author: CARAWAY, J.

text:
    WEST CARROLL HEALTH SYSTEM, L.L.C. d/b/a West Carroll Memorial Hospital, Plaintiff-Appellee v. John TILMON, Defendant-Appellant.
    No. 47,152-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Travis M. Holley, Bastrop, LA, for Appellant.
    Crawford & Ogg by Brian E. Crawford, Monroe, LA, Ramsey L. Ogg, John M. Lancaster, Oak Grove, LA, for Appellee.
    Before BROWN, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

|!Alleging a breach of a noncompetition agreement, the plaintiff health care provider brought this injunction action against its former employee who had become employed by another health care company. The defendant is a physician assistant. In the defendant’s new employment, he began work in a nearby parish which was not listed in the noncompetition agreement as a parish in which his employment might be restrained. However, on one occasion, defendant performed work in a clinic operated by his new employer in Morehouse Parish, a parish that was listed in the noncompetition agreement. As a result, the former employer filed this suit and the trial court enjoined defendant from providing health care services in any employment in Morehouse Parish. The defendant appealed. Finding error in the trial court’s application of La. R.S. 23:921 and its enforcement of the noncompetition agreement, we reverse.

Facts

On July 15, 2011, West Carroll Health System, L.L.C. (hereinafter “WCHS”), filed this action to enforce a noncompetition provision in the employment contract with its former employee, John Tilmon. WCHS’s petition requested a preliminary and permanent injunction to prevent Til-mon from employment activities he had begun in Morehouse Parish. Tilmon had been employed by WCHS in West Carroll Parish as a physician assistant from April 19,1997, until June 30, 2011.

UWhen Tilmon was hired in 1997, the parties executed an employment contract with a two-year term. This initial employment contract was never renewed. Nevertheless, the parties executed an agreement on February 10, 2004, entitled “amendment to employment agreement,” which contained only the noncompetition provision. The original employment contract between the parties did not state a non-competition agreement.

The noncompetition agreement provides as follows:

8.3.1 Non-Competition: Employee covenants that during the term of this Agreement and for a period of two (2) years from the Termination Date of this Agreement (“Termination Date”), whether the Agreement is terminated with or without cause, Employee shall not directly or indirectly provide health care services, either as an employee, partner, member, individual provider or otherwise, or own, manage, participate in or work for any business or person which engages in the ownership, operation or management of any health care provider (including, -without limitation, hospitals, single or multi-specialty medical care providers and rural health clinics) that is engaged in a business similar to that of Employer, located in the parishes of West Carroll, East Carroll, Morehouse and Richland, State of Louisiana, and the county of Chicot, State of Arkansas, and any other parish or county in which Employer or an affiliated rural health clinic renders medical services as of the Termination Date (the “Restricted Area”).
Employee expressly agrees that any breach of this Agreement will result in irreparable damage and injury to Employer and that, in the event Employee breaches or threatens to breach the covenant not to compete, Employer shall be entitled to specific performance including immediate injunctive relief in the form of a temporary restraining order and/or preliminary injunction in any court of competent jurisdiction without the necessity of posting any bond. Employer’s right to injunctive relief is independent of, and shall not limit Employer’s right to, stipulated damages, costs, and expenses, including attorney’s fees. In the event it is necessary to enforce this Agreement through legal proceedings, Employee agrees to pay all legal fees, court costs and other expenses incurred in the enforcing of this Agreement by Employer.

Prior to Tilmon’s six-week notification period and resignation from WCHS, he secured new employment with Sterlington Rural Health Clinic |s(“SRHC”). Since SRHC has facilities in Morehouse Parish and other surrounding parishes, Tilmon asked Randy Morris, WCHS’s Chief Executive Officer and Hospital Administrator, to waive the noncompetition agreement for Tilmon’s new employment in Morehouse Parish. Despite his inability to secure a waiver of the noncompetition agreement, Tilmon worked for one day in the summer of 2011 at SRHC’s clinic at Mer Rouge in Morehouse Parish where he filled in for a nurse practitioner. With this position, it is not clear if Tilmon was employed to perform only the temporary duties of a nurse practitioner or whether he might undertake additional duties of a physician assistant somewhere in Morehouse.

In response to WCHS’s suit, Tilmon filed exceptions of no cause of action and no right of action on July 21, 2011. Asserting that WCHS does not have health care facilities or “carry on a like business” in Ouachita and Morehouse Parishes, Til-mon argued that the noncompetition agreement is null and void on its face to prohibit his employment there based upon the clear language of La. R.S. 23:921(C). In addition, the defendant argued that the geographic location section of the noncom-petition agreement is overly broad, rendering the agreement unenforceable. According to Tilmon, the language which prohibits employment in “any other parish or county in which Employer or an affiliated rural health clinic renders medical services” is overly broad.

On August 1, 2011, the trial court held a hearing on the exceptions and WCHS’s request for injunctive relief. At the hearing, Tilmon testified, |4and Morris agreed, that the following is an adequate job description of the physician assistant’s role which Tilmon performed:

A physician assistant is a physician extender, he provides extended care to patients of said physicians and he does not have patients of his own, he has — he works under a physician as an employee or as an agent of the physician, much like an LPN works under an RN to extend the RN’s capabilities to see more patients, to treat and care for more patients. So as a physician assistant ... I extended Dr. Fakhre’s realm and ability to care for more patients that he couldn’t see by himself.

According to Tilmon, “physician assistants are paid for usually by hospital groups or by said groups and then placed under the services of the doctors that they — I also worked for several doctors in the emergency room and in the hospital.”

In its petition, WCHS asserted that it operates a “hospital in West Carroll Parish, Louisiana, along with providing medical services in other parishes.” Additionally, Tilmon testified that Community Medical Clinic, West Carroll Memorial Hospital, West Carroll Care Center and Carroll Nursing Home are all owned and operated by WCHS in West Carroll Parish. Tilmon testified that he worked all of these facilities, at least once, while he was employed by WCHS.

In contrast to these West Carroll facilities, the parties agreed that WCHS does not have any buildings or health care facilities outside of West Carroll Parish. As for Morehouse Parish, WCHS’s only business involves providing home health care services. Notably, Tilmon’s current employer, SRHC, does not perform home health services in Morehouse Parish. In addition, all of WCHS’s revenue in More-house Parish stems from these |fihome health services and none of these services are rendered by physician assistants.

Furthermore, WCHS does not have a physician or a physician assistant directly performing services in Morehouse Parish. The evidence indicated that Tilmon cannot perform home health services unless specifically authorized by a physician.

The policy behind the noncompetition agreement’s inclusion of Morehouse and other surrounding parishes in the agreement was discussed by Randy Morris, as follows:

While he [Tilmon] was employed at West Carroll in his — compliments to him, he’s an excellent provider of health care and had a big following of patients. The fact that he would be practicing in Mer Rouge, in Morehouse Parish there’s a tendency that those patients would seek health care with them — with him and his new employer at the detriment to West Carroll Health Systems.

Since WCHS has at least 280 patients who reside in Morehouse Parish and travel to West Carroll for medical services, it argued that Tilmon should be restricted from' providing services as a physician assistant in that parish. WCHS further argued that as its physician assistant, Tilmon ordered prescriptions and diagnostic tests during his prior employment for WCHS’s patients that were provided in Morehouse Parish.

From the hearing, there was little evidence regarding Tilmon’s current employer, SRHC. Tilmon testified that SRHC hired him in spite of the noncompetition agreement. SRHC hired him as a physician assistant, and Tilmon performs most of his services at SRHC’s rural health clinic in Ouachita Parish. Since Ouachita was not listed in the noncompetition agreement, the current litigation stems from Tilmon’s activities as an SRHC ^employee in Morehouse. The evidence indicated that SRHC may operate a hospital in Morehouse Parish in Bastrop and employ the services of a physician assistant at that facility. While working for SRHC, Tilmon testified that he was told to report to work at SRHC’s clinic in Morehouse Parish. He worked in that parish for only one day, because the clinic needed him to fill in for an ailing nurse practitioner.

In its oral reasons, the trial court noted . that the defendant had full knowledge and understanding of the noncompetition agreement. Relying on AMCOM of Louisiana, Inc. v. Battson, 96-0319 (La.3/29/96), 670 So.2d 1223, the trial court reformed the noncompetition clause by striking from the noncompetition agreement the potentially unenforceable addendum, “and any other parish or county in which Employer or an affiliated rural health clinic renders medical services as of the Termination Date (the “Restricted Area”).” After denying the defendant’s exceptions, the trial court granted a preliminary and permanent injunction in favor of WCHS. Specifically, the judgment provided as follows:

The request of West Carroll Health System, L.L.C. d/b/a West Carroll Memorial Hospital for a preliminary injunction and permanent injunction is granted and John Tilmon is enjoined and prohibited from further breaching the non-competition agreement by engaging in any employment and providing health care services in the Parishes of West Carroll, East Carroll, Morehouse and Richland, State of Louisiana, and the County of Chicot, State of Arkansas, for a period of two (2) years from his termination of employment with West Carroll Health System, L.L.C. d/b/a/ West Carroll Memorial Hospital on June 30, 2011.

The trial court signed the judgment and motion and order of devolutive appeal on August 22, 2011.

_J'¿Discussion

Noncompetition agreements between employees and employers are governed by La, R.S. 23:921 (hereinafter “the Statute”) which provides in pertinent part, as follows:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with its employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from the termination of the employment.
⅝ ⅜ ⅝ ⅝ ⅜: ⅝
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.
* ⅝ ⅝ ⅜ ⅜
H. Any agreement covered by Subsection B, C, E, F, G, J, K, or L of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order in-junctive relief enforcing the terms of the agreement.

A covenant not to compete contained in an employment agreement is disfavored in Louisiana because it may function to deprive a person of his | ^livelihood. Such a covenant will be enforced only if it meets narrowly drawn criteria. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294; Sentilles Optical Services, Div. of Senasco, Inc. v. Phillips, 26,594 (La.App.2d Cir.3/1/95), 651 So.2d 395. La. R.S. 23:921 C sets forth an exception allowing restrictions on competition. Heart’s Desire, LLC v. Edwards, 46,222 (La.App.2d Cir.4/27/11), 2011 WL 1630175; Action Revenue Recovery, L.L.C. v. eBusiness Group, L.L.C., 44,607 (La.App.2d Cir.8/19/09), 17 So.3d 999. This exception must be strictly construed and agreements confected pursuant to this provision must strictly comply with its requirements. SWAT 2k, supra; Regional Urology, LLC v. Price, 42,789 (La.App.2d Cir.9/26/07), 966 So.2d 1087, writ denied, 07-2251 (La.2/15/08), 976 So.2d 176.

An injunction shall be issued in eases where irreparable injury, loss, or damage may otherwise result to the applicant. La. C.C.P. art. 3601(A). However, in the event an employee enters into an agreement with his employer not to compete, pursuant to La. R.S. 23:921, and fails to perform his obligation under such an agreement, the court shall order injunctive relief even without a showing of irreparable harm, upon proof by the employer of the employee’s breach of the noncompete agreement. Vartech Systems, Inc. v. Hayden, 05-2499 (La.App.1st Cir.12/20/06), 951 So.2d 247; Clear Channel Broadcasting, Inc. v. Brown, 04-0133 (La.App.4th Cir.3/30/05), 901 So.2d 553, 557; La. R.S. 23:921(H). Even though La. R.S. 23:921 mandates the court to issue injunctive relief upon proof of the obligor’s failure to perform, without the necessity of proving irreparable |9inj ury, the employer must still establish that it is entitled to relief. Vartech Systems, supra at 255; Clear Channel, supra at 558. Where the actions sought to be enjoined pursuant to a non-competition agreement do not fall under the statutory exception, or where the non-compete agreement is found to be unenforceable for failure to conform to the statute, the employer is unable to establish that it is entitled to the relief sought. Green Clinic, L.L.C. v. Finley, 45,141 (La.App.2d Cir.1/27/10), 80 So.3d 1094; Action Revenue, supra; Vartech Systems, supra. La. C.C.P. art. 3605 requires that an order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.

Generally, a trial court is granted wide discretion in deciding whether to grant or deny an injunction and its ruling will not be disturbed absent manifest error. Century 21 Richard Berry & Assoc., Inc. v. Lambert, 08-668 (La.App.5th Cir.2/25/09), 8 So.3d 739; Limousine Livery, Ltd. v. A Airport Limousine Service, L.L.C., 07-1379 (La.App.4th Cir.3/12/08), 980 So.2d 780; Wied v. TRCM, LLC, 30,106 (La.App.2d Cir.7/24/97), 698 So.2d 685. Where the trial court’s decision is based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. Herff Jones, Inc. v. Girouard, 07-0393 (La.App.3d Cir.10/3/07), 966 So.2d 1127, writs denied, 07-2463, 07-2464 (La.2/15/08), 976 So.2d 185; Hooper v. Hooper, 06-0825 (La.App.3d Cir.11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177.

WCHS argues that its 2004 contract directed Tilmon, should he leave WCHS’s employment, to refrain from providing “health care services” with a competing employer in Morehouse Parish because WCHS had a large client base in that parish and many of the clients had been treated by Tilmon at WCHS. Other than its large client base, WCHS does not place emphasis on its direct business activity conducted in that neighboring parish which is a home health services business. Tilmon therefore argues that WCHS’s asserted business interest in Morehouse does not demonstrate that it “carries on a like business” in that parish similar to its hospital and other medical facilities in West Carroll.

Under Subsection C of the Statute, the geographical scope of the restraint upon an employee under a noncompetition agreement depends upon the existence of the employer’s similar or “like” business interest in parishes beyond the place where the employee was formerly employed. The present geographic provision of Subsection C was enacted in 1989. Pri- or to 1989, the former La. R.S. 23:921 contained a geographic focus identifying the “same business that [the] employer is engaged over the same route or in the same territory.” The use of the “route” and “territory” language indicated the statutory concern for the employer’s customer based ^geographic area which the former employee might invade with his business activities upon leaving employment.

The present geographic limit in the post-1989 version of the Statute broadly allows for many parishes to be “specified” in the noncompetition agreement. Nevertheless, a particular parish may be off limits to the employee only if the “employer carries on a like business therein.” In view of the statutory history of the Statute and the nature of commercial business activity that generally does not abruptly end at the parish line of the principal location of a business, the lack of an actual business facility in Morehouse in this case is not the only measure for the geographic test of the Statute. Its language of “carrying on” “business” allows for the employer to demonstrate significant business activity which might be competitively impacted in a parish outside of the location where the employee worked. The customer “territory” concept is therefore still a business interest of the employer recognized under the Statute.

The case of H2O Hair, Inc. v. Marquette, 06-930 (La.App.5th Cir.5/15/07), 960 So.2d 250, addressed the geographic test for a permissible noncompetition agreement. In that case, the defendant worked as a stylist at H20 Salon & Spa in Metairie, in Jefferson Parish. H20 showed that the majority of their clients were from Orleans, Jefferson, and St. Tammany Parishes “where H20 solicits and sells services directly and over the phone to these clients and also performs services to their clients in these areas, whether it be at the salon or on location.” While employed, Marquette entered into a noncompete agreement with H20 that prevented her from | ^providing hair and cosmetic services in Orleans and Jefferson parishes. Despite this agreement, Marquette used H20’s customer list to solicit clients in Jefferson and Orleans Parish for her new salon, Salon M, in Orleans Parish.

The court enjoined Marquette from operating her salon in Orleans Parish based upon her substantial solicitation activities in that parish, even though H20 did not have a salon in Orleans Parish. “It was uncontradicted that a substantial portion of H20’s customers are residents of Orleans Parish, and that H20’s solicitation of customers in Orleans Parish via advertising and other means is integral to its business.”

Similarly, the business interest which WCHS asserts in Morehouse Parish is its client base. West Carroll and Morehouse parishes share a common boundary. WCHS presented evidence that in the pri- or four years 280 patients from Morehouse made 1,567 office visits with West Carroll physicians under whom Tilmon worked. Significantly, WCHS does not assert that its Morehouse patients who were served with home health care are affected. Neither Tilmon nor SRHC is involved in that aspect of WCHS’s business in Morehouse. In this injunctive claim against Tilmon, WCHS sought to prove that its “like business” in the neighboring parish was its client base. It claims that it “carries on” business with those clients because they are within the immediate service area of the WCHS health care facilities in West Carroll. The trial court’s recognition of that “like business” interest from the undisputed facts regarding WCHS’s client base is not, in our opinion, an erroneous application of the Statute given the | ^number of patients involved and their immediate proximity to the WCHS facilities.

Nevertheless, regardless of WCHS’s sufficient proof for the geographic test of the Statute, Tilmon additionally argues that the Statute cannot now be used “to preclude Mr. Tilmon’s employment in any capacity with a competitor” of WCHS in Morehouse Parish. This position calls for examination of the Statute’s scope of the employer’s restraints on the employee’s conduct for obtaining his livelihood in relation to the employer’s competing economic interests.

In this court’s ruling in Summit Institute for Pulmonary Medicine and Rehabilitation, Inc. v. Prouty, 29,829 (La.App.2d Cir.4/9/97), 691 So.2d 1384, writ denied, 97-1320 (La.9/26/97), 701 So.2d 983, we identified two restraints suggested under the Statute which the employer is allowed to use in a noncompetition agreement. Those restraints are listed between the somewhat awkward “and/or” conjunctions expressed by the legislature. We found that the employee could be prevented from (1) engaging in a similar competing business which he owns or controls as an equity owner, or (2) becoming employed in a competitor’s business in a position in which he solicits the customers of his former employer.

This distinction between being in business for oneself and being merely an employee in another business was important in our interpretation in Summit of the legislative use of the “and/or” conjunctions. We thus viewed the first broad restraint against “carrying on or engaging in business” as particularly applicable to the employee who starts a business of 114his own competing against his former employer regardless of any degree of solicitation of the customers of the former employer. On the other hand, when the employee becomes employed in a competing business, a dual test for the restraint is more appropriate as suggested by the “and” in the legislative use of the “and/or” expression. It is not enough that the employee is hired in a competing business. The impact of his hiring on the former employer’s revenue from customers must be considered. Otherwise, the broad measure of the first restraint, “engaging in business,” would make the legislative use of the second restraint against “solicitation” superfluous. We concluded:

We therefore interpret the two restraints listed in Section C to allow the employer to prevent a former employee from engaging in a similar business for himself, i.e. an entire business venture, or from being employed in a competitor’s business in a position wherein he solicits the customers of his former employer.
Though a broader statutory interpretation of Section C and its “and/or” provisions might be made, the protection which the legislature intended for the employer, which detracts from the broad public policy concern for the employee, should promote a reasonable economic goal. While it may be reasonable to prevent an employee from forming a business for himself competing directly against his former employer in the first two years after the employee’s termination, it is not reasonable to prevent him from accepting employment with an already existing competitor where his new position involves no solicitation of the customers of the former employer. Such interpretation would unreasonably prevent an employee, such as Prouty, from employment in the medical field as a computer programmer, respiratory therapist or a maintenance person even though such positions might have no impact on the former employer’s ability to compete with the new employer.

Id. at 1387-1388.

After Summit, the Supreme Court’s ruling in SWAT 2Jh supra, narrowed the scope of the Statute’s permissible restraint even further by its 1 ^determination that the Statute did not allow for any restraint on the employee unless he engaged in a competing business as an owner or entrepreneur. The employee that secured new employment in a competing business could not be restrained by a noncompetition agreement with his employer. This ruling was soon overruled by Act 428 of 2003 which amended the Statute by the inclusion of Subsection D, which provides:

For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

The 2003 amendment makes clear that any employee who becomes employed in a competing business or who opens his own competing business as an owner is a person who may be restrained by his former employer under Subsection C of the Statute. This clarification after the SWAT 2⅛ ruling, however, does not change this court’s concern in Summit, that the employer’s restraint over its former employee should be shown to promote and protect a “reasonable economic goal” or business interest of the employer.

The two categories of the employee’s re-employment, now express in Subsection D, have significant differences in their impacts on the former employer’s business. If the employee commences a similar business as owner, that “like” business is a competitive force regardless of the employee’s actual role in the business. Whether or not the employee is actively participating in his new venture in a manner similar to his services in his former employment, the new business itself can competitively harm l1fihis prior employer. The same is not necessarily true if the employee becomes employed in a competing business. The new employer may have long operated as a competitor business of the former employer. The measure of the employee’s impact in that competitor business upon the former employer’s customers, goodwill, revenues or other business interest, as suggested by the Statute’s specific customer solicitation concern, remains the employer’s burden in seeking injunctive relief. This is a reasonable interpretation of the allowance given the employer to temporarily restrain its employee under Subsection C in view of the strong general prohibition against restraints on a person’s livelihood.

Moreover, particularly in the present case, where WCHS has argued only a territorial client-based interest in the neighboring parish where it conducts no actual business employing the services of a physician assistant, the Statute’s specific emphasis upon the prohibition of solicitation of those clients is an important gauge of Tilmon’s conduct. That solicitation concern may be broader than direct solicitation alone depending upon the circumstances of each case where the employee becomes employed in a competing business. Yet the employer bears the burden of proof to show the particular impact upon its business which the employee’s new employment activities may cause.

From this interpretation of the Statute, Tilmon’s employment alone in the “specified” parish of Morehouse is not dis-positive. In view of WCHS’s asserted business interest for its client base for medical services in Morehouse Parish, the specific actions of Tilmon to be enjoined must be 117proven and considered in terms of the reasonable protection required for WCHS’s business interest in that parish. In reaching this conclusion, we acknowledge that Subsection H of the Statute relieves the employer of proof of irreparable injury to obtain the remedy of injunc-tive relief for enforcement of the noncom-petition agreement. This does not mean, however, that the employer is relieved of proving the potential injury or competitive impact of the employee’s new employment activities.

From our review of the record, we do not find in this case that WCHS met its burden of proof sufficient for the broad injunction rendered against Tilmon. We note initially that the judgment erroneously enjoins Tilmon from providing health care services in four parishes and counties other than Morehouse. There was no evidence of Tilmon’s employment or business activities in those locations where there may be positions in health care service which might be filled by Tilmon without any competitive impact on WCHS. As to Morehouse Parish, the evidence of Til-mon’s one-day employment at the Mer Rouge clinic is not sufficient to demonstrate any injury or potential injury to WCHS’s client base. The patients who were attended by Tilmon at the clinic sought SRHC’s medical services on that date without any knowledge of his onetime service. Tilmon was not shown to have commenced employment as a physician assistant by that single event; nor were his limited services shown circumstantially to have impacted WCHS’s medical service relationship with its clients in 11sMorehouse. Significantly, Tilmon’s pri- or work under the physicians in Oak Grove suggests circumstantially that his independent ability to affect WCHS’s client base in Morehouse would be minimal. However, in any event, WCHS offered no proof whatsoever in this case of its need to secure a reasonable economic goal or business interest and prevent its injury by the injunction sought against Tilmon’s limited action. Accordingly, the injunction granted by the trial court is reversed.

Conclusion

For the above reasons, the trial court’s judgment is reversed. Costs of appeal are assessed to appellee.

REVERSED.

      . While the parties' initial pleadings state that Tilmon’s employment terminated on June 30, 2011, Tilmon's testimony and WCHS’s brief stated that the defendant worked for WCHS until July 27, 2011. This later termination date is only noteworthy when one considers that WCHS filed its petition on July 15, 2011, and alleged that the defendant had already breached its agreement as of that date.

      . Subsection D was added in 2003 as a result of SWAT 24, infra. While this subsection does not directly overrule this case, it clarifies the case by ensuring that the article applies to both employees who open up competing business and employees who merely work for competing businesses.

      . In that geographic area the employer could demonstrate under the former Statute that it expended advertising expense related to the employee, which was an emphasis that was eliminated by the 1989 amendment of the law.

      . Irreparable injury justifying an injunction is that which can not be adequately compensated in damages, or for which damages can not be compensable in money. Holmes v. Peoples State Bank of Many, 32,749 (La.App.2d Cir.3/3/00), 753 So.2d 1006; Pennington v. Drews, 209 La. 1, 24 So.2d 156 (1945).

      . Since we determine from an interpretation of the Statute that an injunction against Til-mon’s actions in the "specified” parish of Morehouse does not lie, we pretermit Til-mon’s further arguments concerning the over breadth of the noncompetition agreement’s attempted bar of his employment "in any other parish or county” where WCHS rendered medical services.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    Bobby L. CULPEPPER and Mrs. Elizabeth W. Culpepper, Plaintiffs-Appellees v. EOG RESOURCES, INC., Defendant-Appellant.
    No. 47,154-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Rehearing Denied June 14, 2012.

      Liskow & Lewis, by Robert L. Theriot, Cook, Yancey, King & Galloway, Shreveport, LA, by Herschel E. Richard, Jr., for Appellant.
    Culpepper & Carroll, PLLC, Jonesboro, LA, by Bobby L. Culpepper, for Appellees.
    Before WILLIAMS, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| TPefendant EOG Resources, Inc. (“EOG”), appeals a judgment of the trial court finding that transportation costs of natural gas from the well to purchasers could not be charged against the Plaintiffs lessors’ royalty interest under a mineral lease. The court further held that the standard form Bath lease (“Lease”) was ambiguous because the Lease contains references to a rider that was not attached to the Lease filed into evidence. The trial court ordered an accounting without deductions of transportation costs. For the reasons set forth herein, we reverse the judgment of the trial court and render judgment in favor of EOG.

FACTS

Plaintiffs Bobby and Elizabeth Culpep-per are lessors, as successors-in-interest, under a 1985 mineral lease granted to the predecessor-in-interest of EOG. As stated, the Lease is a standard Bath oil and gas lease, which provides for a royalty on all natural gas produced by EOG, to be computed as follows:

(b) on gas, including casinghead gas, or other gaseous substance produced from said land, when sold by Lessee, [3/16ths] of the amount realized by Lessee computed, at the mouth of the well, or when used by Lessee off said land or in the manufacture of gasoline or tother products, the market value, at the mouth of the well, of [3/16ths] of such gas so used[-]

(Emphasis ours.)

In addition, the Lease references an attached rider to the Lease, which was not physically attached when the document was filed into evidence. The reference to a rider is found in the section of the Lease containing the legal description of the land subject to the Lease and again in the blank where the |2name of the financial institution is to be inserted for deposit of the Lessors’ royalty payments. EOG maintains that the referenced rider is actually several lines added to paragraph 18 of the Lease which appear in larger and bold typeface.

Since obtaining the Lease, EOG has produced natural gas from the wells on the Culpeppers’ lease and the cost of transportation of the natural gas to purchasers has been subtracted as a deduction from gross revenue in computing the “value at the mouth of the well” in determining the royalty due the Culpeppers. The Culpeppers filed the instant suit seeking “an accounting ... insofar as the transportation deduction is concerned.” The matter was tried by joint stipulation of facts with the sole issue being whether or not transportation costs are properly deductible from gross revenues in computing a lessor’s royalty payment. As stated, the trial judge concluded that such costs were not proper deductions and, further, that the Lease at issue is ambiguous because the referenced rider was not attached to the Lease. This appeal by EOG ensued.

DISCUSSION

A mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals in consideration of the payment of a |srental or bonus. La. R.S. 31:114; Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.3d 1145. Like contracts in general, a mineral lease is the law between the parties and regulates their respective rights and obligations. Stephenson, supra. The general rules of contract interpretation apply when interpreting contracts involving mineral rights. Id., citing Blanchard v. Pan-OK Production Co., Inc., 32,764 (La.App.2d Cir.4/5/00), 755 So.2d 376, writ denied, 00-1297 (La.6/23/00), 765 So.2d 1043.

The determination of whether a contract is clear or ambiguous is also a matter of law. Stephenson, supra. Ambiguity exists as to the parties’ intent when the contract lacks a provision on the issue or when the language of the contract is uncertain or fairly susceptible to more than one interpretation. Id.

In the case sub judice, the contract language at issue is the determination of the royalty payable upon gas production “computed at the mouth of the well.” The question is whether that language contemplates a deduction for transportation costs of the gas from the well to the purchaser. This court, in Merritt v. Southwestern Electric Power Co., 499 So.2d 210 (La.App.2d Cir.1986), recognized that Louisiana law allows the deduction of post-production costs when the royalty payment is determined “at the mouth of the well.” In Merritt, we held that compression costs are an example of such post-production costs and reversed the trial court’s finding that such costs should not be shared by a lessor. We explained in Merritt:

... that there was no market for the gas “at the mouth of the well.” In order to market the gas, it first had to be compressed. hThus, the gas was useless and had no market value at the wellhead until it could be moved into the gathering line by compression.

While it is transportation costs, rather than compression costs, at issue herein, applying the above reasoning yields the same result. The presence of gas at the wellhead is of no value until it is marketed and transported to the purchaser. Indeed, we explained in Merritt that courts of our state have “determined that various types of costs constitute additional marketing expenses which entitle the lessee to deduct proportionately such costs from royalty payments.” Merritt, supra, citing Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934) (transportation costs); Phillips Petroleum Co. v. Johnson, 155 F.2d 185 (5th Cir.1946), cert. denied, 329 U.S. 730, 67 S.Ct. 87, 91 L.Ed. 632 (1946) (transportation and separation costs); Sartor v. United Gas Public Service Co., 84 F.2d 436 (5th Cir.1936) (transportation costs); Crichton v. Standard Oil Co. of La., 178 La. 57, 150 So. 668 (1933) (extraction costs); Coyle v. La. Gas & Fuel Co., 175 La. 990, 144 So. 737 (1932) (extraction costs); and Freeland v. Sun Oil Co., 277 F.2d 154 (5th Cir.1960) (processing costs). We reiterate our statement from Merritt that production is futile without distribution of the product. Merritt, supra. Accordingly, “the royalty is free of all costs up to [the] point of production, while subsequently incurred costs are to be borne on a pro rata basis between operating and non-operating interests.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Freeland v. Sun Oil Co., supra; Wall v. United Gas Public Service Co., supra.

[¿Further, article 80 of the Mineral Code defines a mineral royalty interest, explaining that “unless expressly qualified by the parties, a royalty is a right to share in gross production free of mining or drilling and production costs.” La. R.S. 31:80 (Emphasis ours.). The comments to article 80 recognize the distinction between production costs and post-production processing costs, in which the lessor shares at his ratable interest or for which the parties can specifically provide in the lease agreement. Here, there was no provision in the Lease governing the payment of post-production processing expenses, i.e., transportation costs; therefore, the Lessors must bear their proportionate share of those expenses. Accordingly, we find that the trial judge legally erred in holding that post-production transportation costs were not proper deductions in computing the royalty (at the mouth of the well) owed to the Culpeppers under the Lease.

In addition, we disagree with the trial judge’s conclusion that the Lease was ambiguous. As previously discussed, the references to an attached rider appear in two places in the standard form lease in this case: in the legal description of the land and in the blank for the name of a financial institution in which the royalty payments are to be deposited. EOG suggests that the added portion of paragraph 18 constitutes the rider. In any case, there is no indication and there has been no allegation that any such rider has any relevance to the computation of royalties under the Lease. The additional language following paragraph 18 is not relevant to royalty computation. See footnote no. 1, supra.

| ¿In summary, we find the Lease to be clear and unambiguous. The computation of a royalty “at the well” has been long-held by our courts to include deductions for post-production costs.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Bobby L. and Elizabeth W. Culpepper and remanding for an accounting without transportation costs is reversed. Judgment is rendered in favor of EOG Resources, Inc., rejecting the demands of the Plaintiffs at their cost.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, LOLLEY & SEXTON, JJ.

Rehearing denied.

      . Paragraph 18 reads as follows (the bold type is the alleged rider):
      This lease shall be binding upon all who execute it, whether or not named in the body hereof as Lessor, and without regard to whether this same instrument, or any copy thereof, shall be executed by any other Lessor named above. ATTACHED TO AND MADE A PART OF THAT CERTAIN OIL, GAS AND MINERAL LEASE DATED FEBRUARY 8, 1985 BETWEEN ERMON B. McCONATHY, ET AL., LESSORS, AND FRANKS PETROLEUM INC., LESSEE, AND COVERING 181.00 ACRES, MORE OR LESS, ALL IN THE NORTH HALF OF SECTION 19, TOWNSHIP 16 NORTH, RANGE 4 WEST, Bienville Parish, Louisiana.


author: STEWART, J.

text:
    Keri Anne RICHARDSON, Plaintiff-Appellee v. Eric Christopher SMITH, Defendant-Appellant.
    No. 47,347-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Eric Christopher Smith, In Proper Person.

      Katherine Evans, for Appellee.
    Before STEWART, LOLLEY and SEXTON (Pro Tempore), JJ.
   STEWART, J.

hln this juvenile court proceeding, the defendant-appellant, Eric Christopher Smith (“Smith”), is appealing a judgment rendered in favor of plaintiff-appellee, Keri Anne Richardson (“Richardson”). Because we find that Richardson did not prove the case by a preponderance of the evidence, we reverse.

FACTS

Richardson and Smith are the parents of I.G.S., and the record does not reflect that the couple ever married. Richardson married her current husband, Joshua Bryan Nichols, on August 14, 2010. Nichols was approximately 22 years old, while Richardson was approximately 38 years old, at the time of these proceedings.

On February 23, 2011, Richardson filed a petition for protection from abuse on behalf of I.G.S. In the petition, Richardson alleged that I.G.S., made comments to her that indicated she was a victim sexual abuse. Allegedly, made these comments approximately three weeks after she visited her father, Smith. Richardson also contends that she witnessed I.G.S. exhibit other “sexualized” behaviors, such as flirting with older men and playing with dolls inappropriately.

A temporary restraining order was issued on March 24, 2011. It listed January 8, 2011, as the date of the alleged sexual molestation. The juvenile court subsequently entered a judgment issuing a protective order on December 6, 2011, granting Richardson permanent sole custody of I.G.S., |2subject to supervised supervision in favor of Smith, consisting of weekly visitation for one day from 9:00 a.m. until 6:00 p.m., while Smith is in the parish. Smith now appeals.

LAW AND DISCUSSION

Sufficiency of the Evidence

Smith appears in this appeal pro se, asserting four assignments of error. In the first assignment of error, Smith asserts that the evidence does not sufficiently prove that he molested his daughter, I.G.S.

The trial court issued the protective order pursuant to the La. Ch. C. arts. 1564, et seq., and La. R.S. 9:361, et seq. La. Ch. C. art. 1569(B) states:

B. If a temporary restraining order is granted without notice, the matter shall be set within twenty-one days for a rule to show cause why the protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. The defendant shall be given notice of the temporary restraining order and the hearing on the rule to show cause by service of process as required by law. (Emphasis added.)

“Domestic abuse” includes but is not limited to physical or sexual abuse and any offense against the person as defined in Chapter 1, Title 14 of the Louisiana Revised Statutes of 1950, except negligent injury and defamation, committed by one family member or household member against another. La. Ch. C. art. 1565(1). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Wright v. Town of Oil City, 46,247 (La.App. 2 Cir. 5/18/11), 71 So.3d 962; Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

A trial court’s determination of child custody and domestic abuse is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Stewart v. Stewart, 30,161 (La.App. 2 Cir. 1/21/98), 705 So.2d 802, writ denied, 98-0748 (La.5/1/98), 718 So.2d 418. The discretion afforded the trial court, however, must be exercised in wholehearted good faith and guided by the statute, not by the court’s private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is unjust, it will be set aside. State ex rel J.B., 35,032 (La.App. 2 Cir. 5/9/01), 794 So.2d 899.

The juvenile court’s findings, based on a live presentation of testimony and a personal observation of the parties involved, are entitled to great weight. Matter of L.M.S., 476 So.2d 934 (La.App. 2 Cir.1985). Pursuant to the proof by a preponderance of the evidence standard, we must determine whether the evidence proved that it was more probable than not that I.G.S. was sexually abused, and that Smith is responsible for the sexual abuse.

In the protective order issued, the juvenile court noted:

This court finds by a preponderance of the evidence that defendant sexually molested his daughter based on the child’s disclosure to her mother, and to the court appointed expert, and based on the child’s cluster of behaviors observed by the mother, the child day care employee, and the court appointed expert, who concluded these behaviors were highly indicative of the child having been sexually molested. The court further finds that the defendant’s denials are not worthy of belief based on the numerous examples of his false testimony in the record. The court further finds the petitioner to be credible based on |4her willingness to allow visitation before the allegations surfaced despite the defendant’s homelessness; and based on the corroboration of her reports from the day care employee and the independent court-appointed expert. The court will consider modifying the order based on defendant’s cooperation with counseling. (Emphasis added.)

Smith asserts that the temporary restraining order states that I.G.S. had a physical examination on February 22, 2011, and that no “vaginal trauma” was discovered. He further asserts that the court-appointed expert’s testimony reveals that the cluster of observed behaviors does not definitively point to sexual molestation. Smith alleges that all of his visitations, including the one that took place on January 8, 2011, were in the presence of other adults.

Richardson testified that she filed a police report on February 2, 2011, after I.G.S. told her, “My daddy says my tee-tee is a finger puppet.” Joshua Bryan Nichols, Keri Richardson’s 22-year-old husband, testified that he has witnessed recent changes in I.G.S., i.e., fussy, wetting the bed, nightmares, and fear of windows. He further testified that one night in February, after I.G.S. received a bath, he instructed her to dry “that” off. He informed her, “[Joshua] doesn’t touch you there.” I.G.S. responded, “My daddy says we do.”

Danielle Billings, who is I.G.S.’s teacher at Noel Methodist Preschool, testified that she observed a change in I.G.S.’s behavior towards the end of March 2011. Billings stated that I.G.S. became moody, began hitting her friends, and “acting out more than usual.”

Laura McFerrin, who is a licensed clinical social worker, was tendered as an expert witness in the field of child and adolescent mental | ¡¡health with experience in child abuse. McFerrin performed a mental health assessment on I.G.S. McFerrin stated that Richardson informed her that I.G.S. said “her tee-tee is a finger puppet” and “my daddy doesn’t hurt my tee-tee anymore.” Richardson also informed McFerrin that sometime in January 2011, I.G.S. began having explosive temper tantrums and rage episodes. Richardson also stated that I.G.S. was exhibiting aggressive behavior at home and at daycare. Richardson said that I.G.S. was putting things in her mouth, such as food, i.e. popsicles and hot dogs, which she believed was simulating oral sex.

Richardson also showed McFerrin some batteries that I.G.S. had chewed. When McFerrin interviewed I.G.S., she asked her why she chewed the batteries. She told her, “They taste like ice cream and I suck on them.”

During McFerrin’s second session with I.G.S., she conducted an exercise that required her to identify body parts. When she directly asked I.G.S. if anyone had ever touched her “tee-tee,” she nodded. She then asked McFerrin if she knew her dad. Several minutes later, I.G.S. asked again if McFerrin knew her dad, to which McFerrin responded that she did know him. McFerrin noted that I.G.S. seemed “fascinated” by this information.

McFerrin testified that the likelihood that I.G.S. was abused is “very high.” She also stated that Smith “could” be I.G.S.’s abuser, but that I.G.S. “never” identified him as such.

|fiWe observe that I.G.S. never identified Smith as the person touching her inappropriately. According to Richardson and Nichols, I.G.S. clearly referred to Smith when she made the sexual allegations to them. It is uncertain why I.G.S. did not refer to Smith during her sessions with McFerrin. McFerrin noted that I.G.S. seemed “fascinated” when she referred to Smith, not fearful. It is possible that I.G.S. was inquiring about her dad because she had not seen him in months.

In McFerrin’s report, she noted that I.G.S.’s behavior is “highly consistent with other children who are known to have experienced trauma, and more specifically sexual trauma when there is a presence of sexualized behaviors and sexually suggestive/acting out type behaviors.” McFerrin recommended that I.G.S. receive therapy. Again, I.G.S. did not identify Smith as her abuser.

Smith testified that this is the second T.R.O. that Richardson has filed against him. In the first T.R.O., Richardson asserted that Smith was cyberstalking him. It was dismissed.

On January 8, 20011, which is the date that the alleged abuse occurred, Smith testified that visitation took place at Mickey, Katherine, and Bennett Prestridge’s house. He stated that he was never alone with I.G.S. on that day.

Katherine and Bennett Prestridge testified that Smith was never alone with I.G.S., and that they did not witness Smith do anything inappropriate towards I.G.S. Additionally, the Gingerbread House and Child Protection Services did not find any physical evidence that I.G.S. had been sexually abused.

|7The juvenile court found that Smith’s denials “are not worthy of belief based on the numerous examples of his false testimony in the record.” The false testimony that the juvenile court is referring to is Smith’s denial regarding his marijuana use, in court. When Richardson and Smith submitted to a drug test on June 7, 2001, Smith tested positive for marijuana. However, Smith’s drug use, viewed in regard to the evidence as a whole, does not prove that it is more probable than not that he sexually abused I.G.S.

As addressed above, the juvenile court found by a preponderance of the evidence that Smith sexually molested his daughter. Ironically, he granted Smith supervised visitation, once a week between the hours of 9 a.m. and 6 p.m., while he is in the parish.

We do not dispute the fact that I.G.S. may be a victim of sexual abuse. However, this record does not support a finding under the preponderance of the evidence standard, that Smith sexually abused I.G.S. using the proof by a preponderance of evidence standard. Finding merit in this assignment, we reverse the juvenile court’s judgment granting the protective order against Smith. Based on our decision regarding this assignment, there is no need to address Smith’s remaining assignments of error.

CONCLUSION

lsFor the foregoing reasons, we reverse the juvenile court’s judgment granting the protective order against Smith. Costs of this appeal are assessed to the appellee, Richardson.

REVERSED.

      . I.G.S.'s date of birth is August 6, 2007.

      . The record cites August 31, 2011, as the final day of court proceedings in this matter. For reasons unknown, the protective order, which discussed the juvenile court’s findings, was issued on December 26, 2011. Although the juvenile court should have rendered a written judgment within 30 days, jurisprudence has established that this issue is not manifestly erroneous. It is logical to conclude that if the judge were certain that Smith had sexually abused I.G.S., he would have ruled sooner.

      . Richardson testified that Smith did not try to contact her during the time that he was living in his car. However, the record indicates that Smith did try to contact her so that he may see I.G.S. on several occasions. Smith related that Richardson sent him a text message saying, "You may not see her because you have not paid any child support.”

      . Had Richardson filed a petition for domestic abuse assistance pursuant to La. R.S. 9:361, et seq., the lower court would have had to find by clear and convincing evidence that Smith sexually abused I.G.S. Further, the court would have prohibited all visitation and contact between Smith and I.G.S. until, following a contradictory hearing, it found by a preponderance of the evidence that Smith successfully completed a program designed for such sexual abusers, and that supervised visitation is in I.G.S.’s best interests.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Tyrone Dewayne McFARLAND, Jr., Appellant.
    No. 47,053-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. As a result of a plea agreement, the defendant, Tyrone Dewayne McFarland, Jr., pled guilty to indecent behavior with a juvenile, a violation of La. R.S. 14:81. He was subsequently sentenced to 22 years’ imprisonment at hard labor, 11 years of which to be served without benefit of parole, probation, or suspension of sentence. The defendant was also ordered to register as a sex offender. McFarland appeals his sentence, which we affirm for the following reasons.

Facts

On July 9, 2010, the mother of the 12-year-old victim K.S. contacted the Monroe Police Department to report that her daughter had been raped by McFarland on July 6, 2010. At the time, McFarland was 18 years old. The victim would later state that the act was “consensual”; however, McFarland was aware that she was underage at the time.

McFarland was charged with aggravated rape, which carries a mandatory life sentence. Pursuant to a plea agreement, McFarland was allowed to plead to the responsive charge of indecent behavior with a juvenile, where the victim was under the age of 13, a violation of La. R.S. 14:81. There was no agreement as related to the defendant’s sentence, and a presen-tence investigation was ordered. During the sentencing hearing, the trial court noted review of the presentence investigation, the entire case file, and all submissions on McFarland’s behalf, including a letter from him. The trial court also noted that the evidence had been weighed, along with all reports on the facts of the offense.

|2FoIIowing the sentencing hearing, McFarland was sentenced to 22 years’ imprisonment at hard labor, with credit for time served, 11 years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He was also ordered to register as a sex offender. A timely motion to reconsider sentence was denied, and the instant appeal by McFarland ensued.

Discussion

In his only assignment of error, McFarland submits that the trial court erred by imposing upon him the sentence of 22 years at hard labor. He argues that the sentence will entail a hardship upon him and his family. McFarland also notes that he accepted responsibility for his actions, expressed remorse, and apologized. The defendant contends that the near-maximum sentence for a first felony offender is unconstitutionally excessive, and the reduced charge of indecent behavior is more descriptive of the crime than aggravated rape. We disagree.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not |srigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,-350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

UThe applicable sentencing of La. R.S. 14:81 provides:

[wjhoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

During McFarland’s sentencing hearing, the trial court carefully noted the presen-tence investigation information as well as the factors of La. C. Cr. P. art. 894.1. The trial court noted McFarland’s young age as well as the facts of the offense. While McFarland argues that his incarceration will pose a hardship on his family, no evidence was presented during sentencing that would suggest what type of hardship would be caused by his imprisonment. Nothing in the record clearly identifies additional mitigating factors that should have been considered by the trial court.

McFarland argues that the facts of this case are more aligned with the elements of indecent behavior than rape. The record shows that at some point during the proceedings McFarland justified his actions by stating his belief that the victim was 16 and consented to the sexual act. Notably, La. R.S. 14:81 specifies that the “lack of knowledge of the child’s age shall not be a defense.” In this case, the very young age of the victim cannot be lightly overlooked. It is likely that she will be affected by this crime far longer than the amount of time McFarland will serve in prison. Given McFarland’s history, including his juvenile criminal history as well as the pending charges, this sentence, greatly reduced from the possible life sentence for his charge of aggravated rape, is appropriate in this instance. | sWhile this sentence is in the high range, there is no showing that the trial court abused its discretion in the imposition of the sentence. Considering these factors, McFarland’s 22-year sentence is not grossly disproportionate to his crime, nor is it nothing more than a purposeless and needless infliction of pain and suffering, despite McFarland’s young age. So considering, this assignment is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Tyrone Dewayne McFarland, Jr. are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee v. $2,540.00 U.S. CURRENCY SEIZED FROM Arlandor FOSTER a/k/a Orlando Foster, Defendant-Appellant.
    No. 47,127-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Arlandor Foster, In Proper Person.
    Charles R. Scott, District Attorney, John F. McWilliams, Jr., Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ¶Arlandor Foster (a/k/a Orlando Foster) appeals a judgment of the First Judicial District, Parish of Caddo, State of Louisiana, in favor of the State of Louisiana (the “State”) regarding the forfeiture of $2,540.00 found in Foster’s pocket (along with 4 grams of crack cocaine). For the following reasons, we affirm the trial court’s judgment of forfeiture.

Facts

On June 2, 2008, Foster was shot in Shreveport, Louisiana. He was found by Shreveport police, who recovered 4 grams of crack cocaine and $2,540.00 in cash from Foster’s pants pocket. At the time, Foster was the subject of an ongoing drug investigation; thus the items were seized from Foster under the belief that they were drug proceeds, as well as being evidence of a criminal violation. Ultimately, Foster was arrested and charged with Distribution of Schedule II, Controlled Dangerous Substance, a violation of La. R.S. 40:967 A(l).

After the State initiated forfeiture proceedings regarding the currency, it filed an affidavit in application for seizure warrant, claiming that the currency was evidence of the commission of an offense. Based on that, the trial court granted the seizure warrant. Foster was served with the notice of pending forfeiture. Foster filed a timely claim regarding the seized funds, and the State responded by filing an application for order of forfeiture no claims timely filed and corresponding rule to show cause. After a hearing on June 2, 2011, at which Foster was not in attendance, a judgment of forfeiture was entered by the trial court. This appeal by Foster ensued.

1 ^Discussion

On appeal, Foster, appearing pro se, does not advance any formal assignments of error, but argues that the State claimed to “have ... secured approximately four (4) grams of ‘crack’ cocaine, however, this claim has not been substantiated nor has Foster been charged with any crime that would cause his forfeiture of the Currency....” According to Foster, “there has been no substantiation or proof to compel Foster to relinquish his interest in the Currency nor has there been any sufficient evidence provided to cause Foster to be disposed of the Currency for any reason whatever.” Foster submits that the trial court erroneously allowed the forfeiture of his $2,540.00 in currency, and, on appeal, he requests that the funds be released and certified funds be mailed to his Bureau of Prisons inmate account. The State maintains that Foster failed to make a proper claim for the currency and forfeiture was proper. We agree and conclude that the forfeiture was propel’, both substantively and procedurally.

Burden of Proof and Sufficiency of the Evidence

The Controlled Dangerous Substances Property Forfeiture Act (the “Act”) allows law enforcement officials to seize illegal drugs and property constituting the proceeds of any drug-related conduct. La. R.S. 40:2601, et seq. The State has the initial burden of showing the existence of probable cause for forfeiture of property under the provisions of the Act. State v. Isaac, 31,277 (La.App.2d Cir.12/09/98), 722 So.2d 353. The evidence [^admissible for meeting the State’s burden can be the same as that admissible in determining probable cause at a preliminary hearing or by a judge in issuing a search warrant. La. R.S. 40:2611(F); State v. Giles, 29,695 (La.App.2d Cir.06/18/97), 697 So.2d 699. If the State meets this burden, the claimant must show by a preponderance of the evidence that his or her interest in the property is not subject to forfeiture. Id.

Because of the similarity of the Act with the federal forfeiture statutes, Louisiana courts have considered the federal jurisprudence in applying the Act. State v. Johnson, 94-1077 (La.01/16/96), 667 So.2d 510. As we noted previously in Giles:

In the federal system where probable cause for forfeiture is also the relevant inquiry, “probable cause” has been defined as a “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” “It may be established by demonstrating ‘by some credible evidence, the probability that the money was in fact drug related.’ ” Probable cause can be established by circumstantial evidence or evidence that would be inadmissible at trial, so long as the evidence is reliable. Though this probable cause burden and the permissible evidence required to meet the burden amount to something less than the burden of proof in an ordinary civil proceeding, the United States Fifth Circuit Court of Appeal has recognized that as to the issue of the connexity of the property to the crime, the government’s burden requires “probable cause for belief that a substantial connection exists.” (Citations omitted).

State v. Giles at 704. It is unnecessary for the State to trace the property to a particular drug transaction — it is the totality of the circumstances that leads to a finding of probable cause. State v. Isaac, supra at 355, citing, State v. Albritton, 610 So.2d 209, 213 (La.App. 3rd Cir.1992); United States v. One 1987 Mercedes 560 SEL, 919 F.2d 327 (5th Cir.1990). This evidence goes beyond a mere suspicion. It must be judged not with clinical |4detachment but with a commonsense view to the realities of normal life. State v. Albritton, supra.

Here, the totality of the circumstances indicates that sufficient probable cause for forfeiture existed. Foster was found on a street corner having been shot — obviously not an everyday occurrence and certainly something to raise suspicion. After the crack cocaine and currency were found in his pocket, Foster was arrested and charged with Distribution of Schedule II, Controlled Dangerous Substance, a violation of La. R.S. 40:967 A(l). A sworn affidavit of Agent Shron R. Johnson of the Caddo Parish Sheriffs Office, Caddo-Shreveport Narcotics Unit was filed with the application for seizure warrant. It showed that Agent Johnson had information that Foster was the victim of a shooting, and the currency and crack cocaine had been recovered from Foster. Agent Johnson averred that he was informed Foster was the subject of an ongoing investigation regarding the distribution of drugs. Finally, we note that the currency found in Foster’s pants pocket (along with the cocaine) is that sort of property which is subject to forfeiture under La. R.S. 40:2603(3), namely “[pjroceeds of any conduct giving rise to forfeiture.” The totality of the circumstances in this case tended to show that probable cause existed for the seizure of the currency.

Since the State established probable cause, the burden shifted to Foster to prove by a preponderance of the evidence that the money came from some other source not drug-related. Foster failed to present any evidence that the currency recovered from his pocket was not subject to | .^forfeiture. So considering, we conclude that the State met its burden in proving that probable cause existed for the forfeiture.

Forfeiture Proceedings

Procedurally, the State met its burden as well. Louisiana R.S. 40:2606(0) states:

Property that is alleged to be evidence of a criminal violation may be seized for forfeiture by any law enforcement agency designated by the district attorney, with or without process issued by any district court, on probable cause to believe that the property is subject to forfeiture under this Chapter. Within seventy-two hours, exclusive of holidays or weekends, after service of notice of pending forfeiture, the seizing agency shall apply to the court for a warrant of seizure to hold the property pending forfeiture, unless such warrant has been previously obtained. Such application shall be on an affidavit under oath demonstrating that probable cause exists for seizure of the property, regardless of whether the proceedings to forfeit property are brought pursuant to federal or state action and regardless of whether the property has been the subject of a previous final judgment of forfeiture in the courts of any state or of the United States. The sufficiency of seizure and affidavit under oath shall be determined in accordance with the law on search warrants. The court may order that the property be held pending forfeiture, on such terms and conditions as are reasonable in the discretion of the court.

Regarding claims to the seized property by the owner, La. R.S. 40:2610 provides:

A. Only an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture. No extension of time for the filing of a claim shall be granted.
B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:
|fi(l) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property-
(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.

In this case, the following series of procedural events occurred:

• June 6, 2008: Currency and crack cocaine seized from Foster’s person;
• July 14,2010: Affidavit in Application for Seizure Warrant filed and the Seizure Warrant issued by the trial court;
• December 6, 2010: Notice of Pending Forfeiture personally served on Foster;
• December 27,2010: Foster submits timely claim to State for the return of the currency;
• January 27, 2011: State files Application for Order of Forfeiture No Proper Claims Timely Filed and corresponding Rule to Show Cause; and
• June 2, 2011: Hearing on Rule to Show Cause.

At the hearing on the State’s rule, the trial court noted that Foster had been served with the application but was not present and granted the judgment of forfeiture in favor of the State.

|7Our review of the record shows that the State complied proeedurally with the requirements for forfeiture under the Act. As required by La. R.S. 40:2606 C, following the initial seizure the State filed its affidavit in application for seizure warrant, in proper form, claiming that the currency was evidence of Foster’s alleged criminal violation. Having found that the State showed probable cause in that application, the trial court issued a seizure warrant to the State. Foster was then personally served with the notice of pending forfeiture, as evidenced by the certificate of service in the record. Because the seized currency was evidence of the commission of a crime, the State was not required to file its application for seizure or the notice of pending forfeiture in any particular order. See La. R.S. 40:2606 C.

Foster did attempt to comply with the requirements of La. R.S. 40:2610, but failed to do so in several respects. Foster submitted a short, handwritten statement as his claim for the currency, wherein he denied both having been charged with a crime and that the crack cocaine had been recovered with the money. Notably, his claim was not in affidavit form, signed under oath as required by the statute. It was deficient in other respects as well, in that it: failed to contain the caption of the proceedings as set forth in the notice of pending forfeiture; did not contain the address where Foster could accept mail (although the envelope included his return address); and, failed to state the date, identity of the transferor, and the 1 ^circumstances of his acquisition of the cash. Foster’s claim was primarily a general denial of the allegations contained in the State’s notice of pending forfeiture. It gave no information or explanation how Foster might have come to possess such a large sum of money, especially in light of it being recovered after he was shot and in the same pocket with 4 grams of crack cocaine.

The State correctly proceeded by filing its application for order of forfeiture, with the proper supporting documentation, and service was made on Foster. After a hearing on the matter, the trial court properly concluded that Foster failed to make a proper claim for the currency as provided by La. R.S. 40:2610 and entered a judgment of forfeiture as to the currency in favor the State. Considering that the trial court’s action was not in error, Foster’s arguments on appeal have no merit.

Conclusion

For the foregoing reasons, the judgment of forfeiture in favor of the State of Louisiana is affirmed. Costs of this appeal are assessed to Arlandor Foster.

AFFIRMED.

      . The record shows that Foster was an incarcerated patient at the Federal Medical Center in Rochester, Minnesota; however, the record gives no explanation regarding his exact status there as a patient/inmate.

      . Although the State claims the seized items were "evidence of the commission of an offense” and Foster was charged with a crime, the record is unclear as to the outcome of that prosecution. However, it is immaterial whether Foster was convicted, or even charged and tried with a crime. In a civil forfeiture action, the State need not bring criminal charges, either before or after the forfeiture. In fact, it can seize assets without ever bringing a criminal charge against anyone involved with the asset. State v. Property Seized from Terrance Martin, 2009-1417 (La.App. 1st Cir.03/30/10), 37 So.3d 1021.