text:
    Regina DUBOSE v. Mark A. LEMOINE, Allstate Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 08-CA-331.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    See also, 888 So.2d 409.

      Daniel E. Becnel, III, Attorney at Law, Laplace, LA, for Plaintiff/Appellant, Regina Dubose.
    Meri M. Hartley, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Allstate Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

[2The plaintiff in this personal injury suit appeals a judgment that found the defendants liable and awarded her damages for inconvenience, but failed to award damages for her medical expenses. We affirm.

FACTS AND PROCEEDINGS BELOW

On February 21, 2002 Regina Dubose was in her car in a line of vehicles waiting to exit the parking lot of Cypress Village Shopping Center in Destrehan. Mark Lemoine was backing his car out of a parking space and struck Ms. Dubose’s vehicle.

Ms. Dubose filed suit against Mr. Lem-oine and his insurer (Allstate Insurance Company). She alleged the impact of the parking lot collision aggravated her preexisting thoracic outlet syndrome, as well as left shoulder, arm, and left cervical injuries, for which she was receiving treatment before the accident at issue here. She also alleged the accident caused her to suffer migraine headaches and caused new injuries to her lower back, feet, and toes.

Prior to trial the parties stipulated the plaintiffs damages were less than $50,000.00.

IsThe matter underwent a bench trial on April 5, 2007. The parties stipulated that the Allstate insurance policy was in full force and effect on the date of this accident with $50,000.00 limits, and that Blue Cross/ Blue Shield had an intervention in the suit. They also stipulated to the amount of the plaintiffs medical bills, but not to a causal relationship of the medical bills to this accident. The medical bills totaled $63,584.00.

At trial both Ms. Dubose and Mr. Lem-oine testified.

Ms. Dubose testified she was waiting in a line of traffic to get out of the parking lot when Mr. Lemoine backed into her car. She admitted, however, that at the scene she told the investigating police officer she had been trying to pull into a parking space when the accident happened.

Ms. Dubose testified she began suffering migraine headaches after the accident, and that she had never had such headaches before. On cross examination, however, she admitted her medical records show she complained of headaches to Dr. Henry Fitch, her chiropractor, on several visits in the six months preceding the date of this accident. In addition, although the plaintiff claimed she sustained new injury to her legs and feet in this accident, including foot numbness, her medical records show she had complained of such symptoms to her physician, Dr. Aida Blasini, and to Dr. Fitch several months prior to the date of this accident.

Similarly, the plaintiff testified she had never been treated for neck or back problems prior to this February 2002 accident. The medical records she submitted into evidence showed only treatment dates occurring after this accident. However, upon being confronted with a complete set of medical records from the same doctors, the plaintiff admitted she had been in treatment with those doctors prior to 14the accident in this case. An MRI of the plaintiffs lumbar spine indicated the changes in that area were degenerative, and did not relate them to trauma from this accident.

In addition, Dr. Blasini’s records stated the plaintiff said she was involved in another accident in May 2001.

Further, Dr. Blasini’s records indicate that injections administered to Ms. Dubose for pain between March 2003 and October 2003 were related to a then-pending worker’s compensation claim. Ms. Dubose admitted the records of Dr. Blasini indicate the majority of the visits she made were for treatment in regard to the worker’s compensation claim Ms. Dubose was litigating, the result of job-related accidents she claimed to have sustained in October 2001 and November 2001 — both dates pri- or to this accident. Ms. Dubose admitted that her worker’s compensation claim was denied and the denial was upheld on appeal, in which the appellate court found Ms. Dubose’s testimony had not been credible.

We take judicial notice of that case, Cenacle Retreat House v. Dubose, 04-571 (La.App. 5 Cir. 11/30/04), 888 So.2d 409, writ denied 2005-0157 (La.3/24/05), 896 So.2d 1040. In it, this Court noted that at the time of the claimed work-related accidents in October-November 2001, Ms. Du-bose had pre-existing pain in her shoulders and arms from a 1996 automobile accident and subsequent surgeries to relieve thoracic outlet syndrome, and was still being treated by a chiropractor for residual problems. In addition, Ms. Dubose also had been involved in an automobile accident in April 2001.

The worker’s compensation case went to trial in December 2003. Ms. Dubose testified that at no time prior to the work accidents had she complained about headaches or neck and back injuries. The trial court denied Ms. Dubose’s claim, finding Ms. Dubose failed to prove a work-related accident and causation. | sThe court also found Ms. Dubose willfully misrepresented certain facts in order to obtain worker’s compensation benefits, a violation of La. R.S. 23:1208 that resulted in forfeiture of her right to any benefits.

On appeal this Court upheld the dismissal of her claim. We noted that Ms. Du-bose had been involved in another automobile accident on February 21, 2002 — the accident at issue here — from which she claimed aggravation to her neck, back, and left arm injuries. We found that Ms. Du-bose proved two work-related “accidents,” but that the worker’s compensation judge was not manifestly erroneous in finding she failed to show her medical condition was caused by the job-related accidents. Cenacle Retreat House v. Dubose, 04-571 at p. 11, 888 So.2d at 411.

With respect to the February 2002 automobile accident made the basis of this suit, we stated:

We do not doubt that Dubose has pain in her shoulder, arm and hand area. However, her medical records prior to and after her employment with Cenacle show that her complaints have not changed in any significant manner. She suffered chronic problems with her left shoulder, arm and hand. In her testimony, Dubose stated that the two work incidents did not aggravate those conditions. Instead, she insisted that the pain was new. The medical records do not support that claim. Thus, her attempt to differentiate pain, allegedly caused from the work-related incidents from the chronic 1996 and 2002 accidents, is neither persuasive nor credible. Dubose’s credibility was further impeached by her failure to disclose the 2001 automobile accident that occurred four months before she was hired and the 2002 accident that occurred two months after her termination, when she gave her statement in May of 2002 to Keith Catha, the Summit field adjuster. In that statement, she denied several times that she had any other automobile accidents after the one in 1996. She finally disclosed the automobile accidents in her deposition. Dubose blamed her lapse of memory on the medications which she was taking at the time, which included medications that cause sleepiness. However, we note that the February 2002 | (¡automobile accident occurred only a few months before the statement was taken.

Cenacle Retreat House v. Dubose, 04-571 at pp. 10-11, 888 So.2d at 415.

At trial of the instant case, Ms. Dubose ultimately could not point to any problems alleged to have resulted from this accident that were not present prior to this accident. Although she claimed to have struck her left shoulder in the impact of this accident, in a deposition she gave in May 2008 she denied hitting her left shoulder or any part of her body. Up until December 2003, she claimed all these injuries resulted from her work-related accident, but after the worker’s compensation case was tried she began claiming the injuries resulted from the February 2002 accident at issue here.

Ms. Dubose also admitted she gave inaccurate information to the claims representative investigating her worker’s compensation claim in May 2002 — three months after this accident — when she denied having been in any other accidents since her work-related accidents, as discussed in the opinion on her worker’s compensation claim, above. She testified she was on heavy medication at the time and was confused by the questions.

Mr. Lemoine testified he was going less than two miles an hour when he backed into the plaintiffs car, but he admitted he may have told the investigating police officer he was going four miles an hour. He acknowledged he admitted he was at fault to the police officer at the scene. He recalled seeing a small dent in the front fender on the passenger side of the plaintiffs car, but denied seeing the more extensive damage shown in plaintiffs photographs, which showed damage to the door on the passenger side.

Mr. Lemoine testified the plaintiff did not say anything to him on the scene about being injured, and she told the police officer there was no injury. On the day 17after the accident, however, he received a phone call from Ms. Dubose. She told him the left side of her body was “locked up,” and that she had to go to physical therapy. A few weeks later, after he learned Ms. Dubose was complaining she had pain caused by the accident, he saw Ms. Dubose shopping. He saw her put groceries in her car, then lift up the hood of her car, which apparently would not start. She got her car started, and he followed her to her apartment complex and watched her carry three bags of groceries up a flight of stairs. He believed she noticed him watching her, because she started “like this neck stretching” and was “acting like” she was in pain.

Mr. Lemoine also testified he did not see a line of traffic waiting behind the place in which his truck was parked, but he also did not notice Ms. Dubose’s vehicle behind him.

The parties were granted time to file post-trial memoranda. The trial judge requested that the plaintiffs memorandum outline her medical treatment.

On June 19, 2007 the district court rendered judgment in favor of Ms. Dubose and against Mr. Lemoine and Allstate in the amount of $2,000.00 as “inconvenience damages.” In written reasons for judgment, the trial judge found that Mr. Lem-oine was at fault, but that Ms. Dubose was not a credible witness. Specifically, the judge found as follows:

Essential finding of fact: This is a minor impact accident in a parking lot.... The plaintiff was not injured nor did this minor impact accident aggravate her previous injuries. From the mid 1990’s until this accident plaintiff has been involved in two prior car accidents and one worker’s compensation related accident!,] the combination of which caused pre-existing carpel-tunnel syndrome, thoracic outlet syndrome, left shoulder and hand pain, and neck and back pain. The plaintiffs treating chiropractor, Dr. Fitch, treated plaintiff up to the time of this accident for her preexisting neck and back injuries.
| ^Reasons for Judgment: Plaintiff was not a credible witness in this low impact accident.... Although the defendant was at fault in causing this accident, no medical expert testified at trial to establish the causation of plaintiffs alleged new injuries. Instead, plaintiff relied upon a brief medical report from her chiropractor who had already treated her extensively for neck and back pain from May 2001 until the date of this accident in February 2002. Since plaintiffs pre-existing neck and back soft tissue injuries already required extensive, recurring medical treatment up to the date of this accident, I found the plaintiffs further medical treatment following this low impact accident to be exaggerated and unrelated. Accordingly, the proof at trial did not establish aggravation of her pre-existing injuries by a preponderance of the evidence. Finally, the Court agrees with the reasons and arguments in defense counsel’s post trial memorandum which were focused, succinct and persuasive.

Ms. Dubose filed a timely devolutive appeal, in which she raises the following issues:

(1) Did the trial court err by relying exclusively on a “credibility call” in finding no causation and that the plaintiff failed to meet her burden of proof by a preponderance of the evidence?

(2) Did the trial court’s exclusion of plaintiffs medical expenses in its award of damages meet the “manifest error/clearly wrong” criteria set by the Louisiana Supreme Court in Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993)?

With respect to the credibility issue, the plaintiff asserts that objective evidence entered into the record comports with her subjective complaints and, consequently, the trial court was unreasonable in its assessment of her credibility and its reliance solely thereon in rendering judgment.

Regarding the exclusion of medical expenses, the plaintiff asserts the evidence establishes that the defendant’s negligent conduct aggravated the 1.¡plaintiff s pre-ex-isting degenerative injuries, and caused new injuries for which the plaintiff was treated. She contends her treatment began the day after the accident and continued for thirteen consecutive months thereafter. The plaintiff asserts that although the defendants alleged no causation, they did not contradict medical reports from the treating doctors, which were entered into the record by stipulation.

In opposition, Mr. Lemoine and Allstate contend the trial court’s judgment should be affirmed because the plaintiff failed to meet her burden of proof and the trial court based its findings upon the lack of evidentiary support for the plaintiffs claims. They argue the trial court did not commit manifest error. The defendants point out that the plaintiff has already been found by this Court to lack credibility (in the worker’s compensation case); the plaintiff gave inconsistent testimony about her injuries in the accident, about how the accident occurred, and about her medical history; there is a lack of medical evidence connecting her injuries to this accident rather than to one of her prior accidents; and her activities are inconsistent with her allegations.

LAW AND ANALYSIS

Because plaintiffs urge that the trial judge fell into factual error, our standard of review is limited to the question of whether the facts found by the trier of fact are manifestly erroneous, or clearly wrong. In conducting this inquiry, we are required to review the entire record, and if that review shows that the trial court findings are reasonable we may not reverse those findings, even though we might have weighed the evidence differently had we been sitting as the trier of fact. Further, when findings are based on determinations of the credibility of witnesses, the manifest error rule demands great deference to the trier of fact’s findings because he has seen the witnesses first hand. Finally, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly wrong. [Citations omitted.]

hfíJimerson v. Parrino, 94-715, p. 2 (La.App. 5 Cir. 1/31/95), 650 So.2d 375, 376-377.

“One injured through the fault of another is entitled to full indemnification for damages caused thereby. [A] defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” (Citations omitted.) Wainwright v. Fontenot, 2000-0492, p. 5 (La.10/17/00), 774 So.2d 70, 74. “[A] verdict awarding medical expenses yet denying general damages is not per se invalid. While the courts of many states have acknowledged that such a verdict can be erroneous, they generally have rejected the factfinder’s determination as to damages only where the failure to award general damages is factually inconsistent with a reasonable reading of the record, giving due deference to the jury’s findings of fact.” Wainwright, 2000-0492, p. 9, 774 So.2d at 76.

When the tortfeasor’s conduct aggravates a pre-existing condition, the tort-feasor must compensate the victim for the full extent of the aggravation.
There is a legal presumption that a medical condition producing the disability is presumed to have resulted from the accident if, before the accident the injured person was in good health, but shortly after the accident the disabling condition manifested itself. [Citations omitted.]

Gunn v. Robertson, 01-347, p. 11 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, 563, writ denied, 2002-0170 (La.3/22/2002), 811 So.2d 942, and 2002-0176 (La.3/22/2002), 811 So.2d 942.

A tortfeasor is required to pay for medical treatment of his victim, even over treatment or unnecessary treatment, unless such treatment was incurred by the victim in bad faith. A trier of fact is in error for failing to award the full amount of medical expenses proven by the victim. A jury errs by not awarding the full amount of medical expenses incurred as a result of injuries caused by the accident when the record demonstrates that the victim has proven them by a preponderance of the evidence. [Citations omitted.]

Gunn, 01-347 at p. 13, 801 So.2d at 564.

Here, however, we are unable to find the trial court was manifestly erroneous or clearly wrong in determining that the plaintiff failed to prove by a preponderance of the evidence that her pre-exist-ing conditions were aggravated by this accident.

The reviewing court must always keep in mind that if the findings of the trial court or jury are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La.1993).

We have carefully examined the entire record of this case, and conclude the decision of the trier of fact against the plaintiff is based on a permissible view of the evidence. The plaintiffs case depended for the most part only on her subjective veracity. Given all the information we have reviewed, we cannot say the trial court was manifestly erroneous under the circumstances.

The trial court awarded damages of $2,000.00 to the plaintiff for her “inconvenience.” The court made clear that it did not find the plaintiff to have been injured in this accident. Accordingly, Wainwright and Gunn are distinguishable. The trial court had no obligation to award any medical expenses, because the court specifically found no relationship between this accident and the plaintiffs claimed injuries.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Also named defendant was State Farm Mutual Automobile Insurance Company, the plaintiffs uninsured/underinsured motorists insurer, but she voluntarily dismissed State Farm on November 15, 2005.

      . Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana intervened to recover payments it made for health care expenses, pursuant to its subrogation to the plaintiff's rights for those amounts.

      . The record does not contain a copy of any post-trial memorandum from the plaintiff, although it does contain a post-trial memorandum from the defendant, to which the trial judge referred in the reasons for judgment.


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    Gary L. BELL, Nick G. Cammarata and Michael H. Deharde v. RIMKUS CONSULTING GROUP, INC. OF LOUISIANA.
    No. 08-CA-491.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Writ Denied April 24, 2009.

      Larry E. Demmons, Attorney at Law, New Orleans, LA, for PlaintiffAppellee.
    Nelson W. Wagar, III, Jeffrey K. Warwick, Sarah Ney, Attorneys at Law Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY, and MADELINE JASMINE, pro tempore.
   GREG G. GUIDRY, Judge.

|2The Defendants, Rimkus Consulting Group, Inc. and Rimkus Consulting Group, Inc. of Louisiana, appeals a judgment denying their motion for a preliminary and permanent injunction in a case involving employment agreements containing non-competition and non-solicitation of customers and employees clauses (the agreements.) We affirm.

The Plaintiffs, Gary Bell, Nick Cammar-ata, and Mike DeHarde, worked for the Defendants as forensic engineers. As part of their employment, the Plaintiffs signed the agreements at issue here.

In the fall of 2006, the Plaintiffs resigned from their positions and within a month or so formed a competitor company, U.S. Forensic, L.L.C.

Shortly after, on November 15, 2006, the Plaintiffs filed an action for Declaratory Judgment asking the court to invalidate the agreements. In response, the Defendant filed a petition for a temporary restraining order (TRO) [ ¡¡and/or injunction on the basis that one of the Plaintiffs, DeHarde, was actively violating the agreement. The Defendants also filed a recon-ventional demand for damages from the alleged breach of the contract.

An injunction was granted regarding DeHarde, but not against Bell and Cam-marata who subsequently filed motions for partial summary judgment alleging that their agreements, although similar to the one DeHarde signed, differed in certain respects, and were invalid.

Following a hearing on the Plaintiffs’ motions for partial summary judgment, the trial judge ruled in favor of the Plaintiffs, finding that, under La.R.S. 28:921, the non-compete and non-solicitation of customer clauses of the contracts are invalid and unenforceable. The trial court further certified the judgment as final, pursuant to La. C.C.P. art. 1915 B(l). In August of 2007, the Defendants appealed that ruling, which we affirmed.

In December of 2007, the Louisiana Defendant filed a Petition for Preliminary and Permanent Injunction alleging that Bell violated the non-solicitation of employees part of the agreement.

In February of 2008, the trial judge denied the petition for injunction on the basis that the Defendant had failed to show irreparable harm as required for in-junctive relief. The trial judge also found that the provisions of the agreement related to non-solicitation of employees were ambiguous and unenforceable. The Defendants now appeal from that ruling.

|4The Defendants assert that the trial judge abused his discretion in denying the petition for injunctive relief, and in finding they failed to show irreparable harm. They further assert that the ruling regarding the ambiguity of the contract clause was only dicta, and should not have been made part of the judgment.

There is a strong public policy in Louisiana disfavoring non-competition agreements between employers and employees. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 3 (La.6/29/01), 808 So.2d 294, 298; H2O Hair, Inc. v. Marquette, 06-930, p. 13 (La.App. 5 Cir. 5/15/07), 960 So.2d 250, 258. This policy is based on the state’s desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. SWAT 24, 00-1695 at 3, 808 So.2d at 298; H2O Hair, Inc., 06-930 at 13, 960 So.2d at 258. Such agreements are in derogation of the common right, and must be strictly construed against the party seeking their enforcement. SWAT 24, 00-1695 at 3, 808 So.2d at 298; H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259.

The Louisiana statute regulating non-compete agreements, La.R.S. 23:921, must also be strictly construed, since it is an exception to Louisiana public policy against such contracts. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259. See also, Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954 (La.App. 1 Cir. 9/28/01), 809 So.2d 405, 411, writs denied, 01-3316 (La.3/8/02), 811 So.2d 883, and 01-3355 (La.3/8/02), 811 So.2d 886.

In general, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259. To do so, he must present a prima facie showing that he will prevail on the merits, and thus, is entitled to the relief sought. Id.

| BIn cases involving non-compete agreements, however, the showing of irreparable injury is not required if the employer proves the employee breached the agreement. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259; See Clear Channel Broadcasting, Inc. v. Brown, 04-0133 (La.App. 4 Cir. 3/30/05), 901 So.2d 553, 557. See also, La.R.S. 23:921 H, formerly La. R.S. 23:921 G. In such cases, the court shall order injunctive relief. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259; Clear Channel Broadcasting, Inc., 04-0133 at -, 901 So.2d at 557.

To determine whether the employer has met his burden of proof that the employee breached the non-compete or non-solicitation agreement, the courts must consider the validity and enforceability of the agreement. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259; SWAT 24, 00-1695, 808 So.2d at 294. Even though La. R.S. 23:921 mandates the court to issue injunctive relief upon proof of the obligor’s failure to perform without having to prove irreparable injury, the employer must still establish that it is entitled to relief. H2O Hair, Inc., 06-930 at 15, 960 So.2d at 259. In the event that the actions sought to be enjoined pursuant to a non-compete agreement do not fall within the exception found in La.R.S. 23:921(C) or where the non-compete agreement is unenforceable for failure to conform to the statute, the employer cannot establish that it is entitled to the relief sought. Id.

The trial judge has considerable discretion in determining whether an injunction should issue. H2O Hair, Inc., 06-930 at 15, 960 So.2d at 259.

In addition to the law cited above, the agreement here contains in Paragraph 11 a provision that unambiguously provides that a breach of the agreement is to be considered irreparable harm, that the Defendants would then be entitled to injunc-tive relief without the proof of actual damages or a bond, and that the | (¡injunction relief is in addition to the Defendants’ other remedies. The Defendants note that the injunction against DeHarde was based on this provision.

VALIDITY OF THE AGREEMENTS

As previously stated, the issue of validity of the contract and the alleged breach must be ruled on prior to determining irreparable injury in cases involving non-competition and non-solicitation of employees or customers clauses. If the breach is proven, then the moving party is relieved of the obligation to show irreparable injury. H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259. If not proven, the irreparable injury issue arises. Id.

The pertinent provisions of Bell’s contract state:

8. Covenant Not to Compete.
b. Employee agrees that after termination of employment with the Company, he will not, directly or indirectly, solicit, employ or in any other fashion, hire persons who are, or were, employees, officers or agents of the Company, until such person has terminated his employment with the Company for a period of eighteen (18) months;

The paragraph on injunctive relief states:

Injunctive Relief. Employee acknowledges and agrees that breach of the covenants and agreements contained in paragraphs 8 and 9 of this Agreement shall cause immediate and irreparable damage to the Company and that the Company’s remedy at law for any such breach would be inadequate. Employee agrees that the Company shall be entitled to have temporary or permanent injunctive relief without the necessity of proof or actual damage or bond. Such injunctive relief shall not be exclusive, but shall be in addition to any other rights or remedies the Company shall be entitled to, including, but not limited to, recovery of costs and expenses such as reasonable attorneys’ fees incurred by reason of any such breach and cancellation of any unpaid salary or reimbursements outstanding at time of termination.

In his oral comments at trial, the trial judge stated that he thought that the provision for employee solicitation was ambiguous and unreasonable because ten years down the line, another employee that ends his employment with the 17Defendants could not be hired for 18 months following the employee’s termination. He believed that to be unreasonable under the strict construction given these types of contracts. Although he did not grant the declaratory judgment regarding this provision, we must address it in light of the above jurisprudence.

We agree with the trial judge that the provision is unenforceable. We do not find it ambiguous, but against public policy. The non-solicitation of employee clause specifically states that Bell is prohibited from hiring the Defendant’s employees or ex-employees for 18 months from the date that the employee ends his employment with the Defendants. It states: “until such person has terminated his employment with the Company for a period of eighteen months.”

Although we agree with the Defendants that non-solicitation of employees clauses are not specifically covered by the Louisiana non-competition statute, by analogy to the law interpreting that statute, and under general contract rules, the provision is against public policy as it is written. It is absolutely unreasonable to prohibit Bell forever from soliciting or hiring the Defendants’ employee or ex-employee for 18 months. Without a reasonable time limit on that prohibition as it relates to Bell’s actions in soliciting the employees, we hold that the provision is invalid and not enforceable. As a result, Bell did not breach the non-solicitation of the Defendants ex-employees agreement.

Even if the clause is enforceable, it does not apply to Bell under the definition of the words in the clause.

|8An employee is:

A person usually below the executive level who is hired by another to perform a service esp. for wages or salary and is under the other’s control — see also RE-SPONDEAT SUPERIOR — compare INDEPENDENT CONTRACTOR
NOTE: In determining whether an individual is an employee, courts look at several factors, including the nature of the compensation paid, provision for employee benefits, whether the hired party is in business, tax treatment of the hired party, source of the equipment used, and location of the work. Statutes, such as workers’ compensation acts and labor laws, usually include a definition of employee as it is used in the statute.

Merriam-Webster’s Dictionary of Law, © 1996 Merriam-Webster, Inc.

To hire someone means “to engage the personal services of for a set sum ...” Id. In addition, the definition of solicit is “to make petition to ...” Merriam-Webster’s Dictionary of Law, © 1996 Merriam-Webster, Inc.

None of these words or concepts are relevant to Bell because the other two Plaintiffs involved in the new business are not employees or hired to work for the company. They helped form the new business, an L.L.C., and, in the absence of evidence to the contrary, are co-owners or shareholders.

Thus, in any event, Bell did not breach the contract relative to Cammarata and DeHarde.

IRREPARABLE HARM

The Defendants claim that Paragraph 11 relieves them of proving irreparable injury following a breach. Since we find that Bell did not breach the contract, Paragraph 11 does not apply. Thus, the Defendants were obligated to prove irreparable harm in order to obtain the injunction.

The Defendants contend that they showed irreparable harm, aside from their claim for money damages in the reconven-tional demands. In response, the Plaintiffs contend that the reconventional demand bars the Defendants from | obtaining an injunction since the alleged harm caused by the alleged breach of the agreements can be satisfied by a money judgment.

The irreparable harm asserted by the Defendants is the loss of personnel that they claim are irreplaceable. The Defendants argue that they employ mechanical, civil, electrical, and chemical engineers, and that within these categories, each engineer is unique, with qualities and expertise that cannot be replaced. The Defendants contend that money damages cannot compensate for the loss of these engineers because of their uniqueness.

We are not persuaded by the Defendants’ argument. Money damages can certainly compensate the Defendants for the loss of personnel. Those employees are free to terminate their employment regardless of their importance to the Defendants, and regardless of the actions of Bell. Thus, we find that the trial judge did not err in finding that the Defendants failed to prove irreparable injury, and in denying the petition for the injunction against Bell.

Accordingly, the judgment of the trial court is hereby affirmed.

Costs of the appeal are to be paid by the Defendants.

AFFIRMED.

      . October 5, 2006.

      . In March of 2008, we affirmed the July 2007 ruling granting the Plaintiffs’ motion for partial summary judgment that had declared the non-compete clauses and the non-solicitation of customer clauses of the contracts invalid. See, Bell v. Rimkus Consulting Group, Inc. of Louisiana, 07-996, p. 12 (La.App. 5 Cir. 3/28/08), 983 So.2d 927, 934, writs denied, 08-0891 (La.6/20/08), 983 So.2d 1276.
      In a separate writ disposition, Bell v. Rimkus Consulting Group, Inc. of Louisiana 07-906 (La.App. 5 Cir. 11/14/07), we found the 2005 stock purchase clause invalid. That too, was affirmed by the Louisiana Supreme Court. See, Bell v. Rimkus Consulting Group, Inc. of Louisiana, 08-0456 (La.04/18/08), 978 So.2d 352.

      . The Defendants contend that the trial judge ruled in dicta that the employee solicitation clause was ambiguous and unreasonable, and that the judgment included that decision. We find, however, that the trial judge stated he was not making that determination at that time, and it is not specifically stated in the judgment. The judgment only denies the injunction. Nevertheless, it is an issue in light of the requirements of H20 and the cited cases.

      . In light of this finding, we need not address the Plaintiff’s arguments related to ambiguity of the words on the basis that they are not hired “employees” of the new business, but owners.


author: WILLIAMS, J.

text:
    Casey CHURCH, Plaintiff-Appellee v. Kevin M. SHRELL, et al., Defendants-Appellants. Pafford Emergency Medical Services, Inc., Plaintiff-Appellee v. Kevin Sharell, et al., Defendants-Appellants. Sammie D. Wilson, Plaintiff-Appellee v. Empire Indemnity Insurance Company, et al., Defendants-Appellees.
    Nos. 43,972-CA to 43,974-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 21, 2009.

      Michael B. Alker, for Appellants, Kevin M. Shrell, Double “L” Cattle Company and NIC Insurance Company.
    David F. Butterfield, Shreveport, for Defendants/Appellees, Casey L. Church, Pafford Emergency Medical Services, Inc., Empire Indemnity Insurance Company, and Intervenor/Appellee Chris Martin.
    Daniel W. Newell, Homer, for Plaintiff/Appellee, Pafford Emergency Medical Services, Inc.
    Joseph A. Gregorio, Bossier City, for Plaintiff/Appellee, Casey L. Church.
    Harold D. Lucius, Jr., for Plaintiff/Ap-pellee, Sammie D. Wilson.
    Musa Rahman, Baton Rouge, for Inter-venor/Appellee, Louisiana Worker’s Compensation Corporation.
    Before WILLIAMS, GASKINS and DREW, JJ.
   WILLIAMS, J.

| j Defendants, Kevin M. Shrell, Double “L” Cattle Company and Navigators Insurance Company, appeal the district court’s ruling granting summary judgment in favor of plaintiff, Casey Church. For the reasons that follow, we affirm the district court’s judgment.

FACTS

On October 6, 2006, at approximately 2:00 a.m., a collision occurred between an ambulance, owned by Pafford Ambulance Services, Inc. (“Pafford”), and a cow, owned by Kevin Shrell. Casey Church, an emergency medical technician employed by Pafford, was driving the ambulance northbound on U.S. Highway 71 in Red River Parish when she collided with the 1,000-1,200 pound black cow which was standing in the roadway. Church and Christopher Martin, a paramedic employed by Pafford, had been dispatched to transport Sammie Wilson, a cardiac patient, from one medical facility to another facility with a “higher level of care.” Church drove while Martin road in the back of the ambulance to monitor Wilson. At the time of the accident, Church was utilizing the ambulance’s headlights, emergency lights and siren, and was traveling 60-65 mph. The posted speed limit was 55 mph.

Church filed a petition for damages against Shrell, Double “L” Cattle Company and insurer Navigators Insurance Company (collectively “Shrell”), for personal injuries she sustained in the accident. Wilson filed a separate lawsuit, naming Shrell, Pafford and their insurers as defendants. 12Martin intervened in the Wilson matter. Pafford filed a separate lawsuit against Shrell to recover for property damage and loss of the use of its ambulance. All three matters were later consolidated.

Church filed a motion for partial summary judgment, arguing that Shrell was solely at fault for causing the accident and that she was not comparatively negligent. The district court granted summary judgment in favor of Church and designated the judgment as appealable. Shrell appealed. While the appeal was pending, Church, Pafford and its insurer moved for summary judgment, seeking dismissal of the lawsuit filed by Wilson and Martin and a declaration that Shrell was solely at fault. Pafford filed another motion for partial summary judgment, seeking a declaration that Shrell was solely at fault for causing the accident. The district court granted the motions and entered a judgment dismissing Wilson’s claims. The judgment also declared that Shrell was totally at fault for purposes of Martin’s intervention.

Meanwhile, this court dismissed Shrell’s appeal in the initial lawsuit with regard to the partial summary judgment entered in favor of Church. Church v. Shrell, 43,353 (La.App.2d Cir.2/21/08). Thereafter, Shrell filed a motion for new trial with regard to the summary judgment entered in favor of Martin, Pafford and its insurer. The court granted the motion for new trial and granted summary judgment in favor of Church, Martin and Pafford, concluding that “Kevin M. Shrell is solely at fault for causing [the] automobile accident....” Shrell appealed.

I DISCUSSION

Shrell contends the district court erred in concluding that he was solely at fault for the accident. Shrell argues that the evidence introduced shows that he took all reasonable precautions to keep his livestock enclosed and that the only plausible explanation for the cow’s escape was the fault of a third party.

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1). In Hines, supra, the court stated:

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but [is] to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. 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 a trial on that issue and summary judgment is appropriate.

Id. at 765-66.

|4The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

LSA-R.S. 3:2803 provides, “No person owning livestock shall knowingly, willfully, or negligently permit his livestock to go at large upon [certain] public highways of this state-” U.S. Highway 71 is included in the enumerated highways in the statute.

It is well settled that when an automobile strikes a cow on one of the enumerated “stock law” highways, the burden of proof rests upon the owner of the animal to exculpate himself from even the slightest degree of negligence. Hines, supra; Austin, supra. To rebut the legal presumption of negligence or fault, the livestock owner must establish that he took all reasonable and prudent measures to enclose his livestock and must explain the presence of the animal on the road by showing when, where, and how the animal escaped. That is, the cattle owner must establish his “complete freedom from fault.” Id.

To establish a prima facie case of liability under LSA-R.S. 3:2803, |5the plaintiff must establish (1) ownership of the cattle; (2) the highway was one enumerated by the statute; and (3) presence of the cattle upon the roadway. Once the prima facie case is established, the burden shifts to the livestock owner to exculpate himself. The owner may only do so by establishing that the harm or damages to the plaintiff was the result of an independent cause. An independent cause is defined as: (1) a fortuitous event; (2) the actions of a third party over which the owner has no control; or (3) the fault of the plaintiff. Cedotal v. Hopkins, 589 So.2d 20 (La.App. 1st Cir.1991). However, in order to relieve a landowner of liability, the independent cause must be the sole cause of the plaintiffs damages. Olsen v. Shell Oil, 365 So.2d 1285 (La.1978); Dotson v. Matthews, 480 So.2d 860 (La.App. 2d Cir.1985).

In the instant case, it was undisputed that the cow Church struck was owned by Shrell. It was also undisputed that the cow was standing in the middle of Highway 71, one of the highways enumerated in LSA-R.S. 3:2803. Therefore, the burden shifted to Shrell to exculpate himself by establishing that the accident was the result of an independent cause.

In an effort to meet this burden, Shrell raises two arguments: (1) the accident was the fault of a third party; and (2) the accident was the fault of the plaintiff.

Actions of Third Parties

Shrell contends he took “all reasonable precautions to keep his livestock enclosed.” He also argues that “the only plausible explanation for the presence of the cow on the roadway is that it was allowed to escape due |f,to the fault of a third party.” Shrell testified in his deposition that he was out of town when the accident occurred and he did not know how the cow came to be in the roadway. Shrell also executed an affidavit in which he attested, “The only plausible explanation for the presence of the cow on the roadway was that someone fishing on the property let the cow out prior to the accident through the gate located near [my] residence.”

An opponent to a motion for summary judgment must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. LSA-C.C.P. art. 966(C)(2); Dykes v. Dykes, 38,-723 (La.App.2d Cir.6/23/04), 877 So.2d 280; Garsee v. Bowie, 37,444 (La.App.2d Cir.8/20/03), 852 So.2d 1156. Mere speculation is not sufficient to defeat a motion for summary judgment. Dykes, supra; Garsee, supra. Mere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact. Sears v. Home Depot, USA, Inc., 2006-0201 (La.App. 4th Cir.10/18/06), 943 So.2d 1219, writ denied, 2006-2747 (La.1/26/07), 948 So.2d 168; King v. Phelps Dunbar, LLP, 2001-1735 (La.App. 4th Cir.4/2/03), 844 So.2d 1012, writ denied, 2003-1220 (La.11/21/03), 860 So.2d 541. Such allegations, inferences and speculation are insufficient to satisfy the opponent’s burden of proof, even if contained in a deposition. Id.

In the instant case, Shrell speculated in his affidavit that “someone” may have been fishing on his property on the day in question and let the cow out of the fence. However, Shrell presented no affirmative evidence to |7prove that anyone had been on his property that day. The only evidence presented to support Shrell’s claim was his own opinion contained in his affidavit. For this reason, we find that Shrell failed to meet his burden of proving that the accident was the result of the actions of a third party.

Plaintiff Fault

Next, Shrell argues that Church was exceeding the speed limit at the time of the accident. He contends Church was at least comparatively liable for causing the accident. As noted above, at the time of the accident, Church was utilizing the ambulance’s headlights, emergency lights and siren and was traveling 60-65 mph in a 55 mph zone.

Victim fault is a viable defense in stock law highway cases. See, Buller v. American National Property & Cas. Co., 2002-820 (La.App. 3d Cir.2/5/03), 838 So.2d 67. LSA-R.S. 32:24 provides, in pertinent part:

A. The driver of an authorized emergency vehicle, when responding to an emergency call ... may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach....
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such | ¡¡provisions protect the driver from the consequences of his reckless disregard for the safety of others.

LSA-R.S. 32:24 authorizes the operator of an emergency vehicle to exceed the posted speed limit provided that the operator is responding to an “emergency call.” Even when LSA-R.S. 32:24 is applicable, the operator of the emergency vehicle is not relieved of liability when his or her actions are unreasonable under the circumstances. See, LSA-R.S. 32:24(D); see also, Bergeron v. Port Allen Mortuary, Inc., 178 So.2d 442 (La.App. 1st Cir.), writ denied, 248 La. 441, 443, 179 So.2d 430 (1965).

Shrell argues that Church was not responding to an emergency call at the time of the accident; therefore, she was negligent in exceeding the speed limit. Shrell also argues that Church’s action of exceeding the posted speed limit caused or contributed to the accident.

Again, other than allegations and eonclu-sory contentions, Shrell presented no evidence to show that Church’s actions caused or contributed to the accident. Shrell has suggested that had Church been traveling at 55 mph, the posted speed limit, she would have observed the cow standing in the roadway. However, he offered no expert testimony or any other evidence to support his argument. Therefore, we find that Shrell failed to meet his burden of proving that the accident was the result of plaintiff fault or that Church was comparatively negligent in causing the accident. Based on the record before us, we find that the district court did not err in finding that Shrell was solely at fault in the accident. Accordingly, summary judgment was proper.

^CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor of plaintiff. Costs of this appeal are assessed to defendants, Kevin M. Shrell, Double “L” Cattle Company and Navigators Insurance Company.

AFFIRMED.

      . Summary judgment was also granted in favor of plaintiffs, Christopher Martin and Pafford Ambulance Services, Inc. However, defendant only appealed the judgment as it relates to plaintiff, Church.

      . According to statements contained in the briefs, Martin’s claims have been settled and he is no longer a party to these proceedings. Pafford settled its property damage claim and its lawsuit was dismissed. Additionally, Wilson’s claims against Church, Pafford and its insurer were dismissed by the district court. Although Pafford maintains that it remains in the proceedings as a defendant/appellee with regard to Wilson's lawsuit, Wilson did not appeal the judgment. Therefore, any arguments with regard to that lawsuit will not be addressed in this appeal.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Kimberly MAXWELL.
    No. 08-KA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Warren E. Mouledoux, III, Assistant District Attorneys, Gretna, Louisiana, for PlaintifflAppellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, Louisiana.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

[ ¡¡Defendant-appellant, Kimberly Maxwell (“Maxwell”), appeals her conviction for aggravated battery, a violation of LSA-R.S. 14:34. Following a plea of not guilty, she proceeded to a bench trial after waiving her right to a jury. The trial judge found Maxwell guilty as charged and sentenced her to three years at hard labor, which was suspended in favor of three years of active probation. As a condition of probation, the trial judge ordered Maxwell to serve one year at home incarceration.

The charge stems from a fight that occurred on May 21, 2007 between Jesusita Berrios (“Berrios”), Brittney Jones (“Jones”), Maxwell, and Maxwell’s sister. Berrios, the victim, testified that she came home from the store that day to find a car blocking her driveway. She honked her horn, flashed her light, and motioned for the car to move. The car was moved and Berrios was able to pull into her driveway. She opened her ear door and leaned over to the passenger’s side to get some shopping bags. As she exited the car, she was grabbed by the hair, wrestled down, and pulled toward the street. The perpetrators punched her in the [¡¡back, head and neck. Berrios explained she was face down during the attack and was unable to see who attacked her, but she testified she saw two pairs of female feet.

The victim testified she heard someone scream, “[D]on’t let that b*tch go.” As she was dragged toward the street, she and the perpetrators fell over a curb. When they fell, Berrios saw a crowbar and grabbed it. She testified that she believed she had been hit by the crowbar prior to finding it on the ground, stating that she felt one blow that burned the entire right side of her neck. Berrios started swinging the crowbar around while trying to escape the perpetrators. She received minor injuries from the attack for which she did not seek medical treatment, including scrapes on her knees, scratches on her face and wrists, bruises on her arms, a bump on her head, and hair torn from her scalp. Berrios further testified that she and Jones had been friends about a year before the incident and admitted they had been involved in a verbal altercation about three months earlier. However, she denied that this altercation occurred immediately prior to the attack.

The victim’s sister, Julianna Berrios (“Julianna”), testified that she was inside the house when she realized that her sister was outside being beaten. Julianna stated that she ran outside to help and saw three girls, one of whom was Maxwell, punching her sister in the head, pulling her hair, and kicking her. She saw Maxwell swinging a crowbar. Julianna explained that she tried to stop the fight, but Maxwell hit her in the face and Jones hit her from behind. She testified that, at some point, the three girls jumped in their car and left.

A neighbor, Jerry Perkins (“Perkins”), testified he came home to find three girls attacking the victim. He stated that the victim was holding her baby at the time. According to Perkins, Maxwell went back and forth from the car, and came out of the car holding a tire iron rod. He saw Maxwell hit the victim with it. He |4then stated the victim picked up the tire rod after Maxwell dropped it and tried to defend herself.

Maxwell had a different version of events. She testified that she, her sister, and Jones went to the victim’s house to get money from Berrios’ brother, who was friends with the father of Jones’ baby. According to Maxwell, Berrios pulled up in her car, exited, and started cursing at them. Maxwell explained that the victim and Jones had a physical altercation the day before. She testified that the victim pulled a crowbar from the backseat of her car and wielded it at her, hitting her a couple of times in the head. While Maxwell denied ever touching the crowbar, she admitted grabbing the victim’s hair and punching her in the face, claiming that it was in self defense.

On appeal, Maxwell argues the evidence was insufficient to support her conviction for aggravated battery; that is, that the State did not prove beyond a reasonable doubt that she wielded the crowbar and hit the victim with it. She maintains that the only witness who testified she hit the victim with the crowbar, Perkins, was not credible. Maxwell contends several portions of his testimony were inconsistent with the evidence, challenging that portion of Perkins’ testimony where he testified the victim was holding her child in her arms during the attack. Maxwell correctly asserts the victim herself denied holding a child during the attack.

Additionally, Maxwell alleges the victim’s injuries are inconsistent with having been hit with a crowbar. She points to the fact the victim did not require medical attention as opposed to herself, who required two stitches to her head. She further urges that Perkins was confused as to the name of the victim and maintains that Perkins’ testimony was the result of a confused state or delusional recollection. |BShe, thus, argues the trial court erred in relying on Perkins’ testimony to support her conviction.

A battery is defined, in part, as the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. LSA-R.S. 14:34. In order to convict Maxwell of aggravated battery, the State was required to prove: 1) the she intentionally used force or violence against the victim, 2) the force or violence was inflicted with a dangerous weapon, and 3) the dangerous weapon was used in a manner likely to cause death or great bodily harm.

The State presented the testimony of the victim and two eyewitnesses. In finding Maxwell guilty, the trial court stated that the testimony of the victim and of Maxwell was “not totally convincing.” However, the court found the testimony of Julianna and Perkins convincing, finding that the latter testified in good faith and as accurately as possible as to what he saw.

In challenging Perkins’ credibility, Maxwell first argues his testimony that she hit the victim with a crowbar is questionable because the victim did not require medical treatment, seeming to suggest that the lack of serious injury negates any testimony that the victim was hit with a crowbar. Aggravated battery does not require the infliction of serious bodily harm but rather only requires physical contact, whether injurious or merely offensive. The absence of a serious injury does not disprove the occurrence of offensive conduct.

Maxwell also challenges Perkins’ credibility on the basis he was confused about the name of the victim. Perkins referred to the victim variously as “Mingy” and “Monji,” admitting he did not know the victim’s real name. He did state that Rhe lived next door to “Monji and them.” However, Perkins’ reference to the victim as “Monji” was consistent with Maxwell’s testimony wherein she referred to the victim as “Monji.” The record as a whole shows the victim was also known as “Mon-ji” and, thus, there was no confusion as to the victim’s identity.

Maxwell’s strongest challenge of Perkins’ testimony is based on the fact he repeatedly stated that the victim held a child, “Little Craig,” in her arms during the altercation. Maxwell maintains this testimony was uncorroborated and, in fact, contradicted by the victim’s own testimony. Because of this inconsistency, Maxwell urges that Perkins’ entire testimony should be disregarded, characterizing it as bizarre and the product of a very confused mind.

The only child to whom Berrios referred was her six-year-old daughter who witnessed part of the attack, and she, as well as Maxwell, denied that she was holding a child during the fight: However, the majority of Perkins’ testimony was corroborated by the other witness the court found credible, Julianna. Perkins testified, as did Julianna, that three girls were involved in the attack on the victim and that Maxwell had a crowbar. Although Julianna did not see Maxwell hit the victim with the crowbar, she did testify that Maxwell was swinging the crowbar during the attack. Julianna herself became involved in the altercation at some point in an attempt to protect her sister and was hit in the face. Additionally, Berrios described the sensation she felt when she believed she was hit by the crowbar. The record shows the victim’s six-year-old child witnessed a portion of the attack and, thus, was present at the scene. We find the contradicted portion of Perkins’ testimony does not render his entire testimony implausible. Whether the 17victim was holding a child before, at the time of, or after the attack is inconsequential as the elements of aggravated battery were corroborated.

The requirement enunciated in Jackson v. Virginia that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to “ ‘the actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.’ ” The trier of fact can accept or reject, in whole or in part, the testimony of any witness. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. Here, the trial court found the testimony of Perkins and Julianna convincing so as to support the conclusion that Maxwell wielded and struck Berrios with the crowbar. We find the record supports that determination so as to satisfy the Jackson standard of review. This assignment of error is without merit.

In accordance with LSA-C.Cr.P. art. 920, we review all appeals for errors patent on the face of the record. The State notes in its brief that Maxwell received an illegally lenient sentence because the trial court suspended the sentence and placed Maxwell on probation. The State correctly asserts that Maxwell’s sentence cannot be suspended because she was convicted of a crime of violence. LSA-C.Cr.P. art. 893 governs the suspension of a sentence and probation in a felony case. Article 893(A) prohibits the suspension of a sentence for a conviction of certain enumerated crimes of violence, including aggravated battery. The trial judge, thus, imposed an illegal sentence when it suspended Maxwell’s sentence Rand placed her on probation. Consequently, we vacate the sentence imposed and remand the case for re-sentencing.

Additionally, Maxwell was not advised of the two-year prescriptive period within which to file an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. Upon remand, the trial court is reminded to inform Maxwell of the two-year prescriptive period as required by Article 930.8.

For the foregoing reasons, the conviction is affirmed. Maxwell’s sentence for aggravated battery is vacated' as illegally lenient, and the case is remanded for re-sentencing in accordance with this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS FOR RE-SENTENCING.

      . State v. Edwards, 06-643 (La.App. 5 Cir. 3/27/07), 957 So.2d 185, 189, writ denied, 08-1988 (La.8/29/08), 989 So.2d 110.

      . Id.

      . Compare, State v. Mussall, 523 So.2d 1305 (La.1988); State v. Perron, 94-761 (La.App. 4 Cir. 12/27/96), 686 So.2d 994, writ denied, 97-90 (La. 1/24/97), 686 So.2d 869.

      . 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50.

      . State v. Delagardelle, 06-898, p. 8 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 830, writ denied, 07-1067 (La. 11/21/07), 967 So.2d 1154.

      . State v. Taylor, 07-474 (La.App. 5 Cir. 12/27/07), 975 So.2d 10, 14, writ denied, 08-224 (La.9/19/08), 992 So.2d 949.


author: CLARENCE E. McMANUS, Judge. JASMINE, J.,

text:
    STATE of Louisiana v. Arthur THOMAS.
    No. 08-KA-390.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for PlaintiffiAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

|2Pefendant, Arthur Thomas, was convicted of one count of possession of cocaine, and sentenced to five years at hard labor. Defendant now appeals from his conviction and sentence.

The following facts were adduced at defendant’s trial. Sergeant Curtis Matthews, a narcotics officer with the Jefferson Parish Sheriffs Office, testified that he participated in the investigation leading to the arrest of defendant, Arthur Thomas, for possession of cocaine. Sergeant Matthews stated that at 7:00 p.m. on June 26, 2006, he began surveillance of the residence at 605 North Lester Street in Me-tairie. Detectives Edward Greer and Eric Dufrene worked with him. Detective Greer functioned as Sergeant Matthews’ “cover” officer during the operation. Each officer was in his own unmarked vehicle, and they positioned themselves in different locations near the targeted residence.

| ¡¡Detective Greer testified that the officers were watching the residence because a white woman living there was alleged to be involved in illegal activity. According to Sergeant Matthews, the officers had also received information that a black man was expected to arrive on a bicycle and “distribute narcotics from the residence.”

Sergeant Matthews testified that Detective Greer, who could see the residence from his position, alerted him by police radio that a subject was approaching the house. Sergeant Matthews drove toward the house, and he saw defendant approach on a bicycle. Sergeant Matthews exited his car, approached defendant on foot and identified himself as a police officer. He explained to defendant that he was conducting a narcotics investigation, and he advised defendant of his rights.

Sergeant Matthews instructed defendant to place his hands on the police vehicle, and asked him if he had any illegal narcotics on his person. Defendant looked toward the ground and sighed. Based on this response, Sergeant Matthews asked defendant if he had any drugs. Defendant said he had crack. When the officer asked him where the crack was, defendant said it was in his pocket. Sergeant Matthews testified that he immediately checked defendant’s pockets, and recovered one off-white, rock-like object, later identified as crack cocaine. The officer completed a pat-down search of defendant, but did not recover any additional contraband.

In his first allegation of error, defendant alleges that the trial court erred in denying his motion to suppress evidence. He argues the police officers did not have reasonable suspicion to stop him, nor did they have probable cause to support a lawful arrest; therefore, the warrantless seizure of cocaine from his pocket was illegal. The State responds that the evidence was not seized pursuant to an | .¡unlawful detention, since the encounter between defendant and the officers remained consensual. Alternatively, the State argues that the seizure was valid under the inevitable discovery doctrine.

Sergeant Curtis Matthews was the only witness at the suppression hearing. He testified that his department received an anonymous telephone call on its narcotics hotline regarding a residence on Lester Street. The caller stated that a white woman at that house used narcotics, and that numerous people frequented the place. Sergeant Matthews said he did not speak to the caller directly, and he did not know whether that person was reliable. Based on the information from the anonymous caller, Sergeant Matthews and Detective Greer began surveillance of the residence on June 26, 2006, at 7:00 p.m. By 8:00 p.m., the officers had not seen any suspicious activity, and they decided to perform a “knoek-and-talk” at the residence. When the officers knocked on the door, there was no response. At that point the officers decided to take a meal break.

Sergeant Matthews testified that after he and Detective Greer left their surveillance positions, they spoke to Deputy Vernon Bourgeois, who was regularly assigned to that neighborhood. Deputy Bourgeois told them he had learned from area residents that the traffic to and from the targeted house generally began when a black man on a bicycle arrived there. According to Bourgeois, the neighbors who gave him that information did not want to be identified due to fear of retaliation. Sergeant Matthews testified that he and Detective Greer resumed surveillance on the house at 8:30 p.m. defendant, a black man, arrived at the house riding a bicycle, at 9:15 p.m. Defendant stopped the bicycle on the north side of the residence. Sergeant Matthews told Detective Greer over the radio that they would approach defendant and determine whether he would voluntarily comply with their investigation.

IsThe officers identified themselves to defendant and asked whether he lived at the house. Defendant said he did not. With a view toward getting defendant away from the house, Sergeant Matthews asked him to step over to Detective Greer’s vehicle in the street. Defendant complied. Sergeant Matthews advised him of his rights. Defendant indicated that he understood his rights. Sergeant Matthews then asked defendant to place his hands on Detective Greer’s car. Defendant looked toward the ground and sighed, as if something was wrong. Based on defendant’s reaction, Sergeant Matthews asked him if he had any narcotics. Defendant replied, “[Y]eah, in my pocket.” Sergeant Matthews observed that defendant was looking at his left pocket. The officer immediately reached into that pocket and retrieved an off-white, rock-like object. Sergeant Matthews then handcuffed defendant.

Sergeant Matthews testified that he field-tested the rock-like object, and the result was positive for cocaine. Sergeant Matthews learned that defendant had an outstanding attachment in Kenner. Detective Greer transported defendant to the Jefferson Parish Correctional Center and booked him.

At the conclusion of the suppression hearing, the trial court denied defendant’s motion to suppress without giving reasons.

Defendant now argues that at the point at which the police officers ordered him to place his hands on the car, he was subject to an unlawful arrest, or, alternatively, to an illegal investigatory stop. Defendant maintains that the police officers observed nothing unusual or suspicious prior to their decision to approach him; and the unsubstantiated reports from the anonymous tipsters were not — by themselves — sufficient to support reasonable suspicion for a stop or probable cause for a warrantless arrest.

| fiThe Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 107.

In State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1182-83, citing United States v. Watson, 953 F.2d 895, 897 n. 1 (5th Cir.1992), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992), the Louisiana Supreme Court discussed the three-tiered analysis of interaction between citizens and police occurring under the Fourth Amendment:

At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.
At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts.
At the third tier, a custodial “arrest,” the officer must have “probable cause” to believe that the person has committed a crime.

(Citations and footnote omitted).

Law enforcement officers are authorized to stop and interrogate persons reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes a police officer “ ‘to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and to demand that the person identify |7himself and explain his actions.’ ” See State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 96. The “ ‘reasonable suspicion’ ” needed for an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Warmack, 973 So.2d at 107.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Warmack, supra. To determine whether the trial court’s denial of the motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Young, 938 So.2d at 96-97.

In the instant case, when the officers first approached defendant, they merely spoke to him. It is settled that

law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). As long as a reasonable person would feel free to disregard the police and walk away, the encounter is consensual and no reasonable suspicion is required. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). There is no indication in the record that defendant was not free to disregard the officers when they spoke to him. The verbal contact alone involved the first tier of | ^Fisher, and did not implicate Fourth Amendment concerns of detention or coercion.

Sergeant Matthews testified that when he asked defendant to move toward the parked police car, defendant willingly complied. The record does not show that defendant’s consensual walk to the police car was coerced by the officers. It appears the officer’s statement was made in the form of a request rather than a demand. The request does not appear to have been so forceful or overbearing as to make defendant’s consent involuntary. See State v. White, 554 So.2d 796 (La.App. 5 Cir.1989), writ denied, 558 So.2d 601 (La.1990); State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713.

Sergeant Matthews testified at the motion hearing that once defendant had moved away from the house and closer to the police car, he advised him of his Miranda rights. The officer then “asked [defendant] to place his hands on the side of Detective Greer’s unit so I could just do a pat-down and make sure he didn’t have any weapons.” Defendant did not submit to that request. We do not believe that the officer’s request that defendant place his hands on the car, without defendant’s compliance, constituted a show of authority sufficient to raise the encounter to an investigatory stop under the second tier of Fisher.

When Sergeant Matthews asked defendant whether he had any narcotics, defendant volunteered that he had some in his pocket. This admission gave the officers probable cause to arrest defendant and to search him incident to the arrest. Accordingly, the rock of crack cocaine was not illegally seized, and the trial court [ 9did not err in denying defendant’s motion to suppress the evidence. We find defendant’s first allegation of error to be without merit.

In his second allegation of error, defendant alleges that the trial court erred in denying his mistrial motion, which was based on prejudicial testimony given by Sergeant Matthews at trial. The State responds that the facts did not warrant a mistrial, and that any prejudice to defendant was cured by the trial court’s admonition to the jury. Defendant specifically complains of the following exchange between the prosecutor and Sergeant Matthews:

Q. And would you give us a sequence of events once you pulled up in your unit to the house and got out?
A. As I arrived at the location, I observed the Defendant on one portion of the side of the house. I believe it was the north side of the house. He was in the driveway area. As I approached him, I identified myself. I was in plain clothes; more likely, a pair of jeans and a regular shirt. I revealed my badge to him, advised him who I was and asked him to come to the street area with me so I could speak with him. Once we got towards the street area, I explained to him that we had a narcotics investigation where a black male on a bicycle was going to arrive and distribute narcotics from the residence.

At that point, defense counsel objected and moved for a mistrial. The attorneys argued the motion out of the jury’s presence. Defense counsel asserted that Sergeant Matthews had made a prejudicial reference to narcotics distribution, another crime more serious than the one with which defendant was charged. Counsel conceded that the comment was not made by an officer of the court, nor was it purposely elicited by the prosecutor; but he maintained it would nonetheless prevent defendant from receiving a fair trial.

| mThe trial court ruled that since the prosecutor had not purposely elicited the objectionable comment, it was not governed by LSA-C.Cr.P. art. 770, but by LSA-C.Cr.P. art. 771, which offers the trial court the option of admonishing the jury rather than declaring a mistrial. The judge denied the mistrial motion and proposed that the jury be admonished to disregard the officer’s unsolicited comments. Defense counsel objected to the court’s denial of his mistrial motion, and moved that, under the circumstances, the court admonish the jury. The judge explained to defendant what the admonishment would include, and defendant agreed to the judge’s proposed language. The judge then instructed the jury to disregard Sergeant Matthews’ testimony about the information he received that a black man was going to arrive on a bicycle to distribute narcotics. The judge ordered that the comment be stricken from |T1the record. He stressed that defendant was charged with simple possession of cocaine, and that that was the only charge before the jury.

In defendant’s case, the remark complained of was not made by the judge or a court official; nor was it purposely elicited by the prosecutor. It therefore did not satisfy the requirements for a mandatory mistrial under Article 770. The trial court properly found that defendant’s remedy was under Article 771. Mistrial under Article 771 “is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial.” State v. Smith, 418 So.2d 515, 522 (La.1982). Moreover, a mistrial is not warranted unless a witness clearly refers to other crimes alleged to have been committed by the defendant. State v. Young, 05-702 at 12, 938 So.2d at 99. Sergeant Matthews’ comment was not a direct reference to other crimes. Rather, he spoke generally of information he had received about a black man riding a bicycle. In any case, it appears the trial court gave a sufficient admonition to the jurors to disregard the remarks.

The determination of whether prejudice has resulted lies within the sound discretion of the trial court, and will not be disturbed absent an abuse of that discretion. State v. Vincent, 07-90, p. 16 (La.App. 5 Cir. 10/16/07), 971 So.2d 363, 373. We see no abuse of the trial court’s discretion in its denial of defendant’s mistrial motion. Accordingly, we find this assignment of error to be without merit.

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

112The minute entry for January 19, 2008, the day of trial, shows that the jury was polled after it returned its verdict. But the transcript shows the jury was not polled. When the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly we remand this matter and order that the minute entry be amended to conform with the transcript.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. The matter is remanded so the minute entry may be amended to conform ■with the transcript.

AFFIRMED AND REMANDED WITH ORDER.

JASMINE, J., concurs with reasons.

JASMINE, J.,

concurs with reasons.

hi agree with the majority’s conclusion that the trial court did not err in denying the defendant’s motion to suppress. The majority finds that an investigatory stop did not take place because the defendant did not comply with the officer’s request to place his hands on the police car. In my view, defendant’s compliance with the officers’ request that he walk with them to the car constituted an investigatory stop. The officers gave specific, articulable facts providing reasonable suspicion for conducting this stop, thus the trial court correctly denied the defendant’s motion to suppress.

      . Sergeant Matthews explained that a "cover” officer is one who acts as a backup to the investigating officer for safety purposes.

      . Consider, by way of contrast, State v. Sylvester, 01-0607 (La.9/20/02), 826 So.2d 1106, in which the Louisiana Supreme Court found a police encounter became an investigatory stop when the police officer ordered the defendant to place his hands on a car "and [the defendant] complied, thereby submitting to the officer’s assertion of authority.” Sylvester, 01-0607 at 4, 826 So.2d at 1108 (emphasis in the original). See also State v. Atkins, 05-823 (La.App. 5 Cir. 3/14/06), 926 So.2d 591. The present case is distinguishable in that defendant, unlike the defendants in Sylvester and Atkins, did not comply with the officer’s request to put his hands on the car.

      . LSA-C.Cr.P. art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testily in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . LSA-C.Cr.P. art. 771 provides:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      .A police officer is not considered a court official within the meaning of LSA-C.Cr.P. art. 770. See State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254.


author: MARION F. EDWARDS, Judge. JASMINE, J.,

text:
    Lisa A. LEGAUX-BARROW v. Clarence BARROW, Jr.
    No. 08-CA-530.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      E. Jeffrey Perilloux, Attorney at Law, Laplace, Louisiana, for Plaintiff/Appellee.
    N. Sundiata Haley, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, GREG G. GUIDRY, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

12This is an appeal from a trial court judgment partitioning community property pursuant to a divorce. For reasons that follow, we affirm.

The parties were divorced by judgment dated May 23, 2006. In the course of these divorce proceedings, the husband, Clarence Barrow, Jr. (“Mr. Barrow”), filed a motion to partition community property. Each party filed a sworn descriptive list itemizing the assets and liabilities of the community, and a traversal hearing was held by the trial court. After the hearing, the trial court rendered judgment dividing the assets and liabilities of the community between the parties and ordered Mr. Barrow to pay an equalizing payment to his wife, Lisa A. Legaux-Barrow (“Mrs. Barrow”), in the amount of $3,433.

The judgment allocated the family home and much of the furnishings to Mrs. Barrow. She also received her retirement fund of $11,039, savings bonds valued at $1,200, and a 1997 Toyota Camry valued at $1,500. Additionally, the ^responsibility for the mortgage on the family home ($136,000) was allotted to Mrs. Barrow.

Mr. Barrow received a 2003 Dodge Ram Truck ($22,500), a Harley-Davidson Motorcycle ($14,600), his pension valued at $68,800, some household items, and cash in the amount of $14,000 for proceeds from a prior sale of a motorcycle, and $6,397 in hurricane insurance proceeds.

The trial court allocated responsibility for the credit card bills ($3,783) and the note on the dodge Ram ($12,000) to Mr. Barrow.

The net amount allocated to Mrs. Barrow was $92,156, and the net to Mr. Barrow was $111,664, leaving an equalizing payment of $3,433 due to Mrs. Barrow.

Mr. Barrow appeals from that judgment and presents only one issue for our review. He argues that the trial court erred in applying the Hare present value methodology, rather than the Sims fixed-percentage formula to his pension. At the trial on the matter, Mr. Barrow requested the trial court to use the Sims formula.

When the Louisiana Supreme Court handed down the decision in Sims, the Louisiana statutory scheme for partitioning community property did not allow a judicial partition of unmatured pension benefits. Since that time several changes in Federal and State law, including the enactment of LSA-R.S. 9:2801 were recognized by the Louisiana Supreme Court in its decision in Hare. The Hare Court found that:

Neither the Civil Code nor La.R.S. 9:2801 contains anything that requires courts to follow the fixed percentage method to the exclusion of others. In fact, La.R.S. 9:2801, which was enacted subsequent to Sims affords the partitioning tribunal a great deal of flexibility and clearly implies that the |4goals of equality and equity require that no one method should be used to the exclusion of other apportionment techniques. Moreover, our study of legal developments both here and in other jurisdictions convinces us that because of the great variations in pension plans and communal situations no one method can accomplish justice in every case. It is essential, therefore, that courts be able to take advantage of reasonable alternatives and adjustments in order to accomplish an equal distribution in an equitable manner in all situations. (Citations omitted.)

It is clear from the written Reasons for Judgment that the trial court considered Mr. Barrow’s request but found it inappropriate in this matter.

In its Reasons for Judgment, the trial court stated:

Mr. Barrow has urged this court to allocate only the tangible assets and apply the Sims formula to the distribution of the pension funds. To do so would require Mrs. Barrow to pay a large sum of money as an equalizing payment to Mr. Barrow, and Mrs. Barrow cannot afford to make such payment due to her assumption of the mortgage on the family home. Allocation of the parties’ pension funds in their entirety to the respective owners results in a more feasible, less burdensome, distribution and is permitted by La. R.S. 9:2801 A(4)(c)[.]

Thus, the trial court relied on LSA-R.S. 9:2801(A)(4)(c) in allocating pension funds in their entirety to the respective owners, rather that applying the Sims formula to this matter. This is clearly permitted by the statute and the jurisprudence.

| Jt is well-settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. In deciding to whom an asset or liability shall be allocated, the court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances the court deems relevant. The trial court’s allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard.

In support of his argument that this Court should use the Sims fixed-formula method, Mr. Barrow cites Blanchard v. Blanchard, We find the facts of Blanchard to be distinguishable from the matter before us and; therefore, not controlling. In Blanchard the community property consisted of only two assets subject to division, the home valued at $44,000 and the wife’s pension fund with a present value of $50,267. In that case we ruled that the vast differences in nature and character between the two assets required the use of the Sims formula.

In the instant case there are many other assets of the community that were divided by the trial court, including two pensions. Further, in this matter, unlike in Blanchard, the home is not mortgage-free. While it is true the community home has a value of $200,000, it is encumbered by a mortgage in the amount of $136,000, leaving a net value of 64,000. Mr. Barrow’s pension fund has a current value of $68,800. But, these are not the only two assets at issue in the division of property. Unlike Blanchard, the Barrows each have a pension and several other assets including vehicles, household goods, and cash. In addition to his pension, |fiMr. Barrow also received two vehicles, hurricane proceeds and cash from the sale of motorcycle, while Ms. Barrow received most of the household effects.

In the matter before us, the trial court gave valid reasons for the decision. The court allocated to each party their own pension. Accordingly, Mr. Barrow received his pension, currently valued at $68,800, and Mrs. Barrow received hers, currently valued at $11,039. Ms. Barrow did receive the house, but she also assumed the mortgage. Other assets were divided up by the trial court as discussed herein.

Considering those allocations and the allocations as a whole, we can find no abuse of discretion in the trial court’s decision.

Accordingly, we affirm the judgment.

AFFIRMED.

GUIDRY, J., concurs.

JASMINE, J., dissents.

JASMINE, J.,

dissents.

|il respectfully dissent from the majority’s opinion. While the purpose of LSA-9:2801 is to effect an equitable distribution of community assets and liabilities, and recognizing that the trial judge has vast discretion in carrying out this duty, I find that the trial court abused that discretion in awarding the former community home to Mrs. Barrow and his pension to Mr. Barrow. Given the vastly different character of the assets, I find that the partition is not equitable.

Given the difference in the character of the assets (the home and the pension) and the length of time before the pension matures and is payable, I find that the trial court should have partitioned the pension using the “fixed percentage” method as approved by the court in Blanchard v. Blanchard, 97-2305 La. 1/20/99, 731 So.2d 175.

I further find that the trial court abused its discretion when it appeared to consider only the burden upon Mrs. Barrow of finding cash to purchase Mr. Barrow’s portion of the community home, if it were partitioned, and not considering the burden to Mr. Barrow of receiving an asset, his pension, that has no present value, of which the contingencies have not yet been met, and is years away from maturing. I find that an equitable distribution of the community assets could be realized by dividing both pensions by the fixed percentage method, and partitioning the former community home. The remainder of the community assets could be equitably partitioned and/or awarded in such a way as to enable Mrs. Barrow to [.¡purchase Mr. Barrow’s portion of the community home. This way, both parties immediately share in the value of largest tangible asset of the community, the home, while both share the risks of the unmatured pensions.

      . Hare v. Hodgins, 586 So.2d 118 (La.1991).

      . Sims v. Sims, 358 So.2d 919 (La.1978).

      . Hare v. Hodgins, 586 So.2d at 126-27.

      . LSA-R.S. 9:2801(A)(4) provides:
      A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
      (4) The court shall then partition the community in accordance with the following rules:
      (a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
      (b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
      (c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.

      . Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99.

      . LSA-R.S. 9:2801(A)(4)(c).

      . Williams v. Williams, 2006-2491 (La.App. 1 Cir. 9/14/07), 970 So.2d 633, 641.

      . Blanchard v. Blanchard, 96-1031 (La.App. 5 Cir. 5/28/97), 697 So.2d 275, writ granted, 97-2305 (La.12/19.97), 706 So.2d 439, aff'd, 97-2305 (La. 1/20/99), 731 So.2d 175.

      . Id.