Regulatory and Operating Agreement § 1.43 and Treasure Village Regulatory and Operating Agreement § 1.45.

      .Paragraph E under the RECITALS section of the Regulatory and Operating Agreements provides:
      Because [Plaintiffs] will be obligated to lease the PHA-Assisted Units to families whose rents are restricted and may be less than the operating costs of the PHA-Assisted Units, [HANO] has agreed to subsidize the operation of the PHA-Assisted Units through the provision of operating assistance provided to it by HUD, subject to the provisions of this Agreement.

      . See § 5 of the Abundance Square and Treasure Village Regulatory and Operating Agreements.

      . See § 18B of the Amended and Restated Ground Leases executed by and between HANO and the plaintiffs.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Christopher COLLINS.
    No. 2010-KA-1181.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

11 Christopher Collins appeals his eonviction for second degree murder. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On October 23, 1991, Cornell Coleman, a janitor at the naval base on Poland Avenue, was murdered in the 2400 Block of South Liberty Street in New Orleans, Louisiana. On October 11, 2006, defendant was charged by grand jury indictment with the second degree murder of Mr. Coleman in violation of La.Rev.Stat. 14:30.1. He pleaded not guilty on November 29, 2006. On December 12, 2006, on defense motion, the trial court appointed a sanity commission to determine defendant’s competency to stand trial. On January 18, 2007, Dr. Damon Tohtz testified regarding the psychiatric evaluation of the defendant conducted by himself and Dr. Deland. Pursuant to their evaluation, the trial court ordered that |2the appellant to be placed in the Orleans Parish Prison competency program and to be placed on the waiting list to be transported to the East Feliciana Medical Health System. Continued competency hearings were held on November 15, 2007, February 14, 2008, and on July 17, 2008, when the defendant was found competent to stand trial.

Again, on April 2, 2009, the trial court appointed a sanity commission to determine defendant’s competency to stand trial on defense motion. On May 27, 2009, the trial court found the defendant competent to stand trial. On September 4, 2009, the trial court denied the defendant’s motion to suppress his statement. Trial commenced on October 6, 2009, and the following day the jury found the defendant guilty as charged.

On October 21, 2009, the defendant filed motions for new trial and for post-verdict judgment of acquittal, which the trial court denied. The defendant waived any legal delays and pronounced ready for sentencing. The trial court sentenced the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence. The defendant now appeals, arguing that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in denying his motion for a new trial; and (3) the jury instruction permitting a non-unanimous verdict was unconstitutional.

Assignment of Error I

The defendant contends that the evidence was insufficient to support his conviction. Specifically, he argues that there is insufficient evidence to establish that he intended to kill or commit great bodily harm and that the evidence | ^introduced at trial is insufficient because his uncorroborated confession was used to establish the corpus delicti

Sufficiency of the Evidence

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When circumstantial evidence is used to prove the commission of the offense, La. Rev.Stat. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

In order to obtain a conviction, the State must prove the elements of the crime charged beyond a reasonable doubt. The defendant was convicted of second degree murder, defined in pertinent part by La.Rev.Stat. 14:30.1 as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the perpetration or attempted perpetration of, among other felonies, armed robbery or simple robbery.

Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.Rev.Stat. 14:10(1). Specific intent need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Hebert, 2000-1052, p. 12 (La.App. 4 Cir. |44/11/01), 787 So.2d 1041, 1050. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 521.

The following evidence was adduced at trial. The decedent’s mother, Pamela Coleman Swinney, testified that in October of 1991, she and her son, Cornel Coleman, lived in the 2300 block of First Street, in New Orleans. Ms. Swinney had lived in the same neighborhood for about fifteen years and was familiar with the defendant from seeing him around the neighborhood. She identified him in court. On the day of her son’s death he came home from work at the naval base about 6:00 p.m. and an hour or two later told his mother he was going for a short walk and would be right back. That was the last time Ms. Swinney saw her son alive. Someone knocked on her door and informed her that he had been shot and she went to the scene where a crowd had gathered around his body lying on the ground. She saw defendant in the crowd and when he saw her, he ran. Ms. Swinney acknowledged that she had previously been convicted for possession of diazepam, cocaine and marijuana.

Detective Wayne Rumore testified that on in October 23, 1991, he was a homicide detective with the New Orleans Police Department (NOPD) and that he investigated the death of Cornell Coleman which took place in the 2400 Block of South Liberty Street, in New Orleans, Louisiana. At the time of trial, Detective Rumore was still employed by the NOPD in the Mounted Division. He related that when he arrived on the scene he observed that the address was an abandoned house. There was a cement slab off to the side of the structure and a body was lying down on the slab. He observed that there was a broken cigarette in the |svictim’s hand and there was a lighter by his right leg. There was a gunshot wound or “hole” on the top of the victim’s head.

A .22 caliber semi-automatic pistol was found on the scene, to the side of the building, not far from First Street in some bushes. Detective Rumore identified a series of photographs of the crime scene, which were later introduced into evidence. Detective Rumore stated that he remained on the scene for approximately one hour. He was not able to locate any eyewitnesses, but he did conduct some interviews during the course of his investigation, from which he developed Christopher Collins as a suspect. After two or three months, Detective Rumore was no longer involved actively with the case.

Officer Karl Palmer, a NOPD crime scene technician, testified that he processed the crime scene at the corner of South Liberty and First Street. He photographed the scene and collected the weapon, a Jennings .22 caliber semi-automatic pistol. The gun was empty. He returned the weapon to the crime lab where he dusted it for prints with negative results.

Officer Kenny Leary, a NOPD firearm examiner, testified that he compared the bullet recovered from the Mr. Coleman’s autopsy to determine whether it was fired by the weapon recovered at the scene. He compared the bullet to a test bullet fired from the weapon but was unable to make a determination because the autopsy bullet exhibited insufficient striae to reach a conclusion.

Sergeant Robert Blanchard testified that the evidence from the case located in NOPD Central Evidence and Property had been destroyed by flood waters during Hurricane Katrina.

Tammy Connella, a record clerk with the Pineville Police Department, testified that on November 5, 2005, the defendant entered the Pineville Police | (¡Department station. As her duties included greeting the public, she asked Mr. Collins how she could help him, and he stated that he needed to speak with an investigator. Ms. Connella asked the defendant what it was in reference to so she could properly direct him. He told her he had some things he needed to get off his mind. Appearing nervous and wringing his hands, he stated that he had committed a murder, that he had killed somebody. Ms. Connella informed Captain Dana Rachal of the circumstances and then took Mr. Collins back to the Captain’s office.

Captain Rachal testified that in 2005 he was the Commander of the Criminal Investigations Bureau in Pineville, Louisiana. Captain Rachal related that after he obtained the defendant’s personal information, he had the defendant complete a rights of arrestee form. After completing the form, the defendant hesitated for a moment and then said, “I can’t do this right now.” Captain Rachal walked Mr. Collins out, and he and Ms. Connella watched him walk off down the street.

Approximately an hour later, the defendant returned. Ms. Connella escorted him back to his office and Captain Rachal began the process of completing the rights of arrestee form again. After the defendant had been advised of his rights and signed the form, he began his statement. He told Captain Rachal that the homicide occurred in either 1994 or 1995 at the corner of First and South Liberty Street in New Orleans. Mr. Collins stated that he approached the victim, whom he knew as CC, at the corner, produced a gun, and indicated that he wanted his money back. Mr. Collins explained that there had been an earlier altercation wherein Mr. Coleman had robbed him at gunpoint of $2,000. Captain Rachal got the impression that this incident occurred not long before, perhaps a few days or a week earlier.

|7Mr. Collins explained that Mr. Coleman told him he did not have any money; that a struggle ensued over the firearm; and that the firearm discharged, striking Mr. Coleman in the forehead. Mr. Collins stated that the weapon was a .25 caliber semi-automatic chrome pistol. He told him that the gun was loaded, but that it only had one bullet in the gun.

Captain Rachal then went over the statement with Mr. Collins. At that time, Mr. Collins explained that Mr. Coleman slapped the weapon and that it discharged, striking him in the forehead. He stated that he did not intend to kill Mr. Coleman. Captain Rachal believed that the interview lasted approximately forty-five minutes.

After he had completed his statement, Captain Rachal asked the defendant if he could remain at the station while he attempted to verify the information. Captain Rachal then called the New Orleans Police Department and spoke to the commander of the cold case squad, Jimmy King, who advised him that it would take him some time to verify the information because things were still in some disarray from the Hurricane Katrina. Commander King did call back later that day to say that he had confirmed that Mr. Coleman had been shot and killed at the location identified. He advised that it would take some time to locate the files and verify the information any further.

Captain Rachal advised Mr. Collins that he could not do anything further that day until they had verified additional information, and then someone from his office took Mr. Collins home. He believed that Mr. Collins was at the station until about 2:00 o’clock in the afternoon. He stated that he was very cooperative, and that they even fed him lunch that day.

Detective Winston Harbin, of the New Orleans Homicide Division, testified that after being assigned the case, he obtained the original case file from their |Rarchives. Then he contacted the detectives in Pine-ville to see how their information compared to the information in the report. Detective Hardin noted that after speaking with the Pineville detectives, it was obvious there was some validity to the confession. As a result, he and his partner traveled to Pineville in an effort to interview the defendant but were unsuccessful in locating him. On November 18, 2005, he applied for and obtained a warrant for the defendant’s arrest.

Detective Robert Guesnon testified that in August 2006 he arrested the defendant for an outstanding warrant in the 3300 block of Claiborne Avenue after completing a traffic stop.

The defendant argues on appeal that no evidence was submitted which established the intent to kill or inflict great bodily harm. Specifically, he notes that there was no evidence from any witness to the killing and that the only evidence offered about the killing itself came from his statement, which did not establish the specific intent to kill. Rather, the defendant notes, his statement established that the gun discharged accidentally during a struggle or when the decedent slapped the gun.

However, although the defendant’s statement suggests that the gun discharged accidentally, the circumstantial evidence offered at trial directly contradicted the defendant’s statement. Detective Rumore observed that rather than suffering a gunshot to the forehead as indicated by Mr. Collins in his statement, the victim suffered a gunshot to the top of his head. Also, Detective Rumore observed that there was a broken cigarette in the victim’s hand and that |9there was a lighter by his right leg. From these facts, a reasonable juror could have found that the victim was shot while leaning forward and attempting to light a cigarette. Also, the fact that the cigarette remained between the victim’s fingers upon death directly contradicts the suggestion that the gun went off during a struggle. The defendant’s statement acknowledged that he was holding the gun when the fatal shot was fired. This coupled with the circumstantial evidence was clearly sufficient to establish the element of specific intent to kill. Thus, sufficient evidence supports the defendant’s conviction.

Corpus Delicti

In Louisiana, an accused cannot be convicted on his own uncorroborated confession without proof that a crime has been committed by someone. State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 195; State v. Cruz, 455 So.2d 1351, 1355 (La.1984). Accordingly, the prosecution must show that the injury specified in the crime occurred and that the injury was caused by someone’s criminal activity. Martin, supra (citation omitted). “The touchstone is trustworthiness-an untrustworthy confession should not alone support a conviction, and corroboration is an effective test of the trustworthiness of a person’s inculpatory statements.” Martin, 93-0285, 645 So.2d at 195.

The defendant argues, citing federal caselaw, Summit v. Blackburn, 795 F.2d 1237 (5th Cir.1986), that the evidence submitted in this case is insufficient because his purportedly uncorroborated confession failed to establish every element of the crime. In Summit, the court reversed a conviction of first degree murder on a claim of ineffective assistance of counsel for failing to object to or raise the issue of the 11 nlack of corroboration of the defendant’s statement that the murder occurred during the commission of an attempted armed robbery. However, the defendant’s reliance on Summit is misplaced. In Martin, supra, the Louisiana Supreme Court rejected the defendant’s Summit argument because the decision unjustifiably extended the Louisiana’s corpus delicti rule which requires only corroboration of the reliability of an inculpatory statement, stating:

The rule should not be extended to add a requirement that independent evidence corroborate every element of the crime admitted in the accused’s statement, the general reliability of which has been corroborated. Corroborating evidence need only show the essential injury involved in the charged crime (e.g., death caused by criminal activity in a murder charge) in order to establish the reliability of the inculpatory statements of the accused; the corroborating evidence need not show every element in the definition of the charged crime (e.g., the predicate felony in a felony murder).

State v. Martin, 645 So.2d at 195 (emphasis added). See also State v. Thibodeaux, 1998-1673, p. 12 (La.9/8/99), 750 So.2d 916, 927 (“Martin removed any confusion over the scope of the rule by expressly holding that the state need not produce independent evidence corroborating every element of the crime admitted in the accused’s statement as long as it establishes the commission of a criminal act.”)

Here, because the victim was found dead with a bullet hole to the top of his head, the evidence presented at trial clearly established the presence of a criminal act. Furthermore, the location of the incident, the identity of the victim, that the victim was shot in the head, and the discovery of an unloaded weapon, all thoroughly corroborated many key elements of defendant’s statement.

Accordingly, we find no merit in this assignment of error.

| ¡¡Assignment of Error 2

By this assignment of error the defendant contends that the trial court erred in denying his motion for new trial pursuant filed pursuant to La.Code Crim. Proc. art. 851(1), arguing that the verdict was contrary to the law and the evidence.

Initially, the defendant suggests that the trial court erred in failing to afford him a contradictory hearing on his motion for new trial; however, the record reflects that defendant submitted the motion without argument, and there is nothing to suggest that the defendant intended to call any witnesses or submit any evidence, or that he was prevented from doing so.

As to the substance of his claim, the defendant raises essentially the same argument that he raised with respect to his sufficiency claim, ie., the trial court erred in denying his motion for a new trial because the verdict is not supported by the evidence. It has long been held in Louisiana that an assignment of error based on the refusal of the trial court to grant a new trial on the grounds that the verdict was contrary to the law and evidence presented nothing for appellate review. State v.Gray, 351 So.2d 448, 461 (La.1977); State v. Bartley, 329 So.2d 431, 433 (La.1976). However, this was partially overturned in State v. Guillory, 2010-1231, pp. 3-4 (La.10/8/10), 45 So.3d 612, 614-615 wherein the Louisiana Supreme Court determined that a grant or denial of a motion for new trial pursuant to La.Code Crim. Proc. art. 851(5) presents a question of law that is subject to appellate review and is reviewed for abuse of discretion. It remains unclear whether Guillory is limited to motions filed pursuant to La.Code Crim. Proc. art. 851(5) or whether it 112is applicable to, as is the case here, motions filed pursuant to La.Code Crim. Proc. art. 851(1).

In this case we have reviewed the evidence and found that it is sufficient to support the verdict. Thus, even accepting arguendo that Guillory is applicable to the denial of a motion filed pursuant to La. Code Crim. Proc. art. 851(1), the trial court clearly did not abuse its discretion in denying the motion. Accordingly, this assignment of error is without merit.

Assignment of Error 3

The defendant argues that the jury instruction in his case permitting conviction by less than a unanimous vote of the jury was unconstitutional. Pursuant to La.Code Crim. Proc. art. 782(A), a non-unanimous verdict is allowed in non-capital felony cases. Moreover, the record does not reflect that defendant objected to the jury charge and, thus, in accordance with La.Code Crim. Proc. art. 930.4, we are procedurally barred from considering the defendant’s constitutional challenge to La. Code Crim. Proc. art. 782. State v. Bertrand, 2008-2215, 2008-2311, p. 8 (La.3/17/09), 6 So.3d 738, 743. Finally, because defendant did not request that the jury be polled, the record does not reflect whether the jury rendered a non-unanimous verdict in this case. The defendant therefore lacks standing to raise the issue as there is nothing to show that he was actually harmed by the purported error. This assignment of error is without merit.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . On January 27, 2011, this court granted the defendant forty-five days to file a pro se supplemental brief. This time period has expired and neither the brief nor a motion for extension of time has been filed by the defendant.

      . Pursuant to a pro se motion filed by the defendant, on January 27, 2011, this court issued an order transferring the record to the Louisiana State Penitentiary Legal Program Department and granting the defendant forty-five days to file a brief in this matter.

      . The defendant also contends that the evidence was insufficient to establish that the crime occurred during the commission of an armed robbery. However, because the State did not suggest the defendant’s guilt under this theory and the evidence is sufficient to establish specific intent, we pretermit further discussion of this alternative theory.

      . Notably, the location of the entry point of the bullet at the top of the victim’s head made it nearly impossible to believe that the gun discharged accidentally, either during a struggle or as a result of Mr. Coleman slapping it.

      . In his brief, the defendant suggests that his motion for new trial also urged as a ground thereof, that the ends of justice would be served by granting a new trial as provided by La.Code Crim. Proc. art. 851(2). However, review of the record reflects that the defendant did not raise this ground in his motion for new trial.

      . La.Code Crim. Proc. art. 782(A) states in pertinent part that "[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” The instant case was one in which punishment was necessarily confinement at hard labor.


author: MARION F. EDWARDS, Chief Judge.

text:
    Merrill ZERINGUE v. WAL-MART STORES, INC. and Claims Management, Inc.
    No. 10-CA-589.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Jeffrey M. Burg, Leake & Andersson, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant.
    Sidney J. Hardy, Lou Anne Gwartney, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, Metairie, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

| ¡¿Plaintiff/appellant, Merrill Zeringue (“Mrs. Zeringue”), appeals a summary judgment granted in favor of defendant/appellee, Wal-Mart Stores, Inc. d/b/a Sam’s East, Inc. (“Sam’s”), dismissing her suit for personal injury.

Mrs. Zeringue urges that, on August 6, 2005, she was shopping at Sam’s and was near a checkout aisle near the front of the store. As she passed through the aisle to retrieve some boxes, she stepped on some crushed grapes on the floor, slipped, and fell, injuring herself. She alleged that the area had no cautionary safety flags or other warnings and that the danger was not visible. Mrs. Zeringue claimed that Sam’s failed to keep its aisles in a reasonably safe condition, which resulted in her injuries.

Following some discovery, Sam’s moved for summary judgment, urging that Mrs. Zeringue could not show how long the grapes had been on the floor prior to her fall, so that she could not prove that Sam’s had actual or constructive knowledge of the existence of the hazard. Following oral argument, the trial court granted summary judgment.

lain connection with its motion, Sam’s introduced Mrs. Zeringue’s deposition. She testified that, prior to the accident, she had been shopping in Sam’s for about an hour to an hour and a half. At the register, her husband asked her to get a box in which to put the groceries. This was at about noon. She was walking straight toward the exit near the first register where the boxes are stacked when she suddenly slipped and fell. She did not know why she was sliding arid did not see any warning cones. She was wearing tennis shoes. There was nothing to obstruct her view, but she was not looking down at the floor. After she fell, she saw some green grapes on the floor, some of which had been crushed. The crushed grapes appeared clear. Mrs. Zeringue had no idea how long the grapes had been on the floor and no idea how they got there. She did not notice any buggy tracks or footprints. She did not know whether any Sam’s employees knew they were there and failed to clean them up, but, after the fall, some workers did come to clean the area. Mrs. Zeringue later spoke with the manager, who told her she would be contacted.

Also in the record is Mr. Zeringue’s deposition. He stated that his back was turned to his wife while he was paying, and, as he checked out, he noticed she was on the ground. A female employee was helping her up. When he looked on the floor, he saw a puddle, about a square foot, irregularly shaped and clear. In the center of the puddle were about a dozen and a half green grapes, some crushed. He thought there was a lot of liquid on the floor for so few grapes as he could see. The puddle was three to four feet from the first register. Mr. Zeringue did not know how the grapes or liquid came to be on the floor or how long they had been there.

In her opposition, Mrs. Zeringue attached the deposition of Arthur Mauterer, the club manager at Sam’s. As store manager, he would conduct periodic | ¿inspections of the floor. Periodically during the course of the day, associates would go through their sections, checking the merchandise and looking for any trash or dust that needed cleaning up. Each associate is responsible for maintaining his or her area. Several times during the day, an announcement is made for a safety sweep so that “zone defense” is performed continually throughout the course of the day. A separate group of maintenance associates conducts sweeps of the entire store. In the area where the fall occurred, it would be the responsibility of the cashiers to police the area, which is considered a heavy traffic area. At midday, there is an overlap of maintenance coverage. Sam’s is not required to keep a maintenance log of when zone defense is done. However, general safety sweeps are announced on the intercom and are done every other hour beginning at 10 a.m. It was possible, but very unlikely, that the grapes had been on the floor since 10:01 a.m. There are numerous associates in the area and supervisors who would have seen and addressed the issue. If a cashier sees a spill, he would immediately clean it or call for assistance. It is Sam’s protocol to monitor the front part of the store closely. When the accident occurred, Mr. Mauterer was leaving for lunch, and Manager Cristo-bal Billot was handling the situation. Mr. Mauterer did speak to Mr. Billot, as well as to Pam Wilson, an associate who was also there. Ms. Wilson told him that Mrs. Zeringue had slipped on a grape, and it had been cleaned up. Although it is protocol to take a photograph of the scene, Ms. Wilson had already cleaned the area. Mr. Mauterer did not notice any debris or wet areas on the floor or on Mrs. Zeringue and had no knowledge of how long the spill had been on the ground. If there is a spill, there is no form or log to be filled out.

In granting summary judgment, the trial court agreed with Sam’s counsel that there was no affirmative proof as to how long the grapes had been on the floor. |fiOn appeal, Mrs. Zeringue contends that, because there were typically nine employees in the area at the time of the fall, the store protocol was to continually sweep the area for hazards⅝ and the possibility spoken of by Mr. Mauterer — that the grapes were on the floor from 10:01 a.m. until the next inspection at 12:00 p.m. — there was a question of material fact with regard to constructive notice.

Appellate courts review summary judgments de novo to determine whether summary judgment is appropriate, using the same criteria applied by trial courts. An appellate court must determine whether there is any genuine issue of material fact, and whether the mover/appellant is entitled to judgment as a matter of law. The burden of proof is on the mover to make a prima facie showing that a Motion for Summary Judgment should be granted. La. C.C.P. art. 966. This burden does not require the movant to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. After the mov-ant has met this burden, it shifts to the adverse party to present evidence to the court demonstrating that there remains a genuine issue of material fact. There is no genuine issue of material fact if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.

The applicable law is La. R.S. 9:2800.6:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition [ ^existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

La. R.S. 9:2800.6(B) clearly and unambiguously requires the claimant to prove each of its three subsections with no shifting of the burden. Thus, the claimant must prove that the merchant created the condition that caused the accident or had actual or constructive notice of the condition. When the plaintiff relies on constructive notice, which includes a mandatory temporal element, the plaintiff must come forward with positive evidence showing that the condition that caused the damage existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence. While there was testimony relative to the existence of the grapes on the floor, a simple showing that the condition existed is insufficient for a finding of liability and recovery. The presence of cashiers |7in the vicinity does not, alone, constitute constructive notice, unless Mrs. Zeringue can show that they knew, or should have known, of the existence of the condition. She has not done so, and, rather, relied on speculation. Thus, she has failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial regarding the temporal element of notice.

Therefore, we find that Sam’s established a lack of factual support for an essential element of Mrs. Zeringue’s claim and, thereafter, Mrs. Zeringue failed to establish that she would be able to satisfy her evidentiary burden of proof at trial. Summary judgment was properly granted.

AFFIRMED.

      . Duke v. Weber's IGA Store, 01-383 (La.App. 5 Cir. 10/17/01), 800 So.2d 1002.

      . Id.

      . White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081.

      . Wright v. SCC Serv. Solutions, Inc., 07-219 (La.App. 5 Cir. 9/25/07), 968 So.2d 759.

        . Menjivar v. Rouse’s Enter., L.L.C., 03-808 (La.App. 5 Cir. 12/30/03), 865 So.2d 176.


author:
AMY, Judge.
      THIBODEAUX, Chief Judge,

text:
    Roxane MONTGOMERY v. C & C SELF ENTERPRISES, INC.
    No. 10-705.
    Court of Appeal of Louisiana, Third Circuit.
    March 30, 2011.

      John S. Bradford, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Plaintiff/Appellee, Roxane Montgomery.
    Tracy P. Curtis, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P., Lafayette, LA, for Defendant/Appellant, C & C Self Enterprises, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, MARC T. AMY, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   AMY, Judge.

IjThe plaintiff filed suit against the defendant asserting that the defendant im-permissibly terminated her employment based upon her age. The trial court found in favor of the plaintiff. The defendant appeals. For the following reasons, we reverse and render judgment in favor of the defendant.

Factual and Procedural Background

The defendant, C & C Self Enterprises, Inc., owns and operates several video rental stores in Louisiana. In October of 2001, the defendant hired the plaintiff, Roxane Montgomery, as assistant manager for one of their Lake Charles stores. The plaintiff was forty-one years old at the time she was hired. Five months after beginning her employment, on April 8, 2002, the defendant terminated the plaintiffs employment.

The plaintiff filed a petition, alleging that the defendant terminated her employment because of her age in violation of Louisiana’s Age Discrimination Employment Act (LADEA), La.R.S. 23:301, et seq. The petition further alleged that the plaintiff suffered severe emotional distress resulting in physical complications due to her wrongful termination. The defendant answered, asserting that the plaintiff was not discharged due to her age, but for inadequate job performance. Following the filing of its answer, the defendant filed a Motion for Summary Judgment seeking dismissal of the plaintiff’s claims. The trial court denied the motion.

Following a trial, the trial court found in favor of the plaintiff and awarded her $36,000.00 in lost wages and $14,000.00 in mental anguish.

The defendant appeals, asserting that the trial court erred in: (1) not granting the motion for summary judgment as the plaintiff failed to establish a prima facie case of age discrimination; (2) not granting the motion for summary judgment as the | ^plaintiff failed to put forward evidence rebutting each of the defendant’s proffered non-discriminatory reasons for termination; (3) ruling in the plaintiffs favor based upon a finding of “pretext” without evidence of an intentional act as required by law; and (4) assessing $50,000.00 in damages.

Discussion

LADEA

The LADEA provides, in pertinent part, that it is unlawful for an employer to “[flail or refuse to hire, or to discharge, any individual or otherwise discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment because of the individual’s age.” La.R.S. 23:312(A)(1). Because Louisiana’s age discrimination statute is nearly identical to the federal statute prohibiting age discrimination, Louisiana courts have traditionally used federal case law for guidance. LaBove v. Raftery, 00-1394 (La.11/28/01), 802 So.2d 566.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in an employment discrimination case. First, the plaintiff must bear the initial burden of establishing a prima facie case of discrimination. Id. In order to prove a prima facie case of age discrimination, the plaintiff must show that: (1) she is in the protected age group between the ages of forty and seventy years; (2) her employment with the defendant was involuntarily terminated; and (3) she was qualified to perform the job she was employed to perform. Taylor v. Oakbourne Country Club, 02-1177 (La. App. 3 Cir. 5/14/03), 846 So.2d 959, writ denied, 03-2025 (La.11/7/03), 857 So.2d 494; See also, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); and McDonnell, 411 U.S. 792, 93 S.Ct. 1817. Establishing a prima facie case in effect creates a presumption that the defendant unlawfully discriminated against the plaintiff. Hicks, 509 U.S. 502, 113 S.Ct. 2742.

If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its conduct. Reeves, 530 U.S. 133, 120 S.Ct. 2097. This burden on the defendant, is one of production, not persuasion. Id. If the defendant provides such reasons, the plaintiff will then have an opportunity to prove, by preponderance of the evidence, that the defendant’s proffered reasons were merely pretext, or in other words, not the true reason for the alleged discrimination. Id. At this point,

when all of the evidence has been presented, the overall evidence ultimately must be sufficient for the jury to conclude that age discrimination was the true reason for the employment decision. To prevail in a disparate treatment case, a plaintiff must show that the protected trait (under the ADEA, age) actually motivated the employer’s decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). Thus, age must actually have played a role in the employer’s decision making process and had a determinative influence on the outcome. Id.

LaBove, 802 So.2d at 574.

In the defendant’s first two assignments of error it argues that the court improperly dismissed its Motion for Summary Judgment because the plaintiff failed to prove a prima facie case of discrimination and failed to rebut each of its proffered legitimate, non-discriminatory reasons for termination. “However, because this case has been fully tried on the merits, we ‘need not address the sufficiency of the | ^plaintiffs’] prima facie case, and may instead proceed directly to the ultimate question of whether [plaintiffs] have produced sufficient evidence for the [factfin-der] to find that discrimination has occurred.’ ” Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 301 (5th Cir.2000) (quoting Atkin v. Lincoln Prop. Co., 991 F.2d 268, 271 (5th Cir.1993)).

On review, an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[T]he issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Hanks v. Entergy Corp., 06-77, p. 23 (La.12/18/06), 944 So.2d 564, 580. If the findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

However, where documents and objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the reviewing court may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.

Id.

Defendant’s Proffered Legitimate NonDiscriminatory Reasons

The defendant contends that the plaintiff was fired because of unsatisfactory job performance, not because of her age. At trial, Tom Pate, the defendant’s Director of Store Operations and the plaintiffs supervisor, and T. Claiborne Self, the owner and president of the defendant company, testified about the events leading up to the plaintiffs termination. Mr. Self testified that a few days prior to the plaintiffs termination, he made a visit to the store where the plaintiff was the assistant manager ._]¿He related that as the plaintiff was showing him the store he got a “very, very strong sense that there was very little control of the organization within the store.” He testified that he observed merchandise out of order, un-vacuumed floors, boxes laid on the floor, movies stacked on the counter, and employees wandering around without direction. Mr. Self further stated that when he left the store to visit another store across town, he saw the plaintiff smoking outside the store. He related that after visiting the other store, about forty-five minutes after leaving the plaintiffs store, he returned to the plaintiffs store and again observed her outside of the store smoking. He testified that he then called Mr. Pate and “told him that he had a serious problem, that he had a store that was out of control and that he had a manager on duty sitting in front of the store smoking, also, for an extended period of time after my visit and it looked really bad and the store looked really bad.”

Mr. Pate testified that he decided to fire the plaintiff after the discussion he had with Mr. Self. He related that he called the plaintiff and explained to her that her employment was terminated because “the service level was not what it needed to be.” Mr. Pate testified that Mr. Self did not explicitly tell him to fire the plaintiff, rather “He told me, ‘Hey, this is your issue. This person is doing this. You’re going to need to fix this or correct it.’ And it’s my burden.” Mr. Pate denied that he terminated the plaintiff because of her age.

The defendant offered into evidence the plaintiffs January 2002 performance evaluation. That evaluation contained “needs improvement” notations under: store appearance including outside entrance, counter areas, and parking lot; maintaining customer service; and inventory. Under the “Additional Comments” section it stated, | fiin part, that the plaintiff needed to “improve communication,” “ask more questions of things she is not sure about,” and “work on overall customer service.”

Pretext for Intentional Discrimination Submitted by Plaintiff

The plaintiff asserts that the defendant’s proffered non-discriminatory reasons were merely pretextual for a number of reasons. The plaintiff points to an “Exit Form” completed by Mr. Pate at her termination. The form included a section titled “Reason for Dismissal” which included several options including: Unsatisfactory Performance, Unacceptable Attitude, Unacceptable Conduct, Violated Company Policy, and Other. On the plaintiffs form, the box titled “Other” was checked. Under the “Explanation of Departure” section, Mr. Pate wrote “Roxanne is released due to a desired change of direction for this store. I am making personnel changes in an attempt to improve the service level and visit patterns by customers at this store.” The plaintiff asserts, in brief, that the proffered reason, unsatisfactory job performance, is pretext because “notably absent from that form was indication that [she] had been derelict in her duties[.]”

Further, the plaintiff notes that in the January 2002 performance evaluation entered into evidence by the defendant while containing “needs improvement” notations does not contain any “unsatisfactory” marks. She testified at trial her manager at the time, Ray DeLeon, related to her that the reason her evaluation contained “needs improvement” notations was due only to the fact that he was required to find something that she could improve upon and that he could not let any employee be “perfect.”

At trial, the plaintiff offered contradictory testimony in regard to Mr. Selfs store visit. The plaintiff testified that she was not outside the store smoking for an [ 7extended period of time. She explained that when she did take a smoke break at work, it was never for more than ten or fifteen minutes and never in the spot Mr. Self identified he allegedly saw her smoking. She further testified that there was another employee who looked similar to her who often took smoke breaks in the location where Mr. Self testified he saw the plaintiff smoking. Secondly, the plaintiff contradicts that the store was in the unacceptable state as described by Mr. Self. She contends that she was never advised that the store was in an unsatisfactory condition and was never disciplined for any of the alleged conditions that existed at the store on the day of Mr. Selfs visit.

In addition to asserting that the defendant’s proffered reasons were pretextual, the plaintiff relies on several events she contends proves the defendant committed age discrimination. She testified that on the day of Mr. Selfs visit, she told him that she was forty-one-years old, he reacted adversely, and within days she was terminated. She testified to that event as follows:

.... I was very happy to be at that store and that I was excited about what we could do with it. And that I made this statement to him that I’m 41 years old, I want something long term. This seems to be what I’m interested in and I enjoy. And I really hope that I will be able to stay here and work with [the defendant].
Q When you — when you had that portion of your conversation, was there anything changing about your conversation with him?
A Mr. Self was very evasive after that. He didn’t really converse with me. He looked to the right, then he kind of looked out to the — to the glass windows at the left, and kind of took a few steps forward and he left the store.

Mr. Self denies that this conversation took place and asserts that he did not know the plaintiffs age until he was served with the present suit.

| sThe plaintiff also points to two separate events she contends demonstrate a pattern of age discrimination on the part of the defendant. She asserts that, in testimony, Mr. Self was unable to identify any employee in the Lake Charles area over forty. She further testified that she witnessed her manager, Mr. DeLeon, throw away applications submitted by two women she approximated were in their late thirties. In brief, she asserts that these women were in the protected class, however, as stated above, the protected class includes persons over the age of forty. See Taylor, 846 So.2d 959.

In its oral reasons for judgment, the trial court stated as follows:

This case, on the onset, it’s complicated to the Court because initially Ms. Montgomery was hired by the Defendant when she was 41 years old. Her employment with [the defendant] lasted about five months; terminated when she was 42. Initially, on the surface, it doesn’t seem that [the defendant] had a policy in place not to hire people over 40, while the testimony has been that the age was not a concern of management. But we do know that her resume’ is attached to an application that is found in the exhibits of the personnel record, I think. I don’t know what exhibit that is. That’s the Defendant’s exhibit, multiple exhibit. She’s got her age on it. She said she mentioned her age to the folks that interviewed her, Mr. Pate, I think, or Mr. Delahoussaye, interviewed her, and she was subsequently hired in October, 2001, at the age of 41.
She worked at a location in Lake Charles until December. She was transferred, I think she said, to the Ryan Street Store.
I did go over the evaluation that she had on January 31. It seemed to be a satisfactory evaluation for the most part, except for one area, the behavior pattern, something about her not sharing with management her ideas or concerns, not speaking up. Communicating with management seemed to be a problem there; but otherwise, she had a satisfactory evaluation on January 31st.
Mr. Pate testified that she was performing satisfactorily because he promoted her sometime a week before her termination in April — April the 7th or 8th, 2002 — April the 8th, 2002. He said he fired her because she — it was reported to him by Mr. Self, the owner, the primary owner of the [defendant company], that he saw her smoking for |9an hour outside of the store on one day late in March, about a week before she was fired.
It is clear that Ms. Montgomery meets the criteria of the affected class to this statute, i.e., she is over 40 at the time of her termination.
It’s also clear that while Mr. Self noticed some inadequacies in the store operation and was quite concerned about it, and also he noticed that she had been smoking outside of the store, and this is contradictory evidence because Ms. Montgomery said that she did take a brief smoke break but not in front of the store. She went down the street somewhere and smoked with some friends. And that another lady — he might have confused her with another blonde headed lady employee, that was at the store that sometimes smokes in front of the store. So that wasn’t too clear, whether, she was, in fact, smoking for an hour. But I don’t quite know why she was fired; however, it is clear that she was the only one fired and/or disciplined. There were other people working at the store, a Mr. O’Blanc (spelled phonetically) had spent time a week prior to her firing — Ms. Montgomery’s firing, in the store, helping out. And there were other people, according to Mr. Self, that were sent in there — we don’t know who those people were — as helping out, managers from other places.
Ms. Montgomery worked the day shift as an assistant manager, or the manager on duty, apparently, and she was the only one disciplined; she was the only one fired, and she’s 40 years old.
So, with those facts, I think she presented a prima facie case that she may have been the victim of a termination because of her age.
And we look at what is the law in situations such as this, and I did look at a few cases presented by the parties. This Third Circuit Case, Taylor vs. Oakbourne Country Club. That is where there was a genuine issue of material fact remaining in the case, it has to do with the involuntarily discharged [sic] due to age discrimination. I don’t think that case is much like this case, has much to offer us.
However, the case of — the Supreme Court case is the one I’m interested in: Reeves v. Sanderson Plumbing Products, the United States Supreme Court says — the Supreme Court O’Connor writing held that: prima facie case and sufficient evidence of pretext may permit the trier of fact to find unlawful discrimination, without additional, independent evidence of discrimination, though such showing would not always be adequately sustained — no such showing would not be adequate to sustain jury’s finding of liability.
| mWell, I think that [the defendant] has been false — made false statements as to why they terminated Ms. Montgomery. One point, Mr. Pate said he terminated her because she was — it was reported that she was smoking for an hour in front of the store. They put it in the answer as well as on the exit form, that she was terminated because they wanted to go in a different direction, take the store in a different direction with regard to the service level, and visit patterns of customers. They also — and I noticed they respond to the Unemployment Office, it was a reorganization of the store. So, I don’t know if anybody was — everybody was— the store was staffed the same after she left as it was before she left, and is the staff any different at any other store. But that’s obviously not the reason why she was terminated. And I don’t believe she was terminated because she was smoking in front of the store. I don’t even know if she was smoking in front of the store for an hour. But there was no investigation done. And it could have easily been verified if she would — if Mr. Self would have gone and spoke to her when he saw her standing when he came back the second time. It seemed like he was really concerned about the operation of the store, but the problem is, nobody else was disciplined. And I think under the Supreme Court case I cited, that was at — that case is cited at 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105.
So, as I understand it, if I find a prima facie case of unemployment; if I find that the employer was not truthful in the reason for termination, which I do in this case. I don’t think they gave me a good reason or a truthful reason for terminating Ms. Montgomery. And besides the fact she was the only person terminated or even disciplined.
So I find for the Plaintiff, that she was terminated because of violation of the termination — the law under 23:311 et seq.

Discrimination Vel Non

The defendant argues that the trial court erred in ruling in the plaintiffs favor based upon a finding of “pretext” without evidence of an intentional act as required by law. Specifically, the defendant argues that while the trial court found that the defendant’s reasons for why it fired the plaintiff were false, it did not find that the defendant acted with discriminatory animus, thus, it was error for the trial court to find in the plaintiffs favor.

In Reeves, 530 U.S. 133, 120 S.Ct. 2097, the Supreme Court dealt with the question of what kind and the amount of evidence that is necessary to affirm a finding] nth at an employer unlawfully discriminated on the basis of age. As noted in the trial court’s oral reasons for judgment, the Reeves court did state that it would be “permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Id. at 147, 120 S.Ct. at 2108. However, the Reeves court also explained that “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a [factfinder’s] finding of liability.” Id. at 148, 120 S.Ct. at 2109. The plaintiff always bears the ultimate burden of proving to the trial court that his or her evidence establishes intentional discrimination; it is not enough that the trial court simply disbelieves the employer’s proffered reasons. See LaBove, 802 So.2d 566; Reeves, 530 U.S. 133, 120 S.Ct. 2097; Hicks, 509 U.S. 502, 113 S.Ct. 2742. The plaintiff must establish, by preponderance of the evidence that age was the “but for” reason the employer terminated the plaintiff, as opposed to merely a motivating factor. Eastin v. Entergy Corp., 09-293 (La.App. 5 Cir. 7/27/10), 42 So.3d 1163. See also Gross v. FBL Fin. Servs. Inc., — U.S. -, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

After review of the record and the trial court’s reasons for judgment, we find merit in the defendant’s assignment of error that the trial court erred in ruling in favor of the plaintiff without finding the defendant acted with discriminatory animus. We find that the record does not permit a reasonable factfinder to conclude that the plaintiff proved the defendant terminated her employment because of her age.

A review of the trial court’s judgment reveals that the trial court incorrectly placed a burden on the defendant to prove that its proffered reasons were both truthful and valid. In its oral reasons for judgment, the trial court stated “I don’t think they [the defendant] gave me a good reason or a truthful reason for terminating Ms. Montgomery. And besides the fact she was the only person terminated or even | ^disciplined.” (Emphasis added.) Also, it stated, “But I don’t quite know why she was fired; however, it is clear that she was the only one fired and/or disciplined.” (Emphasis added.)

Because an “employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish” that the plaintiffs assertion of age discrimination is correct. Hicks, 509 U.S. at 524,113 S.Ct. at 2756. “The ADEA was not ... intended to transform the courts into personnel managers. The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.” Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir.1988)(internal citations omitted). Thus, it is not enough to disbelieve the employer, the factfinder must believe the plaintiff has proven its explanation of intentional discrimination. Hicks, 509 U.S. 502, 113 S.Ct. 2742.

The plaintiff relies on her testimony of several encounters with employees of the defendant store to prove discriminatory animus. However, “an employees’ subjective belief of discrimination, however genuine, cannot be the basis of judicial relief.” E.E.O.C. v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir.1995). The plaintiffs belief that Mr. Self made an “adverse face” when he learned her age is vague and subjective and, alone, insufficient to prove the defendant acted with discriminatory animus in terminating her employment. See Eastin, 42 So.3d 1163. Further, even if we took the plaintiffs allegation against Mr. Self as fact, it lacks probative value of discriminatory animus as Mr. Self was not the person who made the decision to terminate her employment. Further, her assertions that the defendant demonstrated a pattern of age discrimination in reliance on Mr. Selfs | ^testimony wherein he was unable to identify any employee in the Lake Charles area over forty and her alleged observation that a manager threw away applications when they were submitted by the “protected class” are also not sufficient to prove discriminatory animus.

In assessing whether the record supports a finding that the plaintiff carried her burden of proof, we point out that the plaintiff was hired and fired by the same person, Mr. Pate, who is also a member of the protected class as he testified to be over forty years old at the time of the plaintiffs termination. In Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir.l991)(empha-sis added), the Fourth Circuit stated as follows:

In assessing whether [the plaintiff] established that age was a motivating factor for his discharge, we focus on the undisputed fact that the individual who fired [the plaintiff] is the same individual who hired him less than six months earlier with full knowledge of his age. One is quickly drawn to the realization that [c]laims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator [i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job. Donohue & Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan.L.Rev. 983,1017 (1991). Therefore, in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer. While we can imagine egregious facts from which a discharge in this context could still be proven to have been discriminatory, it is likely that the compelling nature of the inference arising from facts such as these will make cases involving this situation amenable to resolution at an early stage. Here Klauss was responsible for the hiring and firing of Proud within a six-month time frame, and the evidence of his enumerated job deficiencies in a supervisory position makes any inference of discriminatory animus unwarranted.

We find nothing in the record to rebut this inference.

For the foregoing reasons, we find that the trial court’s finding that the defendant discriminated against the plaintiff because of her age is unreasonable inflight of the record reviewed in its entirety. There was no sufficient showing that the plaintiffs age actually played a role or had a determinative influence in the defendant’s decision to terminate the plaintiffs employment. Thus, we reverse the trial court’s judgment in favor of the plaintiff and render judgment in favor of the defendant.

DECREE

The judgment of the trial court in favor of the plaintiff is reversed, and judgment is rendered in favor of the defendant. All costs of this proceeding are assigned to the plaintiff-appellee, Roxane Montgomery.

REVERSED AND RENDERED.

THIBODEAUX, Chief Judge, dissents and assigns reasons.

THIBODEAUX, Chief Judge,

dissenting.

|/To reverse the trial court’s judgment, this court must conclude: (1) that the record contains no reasonable factual basis for the trial court’s finding; and, (2) that the record establishes trial court’s finding clearly wrong. Edwards v. Daugherty, 98-635 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, writ denied, 99-2034 (La.9/17/99), 747 So.2d 568. Thus, even if the appellate court believes its own findings are more reasonable than those of the trial court, it should not substitute its judgment for that of the trier of fact unless it finds the trial court was clearly wrong. Id. Because questions of intent are based on credibility determinations, they are given particularly great deference on review as only the fact-finder can perceive the variations in demeanor and tone of voice. See Rosell v. ESCO, 549 So.2d 840 (La.1989). Furthermore, “appellate courts review judgments, not reasons for judgment.” Bellard v. Am. Cent. Ins. Co., 07-1335, 07-1399 p. 25 (La.4/18/08), 980 So.2d 654, 671 (citing La. Code Civ.P. art. 1918; Burmaster v. Plaquemines Parish Government, 07-1311 (La.8/31/07), 963 So.2d 378).

Here, the majority correctly states the standard of review as manifest error. It explicitly states the burden C & C Self Enterprises, Inc. (C & C Self) needs Uto overcome to prevail in this court, i.e., that the documents and the objective evidence must so contradict the witness’s story or that the story must be so internally inconsistent or implausible on its face that no reasonable factfinder would credit the witness’s story. Yet, the majority actually applies a different standard of review, i.e., sufficiency of evidence. Thus, the majority writes: “[tjhere was no sufficient showing that the plaintiffs age actually played a role....” Thus, the majority, instead of limiting its review to the issue of whether reasonable factual basis for the trial court’s finding exist, assessed “whether the record supports a finding that the plaintiff carried her burden of proof.” Whether the plaintiff carried her burden of proof is for the fact-finder to decide. This court decides whether that fact-finding was manifestly erroneous.

The majority never concludes that the objective evidence contradicts Ms. Montgomery’s story. Neither does it find any inconsistencies in Ms. Montgomery’s testimony. Nevertheless, the majority finds the trial court erred in its credibility determinations.

The majority’s error lies in not reviewing the judgment as it must, but in reviewing reasons for judgment when it must not. Thus, it quotes two pages of the trial court’s reasons for judgment. The majority erroneously conflates the two: “[a] review of the trial court’s judgment reveals that the trial court incorrectly placed a burden on the defendant....” In fact, the judgment makes no such revelation.

From the reasons for judgment, the majority surmises that while the trial court disbelieved the employer’s explanation, it did not believe Ms. Montgomery’s explanation of intentional discrimination. What the majority should have concluded from the judgment the trial court entered in favor of Ms. Montgomery is that she | sproved all the elements of her claim, including the adequate explanation of intentional discrimination.

An appellate court must conduct a review of the record to determine whether it contains a reasonable factual basis for the trial court’s finding. Here, that finding was that C & C Selfs actions were unlawfully motivated. And, in fact, the record contains reasonable factual basis for the trial court’s finding. The most important for the trial court was that there were other, younger employees, managers, who were responsible for the condition of the store. Yet, none of these younger people was fired or disciplined in any manner. Thus, the only person over the age of forty working for C & C Self in Lake Charles who was not even the manager of the store at the time of the store’s allegedly unkempt condition, was disciplined, allegedly for that condition. This fact especially when juxtaposed with that only sixteen out of three hundred and seventy six C & C Selfs employees are over the age of forty, provide a strong inference of invidious discrimination.

Other facts that provided reasonable basis for the trial court’s conclusion include: Ms. Montgomery’s satisfactory job reviews; that the reasons for her termination were devoid of any suggestion that she somehow failed to perform her job duties; that the manager threw in the trash, without consideration, resumes of older applicants; and that C & C Selfs gave pretextual reasons for Ms. Montgomery’s termination after the suit was filed. All of these are reasonably sound.

As the Supreme Court has instructed, it is permissible for the trial court to infer the fact of discrimination from the falsity of the employer’s explanation. Reeves, 530 U.S. 133, 120 S.Ct. 2097. While the showing of pretext does not always carry the plaintiffs burden of proof, we are not dealing with the mere showing of pretext here. As the facts from the record listed above demonstrate, Ms. Montgomery |4showed much more than the employer’s falsity of explanation. Thus, based on those facts and the falsity of the employer’s explanation, the trial court concluded that C & C Selfs actions were unlawfully motivated. Therefore, the record contains a reasonable factual basis for the trial court’s conclusion, and the record does not establish that the trial court’s findings were clearly wrong.

Based on these considerations, I respectfully dissent.

      . The federal Age Discrimination in Employment Act (ADEA) is found at 29 U.S.C. § 621, et seq.