author: MAX N. TOBIAS, JR., Judge.

text:
    Melvin J. BURMASTER, et al. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2010-CA-1543.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2011.

      Eric J. O’Bell, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, Melvin J. Burmaster, Elizabeth Welsh Defley, New Orleans, LA, Mark M. Bonura, Corona & Bonura, L.L.P., Metairie, LA, John H. Smith, McKernan Law Firm, Baton Rouge, LA, for Plaintiffs and the proposed class.
    Ben L. Mayeaux, Laborde & Neuner, Lafayette, LA, Glenn G. Goodier, Richard D. Bertram, Jones Walker Waechter Poi-tevent Carrere & Denegre, L.L.P., New Orleans, LA, for Columbia Casualty Company.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

[]The plaintiffs, Donna Mumphrey Martin, Michael Martin, Lizzie A. Williams, Mitchell Meyer d/b/a Mitchell Meyer Manufacturing, and Andrew Griffin (“Plaintiffs”) appeal the trial court’s judgment granting a motion for summary judgment in favor of the defendant, Columbia Insurance Company (“Columbia”), on the basis that Columbia’s Public Officials Liability policy at issue does not afford coverage for the Plaintiffs’ alleged damages. For the following reasons, we agree and affirm the trial court’s judgment.

In April 2006, the Plaintiffs filed suit against Plaquemines Parish Government (“PPG”) for damages that occurred in the parish due to flooding during and after Hurricane Katrina. All of the damages alleged by the Plaintiffs were caused either directly by flooding, or indirectly as a consequence of flooding. Specifically, the Plaintiffs’ suit seeks compensation for individuals and business enterprises located on the east bank of Plaquemines Parish who suffered property |2damage, loss of use of property, and emotional distress as a result of the failure of “hurricane protection levees” built by PPG. According to the Plaintiffs, the hurricane protection levees failed as a result of years of neglect by PPG.

On 4 November 2009, the Plaintiffs, by way of an amending petition, added Columbia as a defendant as one of PPG’s liability insurers. Columbia issued a “claims-made-and-reported” Public Officials Liability Policy to PPG with a policy period from 26 February 2006 to 26 February 2007, which provided coverage for employment discrimination and wrongful discharge claims, in addition to certain ministerial wrongful acts that do not result in bodily injury, personal injury, or property damage.

Columbia moved for summary judgment on the grounds that (1) no claim was timely made or reported to Columbia during the policy term triggering coverage; and, (2) even if timely reported, the policy excludes coverage for the damages alleged by Plaintiffs. While pretermitting resolution of Columbia’s first grounds for summary judgment, the trial court agreed that Columbia’s policy does not provide coverage for any of the damages and injuries alleged by the Plaintiffs to have been caused by PPG’s negligence and, therefore, granted Columbia’s motion for summary judgment on 8 June 2010 dismissing the Plaintiffs’ claims against it. It is from this judgment that the Plaintiffs have appealed.

The Plaintiffs raise three issues on appeal: (1) whether Columbia’s Public Officials Liability policy issued to the PPG provides coverage for any of the items of damages allegedly sustained by the Plaintiffs as a result of the negligence of the |3PPG as pled in the Plaintiffs’ Master Petition; (2) whether the “claims made and reported” provision of Columbia’s policy is against public policy and, therefore, unenforceable under Louisiana law as against third parties due to the defendant insured’s failure to timely notify its insurer of a claim under the “Claims-Made” policy; and (3) whether summary judgment was prematurely pled and granted under the circumstances of this case.

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. R.J. Messinger, Inc. v. Rosenblum, 03-2209, p. 5 (La.App. 4 Cir. 5/11/05), 904 So.2d 760, 764. Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966 A(2). It is well-settled that a motion for summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy ... under which coverage could be afforded.” Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183.

The Plaintiffs aver the trial court erred in concluding that Columbia’s Public Official Liability policy issued to the PPG does not provide coverage for the intangible losses they claim. We disagree. The trial court was correct in determining that Columbia’s policy does not provide coverage for the intangible losses allegedly sustained by the Plaintiffs as a consequence of damage to their 1 ¿residences, commercial properties, and personal belongings resulting from flooding due to the failure of the hurricane protection levees built by the PPG.

Interpretation of an insurance policy generally involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Hebert v. Webre, 08-0060, p. 4 (La.5/21/08), 982 So.2d 770, 773. The Louisiana Civil Code provides that “[[Interpretation of a contract is the determination of the common intent of the parties.” La. C.C. art. 2045. The parties’ intent, as reflected by the words of the policy, determine the extent of coverage. Id.; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. An insurance contract must be “construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.” La. R.S. 22:881.

Words and phrases used in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd consequence. Interstate Fire, 630 So.2d at 763. “When the words in the policy is clear, unambiguous, and explicit and lead to no absurd consequences, courts must enforce the contract as written.” Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1137. Where, |showever, an insurance policy includes ambiguous provisions, the “[a]mbiguity ... must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions.” Interstate Fire, p. 6, 630 So.2d at 763 (citing La. C.C. art.2050). Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049.

If, after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Interstate Fire, p. 6, 630 So.2d at 764. In case of doubt that cannot be otherwise resolved a provision in a contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Cadwallader v. Allstate Ins. Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580. This strict construction principle applies only if the ambiguous provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must not only be susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Id. The fact that a term is not defined in the policy itself does not alone make that term ambiguous. Id., p. 4, 848 So.2d at 581; see also Am. Deposit Ins. Co. v. Myles, 00-2457, p. 7 (La.4/25/01), 783 So.2d 1282, 1287.

It is equally well-settled that subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so lfilong as the limitations do not conflict with statutory provisions or public policy. Reynolds, p. 3, 634 So.2d at 1183. Asstated by the Supreme Court in Commercial Union Ins. Co. v. Advance Coating Co., 351 So.2d 1183, 1185 (La.1977), quoting Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939):

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, not does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties....

With these often repeated principles in mind, we proceed to interpret the Columbia policy at issue herein.

The Public Officials Liability policy issued by Columbia to the PPG is a “claims-made-and-reported” policy, which primarily provides coverage for claims arising from employment practices such as employment discrimination or wrongful discharge claims, libel, and slander, in addition to certain ministerial wrongful acts. The policy terms obligated Columbia to:

[P]ay those sums that the insured becomes legally obligated to pay as compensatory civil damages arising out of a “wrongful act” to which this insurance applies.

Columbia’s policy then sets forth those claims for which the policy does not provide coverage:

2. Exclusions
This insurance does not apply to:
a.Any “claim” for “bodily injury”, “property damage” or “personal injury.”

17Section VI of Columbia’s policy defines bodily injury, personal injury, and property damage:

1. “Bodily Injury” means bodily injury, sickness, disease, emotional distress or mental anguish sustained by a person, including death and any consequential injury resulting from any of these at any time.
6. “Personal Injury” means injury or alleged injury, including emotional distress, mental anguish or any consequential injury arising out of one of more of the following:
a. False arrest, assault and battery, detention or imprisonment;
b. Malicious prosecution, abuse of process or defamation;
c. The wrongful eviction of a person by another person or organization from, or the wrongful entry into, a room, dwelling or premises that the person occupies, or other violation of the right of private occupancy;
d. Oral, written, televised or videotaped publication of material that
defames, slanders or libels a person or organization or discharges a person’s or organization’s good, products or services;
e. Oral, written, televised, or videotaped publication of material that violates a person’s right of privacy; or
f. Advertising, broadcasting, telecasting, or videotaping activities conducted by or on behalf of any insured.
7. “Property damage” means:
a. Physical injury to, or criminal abstraction of, tangible property, including all resulting loss of use, or resulting reduction in value of that property; or
b. Loss of use, or reduction in value, or tangible property that is not physically injured or criminally abstracted.

The Plaintiffs first argue that Columbia’s policy provides coverage for their claims of nonfeasance against the PPG for neglecting the maintenance of the hurricane protection levee systems on the east bank of Plaquemines Parish as the RPPG’s negligence constitutes a wrongful act as that term is defined in Columbia’s policy. Contrary to the Plaintiffs’ argument, Columbia does not contend, nor did the trial court find, that the alleged acts of negligence committed by the PPG fall outside the policy’s definition of “wrongful acts.” Rather, Columbia argued, and the trial court agreed, that the damages the Plaintiffs claimed to have sustained as a result of PPG’s alleged wrongful acts are unambiguously excluded from the policy. We agree.

Columbia’s policy expressly excludes coverage for any damages consisting of bodily injury, personal injury, or property damage. The Plaintiffs aver, however, that the exclusion upon which Columbia relies does not expressly exclude losses to “intangible property” and “intangible property rights,” and thus, as exclusions must be expressly stated to have an effect, the exclusion relied on should not apply to their claims for various forms of consequential damages, which include: stigma, inconvenience, loss of enjoyment, loss of business income, increased costs of insurance, and increased deductibles. An insurer must expressly and specifically exclude a particular loss or claim from coverage, so that “ ‘[a]ny exclusion from coverage in an insurance policy [is] clear and unmistakable.’ ” Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987). That an exclusion could have been worded more explicitly, however, does not necessarily deem it ambiguous. See Interstate Fire, 630 So.2d at 766 (“[T]hough ... the Interstate policy could have more clearly delineated its payment obligation, ‘that fact does not mandate the conclusion that the policy was legally ambiguous.’ ”)

19In short, the Plaintiffs argue that because Columbia could have more explicitly excluded losses to intangible property but did not, their failure to do so results in coverage for the intangible property losses they claim. The trial judge did not agree with this contention and neither do we. All damage to or destruction of tangible property, such as a residence or business, is excluded from coverage, and we find that such necessarily includes those losses enumerated by the Plaintiffs. Specifically, we find that all of the Plaintiffs’ alleged intangible property losses were caused by flood water damage sustained to their homes, businesses, and personal belongings, ie. damages to tangible property, and/or constitute a resulting loss of use or resulting reduction in value of that tangible property, which is unambiguously excluded from coverage under Columbia’s policy. We agree with Columbia that “stigma” damage is nothing more than a “reduction in value” of the tangible property; “loss of enjoyment” is merely a component of “loss of use;” and, “loss of business income” is the measure of damages for the “loss of use” of commercial property. Regarding recovery for damages consisting of increased insurance premiums and/or increased insurance deductibles, we agree with our brethren on the First, Third and Fifth Circuits that, as a matter of policy, in Louisiana, the established limitations on the extent of damages for which a tortfeasor is liable encompasses the recovery of increased insurance premiums and deductibles. See Nikolaus v. City of Baton Rouge/Parish of East Baton Rouge, 09-2090, pp. 5-6 (La.App. 1 Cir. 6/11/10), 40 So.3d 1244, 1248; Louisiana Swabbing Service, Inc. v. Enterprise Products Co., 00-1161, p. 3 (La.App. 3 Cir. 5/2/01), 784 So.2d 862, 865; Severn Place Associates v. American Bldg. Services, Inc., 05-859, p. 8 (La.App. 5 Cir. 4/11/06), 930 So.2d 125, 129. Even if we were to determine that increased insurance premiums and deductibles were recoverable losses in Louisiana, we find that these losses are simply another way to measure the property’s loss of value.

Further, we find the cases cited by Columbia, which include decisions interpreting similar exclusionary language in Public Official Liability policies issued to governmental entities responsible for flood protection indicating that such policies do not cover bodily injury or property damage caused directly or as a consequence of flooding, to be instructive. In In re Katri na Canal Breaches Consolidated Litigation, 2008 WL 4091033 (E.D.La.2008), the court considered whether a similar Public Official Liability policy issued to East Jefferson Levee District by National Union Fire Insurance Company provided coverage for certain bodily injury and property damage allegedly sustained by the plaintiffs in those consolidated class actions. Similar to the Columbia policy at issue herein, National Union’s policy was a claims-made-and-reported policy with exclusions for bodily injury and property damage. Ruling the exclusions to be unambiguous and enforceable, the court stated:

Simply put, [the bodily injury and property damage exclusionary] provision is not susceptible to two different interpretations. While these provisions certainly greatly restrict the coverage provided under the policy of insurance, the Court is constrained to apply its terms as written.

In re Katrina, 2008 WL 4091033, p. 8.

In Chicago Property Interests v. Broussard, 08-526 (La.App. 5 Cir. 1/13/09), 8 So.3d 42, which dealt with a similar Public Officials and Employees Liability policy with National Union Fire Insurance Company of Pittsburgh, PA, |nthe plaintiffs sought recovery for damages, including increased living expenses, displacement costs, loss of income, lost profits, lost business opportunities, and inconvenience. Exclusion (d) of the policy excluded damages for bodily injury and property loss. The plaintiffs argued that Exclusion (d) was illusory since it essentially excluded all people and all things from any coverage whatsoever. The court, while not unmindful of the fact that the policy provided coverage for a “seemingly minute variety of ‘Wrongful Acts’ by public officials,” opined that one category of damages that would arguably not be excluded by National Union’s policy would be purely economic damages:

For example, were the plaintiffs to allege that the parish president arbitrarily and capriciously failed to reopen the parish after public services had been restored, the plaintiffs could argue that they suffered a loss of business opportunity, assuming that they suffered no property damage.

Chicago Property, 08-526, pp. 10-11, 8 So.3d at 49. Accordingly, the appellate court affirmed the trial court’s grant of summary judgment concluding that the plaintiffs’ damages were excluded from coverage. Id.

In Winesberry v. West Jeff. Levee District, 620 So.2d 385 (La.App. 5 Cir.1993), a case arising out of flood damages occurring as a result of Hurricane Juan, property owners sued the Levee District’s public officials liability insurer for property damages including “loss of resale value” of their homes. The policy, similar to Columbia’s in the instant case, also excluded coverage for property damage defined as “damage or destruction of any tangible property including loss of use thereof.” The plaintiffs argued that because the policy’s definition of property damage did not specifically enumerate loss of resale value, then such losses were not excluded. After reviewing the policy, the court rejected the | ^plaintiffs’ argument and determined that the property damage exclusion excluded coverage for all the damages claimed by the plaintiffs, including the claims for loss of resale value:

All damage to or destruction of tangible property, such as a residence, is excluded from coverage, and that would necessarily include loss of resale value.

Winesberry, 620 So.2d at 388.

We agree with the rulings of the In re Katrina, Chicago Property, and Winesberry courts and hold that, in the instant ease, the Columbia policy excludes coverage for all intangible losses claimed by the Plaintiffs as these damages emanated from or resulted as a consequence of the injury to the Plaintiffs’ tangible property (which is expressly excluded from coverage). In short, without injury to the Plaintiffs’ residences, businesses, and personal belongings (tangible property) due to flooding when the levees were breached, the Plaintiffs would not have sustained any resulting stigma, inconvenience, loss of enjoyment, increased premiums and/or deductibles and/or loss of business income damages (intangible property) as they claim.

We further find no merit in the Plaintiffs’ argument their alleged “emotional, psychological, and intellectual injuries” are not excluded because these alleged claims do not specifically fall within the policy’s definition of excluded “personal property.” We find that these injuries, if experienced, emanated as a result of the damage to Plaintiffs’ property caused by flooding in Hurricane Katrina. Consequently, we find these claims are also excluded under the policy’s definitions of the “bodily injury” and “property damage” exclusions.

In their remaining two assignments of error, the Plaintiffs contend that the “claims-made-and-reported” provision of Columbia’s policy violates Louisiana 11slaw and is unenforceable, and that Columbia’s motion for summary judgment was filed prematurely because the Plaintiffs were not given enough time to complete discovery on this particular issue. In its written Reasons for Judgment, the trial court stated:

In the interest of thoroughness, if this matter were to be decided based on the “claims made and reported issue,” the Court would probably defer action of this exception and allow Plaintiffs time for further discovery. However, the Court is of the opinion that this exception should be decided based on the coverage issue....

Because the trial court obviously preter-mitted consideration of the “claims made and reported” issue, we agree with Columbia that this issue is not properly before us on appeal and we are, therefore, precluded from addressing it. This assignment of error is without merit.

Regarding the Plaintiffs’ contention that there was insufficient discovery to support the trial court’s granting of summary judgment in favor of Columbia, we disagree. The trial court granted summary judgment in favor of Columbia solely on the basis that the claims asserted by the Plaintiffs were excluded from coverage under the terms of the policy issued by Columbia to PPG. Whether the policy unambiguously excludes coverage for the damages claimed is solely a question of law to be decided from the four corners of the policy and is therefore appropriate for summary disposition. See Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1029; see also La. C.C.P. art. 966 A(1). The Plaintiffs’ argument that additional discovery was needed relates to their proposed issue of the enforceability of the “claims-made-and-reported” provision of Columbia’s policy, an issue preter-mitted by the trial court. No additional discovery by the parties was needed in order for the trial court to resolve the purely legal issue of coverage 114under Columbia’s policy. Consequently, this assignment of error is also without merit.

CONCLUSION

Columbia’s motion for summary judgment was properly granted. No genuine issue of material fact as to coverage exists. A comprehensive review of the Plaintiffs’ original, supplemental, and class action petitions reveals that every category of damages the Plaintiffs allege directly or indirectly had its origin in the passage of Hurricane Katrina and the subsequent tangible property damage and bodily harm allegedly suffered by the Plaintiffs. For example, if a putative plaintiff suffered a loss of business income or stigma, it was because his personal or commercial property was directly or indirectly damaged in the flood that followed Hurricane Katrina. We conclude that the plain, ordinary interpretation of the wording set forth in Exclusion (a) of Columbia’s policy and the definitions for “bodily injury” and “property damage” are sufficient to unambiguously exclude all of the damages alleged by the Plaintiffs, including emotional distress, inconvenience, stigma, increased insurance costs and deductibles, loss of business income, and loss of enjoyment. We find the Plaintiffs failed to point to any specific element or item of their claimed damages resulting from the negligence of the PPG that would be covered under the terms and conditions of Columbia’s policy.

AFFIRMED.

      .These five Plaintiffs suing individually, and on behalf of the proposed class, were substituted for the original plaintiff, Melvin J. Bur-master, who is also counsel in this matter. The Plaintiffs are putative class members suing for injuries caused by flooding that occurred in Plaquemines Parish during and in the aftermath of Hurricane Katrina, and thereafter, by re-flooding due to Hurricane Rita. The proposed class members allegedly sustained property damage and bodily injuries as a result of the failure of the hurricane protection system.

      . Various supplemental and amended petitions have been filed during the course of this litigation, which among other things, added class allegations. To date, a class has not been certified.

      . Examples of these ministerial acts include: unlawful or arbitrary zoning decisions, improperly awarding or failing to award public contracts, and violations of public bid laws or procedures.

      . Examples of ministerial wrongful acts afforded coverage under Columbia’s policy include unlawful or arbitrary zoning decisions, violations of public bid laws, et cetera, that do not result in bodily injury, personal injury, or property damage.

      . Columbia’s policy, Section VI — Definitions, defines "wrongful act,” in pertinent part, as "any actual or alleged error or misstatement or act or omission or neglect or breach of duty, including misfeasance and nonfeasance, by the individual insureds in the discharge of their duties with the "public entity,” individually or collectively, or in any matter to which this insurance applies claimed against them solely by reason of their having been duly elected or appointed officials....”


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Dr. John SANDOZ & Kathleen Sandoz v. Jessie BOURGEOIS and State Farm Fire and Casualty Company.
    No. 10-CA-859.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2011.
    Writ Denied June 17, 2011.

      Caleb H. Didriksen, III, Diane R. Co-senza, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Roberto R. Arostegui, Attorney at Law, Metairie, LA, for Defendant/Appellee (GEICO General Insurance Company).
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12This appeal arises from the granting of a motion for summary judgment involving an automobile accident in favor of Defendant/Appellee, Geico General Insurance Company (“Geico”), and against Plaintiffs/Appellants, Dr. John Sandoz (“Dr. Sandoz”) and Kathleen Sandoz (“Mrs. San-doz”), from the 24th Judicial District Court, Division “F”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, on June 20, 2007, Mrs. Sandoz was traveling southbound on Causeway Boulevard and was approaching the intersection of Causeway Boulevard and 49th Street in Metairie, Louisiana, in a 2006 BMW M-5. As Mrs. Sandoz was approaching 49th Street, Mr. Jessie Bourgeois (“Mr. Bourgeois”) was traveling westbound on 49th Street. Mr. Bourgeois failed to yield, as directed by the yield sign, and illegally entered Mrs. Sandoz’s lane. As a result, Mrs. Sandoz struck the passenger side of Mr. Bourgeois’s vehicle. The car Mrs. Sandoz was driving, which belonged to her and her husband, Dr. Sandoz, incurred extensive damage as a result the accident. Mr. Bourgeois was cited for failure to yield. On the date of the accident, Mr. Bourgeois was insured by State Farm [Mutual Automobile Insurance Company (“State Farm”). Plaintiffs had a collision and UM7 UIM (uninsured motorist/underinsured motorist) policy with Geico for their car on the date of the accident.

Mr. Bourgeois’s policy with State Farm covered both the cost to repair physical damage to property and the diminution in value of the property that resulted from the physical damage. The policy was subject to a $25,000.00 policy limit. State Farm arranged for Plaintiffs to take their car to Jay’s Body Shop for repairs. The car was repaired, and the bill of $16,272.00 was paid by State Farm on or about July 24, 2007. Subsequently, State Farm paid the remainder of the $25,000.00 policy limit to Plaintiffs in the form of a $7,386.89 check for diminution in value of the car. After taking delivery of the car from the body shop, Plaintiffs traded it in for a new vehicle and found there was a diminution in value of approximately $40,000.00 of the BMW.

On June 16, 2008, Plaintiffs filed a petition for damages against Mr. Bourgeois and State Farm seeking to recover for property damage to their car and personal injuries. On November 14, 2008, Plaintiffs amended their petition to add Geico as a defendant with respect to the personal injuries sustained by Mrs. Sandoz and the physical damage to the car. On June 10, 2009, Plaintiffs settled their claims against Mr. Bourgeois and State Farm upon the receipt of the remainder of the policy limit for the State Farm policy.

On June 17, 2010, Geico filed a motion for summary judgment asserting the general policy indicates that the policy obtained by Plaintiffs excludes diminution in value claims for first party claimants. Additionally, Geico asserted the UM/UIM coverage is excluded for diminution in value claims. On July 19, 2010, Plaintiffs also filed a motion for summary judgment asserting Mr. Bourgeois was underinsured and coverage was triggered under their Geico policy for their | remaining uninsured losses.

A hearing for the motions for summary judgment was held on August 2, 2010. The trial court granted Geico’s motion and dismissed all property damage and diminution in value claims of Plaintiffs with prejudice on August 11, 2010. Conversely, Plaintiffs motion was denied by the trial court. Plaintiffs filed the instant devolu-tive appeal from the trial court’s granting Geico’s motion for summary judgment.

ISSUES PRESENTED FOR REVIEW

On appeal, Plaintiffs allege the trial court erred when it dismissed their claims against Geico for physical damage to their BMW because 1) they did not receive double recovery or a windfall when State Farm provided the payment for the repair bill, and 2) their car was not restored to its pre-collision condition, which permits recovery of diminution in value under their policy provisions.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. State ex rel. Dept. of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, 07-167, p. 4 (La.App. 5 Cir. 10/30/07); 971 So.2d 1163, 1164, writ denied, 07-2304 (La.1/25/08); 973 So.2d 761. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., citing Hines v. Garrett, 04-0806, p. 1 (La.6/25/04); 876 So.2d 764, 766.

|sThe mover in a motion for summary judgment bears the burden of proof; however, the mover needs only 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 ...” Fossier v. Jefferson Parish, 07-926, p. 9 (La.App. 5 Cir. 4/15/08); 985 So.2d 255, 259, citing LSA-C.C.P. art. 966(C)(2). If a defendant moving for summary judgment has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 7 (La.2/20/04); 866 So.2d 228, 233.

Plaintiffs argue there has been no double recovery or a windfall to them that would allow Geico to avoid its promise to provide collision coverage on the grounds that another insurance company has arranged for the repair of their car. Plaintiffs aver that their collision policy covers the accident and the damage incurred from it within the definitions of “collision” and “loss” provided in the policy. Plaintiffs further aver that there is no exclusion in the collision policy for physical damage that results from the negligence of a tort-feasor, such as Mr. Bourgeois.

Plaintiffs also argue that State Farm’s payment to Jay’s Body Shop in satisfaction of the cost to repair cannot operate as a waiver of their rights to Geico’s policy, and they never released Geico from its policy obligations. Plaintiffs contend an insurance policy is a contract of indemnity between the insured and the insurer and must be interpreted in accordance with Louisiana’s general rules of contract interpretation. Because Plaintiffs allege the Geico policy has ambiguous provisions, they contend the provisions must be construed in favor [ fiof coverage for diminution in value to their 2006 BMW M-5.

Geico argues that Plaintiffs do not have a collision claim because their vehicle was repaired to its pre-damage condition. Gei-co asserts that State Farm made a payment to Jay’s Body Shop in the amount of $16,272.00 solely for the total repair costs necessary to restore Plaintiffs vehicle to its pre-damage condition. As a result, Geico asserts that Plaintiffs do not have a valid collision claim against it, and the only remaining property damage claim that Plaintiffs can assert is for diminution in value. Additionally, Geico argues the language of the policy clearly and unambiguously excludes diminution in value claims for first party claimants, such as Plaintiffs.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03); 848 So.2d 577, 580. If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Id. at 4. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Cadwallader v. Allstate Ins. Co., 02-1637 at 3, 848 So.2d at 580.

In the instant matter, the “Collision” section of Geico’s “Louisiana Family Automobile Insurance” policy provides, in pertinent part, “1. We will pay for collision loss to the owned or non-owned auto for the amount of each loss less the applicable deduction.” (Emphasis in original). Under the “LIMIT OF LIABILITY” section, it provides, in pertinent part,

The limit of our liability for loss:

1. is the actual cash value of the property at the time of the loss;
2. will not exceed the cost to repair or replace the property, or any of its parts, with other of like kind and quality and will not include compensation for any diminution in the property’s value that is claimed to result from the loss;
Actual cash value of property will be determined at the time of the loss and will include an adjustment for depreciation/betterment and for the physical condition of the property. (Emphasis in original).

Subsequently, under “PAYMENT OF LOSS” section, the policy provides, “We may at our option: (a) pay for the loss; or (b) repair or replace the damaged or stolen property.” (Emphasis in original).

Here, Plaintiffs chose file a claim with State Farm to have the repair work completed for the damage done to their car. State Farm selected a repair shop (Jay’s Body Shop), and Plaintiffs acquiesced in having their car repaired by State Farm at that particular shop by presenting their car for repairs. State Farm presented payment in full to the repair shop for the repair work completed. Geico was not involved at any point in that repair process.

Although Plaintiffs did not sign a waiver releasing Geico from covering any of the physical damage, they effectively removed Geico’s options to pay for the loss by pursuing a claim with State Farm. As a result, Geico was not presented with the option to decide how to handle a claim, e.g., pay for the loss or repair or replace the damaged property. The repair work had already been completed on the car before Plaintiffs filed a claim. Plaintiffs’ actions, basically, waived their right to question whether or not the physical damage to their car would have been covered under Geico’s policy.

In regards to Plaintiffs’ assertion that the policy covers the diminution in value for their car, Geico limited its liability to Plaintiffs through the clear and 1 ^unambiguous language in the policy. Under the “LIMIT OF LIABILITY” section of the policy, it clearly states it “will not include compensation for any diminution in the property’s value that is claimed to result from the loss.” Plaintiffs had their car repaired by State Farm to its pre-collision condition prior to filing their claim with Geico. The only claim Plaintiffs had remaining was diminution in value, not property damage. Plaintiffs cannot receive that compensation from Geico because it is not covered under the policy. To find in favor of Plaintiffs would enlarge the provisions of the policy beyond what is reasonably contemplated by unambiguous terms.

DECREE

Based on the foregoing reasons, the judgment of the trial court granting Gei-co’s Motion for Summary Judgment is affirmed. Plaintiffs are assessed the costs of this appeal.

AFFIRMED


author: DANIEL L. DYSART, Judge.

text:
    Robert L. MANTON and Janet F. Manton v. The AUDUBON NATURE INSTITUTE, INC., Travelers Insurance Company and Melvin Pepp, Jr.
    No. 2010-CA-1547.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 2011.

      William M. Magee, Magee & Associates, Covington, LA, for Plaintiffs/Appellants.
    Joseph E. Lee III, Preis & Roy, APLC, New Orleans, LA, Edwin G. Preis, Jr., Preis & Roy, APLC, Lafayette, LA, for Appellee, Westchester Surplus Lines Insurance Company.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| plaintiffs, Robert and Janet Mantón, appeal the grant of a partial summary judgment in favor of defendant, Westchester Surplus Lines Insurance Company. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

Robert Mantón was rear-ended at a red light by a vehicle being driven by defendant, Melvin Pepp, Jr., who, at the time of the accident, was in the course and scope of his employment with defendant, The Audubon Institute (“Audubon”). Audubon was insured under a primary insurance policy issued by Travelers Indemnity Company of America (“Travelers”), and an excess policy issued by Westchester Surplus Lines Insurance Company (“Westches-ter”). The Travelers policy provided coverage to Audubon and Pepp up to $1 million. The policy contained no exclusion for punitive damages. The Westchester policy provided an additional $25 million in coverage after the policy limits of the primary Travelers ^policy were exhausted. The Westchester policy contained an exclusion for punitive damages.

Plaintiffs settled with Pepp, Audubon and Travelers for $750,000. The confidential settlement agreement, which was obtained by Westchester through discovery and entered into the record, contains no language to indicate that any portion of the $750,000 was to be considered compensation to the plaintiffs for punitive damages.

Counsel for plaintiffs sent a letter on June 24, 2009, to counsel for Audubon transmitting the settlement documents signed by the plaintiffs, with copies to the other settling defendants. The letter stated in part:

I wanted to confirm our position regarding this settlement and remaining claims. During the mediation and in subsequent discussions with the mediator which ultimately resulted in this settlement, we conveyed our position that since the Traveler’s policy covered punitive damages, the settlement with Traveler’s had to include that portion of the claim up to the $1,000,000.00 policy limit. Depending on the amount ultimately obtained for punitive damages, it would be covered in whole or in part by the settlement with Travelers, since the West-chestire [sic] policy excludes punitive damages. While I know Travelers was uncomfortable including language in the release that reflected this position, I felt it best to memorialize our position in writing so there would be no question as to what our position is in this regard.

Upon learning of plaintiffs’ position with regard to the lawsuit against it, Westches-ter filed the subject motion for partial summary judgment. Westchester moved to have the trial court declare improper plaintiffs’ plan to claim that punitive damages were recovered from the Travelers’ policy, thereby allowing plaintiffs to give Westchester credit for less than the full primary limits of the Travelers’ policy.

1 sAfter a hearing, the trial court granted Westchester’s motion for partial summary judgment. The judgment was designated as a final, appealable judgment, but no reasons for the certification. This appeal followed.

LAW AND ANALYSIS:

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant. Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. 25 (La.2/26/08), 977 So.2d 859, 876; Suire v. Lafayette City-Parish Gov’t, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. It is well-settled that summary judgment procedure, as set forth in Louisiana Code of Civil Procedure art. 966, is designed to secure the just, speedy, and inexpensive determination of actions. La.Code Civ. Proc. art. 966 A(2). Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Yokum, 07-1785, p. 25, 977 So.2d at 876; Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. Additionally, as in this case, where the district court does not give reasons for certifying a judgment as final and appealable under La. Civ.Code art. 1915, the appellate court must review the decision to do so de novo. R.J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122.

|4In their first assignment of error, plaintiffs argue that the trial court erred in granting Westchester’s summary judgment because the very nature of the dispute required the trial court to give an advisory opinion. Put another way, the matter was not ripe for adjudication. Plaintiffs contend that because punitive damages have not been awarded (the case has not yet gone to trial), the trial court is merely speculating that punitive damages might be awarded, and by its ruling is precluding plaintiffs from recovering punitive damages.

Westchester contends that the plaintiffs’ “scheme” to deprive it of the full credit of $1 million afforded under the primary policy is contrary to law. According to Westchester, the letter sent by plaintiffs’ counsel to counsel for Audubon Institute, indicates that plaintiffs’ intended to claim that punitive damages should be deducted first from the primary policy. Any balance remaining of the $1 million policy limits would then be allocated to compensatory damages. This would allow plaintiffs to recover a greater amount from Westchester. In doing so, plaintiffs would deprive Westchester of the full credit for the underlying $1 million Travelers’ policy.

The settlement agreement between plaintiffs’ and Audubon, its employee, and Travelers states that the “Agreement is an integrated agreement, containing the entire understanding among the parties, ... and, except as set forth in this Agreement, no representations, warranties, or promises have been made or relied upon by the parties to this Agreement. This Agreement shall prevail over prior communications between the parties or their representatives regarding the matters contained herein, whether written or oral.” (emphasis added.) Thus, the letter sent by plaintiffs’ counsel to counsel for Audubon, transmitting the settlement documents signed by plaintiffs’ and their counsel, can have no effect.

| sWestchester analogizes the present case to ones involving uninsured/underin-sured motorist coverage. The basic premise established in those cases is that a plaintiff must establish his entitlement to compensatory damages, and, most importantly, those damages must exhaust the underlying limits of the primary policy, before he can recover from an excess carrier. See Abshire v. Desmoreaux, 07-626 (La.App. 3 Cir. 11/7/07), 970 So.2d 1188; Malbreaugh v. CNA Reinsurance Co., 03-2088 (La.App. 1 Cir. 9/17/04), 887 So.2d 494; Medice v. Ruiz, 02-0894 (La.App. 4 Cir. 2/5/03), 841 So.2d 842.

We agree with this rationale. The Ab-shire, Malbreaugh and Medice cases are clear that the underlying insurance policy limits must first be exhausted by application of compensatory damages before punitive damages may be applied. Plaintiffs argue that the cited cases are distinguishable because this case does not involve automobile insurance. However, in our view, the premise is the same: uninsured/underinsured coverage does not apply until the primary policy is exhausted, and in this case, excess insurance coverage does not apply until primary coverage is exhausted. We find no merit to plaintiffs’ argument.

Plaintiffs’ second assignment of error is that the trial court erred in prohibiting them from presenting any evidence of punitive damages to the jury and having the jury or trial court then allocate an amount of such damages to the underlying Travelers’ policy that covered such damages.

First, we do not 'agree that the trial court’s ruling precludes plaintiffs’ from seeking punitive damages. This case can proceed to trial and a determination of damages, compensatory and/or punitive, can be made; the partial summary judgment will not affect the adjudication of damages. The complained of | (judgment makes no mention of presentation of evidence. Clearly, if plaintiffs wish to present evidence of punitive damages, they are free to do so.

Second, the prohibition of which plaintiffs’ speak, if indeed any exists, was created by plaintiffs’ settlement with Travelers, the insurer whose policy provided for punitive damages. Should the trier-of-fact make an award of punitive damages, it is plaintiffs’ actions that will preclude monetary recovery for those damages, not the trial court’s grant of summary judgment.

CONCLUSION:

After a de novo review, this Court concludes that summary judgment in favor of Westchester was appropriate. Thus, for the reasons assigned, we affirm the judgment of the trial court.

AFFIRMED

      . Mr. Pepp was charged and pled guilty to driving while under the influence in connection with the subject accident.

      . The Louisiana Workers Compensation Corporation ("LWCC”) intervened in the lawsuit and was a party to the settlement agreement.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Marquez A. HOLAND.
    No. 2010-KA-0325.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John T. Fuller IV, John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

Bin this criminal case, the defendant, Marquez Holand, seeks review of his conviction for possession of heroin and the related sentence. The sole issue presented is whether the district court erred in finding that Mr. Holand failed to establish a prima facie case of racial or gender discrimination by the State in exercising its peremptory challenges to exclude ten African-American prospective jurors— nine of whom were women — in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); or both. See also La.C.Cr. P. art. 895. For the reasons that follow, we find Mr. Holand established a prima facie case and thus remand to the district court with instructions.

STATEMENT OF THE CASE

On August 15, 2007, the State filed a bill of information charging Mr. Holand with possession with intent to distribute heroin, a violation of La. R.S. 40:966(A)(1). On September 21, 2007, he was arraigned and pled not guilty. On January 23, 2008, the district court found probable cause and denied Mr. Holand’s motion to suppress. On April 2, 2009, Mr. Holand’s first trial commenced and a mistrial was declared. On April 28, 2009, Mr. Holand’s second motion to suppress was denied.

On August 3, 2009, Mr. Holand’s second trial commenced, and a twelve-person jury was selected. The jury was selected from two panels. After the first panel was selected, the State urged a reverse-Batson challenge to Mr. Holand’s use of his peremptory challenges to strike Caucasian jurors. Although the district court did not expressly rule on whether the State had established a prima facie case, defense counsel proffered race-neutral reasons for his strikes. The second panel was then seated, and the voir dire process continued. After the parties submitted their challenges, the State again urged a reverse-Batson challenge, and defense counsel proffered race-neutral reasons for his strikes. Defense counsel then urged a Batson (or J.E.B.) challenge to the State’s use of its peremptory challenges to strike African-American (and women) jurors. The district court found that defense counsel failed to establish a prima facie case of discrimination and denied the objection. The State was therefore not required to proffer race (or gender) neutral reasons for its strikes.

On August 4, 2009, the presentation of evidence commenced. The State called four witnesses: Sergeant Kevin Imbragug-lio; Detective Timothy Bender; Special Agent James Hurley, Jr.; and Special Agent Jason Quick. After the State rested, the defense called three witnesses: Re-teika Holand, Mr. Holand’s sister; Brandon Barnes, Mr. Holand’s neighbor; and Mr. Holand. The jury found Mr. |sHoland guilty of the responsive verdict (lesser included offense) of possession of heroin.

On August 27, 2009, the district court denied Mr. Holand’s motion for new trial, and sentenced him to serve seven and one-half years at hard labor. On September 2, 2009, the district court denied Mr. Ho-land’s motion to reconsider sentence. This appeal followed.

STATEMENT OF THE FACTS

On June 14, 2007, Sergeant Imbraguglio established surveillance of a residence on South St. Patrick Street. Mr. Holand, who was the target of a narcotics investigation, resided at the residence. That morning, Sergeant Imbraguglio observed Mr. Holand exit his residence, proceed to the corner of South St. Patrick Street and Baudin Street, and engage in an apparent hand-to-hand exchange. Based on his observations, Sergeant Imbraguglio obtained a search warrant for Mr. Holand’s residence. That afternoon, he executed the warrant with the assistance of several members of the New Orleans Police Department (“NOPD”) and the Federal Bureau of Investigation (“FBI”).

When the warrant was executed, the officers found Mr. Holand and his girlfriend in the bedroom of the residence and advised them of their rights. Mr. Holand showed the officers a cigar box that contained approximately a quarter ounce of raw, uncut heroin and numerous small foils containing heroin. A digital scale and $147 in cash were located in the bedroom. FBI Special Agent Hurley | recovered 127.8 grams of uncut heroin behind a fireplace in the living room. No weapons were found.

Detective Bender identified a four-page, handwritten statement that he took from Mr. Holand. According to Detective Bender, Mr. Holand voluntarily gave the statement on the date of his arrest at his kitchen table. Detective Bender explained that he handwrote the statement out himself because Mr. Holand was very upset. Detective Bender identified Mr. Holand’s initials at the bottom of each page and his signature on the last page of the dated statement. The majority of the questions Detective Bender asked Mr. Holand concerned Henry Cargo. Mr. Cargo was the father of Mr. Holand’s nephew; Mr. Ho-land’s sister, Reteika Holand, and Mr. Cargo had a child together. Sergeant Im-braguglio identified Mr. Cargo as a major drug dealer in the Holly Grove (Pidgeon-town) area. In his statement, Mr. Holand stated that the heroin recovered behind the fireplace belonged to Mr. Cargo and that the other heroin recovered belonged to him. Mr. Holand denied selling any drugs.

At trial, Mr. Holand denied making, signing, or initialing the statement Detective Bender identified. He also denied selling drugs. He explained that he had a modest lifestyle and owned neither a car nor expensive possessions. He further explained that he earned a living breeding animals — American pit bull terriers, American Stafford Chanteres, and Bionic Reptiles. He admitted that he |shad prior convictions for possession of stolen property, possession of a concealed weapon, and possession of marijuana.

Mr. Barnes, Mr. Holand’s next door neighbor, testified that he was home when the police executed the search warrant. According to Mr. Barnes, the police required him to stay outside on his porch during the search. While outside he saw a police officer exit the back of the house carrying a box similar to the one introduced at trial and heard an officer say, “We got him now.”

Reteika Holand, Mr. Holand’s sister, testified that at the time of her brother’s arrest she was a student at Delgado University. On the day of the arrest, she went to her brother’s apartment after her 10:15 a.m. class ended; and she stayed there until 1:30 p.m. She denied seeing her brother selling drugs. Thereafter, she learned from Mr. Cargo — as noted, she and Mr. Cargo had a child together — that her brother had been arrested. In response to the question whether Mr. Cargo had access to her brother’s apartment, she replied: “Yes, I have a key.”

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENTS OF ERROR

Mr. Holand raises two assignments of error on appeal both of which related to the State’s alleged Batson (or J.E.B.) violation. He contends that he was denied his constitutional right to due process when the State was permitted to exclude African-Americans from serving on the jury. He further contends that the district court erred in finding that he did not make a prima facie showing of racial discrimination and in failing to require the State to provide race neutral reasons for its exclusion of African-American females from serving on the jury in his trial in violation of his Fourteenth Amendment right to due process and Batson, supra.

Equal protection prohibits the peremptory challenge of a prospective juror based on race. Batson, supra. Holding that the equal protection likewise prohibits the peremptory challenge of a prospective juror based on gender, the Supreme Court in J.E.B., supra, extended the principles enunciated in Batson to gender.

In Batson, the United States Supreme Court adopted a three step process for determining whether a prosecutor has exercised a peremptory challenge in a racially discriminatory fashion. The defendant first must demonstrate a prima facie case of purposeful discrimination (step one). Once the defendant establishes a prima facie case of discrimination, the burden shifts to the prosecutor to give race-neutral reasons for the peremptory challenges (step two). After the prosecutor has presented his reasons, the trial court must assess the weight and credibility of the explanation to determine whether the defendant has met the ultimate burden of proving purposeful discrimination (step three). Batson, 476 U.S. at 93-95, 106 S.Ct. 1712. The same three step process applies in addressing an alleged J.E.B. violation.

The instant appeal involves only step one: whether Mr. Holand made a prima facie case of a Batson (or J.E.B.) violation. Step one “places a burden of production or of ‘going forward’ on the defendant.” State v. Green, 94-0887, p. 24 (La.5/22/95), 655 So.2d 272, 287. Stated otherwise, the burden of proof is on the defendant to show that the prosecutor exercised peremptory challenges to remove members of a particular race (or gender) from the jury venire. If the defendant fails to make out a prima facie case, the Batson challenge fails; and the State is not required to provide race-neutral reasons for the exercise of its peremptory challenges. Green, 94-0887 at p. 24, 655 So.2d at 287-88.

The three factors required to establish a prima facie case of discrimination are: (1) the prosecutor’s challenge was directed at a member of a cognizable group; (2) the prosecutor’s challenge was peremptory (as opposed to for cause)(“peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate’ ”); and (3) the circumstances are sufficient to allow an inference to be made that the prosecutor struck the veni-re member based on his or her race. State v. Myers, 99-1803, p. 4 (La.4/11/00), 761 So.2d 498, 501 (quoting Batson, 476 U.S. at 96, 106 S.Ct. 1712).

The sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Green, 94-0887 at p. 24, 655 So.2d at 287. The defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy his initial burden of proving a prima | ¡facie case of discrimination. As the Louisiana Supreme Court outlined in Green, supra:

Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

Green, 94-0887 at p. 24, 655 So.2d at 288. Although in Batson the Supreme Court did not define in detail what constitutes a pri-ma facie case, it noted that it had “confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. 1712.

With these principles in mind we address the issue presented in this appeal of whether Mr. Holand presented a prima facie case of racial (or gender) discrimination so as to require the prosecutor to respond with race (or gender) neutral reasons for the strikes.

During the voir dire proceedings, the State used a total of eleven peremptory challenges. After the first panel was examined, the State used a total of five peremptory challenges to strike three African-American women, one African-American man, and one Caucasian man. After the second panel was examined, the State used a total of six peremptory challenges to strike six African-American women. After each side exercised their peremptory challenges, the State re-urged 19its revers e-Batson challenge. At the district court’s suggestion, defense counsel offered race-neutral explanations for its challenges. Defense counsel then asserted a Batson (or J.E.B.) challenge against the State’s use of its peremptory challenges. In response, the district court verified the race (and gender) of the eleven prospective jurors the State had struck. The following colloquy between the Court and defense counsel (Mr. Fuller) ensued:

By the Court:
Well after checking the cuts by the State, with the exception of [Juror # 1], who is a white male — with that exception — it’s not everybody. [Juror # 1] is a white male, so it’s not everybody. That’s the Court’s ruling.
By Mr. Fuller:
What is?
By the Court:
It’s not everybody, Counselor?
By Mr. Fuller:
Note my objection.
By the Court:
The jury is composed of numerous people of numerous races and numerous genders.
By Mr. Fuller:
But the State has elected to excuse one black male and ten [ (sic) ] black women and one white male.
By the Court:
|,nOnce again, the Court finds that the Defense has not established a prima fa-cie case.
By Mr. Fuller:
They don’t have to use all of their strikes on the same race, but if they use an unjustifiable number on one race and one sex, which they have — they have used eleven strikes and out of those eleven, nine are black women.
By the Court:
The Court finds that Defense has not established a prima facie case in contravention of Batson. There are cross gender jurors, albeit minimal, there are cross gender jurors.
By Mr. Fuller:
Your Honor, at least in the second panel, you should question them about the ones in the second panel because the second panel was one hundred percent black women. The panel consisted of half and half, including males and females and the State elected to use all of their strikes on black women. And, Your Honor, they haven’t been asked for reasons.
By the Court:
We’re going to close this out. We have to get back outside. My ruling stands.

The record contains a complete transcript of the voir dire proceedings, but it is devoid of any indication of the race (or the gender) of either the venire or the jury that was ultimately impaneled. The lack of this numerical data from the record renders it difficult to determine whether the district court correctly found that Mr. Holand failed to establish a prima facie case of discriminatory intent. The overall racial (or gender) composition of the venire and the jury ultimately seated |nis a significant factor often considered in determining whether a prima facie case has been established because it provides a “point of reference.” Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L.Rev. 447, 476 (1996) (noting that “the raw number of peremptory challenges used against targeted-group members is meaningless without some point of reference.”)

Our review of the trial court’s decision is hampered not only by the lack of numerical data regarding the composition of the venire and jury, but also by the district court’s failure in its rulings and observations to provide guidance. The colloquy between the district court and defense counsel, quoted above, suggests that the district court may have denied Mr. Holand’s Batson (or J.E.B.) challenge because the State utilized one of its eleven challenges to strike a Caucasian male prospective juror. Standing alone, this fact is insufficient to establish that Mr. Holand failed to make a prima facie case of discriminatory intent. Furthermore, the district court’s general observations that the jury was composed of “numerous people of numerous races and numerous genders” and that there were “cross gender jurors” offers little guidance. For guidance, we turn to the recent jurisprudence on this issue.

The Louisiana Supreme Court in State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498, addressed a situation in which the trial court declined to address a defendant’s Batson challenge. The defendant argued that his equal protection rights were violated after the State used its peremptory strikes to exclude six African-_jAmerican12 potential jurors from the veni-re in a discriminatory manner, but the trial court failed to rule on the Batson challenge. The record reflected that the first panel of jurors called included three African-American jurors. One African-American juror was selected, and the State used two peremptory challenges to exclude the remaining two. The second panel of jurors contained two African-American veni-re members, both of whom were excused by the prosecution with peremptory challenges. During the selection process, defense counsel put the trial court on notice that he questioned the peremptory strikes being made by the State; however, the trial court treated the defendant’s objections dismissively and never issued a ruling on the issue of whether the defendant had established a prima facie case.

The Supreme Court in Myers held that the trial court’s failure to rule on the Bat-son issue raised serious equal protection issues and that the specter of racial discrimination could not be discounted because of the trial court’s failure to rule. Furthermore, because the trial judge had recently died, the option to remand for a hearing on the defendant’s showing of a prima facie case was not available; the Supreme Court explained that “without the presence and participation of the trial judge, a meaningful hearing on the issue [was] all but impossible.” Myers, 99-1803 at pp. 6-7, 761 So.2d at 502-03. Accordingly, the Supreme Court reversed the defendant’s conviction and remanded for a new trial.

A similar issue was addressed by the Louisiana Supreme Court in State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443. In that case, the defendant claimed that the State impermissibly struck potential male jurors because of their gender in 11 (violation of J.E.B. The jury impaneled in Givens consisted of one man and eleven women. The record reflected that the defense struck a total of nine women and two men, and the prosecutor struck a total of seven women and six men. During the voir dire, the defendant objected to the State’s use of peremptory strikes against men on four separate occasions. On each occasion, the trial court denied the objection and declined to require the prosecutor to provide reasons for any challenges it exercised against potential male jurors. Because the trial court did not articulate its reasons for denying the defendant’s J.E.B. challenges, the Supreme Court noted that it was unable to review the trial court’s reasoning. The Supreme Court further noted that a similar situation was presented in the Myers case, discussed above, in which the trial court failed to rule on the Batson issue.

Despite the lack of any guidance from the trial court, the Supreme Court in Givens concluded that the defendant presented enough evidence to establish a prima facie case of purposeful gender discrimination. The Supreme Court reasoned as follows:

Similar to Myers, there is no obvious reason for the prosecutor’s strikes in this case other than gender. The defendant has presented enough evidence to establish a prima facie case of purposeful discrimination based on the fact that the prosecutor struck six male jurors for no apparent reason, three of whom were backstruck after being accepted by the defense, with the resulting jury composed of eleven women and one man. These facts evidence a pattern of strikes against male jurors and a disparate impact on the final composition of the jury. Therefore, the trial court should have required the prosecutor to offer gender-neutral explanations for the strikes.

Givens, 99-3518 at p. 8, 776 So.2d at 451. The Supreme Court thus remanded for an evidentiary hearing at which the trial court was instructed to allow the 114prosecutor to provide gender-neutral reasons for the strikes (step two) and to make a final determination of whether the defendant met his burden of proving purposeful discrimination (step three).

Another case in which the Louisiana Supreme Court reversed a trial court’s finding that the defendant failed to establish a prima facie case of discriminatory purpose (step one) is State v. Drake, 08-1194 (La.1/30/09), 2 So.3d 416. In Drake, the Louisiana Supreme Court noted:

The trial court found that defendant had failed to satisfy the first step in the three-part test of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) because he did not make a prima facie showing of discriminatory purpose. However, the Supreme Court “did not intend the first step to be so onerous that a defendant would have to persuade the judge-on the basis of all the facts, some of which are impossible for the defendant to know with certainty-that the challenge was more likely than not the product of purposeful discrimination.” Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005). A defendant “satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id.

Drake, 08-1194 at pp. 1-2, 2 So.3d at 417. In Drake, the State utilized its first eight challenges against African-American jurors. The Court’s analysis was as follows:

In the present case, the state excluded peremptorily eight out of the 10 eligible African-American jurors called for examination after the court excused seven other African-American jurors for cause. As a result, and even accounting for the state’s selection of two African-American jurors for the panel, one of whom the defendant then struck, Caucasian jurors were significantly overrepresented on the panel in comparison to their number in the overall tally of jurors called for examination, and African-American jurors were grossly underrepresented.
These circumstances give rise to a reasonable inference of discriminatory purpose, although they might not support a finding that more probably than not race played a role in the state’s exercise of its peremptory challenges. Johnson expressly cautioned that “[t]he Batson framework is designed to produce actual answers to suspicions |15and inferences that discrimination may have infected the jury selection process.... The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” Johnson, 545 U.S. at 172, 125 S.Ct. at 2418.

Drake, 08-1194 at p. 2, 2 So.Sd at 417. The Louisiana Supreme Court thus remanded the matter to the district court to provide the State with an opportunity to offer race-neutral reasons for the exercise of its peremptory challenges (step two) and for a ruling by the trial court on the question of whether race played a role in the selection of defendant’s jury (step three).

Finally, in State v. Maxwell, 08-1007 (La.App. 4 Cir. 8/19/09), 17 So.3d 505, this court reversed a defendant’s conviction after the State used nine of its twelve peremptory challenges to exclude African-Americans from the jury and exercised cause challenges only against African-American venire members. Ultimately, the jury impaneled consisted of ten Caucasians and two African-Americans, which this court noted was not reflective of the population of the Parish of Orleans in which the case was tried. Although the State offered race neutral reasons for the exercise of five of its peremptory challenges, the trial court did not require the State to offer reasons for the first four challenges that it exercised. Concluding that the defense established a prima facie case of discriminatory intent on the State’s part, this court reversed the defendant’s conviction and remanded for a new trial. However, the Louisiana Supreme Court reversed this court’s decision in part — to the extent that this court outright reversed 11fithe defendant’s conviction — and remanded for further proceedings as in Drake, supra. State v. Maxwell, 09-2235 (La.4/16/10), 33 So.3d 155.

Although on this record in this case we are unable to accurately assess what impact the State’s exercise of its peremptory challenges had on the composition of the jury ultimately impaneled, we conclude that the State’s use of ten of its eleven peremptory challenges to strike African-Americans — nine of whom were women— was sufficient to establish a prima facie case of discrimination — racial, gender, or both. These numbers alone were sufficient to establish at least “the inference” that discrimination had occurred. Johnson v. California, 545 U.S. 162, 170, 125 5.Ct. 2410, 162 L.Ed.2d 129 (2005); see also Saunders v. Tennis, 720 F.Supp.2d 682, 691 (E.D.Pa.2010)(noting that “[a] pattern showing eight of nine peremptory strikes on African-American women is ‘certainly strong enough to suggest an intention of keeping [African-Americans] off the jury.’ ”) We thus find, contrary to the trial court’s conclusion, that Mr. Holand established a prima facie case of discrimination.

Given our finding that Mr. Holand satisfied step one, we, as the Supreme Court did in the line of cases discussed above, remand to the district court to allow the State an opportunity to offer race (and gender) neutral reasons for its strikes (step two), and for the district court thereafter to issue a ruling on whether race (or gender or both) played a role in the selection of the jury (step three). In the event of an adverse ruling on the Batson (or J.E.B.) issue, Mr. Holand may file another appeal.

DECREE

For the foregoing reasons, this case is remanded to the district court for it to provide the State with the opportunity to articulate race-neutral reasons for the exercise of its ten peremptory challenges against African-American venire members, to articulate gender-neutral reasons for the exercise of its nine peremptory challenges against women venire members, and to thereafter rule on the ultimate issue under Batson and J.E.B. of whether the prosecutor intentionally used race or gender or both as a basis for the selection of jurors to try the defendant’s case.

REMANDED WITH INSTRUCTIONS

      . Mr. Holand's challenge, as the district court recognized, is based on both race and gender, which are overlapping categories. See Saunders v. Tennis, 720 F.Supp.2d 682, 691, n. 10 (E.D.Pa.2010) (noting that "[a]lthough the Supreme Court has not identified African-American females as a protective group, Batson forbids intentional discrimination on the basis of race or gender” and “gender and race are overlapping protective categories.")

      . At the time of the trial, Mr. Cargo was deceased.

      . The holdings in Batson and J.E.B. are codified in La. C.Cr.P. art. 795(C), which provides: No peremptory challenge made by the state or the defendant shall be based solely upon the race or gender of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race or gender neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror

      . The record reflects that the State struck nine African-American women.

      . As noted below, the Louisiana Supreme Court reversed in State v. Maxwell, 09-2235 (La.4/16/10), 33 So.3d 155.

      . In Saunders, supra, a federal habeas corpus proceeding, the defendant was found to be entitled to an evidentiary hearing on whether the State used its peremptory challenges to strike African-American women from the jury in violation of Batson.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Carl D. HALL.
    No. 2010-KA-1516.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY.
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

pin 1998, appellant was charged with possession of cocaine. He pleaded not guilty and the district court denied his motion to suppress the evidence. A six-person jury found him guilty as charged. Following a hearing on a multiple bill of information appellant was adjudicated a third felony offender. He was sentenced to serve life in prison at hard labor without benefit of parole. This court affirmed the conviction and sentence. State v. Hall, unpub., 2001-1471 (La.App. 4 Cir. 4/24/02), 817 So.2d 514.

In 2009, counsel filed a motion to correct an illegal sentence and motion to reconsider sentence that were denied by the district court. The defense orally noted its intent to appeal but failed to file a written motion as requested by the district court. Appellant subsequently filed an application for post-conviction relief alleging that counsel was ineffective for failing to file a written motion for an appeal. It was denied on April 13, 2010. This court vacated that judgment because we are precluded from considering his excessive sentence claim since the district court had not ruled on his original oral motion to reconsider sentence. The district court was further ordered to grant appellant an appeal of his sentence. State v. Hall, unpub., 2010-0720 (La.App. 4 Cir. 6/4/2010). On remand the district court granted appellant an appeal.

STATEMENT OF FACT

The facts of this offense are not relevant to the adjudication of the issues before us.

ERRORS PATENT REVIEW

A review for errors patent was done in conjunction with appellant’s original appeal and none were found.

ASSIGNMENTS OF ERROR NUMBER 1 AND 2

Because both assignments of error raised by appellant involve the issue of whether appellant’s sentence is excessive, we will discuss them together.

In the motion to reconsider sentence denied by the district court in 2009, appellant argued that the district court erred when it stated during his original sentencing that it had no discretion to impose anything less than a life sentence under La. R.S. 15:529.1. He urges that his current life sentence is unduly excessive particularly in light of the amendments made to La. R.S. 15:529.1, which no longer mandate a life sentence. Appellant argues further that the matter should be remanded because the district court was under the erroneous impression that a life sentence was still possible under the new law.

Under La. R.S. 15:529.1(A)(1)(b)(ii), as it provided at the time of appellant’s offense, when the third felony or either one of the two prior felony convictions is a felony defined as a crime of violence under La. R.S. 14:2(13), as [.-¡were both of appellant’s prior felony convictions, the only sentence is life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The trial court imposed the sentence provided for in the statute.

In State v. Rice, 2001-0215, pp. 5-6 (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354, this Court reviewed the standard for ex-cessiveness of a mandatory life sentence imposed on a defendant convicted of simple possession of cocaine and sentenced as a multiple offender:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La. 10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.

This Court ultimately vacated Rice’s sentence and remanded his case because we found that the trial court had opined that it had no choice but to impose a life sentence. This Court noted that, under Dorthey, this was an incorrect statement. Since counsel had argued a variety of mitigating factors, the Court concluded that remand was appropriate.

In State v. Wilson, 2002-0776 (La.App. 4 Cir. 1/22/03), 839 So.2d 206, the trial court had also stated that it had no discretion to do anything but impose a life sentence on a fourth offender convicted of possession of cocaine. In remanding for resentencing in light of Dorthey, this Court relied on Rice-.

This Court in Rice explained as follows:

... [The] Louisiana Supreme Court’s decision in Dorthey, which [sic] makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence. While the Court is not required to consider Dorthey in sentencing a defendant, considering the enactment of Act 403, a signal that our legislature desires to revisit harsh sentencing in our state, we conclude that it was error for the district court not to have considered Dor-they in sentencing Rice. The district court did have the judicial powers to consider a sentence other than life imprisonment and the district court was erroneous in not considering an alternative sentence upon Rice’s request.

Rice, 2001-0215, p. 7, 807 So.2d 350, 354-355.

Wilson, p. 12, 839 So.2d at 214.

In Wilson, this Court noted the legislature’s decision to reduce many mandatory minimum sentences with its enactment of Acts 2001, No. 403, § 4, eff. June 15, 2001. Although the reduction in minimum sentences had a prospective application only, the policy choice of the legislature was a factor which a trial court could and should consider in determining whether the mandatory minimum sentence was constitutionally excessive under Dorthey. See State v. Everidge, 2002-0309 (La.App. 4 Cir. 12/11/02), 834 So.2d 1197, and cases cited therein.

As in Rice and Wilson, the trial court opined during appellant’s original sentencing that it had no choice but to impose a life sentence. Unlike in Rice, though, counsel offered no mitigating factors that would warrant a downward departure. However, counsel did request that the court consider the presentence investigation that it ordered and impose a sentence less than life.

At the hearing on the 2009 motion to reconsider sentence held on June 4, 2009, counsel urged the court to impose a lesser sentence in light of the changes made to La. R.S. 15:529.1. Before denying the motion, the district court noted the following:

The sentence, as it was written on the day in question, required a mandatory life sentence. The sentence has been modified by legislature to make the sentencing range no less than twenty years, and no more than life. So even under today’s law, he would still be eligible for a life sentence at the discretion of the court. However, this court applied the law as it applied on the date in question.

The district court clearly misstated the sentencing range. La. R.S. 15:529.1(A)(1)(b)(ii) currently provides for a maximum sentence of ten years under the circumstances of this case. Also, it does not appear that the district court felt that it had the discretion to impose a sentence other than life. It simply noted that the law 1 ñin affect at the time required a mandatory life sentence. Thus, under the reasoning in Wilson, we remand this case to afford appellant the opportunity to prove that the mandatory minimum sentence is unconstitutionally excessive as applied to him. We do not mean to suggest, however, that the Court below must neees-sarily impose a lesser sentence. Compare State v. Williams, 2005-0176 (La.App. 4 Cir. 5/3/06), 932 So.2d 693, where the defendant sought a reduction of his sentence in light of the amendments made to La. R.S. 15:529.1. This court found no abuse of the district court’s discretion in imposing the mandatory life sentence, noting that the district court considered the defendant’s evidence in support of a lesser sentence but chose to base its decision on the presentence investigation that showed the defendant had an extensive criminal history.

CONCLUSION

For the reasons given above we vacate the apparent life sentence and remand for a new hearing on the motion to reconsider sentence.

SENTENCE VACATED; REMANDED.

      . La. R.S. 15:529.1(A)(1)(b)(ii) also mandated a life sentence if the third or either of the two prior felonies was a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment more than five years, or any other crime punishable by more than twelve years. The legislature amended La. R.S. 15:529.1(A)( 1 )(b)(ii) by Acts 2001, No. 403, § 2, effective August 15, 2001; the statute now provides for the mandatory life sentence only "[i]f the third felony and the two prior felonies are felonies” defined as crimes of violence under La. R.S. 14:2(13), as sex offenses under La. R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, as violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes. Thus, if appellant had committed his crime after the August 15, 2001, his maximum sentence would have been ten years at hard labor, or twice the maximum for a first offender.

      . Though a presentence investigation was ordered by the district court following trial on December 9, 2009, it is not part of the record, and nothing in the record shows that it was ever referred to by the court. Except from the predicates listed in the bill of information, the extent of appellant’s criminal history is unknown.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Ausbia R. TAYLOR.
    No. 2010-KA-1241.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, Sarah Clayton, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_JjThe defendant, Ausbia Taylor, appeals his conviction and life sentence for second degree murder. After review of the record for errors patent, we affirm the defendant’s conviction, remand the case to the district court for a ruling on his motion for reconsideration of sentence, and grant the motion to withdraw filed by counsel for the defendant.

Relevant Facts and Procedural History

On June 5, 2008, John Jordan was shot and killed at the corner of Annunciation and Richard Streets. On November 6, 2008, the defendant was charged with the second degree murder of John Jordan. He pleaded not guilty to the charge at his arraignment on December 1, 2008. After the case was repeatedly reset due to the absence of counsel, the court appointed new counsel to represent the defendant and, finally, in January 2010, his motion to suppress the identification was heard and denied. On May 11, 2010, he was found guilty as charged by a twelve-person jury. On May 28, 2010, the defendant’s motion for a new trial was denied and the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The district court granted his motion for appeal but failed to rule on his motion to reconsider sentence. | ¡¡Although the defendant indicated that he intended to file a pro se brief and was provided with a copy of the record, he has not filed a pro se brief. The defendant’s counsel filed a brief requesting a review of the record for errors patent and a motion to withdraw.

A review of the record reveals that at trial the parties stipulated that the victim sustained four gunshot wounds, including one to the back of his head.

The victim’s mother, Diane Jordan, testified that at the time of John’s murder both John and his brother, Travis, lived with her. On the morning of June 5, 2008, John and Travis left the house to take John’s three young daughters to a nursery school at Kingsley House. Shortly thereafter, she received a call from Travis and went to the hospital where John had been taken. John died five days later.

Officer Lorenzo Black of the New Orleans Police Department (NOPD) witnessed the shooting. He testified that he was sitting at a traffic light on Annunciation Street at approximately 8:00 a.m. when he saw a small white car pull up and park on the opposite side of the street, against traffic. Two African-American men, one dressed all in black and the other in a white t-shirt and dark shorts, got out of the car. Shortly thereafter, a blue Suburban came around the corner from Richard Street and both of the men from the white car pulled guns and started shooting at the Suburban. The Suburban hit a utility pole and then ran into a warehouse. Officer Black called in a report of the shooting and drove after the shooters, who fled down Richard. As Officer Black turned onto Richard, he saw the man in the white t-shirt running down the street. He also saw a man who was dressed all in black, but that man was merely walking on the street. Officer Black pursued the man in the white t-shirt and observed him drop a gun as he ran. The |sman then ran through a gate into a vacant lot at Constance Street. At that point, Officer Black was less than the length of a car’s hood from the man, who turned and looked back at Officer Black before running further into the lot. Officer Black drove into the lot after the man, but the man ran behind a dirt mound, where Officer Black’s car could not follow. Officer Black saw the man jump a fence and backed out of the lot in an attempt to follow, but lost sight of the man. Other police units arrived and secured the scene and Officer Black called for emergency medical assistance for the people in the Suburban. Later that same day, Officer Black viewed a lineup from which he chose a photo of Ausbia Taylor as one of the men whom he saw shooting at the Suburban and whom he chased into the vacant lot.

Jennifer Day testified that on the morning of the shooting, she was getting ready for work when she heard gunshots. She looked out a window and saw activity at the corner of Annunciation and Richard Streets. She looked for her phone to call 911, and when she looked back out the window, she saw a man in a white t-shirt and black shorts running through an empty lot from Richard Street toward Orange Street. She estimated that she saw the man approximately thirty seconds after she heard the gunshots.

Officer James Alexander of the NOPD was familiar with the defendant prior to the murder. At approximately 7:00 on the morning of the murder, he saw the defendant and another man whom he did not know driving in a white car in uptown New Orleans. Officer Alexander took note of the car’s license plate number, intending to run it later. Officer Alexander later gave this information to the police officer in charge of the murder investigation, Detective Matthew McCleary. Officer Alexander viewed a photograph of the white car that the perpetrators drove 14to the area of the shooting and testified that the car in the photograph was similar to the car he saw the defendant in on the morning of the shooting.

Detective McCleary identified several photographs taken of the murder scene as well as two guns, a Beretta and a Cobra 380, which were found in the area. He testified that he viewed videotapes of the shooting that came from security cameras at Kingsley House which is located at Annunciation and Richard Streets. The police also towed the white Toyota Corolla that the shooters drove to the murder scene and searched it after obtaining a search warrant. After speaking with Officer Alexander, Detective McCleary developed the defendant and Demond Morris as suspects in the murder. He compiled two photographic lineups, each containing one of the suspects and showed them later that day to Officer Black. Officer Black identified the defendant from one lineup but was unable to identify anyone in the second lineup. The defendant was subsequently arrested pursuant to an arrest warrant obtained by Detective McCleary.

The parties stipulated that a latent fingerprint lifted from the Toyota did not match either the defendant’s or Morris’ fingerprints. They also stipulated that bullets recovered during the victim’s autopsy were fired from the Beretta and the Cobra found near the scene.

Discussion

By his sole assignment of error, the defendant requests a review of the record for errors patent. As required by State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, counsel’s brief includes not only the procedural history and the evidence presented at trial but also “a detailed and reviewable assessment ... of [^whether the appeal is worth pursuing in the first place.” Id. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moves to withdraw because she believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to the defendant and this court informed him that he had the right to file a brief in his own behalf. He has not done so. Thus, this Court’s review is limited to errors on the face of the record. La. Code Crim. Proc. art. 920.

As per State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), we have performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. The defendant was properly charged by bill of indictment with second degree murder in violation of La.Rev.Stat. 14:30.1 and the bill of indictment was signed by the foreman of the grand jury. The defendant was present and represented by counsel at arraignment, during trial, and at sentencing. The jury’s verdict and the defendant’s sentence are legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that the defendant was guilty of second degree murder, as found by the jury. Nonetheless, we note one patent error. The trial court received but did not rule on Taylor’s motion for reconsideration of sentence. While the failure to rule on a motion to reconsider sentence would preclude review of a defendant’s sentence, see State v. McQun, 2002-0259 (La.App. 4 Cir. 6/19/02), 828 So.2d 598, the defendant does not seek preview of his sentence. Thus, although the case must be remanded for a ruling on the motion to reconsider sentence, see State v. Peters, 2010-0326 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, the failure to rule on the motion to reconsider sentence does not preclude review of the defendant’s conviction.

Conclusion

Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports an appeal. Therefore, we affirm the defendant’s conviction and remand the case to the trial court for a ruling on the defendant’s motion to reconsider sentence, reserving his right to appeal his sentence once the court has ruled. The appellate counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED; MOTION GRANTED; REMANDED.

      . Mel Ryan, an investigator for the district attorney, testified that he obtained driver’s license photographs for the owners of the Toyota left on the scene. Neither of these owners was Taylor or Morris.