author: PETERS, J. GREMILLION, Judge,

text:
    Edward AMBUSH, et al. v. The MOUNT ZION BAPTIST CHURCH, INC. through its BOARD OF TRUSTEES.
    No. 11-1028.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 22, 2012.
    Rehearing Denied March 28, 2012.

      George C. Gaiennie, III, Gaiennie Law Firm, L.L.C., Bradley L. Drell, B. Gene Taylor, III, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, Mount Zion Baptist Church, Inc. through its Board of Trustees.
    Lindsey J. Scott, Scott and Associates, A.P.L.C., Baton Rouge, LA, for Plaintiffs/Appellees, Edward Ambush, et al.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

| T This appeal is yet another chapter in the internal struggle for church leadership of Mount Zion Missionary Baptist Church, Incorporated, a/k/a Mount Zion Missionary-Baptist Church, located in Alexandria, Louisiana. The plaintiffs in this phase of the litigation involving the church are over 130 members of the.church. They brought suit against the church seeking various forms of relief. The church now appeals a trial court judgment that appointed a special master to hold a church election, and which the church contends prohibits the Board of Trustees from performing its duties. For the following reasons, we affirm the trial court judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The issues presented in this appeal represent only a small part of the litigation that currently engulfs the church, and this is not the only appeal pending before this court at this time. Contemporaneous with this opinion, this court is issuing another opinion involving other issues related to the church’s internal governance struggle, and reference is made to that opinion for some of the additional factual background. See Mt. Zion Missionary Baptist Church v. Ameal Jones, Sr., 11-961 (La.App. 3 Cir. 2/1/12), 84 So.3d 674. The judgment in that appeal, which we affirmed, related to Mr. Jones’ status as pastor, an election of a new set of trustees for the church, and the particulars of who was in charge of the church business at any given point. As pointed out in that opinion:

On March 2, 2011, the trial court executed a written judgment which provided in part that the church’s preliminary injunction was granted and that Mr. Jones was discharged as pastor of the church; that the purported election of a new Board of Trustees on February 13, 2011, was nullified and set aside; and that Mr. Jones and his agents or representatives were 12prohibited and enjoined from entering or occupying any of the property of the church “as pastor pending any further action in accordance with the Church bylaws and Louisiana law.”

Id. at 677.

Apparently this latter part of the judgment led to an attempt by the church’s trustees to limit certain members’ participation in church activities, because on March 21, 2011, the plaintiffs filed a petition against the church seeking relief on a number of levels. Of significance to this litigation was the plaintiffs’ request for the appointment of a special master to oversee the calling of a church meeting to elect a new Board of Trustees, and their request for injunctive relief prohibiting the current Board of Trustees from banning them from the church premises. This pleading was assigned to a different division than that to which the prior litigation had been assigned, and on the day following the filing by the plaintiffs, the judge of the new division granted a temporary restraining order ordering the church, through its Board of Trustees, to:

a. Refrain from preventing Petitioners’ access to the Church,
b. Refrain from conducting any business or special meetings prior to [the trial] court’s ruling;
c. Refrain from manipulating/changing the composition of the current board, until such time that [the trial] court has ruled on this matter.

On April 4, 2011, the trial court held a hearing on the plaintiffs’ petition and, after completion of the evidence, granted them part of the relief they requested.

The April 18, 2011 judgment, which arose from the April 4, 2011 hearing, provided in pertinent part that the church was prohibited from preventing the plaintiffs’ access to the church facility, and that the trial court would appoint a special master “to ensure that [an] Annual meeting be conducted within fifteen (15) days from the date of the hearing.” However, even before the judgment was executed, the Especial master had been appointed and had already requested an extension of time in which to hold the Annual Meeting. The trial court extended the deadline and ordered that the Annual Meeting be held on May 1, 2011.

Before the election could be held, the church sought and obtained a suspensive appeal of the April 18, 2011 judgment. The trial court executed the order granting the appeal on April 26, 2011. In that appeal, which is the one now before us, the church raises two assignments of error: “1) The court erred by appointing a special master and authorizing him to hold an annual meeting. 2) The court erred by prohibiting the directors from performing their duties.”

Plaintiffs’ Motion to Dismiss

Despite the fact that the trial court granted the church a suspensive appeal, the Annual Meeting took place as scheduled on May 1, 2011, and a new slate of trustees was elected. The plaintiffs have filed a motion to dismiss the church’s appeal based on the alleged participation by some of the church’s trustees in the May 1, 2011 meeting. The plaintiffs argue that the church, through its Board of Trustees, has unconditionally acquiesced in the election result by their participation.

We deny this motion to dismiss the church’s appeal. In the court’s ruling on the plaintiffs’ supervisory writ addressing the issue of whether the church’s appeal was suspensive or devolutive, this court also ruled that the May 1, 2011 election “was null and void because it was conducted after the suspension of the preliminary _J_4Ínjunction order.” Ambush v. Mount Zion Baptist Church, Inc., 11-671 (La.App. 3 Cir. 6/29/11). Furthermore, there exists no evidence in the record before us to support the plaintiffs’ argument that the trustees participated in the May 1, 2011 election.

Assignment of Error Number One

As stated, this court has already ruled that the May 1, 2011 election was void. However, the church now argues that any election held under the auspices of a court-appointed special master would be invalid. Specifically, the church points to La.R.S. 13:4165(A), which states “[p]ur-suant to the inherent judicial power of the court and upon its own motion and with the consent of all parties litigant, the court may enter an order appointing a special master in any civil action wherein complicated legal or factual issues are presented or wherein exceptional circumstances of the case warrant such appointment.” (Emphasis added.) However, in a situation almost identical to the one before us now, the second circuit approved the appointment of a special master where the parties did not object to the appointment of the special master when the trial court announced that it was going to appoint one. White v. Bd. of Dirs. of St. Elizabeth Baptist Church, 42,903 (La.App. 2 Cir. 1/9/08), 974 So.2d 164, writ denied, 08-300 (La.3/28/08), 978 So.2d 311. In White, the attorney said “[y]our honor, for the record, I have no objection to the selection of Mr. Johnson. I just maybe have a soft objection to the procedure but I have no objection to the selection.” Id. at 170. Here the trial counsel did not voice even a “soft” objection to the appointment of a special master. We construe the church’s failure to object and its apparent participation in selecting the special master as a “tentative consent” to the appointment of a special master. Id. at 170.

The First Amendment to the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” A similar provision is contained in article 1, section 8 of the 1974 Louisiana Constitution, which provides: “No law shall be enacted respecting an |sestablishment of religion or prohibiting the free exercise thereof.” These constitutional provisions forbid governmental interference with religious freedom. “Civil courts are prohibited from interfering in the ecclesiastical matters of a religious group, that is, in matters concerning religious discipline, faith, rule, custom or law.” LeBlanc v. Davis, 432 So.2d 239, 241 (La.1983). However, when a court is asked to determine whether church members complied with the procedures set out in the church’s bylaws when it conducted an election, ecclesiastical matters are not at issue. Id.

Given the extreme contention over the selection of the Board of Trustees and the many entwined issues that are pending in this and the lower courts, we find that there are exceptional circumstances within the meaning of La.R.S. 13:4165(A) that warrant the appointment of a special master.

Assignment of Error Number Two

In its other assignment of error, the church argues that the trial court erred in limiting the ability of the existing Board of Trustees to fulfill its obligations under the articles of incorporation to carry on the day-to-day operation of the church. Specifically, the church asserts that the trial court’s grant of church access to the plaintiffs, its requirement that the trustees provide a member of the opposition with a key to the church and its alarm code, and its requirement that no action be taken by any party to the litigation until the special master orchestrated an election impinged on the trustees’ authority.

A trial court’s determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review. Smith v. W. Va. Oil & Gas Co., 373 So.2d 488 (La.1979). Louisiana Code of Civil Procedure Article 3601 provides that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” During the pendency of an action for a permanent injunction the court may issue a | ^temporary restraining order, a preliminary injunction, or both. La.Code Civ.P. art. 3601(C). A preliminary injunction merely requires a prima facie showing that the plaintiff has a good chance to prevail on the merits. Novelaire Tech., L.L.C. v. Harrison, 08-157 (La.App. 5 Cir. 8/19/08), 994 So.2d 57. Although the hearing on the preliminary injunction may touch upon, or even tentatively decide, the substantive issues that comprise the petition for the permanent injunction, those substantive issues raised in the principal demand will be decided only after a full trial under ordinary process. Smith, 373 So.2d 488; Novelaire Tech., L.L.C., 994 So.2d 57.

Given the circumstances facing the trial court in this unfortunate litigation, we cannot say that the trial court abused its discretion in issuing these orders in dispute by use of a preliminary injunction. Basically, the trial court was attempting to cause the church to follow its own internal rules, and did so in the least intrusive way given the inability of the church members to effect any degree of cooperation.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s April 18, 2011 judgment and remand the matter to the trial court for further proceedings. The plaintiffs’ motion to dismiss is denied. All costs of this appeal are assessed to Mount Zion Missionary Baptist Church, Incorporated.

MOTION TO DISMISS DENIED. AFFIRMED AND REMANDED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

concurs and assigns written reasons.

liThe actions taken by both the trial court and the majority of this court present a classic illustration of “making the best of a bad situation.” It is as clear to me as it is to the majority that the appointment of a special master to oversee the election of the Board of Directors was an entirely reasonable way of dealing with what the majority calls “extreme contention,” and “unfortunate circumstances.”

I also agree with the majority’s decision to rely on the precedent of the Second Circuit in White v. Board of Directors of St. Elizabeth Baptist Church, 974 So.2d 164 (La.App. 2 Cir. 1/9/08), writ denied, 08-0800 (La.3/28/08), 978 So.2d 311 which is remarkably on point. The White rule allows for the appointment of a special master to oversee the election of the Board of Directors of a non-profit church even without the consent of the parties, when the dispute involves not only the pastor’s performance and fitness to serve, but also the failure of the Board of Directors to follow necessary formalities.

However, the fact still remains that La. R.S. 13:4165(A) only allows for a special master upon “the consent of all parties litigant.” The court in White attempted to get around this obvious mandate by suggesting that the absence of a contemporaneous objection on the part of one of the litigants was somehow the equivalent to consent. It is not.

|2In the case before us, I would have preferred that the majority simply cite the White rule for the proposition that in the face of such hopeless chaos, the trial court need not obtain consent of all the parties. Instead, the majority doubles-down on the notion that no objection equals consent.

I am concerned that this logic could be extended beyond this situation to other analogous situations. After all, all special masters issues are, necessarily, “exceptional circumstances.” La.R.S. 13:4165.

      . The caption of the plaintiffs’ petition names the defendant as The Mount Zion Baptist Church, Inc., through its Board of Trustees. In the petition itself, the plaintiffs identify the defendant as "the Board of Trustees of Mount Zion Baptist Church, Inc." Because the articles of incorporation of the church (which identify the corporation as Mount Zion Baptist Church, Incorporated and not Mount Zion Baptist Church, Inc.) provide that the corporate powers of the corporation are vested in a Board of Trustees, we will simply refer to the defendant in this litigation as the "church.”

      . The transcript of the April 4, 2011 hearing reflects that at the end of the hearing, the trial judge ordered counsel for the litigants to join him in chambers for the purpose of selecting the person to be appointed as special master. No one objected to this action.

      . Inexplicably, three days later the trial court executed an order granting the church a de-volutive appeal as well. In any event, the conflict arising from the execution of the de-volutive appeal order has been resolved by this court's unpublished ruling on a supervisory writ application filed by the church. In that ruling, this court found that the execution of the suspensive appeal order by the trial court had the effect of suspending any injunctive relief made available to the plaintiffs by the April 18, 2011 judgment, and that the trial court lacked jurisdiction to execute the devolutive appeal order. Ambush v. Mount Zion Baptist Church, Inc., 11-671 (La. App. 3 Cir. 6/29/11).

      . While this election has prompted numerous new filings, the issues raised by those filings are not before us.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    PARISH OF JEFFERSON v. BANKERS INSURANCE COMPANY and Louis Marcotte, III.
    No. 11-CA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.

      Peter J. Butler, Jr., Richard G. Passler, Lydia Habliston Toso, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Martin E. Regan, Jr., Nisha Sandhu, Attorneys at Law, New Orleans, LA, for Defendants/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   MARC E. JOHNSON, Judge.

12Plaintiff, the Parish of Jefferson, appeals the trial court’s sustaining of a peremptory exception of no cause of action filed by defendant, Louis Marcotte, III. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

On January 28, 2005, the Parish of Jefferson (“the Parish”) filed suit against Bankers Insurance Company (“Bankers”) and Louis Marcotte, III (“Marcotte”) seeking an accounting and monies due under La. R.S. 13:718. Under La. R.S. 13:718(I)(2), a premium fee is due for all commercial surety underwriters who write criminal bail bonds in Jefferson Parish. The Parish alleged that between November 9, 2001 and August 15, 2003, defendants underpaid these premium fees. It asserted that Bankers, as a surety underwriter, was obligated to collect premium fees from its agent, Marcotte, and forward the premium fees to the Department of ^Insurance. The Parish alleged defendants underpaid the premium fees by at least $100,508.

Bankers answered the lawsuit, but Mar-cotte filed a peremptory exception of no cause of action claiming he had no duty to remit or report the premium fees to the Parish. The trial court agreed and sustained the exception of no cause of action. The trial court gave the Parish 15 days to amend its petition, under La. C.C.P. art. 934, to state a cause of action against Marcotte if it could.

The Parish timely amended its lawsuit by adding three paragraphs. In its amended petition, the Parish asserted Marcotte exceeded the scope of his agency by underpaying or under-reporting the premium fees to Bankers. As a result, the Parish alleged Marcotte either became an underwriter within the meaning of La. R.S. 13:718 or became personally liable to the Parish for the underpayment of the premium fees.

Marcotte filed a second exception of no cause of action. After a hearing, the trial court granted Marcotte’s second exception of no cause of action and dismissed the Parish’s lawsuit against Marcotte with prejudice. The trial court explained that the Parish’s theory of recovery was based on La. R.S. 13:718. The trial court concluded the statute only imposes a duty for reporting and payment of premium fees on the underwriter and not on the agents. It found any duty Marcotte owed was to his principal, Bankers. The trial court noted that even if Marcotte exceeded the scope of his agency by under-reporting the premiums, Marcotte’s duty was to his principal and the Parish could not benefit from the breach of this duty. The Parish appeals the trial court’s ruling.

ISSUES

|/The Parish argues the trial court erred in granting Marcotte’s exception of no cause of action because Marcotte had an independent duty to the Parish under La. R.S. 13:718 to fully and accurately report the premium fees owed. The Parish also contends Marcotte became personally liable for the premium fees when he exceeded his authority as an agent and became a de facto underwriter for purposes of the statute. Finally, the Parish asserts Mar-cotte became personally liable for negligent misrepresentation.

DISCUSSION

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Schejfler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 646. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. No evidence may be introduced at any time to support or controvert an exception of no cause of action. La. C.C.P. art. 931; Wood v. Omni Bancshares, Inc., 10-216 (La.App. 5 Cir. 4/26/11), 69 So.3d 475, 479. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Scheffler, 950 So.2d at 646.

Because Louisiana uses a system of fact pleading, a plaintiff is not required to plead the theory of recovery in his petition; however, mere conclusions of the plaintiff unsupported by facts will not set forth a cause of action. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Surety Agency, LLC, 10-2264 (La.5/10/11), 63 So.3d 940, 946. The mover bears the burden of demonstrating that the petition fails to state a cause of action. Because the exception of no cause of action raises a question of law and the trial court’s ^decision is based solely on the sufficiency of the petition, review of the trial court’s ruling on the exception is de novo. Id.

Accepting all the allegations in the Parish’s petition as true and applying the legal principles set forth above, we find the Parish’s petition fails to state a cause of action against Marcotte. First, we find La. R.S. 13:718 does not impose a duty on Marcotte, as Bankers’ agent, to either report or remit premium fees to the Parish. During the time the Parish alleges defendants underpaid the premium fees, La. R.S. 13:718(I)(2)(a) provided in pertinent part, "... there is hereby imposed a fee on premium for all commercial surety underwriters who write criminal bail bonds in Jefferson Parish. The fee shall be equal to fifty dollars for each ten thousand dollars worth of liability underwritten by the surety.” Subsection 2(b) provides:

Each commercial surety underwriting criminal bail bonds in the Twenty-Fourth Judicial District Court shall submit a report each quarter to the commissioner of insurance. The report shall contain the amount of criminal bail bond liability written in the Twenty-Fourth Judicial District Court and shall contain a calculation of the premium fee due. The premium fee due shall accompany the report. The report shall be due within fifteen days of the close of the quarter for which the report is filed.

Under Subsection 2(c), the commissioner of insurance has the duty to maintain the premium fees in a special account and then remit payment to the judicial administrator for the 24th Judicial District Court each calendar quarter.

By the plain wording of the statute, it is the commercial surety who underwrites the bonds that has the duty to report and pay premium fees, not the surety’s agent. Thus, contrary to the Parish’s argument, the statute does not impose an independent duty on Marcotte, as Bankers’ agent, to report and remit premium fees established by La. R.S. 13:718. As such, there is no cause of action against Marcotte under La. R.S. 13:718.

1 ^Second, we find the Parish has failed to state a cause of action against Marcotte for personal liability, either for exceeding his scope of authority or for negligent misrepresentation. The only factual allegations in the Parish’s petition pertaining to Marcotte are as follows: (1) Marcotte was the primary agent for Bankers in Jefferson Parish; (2) at some point Bankers severed ties with Marcotte; (3) Marcotte’s bail bond license was revoked; and (4) during the pertinent time period, Marcotte sent Bankers an electronic disk itemizing each bond issued and the premium fee owed. From these alleged facts, the Parish asserts Marcotte exceeded his authority and under-reported or underpaid the premium fees owed under La. R.S. 13:718.

Even assuming the alleged facts are true, the Parish has failed to state a cause of action against Marcotte. Under La. C.C. art. 3019, an agent who exceeds his authority is personally bound to the third person with whom he contracts. Since there is no allegation that Marcotte and the Parish entered into any contract, Mar-cotte cannot be personally liable to the Parish, even if he exceeded his authority.

The Parish argues that Marcotte became a de facto underwriter when he exceeded his authority as an agent of Bankers and, therefore, is liable to the Parish as an underwriter under La. R.S. 13:718. We find no merit to this argument because there is absolutely nothing in the Parish’s petition that suggests Marcotte exceeded his authority as an agent for Bankers or personally represented himself as an underwriter other than the Parish’s conclusory statements unsupported by any facts.

We further find the Parish has failed to state a cause of action for negligent misrepresentation. Louisiana allows recovery in tort for purely economic loss 17caused by negligent misrepresentation where privity of contract is absent. Barrie v. V.P. Exterminators, Inc., 93-679 (La.10/18/93), 625 So.2d 1007, 1014. For the cause of action to arise, there must be a legal duty on the part of the defendant to supply correct information to the plaintiff, there must be a breach of that duty, and the breach must have caused plaintiff damage. Id., at 1015; Ponthier v. Manalla, 06-632 (La.App. 5 Cir. 1/30/07), 951 So.2d 1242, 1253. Whether Marcotte owed a duty to the Parish is a question of law. Id.

The Parish has failed to sufficiently allege facts showing that Marcotte owed any duty to report the bonds he wrote for Bankers in Jefferson Parish to the Parish for purposes of calculating premium fees. The Parish further failed to allege facts to show it relied on information Marcotte provided or was even aware of or saw the information Marcotte provided.

DECREE

Accordingly, we affirm the trial court’s ruling sustaining Marcotte’s exception of no cause of action and dismissing the Parish’s lawsuit against Marcotte with prejudice.

AFFIRMED

      . La. R.S. 13:718 was amended, effective August 15, 2003, to provide that the premium fees were to be paid to the Jefferson Parish Sheriff's Office as opposed to the Department of Insurance. However, the underpayments in this case are alleged to have occurred prior to the amendment.


author: MARC E. JOHNSON, Judge

text:
    Jeannie REDMANN v. BRIDGEFIELD CASUALTY INSURANCE COMPANY and Martin’s Wine Cellar.
    No. 11-CA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.

      D. Steven Wanko, Jr., Mark R. Ladd, Attorneys at Law, Covington, LA, for PlaintiffiAppellee.
    Frank R. Whiteley, III, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   MARC E. JOHNSON, Judge

Lin this workers’ compensation case, defendant, Martin’s Wine Cellar, appeals the judgment of the trial court awarding plaintiff, Jeannie Redmann, supplemental earnings benefits as well as penalties and attorney’s fees. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

On January 7, 2006, plaintiff suffered a work-related L5-S1 back injury while employed as a manager of the catering and deli department with Martin’s Wine Cellar (“Martin’s”). In particular; she injured herself bending over and picking up a tray of finger sandwiches. Plaintiff initially sought treatment with her primary care physician, Dr. Scott Simeon, and then treated with several specialists, including Dr. Alexis Waguespack, Dr. Gary Glynn, Dr. William Johnston, Dr. Patrick Waring, Dr. John Steck, Dr. Andrea Toomer, and Dr. Donald Dietze. As a result of her injury, plaintiff was unable to work for a period of time and received workers’ compensation and medical benefits.

Approximately four months after her injury, plaintiff returned to work on light duty status. Her restrictions included working a four-hour day, being able to |3alternate between sitting and standing, no carrying or lifting over ten pounds, and no bending or stooping. Plaintiff continued to work in this restricted capacity until Martin’s terminated her on January 15, 2007. Upon her termination, Martin’s continued to pay plaintiff workers’ compensation benefits.

Approximately one year later, a dispute arose regarding plaintiffs medical condition and need for surgery. As a result, plaintiff filed a Disputed Claim for Compensation seeking additional benefits and treatment of her low back pain at L3-L4, even though the problems for which she had been treated immediately after the 2006 accident were at L5-S1. The matter proceeded to trial in July 2009. In a judgment rendered in September 2009, the trial court found that plaintiff sustained a work-related injury to her L5-S1 disc as a result of the 2006 accident, but that she failed to prove her injury at L3-L4 was causally related to the 2006 accident. Accordingly, the trial court refused to approve surgery for the L3-L4 level. However, the trial court found Martin’s failed to reasonably controvert plaintiffs need for treatment and diagnostic tests and, as such, assessed penalties and attorney’s fees against Martin’s. This Court affirmed the trial court’s ruling on appeal. Redmann v. Martin’s Wine Cellar, 10-135 (La.App. 5 Cir. 10/12/10), 51 So.3d 41.

After the trial court’s September 2009 judgment but before this Court’s October 2010 opinion, Martin’s ceased payment of all workers’ compensation benefits to plaintiff. The parties stipulated that plaintiff received workers’ compensation benefits until October 20, 2009.

On November 16, 2009, plaintiff filed a second claim for compensation disputing the termination of benefits. She asserted there was a dispute as to her disability status, and she sought payment of past due benefits, penalties and attorney’s fees. Trial was held on January 13, 2011. The trial court rendered [¿judgment on March 11, 2010 awarding plaintiff supplemental earnings benefits from January 15, 2007 through the present. The trial court specifically found that plaintiff never fully recovered from her L5-S1 injury and found she was entitled to medical expenses, transportation expenses, vocational rehabilitation expenses and training for the L5-S1 injury. The trial court further determined Martin’s did not reasonably controvert plaintiffs need for additional medicals and diagnostic testing after October 25, 2009 arising from her L5-S1 injury and assessed penalties of $8,000 and attorney’s fees in the amount of $8,000 against Martin’s. Martin’s suspensively appeals this judgment.

ISSUES

Martin’s raises four issues on appeal. First, Martin’s claims the trial court improperly re-litigated the issue of whether plaintiffs L5-S1 injury was resolved. It contends that after the first trial, the trial court and this Court, on appeal, concluded plaintiff had recovered from her L5-S1 injury. As such, Martin’s maintains the issue is barred by the doctrine of res judi-cata. Second, Martin’s asserts the trial court erred in failing to find plaintiff forfeited her rights to workers’ compensation benefits under La. R.S. 23:1208. Third, Martin’s argues plaintiff failed to carry her burden of proving entitlement to supplemental earnings benefits. And, finally, Martin’s alleges the trial court erred in awarding penalties and attorney’s fees.

ANALYSIS

Res Judicata

For the first time on appeal, Martin’s argues that the issue of plaintiffs continued disability from her L5-S1 work-related injury is barred by res judicata. It contends that this Court, in affirming the trial court’s 2009 judgment finding plaintiffs L3-L4 problems were not related to the 2006 work-related accident, 15concluded plaintiffs 2006 injury at L5-S1 had resolved. In support of its position, Martin’s cites that portion of this Court’s opinion in which we stated, “Redmann’s problems started with L5-S1 complaints, which improved, and the L3-4 condition developed later and was not persuasively established to result from the 2006 injury.” Redmann, 51 So.3d at 47.

The doctrine of res judicata is found in La. R.S. 13:4231, which provides that a valid and final judgment is conclusive between the same parties “in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.” Under this principle of issue preclusion, once a court decides an issue of fact or law that is necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Smith v. Parish of Jefferson, 04-860 (La.App. 5 Cir. 12/28/04), 889 So.2d 1284, 1288. Issue preclusion serves the interest of judicial economy by preventing relitigation of the issues between the same parties. Id. The doctrine of res judicata is stricti juris, and any doubt concerning the application of res judicata must be resolved against its application. Bourgeois v. A.P. Green Industries, Inc., 09-753 (La.App. 5 Cir. 3/23/10), 39 So.3d 654, 657, writ denied, 10-923 (La.6/25/10), 38 So.3d 341.

Res judicata is a peremptory exception that can be raised for the first time in the appellate court. La. C.C.P. arts. 927 and 2163; Smith v. State, Dept. of Transportation & Development, 04-1317 (La.3/11/05), 899 So.2d 516, 530. However, in order for the exception to be considered, “proof of the ground of the exception” must appear in the record. Smith, 899 So.2d at 530.

Martin’s relies on the trial court’s 2009 judgment and this Court’s 2010 opinion, both of which appear in the record, as proof of its claim of res judicata. However, plaintiffs first Disputed Claim for Compensation is not in the record. 16The trial court’s 2009 judgment makes no determination of plaintiffs disability as related to her L5-S1 injury. The only finding the trial court made regarding the L5-S1 injury was that plaintiff sustained the injury in a 2006 work-related accident. The rest of the judgment related to plaintiffs claim for benefits relating to an injury at L3-L4, which the trial court found was not related to the 2006 work-related accident. This Court subsequently affirmed the trial court’s judgment. Redmann, supra. This Court’s comment that plaintiffs L5-S1 injury had improved, in the context of plaintiffs claim for newly developed problems at L3-L4, had no bearing on plaintiffs disability relating to the L5-S1 injury or her entitlement to workers’ compensation benefits for said injury.

There is nothing in the record to show that the issue of plaintiffs disability for the L5-S1 injury or her entitlement to benefits for the L5-S1 injury was an issue in plaintiffs first claim. In fact, according to the parties’ stipulations in the present case, plaintiff was receiving workers’ compensation benefits for the L5-S1 injury at the time of the first trial; thus, the dispute did not exist at that time. As such, the issue of plaintiffs disability for the L5-S1 injury was not precluded by res judicata.

Forfeiture of Benefits under La. R.S. 23:1208

Martin’s next argues Ms. Redmann forfeited the right to workers’ compensation benefits under La. R.S. 23:1208 because she misrepresented her physical activities. Specifically, Martin’s contends Ms. Redmann failed to disclose one instance where she volunteered at her child’s school and one instance where she drove to Pensacola, Florida for a vacation.

Martin’s raised the issue of Ms. Redmann’s violation of La. R.S. 23:1208 in its response to the pre-trial questionnaire. However, the trial court did not address 17this specific issue in its judgment. Silence in a judgment on any issue that has been placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Adams v. Sysco Food Service of New Orleans, 07-935 (La.App. 5 Cir. 6/30/08), 990 So.2d 34, 48.

The Workers’ Compensation Act imposes penalties, specifically the forfeiture of benefits, for willfully making a false representation in connection with a compensation claim. La. R.S. 23:1208. In order to establish that a claimant has forfeited his right to workers’ compensation benefits under La. R.S. 23:1208, the employer must show: (1) the claimant made a false statement or representation; (2) it was willfully made; and (3) it was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12; Porter v. Pellerin Construction Company, 06-949 (La.App. 5 Cir. 4/11/07), 958 So.2d 7, 10, writs denied, 07-1076 and 07-1015 (La.8/31/07), 962 So.2d 438. Forfeiture of workers’ compensation benefits is a harsh remedy, and because La. R.S. 23:1208 is penal in nature, it must be strictly construed. Ocon v. Regency Motors of Metairie, LLC, 06-834 (La.App. 5 Cir. 4/11/07), 957 So.2d 816, 820, writ denied, 07-1063 (La.9/21/07), 964 So.2d 332.

In determining whether a statement was made willfully in an attempt to obtain or defeat benefits, the relationship between the false statement and the pending claim is probative. False statements that are inadvertent or inconsequential will not result in forfeiture. Ocon, 957 So.2d at 820.

The determination of whether a claimant has forfeited her right to benefits by making false statements or misrepresentations involves inherently factual determinations, which may not be set aside by an appellate court unless they are manifestly erroneous. Porter, 958 So.2d at 11. When factual findings are based on determinations of the credibility of the witnesses, the trier of fact’s findings are disentitled to great deference because only the fact finder can be aware of the variation in demeanor and tone of voice that bear heavily on the listener’s understanding and belief in what is said. Id.

At trial, counsel for Martin’s cross-examined Ms. Redmann regarding what it alleged to be dishonest answers in her pretrial deposition regarding her activity level. Martin’s confronted Ms. Redmann about her failure to disclose during her deposition that she had worked a fundrais-ing event, the Celebration, at Jesuit High School in the spring of 2010, three months before her deposition, despite being specifically asked about her activities at Jesuit. Martin’s presented a picture of Ms. Red-mann that was taken at the Celebration. Ms. Redmann responded that she had forgotten about volunteering at the Celebration because she worked less than one hour and was asked at the last minute to help while she was attending as a patron with a paid ticket. She explained that volunteers were not required to have a paid ticket. It was pointed out that during her deposition, Ms. Redmann readily disclosed her volunteer work at the Jesuit Bazaar, which was also in the spring of 2010. Martin’s apparent point was that Ms. Redmann only admitted volunteering for one event that spring when in fact she volunteered for two events.

Martin’s also confronted Ms. Redmann about one out-of-state trip to Pensacola, Florida that she failed to mention during her deposition. Martin’s pointed out that Ms. Redmann admitted to taking only two trips, one to Pensacola in April 2009 and one to her father’s funeral in September 2009, since her 2006 accident. At trial, Ms. Redmann admitted she went to Pensacola in April 2010, which was two months before her deposition. There appeared to be some confusion about plaintiffs trips. She explained that she and her family always go to Pensacola for spring break. However, she testified that she did not go in 2006, the year of her accident, and she did not go in 2009, the year her father died. Thus, |nher trial testimony clarified that she mistakenly stated in her deposition that she went to Pensacola in 2009 instead of 2010.

We do not find these two instances demonstrate willful misrepresentations for the purpose of obtaining workers’ compensation benefits. Ms. Redmann readily admitted in her deposition that she volunteered in her children’s schools and traveled out-of-state after her work-related injury. The fact Ms. Redmann forgot less than one hour of volunteer work at one event does not constitute a willful misrepresentation that requires the forfeiture of benefits. Additionally, confusion over which year she took an out-of-state trip likewise does not constitute willful misrepresentations for purposes of La. R.S. 23:1208. As such, considering the testimony and evidence in this matter, we find the trial court was not manifestly erroneous in rejecting Martin’s claims of a La. R.S. 28:1208 violation.

Entitlement to Supplemental Earnings Benefits

Martin’s also contends Ms. Red-mann failed to prove she was entitled to supplemental earnings benefits (SEB). It contends she provided no evidence that she was disabled by her L5-S1 work-related injury in 2006.

The purpose of SEB is to compensate an injured employee for the wage earning capacity she has lost as a result of his accident. Kelly v. T.J. Maxx, 11-32 (La.App. 5 Cir. 5/24/11), 67 So.3d 643, 645, writ denied, 11-1321 (La.9/30/11), 71 So.3d 284, citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEB if she sustains a work-related accident that results in her inability to earn 90% or more of her average pre-injury wage. La. R.S. 23:1221(3).

The employee bears the initial burden of proving, by a preponderance of the evidence, that the work-related injury resulted in her inability to earn 90% of her | mpre-injury wages under the facts and circumstances of the individual case. In determining whether an injured employee has made a prima facie showing of entitlement to SEB, the court should take into account all those factors which might bear on an employee’s ability to earn a wage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1008 (La.1989). Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic area. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009.

Implicit in the requirement of La. R.S. 23:1221(3) that the employee show that a work-related injury resulted in her inability to earn 90% of her pre-injury wage is a showing that the injury, and not some other cause, resulted in his inability to retain his pre-injury job. Poissenot v. St. Bernard, Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170. “If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident.” Buxton v. Iowa Police Department, 09-520 (La.10/20/09), 23 So.3d 275, quoting Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927, 929 (La.1978).

The analysis of whether an employee is entitled to SEB is necessarily a facts and circumstances one in which the court must be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Kelly, 67 So.3d at 645. The factual findings of a workers’ compensation judge are subject to the manifest error standard of appellate review. In reviewing these factual findings, the appellate court does not determine whether the workers’ |n compensation judge was right or wrong, but rather whether the factfinder’s conclusions were reasonable. Id., citing Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38.

Although Martin’s contends Ms. Red-mann failed to show she was disabled from her 2006 work-related injury at L5-S1, the record shows otherwise. Ms. Redmann testified that prior to her 2006 accident, she worked 12-hour days five to seven days a week. Her job duties included taking catering orders, ordering from vendors, food supplies, inventory, managing 40 employees, putting out deliveries, transporting catering trays which weighed between four and 15 pounds, setting up catering facilities, and balancing the cash register. She stated she was on her feet constantly.

After the accident, Ms. Redmann testified she returned to work on restricted duty. She was limited to working four hours a day, five days a week with no lifting or bending. She also had to alternate between standing and sitting. Ms. Redmann stated she was able to work in this restricted capacity; however, Martin’s fired her because she could not return to full duty. According to Ms. Redmann, Martin’s never contacted her regarding vocational rehabilitation or potential job opportunities after firing her. She further testified that none of her treating doctors ever changed her restrictions.

Ms. Redmann testified she still suffers from back problems and has never recovered from the 2006 accident. She stated she has been unemployed since Martin’s terminated her in January 2007. The parties stipulated Ms. Redmann’s average weekly wage at the time of the accident was $1,202.92.

In addition to her testimony, Ms. Red-mann submitted the depositions of Dr. Donald Dietze and Dr. William Johnston and medical records from Dr. Dietze, Dr. Johnston, Dr. Patrick Waring, Dr. Alexis Waguespack, Dr. John Steck, and Dr. lii>Andrea Toomer. These records show that Dr. Waguespack released Ms. Red-mann to light duty work in May 2006. Light duty was defined as four hours a day, seated with being able to change positions, no lifting or carrying over ten pounds, and no bending or stooping. Subsequently, in November 2006, Dr. Wagues-pack noted that Ms. Redmann was at maximum medical improvement in light of the fact her employer’s workers’ compensation carrier denied the recommended intradiscal steroid injections. Dr. Waguespack noted that Ms. Redmann’s light duty restrictions were permanent restrictions at that point.

The only other evidence that comments on Ms. Redmann’s ability to return to work is a letter from Dr. J. Monroe La-borde, an orthopedist, to Summit Insurance dated September 2006. Dr. Laborde indicated Ms. Redmann had been seen in his office. He noted she “would prefer to continue working four hours a day but objectively there is no contraindication to her working 8 hours a day.” Dr. Laborde also indicated Ms. Redmann’s lifting restrictions could gradually be increased on a weekly basis.

The record shows Ms. Redmann treated for her L5-S1 injury from the time of her accident until trial. Martin’s seems to suggest that Ms. Redmann’s L5-S1 injury had resolved and she was only being treated for her L3-L4 injury, which has already been determined to be' unrelated to her 2006 work injury. However, the medical records show to the contrary. In early 2010, Ms. Redmann received two epidural steroid injections at the L5-S1 level. Additionally, a May 2010 MRI showed Ms. Redmann had a broad-based disc bulge at L5-S1 with an annular fissure and mild stenosis at L5-S1. As a result of this MRI, Ms. Redmann underwent physical therapy for approximately six weeks and was prescribed various medication.

[ iaBased on this evidence, Ms. Redmann met her initial burden of proving that she is unable to earn 90% of her pre-injury wage. She was earning an average weekly wage of $1,202.92 at the time of her accident. The evidence shows she was released to light duty work, but with a four-hour a day restriction. Although Ms. Redmann has not looked for employment since being terminated, it is implausible that she could find a job that pays 90% of her pre-injury wage for working less than half her pre-injury hours.

Since Ms. Redmann met her initial burden of proof, the burden shifted to Martin’s who, in order to defeat the claim for SEB or establish Ms. Redmann’s earning capacity, had to prove she is physically able to perform a certain job, which was offered to her or was available in her or Martin’s community or reasonable geographic region. Martin’s offered absolutely no evidence in this regard.

Accordingly, we do not find the trial court was manifestly erroneous in awarding Ms. Redmann SEB from January 2007 through the present.

Penalties and Attorney’s Fees

In Martin’s final assignment of error, it asserts the trial court erred in assessing penalties and attorney’s fees. Martin’s contends it terminated Ms. Red-mann’s benefits in October 2009 based on this Court’s opinion in Redmann v. Martin’s Wine Cellar, 10-135 (La.App. 5 Cir. 10/12/10), 51 So.3d 41, and the fact Ms. Redmann had not treated for her L5-S1 injury for several years.

When an employer has failed to pay workers’ compensation benefits, penalties and attorney’s fees may be assessed if the employer did not reasonably | ucontrovert the claim. La. R.S. 23:1201; Manning v. PFG-Caro Foods, 10-1014 (La.App. 5 Cir. 6/14/11), 71 So.3d 981, 993. A claim for workers’ compensation benefits is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Id.

In awarding $8,000 in penalties and $8,000 for attorney’s fees, the trial court found Martin’s failed to reasonably controvert Ms. Redmann’s need for SEB and additional medical treatment and diagnostic tests arising from her L5-S1 work-related injury.

It is uncontroverted that Ms. Redmann suffered a work-related injury at L5-S1 in January 2006. Martin’s paid benefits until October 2009. It claims it ceased paying benefits based on the trial court’s judgment after the first trial. That judgment simply found Ms. Redmann’s L3-L4 injury or problem was not related to the 2006 work-related accident and denied medical benefits for the L3-L4 injury. There is no mention in that judgment relating to Ms. Redmann’s disability status as it relates to her L5-S1 work-related injury. Martin’s further argues it terminated benefits based on this Court’s 2010 opinion finding Ms. Redmann’s L5-S1 injury had “improved.” It is absurd for Martin’s to suggest it relied on this Court’s opinion to terminate benefits when Martin’s terminated Ms. Redmann’s benefits one year before this Court’s opinion was even rendered. Further, this Court never stated Ms. Redmann’s L5-S1 injury had resolved.

A review of the record shows Martin’s did not present any evidence or argument at trial to show Ms. Redmann’s claim was reasonably controverted. Accordingly, we do not find the trial court was manifestly erroneous in finding that Martin’s failed to reasonably controvert Ms. Redmann’s claim for benefits and in assessing penalties and attorney’s fees against Martin’s.

| xzAttomey’s Fees on Appeal

Ms. Redmann has answered this appeal pursuant to La. C.C.P. art. 2133 seeking additional attorney’s fees which were incurred by counsel in opposing this appeal. Such an award is appropriate when the employer appeals, obtains no relief, and the appeal necessitates additional work for the employee’s counsel, provided the employee properly requests the increase. Guillory v. Bofinger’s Tree Service, 06-86 (La.App. 1 Cir. 11/3/06), 950 So.2d 682.

In this case, Martin’s was unsuccessful on appeal. Considering Ms. Redmann’s attorney had to do additional work to defend the appeal, we find an additional award of attorney’s fees in the amount of $2,500 to be reasonable.

DECREE

For the foregoing reasons, the trial court’s judgment awarding claimant, Jeannie Redmann, SEB and assessing penalties and attorney’s fees against defendant, Martin’s Wine Cellar, is affirmed. Additionally, the claimant is awarded $2,500 for attorney’s fees necessitated by the appeal. Defendant is to bear the costs of this appeal.

AFFIRMED

      . Although there is some evidence Ms. Red-mann could work an eight-hour day, we cannot say the trial court’s reliance on Dr. Wag-uespack's restriction of four hours a day over Dr. Laborde’s notation that there is no contraindication to Ms. Redmann working an eight-hour day is clearly wrong,


author: JUDE G. GRAVOIS, Judge.

text:
    PINEGROVE ELECTRICAL SUPPLY COMPANY, INC. v. CAT KEY CONSTRUCTION, INC., Rebecca Pujol and Thomas W. Ford, Jr.
    No. 11-CA-660.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.

      Peyton B. Burkhalter, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Samuel S. Dalton, Attorney at Law, Jefferson, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

12Pefendant, Rebecca Pujol, appeals a default judgment rendered against her in favor of the plaintiff, Pinegrove Electrical Supply Company, Inc. (“Pinegrove”). Mrs. Pujol also asserts exceptions of no right of action and no cause of action for the first time in this Court. On appeal, she argues that the default judgment rendered against her should be reversed because a materialman’s lien filed against her property by Pinegrove was not timely filed. She also argues that the default judgment rendered against her under the theory of unjust enrichment was improper as a matter of law because Pinegrove had another legal remedy available to it, presumably one under the Private Works Act, thereby defeating its claim for unjust enrichment.

For the reasons that follow, we find that Mrs. Pujol’s exception of no cause of action for unjust enrichment has merit and is granted. Accordingly, the default judgment rendered against Mrs. Pujol is reversed. However, Mrs. Pujol’s exception that Pinegrove has no right of action against her on the materialman’s lien claim is denied. The matter is remanded to the district court for further proceedings.

\,PROCEDURAL HISTORY AND FACTS

On July 6, 2010, Pinegrove filed a Petition on Open Account and to Enforce Ma-terialman’s Lien against Cat Key Construction, Inc. (“Cat Key”), Thomas W. Ford, Jr., a principal of Cat Key, and Mrs. Pujol, a homeowner, asserting that it sold electrical fixtures to Cat Key under an open account in 2009, which account was personally guaranteed by Mr. Ford, for installation at Mrs. Pujol’s home, for which it had not been paid by any of the defendants. In its petition, Pinegrove also stated that on July 10, 2009, it filed a “Lien Affidavit” against Mrs. Pujol’s property into the public records of Jefferson Parish. Pinegrove also asserted in its petition that Mrs. Pujol was liable to Pinegrove under the theory of unjust enrichment and prayed for judgment against Cat Key, Mr. Ford, and Mrs. Pujol jointly, severally, and in solido, for any and all damages incurred by Pinegrove, together with legal interest from date of judicial demand until paid, plus reasonable attorney’s fees and all costs of the proceeding.

Pinegrove subsequently filed a Motion for a Preliminary Default against Mrs. Pu-jol, alleging that she had been served with the petition that was filed against her and had failed to appear or file an answer to the petition within the delays allowed by law. A preliminary default was entered against Mrs. Pujol by the trial court on September 20, 2010. On September 27, 2010, Pinegrove filed a Motion to Confirm Default Judgment against Mrs. Pujol, which was heard on October 28, 2010.

At the confirmation hearing, Pinegrove’s attorney specifically stated that he was proceeding against Mrs. Pujol solely on Pinegrove’s unjust enrichment claim. Pi-negrove then presented some evidence to the effect that subsequent to filing suit against Cat Key and Mr. Ford, those two defendants had filed for bankruptcy protection. Pinegrove also presented the following testimonial evidence from |,[Peggy Benit, its Vice President: (1) Cat Key had an account with Pinegrove; (2) Mr. Ford, President of Cat Key, executed a personal guarantee on the account; (8) Cat Key charged electrical fixtures on the account; (4) the electrical fixtures purchased on the open account were delivered to Mrs. Pu-jol’s residence; (5) Mrs. Pujol personally selected the fixtures; (6) the total amount charged for the fixtures delivered to Mrs. Pujol’s residence was $8,470.72; and (7) Pinegrove had not been paid. Ms. Benit further testified that, as a result of the nonpayment, Pinegrove had filed a materi-alman’s lien against Mrs. Pujol’s property, reflecting the correct amount due, and that the attorney’s fees and filing fees incurred in connection with its filing of the lien affidavit were $250.00 and $38.00, respectively.

After reviewing the evidence presented, on November 15, 2010, the trial court rendered a Judgment of Default in favor of Pinegrove and against Mrs. Pujol in the amount of $3,470.72, plus $250.00 and $38.00 in attorney’s fees and filing fees respectively incurred by Pinegrove in connection with its filing of the lien affidavit, plus legal interest from date of judicial demand until paid, and all costs of the proceeding.

On November 29, 2010, Mrs. Pujol filed a Motion for a New Trial, arguing that the default judgment rendered against her was contrary to law and the evidence, claiming that the lien affidavit had not been timely filed, and that Cat Key’s counsel had breached his professional obligation by not informing the trial court that the lien affidavit against Mrs. Pujol’s property had not been timely filed. A hearing on the Motion for a New Trial was held on February 8, 2011. On March 10, 2011, the trial court denied the Motion for a New Trial.

1 ¿ANALYSIS

Exception of no cause of action

On her exception of no cause of action, Mrs. Pujol argues that the default judgment rendered against her under the theory of unjust enrichment cannot stand because Pinegrove had another legal remedy, presumably one under the Private Works Act, LSA-R.S. 9:4801, et seq.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, 2003-1299 (La.3/19/04), 869 So.2d 114, 118. No evidence may be introduced to support or controvert an exception of no cause of action. LSA-C.C.P. art. 931. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey v. DeCaire, 869 So.2d at 118; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, 131.

The mover has the burden of demonstrating the petition states no cause of action. Ramey v. DeCaire, 869 So.2d at 118. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs behalf, the petition states a valid cause of action for relief. Id.

In its petition, Pinegrove stated that it sought to recover from Mrs. Pujol under the legal theory of unjust enrichment. Under Louisiana law, the requisite elements of a claim for unjust enrichment are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) no other available remedy at law. Pique Severn Avenue Partnership v. Bailen, 00-1030, 00-1031 (La.App. 5 Cir. 10/31/00), 773 So.2d 6179; Newt Brown, Contractor Inc. v. Michael Builders, Inc., 569 So.2d 288 (La.App. 2 Cir.1990).

Further, LSA-C.C. art. 2298 makes it clear that the unjust enrichment remedy “is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.” The Louisiana Supreme Court recently interpreted Article 2298 in Walters v. MedSouth Record Management, LLC, 2010-0353 (La.6/4/10), 38 So.3d 243, to-wit:

Pursuant to La. Civ. Code art. 2298, the remedy of unjust enrichment is subsidiary in nature, and “shall not be available if the law provides another remedy.” See Carriere v. Bank of Louisiana, 95-3058, p. 17 (La.12/13/96), 702 So.2d 648, 671 (on rehearing). The unjust enrichment remedy is “only applicable to fill a gap in the law where no express remedy is provided.” Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1st Cir.1988), writ denied, 526 So.2d 1112 (La.1988).
Moreover, we find it of no moment that plaintiffs tort claims have been held to be prescribed. The mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment. See Jim Walter Homes v. Jessen, 98-1685, p. 13 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 706 (“[t]o find that Jim Walter Homes now has no other remedy and to provide it one under unjust enrichment would be tantamount to allowing any plaintiff who let his cause of action prescribe, or any plaintiff who knowingly wrote a bad contract, to recover under an enrichment theory”).
Because the law provided plaintiff with another remedy, we find he has failed to state a cause of action in unjust enrichment. Therefore, we find the district court erred in denying defendant’s exception of no cause of action.

Though inartfully stated, Mrs. Pujol asserts that Pinegrove has other legal remedies available to it either under its open account suit against the other two defendants, Cat Key and Mr. Ford, or under the lien affidavit it filed against Mrs. Pujol’s property. Although Pinegrove presented some evidence to the effect that Cat Key and Mr. Ford had filed for bankruptcy protection, the fact that Pinegrove may ultimately prove unsuccessful in collecting from these two defendants does |7not mean that there is no legal remedy available to it so as to meet the criteria for a claim in unjust enrichment. As the Supreme Court said in Carriere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648, 672 (on rehearing):

The existence of a “remedy” which precludes application of unjust enrichment does not connote the ability to recoup your impoverishment by bringing an action against a solvent person. It merely connotes the ability to bring the action or seek the remedy.

Further, the Private Works Act, LSA-R.S. 9:4801, et seq., gives material suppliers like Pinegrove a legal remedy against a homeowner’s property like Mrs. Pujol’s under the described circumstances of this case despite the fact that there is no privity of contract between them. Newt Brown, Contractor Inc. v. Michael Builders, Inc., supra.

Because these other legal remedies are available to Pinegrove, it does not have a cause of action against Mrs. Pujol in unjust enrichment. Accordingly, Mrs. Pujol’s exception of no cause of action in unjust enrichment is granted, and the default judgment rendered against her on unjust enrichment is reversed.

Exception of no right of action

Mrs. Pujol also filed an exception of no right of action in this Court against Pinegrove, arguing that it had no right of action to enforce the materialman’s lien against her because on its face, the lien affidavit in the record was not timely filed. An exception of no right of action addresses itself to whether the party it is asserted against has any interest in enforcing judicially the right alleged against the mover. LSA-C.C.P. arts. 681; 927. Under the facts asserted in Pinegrove’s petition as recited above, Pinegrove clearly has a right of action against Mrs. Pujol under the | ^Private Works Act. Mrs. Pujol’s exception of no right of action merely states a defense to enforcement of the lien (as allegedly being not timely filed). An exception of no right of action may not be brought to urge a defense to the effect that the plaintiff is without an interest becausé the defendant has a defense to the plaintiffs action. Wonycott v. Wonycott, 579 So.2d 506, 508 (La.App. 4 Cir.1991). Without expressing any opinion as to the merits of Pinegrove’s materialman’s lien claim .against Mrs. Pujol or Mrs. Pujol’s defenses thereto, we find that Pinegrove has a right of action against Mrs. Pujol pursuant to the Private Works Act. Accordingly, Mrs. Pujol’s exception of no right of action is denied.

CONCLUSION

For the foregoing reasons, Mrs. Pujol’s exception of no cause of action for unjust enrichment is hereby granted. Accordingly, the default judgment rendered against Mrs. Pujol is hereby reversed. Mrs. Pu-jol’s exception of no right of action to enforce the materialman’s lien is hereby denied. This matter is remanded to the district court for further proceedings.

EXCEPTION OF NO CAUSE OF ACTION GRANTED; DEFAULT JUDGMENT REVERSED; EXCEPTION OF NO RIGHT OF ACTION DENIED; MATTER REMANDED

      . In Newt Brown, the subcontractor (Newt Brown) filed suit under the Private Works Act against the general contractor (Michael Builders) and the owner (School) seeking an in solido award for labor and materials it supplied on the School project. The trial court rendered judgment in favor of Newt Brown and against Michael Builders for the full amount prayed for but denied Newt Brown’s demands against the School. The court of appeal affirmed, reasoning that Newt Brown's claim against the School fell under the Private Works Act, but that Newt Brown's claim against the School under the Act was extinguished because of Newt Brown's failure to timely file its lien statement. The court further held that Newt Brown was not enti-tied to recovery against the School under unjust enrichment, because Newt Brown "was afforded a remedy against the School but allowed it to lapse.” 569 So.2d at 292.


text:
    STATE of Louisiana v. Levance WILLIAMS.
    No. 11-KA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Levance Williams, Jackson, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Pefendant, Levance Williams, appeals his underlying convictions of carjacking, resisting a police officer with force or violence, and possession of cocaine and his habitual offender sentence from the 24th Judicial District Court, Division “P”. For the following reasons, the convictions for the underlying offenses and the habitual offender adjudication are affirmed. In addition, the matter is remanded to the trial court with instructions.

STATEMENT OF THE CASE

On March 10, 2010, the Jefferson Parish District Attorney filed a bill of information charging Defendant with carjacking, resisting a police officer with force or violence, and possession of cocaine in violation of LSA-R.S. 14:64.2, 14:108.2, and 40:967 C, respectively. Defendant was arraigned on March 11, 2010, and pleaded not guilty. On August 31, 2010, the case was tried before a 12-person jury that found Defendant guilty as charged. The trial court sentenced defendant on September 17, 2010, to imprisonment at hard labor for twenty years without benefit of parole, probation, or suspension of sentence on Count 1; imprisonment at hard labor for three years on Count 2; and imprisonment at hard labor for five years on Count 3, with all sentences to run concurrently with one another.

|3A1so on September 17, 2010, the State filed a habitual offender bill alleging Defendant to be a third felony offender. Defendant filed a motion to quash the habitual offender bill that was denied. On March 4, 2011, the trial judge found Defendant to be a “multiple offender,” vacated the “original sentence,” and re-sentenced Defendant under the habitual offender statute to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. On March 10, 2011, Defendant filed a timely motion for appeal that was granted.

FACTS

On February 5, 2010, at 9:30 p.m., Stephanie Jefferson, a security guard and former correctional officer, picked up her son, Stephen, from work. Stephen and his thirteen-year-old brother were sitting in the back seat, and their six-year-old sister was sitting in the front passenger seat. Ms. Jefferson then drove to her mother’s house on Deacon Street in Avondale to drop off Stephen. When they arrived, she and Stephen exited the car, after which she saw Defendant, whom she knew from the neighborhood as “Bubba,” standing behind her father’s car. Defendant asked Ms. Jefferson if he could use her cell phone to make a phone call, so she gave the cell phone to him.

Ms. Jefferson and Stephen continued to walk to the front door so Stephen could go into the house, and Defendant followed them. Defendant asked Ms. Jefferson if her brother, Ronnie, was home, and she said, “No.” At that point, Defendant started acting very strangely and running around like somebody was chasing him. Defendant said that somebody was coming and somebody was running behind him, and he started running around the car. Ms. Jefferson was very afraid because she did not know what Defendant was doing. She and Stephen walked back down the driveway, but Defendant met her at the back of the car.

UMs. Jefferson tried to get into the car, but Defendant got between the driver side door and Ms. Jefferson. She then got into the car, and Defendant jumped in the car with her. Defendant straddled Ms. Jefferson with his chest facing hers, and they began to struggle. Stephen got out of the car and tried to pull Ms. Jefferson away from Defendant. Ms. Jefferson told Stephen to call 911. Stephen tried, but he could not get through; so, he went next door and then across the street to use the neighbor’s phone where he finally got through to 911.

At that same time, Ms. Jefferson was still struggling and trying to get Defendant off of her and out of the car. She kept kicking the door open so Defendant could not shut it, and Defendant began choking her. During the struggle, Defendant landed on Ms. Jefferson’s six-year-old daughter, who was very scared. At that point, Ms. Jefferson told Defendant to “just take the car and just go.” Defendant then got up off of Ms. Jefferson, and Ms. Jefferson grabbed her young daughter and ran inside of her parent’s home. Her daughter vomited, and Ms. Jefferson called 911.

In the meantime, Stephen saw Defendant back up out of the driveway, drive down the street approximately 15 yards, and run into a light pole. Afterward, Defendant went into the house across the street from where he hit the light pole. Deputy Rhonda Goff of the Jefferson Parish Sheriffs Office (JPSO) arrived, and Stephen directed her to the house at 105 Deacon Street where Defendant had entered. She called for backup, and five minutes later, JPSO Deputy Marc Macalu-so arrived at the scene.

Deputy Macaluso found an open side door. When he looked into the residence, he saw Defendant fighting with a younger black male, and there was also an older black male in the same room. The deputy entered the house, drew his side arm, and Defendant fled down the hallway. Deputy Macaluso ran down the Rhallway, and Defendant met him head-on running back, trying to get out of the hallway, at which time the deputy tackled Defendant, who landed on his stomach.

The deputy got on the lower portion of Defendant’s back, and Defendant struggled briefly. Defendant swung his arms, and Deputy Goff assisted Deputy Macalu-so in handcuffing Defendant. Deputy Ma-caluso patted down Defendant but did not locate any weapons or contraband, and he placed Defendant in the rear seat of his police unit. Deputy Goff brought Ms. Jefferson and Stephen to the scene, where they positively identified Defendant as the perpetrator.

At some point, a transport unit came to take Defendant away. As Deputy Macalu-so was removing Defendant from the back of the police unit, he saw on the back floorboard a large piece of off-white rock-like substance, which he believed to be crack cocaine. When he took Defendant out, he noticed several more pieces. Deputy Macaluso testified that when he was assigned his unit on that day, he conducted a visual inspection of the back seat, and he actually removed the rear seat to look inside, but he did not observe anything unusual. He further testified that defendant was the first person who was arrested and placed in the back of his police unit that day.

Thomas Angelica, an expert forensic scientist, testified that the substances found on the floorboard tested positive for cocaine.

Defendant testified at trial that shortly before the incident with Ms. Jefferson, he had gone to a playground/park where he took ecstasy and cocaine and watched others play basketball. Afterward, he walked down the street and asked Ms. Jefferson for her phone. He wanted to call his brother to come get him because he thought someone was trying to kill him. Defendant testified that he felt safe with Ms. Jefferson and wanted her to give him a ride; he got into Ms. 16Jefferson’s car and onto her lap; she tried to get out of the car and he told her not to; and he took the car and then wrecked it.

Defendant denied choking Ms. Jefferson, and he explained that Ms. Jefferson told him to take her car. After Defendant wrecked the car, he ran inside his cousin’s house. He denied resisting arrest. Defendant also denied that the cocaine on the floor of the police unit was his, and he did not know how it got there. He explained that his hands were cuffed behind his back when he was put into the police unit, and therefore, he could not have put cocaine on the floorboard. He also denied arguing or fighting with his two relatives inside the house. Defendant asserted that he was paranoid and probably acting strangely on the night in question because he had taken ecstasy and cocaine.

Lastly, Defendant admitted to having a conviction for possession with intent to distribute cocaine in 2007 and a conviction for injuring public records in 2008.

PRO SE ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the following errors of the trial court: 1) the evidence was insufficient to convict him of the essential elements of the crimes beyond a reasonable doubt; 2) his continued incarceration would be a violation of his due process rights because the verdicts were contrary to the law and was based upon insufficient evidence; and 3) the cumulative effect of the constitutional errors committed before, during, and after the trial violated his equal protection and due process rights.

DISCUSSION

Defendant’s basis for all three pro se assignments is that the evidence was insufficient to support the verdicts. He contends that he should be exempt from 17criminal liability because he was suffering from a mental defect at the time of the offenses that rendered him incapable of distinguishing between right and wrong. Defendant indicates that in light of his mental defect, the State failed to prove he intended to commit the crimes. He further contends that his “induced psychosis” should have provided a defense to the crimes. Lastly, he indicates that he had Ms. Jefferson’s permission to take the car, and therefore, he should not have been found guilty of carjacking.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342,8 p. 7 (La.10/17/00); 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04); 866 So.2d 973, 977.

Carjacking

Defendant indicates that he had Ms. Jefferson’s permission to take the car, and therefore, he should not have been found guilty of carjacking. LSA-R.S. 14:64.2 provides that carjacking is the intentional taking of a motor vehicle belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.

The evidence shows that Defendant got into the vehicle, sat on Ms. Jefferson’s lap, choked her, and struggled with her in order to force her to give him a ride or give him her car. During the struggle, he landed on Ms. Jefferson’s six-year-old daughter, who apparently was so traumatized by the event that she vomited. The record reflects that Ms. Jefferson only told Defendant he could take the vehicle because she feared for her life and the life of her children. She was scared and did not know “what defendant had” or what was wrong with him. Ms. Jefferson testified that she would have done anything to get Defendant to leave her and her children alone. Additionally, Defendant admitted at trial that he got into the car on top of Ms. Jefferson, that she tried to open the door and he tried to close it, and that he took her car and wrecked it. He denied choking her. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (LaApp. 5 Cir. 4/29/97); 694 So.2d 1052, 1056.

|9In light of the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to find Defendant guilty of carjacking.

Mental Defect/Induced Psychosis

Defendant contends that he should be exempt from criminal liability because he was suffering from a mental defect at the time of the offenses that rendered him incapable of distinguishing between right and wrong. He indicates that in light of his mental defect, the State failed to prove he intended to commit the crimes. He further contends that his “induced psychosis” should have provided a defense to the crimes.

“Not guilty and not guilty by reason of insanity” is one of four possible pleas to the indictment at the arraignment. LSA-C.Cr.P. art. 552. The defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. LSA-C.Cr.P. art. 561. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial. Id. A legal presumption exists that a defendant is sane and responsible for his actions at the time of an offense. LSA-R.S. 15:432. To rebut that presumption and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. LSA-C.Cr.P. art. 652; State v. Silman, 95-154 (La.11/27/95); 663 So.2d 27, 32. However, when a defendant is tried upon a plea of “not guilty,” evidence of insanity or mental defect at the time of the offense shall not be admissible. State v. Necaise, 466 So.2d 660, 664 (La.App. 5 Cir.1985); LSA-C.Cr.P. art. 651.

In the instant case, we find that defendant’s plea of “not guilty” barred him from presenting any evidence to support an affirmative defense of insanity, and he | indid not place his sanity at the time of the offense at issue. State v. McCray, 39,883, p. 6 (La.App. 2 Cir. 6/29/05); 908 So.2d 68, 72, writ denied, 05-2015 (La.2/17/06); 924 So.2d 1015. In the absence of the special plea of insanity, evidence of insanity or mental defect was not admissible, either as a complete defense or for the purpose of negating specific intent. LSA-C.Cr.P. art. 651, Official Revision Comment (a). Thus, we conclude that review of the issue of whether defendant was able to distinguish right from wrong at the time of the offense is not properly before us for review. State v. McCray, 39,883 at 7, 908 So.2d at 72.

Nevertheless, Defendant argues that his voluntary drugged condition negated his intent to commit the crimes. The evidence presented at trial showed Defendant was behaving strangely at the time of the incidents-running around the car and saying that someone was trying to kill him, and that Defendant took ecstasy and cocaine prior to the incidents in question.

The fact that the offender is in an intoxicated or drugged condition at the time of the commission of the crime is immaterial except where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime. LSA-R.S. 14:15(2).

Voluntary intoxication can only be considered as a defense in cases where specific intent is a necessary element of the crime, and the defendant claims his intoxication precluded the capacity to form that intent. State v. Magee, 05-171, p. 5 (La.App. 5 Cir. 10/6/05); 916 So.2d 1178, 1182, writs denied, 06-461 (La.9/22/06); 937 So.2d 377, and 06^64 (La.9/22/06); 937 So.2d 377. Intoxication is an affirmative defense to a criminal chax-ge, and the burden is upon defendant to prove the existence of that condition at the time of the offense. State v. Edwards, 01-116 (La.App. 5 Cir. 6/27/01); 790 So.2d 109, 114, vnit denied,, 01-2235 (La.8/30/02);11 823 So.2d 935. When circumstances exist which indicate intoxication could have precluded specific intent, the burden shifts to the State to show beyond a reasonable doubt that specific intent was present. Whether intoxication is sufficient to negate specific intent is a question for the trier of fact. Id.

In the instant ease, from review of the record, Defendant did not raise his voluntary drugged condition as a defense at trial. Since the transcript does not show it was raised as a defense, and the jury charges do not show that the jury was instructed as to such a defense. Moreover, we find that such a jury instruction could not have been given anyway because carjacking, resisting a police officer with force or violence, and possession of cocaine do not require specific intent. As was stated previously, voluntary intoxication can only be considered as a defense in cases where specific intent is a necessary element of the crime. Magee, supra. It is noted that defendant’s appellate counsel stated in his brief, “Admittedly, appellant’s intoxication or even drug induced psychosis may not have provided a defense to the general intent crime of carjacking.” He also stated in his brief that defendant’s drug induced paranoia was not a defense or an excuse.

LSA-R.S. 14:64.2 defines carjacking as the intentional taking of a motor vehicle belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation. LSA-R.S. 40:967 C provides that it is unlawful for any person to knowingly or intentionally possess a controlled dangerous substance as classified in Schedule II. Cocaine is listed in Schedule II. LSA-R.S. 40:964 A(4). The statutes are silent as to whether the intent is general or specific. In the absence of qualifying provisions, the terms “intent” and “intentional” have reference to “general criminal intent.” LSA-R.S. 14:11. It is 112noted that LSA-R.S. 14:108.2, resisting a police officer with force or violence, does not mention intent.

Thus, Defendant’s drugged condition during the commission of the convicted crimes is inconsequential because specific intent is not an element of these crimes. Therefore, we do not find the trial court erred in finding the evidence presented sufficient to convict Defendant of the charged crimes.

COUNSELED ASSIGNMENT OF ERROR

In the sole counseled assignment of error, Defendant alleges the trial court imposed an excessive sentence.

DISCUSSION

Defendant argues that his maximum 40-year enhanced sentence as a third felony offender was constitutionally excessive. He contends that his youth at the time of the first predicate offense, possession with intent to distribute, should serve to mitigate the weight that offense carries in considering the appropriate penalty to be imposed pursuant to the multiple bill. Defendant further contends that the crime of possession with intent to distribute is a non-violent offense, and that he received the minimum sentence for his guilty plea to that offense. With respect to the second predicate offense, injuring public records, Defendant asserts that he pleaded guilty to that offense at age 19 and received a one-year sentence in prison, and the offense was non-violent.

Defendant further asserts that the instant crime, carjacking, was serious, but his extreme level of intoxication bordering on insanity should be taken into account when considering his sentence. He argues that because of his intoxication, he should be judged less culpable than someone who soberly and coldly committed the exact same offense. As such, Defendant maintains that his carjacking conviction was not the most serious violation of the carjacking statute. He also | lsnotes that his sentence is disproportionate when compared to other sentences for similar carjacking convictions.

The State responds that the record and the jurisprudence support the maximum sentence imposed. It contends that the sentence was appropriate considering the nature of the defendant, the nature of the offense, and other sentences given for similar crimes. The State asserts that Defendant’s predicate offenses show a progression of criminal activity which came to a head in a violent and dangerous carjacking that endangered multiple individuals.

The record reflects that Defendant did not file a motion to reconsider his enhanced sentence pursuant to LSA-C.Cr.P. art. 881.1, but he did orally object to his enhanced sentence as excessive at the time his sentence was imposed. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07); 973 So.2d 104, 108.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03); 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04); 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue | 14on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07); 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07); 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id., 07-332 at 15-16; 975 So.2d at 656. Generally, the maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Id., 07-332 at 16; 975 So.2d at 656.

Defendant was convicted of carjacking. As such, he was exposed to a sentencing range of imprisonment at hard labor for two to twenty years. LSA-R.S. 14:64.2 B. The trial judge sentenced Defendant to the maximum sentence of 20 years at hard labor without providing reasons. The State then filed a habitual offender bill, alleging Defendant to be a third felony offender. After the trial judge found that the habitual offender bill was “satisfied,” he vacated the “original sentence” and re-sentenced Defendant to 40 years at hard labor. As a third felony offender with an underlying conviction for carjacking, Defendant was exposed to a sentencing range of 13.3 to 40 years. LSA-R.S. 14:64.2 B; LSA-R.S. 15:529.1 A(b)(i). Therefore, Defendant received the maximum 40-year sentence. The trial judge did not provide reasons for the enhanced sentence.

After review, we find that Defendant’s maximum 40-year enhanced sentence as a third felony offender was not excessive, considering the nature of the offense, and the nature and the background of Defendant. The evidence showed that Defendant got into the car on top of Ms. Jefferson and struggled with her for | ^control of the car. He violently choked her by putting his hands around her neck and squeezing it, after which he fell on top of the victim’s six-year-old daughter, who was so distraught she could barely speak and later vomited. Defendant’s actions endangered the lives of Ms. Jefferson and her three children. Afterwards, he took Ms. Jefferson’s car and crashed it into a light pole a short distance away. He, subsequently, fled the scene and resisted arrest and was later found to be in possession of cocaine. Additionally, Defendant has prior convictions for possession with intent to distribute cocaine and injuring public records.

Therefore, we do not find the trial court erred in sentencing Defendant to a 40-year enhanced sentence.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals eight errors patent.

Post-Conviction Relief

The transcript reflects that the trial judge did not advise Defendant of the provisions of LSA-C.Cr.P. art. 930.8 at the time of the original sentencing; however, the commitment related to the original sentencing shows that Defendant was advised that he had two years after judgment of conviction and sentence has become final to seek post-conviction relief. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Because Defendant’s original sentence was vacated upon the imposition of his habitual offender sentence, the trial court’s lack of notice to Defendant of the filing delays for a post-conviction relief application is moot.

The transcript also reflects that at the habitual offender bill hearing, the trial judge advised Defendant he had “two years from the date the sentence becomes |1fifinal to file post conviction relief applications;” however, the commitment pertaining to that sentencing does not mention that the trial judge advised Defendant of the delays for filing post-conviction relief applications. Again, the transcript prevails. Id. Since Defendant was advised of the delays for filing a post-conviction relief application upon sentencing as a habitual offender, there is no corrective action required.

Appeal Deadlines

The trial judge incorrectly advised Defendant that he had five days to appeal the sentence. The State noted this error patent in its brief. LSA-C.Cr.P. art. 914B(1) provides that the proper time delay for an appeal is 30 days. However, Defendant filed a timely appeal; therefore, we find that the trial court’s failure to advise him of the prescriptive period for appeal is moot. State v. Chess, 00-163 (La.App. 5 Cir. 6/27/00); 762 So.2d 1279, 1284-85.

Admit/Deny Hearing

The record does not reflect that Defendant admitted or denied the allegations in the habitual offender bill. This Court has previously held that a defendant waives his right to admit or deny the allegations in the habitual offender bill when he proceeds to the habitual offender bill hearing without objecting. State v. Jerome, 03-126, p. 3 (La.App. 5 Cir. 4/29/03); 845 So.2d 1194, 1196. Because Defendant proceeded to the habitual offender bill hearing without objecting, we find that no corrective action is required.

Habitual Offender Rights

The record does not reflect that Defendant was advised of his rights prior to the habitual offender bill hearing. LSA-R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the habitual offender bill, his right to a hearing, and his right to remain silent. State v. Haywood, 00-1584 (La.App.17 5 Cir. 3/28/01); 783 So.2d 568, 582. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when, as here, the habitual offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Id., 00-1584; 783 So.2d at 582-83.

It is noted that Defendant remained silent at the hearing. Therefore, we find that the trial court’s failure to advise defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

Habitual Offender Adjudication

The State filed a habitual offender bill alleging Defendant to be a third felony offender. The transcript indicates that at the end of the habitual offender bill hearing, the trial judge said that “the Multiple Bill has been satisfied.” The commitment also reflects that the trial judge found Defendant to be a “Multiple Offender.” However, the trial judge did not state whether he found Defendant to be a third felony offender. Nevertheless, we find that no corrective action is necessary, since the State alleged Defendant was a third felony offender in the habitual offender bill and at a hearing. In addition, the trial judge stated that he recalled Defendant testifying at trial that he had two prior felony convictions.

Previous Sentence Vacated

The transcript reflects that the trial judge vacated the original sentence; however, he did not specify which of the three original sentences he was vacating. The commitment states that Defendant was found guilty under the habitual offender bill statute on Count 1. The transcript prevails. State v. Lynch, supra. Nevertheless, we find that no corrective action is necessary since the habitual offender bill was filed relative to his carjacking conviction, which was Count 1.

Statutory Restrictions/Enhanced Sentence

11sThe transcript reflects that the trial judge ordered Defendant’s enhanced sentence to be served without benefit of probation or suspension of sentence pursuant to LSA-R.S. 15:529.1 G; however, he failed to also order that the enhanced sentence be served without the benefit of parole as required by the underlying statute, LSA-R.S. 14:64.2. Because the underlying offense carried a disability against parole, the habitual offender sentence is likewise to be imposed without parole. State v. Bruins, 407 So.2d 685, 687 (La.1981). Accord,, State v. Singleton, 03-1307, p. 5 (La.App. 5 Cir. 3/30/04); 871 So.2d 596, 599. The State noted this error patent in its brief. However, according to State v. Williams, 00-1725 (La.11/28/01); 800 So.2d 790, 799, no corrective action is necessary because LSA-R.S. 15:301.1(0, imposes the restrictions by operation of law. State v. Johnson, 03-903, p. 7 (La.App. 5 Cir. 12/9/03); 864 So.2d 645, 654. Enhanced Sentence

The commitment reflects that the trial judge ordered the enhanced sentence to run concurrently with the sentences on Counts 2 and 3; however, the transcript does not show that the trial judge did so. The transcript prevails. State v. Lynch, supra. Therefore, the trial court is ordered to correct the commitment to conform to the transcript. The trial court is also ordered to make an entry in the minutes reflecting this change and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced and to the General Counsel of the Louisiana Department of Public Safety and Corrections. State ex rel. Roland v. State, 06-244 (La.9/15/06); 937 So.2d 846 (per curiam).

11flDECREE

For the foregoing reason, the convictions and sentences of the underlying offenses are affirmed. Additionally, the habitual offender sentence of Levance Williams is affirmed. The matter is remanded to the trial court with instructions.

CONVICTIONS AND SENTENCES AFFIRMED; HABITUAL OFFENDER SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.