text:
    Steven W. RICHARDSON v. GEICO INDEMNITY COMPANY.
    No. 2010 CA 0208.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.
    Rehearing Denied Oct. 4, 2010.

      Leonard Cardenas, III, Baton Rouge, LA, for Plaintiff-Appellant, Steven W. Richardson.
    Glen Scott Love, Stephen Dale Cronin, Baton Rouge, LA, for Defendant-Appellee, GEICO Indemnity Company.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

| {.The plaintiff insured appeals the trial court’s grant of summary judgment in favor of the defendant insurer that resulted in the dismissal of the insured’s claim for statutory penalties and attorney’s fees under former LSA-R.S. 22:658 (current LSA-R.S. 22:1892). For the reasons expressed, we reverse and remand for further proceedings.

FACTS

This case arises out of a motor vehicle collision in East Baton Rouge Parish on October 27, 2006. Steven W. Richardson, insured by GEICO Indemnity Company (GEICO) , was seriously injured when a vehicle operated by Timothy G. Coryell, and insured by Safeco Insurance Company, negligently struck his vehicle. On March 10, 2007, Richardson settled with Coryell and Safeco for Safeco’s policy limits of $50,000.00 after Safeco confirmed Coryell’s liability for the accident.

Shortly thereafter, by a letter dated May 23, 2007, Richardson demanded that GEICO unconditionally tender its underin-sured motorist (UIM) policy limits of $25,000.00, plus $3,000.00 for medical payments coverage. It is undisputed that GEICO received Richardson’s demand letter on May 25, 2007. Attached to Richardson’s demand letter was a copy of Safeco’s $50,000.00 check made payable to Richardson and his attorney; an affidavit of Safe-co’s insured attesting to the fact that he had no other automobile liability insurance coverage in effect; a copy of the police report; and copies of Richardson’s medical records and medical |3bills reflecting that Richardson’s medical treatment through May 2007 totaled over $65,000.00, well above the underlying liability insurance coverage.

It is undisputed that Richardson’s demand letter did not contain information about any claim for reimbursement involving medical payments that were previously made by the Medical Care Recovery Unit of the Department of the Navy (the Navy). It is also undisputed that GEICO received separate notification of the Navy’s lien in a “Notice of Claim” that was sent to GEICO by the Navy on March 9, 2007, almost three months prior to GEICO’s receipt of Richardson’s demand letter. The Navy’s notice indicated that the “United States” was making claim to “any and all available insurance coverage including, but not limited to, ... Medical Payments, [and] Un-derinsured or Uninsured benefits” for the reasonable value of the medical care and treatment that had been provided by or through the United States to Richardson, with proof of the medical expenses to be forwarded at a later date.

After receiving the Navy’s notice-of-claim letter and Richardson’s demand letter, GEICO began a series of numerous contacts and/or attempts to contact Richardson’s attorney’s office, as well as the Navy, in an effort to confirm the amount and payment details for the Navy’s outstanding medical payments lien. On June 6, 2007, the Navy’s representative informed GEICO that the Navy’s lien amount totaled $13,976.57, and that Richardson’s attorney had requested a |4compromise of the lien. Approximately three weeks later, on June 20, 2007, GEI-CO sent a letter to Richardson’s attorney, advising of GEICO’s “intent to offer the [UIM] policy limits of $25,000.00 pursuant to [Richardson’s] demand [letter] of May 24th, 2007.” Additionally in the intent-to-offer letter, GEICO reiterated that “the issues regarding the Navy lien ... also need to be addressed along with the specific distribution of the Medical Payments benefits.” Further, GEICO’s notice of its intent to offer the UIM policy limits was conditioned upon the proper execution of Safeco’s underlying liability insurance release, as well as GEICO’s UIM release. On June 21, 2007, Richardson’s attorney’s office representative confirmed receipt of GEICO’s intent-to-offer letter, advised GEICO that the Navy’s lien amount was now $14,799.19, and informed GEICO that further negotiations were ongoing with Richardson regarding a reduction of the lien.

After GEICO sent the intent-to-offer letter, GEICO continued to attempt to contact Richardson’s attorney to discuss the issue of the Navy’s lien and the status of the case. On July 16, 2007, Richardson’s attorney’s office contacted GEICO to inform GEICO that the Navy’s lien had finally been settled for $12,000.00. Two days later, Richardson’s attorney advised GEICO in a faxed letter that due to the settlement of the medical payments lien from the underlying liability policy limits, GEICO was released from any obligation to pay the lien. Richardson’s attorney further informed GEICO that a release could not be required as a condition of payment of the UIM policy limits, and doing so was “contrary to law and unreasonable, arbitrary and capricious.” Richardson’s attorney made demand “once again” for an immediate and unconditional tender of Richardson’s UIM Impolicy limits and any available medical payments coverage. At this point, Richardson’s attorney indicated that a satisfactory proof of loss had been provided to GEICO in the May 23, 2007 letter, and that GEICO had breached its contractual obligations to Richardson, subjecting GEICO to statutory damages and attorney’s fees. GEICO responded on July 18, 2007, by forwarding cheeks for Richardson’s $25,000.00 UIM policy limits and $3,000.00 medical payments coverage.

On October 12, 2007, Richardson filed a petition against GEICO, alleging that GEICO had arbitrarily and capriciously, and without good cause, failed to make a timely and unconditional UIM tender to Richardson, thereby entitling Richardson to statutory penalties and attorney’s fees. The petition did not include any allegations regarding the Navy’s lien. GEICO answered Richardson’s petition by denying that the letter it received on May 25, 2007, was a satisfactory proof of loss, since the letter did not include information regarding the Navy’s lien. Additionally, GEICO asserted that it had diligently attempted to address and resolve the Navy’s hen with Richardson’s attorney, but was not able to confirm the amount and the settlement of the lien until July 16, 2007, contending that it was at that point that GEICO received a satisfactory proof of loss. Because a tender of the UIM policy limits and medical payments coverage was promptly forwarded to Richardson’s attorney two days after receipt of the Richardson’s satisfactory proof of loss, GEICO asserted that Richardson’s claim for statutory penalties and attorney’s fees was without merit.

Almost two years later, on July 31, 2009, GEICO filed a motion for summary judgment, with a supporting affidavit referencing numerous attached exhibits. The affidavit was sworn by GEICO’s Claims Examiner, Thomas Miller, |fiwho had personally worked on Richardson’s claim. GEICO argued in its motion for summary judgment that Richardson was not entitled to penalties and attorney’s fees against GEICO for “bad faith” because the pleadings, exhibits, and Miller’s affidavit showed that Richardson could not sustain his burden of proving that GEICO “failed to pay” the UIM claim within thirty days of receiving “satisfactory proof of loss.” Additionally, GEICO argued that Richardson could not sustain his burden of proving that GEICO was arbitrary, capricious, or without probable cause in allegedly “failing” to timely pay Richardson’s UIM claim. Richardson filed no affidavits or memorandum in opposition to GEICO’s motion for summary judgment.

In its memorandum in support of the motion for summary judgment, GEICO maintained that the statutory thirty-day time period in LSA-R.S. 22:658 did not begin to run until the Navy’s lien was “finalized.” Once GEICO was informed that the Navy’s lien had been settled and that GEICO was authorized to pay the UIM limits and medical payment coverage directly to Richardson, GEICO promptly issued payment the following day. Thus, GEICO contended that Richardson was paid within the statutory time period. Alternatively, GEICO argued that it diligently and actively adjusted Richardson’s UIM claim in good faith, attempting to resolve the uncertainty of the Navy’s lien for the medical payments coverage, and reasonably relied on a good faith defense that it could not directly pay Richardson the UIM limits until the Navy’s lien was finally resolved. GEICO also ^maintained that Richardson’s attorney and/or attorney’s office staff had acknowledged that it was necessary for GEICO to verify the Navy’s lien before making an unconditional tender.

On November 9, 2009, the summary judgment motion was tried. Judgment in favor of GEICO, dismissing Richardson’s claims with prejudice, was signed on November 20, 2009. No reasons were assigned. On appeal, Richardson contends that the trial court erred in failing to find that GEICO was arbitrary, capricious, or without probable cause when it failed to unconditionally tender the undisputed portion of Richardson’s claim within the statutorily-mandated time period after GEICO received a satisfactory proof of loss on Richardson’s UIM and medical payments claims,

SUMMARY JUDGMENT

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Pugh v. St. Tammany Parish School Bd., 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1118. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to summary judgment as a matter of law. Ernest v. Petroleum Service Corp., 02-2482 (La.App. 1 Cir. 11/19/08), 868 So.2d 96, 97, writ denied, 03-3439 (La.2/20/04), 866 So.2d 830. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966 B. Summary judgment is favored and “is designed to secure |sthe just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966 A(2).

On a motion for summary judgment, the initial burden of proof remains with the moving party. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the opposing 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 opposing party’s claim, action, or defense. Thereafter, if the opposing 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. LSA-C.C.P. art. 966 C(2).

Once the motion for summary judgment has been properly supported by the moving party, the failure of the opposing party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh, 994 So.2d at 97; see also LSA-C.C.P. art. 967 B. But the law is well settled that the record as a whole must show that all critical elements of the opposing party’s case have been put to rest, regardless of whether the opposing party filed counter affidavits. This is because the burden of proof is on the mover to present a prima facie case; the opponent has nothing to prove in response to the motion if a prima facie case is not made. Estain v. U.S. Dept. of Transp. and Development, 01-0554 (La.App. 1 Cir. 5/10/02), 819 So.2d 375, 378. Further, despite the legislative mandate that summary judgments are favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049, 1050.

loin Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material:

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Guardia v. Lakeview Regional Medical Center, 08-1369 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628.

LAW AND ANALYSIS

At issue in GEICO’s motion for summary judgment is the appropriate date of Richardson’s satisfactory proof of loss, if any, and whether GEICO arbitrarily, capriciously, and without probable cause failed to pay Richardson’s UIM and medical payments claims within thirty days of receipt of the satisfactory proof of loss. As the moving party, GEICO had the initial but-den of proof for purposes of seeking summary judgment; however, as a defendant in this matter, GEICO would not bear the burden of proof on these issues at trial. Therefore, GEICO was only |inrequired to point out to the trial court that there was an absence of factual support for one or more elements essential to Richardson’s action.

Louisiana Revised Statutes 22:658 A(l) requires all insurers to pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss. Section B(l) of this statute provides the following:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor ..., when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.

This statute must be strictly construed because it is penal in nature. Hart v. Allstate Ins. Co., 437 So.2d 828, 827 (La.1983). Furthermore, this statute is applicable to a UIM claim. Id. An insured who claims penalties and attorney’s fees under this statute has the burden of proving that the insurer received a “satisfactory proof of loss” as a necessary predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. Id., 437 So.2d at 827-828.

It is well-settled that a satisfactory proof of loss is that which is sufficient to fully apprise the insurer of the insured’s claims. Louisiana Bag Co., Inc. v. Audubon Indem. Co., 08-0453 (La.12/2/08), 999 So.2d 1104, 1119. See also McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La.1985). Accordingly, for a satisfactory proof of loss of a UIM claim, the insured must establish that the insurer received sufficient facts to fully apprise the insurer that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, that he was at fault, that such fault gave rise to damages, and establish the extent of those damages. Hart, 437 So.2d at 828. Further, to prevail |nunder LSA-R.S. 22:658 B(l), the insured must establish that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary, capricious, or without probable cause. Louisiana Bag Co., 999 So.2d at 1112-1113; Khaled v. Windham, 94-2171 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, 679, writ denied, 95-1914 (La.11/1/95), 661 So.2d 1369.

Louisiana has adopted liberal rules concerning the lack of formality relative to proof of loss. Louisiana Bag Co., 999 So.2d at 1119; Sevier v. U.S. Fidelity & Guar. Co., 497 So.2d 1380, 1384 (La.1986); Versai Management Corp. v. Clarendon America Ins. Co., 597 F.3d 729, 739 (5th Cir.2010). As long as the insurer obtains sufficient information to act on the claim, the manner in which it obtains the information is immaterial. Sevier, 497 So.2d at 1384. Thus, a satisfactory proof of loss occurs when the insurer has adequate knowledge of the loss. Versai Management Corp., 597 F.3d at 739. Whether and when a satisfactory proof of loss was received is a question of fact. Boudreaux v. State Farm Mut. Auto. Ins. Co., 04-1339 (La.App. 4 Cir. 2/2/05), 896 So.2d 230, 236.

However, the statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good-faith reliance on that defense. Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 752. This is especially true where there is a reasonable and legitimate question as to the extent and causation of a claim; bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Id. In order for an insurer to avoid being arbitrary or capricious after receiving a satisfactory proof of loss, it is necessary for the insurer to determine whether there exists a legitimate basis for not paying at least what it considers to be undisputed. Reed v. State Farm Mut. Auto. Ins. Co., 03-0107 (La.10/21/03), 857 So.2d 1012, 1022. The determination of whether an insurer acted in bad faith turns on the facts and circumstances of each case. This is because a prerequisite to any recovery under the statute is a finding that the insurer not only acted (or failed to act), but did so, arbitrarily, capriciously, and without probable cause. As this determination is largely factual, great deference must be accorded the trier-of-fact. Block, 742 So.2d at 752.

GEICO attempted to point out in its motion for summary judgment that Richardson was unable to prove that a satisfactory proof of loss had been made until GEICO received notice of the amount and final settlement of the Navy’s lien on July 16, 2007. However, one of the attachments to the Miller affidavit submitted in support of GEICO’s motion for summary judgment reveals that in GEICO’s June 20, 2007 notice-of-intent letter, in which it indicated that it intended to offer the UIM policy limits to Richardson, GEICO acknowledged that its intent to offer the UIM limits was made “pursuant to [Richardson’s] demand of May 2Uth, 2007.” (Emphasis added.) Thus, the evidence offered by GEICO to point out Richardson’s lack of a satisfactory proof of loss actually shows the opposite. GEICO’s intent-to-offer letter clearly reveals that GEICO was in receipt of a satisfactory proof of loss for Richardson’s claim on May 25, 2007, when it indisputably received Richardson’s demand letter and intended to offer the UIM policy limits to its insured in response to that demand. Accordingly, GEICO had thirty days (until June 24, 2007) to pay the amount of the UIM claim that was due Richardson. It is undisputed that payment was not made until July 17, 2007, which is outside of the thirty-day time period.

GEICO argues, however, that Richardson produced no evidence to show that GEICO acted in an arbitrary and capricious manner in making the untimely payment. GEICO submitted Miller’s affidavit in support of the summary | ^judgment, outlining GEICO’s numerous and repeated attempts to contact Richardson’s attorney and/or a representative of the Navy in order to resolve the issue of the outstanding medical payments lien. The evidence reveals that GEICO attempted to contact Richardson’s attorney on June 21, 2007, but instead spoke with a representative in the attorney’s office. GEICO was advised that GEICO’s intent-to-offer the UIM limits letter had been received. Richardson’s attorney’s office representative confirmed that GEICO’s intent-to-offer letter “satisfied [Richardson’s] demand within the statutory deadlines[,]” and that Richardson “did not expect GEICO to release funds until the issue of the Navy’s lien was addressed.” According to Miller’s affidavit, Richardson’s attorney also advised GEICO on June 28, 2007, that he understood that GEICO was “not delaying payment, but was only seeking verification that the lien issues had been addressed.” Thus, GEI-CO maintains that its attempt to confirm the Navy’s lien was a legitimate and reasonable reason to delay payment to Richardson that precludes penalties and attorney’s fees under LSA-R.S. 22:658.

A determination of whether an insurer’s failure or refusal to pay within the time limits is arbitrary, capricious, or without probable cause is primarily a question of fact that depends upon facts known to the insurer at the time of the insurer’s action. Louisiana Bag Co., 999 So.2d at 1114; Cryer v. Gulf Ins. Co., 276 So.2d 889, 892 (La.App. 1 Cir.1973). The phrase “arbitrary, capricious, or without probable cause” is synonymous with “vexatious,” and a “vexatious refusal to pay” means “unjustified, without reasonable or probable cause or excuse.” Reed, 857 So.2d at 1021. In this regard, the record indicates that GEICO knew of the Navy lien well before it received Richardson’s demand letter, and that GEICO actively attempted to verify the amount of the Navy claim before making payments under the UIM policy limits and medical payments coverage. GEICO argues that 114it reasonably relied upon the assertions of a representative in Richardson’s attorney’s office that the statutory time line had been met, and Richardson did not submit any opposing evidence to the contrary.

But the evidence submitted by GEICO also clearly shows that GEICO became aware of the estimated amount of the Navy lien as early as June 6, 2007, when GEICO was informed by the Navy representative that the lien amount was $13,976.57. Therefore, even though GEI-CO was advised that Richardson’s attorney was actively seeking a compromise of the Navy’s lien, GEICO had actual and adequate knowledge by June 6, 2007, that the undisputed amount involved in Richardson’s UIM claim was the difference between the $25,000.00 UIM policy limits and the approximate $14,000.00 amount of the Navy lien. At that point, Richardson contends that GEICO should have unconditionally tendered the undisputed amount to Richardson with the Navy named as an additional payee on the check, pursuant to McDill, 475 So.2d at 1091-1092. We agree.

While the insurer is not required to tender payment for amounts that are reasonably in dispute, “there can be no good reason — or no probable cause — for withholding an undisputed amount.” Louisiana Bag Co., 999 So.2d at 1114 (quoting Hammett v. Fire Ass’n of Philadelphia, 181 La. 694, 160 So. 302, 304305 (1935)). Pursuant to LSA-R.S. 22:658, an insurer is required to make an unconditional payment of what it indisputably owes when the insured has demonstrated that he is entitled to recover under the insurance contract. Demma v. Auto. Club Inter-Insurance Exchange, 08-2810 (La.6/26/09), 15 So.3d 95, 103104. The record clearly shows that GEICO made no unconditional tender of the undisputed portion of the UIM limits in this case. GEICO’s intent-to-offer letter outlining the terms of payment of the UIM policy limits was not absolute and unconditional, without stipulations and conditions. See Warner v. Liberty Mut. Fire Ins. Co., 543 So.2d 511, 515-516 (La.App. 4 Cir.1989). An unconditional tender must have “no strings attached,” and thus by definition cannot be an offer to settle or a letter outlining the intent to offer a settlement. Demma, 15 So.3d at 102.

A McDill tender must be an unconditional tender. Id. Further, the McDill tender is a good faith act on the part of the insurer acknowledging the insurer’s contractual obligation to pay. Id., 15 So.3d at 104. An insurer that has a reasonable basis to defend the claim and who acts in good faith reliance on that defense is not subject to sanctions under LSA-R.S. 22:658 unless clear proof is presented that the insurer was arbitrary, capricious, or without probable cause in refusing to pay. Id. While GEICO argues it reasonably relied on Richardson’s attorney’s representative’s assertions that GEICO’s letter evidencing the intent to offer the UIM policy limits satisfied Richardson’s demands, GEICO fails to point out how that reliance affected its obligation to unconditionally tender the undisputed amount of Richardson’s UIM and medical payments claims when GEICO had actual and adequate knowledge of the undisputed amount on June 6, 2007.

The Louisiana Supreme Court has recognized that “[a]ny insurer who fails to pay [an] undisputed amount has acted in a manner that is, by definition, arbitrary, capricious or without probable cause ...” Louisiana Bag Co., 999 So.2d at 1116 (citation omitted)(emphasis added). Thus, the failure to pay an undisputed amount is a per se violation of the statute. See Id.; Versai Management Corp., 597 F.3d at 739. GEICO’s motion for summary judgment evidence failed to “point out” an absence of factual support that GEICO arbitrarily, capriciously, and without probable cause failed to unconditionally tender the undisputed amount of the UIM claim within thirty days of receiving Richardson’s satisfactory proof of loss. Thus, hfiwe con-elude that GEICO did not meet its burden of presenting a prima facie case in its motion for summary judgment. Accordingly, the trial court erred in granting summary judgment in favor of GEICO and in dismissing Richardson’s suit. See Es-tain, 819 So.2d at 378.

CONCLUSION

For the reasons assigned, we reverse the grant of summary judgment in favor of GEICO on Richardson’s claim for statutory penalties and attorney’s fees due to GEICO’s failure to unconditionally tender the undisputed portion of Richardson’s UIM and medical payments claims within the statutorily-mandated time period.' We remand to the trial court for further proceedings in accordance with this opinion. All costs of this appeal are assessed to defendant insurer, GEICO Indemnity Company.

REVERSED AND REMANDED.

      . At times in the record, GEICO is also referred to as Government Employees Insurance Company.

      . A copy of the demand letter is in the record; however, the attachments referenced in the demand letter were not included in the evidence filed in the record. The demand letter was attached to an affidavit executed by GEI-CO's Claims Examiner, Thomas Miller, who personally handled Richardson’s UIM claim. The Miller affidavit was filed and admitted into evidence in support of GEICO’s motion for summary judgment.

      . A copy of the Navy's claim letter was attached to Miller’s affidavit.

      . Miller's affidavit outlines at least twenty-two instances where GEICO contacted the Navy’s representative or Richardson’s attorney and/or attorney’s office representative in an attempt to address the issue of the Navy's outstanding lien.

      . A copy of GEICO’s intent-to-offer letter was attached to Miller’s affidavit.

      . A copy of the faxed letter was attached to Miller’s affidavit. Additionally, a copy of the “Agreement to Protect Government's Interest" executed by Richardson’s attorney on February 12, 2007, and accepted by the Navy on March 5, 2007, was attached to Miller’s affidavit as well.

      . A copy of GEICO’s letter outlining the payment of Richardson’s UIM policy limits and medical payments coverage was attached to Miller’s affidavit.

      . Acts 2008, No. 415, § 1, effective January 1, 2009, re-designated the provisions of Title 22 into a new format and numbering scheme, including the re-numbering of former LSA-R.S. 22:658 to the current LSA-R.S. 22:1892 and former LSA-R.S. 22:1220 to the current LSA-R.S. 22:1973, without changing the substance of the provisions. Both of these statutes prohibit insurers from failing to timely pay claims after receiving satisfactory proofs of loss when that failure to pay is arbitrary, capricious, or without probable cause. However, only the shorter time period of thirty days provided in LSA-R.S. 22:658 (current LSA-R.S. 22:1892) is at issue in this case. Because Richardson’s cause of action arose under the previous statute number, it will be utilized throughout this opinion. See Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, 1111 n. 5.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Daniel SWILLIE, Sandra Swillie, Yolanda Camper and Shirlet Pete, Individually and on Behalf of Myrtis Swillie, Deceased, Plaintiff-Appellants v. ST. FRANCIS MEDICAL CENTER (and its Subsidiary St. Francis Ambulatory Services, Inc.), St. Francis Specialty Hospital, Charles Morgan, M.D., and Emile Barrow, St. Francis Ambulatory Services, Inc., St. Francis Med. Center, Defendant-Defendants.
    No. 45,543-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Richard L. Fewell, Jr., for Appellants.
    McGlinchey Stafford PLLC, Monroe, LA, by Deidre C. McGlinchey, Leah D. Sumrall, for Appellees.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

hThe surviving spouse and major children of Myrtis Swillie filed a survival and wrongful death action against St. Francis Specialty Hospital (“SFSH”) and other defendants, alleging that they breached the standard of medical care which resulted in the death of the decedent. The claim against SFSH was dismissed by summary judgment. Plaintiffs appealed; we affirm.

FACTS

Mrs. Swillie, age 69, died on April 11, 2004, while undergoing medical treatment at SFSH. She had been admitted to SFSH seven weeks earlier on February 18, 2004, with diagnoses including congestive heart failure, diabetes, pulmonary edema, a recent myocardial infarction (heart attack), renal failure, sepsis, and a host of other medical problems. Prior to her admission to SFSH, Mrs. Swillie had spent three weeks in St. Francis Medical Center.

Mrs. Swillie was originally admitted to the SFSH by Dr. Emile Barrow who, as treating physician, was initially in charge of her care; however, several other specialists were involved, including Dr. Stephen Beene, a specialist in internal medicine. On April 1, 2004, the family asked Dr. Beene to take charge of Mrs. Swillie’s care. Dr. Beene had “signed off’ the case a week earlier, stating that “there is nothing new internal medicine has to offer,” after a CT scan of her brain revealed “a new ischemic infarct on the right.” Dr. Beene complained that the CT scan results were not telephoned to him, and he did not obtain the results until the next day.

Mrs. Swillie’s husband and three daughters, one an R.N. and the other a P.A., R.N., apparently implored Dr. Beene to-sign back on and take charge Lof the case. According to Dr. Beene, they felt that they had been kept out of the communication loop on the condition and treatment of Mrs. Swillie. Dr. Beene stated that “they told me I was the only one that would sit down and talk to them, examine their mother and go over what was going on[.]” On April 2, when Dr. Beene agreed to take charge of Mrs. Swillie’s care, he wrote on her chart the following order:

Transfer to Dr. Beene; discontinue all previous orders prior to now and proceed with the following: “All orders on this patient must be approved by Dr. Beene per family request[.]”

Dr. Beene complains that the nursing staff continued to follow other physician orders without his approval, one of which included giving Mrs. Swillie diuretics after gall bladder surgery, which, according to Dr. Beene, caused her to become “volume depleted,” i.e., dehydrated, and required dialysis on April 9 and 10, which he was trying to avoid. Her condition worsened and she died on April 11.

Dr. Beene completed the death certificate and indicated the causes of death as (1) sepsis; (2) stroke; (3) myocardial infarction; and (4) congestive heart failure.

The plaintiffs subsequently filed a complaint with the Patients Compensation Fund against SFSH; Dr. Charles Morgan, chief of staff; St. Francis Medical Center; St. Francis Ambulatory Services; and Dr. Emile Barrow. The review panel unanimously found that the allegations against SFSH and Dr. Morgan were without merit. They concluded that Dr. Beene attended Mrs. Swillie only part-time, it was not practical for the staff to take everything through Dr. Beene because there were so many consultants on |sthe case, and Dr. Beene did not make any effort to correct this problem.

The plaintiffs then sued the same defendants, all of whom filed motions for summary judgment. The trial court granted all motions and dismissed all claims. The plaintiffs appeal only the dismissal of the claim against SFSH.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, (La.02/29/00), 755 So.2d 226; Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

The burden of proof on a motion for summary judgment remains with the mov-ant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he is not required to negate all the essential elements of the adverse party’s claim, action or defense. Id.; Hinson, supra. Rather, the movant need only 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. Samaha, supra; Hinson, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, 14there is no genuine issue of material fact and movant is entitled to summary judgment. La. C.C.P. art. 966 C(2).

The plaintiff bears the burden of proving that a healthcare provider committed malpractice. Wiley v. Lipka, 42,794 (La.App. 2 Cir. 02/06/08), 975 So.2d 726, writ denied, 2008-0541 (La.05/02/08), 979 So.2d 1284. Any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and, (3) a causal connection between the breach and the claimant’s injuries. La. R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, 0992 (La.10/17/94), 643 So.2d 1228; Wiley, supra.

Expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. In Pfiffner, supra, the supreme court explained, “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” Samaha, supra; Vinson v. Salmon, 34,582 (La.App. 2 Cir. 05/09/01), 786 So.2d 913. In most cases, however, because of the complex medical and factual issues involved, a plaintiff who does not present medical expert testimony will likely fail to sustain his burden of proof under the requirements of La. R.S. 9:2794.

The plaintiffs raise two assignments of error: (1) the trial court erred in concluding that there was not sufficient evidence of liability and causation in light of the testimony of Mrs. Swillie’s treating physician, Dr. |sBeene, in that regard, and (2) the trial court erred in granting SFSH’s motion for summary judgment based on causation.

We have carefully reviewed the entire record and particularly the deposition testimony of Dr. Beene, the plaintiffs’ expert. Dr. Beene acknowledged therein that his two main complaints regarding SFSH were the hospital staffs failure to promptly report the results of the CT scan performed on March 26, 2004, and the administration of diuretics on April 9, 2004. Dr. Beene also generally criticized SFSH, complaining that there was never a nurse to discuss the case with, there were never results on the chart, and nurses frequently did not follow orders that were written on the chart.

Dr. Beene recalled that he was contacted on a Friday afternoon by a nurse who reported that Mrs. Swillie had been unresponsive for three days. Although Dr. Beene was certain that he had ordered the CT scan, the written record indicated that Dr. Roy, apparently one of his associates, wrote the order. The CT scan was to be done “stat,” which means immediately or without delay. The CT was done on Friday evening and revealed a “new area of ischemic infarction,” but Dr. Beene was not immediately notified. He came across the report on the chart, or obtained the report, around noon the next day, Saturday. After getting the report, Dr. Beene stated that he “documented the facts, listed all the consultants, contacted the neurologist on the case and signed us off.” He did not order any specific treatment for Mrs. Swillie himself, and stated that he agreed with the treatment ordered by the neurologist in response to the report.

| ((When asked why he signed off on the case, Dr. Beene stated that Mrs. Swillie had eight other specialists- treating her at the time, and his own medical group, Internal Medicine Service, was “not actually contributing anything to her case, maybe adding to confusion if anything.” He wrote in the sign-off note that if there was anything specific he or his associates could do to assist Mrs. Swillie’s care, they would return to her case.

The alleged act of negligence, then, arises out of Dr. Beene’s complaint that he was not notified on Friday evening regarding the results of the CT scan. Dr. Beene stated in his deposition that when the results showing the new infarct came in, he should have been notified that night. He clearly believed that this failure fell below the appropriate standard of medical care, indicating that the infarct could have evolved into a hemorrhage which would require immediate attention.

Dr. Beene was ambivalent, however, regarding whether the delay in giving him the radiology report damaged Mrs. Swillie or hastened her death. On the one hand, Dr. Beene stated that it was “more probable than not” that the delay in getting him the report caused specific damage to Mrs. Swillie. However, moments later, when asked to identify the damage caused by the delay, he stated that “she had some baseline neurologic problems already, so I couldn’t tell you exactly right now,” and “it was difficult to determine if it was from the infarct, or if it was from the volume depletion due to over-diuresis.”

Although he could not point specifically to anything at the moment, he did think it was one of the things that led to her passing away, but he [ 7foil owed that by stating, “In retrospect, I don’t think it made a difference.” Finally, when asked again if the radiology report had been brought to his attention on March 26 instead of March 27, would Mrs. Swillie’s death have been prolonged, Dr. Beene responded: “It’s impossible to say that their negligence would have resulted in prolonging her death.”

The second incident of which the plaintiffs and Dr. Beene complain concerns the administration of the diuretics, Diuril and Demadex, on April 9, 2004. This occurred after Dr. Beene had taken charge of Mrs. Swillie’s care on April 2. Dr. Beene stated in his deposition that, at the family’s request, he specifically asked “them” not to administer any medications to Mrs. Swillie that were not already ordered and approved, without calling him. Nevertheless, the nurses apparently administered the two diuretics pursuant to an order by Mrs. Swillie’s treating cardiologist, Dr. Barrow, without contacting Dr. Beene for approval. Dr. Beene admitted that he had not spoken personally with Dr. Barrow regarding the family’s request that all orders be approved by him.

Dr. Beene believed that the result of the administration of diuretics was to cause “volume depletion” in Mrs. Swillie, so he consulted a specialist to do dialysis to correct her volume status. He said that it worked nicely and bought some time.

When asked whether the administration of Diuril and Demadex on April 9 caused any damage to Mrs. Swillie, Dr. Beene stated: “It finished the job. The damage was already occurring and so I think it made us do something we were trying to avoid, which was dialysis.” He stated he | ¿would have cancelled the order to administer the two diuretics had he known about it. He believed that it was more likely than not that the dialysis would not then have been necessary. However, he stated that the dialysis did not harm Mrs. Swillie, and, in fact, bought her some time. The effect of the dialysis was to reverse the effect of the two diuretics, which he believed was leading her to renal failure. When asked if it was more probable than not that without the administration of Diuril and Demadex would Mrs. Swillie’s life have been prolonged, Dr. Beene responded, “Unknown.”

It is clear from Dr. Beene’s testimony that the incidents described by him regarding the staff at SFSH perhaps reflected substandard care. However, whether there was a causal link between these incidents and any damage to Mrs. Swillie is not established by Dr. Beene’s ambivalent testimony in this regard. For this reason, on de novo review, we agree with the trial court that a jury could not reasonably find by a preponderance of the evidence that the plaintiffs are entitled to a verdict against SFSH. Accordingly, the trial court’s granting of summary judgment on the basis of causation was appropriate.

CONCLUSION

For the reasons expressed, the judgment is affirmed at appellants’ costs.

AFFIRMED.


author: DREW, J.

text:
    BARRETT AUTO BROKERS, Plaintiff-Respondent v. DEALER SERVICES CORPORATION, Defendant-Applicant.
    No. 45,667-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Adams and Reese LLP, New Orleans, LA, By Robin Bryan Cheatham, Raymond Peter Ward, for Applicant.
    Culpepper & Carroll, PLLC, Jonesboro, LA, By Bobby L. Culpepper, for Respondent.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

1 tMitchell Barrett (“Barrett”), a resident of Mississippi, did business as Barrett Auto Brokers in Morehouse Parish. Barrett Auto Brokers sold used cars. In 2008, Barrett applied for, and was granted, floor plan financing from Dealer Services Corporation (“DSC”) with a credit limit of $100,000. Donald Barrett acted as Barrett’s guarantor. Barrett executed a demand promissory note and security agreement with DSC.

DSC apparently placed nine vehicles on Barrett Auto Brokers’ floor plan without Barrett’s knowledge or permission and then charged daily interest on these vehicles.

Barrett d/b/a Barrett Auto Brokers filed suit against DSC alleging that: (i) DSC provided floor plan financing to unknown third parties while charging him for the financing; (ii) he had been unable to obtain appropriate floor plan financing because of DSC’s illegal floor plan financing; (iii) DSC’s actions prevented him from having adequate floor plan financing; (iv) DSC’s representative contacted Barrett’s counsel and threatened action against Barrett; (v) DSC harassed him; (vi) DSC continued to contact him even after being told not do so; (vii) DSC damaged him by contacting others in an effort to get information about him; (viii) DSC ruined his credit; and (ix) DSC breached their contract in bad faith.

DSC filed the exception of improper venue, asserting that venue was not proper in Morehouse Parish because Barrett was not a resident of Louisiana, the claims arose in Mississippi, and no wrongful conduct or damage was alleged to have occurred in Morehouse Parish. DSC further asserted that a cause of action could only be filed in East Baton Rouge ^Parish if brought in Louisiana. DSC supplemented its exception of improper venue to argue additionally that Barrett had agreed to venue in Indiana in a forum selection clause contained in the note and the personal guaranty. DSC also filed the exception of vagueness.

Barrett amended his petition to allege that DSC had damaged his business by contacting others in Morehouse Parish in an effort to obtain information about him. He supplemented the petition to allege further that Barrett Auto conducted business in Morehouse Parish, that DSC dealt with him in Morehouse Parish and knew that was where he conducted his business, and that the wrongful conduct occurred and damages were sustained in Morehouse Parish.

The trial court reasoned that venue was proper in Morehouse Parish, and that Barrett’s action sounded in tort and was outside the promissory note and security agreement. Accordingly, the exception of improper venue was denied. The court granted the exception of vagueness in part, and ordered Barrett to amend paragraphs eight and nine of his petition. Barrett subsequently amended his petition to remove paragraph eight, which asserted that representatives of DSC had damaged his business by contacting others in More-house Parish.

|3PSC applied for a supervisory writ with this court. DSC argued that the forum selection clause mandated that Barrett bring his lawsuit in Marion County, Indiana. This court granted the writ and docketed it.

DISCUSSION

Venue is a question of law. Therefore, on review, the appellate court conducts a de novo review of the record. Town of Homer v. United Healthcare of Louisiana, Inc., 41,512 (La.App.2d Cir.1/31/07), 948 So.2d 1163.

Forum selection clauses are legal and binding, and one seeking to set aside such a provision bears a heavy burden of proof. Pitts, Inc. v. Ark-La Resources, L.P., 30,867 (La.App.2d Cir.8/19/98), 717 So.2d 268. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would .contravene a strong public policy of the forum where the suit is brought. Id.

DSC is a Delaware corporation with its principal office in Carmel, Indiana. Regarding venue, the promissory note and security agreement stated, with our emphasis added:

As evidenced by Dealer’s signature below, Dealer submits to the personal jurisdiction and venue of the state or federal courts of Marion County, Indiana, and agrees that any and all claims or disputes pertaining to this Note initiated by Dealer shall be brought in the state or federal courts of Marion County, Indiana. Further, Dealer expressly consents to such jurisdiction and venue of the state or federal courts in Marion County, Indiana, to any action brought in such court by DSC and waives any claim of inconvenient forum with respect to any such action. DSC reserves the right to initiate and prosecute any action against Dealer in any court of competent jurisdiction and Dealer consents to such Forum as DSC may elect.

|4Ponald Barrett and Mitchell Barrett each signed an individual personal guaranty with DSC that provided, with our emphasis added:

This Guaranty shall be governed by the laws of the State of Indiana and Guarantor submits to the personal jurisdiction and venue of the state or federal courts of Marion County, Indiana, and agrees that any and all claims or disputes pertaining to the Note or this Guarantee initiated by Guarantor shall be brought in the state or federal courts of Marion County, Indiana. Further, Guarantor expressly consents to such jurisdiction and venue of the state or federal courts in Marion County, Indiana, to any action brought in such court by DSC and waives any claim of inconvenient forum with respect to any such action. DSC reserves the right to initiate and prosecute any action against Guarantor in any court of competent jurisdiction and Guarantor consents to such Forum as DSC may elect.

Barrett contends that the forum selection clause does not apply to his lawsuit because none of his allegations are claims or disputes pertaining to the note, and that this type of claim was not contemplated under the terms of the agreement. This argument is without merit.

We note from the outset that one of the allegations in the petition was that DSC breached its contract with Barrett. We also note that in his opposition memorandum to the exception of vagueness, Barrett argued that his case is not one where any negligence is alleged, but is a case for breach of contract. Barrett’s counsel explained this to the trial court by arguing that the suit is a hybrid action with a tort component and that DSC acted intentionally.

The relationship between DSC and Barrett arose from the floor plan financing contract, which is evidenced by the promissory note and security agreement. Barrett contends he was damaged when DSC floor planned vehicles not owned by him. Therefore, any duties or obligation owed to | ¿Barrett to floor plan vehicles properly cannot exist separate and apart from their contract. A claim that was arguably outside the contract, that DSC damaged him by contacting others, was subsequently removed from the petition.

Barrett next argues that the enforcement of the forum selection clause would be unreasonable, unjust, overreaching, and against strong public policy. This argument is also without merit.

Barrett contends that it would be unreasonable, unjust, overreaching and against public policy to require this matter to be tried in Marion County, Indiana, when all of the illegal actions occurred in Louisiana where both parties do business, where the office that Barrett deals with is located, where the witnesses are located, and where the damages occurred. This is essentially arguing that the forum is inconvenient. Barrett contends in brief that this is not a question of inconvenient forum, although he declares it could be if this matter was moved to Marion County, Indiana. Compare Lee v. Commodore Holdings, Ltd., 2000-1551 (La.App. 4th Cir.12/6/06), 947 So.2d 158, writ denied, 2007-0300 (La.4/20/07), 954 So.2d 163, where the plaintiff, a Jefferson Parish domiciliary, alleged that she was injured aboard a cruise ship on the Mississippi River in Orleans Parish. The court upheld a forum selection clause in her cruise ship ticket requiring her- to bring her lawsuit in New York City. We also note that the guaranty note and the promissory note and security agreement are governed by Indiana law.

| sin support of his argument that the forum selection clause is against public policy, Barrett cites a provision from La. R.S. 51:1407:

It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.

La. R.S. 51:1407 is found in Chapter 13 of Title 51, “Unfair Trade Practices and Consumer Protection Law.” Barrett has not alleged any unfair trade practice. Moreover, we note that La. R.S. 51:1407 refers to actions brought by the attorney general. There is a separate statute, La. R.S. 51:1409, for private actions. Barrett was not an unsophisticated consumer at the mercy of predators. He was a businessman intending to use substantial credit offered by DSC to finance his business operations.

CONCLUSION

Based on the foregoing reasons, we grant the writ, reverse the judgment denying the exception of improper venue, and dismiss this lawsuit. Costs are assessed to the plaintiff, Barrett Auto Brokers.

WRIT GRANTED; JUDGMENT REVERSED.

      . DSC’s registered office and principal business establishment in Louisiana were in East Baton Rouge Parish.

      . It was asserted that Barrett Auto stored and sold cars in Morehouse Parish, made and received telephone calls in Morehouse Parish, had a Louisiana telephone number, wholesaled vehicles in Morehouse Parish, and operated at least 40 hours per week in Morehouse Parish.


author: WILLIAMS, J.

text:
    Darlene ATKINS, Individually and as Natural Tutrix of Minors Dillion Freeman and Damicqueletta Johnson, Plaintiff-Appellant v. CITY OF SHREVEPORT and Officer W. Willis, Defendant-Appellee.
    No. 45,665-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Sheva M. Sims, Shreveport, LA, for Appellant.
    Ansel M. Stroud, III, Jennifer P. McKay, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

11 Plaintiff, Darlene Atkins, appeals a trial court judgment granting a motion for involuntary dismissal in favor of defendant, Officer W. Willis. For the following reasons, we affirm.

FACTS

On April 8, 2005, at approximately 4:40 p.m., Shreveport police officer Wyle Willis was patrolling the Cedar Grove area of Shreveport, Louisiana in a marked police vehicle. During his patrol, Officer Willis observed 12-year-old Dillion Freeman (“Dillion”) and another person operating “minibikes” (electric scooters) on a city street. Officer Willis testified that he attempted to conduct a traffic stop for the following reasons: (1) he believed the individuals riding the minibikes were not of legal driving age; (2) he believed the minibikes were not “road-approved” vehicles; and (3) the individuals were not wearing helmets. The officer stated that he directed the individuals to stop; however, they increased their speed and fled. Officer Willis testified that he activated the lights and sirens of his patrol car, but the individuals continued to ride for several blocks. The un-named person turned onto a side street, and Officer Willis continued to pursue Dillion. Dillion finally came to a stop in the yard of his grandmother’s house, where, according to Officer Willis, a “large crowd” of people were gathered outside. Officer Willis testified that when he attempted to take Dillion into custody, “the crowd became immediately hostile” and at least two individuals “grabbed at me and pushed at my chest[.]” He stated, “[A]t that time, for my safety, I pulled [Dillion] away from the crowd and to the front of my police car.”

laOnce Officer Willis activated the lights and sirens of the police cruiser, the vehicle’s video camera automatically began recording the incident. The videotape was introduced into evidence at the trial and showed Dillion’s flight and Officer Willis’ pursuit. Dillion ran two stop signs during the chase. Once the police vehicle came to a stop in front of the home of Dillion’s grandmother, neither Dillion nor the officer was initially in view of the camera. However, someone, presumably Dillion, could be heard screaming, “He was chasing me; he was chasing me.” Other members of the crowd were heard yelling loudly. Officer Willis returned in view of the camera with Dillion in tow. The officer was seen grabbing Dillion by the arm and walking him to the front of the police car. Dillion repeatedly pulled away, and as Officer Willis attempted to place Dillion in handcuffs, Dillion struggled against the officer’s grasp. Dillion continued to resist, so Officer Willis forced Dillion to the ground. Several adults approached Officer Willis, and the officer placed his knee in Dillion’s back to secure him, removed his Taser and ordered the crowd to “step back” into the yard. After the officer gave it several orders to “step back,” the crowd finally retreated. However, one woman continued to approach Officer Willis and Dillion.

Several eyewitnesses to the incident testified at trial. However, the testimony of the witnesses was inconsistent. For example, some witnesses testified that Officer Willis “dragged” Dillion across the street and “threw” him to the ground. At least one witness testified that the officer “walked” Dillion to the front of the police car. Some witnesses testified that Officer IsWillis held a gun to Dillion’s head and threatened to shoot him. However, the videotape revealed that the officer drew his Taser, not his gun, and never threatened to shoot Dillion.

On April 7, 2006, plaintiff (Dillion’s mother) filed suit on behalf of Dillion and plaintiffs minor daughter, Damicqueletta Johnson; named as defendants were the city of Shreveport (“the City”) and Officer Willis, individually and in his “official capacity.” Plaintiff alleged that Officer Willis used excessive police force, and Dillion suffered “psychological trauma[,] injury to his knee[,] chest pains[,] back pains[,] embarrassment and humiliation” as a result of the officer’s conduct. Plaintiff also alleged that her minor daughter witnessed the incident and suffered “mental trauma” as a result.

Prior to trial, both parties moved for summary judgment. The trial court denied plaintiffs motion. The court partially granted defendants’ motion, dismissing all claims asserted on behalf of plaintiffs minor daughter and all claims against the City. The court denied defendants’ motion with regard to Dillion’s claims against Officer Willis. The matter proceeded to trial with Officer Willis as the sole defendant.

A bench trial was held on October 27, 2009. After plaintiff presented her evidence, Officer Willis moved for involuntary dismissal, pursuant to LSA-C.C.P. art. 1672(B). The trial court granted the motion, stating:

It is clear to the Court that the officer was acting appropriately when he tried to apprehend [Dillion]. It is clear to the Court that [Dillion] was doing his darnedest [sic] to flee ... and to get away from him. It is clear to the Court that [Dillion] was struggling with the officer and trying to get away from him after the officer had h gotten ahold of him. It is clear to the Court the officer had very reasonable cause to think he was being threatened on the street. It is clear to the Court that a number of the witnesses testified falsely about the distance they were from the policeman, about following the policeman across the street. It is clear to the Court the officer used minimal force. This case borders, I think, on being frivolous. Anyone can see the video tape[.]
And I might also remark as well [that] I did review the evidence — the documentary evidence that was placed before the Court. This is the first time in close to 12 years that I’ve ever seen a medical report that used the term ‘completely normal....’ [I]t appears to me to be an effort to communicate that there [was] absolutely nothing wrong with this person when he presented at the hospital.

The court revoked plaintiffs informa pau-peris status and ordered her to pay court costs. Plaintiff appeals.

DISCUSSION

Plaintiff contends the trial court erred in granting defendants’ motion for involuntary dismissal. Plaintiff argues that she met her burden of proving that Officer Willis used excessive force and that Dillion was injured during the incident.

A motion for involuntary dismissal at the close of the plaintiffs evidence is permissible after a bench trial when, based upon the facts and law, the plaintiff has failed to show a right to relief. LSA-C.C.P. art. 1672(B). A motion for involuntary dismissal requires the trial court to evaluate all of the evidence presented by the claimant and render a decision based upon the preponderance of the evidence. Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.3/3/10), 32 So.3d 340; Gray v. City of Monroe, 41,087 (La.App.2d Cir.5/17/06), 930 So.2d 1148. An appellate |ficourt should not reverse an involuntary dismissal in the absence of manifest error; and, there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Id.

Recently, in Hall v. City of Shreveport, 45,205 (La.App.2d Cir.4/28/10), 36 So.3d 419, this Court reviewed the relevant jurisprudence with regard to a claim of excessive police force as follows:

The Louisiana Supreme Court has analyzed excessive force claims under the aegis of the general negligence law of Louisiana which employs a duty-risk analysis. Under this analysis, the plaintiff must prove: (1) the conduct in question was a cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of the protection afforded by the duty breached.
The duty of reasonableness is owed by a police officer whether making an arrest or approaching a subject prior to disarming him or her. In effectuating an arrest, an officer is required to approach and take into custody an individual whom the officer has probable cause to believe has committed or is committing a crime. Police officers have a duty to act reasonably in effecting an arrest, and the force used must be limited to that required under the totality of the circumstances. The reasonableness of an officer’s use of force depends upon the totality of the facts and circumstances in each case. A court evaluates the officer’s actions against those of ordinary, prudent, and reasonable persons placed in the same position as that possessed by officers, with the same knowledge as that possessed by the officer at the time of the incident.
One of the factors taken into consideration when determining whether a police officer used reasonable or unreasonable force is whether the plaintiff was intoxicated, belligerent, offensive, or uncooperative. In determining whether the officer acted reasonably under the circumstances, the following factors should be considered: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the | ^existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officer compared to the arrestee; and (7) the exigency of the moment. The existence of other available alternative methods does not, in and of itself, render the method chosen unreasonable. This reasonableness test is based upon the Fourth Amendment to the United States Constitution as well as La. C.Cr.P. art. 220 which provides:
‘A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.’
This reasonableness test answers the question of whether or not the officer breached the duty he owed to the plaintiff. The degree of force employed is a factual question. Thus, the trial court’s finding is entitled to great weight.

Id. at 422-23 (internal citations omitted).

LSA-R.S. 14:108.1 provides, in pertinent part:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
B. Whoever commits the crime of flight from an officer shall be fined not less than one hundred fifty dollars, nor more than five hundred dollars, or imprisoned for not more than six months, or both.

In the instant case, plaintiff has never asserted that Officer Willis lacked reasonable suspicion to stop Dillion for traffic violations. Nor has |7plaintiff disputed that Officer Willis had probable cause to arrest Dillion for flight from the officer, or that, under the circumstances, the officer did not have the right to physically restrain Dillion in effectuating the arrest and to take Dillion into custody. However, plaintiff alleged in her petition that Officer Willis acted unreasonably in the following regards: (1) pursuing Dillion “at a high rate of speed;” (2) “grabbing” Dillion and “dragging” him to the front of the police car; (3) removing his revolver and placing it to Dillion’s head and threatening to shoot Dillion; (4) “throwing” Dillion to the ground and placing his knee in Dil-lion’s back.

The reasonableness of Officer Willis’ actions was hotly contested at trial. Officer Willis testified that he pursued Dillion until he arrived at a residence where a “large crowd” of people were standing outside. He stated that the crowd “became hostile” when he attempted to effectuate the arrest; therefore, for his safety, he decided to remove Dillion from the crowd and attempted to handcuff him in front of the police car.

Dillion testified that he was riding his minibike and “panicked” when Officer Willis attempted to stop him. Dillion also testified that he proceeded to the driveway of his grandmother’s house, where he “was grabbed by one of my arms and dragged to the street, out of the yard.” Dillion stated that Officer Willis threw him to the ground, placed his knee in his back and threatened to shoot him.

Plaintiff testified that Officer Willis “jumped out” of the police car, |8“grabbed Dillion off the bike and drug [sic] him across the street.” She also stated that the officer “threw [Dillion] to the street on the concrete in front of the police car [and] placed his knee into [Dillion]’s back[.]” Plaintiff further testified that “the crowd” began to yell at the officer, so the officer “pulled a gun, and pointed it at the crowd and told us if we don’t get back he was going to shoot him and he placed the gun to [Dillion’s] head.” She later admitted that the weapon the officer exposed was not a gun.

Ray Prelow testified that he was outside the residence when Dillion, pursued by Officer Willis, arrived. Prelow stated that Officer Willis “grabbed” Dillion and “walked him” to the front of the police car. Prelow also testified that the officer pulled his taser and told members of the crowd to “get back.” At one point, Prelow testified that the taser was pointed at Dillion’s back; then he stated that it was pointed at Dillion’s head. Prelow admitted that some members of the crowd were hostile and threatened to harm the officer. He stated, “Everybody was angry and upset the way [Officer Willis] handled the whole situation.”

Donald Griffin also witnessed the incident. Griffin stated that Officer Willis “grabbed [Dillion] before he got off his moped and drug [sic] him across the street and put his knee in his back and pulled his gun out and told [plaintiff] and her mother to holdup and he — he put his gun — well, he had it out and it just right by the young kid’s head, you know.... And he told the rest of the people to get back, to get back.” When asked by the court if he was sure Officer Willis drew a pistol, Griffin stated, ‘Yeah, it was a pistol.”

Mary Atkins, Dillion’s grandmother, also testified that she witnessed |9the incident. She stated that Officer Willis held “a gun” to Dillion’s head.

After a thorough review of this entire record, including the transcript of the testimony and the videotape, we find that the trial court did not commit manifest error in concluding that Officer Willis’ actions were “reasonable” and “appropriate.” As the trial court noted, the testimony of the witnesses was contradicted by the videotape of the incident. The videotape depicted Dillion’s flight, during which he recklessly disregarded two stop signs. The videotape also showed that Dillion pulled away from Officer Willis’ grasp several times, and he continued to struggle with the officer after the officer was holding onto his arms. When the officer attempted to place Dillion in handcuffs, Dil-lion continued to struggle. At least six of the adults in the crowd began to surround Officer Willis, yelling loudly. Officer Willis utilized a takedown maneuver, by using his knee to hold Dillion down. He then drew his Taser and ordered the crowd to “get back.” The videotape clearly depicted Officer Willis’ manner of addressing the crowd and reflected his fear and uncertainty of the situation. The officer repeatedly scanned the scene around him, with the Taser in his hand as more onlookers arrived. One woman, presumably plaintiff, continued to yell at Officer Willis and continued to approach Officer Willis and Dillion, repeatedly ignoring the officer’s command to “get back.” Once the crowd became quiet and retreated, Officer Willis was able to handcuff Dillion and place him in the police car. The audio portion of the video does not reveal any sounds which indicate that Dillion was at any time being injured. Once Dillion was handcuffed and helped to his feet, nothing in either his facial |inexpression or demeanor indicated that he was in pain. There is nothing in the videotape to indicate that Officer Willis acted with either malice or hostility toward Dillion or the crowd.

The trial court, as the trier-of-fact, heard the testimony of the parties and eyewitnesses. It clearly did not believe the testimony presented by plaintiff, which was contradicted by the videotape. From the perspective of the witnesses, it is obvious that they did not agree that it was necessary for the officer to take down and handcuff the minor child. Thus, they clearly disagreed with the manner in which Officer Willis handled the entire incident. While there may have been an alternative method of effectuating the detention and arrest, we find that, given the totality of the circumstances, the evidence of record supports the trial court’s finding that Officer Willis’ methods of securing the situation and ensuring his safety were reasonable and did not amount to the use of excessive force.

Additionally, we find no manifest error in the trial court’s conclusion that plaintiff failed to show that Dillion suffered any injuries as a result of the incident. Medical records introduced into evidence show that on the day after the incident, Dillion was treated in the emergency room at Willis-Knighton South for complaints of pain in his right knee and scapula. The emergency room physician noted that Dil-lion was “able to ambulate without any problems” and had “full range of motion of all his joints.” The physician’s notes also reflected that Dillion had “no contusion over his scapula region [and][h]is right knee has no swelling, no contusion, no effusion, no laxity, no Lachman’s.” The emergency room physician |,, concluded, “The patient [has] a completely normal exam and no evidence of fracture.” Also, in Dillion’s records from Louisiana Methodist Children and Family Services, the therapist noted that Dillion “exhibited no hyper-vigilance or excessive anxiety due to the trauma,” and that Dillion had reported that he was “almost over [the incident].” The therapist further noted that Dillion “appeared to have entered therapy in a position of almost total recovery, [and his] therapy was brief due to his advanced stage of recovery upon entering therapy.” This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s ruling granting defendant’s motion for involuntary dismissal. Costs of this appeal are assessed to plaintiff, Darlene Atkins.

      . The allegation that Officer Willis drew his gun and threatened to shoot Dillion was proven false. Plaintiff later admitted that Officer Willis never drew his revolver; rather, he pulled his Taser and pointed it at the crowd.


text:
    STATE of Louisiana, Appellee v. Patrick ASHLEY, Appellant.
    No. 45,563-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Louisiana Appellate Project, by James E. Beal, for Appellant.
    Charles Rex Scott, II, District Attorney, R. Bennett Langford, III, Kodie K. Smith, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

11 Patrick Ashley appeals his sentence of 20 years at hard labor for the aggravated incest of his four-year-old niece. We affirm.

The 23-year-old Ashley lived with his mother, Mrs. Woods, in her house in Shreveport’s MLK neighborhood. Mrs. Woods regularly babysat toddlers in her home, including occasionally her granddaughter AR, who was Ashley’s niece and, at the time, about a month shy of her fifth birthday. On July 5, 2007, AR told her mother, Ms. Ratcliff, that Ashley had “put his wee-wee in her”; Ms. Ratcliff called the police. Detective Paula Moreno found that AR had reported this incident not only to her mother but also to her big sister, LA.

Detective Moreno referred AR to Gingerbread House, where the child said in a videotaped interview that some days earlier, Ashley had called her into his bedroom, pulled down her pants, laid her on the bed and put his “wee-wee” in her. On a drawing, she marked that he had done this both in her genital (her “kitty”) and her rectal (her “butty”) areas. AR then went to Dr. Ann Springer at the Cara House. Dr. Springer’s colposcope exam found a “jagged and irregular” hymen with no normal tissue remaining, a standard injury in children who were victims of sexual abuse. An anal exam found a deep fissure at the 6:00 o’clock position “through the anal pillars,” which in the doctor’s view could have been caused only by forceful penetration.

The state charged Ashley by bill of information with one count of aggravated incest, La. R.S. 14:78.1. After a three-day bench trial in July 2009, the court found him guilty as charged. The court denied Ashley’s motions for new trial and post verdict judgment of acquittal. At a sentence 12hearing, the court considered Ashley’s PSI and heard testimony from AR’s mother and sister, as well as Ashley’s mother and girlfriend (who also lived with Ashley, along with her own baby from a prior relationship, in Mrs. Woods’s house). The state stipulated that because it had not indicted Ashley, it would not seek the maximum life sentence under R.S. 14:78.1 D(2) for a victim under the age of 13 and an offender over the age of 17; instead it would apply the range of 5 to 20 years at hard labor by Subsection D(l), and request the maximum of 20.

The court stated that Ashley’s minimal criminal record, mostly traffic offenses, and good conduct in prison were mitigating factors, but that several aggravating factors also applied: his acts manifested deliberate cruelty to AR, he knew or should have known that she was particularly vulnerable or incapable of resistance because of her extreme youth, he used his position or status as her uncle to facilitate the commission of the offense, and it resulted in significant permanent injury to the victim. Mostly, the court found the evidence would have supported a conviction of aggravated rape, which carries a mandatory life at hard labor without benefits. The court therefore imposed the maximum of 20 years at hard labor, subject to the benefits of parole, probation and suspension of sentence, and with credit for time served.

The court denied a motion to reconsider sentence; this appeal followed.

| oBy one assignment of error, Ashley urges the 20-year hard labor sentence is excessive for the offender in this case. He contends the court gave inadequate weight to his virtually clean criminal record and instead focused on the despicable nature of the offense, contrary to State v. Lathers, 414 So.2d 678 (La.1982). He requests that the sentence be vacated and the case remanded for a lesser sentence that would better serve the goals of punishment and rehabilitation.

The state responds that because the evidence would have supported either aggravated rape or the enhanced penalty provision of R.S. 14:78.1 D(l), Ashley qualifies as the “worst type of offender” for whom the maximum sentence is appropriate. State v. Woods, 41,420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writs denied, 2006-2768, -2781 (La.6/22/07), 959 So.2d 454.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. First the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1 by establishing a factual basis for the sentence. This record shows a thorough and exemplary treatment of the sentencing factors; the court restated the operative facts of the offense and analyzed all relevant sentencing factors, thus distinguishing the case from State v. Lath ers, supra. Moreover, the court was not required to assign greater weight to any one factor than to any other. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Freeman, 44,419 (La.App. 2 Cir. 6/24/09), 13 So.3d 1241. We find adequate compliance.

| ¿The second prong is constitutional exeessiveness. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276. A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. As a general rule, maximum or near-maximum sentences are reserved for the most serious violations of the charged offense and the worst kind of offender. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665. Nevertheless, the sentencing court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

On close review we find no abuse of the district court’s sentencing discretion. Despite numerous factual defenses raised at trial, the record shows that Ashley subjected his 4-year-old niece to both vaginal and anal penetration, the latter “forceful” in the opinion of the medical expert. The state’s election not to pursue the enhanced penalty of R.S. 14:78.1 D(l) or a charge of aggravated rape greatly reduced Ashley’s sentencing exposure. Finally, the victim’s mother testified that not only did the incident require putting the child in therapy; it also broke up the family. The record supports the district court’s finding that Ashley is the “worst kind of offender” for | ¡¡whom the maximum sentence is warranted. The assigned error lacks merit.

Finally, we have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For these reasons, Patrick Ashley’s conviction and sentence are affirmed.

AFFIRMED.

      . This penalty was subsequently amended to a maximum of 99 years at hard labor by 2008 La.. Acts No. 33, effective August 15, 2008.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Donald Lee BOUWELL, Appellant.
    No. 45,635-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Robert W. Levy, District Attorney, Laurie L. Whitten, Assistant District Attorney, Shreveport, Louisiana, for Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

h The defendant, Donald Lee Bouwell, pled guilty to unauthorized entry of a business, a violation of La. R.S. 14:62.4, and simple criminal damage to property, a violation of La. R.S. 14:56. He was sentenced to three years in prison at hard labor. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction, vacate the defendant’s sentence, and remand the case for resen-tencing.

FACTS

On March 15, 2004, the Ruston Police Department responded to a call concerning a broken window on the west side of Emmanuel Baptist Church. Officer B.R. Davis, Officer Cates, Officer Sullivant, and Sergeant D.M. Freeman went to the church and found a second-story window broken. The police entered the church and checked each room. As Officer Davis entered the choir room, he heard someone say, “I give up.” He saw a man hiding under some choir robes, and ordered him to come out. The man told the officers that he had broken into the church because he did not have a place to stay that night. There was no damage to the church other than the broken window. Officer Cates secured the man in handcuffs, advised him of his Miranda rights and placed him in a police car. The man was later identified as Donald Lee Bouwell. Officer Cates booked the defendant for simple burglary of a religious building and simple criminal damage to property.

A bill of information was filed on April 21, 2004, charging Bouwell with violating La. R.S. 14:62.4, unauthorized entry of a place of business, in that he “did make an intentional entry of a structure used in whole or in part Ras a place of business, Emmanuel Baptist Church, without the consent of the owner thereof.” By a separate bill of information, he was charged with violating La. R.S. 14:56, simple criminal damage to property, where the damage amounted to over $500. At a hearing that day, an attorney was appointed to represent Bouwell, and he entered a plea of not guilty.

On May 24, 2004, defendant’s attorney filed a motion to quash the bill of information for the unauthorized entry of a business charge, claiming that Louisiana courts had previously held that a church was not a “business” as used in the definition of the crime of unauthorized entry of a business. Therefore, he claimed, the offense charged was not punishable under a valid statute.

On August 17, 2004, the defendant’s motion to quash was denied. The defendant’s attorney indicated that his client had chosen to accept a plea deal offered by the state, but that he intended to reserve his right to appeal the decision on the motion to quash under State v. Crosby, 338 So.2d 584 (La.1976). Under the plea agreement, in exchange for a guilty plea as to the charge of unauthorized entry of a business, the second charge of criminal damage to property in an amount over $500 would be reduced to a responsive charge of simple criminal damage to property, and the defendant would be sentenced to three years at hard labor suspended plus three years of supervised probation that would include restitution to the victim in the amount of $291.87. In the event that the denial of the defendant’s motion to quash stood on appeal, the trial court was to impose a standard sentence for the charge of simple criminal damage to property and was to order that ^sentence to run concurrently with the sentence for the unauthorized entry. Additionally, if the appeal were unsuccessful, the defendant would be brought back to court and an additional condition of probation would be that he serve six months in the parish jail with credit for time served. The trial court Boykinized the defendant, accepted the guilty plea, and set the matter for sentencing on October 12, 2004.

The defendant did not attend the sentencing hearing on October 12, 2004. No explanation for his failure to appear was given in the trial court or in this appeal.

On November 10, 2009, the trial court held a sentencing hearing, noting that the defendant had failed to appear previously. A PSI showed that Bouwell had been engaged in substantial criminal activity both before and after the entry of the plea of guilty in this matter. The trial court noted that both of those actions were violations of Bouwell’s case termination agreement. The trial court sentenced the defendant to be imprisoned for three years at hard labor, the sentence to run consecutively to any other sentences he was serving. The defendant did not get credit for time served on this offense or any other offenses. Further, with respect to the simple criminal damage to property, the trial court ordered the defendant imprisoned in the parish jail subject to public work for a period of six months. That sentence was to run concurrently with the sentence for unauthorized entry because it arose out of the same facts and circumstances.

The defendant’s attorney filed a motion for an appeal of the Crosby issue. The defendant seeks review on appeal of the denial of the motion to |4 quash the bill of information, and also claims the trial court erred in failing to comply with a valid plea bargain agreement between the defendant and the state at the time of the guilty plea.

LAW AND DISCUSSION

Unauthorized Entry of a Place of Business vs. Simple Burglary of a Religious Building

In the defendant’s first assignment of error, he asserts that the trial court erred by finding that a church is a place of business for the crime of unauthorized entry of a place of business. More specifically, he argues the statutes and case law indicate that there is now a statute which specifically deals with break-ins of churches, so churches should no longer be considered businesses for purposes of the unauthorized entry statute.

In support of his argument, the defense cites State v. King, 06-0618 (La.App. 4th Cir.3/7/01), 782 So.2d 654. In King, the defendant was charged with violating La. R.S. 14:62.6, which is simple burglary of a religious building. That particular statute was enacted by Acts 1997, No. 405 § 1, and states as follows:

A. Simple burglary of a religious building is the unauthorized entering of any church, synagogue, mosque, or other building, structure, or place primarily used for religious worship or other religious purpose with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.
B. Whoever commits the crime of simple burglary of a religious building shall be fined not more than two thousand dollars and imprisoned with or without hard labor for not less than two years nor more than twelve years. At least two years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

|sIn King, the defendant argued that the trial court erred by its failure to include unauthorized entry into a place of business and attempted unauthorized entry into a place of business on the list of responsive verdicts. The defendant in King cited a case decided in this court, State v. Smith, 28,516 (La.App.2d Cir.8/21/96), 679 So.2d 491, which held that a church was a business for purposes of the crime of unauthorized entry of a business. However, the Fourth Circuit noted that the offense perpetrated in Smith occurred prior to the 1997 enactment of La. R.S. 14:62.6, the specific statute relative to simple burglary of a religious building. The King court stated:

The finding in Smith that a church is a “business” for criminal law purposes has been superceded [sic] by the enactment of the new statute. At that time the legislature had an opportunity to simultaneously enact a statute relative to a lesser offense of unauthorized entry into a religious building and they chose not to include such an offense. Therefore, this Court will not read a lesser included offense into the statute.

Based on the King case, and the statute that was enacted specifically addressing burglary of a religious building, the defendant in the instant case argues the trial court erred in failing to grant his motion to quash the bill of information charging him with unauthorized entry of a business. He claims that a church is not a place of business and that the offense charged, unauthorized entry of a place of business, is not punishable under a valid statute.

The defendant pled guilty to violating La. R.S. 14:62.4, which is unauthorized entry of a place of business, which states as follows:

A. Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto | f,any premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.
B. Whoever commits the crime of unauthorized entry of a place of business shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years, or both.

The crime of unauthorized entry of a business requires only an intentional entry by a person without authority into any structure belonging to another used in whole or in part as a place of business. La. R.S. 14:62.4. In Smith, supra, this court stated a church is a place of business within the meaning of the statute that criminalizes unauthorized entry of a place of business. A church provides services, has employees, and regular expenses which must be paid by some official of the church, and a church generally receives its operating expenses from the contributions of its members. Therefore, a church meets the criteria to be deemed a business for purposes of the statute prohibiting unauthorized entry. Smith, supra.

The fact that in 1997 the legislature enacted La. R.S. 14:62.6, simple burglary of a religious building, is not relevant to the disposition of the case at bar. In fact, for a defendant to have committed the act of simple burglary of a religious building, he would have to have performed an unauthorized entry of a religious building “with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” In the case at bar, there is no evidence that the defendant had any intent to commit any felony or theft in the church. The defendant merely entered the church with the intention of sleeping there for the night. Therefore, the charge of unauthorized entry into a business properly fit the actual crime committed when the 17unauthorized entry was into a church. For these reasons, we find that the defendant’s argument lacks merit and affirm the defendant’s conviction.

Plea Agreement

The defendant argues in the second assignment of error that the trial court erred by failing to comply with a valid plea bargain entered into between the defendant and the state at the time of his guilty plea.

The defendant argues that he entered a plea agreement with the state in which he agreed to plead guilty to unauthorized entry of a business in exchange for a sentence of three years at hard labor suspended, and three years of active supervised probation with conditions. The trial court accepted his guilty plea and the terms of the plea agreement. The defendant claims he understood that he would be sentenced in accordance with the plea agreement. However, the defendant did not attend the first sentencing hearing scheduled on his behalf for October 12, 2004, and in fact, was not actually sentenced until November 10, 2009.

It is well settled that a plea agreement is a contract between the state and a criminal defendant. State v. Davis, 41,430 (La.App.2d Cir.11/1/06), 942 So.2d 652. A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the agreement are not satisfied. State v. Davis, supra; State v. Beverly, 37,301 (La.App.2d Cir.8/20/03), 852 So.2d 1149. When a plea agreement is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Byrnside, 34,948 (La.App.2d Cir.8/22/01), 795 So.2d 435. IsTherefore, the defendant claims his three-year sentence should be vacated and the matter remanded to the trial court for resentencing in accordance with the plea agreement.

The defendant entered a plea agreement with the state which was recited at the hearing at which the defendant’s guilty plea was accepted by the trial court. Defense counsel read the agreement into the record, and the trial court asked, “Is that the agreement that the state has reached and to which it recommends to the Court?” The state’s attorney replied, “Yes, sir, it is.” Thereafter, the court accepted the guilty plea. Nothing in the record indicates that anything was said to the defendant about the consequences of his potential failure to appear at the sentencing hearing. There was no indication that his failure to appear would result in a breach of the plea agreement, or a nullification of the plea agreement, or what sentence might be imposed if he did breach the plea agreement.

Based on our review of the record, we find that the imposition of the three year sentence at hard labor, which was to run consecutively to any other sentences he was serving, without credit for time served on this offense or any other offenses, along with the six-month sentence in the parish jail subject to public work for a period of six months, renders the plea agreement constitutionally infirm. The plea agreement clearly indicated that the defendant was promised a sentence of three years at hard labor suspended plus three years of supervised probation that would include restitution to the victim in the amount of $291.87, a reduction of the second charge of criminal damage to property in an amount over $500 to a 19responsive charge of simple criminal damage to property, and in the event that the denial of the defendant’s motion to quash stood on appeal, an additional condition of probation ordering that he serve six months in the parish jail with credit for time served.

Jurisprudence indicates that the proper action to be taken would be to either order specific performance of the plea agreement or to allow the defendant the opportunity to withdraw his guilty plea. For this reason, we find that this assignment of error has merit. Therefore, we vacate the defendant’s sentence, remand the case to the trial court for either imposition of the sentence agreed upon in the plea agreement or an opportunity for the defendant to withdraw his guilty plea.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. However, the defendant’s sentence is vacated, and the matter remanded to the trial court for imposition of the sentence agreed upon in the plea agreement or an opportunity for the defendant to withdraw his guilty plea.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.