author: WHIPPLE, J. KUHN, J.,

text:
    Dawn Marie BRASSETTE v. Hugh B. EXNICIOS, Exnicios Legal Center and the ABC Insurance Company.
    No. 2011 CA 1439.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2012.
    Rehearing Denied May 25, 2012.

      Jacques F. Bezou, Joseph A. Kott, Jacques F. Bezou, Jr., Covington, LA, for Plaintiff/Appellant, Dawn Marie Brassette.
    Alfred B. Shapiro, Baton Rouge, LA, for Defendants/Appellees, Hugh B. Exnicios and the Exnicios Legal Center.
    Before WHIPPLE, KUHN, GUIDRY, PETTIGREW, and WELCH, JJ.
   WHIPPLE, J.

12This matter is before us on appeal by plaintiff, Dawn Marie Brassette, from a judgment of the trial court denying plaintiffs motion for summary judgment and granting the motion for summary judgment filed by defendants, Hugh B. Exnic-ios and the Exnicios Legal Center (collectively, “defendant”). For the following reasons, the judgment of the trial court is reversed and the matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Brassette retained Exnicios, the sole owner and proprietor of the Exnicios Legal Center, to represent her in her claim against the United States of America, through the U.S. Food and Drug Administration and General Services Administration (“FDA”), and their employee, Alex S. Davis, for injuries sustained by Brassette on August 17, 2005, as a result of an automobile accident with Davis, who was acting within the course and scope of his employment at all pertinent times.

Defendant filed a lawsuit on behalf of Brassette on August 7, 2007, in the United States District Court for the Eastern District of Louisiana, bearing civil action number 07-4016. On August 4, 2008, counsel for the FDA filed a motion in the civil action captioned, “United States’ Motion to Limit the Ad Damnum,” which was set for hearing on August 27, 2008, at 10:00 a.m. before the Honorable Martin L.C. Feld-man, United States District Judge, Section F. On August 25, 2008, Judge Feldman issued an “Order” stating that Local Rule 07.5E of the Eastern District of Louisiana requires that memoranda in opposition to a motion be filed and a copy be delivered to chambers eight days prior to the date set for hearing on the motion, and that no memorandum in opposition had been timely submitted on behalf of Brassette by defendant. Thus, the defendant’s failure to timely file an opposition resulted in the matter at issue in the motion being ] adeemed submitted and unopposed. Accordingly, the motion was granted as unopposed, thereby limiting Brassette’s claim for recovery to $30,000.00, which Brassette now contends was far lower than the amount of damages she was actually entitled to, considering the injuries she sustained as a result of the accident.

According to Brassette, Exnicios subsequently called her to advise that he had settled her case for $22,000.00, although Brassette: (1) had not been consulted and had given no authority for him to do so, and (2) was still seeking treatment for her injuries. On October 2, 2008, Brassette wrote a letter to Judge Feldman, wherein she stated in part:

I am represented by [defendant] in the captioned lawsuit where he claims to have settled my case for $22,000.00 without my permission. I told him he had no authority to do so, but he said there was nothing I could do about it.

By letter dated November 13, 2008, Brassette terminated defendant’s representation of her in the underlying matter, advising defendant that she was “no longer in need of [his] counsel as ordered by Judge Feldman” and requesting that her original -files be forwarded to her as soon as possible. Brassette subsequently entered a settlement agreement with the FDA for $22,000.00 on November 14, 2008, whereby she agreed to “settle and compromise each and every claim of any kind, whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the above captioned action under the terms and conditions set forth in the Settlement Agreement.”

On December 10, 2008, Brassette filed the instant petition, asserting a claim for legal malpractice against defendant and defendant’s insurer and requesting damages for the loss of her claim due to the incompetence and malpractice of defendant. On September 21, 2009, Brassette filed a motion for partial summary judgment, contending that the defendant’s failure to file an ^opposition to the FDA’s motion to limit damages, in and of itself, constituted negligence, which was exacerbated by the defendant’s failure to obtain a copy of the medical report of her treating chiropractor. On June 15, 2010, defendant filed a motion for summary judgment, contending that because Brassette settled the underlying case, her legal malpractice claims were preempted pursuant to LSA-R.S. 9:5605, and further contending that contested issues of material fact remained, which precluded summary judgment in her favor.

The cross-motions for summary judgment were argued before the trial court on March 30, 2011, at the conclusion of which the trial court denied Brassette’s motion for summary judgment and granted defendant’s motion for summary judgment. In granting the defendant’s motion for summary judgment, the trial court noted that Brassette’s legal malpractice claim against defendant was not preempted, but that nonetheless, Brassette’s November 14, 2008 compromise settlement and release contained no reservation of rights by Bras-sette, thereby entitling defendant to summary judgment as a matter of law. A judgment conforming to same and dismissing Brassette’s claims was signed by the trial court on April 6, 2011.

Brassette now appeals, contending that the trial court erred in granting defendant’s motion for summary judgment where material issues of fact remain, and in holding that Brassette’s settlement of the underlying case in federal court 1 ^precludes her from bringing a legal malpractice action against her former counsel.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1084, writ denied, 97-1911 (La.10/81/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966(A)(2).

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

The initial burden of proof remains with the mover, and it is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party submit evidence showing the existence of specific facts establishing a genuine issue of material fact. See Scott v. McDaniel, 96-1509 (La.App. 1st Cir.5/9/97), 694 So.2d 1189,1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil. Inc., 696 So.2d at 1035. Furthermore, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Guardia v. Lakeview Regional Medical Center. 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 627.. Because it is the applicable substantive law' that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 984 So.2d at 80.

Further, when addressing legal issues, a reviewing court gives no special weight to the findings of the trial court. Campbell v. Markel American Insurance Company, 2000-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 620, writ denied, 2001-2813 (La.1/4/02), 805 So.2d 204. Instead, after conducting its de novo review of questions of law, the reviewing court renders a judgment on the record. Campbell v. Markel American Insurance Company, 822 So.2d at 620.

LEGAL MALPRACTICE CLAIM

In order to establish a valid legal malpractice claim, a plaintiff must show, by evidence sufficient to convince a reasonable trier of fact: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. MB Industries, LLC v. CNA Insurance Company, 2011-0303 (La.10/25/11), 74 So.3d 1173, 1184. Thus, to prevail on the merits, Brassette has the burden of proving that the defendant failed to “exercise at least that degree of care, skill, and diligence, which is exercised by prudent practicing attorneys in his locality.” Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239, 244 (1972). Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show that the defendant’s actions fell below the standard of care. MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1184. The failure to introduce the testimony or affidavit of an expert witness, however, is not necessarily fatal to the plaintiffs claim, particularly where the alleged legal malpractice is “obvious” or the defendant attorney committed “gross error.” MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1184-1185, citing Ramp v. St. Paul Fire and Marine Insurance Company, 269 So.2d at 244.

At the outset, we address Bras-sette’s contention that trial court erred in holding that her settlement of the underlying case precluded her from bringing a legal malpractice action against her former counsel.

| sDefendant argues that the failure to oppose the FDA’s “Motion to Limit the Ad Damnum” was not negligent where, based on the information available on the date of filing (November 16, 2005), the damage limitation amount of $30,000.00 was considered more than reasonable for Brassette’s injuries. Defendant maintains that at no time prior to August 28, 2008, was Bras-sette diagnosed with a herniated disc, and, further, that there is no evidence that the herniated disc was caused by the accident. Thus, defendant contends no malpractice was committed in the handling of the underlying matter, and, because Brassette settled the underlying suit with no reservation of rights against defendant, she is unable to prove damages and is thereby estopped from pursuing her legal malpractice claim.

In support, defendant relies on Murphy v. Gilsbar, 2002-0205 (La.App. 1st Cir.12/31/02), 834 So.2d 669, writ denied, 2003-0676 (La.5/30/03), 845 So.2d 1057. In Murphy, another panel of this court held that the plaintiff therein was equitably stopped from bringing a legal malpractice claim where, despite the federal court’s attempts to involve plaintiff in a hearing to reconsider an adverse judgment finding that plaintiffs claim had prescribed, the plaintiff declined to participate and advised the court through a letter that she instead chose to file a legal malpractice claim against her attorney. See Murphy v. Gilsbar, 834 So.2d at 672. In holding that the plaintiff could not thereafter assert a malpractice claim, this court stated:

[Plaintiffs] entire action for malpractice against [defendant] rested on the allegation that [defendant] allowed the action for employment discrimination to prescribe. [Plaintiffs] refusal to participate in the hearing in federal court indicated she no longer had an interest in her discrimination suit. Her inaction precluded the revival of that action, an event that neither [defendant] nor Ciba-Geigy could affect as they lacked standing. Clearly, the trial court did not err in concluding that, by refusing to participate in the hearing that could have resurrected her discrimination suit, [plaintiff] waived her right to proceed with her malpractice suit.

Murphy v. Gilsbar, 834 So.2d at 672.

Although we find the facts of the instant case readily distinguishable from those set forth above in Murphy, the jurisprudential doctrine of equitable estoppel in Murphy was recently discussed, and limited in its application, by the Louisiana Supreme Court in MB Industries, LLC v. CNA Insurance Company, 2011-0303 (La.10/25/11), 74 So.3d 1173. In MB Industries, the defendant therein argued that, under the principles of equitable es-toppel, a defendant who fails to perfect an appeal of an underlying judgment effectively waives his right to a remedy in malpractice. In its discussion, the Supreme Court noted that although the theory of equitable estoppel was supported by several appellate court decisions, the issue was res nova for the Supreme Court. See MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1179.

As the Louisiana Supreme Court explained therein, equitable estoppel is a jurisprudential doctrine involving “the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1180 (citing Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25). There are three elements required to establish equitable estoppel: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1180.

As the Louisiana Supreme Court further explained:

A claim of waiver by failure to appeal is thus not “equitable estoppel” as the doctrine has been defined by this Court. Strictly speaking, equitable estoppel applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation. State v. Mitchell, 337 So.2d 1186, 1188 (La.1976). We must narrowly construe this argument, as “estoppel is not favored in our law,” Id., and estoppel is a “doctrine of last resort.” Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986). Because MBI’s decision not to pursue an appeal was not a representation of fact which Durio or Weinstein justifiably relied on to their detriment, equitable es-toppel does not apply.
The issue is more properly framed as a failure to mitigate damages under Civil Code article 2002, which states: “An obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.” Id. If an aggrieved party could have cured the effects of an unfavorable judgment by appeal, its decision not to appeal may be a failure to mitigate under article 2002. The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense. Wooley v. Lucksinger, 09-571 (La.4/1/11), 61 So.3d 507, 607; A Better Place, Inc. v. Giani Investment Co., 445 So.2d 728, 732 (La.1984).

MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1180-1181 (footnote omitted)(emphasis added).

Ultimately, the Louisiana Supreme Court held in MB Industries that:

[A] party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal, given the facts known at the time and avoiding the temptation to view the case through hindsight. This analysis is heavily dependent on the specific facts of the case. A court should take into account any relevant factors including, but not limited to, the nature of the alleged malpractice, the likelihood an appeal would have been successful, the likely expense of the appeal, and the possibility the peremp-tive period on the legal malpractice claim would have expired during the course of the appeal.

MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1182-1183.

Thus, applying the analysis set forth in MB Industries, we now conclude that a party does not waive its right to file a legal malpractice suit by settling an underlying suit, unless it is determined that a reasonably prudent party would not have settled the underlying case, given the facts known at the time and avoiding the temptation to view the case through hindsight. See MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1182-1183. As such, rather than considering defendant’s argument under principles of equitable estoppel to determine whether the defendant was entitled to summary judgment herein as a matter of law, we must consider whether Brassette waived her right to pursue a legal malpractice claim against the defendant by entering into a settlement agreement with the FDA. Thus, the relevant inquiry is whether a reasonably prudent party would have settled her underlying case.

The scope of a party’s duty to mitigate depends on the particular facts of the individual case, and, as recognized by the Louisiana Supreme Court, a party is not required to take actions which would likely prove unduly costly or futile. MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1181. A duty to mitigate encompasses only what a “reasonably prudent man” would have done to lessen his damages, given the facts known to him at the time and avoiding the temptation to view the case through hindsight. Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823, 826 (1968). Although as a general principle, a client has a duty to mitigate damages caused by his attorney’s malpractice, such a duty cannot require the client to undertake measures that are unreasonable, impractical, or disproportionately expensive considering all of the attendant circumstances. American Reliable Insurance Company v. Navratil, 445 F.3d 402, 406 (5th Cir.2006). Moreover, failure to pursue an appeal or other legal review is not a defense unless pursuit of the remedy would have made a difference. MB Industries, LLC v. CNA Insurance Company, 74 So.3d at 1182.

In the instant case, if Brassette could have cured the effects of the federal court’s limitation of her damage award, her decision to settle her underlying suit might constitute a failure to mitigate. However, as the record reflects, after Brassette learned that defendant failed to oppose the motion to limit damages, Bras-sette requested a relative, Friziala Wiggins, a lawyer in New Orleans, to review the federal court pleadings to see if there was any action Brassette could take to challenge the $30,000.00 damage limitation resulting from the federal court ruling. Brassette was advised by her relative that the limitation was “set” and there was no action she could take to challenge it. Accordingly, Brassette entered into the settlement agreement with the FDA. As such, Brassette argues on appeal that her conduct was reasonable under the circumstances, and her acceptance of the settlement funds could not serve to hinder her ability to recover, inasmuch as there existed no action that the defendant could have taken to recover any damages in excess of the limit once the Motion to Limit the Ad Damnum was granted as unopposed due to the defendant’s inaction.

On review of the trial court’s grant of defendant’s motion for summary judgment, we agree that defendant failed to establish, as a matter of law, that Brassette’s decision to settle her underlying suit, given the damage award limit imposed therein, was outside the bounds of a reasonably prudent actor, given the facts known to her at the time. Instead, on the record before us, we find that genuine issues of material fact remain as to whether Brassette acted as a “reasonably prudent party” in entering into the settlement agreement herein, which precludes the grant of summary judgment in either party’s favor. 11sSpecificaIly, such a determination of the reasonableness of her actions can only be made after the trial court’s consideration of the facts and circumstances surrounding her decision to settle in view of the procedural posture of the underlying federal suit and the extent of her medical treatment and damages.

Because we find merit to this assignment of error, we pretermit discussion of Brassette’s alternative arguments on appeal.

CONCLUSION

For the above and foregoing reasons, the April 6, 2011 judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against the defendants, Hugh B. Exnicios and the Exnicios Legal Center.

REVERSED AND REMANDED.

KUHN, J., dissents with reasons.

PETTIGREW, J., concurs with the result.

KUHN, J.,

dissenting.

hi disagree with the majority’s conclusion, reversing the trial court’s grant of summary judgment in favor of defendants, Hugh B. Exnicios and the Exnicios Legal Center (collectively Exnicios). Although MB Industries, LLC v. CNA Ins. Co., 2011-0304 (La.10/25/11), 74 So.3d 1173, does not permit a per se preclusion of a malpractice claim by a client against her former attorney when she has failed to appeal the underlying case and instead settles it, it also should not permit a per se right of a malpractice action in every instance that a client settles her underlying claim without appealing it or taking other action to maintain it.

In this case, Dawn Marie Brassette’s decision not to reopen the limitation of ad damnum order of the district court was unreasonable in light of the evidence that she had at the time she settled her case against the FDA. Nothing precluded her from either appealing the order of limitation of ad damnum, see FRAP 3 (permitting an appeal from a district court order); or amending her pleadings, see FRCP Rule 15(b), (28 U.S.C.A.) (permitting amendment of pleadings during and after trial); see also 28 U.S.C.A. § 2675(b) (an action under the Tort Claims Procedure shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim).

|2On August 28, 2008, three days after the order was signed by the district court judge limiting ad damnum, Brassette had the result of her MRI showing herniations in her neck and thoracic spine. A reasonably prudent client would have pursued reopening the ad damnum limitation with the newly discovered evidence. Having failed to do so, Brassette left defendant Exnicios without any opportunity to seek redress for his alleged error of failing to provide an opposition to the FDA’s motion to limit ad damnum damages. Accord Evanston Ins. Co. v. Kimmel, 2011-0526 (La.App. 1st Cir.12/14/11), 2011 WL 6288045 (unpublished). Because a reasonably prudent party would have reopened the ad damnum limitation, Brassette’s decision to settle her claim rather than appeal or amend her pleading during or after the trial amounted to a waiver of her right to file a malpractice claim. See MB Industries, LLC v. CNA Ins. Co., 74 So.3d at 1182-83.

I find problematic the majority’s holding that “a party does not waive its right to file a legal malpractice suit by settling an underlying suit, unless it is determined that a reasonably prudent party would not have settled the underlying case, given the facts known at the time and avoiding the temptation to view the case through hindsight.” In the framework of a motion for summary judgment — where a moving party who does not bear the burden of proof at trial need only point out an absence of factual support for one or more elements essential to the adverse party’s claim — the showing is apparently impossible. How can the determination of whether a “reasonably prudent” party would have settled her claim be pointed out by the defendant until after such time as the trier of fact concludes that the party was reasonably prudent? Has the majority’s holding effectively removed resolution of legal malpractice claims by summary judgment (the statutorily favored procedure for resolution of claims under La. C.C.P. art. 966 A(2)) where the. client has chosen to settle her underlying suit and thereby removed all opportunities for a defendant to redress the alleged error?

IsExmcios showed the facts known at the time that Brassette settled her claim, which was less than three months after the motion to limit ad damnum was granted and a mere three days before she obtained medical evidence demonstrating a disc herniation that more likely than not was caused by the accident. These facts demonstrate that a reasonably prudent party would not have settled her underlying case but would have reopened the ad damnum limitation before settling with the tortfea-sor. In response to this showing, Bras-sette failed to produce factual support sufficient to rebut this showing. If these facts established by Enxicios in support of the motion for summary judgment are not sufficient to demonstrate that a reasonably prudent client would have reopened the ad damnum limitation rather than settled with the tortfeasor, there are, I suppose, absolutely no facts that would permit the granting of the motion for summary judgment. This is as egregious a result as the per se rule that required the plaintiff in a legal malpractice action to appeal the underlying ruling before she was able to maintain her legal malpractice claim.

For these reasons, I disagree with the majority and would affirm the grant of summary judgment in favor of the Exnic-ios’ defendants, dismissing Brassette’s claims.

      . Louisiana Revised Statute 9:5605 provides, in pertinent part:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

      . In denying Brassette’s motion for summary judgment, the trial court noted that Brassette failed to present any evidence to prove her entitlement to judgment as a matter of law for the defendant’s failure to file an opposition to the FDA’s motion to limit damages in the underlying proceedings as an act of negligence per se. Although the denial of a motion for summary judgment is generally non-ap-pealable, see LSA-C.C.P. art. 968, because the same issues lie at the heart of the cross-motions for summary judgment, review of the opposing motions is appropriate. See Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107 (La.App. 1st Cir.2/8/08), 984 So.2d 72, 78, n. 1. Nonetheless, Brassette does not assign error to the trial court’s denial of her motion for summary judgment in this appeal.

      . Moreover, we note that in a recent case similar to the instant case, Walker v. Harris, 2011-0141 (La.App. 1st Cir.9/14/11), 2011 WL 4344026 (unpublished opinion), this panel affirmed a judgment dismissing plaintiffs’ legal malpractice claim, finding that the plaintiffs were equitably estopped from asserting an action for legal malpractice against their former counsel where the plaintiffs had settled the underlying lawsuit on which the legal malpractice claim was based. The Louisiana Supreme Court granted the plaintiffs' writ application and remanded the case to this court for reconsideration specifically in light of its subsequent decision in MB Industries. See Walker v. Harris, 2011-2531 (La.2/3/12), 79 So.3d 1020 Thus, we must consider the holdings set forth in MB Industries in our resolution of the issues set before us in the instant appeal.
      We further note that MB Industries’s holding that a party does not waive its right to file a legal malpractice claim by not filing an appeal of an underlying judgment has since been applied by this court in Evanston Insurance Company v. Kimmel, 2011-0526 (La.App. 1st Cir. 12/14/11), 2011 WL 6288045(unpublished opinion).


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Shacorey Remond BELL, Appellant.
    No. 47,052-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Margaret Sollars, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Tommy J. Johnson, R. Bennett Landford, III, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

_JjThe defendant, Shacorey Remond Bell, was convicted of armed robbery and sentenced to 45 years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, claiming excessive sentence. We affirm the defendant’s conviction and sentence.

FACTS

At about 3:00 a.m. on July 1, 2008, four men committed an armed robbery of the Relay Station Casino on Highway 1 in Caddo Parish. While one of the men remained in the getaway vehicle, the other three entered the casino wearing masks and gloves. Two of the men were armed with pistols; the fourth man, who was later identified as the defendant, was armed with an AK-47 assault rifle. The sole occupants of the casino, a female bartender/cashier and an unarmed male security guard, were tied up and gagged. The robbers escaped with more than $21,000 which was never recovered.

Police discovered the getaway vehicle, which had been stolen several days before the robbery, abandoned a short distance from the casino. Recovered from the vehicle were the gloves and masks used in the robbery. The police developed several suspects, including the defendant. DNA evidence and fingerprints gathered from the getaway car, the gloves, and the masks were matched to the defendant and his codefendants.

The defendant was arrested and charged with armed robbery. Following a jury trial in March 2011, the defendant was convicted as charged. The defendant’s motion for post-verdict judgment of acquittal was ^denied. In May 2011, the trial court sentenced the defendant to 45 years at hard labor without benefit of parole, probation or suspension of sentence. The trial court denied a timely motion to reconsider sentence filed by defense counsel, as well as an untimely pro se motion for reconsideration.

The defendant filed the instant appeal, arguing that the sentence imposed upon him is excessive.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 488 So.2d 688 (La.1988); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938.

The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Jones, 45,429 (La.App.2d Cir.8/11/10), 46 So.3d 756. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996); State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

The offense of armed robbery carries a sentencing range of not less than 10 years and not more than 99 years, at hard labor, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B).

| .DISCUSSION

At sentencing, after reviewing the facts of the crime and the particular role played by the defendant, the trial court went to great lengths to explain the sentence imposed upon this defendant, who was 18 years old at the time of the offense. The court laboriously went through all of the factors of La. C. Cr. P. art. 894.1 and discussed in detail how these factors related to this case and this defendant. The court took note of both mitigating and aggravating factors. Among the aggravating factors were the deliberate cruelty and risk of great bodily harm or death to which the casino employees were subjected during this “very well-organized” and “very well-rehearsed” robbery. The court also stated that it had reviewed the defendant’s juvenile history and the “many disciplinary reports” made on him during his current incarceration. In mitigation, the court considered the youth of the defendant, the favorable comments of his employer, and the fact that he admitted his involvement in the robbery at the sentencing hearing.

The defendant’s sentence was clearly tailored to fit the defendant and the offense. The sentence imposed was in the midrange of the statutory parameters for this particular crime. It is not grossly disproportionate to the severity of the offense, nor is it shocking to the sense of justice.

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jerome Felix HARDY, Jr., Appellant.
    No. 47,077-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, LA, for Appellant.
    Robert W. Levy, District Attorney, Cary T. Brown, Laurie L. Whitten, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

| Jerome Felix Hardy Jr. was convicted of possession or introduction of contraband into a penal institution, adjudicated a fourth felony offender and sentenced to 20 years at hard labor without benefit of parole, probation or suspension of sentence. He now appeals, urging that the district court erred in admitting into evidence the confession he signed in a disciplinary hearing at the detention center and in denying him the benefit of parole. We affirm Hardy’s conviction and adjudication, and amend the sentence only to remove the denial of parole.

Factual Background

Hardy was a pretrial detainee in the Lincoln Parish Detention Center, a parish prison or jail defined as a penal institution in La. R.S. 14:402 E.

On October 25, 2009, deputies conducted a routine “shakedown” of Dorm H, where Hardy was housed. While two deputies searched the cells, Lieutenant Corey Ray took the four occupants to the library area for a strip search. Lt. Ray testified that Hardy thoroughly complied with the strip search until the final item of clothing, his underwear. Showing his backside, Hardy handed his shorts to Lt. Ray, but Lt. Ray heard the “rattling” or “krinkling” sound of a plastic bag. Sensing that Hardy was hiding contraband, Lt. Ray phoned for assistance. Captain Randy Williams, who had been searching the dorm, ran to the library. As he entered the door, both he and Lt. Ray both saw Hardy lift a cell phone and hurl it to the floor, where it shattered into several pieces. They recovered the pieces of the Nokia cell phone, as well as a charger in a plastic bag on the floor.

| ?Lt. Ray testified that Hardy told him, “This is bullshit — it’s not mine.” When Lt. Ray asked him whose phone it was, Hardy replied, “I’m not a rat.” Capt. Williams did not overhear any of this, but testified that Hardy told him, ‘You got me,” a remark that Hardy strongly denied making.

Because the cell phone is deemed contraband in a penal institution, La. R.S. 14:402 E(7), deputies immediately placed Hardy in lockdown or an isolation room. Authorities were able to reassemble the cell phone but could not get it to work; they also could not determine who actually owned it. They did not fingerprint the phone or the charger, and they disposed of the plastic bag as it was not contraband. Sometime after the incident, deputies brought Hardy to a disciplinary hearing before Assistant Warden Edward Thompson and Lieutenant Donald Warren. The disciplinary report stated that Hardy “had a cell phone in the groin area of his boxers” and he “then grabbed the phone and forcefully threw it on the floor.” Assistant Warden Thompson testified that he read the charge to Hardy, who immediately admitted possessing the cell phone and signed the report. For this violation, he was sentenced to five days in isolation.

Procedural History

In January 2010 the state charged Hardy with possession or introduction of contraband into a penal institution, La. R.S. 14:402 E(7). Hardy filed a motion to suppress all his statements to authorities at Lincoln RParish Detention Center. After a pretrial hearing on the motion to suppress, the court found that the first two statements to Lt. Ray and Capt. Williams were “voluntary, spontaneous, initiated by the defendant^] * * * not as a result of questioning or the functional equivalent thereof by any law enforcement,” and hence admissible. However, the third statement, to Lt. Ray (“I’m not a rat”), was made in custodial interrogation without the requisite Miranda warnings and thus inadmissible.

The matter proceeded to a six-member jury trial in May 2010, at which the witnesses testified as outlined above. Hardy maintained that one of the other inmates, named Watts, was trying to “get rid of something” as they were being walked from the dorm to the library; Lt. Ray chased Watts down but could not recover the object; when he (Hardy) squatted to remove his boxers, he saw the cell phone under a table in the library, and so did Lt. Ray; Lt. Ray radioed for help and Capt. Williams quickly arrived. Hardy admitted that he “probably” told Lt. Ray, “This is bullshit,” but denied ever telling anyone that he “possessed” the phone.

On cross-examination, the state asked Hardy about his confession at the disciplinary hearing. The court removed the jury and held a free-and-voluntary hearing in which Assistant Warden Thompson and Lt. Warren testified they used no threats or coercion to get Hardy to sign the report. They admitted that a disciplinary hearing conferred no right to counsel, discovery or pretrial hearings, and that they just read the charge to the inmate for him to plead guilty or not guilty. They testified that if an inmate pled guilty, they sentenced him to five days in isolation; if he pled not |4guilty, they would have to continue the investigation, and Lt. Warren admitted that the inmate could “possibly” get more than five days. Hardy testified that he signed the report because he thought he would “get out sooner” by pleading guilty; he felt “coerced” and deprived of due process. He added that the system was “pretty ingenious” to keep people in solitary.

The court found that no threats or promises had been used to obtain the confession; Hardy’s purely subjective belief that pleading guilty would get him out of solitary did not make the statement involuntary. The court therefore admitted the disciplinary report.

When the jury returned, Hardy reiterated that he signed the report only to get out of solitary, admitted that he may have told Lt. Ray, “I’m not a rat,” and insisted that cell phones were rampant in the Lincoln Parish Detention Center. He said the usual penalty was five days’ detention, not criminal prosecution.

The jury found Hardy guilty as charged. The state then charged him as a fourth felony offender, citing a 1997 guilty plea in the Third JDC to two counts of simple burglary of an inhabited dwelling, a 1998 guilty plea in the Third JDC to possession of cocaine, and a 2000 guilty plea in San Bernardino County, California, to possession for sale of cocaine. The court adjudicated him a fourth felony offender and sentenced him to 20 years at hard labor without benefit of probation, parole or suspension of sentence.

Discussion: Admissibility of Disciplinary Report

By his first assignment of error, Hardy urges the court erred in finding that his admission to possession of contraband, in a prison disciplinary | shearing, was a free and voluntary statement. Although he could prove no actual threats or inducements, he shows that when he went to the hearing he had already been in isolation for “some time,” and he cites Lt. Warren’s admission that if he had not admitted guilt, he could have been returned to isolation for an indefinite period while authorities decided what to do. Because it was common knowledge that pleading guilty would get, him released in “no longer than five days,” this made his confession involuntary. He adds that because it was a direct admission of the crime charged, the confession cannot be harmless error.

The state replies that the district court did not abuse its discretion in finding the disciplinary report to be free and voluntary, and not made under the influence of fear, duress, intimidation, menace, threats, inducements or promises. The state also suggests that even though Hardy signed the report without receiving the requisite Miranda warnings, it can be allowed if the statement was made freely and voluntarily. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

Before a confession can be admitted into evidence, the state has the burden of affirmatively showing that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451; State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1; State v. Wilson, 40,767 (La.App. 2 Cir. 8/23/06), 938 So.2d 1111, writ denied, 2006-2323 (La.4/20/07), 954 So.2d 159, cert. denied, 552 U.S. 917, 128 S.Ct. 275, 169 L.Ed.2d 201 (2007). If the statement was made during custodial interrogation, the state must also show that the | (¡defendant was advised of his constitutional rights under Miranda. Id. A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the court’s determination. State v. Holmes, 2006-2988 (La.12/2/08), 5 So.3d 42, cert. denied, — U.S. —, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009); State v. Freeman, 45,127 (La.App. 2 Cir. 4/14/10), 34 So.3d 541, writ denied, 2010-1043 (La.11/24/10), 50 So.3d 827. A voluntary confession which is taken in violation of the prophylactic rule of Miranda is inadmissible in the state’s case-in-chief, but may still be used to impeach the defendant if he takes the stand. Harris v. New York, supra; State v. Lee, 524 So.2d 1176 (La.1988); State v. Shipp, 30,562 (La.App. 2 Cir. 4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775. The objective of finding the truth would not be served if a defendant could take the stand, lie under oath, and be insulated from his prior inculpatory statements. Harris v. New York, supra; State v. Shipp, supra.

On close review, we find the evidence supports the district court’s ruling. Assistant Warden Thompson and Lt. Warren, who comprised the disciplinary board, testified that they merely informed Hardy of the charges against him and he chose to plead guilty. No witness — -including Hardy — described any duress, intimidation, menace, threats, inducements or promises. The only such evidence was Hardy’s self-serving claim that he thought the guilty plea would get him out of isolation sooner. Given that Hardy’s testimony was largely at odds with that of all the other witnesses, the district court was entitled to disregard his perception of subtle coercion. State v. Holmes, supra; State v. Freeman, supra. Moreover, the disciplinary report was admissible to impeach his testimony that he never admitted possessing the phone. State v. Lee, supra; State v. Shipp, supra. Given the consistency of the state’s evidence at the hearing on the motion to suppress, the trial and the free-and-voluntary hearing, admitting the disciplinary report did not unduly prejudice Hardy.

This assignment lacks merit.

Denial of Parole

By his second assignment of error, Hardy urges the court erred in imposing a sentence without the possibility of parole. He shows that the applicable statute, La. R.S. 15:529.1 G, provides that habitual offender sentences are to be imposed “without benefit of probation or suspension of sentence,” and not without benefit of parole. State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519; State v. Holloway, 37,021 (La.App. 2 Cir. 5/16/03), 847 So.2d 200, writs denied, 2003-1720, -1929 (La.12/19/03), 861 So.2d 558, 560.

The state concedes that this argument has merit, and we agree that it was error to deny benefit of parole. This court recently stated that sentences under R.S. 15:529.1 G are to be imposed without benefit of probation or suspension of sentence, and not without benefit of parole; however, if the underlying offense carries a denial of parole, then the court may deny parole |sfor the enhanced sentence. State v. Bobo, 46,225 (La.App. 2 Cir. 6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202. The underlying statute, La. R.S. 14:402 G, provides no denial of parole. We therefore amend the sentence to delete the denial of parole. In all other respects, the sentence is affirmed.

Conclusion

For the reasons expressed, Jerome Felix Hardy Jr.’s conviction and adjudication as a fourth felony offender are affirmed. His sentence of 20 years at hard labor is amended to delete the denial of the benefit of parole, but is otherwise affirmed.

CONVICTION AND ADJUDICATION AFFIRMED; SENTENCE AMENDED.

      . The disciplinary report appears to be dated "10/25/09, 5:40 pm,” which would be only slightly over an hour after the incident itself, and all witnesses agreed this was wrong. Assistant Warden Thompson could not recall when die disciplinary hearing was held; Lt. Warren said it was probably about 10 days after the incident; Hardy testified it was 30 days after, all of which he had spent "in the hole.”

      . Hardy also told the agent who prepared the presentence investigation that punishing him in the disciplinary hearing and again with prosecution was double jeopardy. However, he did not file a motion to quash on this ground and he did not designate jeopardy as an error on appeal. We would note parenthetically that action taken by a disciplinary board against a prison inmate provides no basis for a plea of double jeopardy. State v. Green, 301 So.2d 590 (La.1974); State v. Duncan, 98-1730 (La.App. 1 Cir. 6/25/99), 738 So.2d 706.

      . The state also shows that because of his fourth felony status, Hardy is independently ineligible for parole under La. R.S. 15:574.4 A(l)(a). Determining the time and conditions of release on parole is the prerogative of the Parole Board, La. R.S. 15:574.2 D(l), but this court will nevertheless correct the illegal sentence.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Tarsa COOLEY, Appellant.
    No. 47,087-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne Morelock Owen, Geya Prud-homme, Kenya Ellis, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

| ,Tarsa Cooley was convicted of second degree murder and sentenced to life imprisonment without benefits. He appeals. We affirm in all respects.

FACTS

On June 13, 2008, Matthew Robert was murdered while working as a clerk at Max’s Pawn Shop on Linwood Avenue in Shreveport. His coworker, Tory Jackson, observed the entry of a man with braided hair and wearing a white T-shirt and sunglasses. The person ordered Robert, “Give me all the money,” and then said, “You think I’m playing?” Using a chrome-plated revolver, the robber shot Robert in the chest, while Jackson was only an arm’s length away.

From his hiding place, Jackson saw Robert fall to the floor, gasping for breath. The robber fled, firing back into the store.

Video surveillance cameras fully captured the event, showing that:

• a silver-colored Cadillac pulled into the parking lot and stopped;

• an individual in a white T-shirt exited the vehicle from the driver’s door;

• the person entered the store, walked up to the counter, pulled out a gun from under his shirt, and shot the man behind the counter; and

• the killer fired into the store as he fled, then sped away in the Cadillac.

Robert later died from the gunshot, which had damaged several organs. Firearms identification indicated that the deformed jacket taken from Robert’s body was discharged from a .44-caliber gun.

Earlier that day, two other robberies had occurred in this same vicinity.

12Vanessa Reeve, working as a clerk for a Family Dollar store, was robbed by a person who demanded cash, put a gun to her head, and threatened to “blow [her] head off.” This robber also fired back into the store as he fled. At trial, Ms. Reeve identified Cooley as the robber who assaulted her.

After the Family Dollar store robbery, but before the killing at the pawn shop, Cecil Irvine was robbed at gunpoint at a Shreveport Texaco station. The robber took Irvine’s silver-colored 2006 Cadillac, threatening that they “could do it the easy way, or the hard way.” When the car was found, it bore fingerprints that were later matched to the defendant. At trial, Irvine identified Cooley as the armed robber who stole his vehicle.

Defendant became a suspect in the murder of Robert the next day when officers received an anonymous tip through Crime Stoppers. The tip alleged that the defendant had braided hair on the date of the killing. When officers matched the latent prints from the Cadillac to those of Tarsa Cooley, they prepared photographic lineups containing a picture of him and showed them to Tory Jackson, who identified the defendant as the shooter.

Cooley was apprehended in Shreveport pursuant to an arrest warrant. Using a police canine, officers found him huddling in a closet with a .44-caliber Rossi revolver. Subsequent testing by the North Louisiana Crime Lab indicated that the bullet found inside Robert’s body at autopsy had been fired by the revolver found in the closet with the defendant.

Officers also developed Tiray Edwards, defendant’s 15-year-old cousin, as a suspect. Although Edwards’ trial testimony was lacking in |,.¡details, he affirmed the post-Miranda, statement he made to officers in which he detailed that he had been with the defendant at all three locations on June 13, 2008. Edwards told officers that:

• they had first gone to the Family Dollar in his cousin’s car;

• Cooley entered the business while Edwards remained with the vehicle;

• Cooley took a purse containing four dollars from a customer;

• they went in search of another target and settled on the Texaco station;

• the clerk locked the doors of the business before they were able to gain entry;

• Cooley approached Mr. Irvine and stole his vehicle;

• the two men went in the stolen vehicle to the pawn shop;

• Cooley went inside armed with a chrome .44-caliber revolver;

• Edwards stayed in the car and soon heard gunshots;

• he saw Cooley run out toward the vehicle;

• Cooley told him to start shooting, which he did, as they sped away; and

• Cooley admitted to him that he had shot the man inside the store.

The defendant was initially indicted for first degree murder, but the indictment was subsequently amended to reduce the charge to second degree murder.

Prior to trial, the state gave notice under La. C.E. art. 404(B) of its intent to use other crimes evidence in the guilt and penalty phase of the | ^defendant’s trial. A Prieur hearing was conducted, during which the state reiterated its intent to introduce evidence that the defendant had participated in the other two robberies.

The state argued that the first incident showed proof of intent, plan and preparation. As to the second incident, the state contended that the evidence was admissible as res gestae in that the just-stolen Cadillac was used in the pawn shop crime, and therefore constituted an integral part of the murder of Matthew Robert.

Regarding the robbery at the Family Dollar, the court stated the following:

As to the circumstances or the evidence surrounding the Family Dollar incident, the Court has some reservations as to the connection, but if defense counsel has the benefit of the recorded statements of the co-defendants as well as Mr. Cooley, then I am assuming that the State can make the proper 404(B) argument as to plan and intent for purposes of admissibility.
So the Court will rule as follows as to the defense counsel’s motion: ... As to the Family Dollar incident, the Court is satisfied for the purposes of today’s hearing that the State has the witnesses and additional evidence to show the 404(B) circumstances of intent and motive for purposes of admission.

The court also found the evidence of the Texaco robbery to constitute admissible res gestae evidence.

At trial, the state presented evidence identifying the defendant as the perpetrator of the two earlier armed robberies at the Family Dollar and Texaco station. No objection to the admissibility of this evidence was re-urged at trial.

| sThe defendant was unanimously found guilty of second degree murder.

Defendant’s post-verdict motion for modification of the verdict to manslaughter was denied. After waiving sentencing delays, the defendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. This appeal followed.

DISCUSSION

The defendant’s sole assignment of error is that he was prejudiced by the state’s improper introduction of evidence of prior bad acts by him.

The defendant argues that the trial court abused its discretion in allowing evidence of his participation in the Family Dollar and Texaco robberies to be introduced at trial because neither had any relevance to the issue of whether he had the specific intent to kill or inflict great bodily harm upon the victim.

The state responds that the evidence of the Texaco robbery was proper under res gestae and evidence of the Family Dollar robbery and the shots fired therein were relevant to address Cooley’s assertion that he had fired at Matthew Robert only in self-defense. In the alternative, the state argues that if the evidence was improperly admitted, it was harmless in light of the other overwhelming evidence establishing defendant’s guilt. We agree with the state’s arguments.

IfiThe law pertinent to evidence of other crimes is well settled.

|7The evidence at trial established that the attempted robbery at Max’s Pawn Shop was the culmination of a crime spree in which defendant was repeatedly trying, and repeatedly failing, to get his hands on cash.

At the Family Dollar Store, the defendant was able to obtain only a purse containing a few dollars.

At the Texaco station, his efforts to steal money were again frustrated when an alert store clerk locked him out of the building. He then accosted a patron at the gas pumps, stealing the Cadillac he used to drive to Max’s Pawn Shop.

At the pawn shop, he shot the victim either because he didn’t immediately comply with the defendant’s demand for money or because the defendant believed the victim to be reaching for a weapon. Under either theory, the defendant was guilty of second degree murder. To have disallowed evidence of either crime occurring that day would have deprived the state’s case of its “narrative momentum and cohesiveness.”

The state has not argued that the robbery at the Family Dollar constitutes part of the res gestae. Instead, it urges that testimony about this incident countered defendant’s contention that he shot the victim only because he believed he was reaching for a gun. According to the state, the fact that just a short time prior to Robert’s murder, the defendant had aimed and fired his gun at the clerk of another store was probative evidence that the victim need not have been reaching for anything for the defendant to have fired his gun at him.

| sSelf-defense was unavailable to the defendant under La. R.S. 14:21 because he was the aggressor in the conflict. We cannot conclude that the trial court abused its discretion in admitting the prior crimes evidence. Even -if the trial court was in error, it was harmless error. The evidence of guilt was overwhelming.

Tory Jackson identified the defendant as the person who killed Matthew Robert. Jackson testified that the defendant had demanded money from the victim. When the robber did not immediately get the money, he pointed the gun at the victim and shot him in the chest. The events were caught on surveillance video which shows the defendant raise the gun chest high and fire. When Cooley was arrested, he was in possession of the murder weapon. It is remote in the extreme that Cooley’s conviction is attributable to the other crimes evidence, properly admitted or not.

This conviction is clearly and amply supported by the record.

ERROR PATENT

We hereby notify the defendant of the time limitations pertinent to any applications for post-conviction relief.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The defendant also admitted the shooting to his cousin, Randy McGill, indicating to both Edwards and McGill that he thought the victim was reaching for a gun.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . The state prosecuted under La. R.S. 14:30.1(A)(1), requiring proof of the specific intent to kill or inflict great bodily harm. The state did not also prosecute in the conjunctive under "felony murder,” La. R.S. 14:30.1(A)(2), which would have allowed a conviction for second degree murder without the necessity of proving specific intent to kill or inflict great bodily harm, if it were proven that the killing occurred during the perpetration or attempted perpetration of any of 15 enumerated felonies, including all four of the robbery crimes in Title 14.

      . The Louisiana Supreme Court recently held in State v. Odenbaugh, 2010-0268, pp. 52-54 (La. 12/6/11), 82 So.3d 215, 250-251, as follows (with citations omitted):
      Generally, evidence of other crimes, wrongs, or acts committed by the defendant is inadmissible due to the "substantial risk of grave prejudice to the defendant.” Under LSA-C.E. art. 404(B)(1), however, such evidence may be admitted for the purpose of showing “motive, opportunity, intent, preparation, plan, knowledge!/]” Evidence of other bad acts is not admissible simply to prove the bad character of the accused. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect.
      Under Louisiana Code of Evidence Art. 404(B), other crimes evidence is also admissible "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." For other crimes to be admissible under this exception, they must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice of the other crime as well. Thus, evidence of other crimes forms part of the res gestae when said crimes are related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. It is evidence which completes the story of the crime by showing the context of the happenings. Evidence of crimes committed in connection with the crime charged does not affect the accused’s character because the offenses are committed as parts of a whole. The inquiry to be made is whether the other crime is "part and parcel” of the crime charged, and is not offered for the purpose of showing that the accused is a person of bad character.
      The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. In addition, as this Court has observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state's case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ”
      In addition, the trial judge has wide discretion in determining the relevancy of evidence, and its ruling on the admissibility of other crimes evidence will not be overturned absent a clear showing of an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied; State v. Cooks, 36,-613 (La.App.2d Cir.12/4/02), 833 So.2d 1034.
      The improper admission of other crimes evidence is subject to review for harmless error, and the admission will be deemed harmless if the verdict is "surely unattributable to the error.” State v. Odenbaugh, supra; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

      . See State v. Odenbaugh, supra, at fn. 4.

      . At sentencing, the trial court did not advise the defendant of the time period within which to apply for post-conviction relief. La. C. Cr. P. art. 930.8(C) is supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Brumfield, 2009-1084 (La.9/2/09), 16 So.3d 1161; State v. Hunter, 36,692 (La.App.2d Cir. 12/20/02), 834 So.2d 6. This Court hereby advises the defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App.2d Cir.9/21/05), 911 So.2d 898.


author: BROWN, Chief Judge.

text:
    Bethany T. DIXON, Plaintiff-Appellant v. Charles R. TUCKER, Jr., O’Nealgas, Inc., and Jamestown Insurance Company, a Risk Retention Group, Defendants-Appellees.
    No. 47,113-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Rehearing Denied June 14, 2012.

      Carl Henry Franklin, Shreveport, LA, for Appellant.
    Law Office of Kirby D. Kelly, Shreveport, LA, by Kirby D. Kelly, H. Dean Lucius, Sean Landry, Lilly Law Corporation, by Roy M. Lilly, Jr., Minden, LA, for Appellees.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiff, Bethany T. Dixon, appeals from a trial court judgment dismissing her claims against defendants, Charles Tucker, O’Nealgas, Inc., and Jamestown Insurance Company, a Risk Retention Group. For the reasons set forth herein, we AFFIRM.

Facts and Procedural History

The vehicular accident giving rise to this litigation occurred on December 6, 2005, at about 2:35 p.m. on Interstate 20 (“1-20”) near Arcadia in Bienville Parish, Louisiana. Access to 1-20 is by roads/ramps designed to gradually merge traffic onto the Interstate. Defendant, Charles Tucker, was driving a 1992 GMC Sierra truck owned by his employer, O’Nealgas, Inc., westbound on 1-20 in the right-hand lane. Plaintiff, Bethany Dixon, was driving a 1994 Dodge van. Plaintiff was attempting to enter 1-20 westbound from an on-ramp. When she merged onto 1-20, her van was struck on the left rear by Tucker’s pickup truck and careened off 1-20, crashing into a tree.

Tucker testified that he first saw plaintiffs vehicle when it was three-fourths of the way up the ramp. He believed that plaintiffs speed was 30 mph while he was traveling at 70 mph (the speed limit). Tucker claims that, seconds later, plaintiff suddenly moved into the right lane. Tucker swerved but was unable to move into the left lane because a semi-trailer truck was occupying that lane. Tucker’s pickup hit the left rear end of plaintiffs van.

Plaintiff suffered multiple injuries due to the crash and was transported by ambulance to Minden Medical Center. Louisiana State Trooper Christopher Bastow was dispatched to the scene. Trooper Bastow cited Tucker for careless operation. The ticket was later changed by the 12district attorney to illegal parking and Tucker paid a fine. The ticketing testimony was not objected to and was admitted into evidence. However, see Maricle v. Liberty Mut. Ins. Co., 2004-1149 (La.App.3d Cir.03/02/05), 898 So.2d 565.

Plaintiff filed suit on October 2, 2006, against defendants, Charles Tucker, O’Nealgas, Inc., and Jamestown Insurance Company, a Risk Retention Group, seeking damages for physical pain and suffering, mental pain and anguish, physical disability, humiliation and embarrassment, medical expenses, lost wages, loss of future earning capacity, and risk of traumatically induced arthritis. At the parties’ request, the trial was bifurcated with liability being tried first. Testimony was heard from Tucker and Dixon. Trooper Bastow’s deposition testimony was admitted into evidence in lieu of his live testimony.

Defendants also called Sergeant Todd Hylbert, a member of the Bossier City Police Department, as an expert witness in accident reconstruction and accident investigation. Over objections, Sgt. Hylbert was accepted by the court as an expert witness. Sgt. Hylbert testified that, according to his calculations, Tucker would not have had enough time to react to Dixon suddenly merging onto 1-20. Therefore, he testified, plaintiff was at fault for failing to obey the yield sign. The trial court found in favor of defendants and dismissed plaintiffs demands. Thereafter, plaintiff timely appealed.

|ROn appeal, plaintiff argues that the trial court erred in finding that Tucker was not at fault for the accident and in qualifying Sgt. Hylbert as an expert witness.

Discussion

Admission of Hylbert’s Expert Testimony

Expert witness testimony is governed by La. C.E. art. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Formal education or training in a particular field is not always necessary to qualify as an expert in a particular field; rather experience alone may be sufficient. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.01/29/96), 666 So.2d 1073.

In the case sub judice, plaintiff objects to Sgt. Hylbert being accepted as an expert in accident reconstruction. Plaintiff complains that Sgt. Hylbert has no educational background in math, engineering or the sciences. Further, plaintiff notes that Sgt. Hylbert has been accepted as an expert witness in accident reconstruction only in criminal trials, and in those cases, he was an investigating officer. Plaintiff also contends that Sgt. Hylbert’s methodology and conclusions in his report are based upon speculation and are therefore unreliable.

14Finally, plaintiff also avers that Sgt. Hylbert’s testimony is at odds with Trooper Bastow’s testimony regarding fault in the accident. Plaintiff, however, did not go through the process of qualifying Trooper Bastow as an expert. Courts have held that an investigating officer was not automatically an expert in accident reconstruction or qualified to render an opinion as to causation of the accident. See Maride, supra; Guidry v. Boston Old Colony Ins. Co., 540 So.2d 543 (La.App. 3d Cir.1989), writ denied, 543 So.2d 7 (La.1989). Again, no objection was made as to Trooper Bastow’s opinion. Bastow stated that he graduated from the State Police Academy and in nine years as a trooper, he had worked many accidents.

Sgt. Hylbert possessed a bachelor’s degree in Criminal Justice and an associate’s degree in Law Enforcement Technology. He had been a member of the Bossier City Police Department since 1993, serving for a time as a supervisor over the Violent Crimes and Homicide Unit and the Fatality Accident Investigation Team. Sgt. Hyl-bert testified that he had nine years of experience investigating accidents. Further, Sgt. Hylbert provided documentation that he attended a series of courses administered by the Traffic Safety Institute of Northwestern University of Illinois at the Louisiana State Police Academy. Specifically, the record reveals that he received certificates of completion for 120 hours of course work in “traffic accident reconstruction,” 160 hours of course work in “traffic accident investigation,” and 40 hours of course work in “vehicle dynamics.”

In accepting Sgt. Hylbert as an expert witness, the trial court opined:

[W]hether he was reconstructing at the time of the scene or he came back and reconstructed it afterward, I think an accident 15reconstructionist [sic] is an accident reconstructionist, whether you are a fact witness at the time or fact witness afterward. So, I’m going to agree that Sergeant Hylbert is an expert in accident reconstruction.

The trial court has great discretion in determining the competence of an expert witness and that determination will not be overturned absent an abuse of discretion. Hunter v. City of Shreveport, 41,-192 (La.App.2d Cir.06/28/06), 935 So.2d 300, writs denied, 06-1907, 06-1908 (La.11/03/06), 940 So.2d 655. The test of competency of an expert is his or her knowledge of the subject about which he or she is called to express an opinion, which may be shown through a combination of the expert’s specialized training, work experience and practical application of the expert’s knowledge. State v. Taylor, 42,627 (La.App.2d Cir.10/24/07), 968 So.2d 1135, writ denied, 08-0424 (La.11/10/08), 996 So.2d 1063.

In Hunter, supra, this court held that a police officer with 19 years of experience with the Shreveport Police Department, including certification in vehicle investigation and supervisory experience with the Accident Investigation Unit, was qualified to testify as an expert witness. Likewise, the Fourth Circuit has held that a trial court did not err in qualifying, as an expert witness, a Louisiana State Trooper who had police experience and completed a nine-week course at the “Northwestern Traffic Police Officer Training for Accident Reconstruction.” Haik v. Allstate Ins. Co., 09-0860 (La.App.4 Cir.03/31/10), 39 So.3d 711, writ denied, 10-1921 (La.11/05/10), 50 So.3d 809.

After examining Sgt. Hylbert’s qualifications and the technical methodology he employed in forming his opinion, we cannot say the trial j 6court abused its discretion in qualifying him to testify in the present litigation as an expert witness in accident reconstruction.

In reaching his opinion, Sgt. Hyl-bert utilized deposition testimony from Tucker and Bastow, as well as the accident report, accident scene photographs and a scale diagram of the accident scene prepared by a licensed surveyor. He then employed various mathematical formulae to determine how long defendant had to react to plaintiff merging onto the Interstate. His resulting conclusion was that, given the respective speeds at which Dixon and Tucker were traveling when Dixon merged, the distance between the two vehicles would have been covered in “.17 of a second,” leaving Tucker no time to avoid the collision.

Sgt. Hylbert based his calculations on testimony from Tucker and Trooper Bas-tow and facts from the accident report. Plaintiff, in her opposition to a motion for summary judgment filed by defendants, claimed that she had been traveling at a speed of 45 to 50 mph when she merged from the on-ramp onto 1-20. However, plaintiff made no mention of her speed at the trial or in her pre-trial or post-trial memoranda. Plaintiffs memory at trial was limited to not seeing any other vehicles when she pulled onto 1-20 and then waking up in the ambulance. Tucker testified and the accident report noted that plaintiff was traveling at a speed of 30 mph.

Appellant contends that Sgt. Hylberfs testimony about how the accident happened was inadmissible because it was based only on the hearsay statement of the defendant truck driver. An accident reconstruction expert relies on how much information and data can be gathered from an 17accident scene, the objects involved in the accident and reports about the accident. Sgt. Hylbert stated that he based his opinion on his observations of the physical evidence found at the scene, the positions of the vehicles, the damage to them and the truck driver’s statement to him. We note that the Fourth Circuit has held that expert testimony based on police accident reports was admissible, even though the police reports themselves were per se inadmissable hearsay. See, Wiley v. City of New Orleans, 2000-1544 (La.App.4 Cir.05/16/01), 809 So.2d 151, writs denied, 02-0616, 02-641 (La.05/10/02), 815 So.2d 842, 843.

The trial court qualified Sgt. Hylbert as an expert and allowed him to state, over objection, his conclusion that plaintiff was at fault. An expert who has been duly qualified may express his opinion on a given state of facts. The opposing party may, by cross-examination of the expert, elicit other facts to show that the witness’s underlying facts are not correct. As a general rule, the factual basis of an expert’s opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the expert’s opinion in cross-examination. La. C.E. art. 703; Lyons v. J.A. Auger, Inc., 35,691 (La.App.2d Cir.06/12/02), 821 So.2d 536, writ denied, 02-2337 (La.11/15/02), 829 So.2d 437. When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but rather presents a fact question as to the weight which should be assigned the opinion. Ultimately, the weight to be given expert testimony is dependant 18upon the facts on which it is based, as well as the professional qualifications and experience of the expert. Lyons, supra.

Allocation of Fault

In civil cases, a trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Holland v. State Farm Mut. Auto. Ins. Co., 42,753 (La.App.2d Cir.12/05/07), 973 So.2d 134. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra; Broussard v. Zurich American Ins. Co., 44,695 (La.App.2d Cir.09/23/09), 23 So.3d 370. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra.

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Easter v. Direct Ins. Co., 42,178 (La.App.2d Cir.05/09/07), 957 So.2d 323. Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact’s findings. Id.

Plaintiff argues that the evidence shows that defendants failed to rebut the presumption that Tucker was at fault for rear-ending her vehicle. |nA well established presumption exists that, in rear-end collisions, the following driver breached the standard of care set out in La. R.S. 32:81 and is presumed negligent. Mart v. Hill 505 So.2d 1120 (La.1987); Ebarb v. Matlock, 46,243 (La.App.2d Cir.05/18/11), 69 So.3d 516, writ denied, 11-1272 (La.09/23/11), 69 So.3d 1164.

However, a driver merging onto a limited access highway has an obligation to ensure that the movement can be made safely and shall yield the right-of-way. La. R.S. 32:123, provides, in pertinent part:

D. The driver or operator of a vehicle approaching a yield sign shall slow down to a speed reasonable for the existing conditions, or shall stop if necessary, before entering the cross walk on the near side of the intersection or, in the event there is no cross walk, at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. Having slowed or stopped in this manner, the driver shall yield the right of way ... to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard. (Emphasis added.)

See also La. R.S. 32:64, La. R.S. 32:79.

In addition, the following driver who shows that the lead driver negligently created a hazard which could not reasonably be avoided is not at fault. Ebarb, supra. This is known as the sudden emergency doctrine. Holland, 973 So.2d at 137. In the instant case, it is undisputed that Tucker rear-ended plaintiffs vehicle; however, Tucker’s testimony as well as the testimony of Sgt. Hylbert showed that Tucker had insufficient time to react to the hazard that plaintiff had created.

|10In its Reasons for Judgment, the trial court noted that “[f]rom her testimony Mrs. Dixon didn’t know how the accident occurred.” The trial court explained that plaintiff said that she did not see any vehicles at the time she merged, then she became unconscious and awoke in an ambulance delivering her to Minden Medical Center. The trial court further opined:

Mr. Tucker, [sic] testified that he was traveling the speed limit on 1-20. He saw Ms. Dixon’s van located on the on-ramp. He further testified that Ms. Dixon pulled out on 1-20 from the on-ramp with no signal nor did she yield to oncoming traffic. He put on his brakes and pulled to left [sic] but he couldn’t move over to the left because an eighteen wheeler was in the left lane. Therefore, his truck impacted the rear of Ms. Dixon’s van.

The trial court concluded that plaintiff “failed to yield and failed to observe the O’Nealgas Track while she was entering I-20.”

In making its factual findings, the trial court chose to credit Tucker’s testimony. Importantly, the trial court found that plaintiff failed to signal or yield to oncoming traffic and created a hazard which defendant could not avoid. Trooper Bas-tow did cite Tucker as being at fault in the collision; however, Sgt. Hylbert testified that he was “unable to find any evidence as to how he [Bastow] came to that conclusion.” The reason given by Trooper Bas-tow in his deposition was “I think that if he had of when he first saw her coming out would have switched lanes, [sic] there wouldn’t have been any accident.” Tucker testified that plaintiff merged suddenly, without signaling, while traveling at a precariously slow speed. He further testified Inthat he could not get over due to the presence of an semi-trailer truck in the left lane.

The trial court examined this and all other available evidence and testimony and found in favor of defendants. After a thorough review of the record, we cannot say that the trial court’s findings lacked a reasonable factual basis. Therefore, we hold that the finding was not manifestly erroneous.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of appeal are assessed against plaintiff, Bethany T. Dixon.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . At trial, counsel for plaintiff averred that in a criminal case Hylbert "would be qualified if he did do [sic] the investigation of the matter.”

        . The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. La. R.S. 32:81.

      . Plaintiff contends that there were no skid marks at the scene of the accident which would indicate that Tucker attempted to slow down before the collision. However, when asked about whether skid marks were visible at the scene, Trooper Bastow testified, "I don’t remember. I just don't recall.”