author: COOKS, Judge.

text:
    E. SMITH PLUMBING, INC., Smith Air Conditioning, Inc., and Ville Platte Concrete Services, Inc. v. Joshua Paul MANUEL and Cora Elizabeth Monier Manuel.
    Nos. 11-1277, 11-1278, 11-1279.
    Court of Appeal of Louisiana, Third Circuit.
    March 28, 2012.

      Bruce Aehille Gaudin, Opelousas, LA, for Defendants/Appellants, Joshua Paul Manuel and Cora Elizabeth Monier Manuel.
    C. Brent Coreil, Ville Platte, LA, for Plaintiffs/Appellees, E. Smith Plumbing, Inc., Smith Air Conditioning, Inc., and Ville Platte Concrete Services, Inc.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, and Judges SYLVIA R. COOKS and BILLY H. EZELL.
   COOKS, Judge.

bFACTS AND PROCEDURAL HISTORY

Joshua Paul Manuel (Joshua) and Cora Elizabeth Monier Manuel (Cora) engaged the services of Drake Fontenot (Fontenot) to build a home in Evangeline Parish, Louisiana. Fontenot was hired to build Joshua and Cora’s residence on the basis of his reputation as a home builder in their area and based upon his bid proposal. Fonte-not submitted a contract to Joshua and Cora, but neither one of them signed the contract. Cora made changes to lower the overall cost of the project and discussed these changes with Fontenot. Fontenot agreed to proceed under the revised figures and commenced the building of Joshua and Cora’s home.

Cora handled the negotiations with Fon-tenot, and she worked directly with him and various subcontractors throughout the construction of their home. Joshua had little direct involvement in the day-to-day dealings with Fontenot or any of the subcontractors. Cora handled the financial record keeping and the delivery of payments to Fontenot and others involved in the construction of their home.

Throughout the project, and to its completion, Fontenot charged Joshua and Cora for carpenter labor, which included himself, his workers, a per-hour fee for each worker as part of Fontenot’s fee, and for the cost of materials purchased by him. Fontenot did not add any amount to materials he purchased for the project nor did he add any amount to any of the subcontractors’ bills for their labor and materials. This was true for all subcontractors, including the Plaintiffs. The three Plaintiff/Subcontractors sent invoices to Fonte-not indicating he was the contractor on the job building Joshua and Cora’s home. Cora usually made payments to Fontenot when requested throughout the project to pay him, his workers, and subcontractors, and, on some occasions, paid certain subcontractors directly.

|2The three Plaintiffs/Subcontractors herein all provided materials and/or services in the construction of Joshua and Cora’s home. All three Plaintiffs had a long-standing relationship with Fontenot as a general contractor building homes in their area. Fontenot chose each of the Plaintiffs/Subcontractors to perform work on Joshua and Cora’s home. Each testified that they entered into agreement with Fontenot to provide their respective services as subcontractors relying on their past experience with Fontenot. None of the parties had any contractual agreement directly with Joshua or Cora. After completing work on Joshua and Cora’s home each of the Plaintiffs were left with an outstanding balance owed for services and/or materials provided.

All parties stipulated to the amount owed each of the three Plaintiffs. Joshua and Cora do not dispute that the Plaintiffs actually performed the work for which they invoiced Fontenot, and they do not assert that any of the Plaintiffs’ work was improperly done. Joshua and Cora further acknowledged that these subcontractors have not been paid the outstanding balances claimed. Joshua and Cora maintain they held back the money owed to Plaintiffs, at the end of the project, because they believe Fontenot overcharged them for his labor. They assert they feared if they paid the amount owed to Plaintiffs directly to Fontenot he would not pay these subcontractors because he claimed he was owed additional money on the project for his labor, and had an outstanding bill for his unpaid labor. Cora represented to Plaintiffs, and maintained both before and during trial, that she and her husband owed each of the Plaintiffs for their outstanding bills and promised these debts would be paid.

Joshua and Cora moved into their new home on July 25, 2009. E. Smith Plumbing, Inc. (Smith Plumbing) submitted a letter into evidence informing Joshua hand Cora that they owed $18,556.00, and if it remained unpaid a lien would be filed on “October 1st.” Smith Plumbing filed a lien in Evangeline Parish on October 2, 2009, and Smith Air Conditioning, Inc. (Smith A.C.) filed a lien in Evangeline Parish on October 5, 2009. Smith A.C. and Smith Plumbing thereafter sent a certified letter to Joshua and Cora, return receipt requested, dated October 14, 2009. This letter informed Joshua and Cora that the liens had been filed, and also stated that the letter should be considered a written demand for payment in the amount of $7,618.00 for Smith A.C., and $18,566.00 for Smith Plumbing. A copy of the letter was sent to Fontenot. The third Plaintiff, Ville Platte Concrete Service, Inc. (Concrete Service) did not file a lien though their bill was not paid.

Smith A.C. and Smith Plumbing filed suit against Joshua, Cora, and Fontenot in December, 2009, for the amounts owed, plus attorney fees and legal interest from date of judicial demand. Both of these Plaintiffs alleged in their suits “some of the balance due is an open account owed by the Manuel’s (Joshua and Cora), with a portion being contractual and being owed by Drake Fontenot.” The petition does not allege what portion is owed by each of the named parties. Joshua and Cora filed a third-party demand against Fontenot, alleging Fontenot overcharged them in the amount of $20,595.00 and alleging that they “paid Drake Fontenot over $300,000.00 and he should have paid the plaintiff[s] in full from the money he received.” The total bid price for the job was $327,151.00.

Joshua and Cora also filed a reconven-tional demand against Smith A.C. and Smith Plumbing for damages and attorney fees for improperly filing liens and refusing to cancel the liens after written request to cancel within ten days of the notice.

|4Concrete Service sent a demand letter to Joshua and Cora dated February 4, 2010, return receipt requested, stating it was owed “on an open account” the sum of $7,030.50. The demand letter was addressed to Fontenot, Joshua, and Cora. Because the amount went unpaid, Concrete Service filed a suit on open account on March 5, 2010, against Joshua, Cora, and Fontenot. Joshua and Cora filed a third party demand against Fontenot alleging he was the general contractor, and that if they owed Concrete Service any sum they were entitled to indemnity by Fontenot for any such amount.

By letter dated April 27, 2010, Joshua and Cora’s attorney informed Plaintiffs’ attorney that the liens were improperly filed and requested the hens be cancelled “within ten days” failing which, Joshua and Cora would sue Plaintiffs for damages and attorney fees. The liens were not can-celled until September 28, 2010.

Following a bench trial, the trial court rendered judgment in favor of the Plaintiffs awarding each the stipulated amount owed on open account; attorney fees for each in the amount of $2,500.00; all costs of court; and legal interest from date of judicial demand. This part of the judgment was against Joshua and Cora. The trial court dismissed all of Joshua and Cora’s reconventional and third-party demands at their cost. The trial court thereafter signed an amended judgment which dismissed: all claims by Plaintiffs against Drake Fontenot; Joshua and Cora’s third-party demands against Drake Fontenot; and Drake Fontenot’s reconventional demand against Joshua and Cora. Joshua and Cora appeal the original judgment of the trial court and expressly state in their brief to this court that they have not appealed the amended judgment. No other parties have answered the appeal nor have they appealed the judgment or amended judgment. Therefore, the amended judgment is final. Thus, the third-party demands by | r,Joshua and Cora against Fon-tenot, and all of the Plaintiffs’ claims against Fontenot are dismissed. We note particularly Fontenot’s reconventional demand against Joshua and Cora was dismissed, relieving them of any future obligation to pay him additional money for his work on the project.

Joshua and Cora assert two assignments of error arguing the trial court erred in finding Plaintiffs’ claims were based on open accounts, and erred in dismissing Joshua and Cora’s reconventional demand against the Plaintiffs based on the Plaintiffs’ failure to cancel the untimely liens within ten days of written demand.

LAW AND DISCUSSION

We find that the amounts owed to the three Plaintiffs are indeed owed on an open account. See Credit Bureau Services v. Lundberg, 08-1523 (La.App. 3 Cir. 5/6/09), 10 So.3d 883. Louisiana Revised Statutes 9:2781(D) (emphasis added) defines an open account:

For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the pa,Hies expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

However, we also find that the trial court erred as a matter of law in finding that Joshua and Cora established an open account with any of the Plaintiffs. They did not. There is no signed contract between Cora and Joshua and any of the Plaintiffs. Our review of the record reveals that Fontenot opened an account with the Plaintiffs/Subcontractors regarding the home building project for Joshua and Cora. These accounts are evidenced by the consistent billing sent to Fontenot, in his name, identifying him as “contractor,” for work done on Joshua and Cora’s | fihome. It is clear that all of the Plaintiffs/Subcontractors dealt with Fontenot on this project as the general contractor. All of the Plaintiffs had a long-standing relationship with Fontenot and relied on his reputation with them in establishing the accounts for this project. They had no relationship with Joshua and Cora, and it was Fontenot who chose the Plaintiffs to perform services for the construction of this house.

In Bieber-Guillory v. Aswell, 98-559 p. 7 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145, 1149-50 (emphasis added) we explained the evidentiary showing a plaintiff must make in proving a right to recovery on an open account and further explained that:

This required showing by the plaintiff presupposes the existence of an enforceable contract between the parties. “For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt.” Blackie’s Rental Tool & Supply v. Vanway, 563 So.2d 350, 353 (La.App. 3 Cir. 1990). A creditor suing on open account must prove that the debtor contracted for the sales on open account. Id; Advertiser Div. v. Southwest Mortg. & Inv., 424 So.2d 1284 (La.App. 3 Cir. 1982). When there is no meeting of the minds between the parties, there is no consent, thus no enforceable contract. La.Civ.Code art. 1927. Such that, if there is no enforceable contract, the plaintiffs attempt to prove the existence of an open account by establishing a prima facie case becomes extraneous.

Plaintiffs fail to meet their burden to prove that they had an open account with Joshua and Cora. There was no meeting of the minds between the Plaintiffs and Joshua and Cora. The contract was between Fon-tenot and the Plaintiffs.

Concrete Service argues that its outstanding bill for concrete supplied for the driveway on this project was an open account with Joshua and Cora because it was an item added to the original building contract. We find the record shows that although the concrete work on the driveway was an addition to the project not mentioned in the original plans, it was invoiced in the same manner as the other | concrete work, on open account with Fon-tenot. James Deville (Deville) testified on behalf of Concrete Service and stated that it was not unusual for a driveway to be an added feature on a home construction project. He testified that he did not know who ordered the concrete for the driveway. Deville also testified he met Cora only once, at her home, when the slab for her house was being poured. He additionally testified that the customary practice is that the contractor orders the concrete because the homeowner has no idea of the amount of yardage needed. There is no dispute Fontenot contracted with Concrete Service for the earlier slab concrete provided on Joshua and Cora’s home building project. As La.R.S. 9:2781(D) (emphasis added) states, the open account includes any amount past due “whether or not at the time of contracting the parties expected future transactions. See also Credit Bureau Services, 10 So.3d at 884.

Additionally, we reject the assertion that Fontenot acted as agent or mandatory for Joshua and Cora.

Under Louisiana law, an agency relationship is created by either express appointment of a mandatory under Civil Code Article 2985 or by implied appointment arising from apparent authority, Lou-Ark Equipment Rentals, Co. v. Hong Ah-Fong, 355 So.2d 1019 (La.App. 4th Cir.1978).... It is settled law in this State that an agency relationship cannot be presumed, it must be clearly established.

Roberson Adver. Serv., Inc. v. Winnfield Life Ins. Co., 453 So.2d 662, 665 (La.App. 5 Cir.1984).

No such appointment was made by Joshua or Cora and there is nothing in the record to suggest any implied appointment of Fontenot as their agent or mandatory. Moreover, any of the parties dealing with Fontenot on Joshua and Cora’s project “had an affirmative duty to determine the extent and scope of’ | SFontenot’s authority to bind Joshua and Cora. Roberson Ad. Serv., Inc., 453 So.2d at 665. There is no evidence to this effect anywhere in this record.

Under the provisions of La. R.S.9:2781(A), the Plaintiffs would be enti-tied to recover attorney fees and costs against Fontenot, who was also a named Defendant, however, in failing to appeal the amended judgment which dismissed all of Plaintiffs’ claims against Fontenot, they have lost their right to recover these damages from Fontenot. The Plaintiffs are not entitled to recover attorney fees and costs against Joshua and Cora because the open accounts were between Fontenot and the Plaintiffs. We therefore reverse that portion of the judgment awarding such damages against Joshua and Cora.

We also reject the notion that the Plaintiffs/Subcontractors are entitled to recover under the theory of actio in rem verso, or unjust enrichment. There are five elements to recovery under this theory including the “absence of a remedy at law.” Roberson, 453 So.2d at 665 (citing Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) and G. Woodward Jackson Co., Inc. v. Crispens, 414 So.2d 855 (La.App. 4 Cir.1982)). Quoting the learned Justice Albert Tate, the court in Roberson found the equitable remedy of unjust enrichment unavailable to a plaintiff despite the fact that the defendant had been enriched at the expense of plaintiffs impoverishment. Justice Tate explained the inapplicability of this remedy as follows:

[N]o other legal remedy is practically available to the impoverished plaintiff by which the impoverishment might be or might reasonably have been avoided (this is the principle of “subsidiarity” by which the extraordinary remedy of unjustified enrichment, not provided by the Civil Code, is regarded as unavailable where another legal remedy could have prevented the impoverishment).

Id. at 666.

|gThe Plaintiffs/Sub-contractors here had additional legal remedies available to them including collecting on an open account against Fontenot. They also could have timely filed liens to recover from the owners of the property on which they had provided goods and services, but, as discussed below, failed to do so. They are therefore prohibited from resorting to the extraordinary remedy of unjust enrichment.

We find that the liens filed by Smith A.C. and Smith Plumbing were untimely filed. Subcontractors like Plaintiffs herein are accorded a privilege on an immovable securing certain obligations under the provisions of La. R.S. 9:4801.

The following persons have a privilege on an immovable to secure the following obligations of the owner arising out of a work on the immovable:
(1) Contractors, for the price of their work.
(2) Laborers or employees of the owner, for the price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the owner that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.

They are also accorded a claim against the owner and contractor of a construction project under the provisions of La.R.S. 9:4802(A) and (E):

A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a subcontractor, for the price of work performed at the site of the immovable.
(3)Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable.
|10E. A claimant may assert his claim against either the contractor, his surety, or the owner without the joinder of the others. The claim shall not be subject to a plea of discussion or division.

The procedure for preserving these claims and privileges over an owner’s property in a construction project are provided for in La.R.S. 9:4822(C):

Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:
(1) The filing of a notice of termination of the work; or
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.

It is without dispute that no notice of termination was filed in this matter. There is no serious dispute that Joshua and Cora moved into and began living in their new home on July 25, 2009. Louisiana law statutorily defines “substantial completion” in La.R.S. 9:4822(H) (emphasis added) as follows:

H. A work is substantially completed when:

(1) The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
(2) The oumer accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

Joshua and Cora’s home was substantially completed as of July 25, 2009. Plaintiffs assert that additional work was performed on the house after that date, but we find these were merely “minor or inconsequential” items of work such as installation of a light fixture. The Plaintiffs had sixty days from July 25, 2009, to file their liens. The earliest lien was not filed until October 2, 2009, beyond the | nsixty-day time limit. The liens were therefore invalid, and, under the express provisions of La.R.S. 9:4823 the Plaintiffs’ privilege and claim were extinguished:

A. A privilege given by R.S. 9:4801, a claim against the owner and the privilege securing it granted by R.S. 9:4802, or a claim against the contractor granted by R.S. 9:4802 is extinguished if:
(1) The claimant or holder of the privilege does not preserve it as required by R.S. 9:4822....

Joshua and Cora sent written demand requesting that Smith A.C. and Smith Plumbing cancel the liens within ten days of receipt of notice for the reason that the liens were untimely filed. This request went unanswered, and the liens were not cancelled until almost five months after written demand to remove the liens. Cora and Joshua are therefore entitled to recover attorney fees, costs and general damages for the untimely filed liens as provided in La.R.S. 9:4833:

A. If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of the claim or privilege to give a written request for cancellation in the manner provided by law directing the recorder of mortgages to cancel the statement of claim or privilege from his records. The request shall be delivered within ten days after a written request for it is received by the person filing the statement of claim or privilege.
B. One who, without reasonable cause, fails to deliver a written request for cancellation in proper form to cancel the claim or privilege as required by Subsection A of this Section shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be cancelled.

Cora and Joshua testified that the filing of these liens caused them much anxiety. The liens remained in place for approximately five months. We find an award of $2,000.00, plus legal interest from date of judicial demand until paid, to Cora, and $2,000.00, plus legal interest from date of judicial demand until paid, to | ^Joshua for general damages is appropriate, as well as an award for reasonable attorney fees in the amount of $3,500.00 to Joshua and Cora.

Although we find the Plaintiffs cannot avail themselves of an unjust enrichment claim, we also find that Cora created a civil obligation to pay the Plaintiffs for the agreed amounts owed because she acknowledged and reaffirmed the debt, and by her own words, promised, even at trial under oath, to pay the stipulated amounts owed to Plaintiffs.

A natural obligation may serve as consideration or cause for a civil obligation. See, LSA-C.C. art. 1761; Thomas v. Bryant, 25,855 (La.App. 2 Cir. 6/22/94), 639 So.2d 378, 380. According to LSA-C.C. art. 1760, a natural obligation “arises from circumstances in which the law implies a particular moral duty to render a performance.” However, not every moral duty will give rise to a natural obligation. See, LSA-C.C. art. 1762, comment (b). In Thomas v. Bryant, the court recognized that the following requirements must be satisfied in order for a moral duty to constitute a natural obligation:
(1) The moral duty must be felt towards a particular person, not all persons in general.
(2) The person involved feels so strongly about the moral duty that he truly feels he owes a debt.
(3) The duty can be fulfilled through rendering a performance whose object is pecuniary.
(4) A recognition of the obligation by the obligor must occur, either by perfoi’ming the obligation or by promising to perform. This recognition brings the natural obligation into existence and makes it a civil obligation.
(5) Fulfillment of the moral duty must not impair the public order.

Azaretta v. Manalla, 00-227 (La.App. 5 Cir. 7/25/00), 768 So.2d 179, 180. See also Succession of Aurianne, 219 La. 701, 53 So.2d 901, 904 (1951) which held that “[a] promise to pay a debt made after prescription has accrued creates a new obligation binding on the debtor.” Further, Cora admitted the work was | ^satisfactory. She testified that her refusal to pay the Plaintiffs was based on her dispute with Fonte-not and acknowledged the Plaintiffs deserved to be paid.

For the reasons stated, we render judgment in favor of Smith Plumbing in the amount of $18,566.06, plus legal interest from date of judicial demand until paid; Smith A.C. in the amount of $7,618.00, plus legal interest from date of judicial demand until paid; and Concrete Service in the amount of $7,030.50, plus legal interest from date of judicial demand until paid. The law does not entitle Plaintiffs to recover attorney fees on these civil obligations from Joshua and Cora.

We further render judgment in the amount of $2,000.00, plus legal interest from date of judicial demand until paid, to Cora, and $2,000.00, plus legal interest from date of judicial demand until paid, to Joshua for general damages, as well as an award for reasonable attorney fees in the amount of $3,500.00 to Joshua and Cora.

Court costs in each of the three consolidated proceedings are to be divided as follows. In Smith Plumbing v. Joshua Paul Manuel, Et al., Docket Number 71250, Thirteenth Judicial District Court, Smith Plumbing shall pay fifty percent of court costs, and Joshua and Cora Manuel will pay fifty percent of court costs. In Smith Air Conditioning, Inc. v. Joshua Paul Manuel, Et Al., Docket Number 71257, Thirteenth Judicial District Court, Smith Air Conditioning, Inc. shall pay fifty percent of court costs, and Joshua and Cora Manuel will pay fifty percent of court costs. In Ville Platte Concrete Service, Inc., v. Joshua Paul Manuel, Et Al, Docket Number 71446, Thirteenth Judicial District Court, all court costs are to be paid by Joshua and Cora.

Reversed in part, and Judgment Rendered.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Lucien HOWARD v. Dr. Jared VINCENT, Dr. Linda Vargas, Dr. Delmar Caldwell, Dr. John Ghobrial, the Medical Center of Louisiana at New Orleans and the Administrators of the Tulane Educational Fund d/b/a Tulane University Health Sciences Center (formerly Tulane University Medical Center).
    No. 2011-CA-0912.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2012.
    Steven E. Psarellis, Psarellis & Associates, New Orleans, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Michelle A. Bo-urque, Niles Bourque Fontana & Knight, L.L.C., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

| iThis is a medical malpractice complaint. Plaintiff, Lucien Howard, appeals the summary judgment granted in favor of the defendants, Dr. Delmar Caldwell, Dr. John Ghobrial, and The Administrators of the Tulane Educational Fund, d/b/a Tulane University Health Sciences Center.

The trial court granted summary judgment based on its finding that the plaintiffs expert, Dr. Matthew Goren, was unqualified to render an opinion about the standard of care in the treatment of glaucoma. However, our review of the record revealed that Dr. Goren stated he possessed the requisite qualifications to testify about the standard of care for glaucoma. He also testified that Dr. Caldwell breached the standard of medical care in regards to his treatment of Mr. Howard. We find this testimony created genuine issues of material fact that preclude summary judgment relief. However, he identified no breach of the standard of care by Dr. Ghobrial. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

| .FACTS AND PROCEDURAL HISTORY

Plaintiff, Lucien Howard, went to the emergency room of the Medical Center of Louisiana at New Orleans (MCLNO) with complaints of right eye irritation, inability to focus, and redness in the eye in November 2000. He returned to the emergency room with similar complaints, at which time Dr. Jared Vincent diagnosed him with a corneal ulcer. Mr. Howard ultimately underwent two corneal transplants, one in December 2000 and another one in August 2001.

Mr. Howard’s eye problems continued. He developed glaucoma with an increased right eye intraocular pressure. He transferred his treatment to Tulane University Hospital Clinic (TUHC) on October 8, 2001. He was treated at TUHC by Dr. Delmar Caldwell and Dr. John Ghobrial, a resident, for intraocular eye pressure and glaucoma between October 8, 2011 and February 25, 2002. On October 8, 2001, Dr. Caldwell performed an Ahmed valve placement in Mr. Howard’s right eye; and on February 5, 2002, Dr. Caldwell performed a laser procedure on Mr. Howard’s right eye to relieve a blockage in the Ahmed valve. Mr. Howard chose not to return to TUHC after February 25, 2002.

In the interim, Mr. Howard initiated a medical review panel proceeding on November 20, 2001, against TUHC, Dr. Caldwell, and Dr. Ghobrial. He alleged that their negligence caused him severe and permanent visual impairment and |,.¡enormous suffering. The medical review panel found that the defendants complied with the standard of care for ophthalmology. Thereafter, Mr. Howard filed suit against TUHC, Dr. Caldwell, and Dr. Gho-brial in the Civil District Court for the Parish of Orleans based on the same allegations in the medical review panel complaint.

TUHC, Dr. Caldwell, and Dr. Ghobrial filed a Motion for Summary Judgment. The trial court granted the motion, finding that the plaintiff lacked favorable expert testimony to support plaintiffs claim that the defendants breached the applicable duty of care. This appeal followed.

STANDARD OF REVIEW

In Descant v. Herrera, this Court outlined the standard of review for an appellate court to review a trial court’s decision to grant summary judgment:

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Savings & Loan Association of Scotlandville et al., 615 So.2d 318, 325 (La.1993). The Motion for Summary Judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter, the movant’s burden on the motion requires him only to point out the absence of factual support for one or more elements essential to the adverse party’s claims, action or defense. Davis v. Board of Supervisors of Louisiana State University and Agricultural Mechanical College, 97-0382, p. 7 (La.App. 4 Cir. 3/18/98), 709 So.2d 1030, 1033.

403-0953, pp. 8-9 (La.App. 4 Cir. 12/22/04), 890 So.2d 788, 793. However, if qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 19 (La.2/29/00), 755 So.2d 226, 237.

TESTIMONY OF PLAINTIFF’S EXPERT RE: BREACH OF DUTY OF CARE

Mr. Howard’s only assignment of error contends that the trial court erred in granting the defendants’ motion for summary judgment when it was presented with the testimony of his expert, Dr. Matthew Goren.

Dr. Goren criticized the treatment that Mr. Howard received from TUHC between October 2001 and February 2002. He testified that following Dr. Caldwell’s placement of the Ahmed valve in August 2001, Mr. Howard retained dangerously high pressures that were allowed to exist for four months without any surgical intervention. He advised that it was a breach of the standard of care not to do anything more for months to bring the pressures down. He testified that some surgical procedure needed to be performed to reduce the pressure. He added that he would defer to a glaucoma specialist as to the best procedure to reduce the pressure.

The trial court and the defendants considered Dr. Goren’s testimony that he would defer to a glaucoma specialist to select the best procedure to reduce Mr. Howard’s eye pressure as an acknowledgment on his part that he was unqualified to render an opinion about the standard of care in the treatment of glaucoma. We find this is a mischaracterization of Dr. Goren’s testimony.

| /When asked if he would defer to a glaucoma specialist regarding whether there was or was not a breach of the standard of care with regard to the management of Mr. Howard’s pressure between October 9, 2001 and February 2002, he answered, “no, I think I’m qualified to make the opinion that having pressures up in the 40s for months is a breach of the standard of care.” Dr. Goren also identified options for controlling Mr. Howard’s pressure. The options were additional cy-clodestructive surgery, trabeculectomy surgery, and additional valve surgery. Dr. Goren responded that he could testify to a reasonable degree of medical probability that “something would have worked” when questioned as to whether any of these procedure would have controlled Mr. Howard’s pressure between October 9, 2001 and February, 2002. He reiterated throughout his testimony that his deference to the glaucoma specialist/surgeon was only to select the appropriate surgical procedure. Our review of his testimony demonstrated that he consistently testified that the failure to select another surgical procedure for four months after the initial Ahmed valve placement surgery to reduce Mr. Howard’s pressure was below the standard of care.

Pursuant to La. R.S. 9:2794, in order to prevail in a medical malpractice claim, the plaintiff must prove 1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians within the involved medical specialty; 2) that the defendant either lacks this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and 3) that as a direct and proximate result of this lack of knowledge or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. White v. McCool, 395 So.2d 774, 776 (La.1981). The defendants argue that Dr. Goren cannot render an | (¡opinion as to any breach of the standard of care as required by La. R.S. 9:2794 because he lacks expertise in the treatment of glaucoma, the alleged condition involved in the instant complaint. We disagree.

Where the alleged acts of negligence raise issues peculiar to the particular specialty involved, then only those qualified in the specialty may offer evidence of the applicable standard of care. La. R.S. 9:2794(A)(1). However, it is a specialist’s knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised. A particular specialist’s knowledge of the subject matter on which he is to offer testimony is determined on a case by case basis. McDaniel v. Reed, 00-2529, p. 3 (La.App. 4 Cir. 10/3/01), 798 So.2d 1121, 1123, citing McLean v. Hunter, 495 So.2d 1298 (La.1986).

In McLean v. Hunter, the Louisiana Supreme Court determined that a periodontist was qualified to testify as to the standard of care expected of general dentists. In this matter, Dr. Goren is a board certified ophthalmologist. He previously served as the chairman of the Ophthalmology Department at the Veterans Administration Hospital in Chicago, Illinois through his affiliation with Northwestern University. He has been qualified as an expert in four states, including Louisiana. The defendants never challenged his qualifications as an expert in the field of ophthalmology. Dr. Goren’s testimony, his knowledge of the subject matter, and his eredentialed background as an ophthalmologist, established his qualifications to testify as an expert on the standard of care mandated in the treatment of Mr. Howard’s glaucoma. His testimony raised genuine issues of material fact as to whether Dr. Caldwell’s treatment breached the standard of care. These issues preclude summary judgment relief. Accordingly, the trial court erred 17in granting summary judgment based on its conclusion that Dr. Goren did not qualify to render an opinion about the standard of care in the treatment of glaucoma.

BREACH OF THE STANDARD OF CARE BY DR. GHOBRIAL

The uncontroverted facts show that Dr. Ghobrial was a resident physician, who at all times during the treatment of Mr. Howard at TUHC, wholly deferred to the medical judgment of his supervising physician, Dr. Caldwell. Dr. Goren agreed that there was no breach of the standard of care by Dr. Ghobrial provided that Dr. Caldwell made all the treatment decisions. Mr. Howard did not put on any evidence to contest whether or not Dr. Ghobrial was under the total supervision of Dr. Caldwell and/or whether he had an independent duty as a resident to offer treatment that could have reduced Mr. Howard’s eye pressure. Thus, Dr. Ghobrial is entitled to summary judgment relief.

DECREE

Based on the foregoing, the judgment of the trial court is affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

      . Mr. Howard also filed a separate, but related request for a medical review panel against Dr. Jared Vincent, Dr. Linda Vargas, and the MCLNO alleging that they all breached the standard of care with regard to Mr. Howard's treatment between 2000 and 2002. The review panel concluded that these defendants also complied with the standard of care. In the lawsuit subsequently filed, the trial court granted a motion for summary judgment in the defendants' favor. However, the present appeal covers only the complaint against TUHC, Dr. Caldwell, and Dr. Ghobrial.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Charles HARRIS.
    No. 2011-KA-0663.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY C. LOBRANO).
   DANIEL L. DYSART, Judge.

[ i Charles Harris appeals his jury conviction of being a felon in possession of a firearm (La. R.S. 14:95.1) and simple assault (La. R.S. 14:38). He contends that the trial court erred in failing to grant his motion for a new trial and that he had ineffective assistance of counsel. For the reasons set forth below, we affirm the conviction and remand to the trial court for the imposition of the mandatory fine called for in count one of the bill of information.

Background

On April 22, 2010, the State filed a two count bill of information charging the defendant in count one with being a felon in possession of a firearm (La. R.S. 14:95.1) and in count two with aggravated assault with a dangerous weapon (La. R.S. 14:37.4). The defendant pled not guilty; after the trial court found probable cause and denied the defendant’s motion to suppress, the matter proceeded to trial on November 16, 2010. On the date of trial, the State amended count two of the bill of information to charge the defendant with aggravated assault by discharging a weapon.

12Puring the deliberations phase, the jury submitted a written question to the court regarding the sentencing provisions of one of the two charges. In response to the question, the trial court addressed the jury, and the jury returned to its deliberations. The jury then found the defendant guilty as charged on count one and guilty of the lesser included offense of simple assault on count two.

On December 3, 2010, the defendant filed a motion for new trial and for post-verdict judgment of acquittal, which the trial court denied. After the defendant waived all legal delays, the court sentenced him on count one to ten years at hard labor without benefit of parole, probation, or suspension of sentence. As to count two, the court sentenced defendant to six months in parish prison. The two sentences were ordered to be served concurrently. The defendant filed a motion for appeal on the same day.

BACKGROUND

Because this appeal concerns a procedural, rather than factual issue, a recitation of the facts elicited at trial is not necessary. We focus, rather, on the specific issues at hand, concerning an exchange which took place during the jury’s deliberations. After receiving a written question from the jury regarding the applicable sentencing provision for count one of the bill of information, the trial judge seated the jury and the following exchange took place:

THE COURT:
All right. Let the record reflect that the jury is back with a question and everyone is present including the defendant. As I read the question — the question states as follows: Does attempted possession carry a lesser sentence? What is the sentence range? Sentencing is normally left up to me, and because it is, I cannot tell you if it’s a lesser sentence or not. You already know what| — the3 defense attorney has already told you what the sentence is as it is, but I cannot tell you or not. Yes?
THE JUROR:
Does the ten-year sentence come with parole?
THE COURT:
Yes, it covers that also, yes. The ten-year sentence insofar as — tell me some more about that. You say whether or not it covers parole. What do you mean?
THE JUROR:
Wasn’t there a mandatory state ten-year sentence for aggravated — I mean, one of the charges?
THE COURT:
Yes, it is.
THE JUROR:
Does that come with parole?
THE COURT:
Oh, does that come with parole, parole eligibility?
THE JUROR:
Parole eligibility?
THE PROSECUTOR:
Actually, it does, Judge.
THE COURT:
I can’t tell you. Any other questions? That’s it?

It is this exchange, and more particularly, the statement of the prosecutor that the charge comes with parole eligibility, that forms the basis of this appeal.

ERRORS PATENT

A review for errors patent reveals an error in defendant’s sentence. The sentencing provisions of La. R.S. 14:95.1 provide that a person | ¿convicted of possession of a firearm by a convicted felon “shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.” (Emphasis added).

We note that the district court failed to impose the mandatory fine as required. Accordingly, the defendant’s sentence is illegally lenient. In State v. Williams, 2003-0802 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, this court held that a reviewing court must remand cases for the imposition of a mandatory fine where the trial court failed to do so. Accordingly, this matter shall be remanded to the trial court for the imposition of the mandatory fine for the felon in possession of a firearm conviction.

We further note that the record reflects that the defendant was not arraigned on the amended charge of aggravated assault by discharging a firearm. However, because the defendant did not object prior to trial, he is assumed to have plead not guilty to the charge. La.C.Cr. P. art. 555. Therefore, the failure of the record to show that he was arraigned on the charge warrants no relief. State v. Perez, 98-1407 (La.App. 4 Cir. 11/3/99), 745 So.2d 166.

ASSIGNMENT OF ERROR NUMBERS 1 & 2

As previously indicated, the defendant’s assignments of error, which he argues jointly, come solely from the prosecutor’s statement during deliberations that the sentence for count one provides for parole eligibility. The defendant contends that the trial court erred in failing to grant the motion for new trial and that he received ineffective assistance of counsel at trial.

IsThe defendant argues that he was prejudiced by the prosecutor’s statement, “[ajctually it does, judge” as the statement incorrectly conveyed to the jury that a conviction for attempted possession of a firearm by a convicted felon did not carry a prohibition against parole, as it does. The defendant argues that the questions submitted by the jury reflect that the jury “wanted to make sure Mr. Harris would benefit from either an attempt conviction or be eligible for parole.” The defendant contends that the prosecutor’s statement caused the jury to render a different verdict than it would have had the statement not been made, as the jury would have found the defendant guilty of attempted possession of a firearm by a convicted felon. As such, the defendant contends that the trial, court erred in denying his motion for new trial and now submits that his attorney provided ineffective assistance of counsel by failing to take some action in response to the prosecutor’s statement. He argues that his lawyer’s ineffective assistance provides a basis for granting his motion for new trial and an independent basis for relief by this court on appeal. For the reason’s set forth below, we feel the defendant’s assignments of error lack merit.

1). Failure to Grant Motion for New Trial

La.C.Cr.P. art. 851, which identifies the available grounds for a new trial, provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
|fi(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

A review of the records reflects that the defendant never raised the argument that he was prejudiced by the prosecutor’s statement or that he received ineffective assistance of counsel in either the motion for new trial or at the hearing on the motion. To the contrary, the motion for new trial appears to be a generic form motion without any specifics, and makes no mention of the errors under review. More particularly, the argument concerning the improper remark made by the prosecutor was never presented to the trial court for review. Accordingly, there is no basis to suggest that the trial court erred in denying the motion for new trial.

2). Ineffective Assistance of Counsel

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Landry, 499 So.2d 1320 (La.App. 4th Cir. 1986).

A defendant’s claim of ineffective assistance of counsel is to be assessed by a two-part test: the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). Counsel’s performance is 17ineffective when it can be shown that he made errors so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment. Strickland, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4th Cir.1992).

The defendant contends that the prosecutor’s statement was a comment that should have led to mistrial under La. C. Cr. P. art. 770 or at least an admonition pursuant to La.C.Cr.P. art. 771, and that his lawyer was ineffective for failing to request either action after the prosecutor made the statement.

La.C.Cr.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
|8(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

La.C.Cr.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. State v. Leonard, 2005-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. The mere possibility of prejudice is insufficient to warrant a mistrial. Id,

The defendant points to, and we see, no remark or comment under art. 770 upon which a mistrial could have been granted. Thus, there is no basis to suggest that the prosecutor’s statement could have resulted in a mistrial. However, to the extent the statement at issue incorrectly informed the jury that a conviction for attempted possession of a firearm by a convicted felon [i)did not carry a prohibition against parole, as previously noted, defense counsel certainly could have taken some action to remedy the incorrect statement. No such action was taken.

Nevertheless, assuming for purposes of argument that counsel’s performance was deficient, there is nothing to suggest that the outcome of the trial would have been different. The defendant’s argument that the questions submitted by the jury reflect an intent to ensure that the defendant would benefit from a lesser sentence (attempt) or would be eligible for parole and that the outcome of the trial would have been different had the jury not been misinformed of the penalty provisions of La. R.S. 14:95.1 is pure conjecture. A reading of the exchange quoted above could lead to numerous interpretations and suggestions and we cannot speculate as to the effect, if any, of the prosecutor’s incorrect statement of the sentencing provisions. We are not convinced the prosecutor’s comment influenced the jury and contributed to the guilty verdict. See: State v. Maxwell, 2011-0564 (La.App. 4 Cir. 12/21/11), 83 So.3d 113.

We further note that, under La. R.S. 14:27, the attempt statute, a person convicted for attempt “shall be fined or imprisoned or both, in the same manner as for the offense attempted.” Thus, under either charge (possession of a firearm by a convicted felon or the attempt of same), the defendant would not have been eligible for parole. The prosecutor’s statement, while incorrect, is inconsequential and we find that the defendant has failed to carry his burden. Defendant’s assignments of error lack merit.

| ^CONCLUSION

Based on the foregoing, we affirm the convictions and remand for the limited purpose of amending defendant’s sentence under count one to include the mandatory fine under La. R.S. 14:95.1.

CONVICTION AFFIRMED; REMANDED

JONES, C.J., dissents.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana in the Interest of T.M.
    No. 2011-CA-1238.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2012.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11The juvenile-court judge adjudicated T.M., a child, delinquent for a first-offense possession of a handgun, a violation of La. R.S. 14:95.8, and for unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. T.M. appeals both delinquency adjudications and argues on appeal that the evidence as to both is insufficient to support a finding beyond a reasonable doubt that he violated the statutes.

Upon our review of the entire record, we find that the juvenile-court judge was clearly wrong in finding beyond a reasonable doubt that the State proved that T.M. possessed a handgun on his ■person, an essential element of the offense. We also find that the juvenile-court judge was clearly wrong in finding beyond a reasonable doubt that the vehicle as described in the petition is the one identified in the evidence as being used by T.M. without authorization. Because we find that the State failed to carry its burden of proof on one essential element of each of the |2offenses charged, we reverse the adjudications of T.M., we dismiss the proceedings with prejudice, and we order his discharge from custody.

In the following Parts we explain in greater details our holdings.

I

At the outset we address the State’s burden of proof in a juvenile-adjudication proceeding and the standard by which we review an adjudication.

A

In a juvenile-adjudication proceeding, the State must prove the child delinquent beyond a reasonable doubt in an adjudication proceeding. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the proof standard required in a criminal proceeding against an adult.” State in the Interest of A.G. and R.N., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93). This burden of proof stems from the application of the Fourteenth Amendment’s Due Process clause which requires the application of the “essentials of due process and fair treatment” during the adjudication hearing. In re Winship, supra at 359, 90 S.Ct. 1068 Importantly, the State must prove |abeyond a reasonable doubt each and every element of the offense. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And, of course, by statute, T.M. enjoys the same protection: “in order to adjudicate a child a delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition.” La. Ch.C. art. 883.

A child who is the subject of a delinquency adjudication proceeding enjoys Due Process safeguards. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). “All rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to trial by jury, shall be applicable in juvenile court proceedings brought under this title.” La. Ch.C. art. 808. This includes, of course, the opportunity to confront and cross-examine his accusers, have adequate safeguards against self-incrimination, and protection against erroneously admitted hearsay testimony. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); La. Ch.C. art. 808.

B

While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature. State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. Consequently, under La. Cont. art. V, § 10(B), the appellate court must review both the law and facts when the court reviews juvenile adjudications. A factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979).

We apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of D.R., 10-0405, p. 9 (La.App. 4 Cir.10/13/10), 50 So.3d 927, 932. This “clearly wrong” standard is broader than the constitutional minimum standard of review granted by Jackson v. Virginia. This minimal standard of review provided by Jackson must be satisfied for either an adult conviction or a juvenile adjudication in order to fulfill the Due Process requirement of the Fourteenth Amendment. Id., p. 14, 50 So.3d at 935-36. “[A] juvenile adjudicated a delinquent would be entitled to a Jackson v. Virginia review but for Louisiana’s provision that a less deferential, or a broader, standard is available to the juvenile.” Id., p. 13, 50 So.3d at 934. So, this standard of review as seen in Batiste, entitles a child adjudicated a delinquent in Louisiana to a “broader scope and standard of review than the minimum required by the Due Process Clause.” Id., 10-0405, 50 So.3d at 935.

The Jackson standard of review requires a review of the facts tilted in favor of the prosecution. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In State ex rel. D.M., we stated that “all facts which may have been theoretically proved by the prosecution are accepted; the review is not limited to those facts which the fact-finder actually found, perhaps discarding or disregarding some but not all prosecutorial “facts” or prosecutorial inferences.” State ex rel. D.M., 11-00462, p. 12 (La.App. 4 Cir. 11/02/11), 80 So.3d 18.

Additionally, the Jackson v. Virginia review requires only that any rational trier of fact be convinced beyond a reasonable doubt, but the Batiste standard looks to “this particular trier of fact and whether his or her decision that there was proof beyond a reasonable doubt is not clearly wrong and is reasonable.” Id., p. 13, 80 So.3d 18. Even though the use of this Batiste standard provides a broader scope of review than Jackson v. Virginia, the Batiste standard “remains highly deferential to the function and findings of the trier of fact, the juvenile judge.” Id., p. 13, 80 So.3d 18.

IfiThus, in performing our review function in a juvenile-adjudication proceeding, we must determine whether the trial judge’s factual findings as to whether each and every essential element of the offense charged has been proved beyond a reasonable doubt are reasonable and not clearly wrong. If the findings as to any one essential element are unreasonable and clearly wrong, we must conclude that the evidence is insufficient to sustain the adjudication of the child delinquent.

Ill

In this Part we consider the essential elements of the offense of a juvenile in illegal possession of a handgun on his person and then consider the facts supported by the record.

A

“It is unlawful for any person who has not attained the age of seventeen years knowingly to possess a handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of handgun by a juvenile.” La. R.S. 14:95.8 A (emphasis added).

“The articles of this [Criminal] Code cannot be extended by analogy so as to create crimes not provided for herein.” La. R.S. 14:3. And all of the Criminal Code’s provisions “shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” Id. Moreover, where the |fiwords of a statute are clear and free from ambiguity, they are to be applied as written. See La. R.S. 1:4; State v. Watts, 2009-0912, p. 13 (La.App. 4 Cir. 6/16/10), 41 So.3d 625, 635.

We have previously addressed this issue in our unpublished decision in State in the Interest of T.S., 2007-0255 (La.App. 4 Cir. 9/7/07)(unpub.), where we analyzed actual possession “on the person” of the child, an essential element to this offense. There, the officer testified that he pulled a vehicle over and ordered T.S. to exit. Id. at p. 2. As T.S. exited the vehicle, he kicked a gun that was on the floorboard into the officer’s line of sight. Id. We reversed the adjudication of delinquency on the charge of illegal possession of a handgun by a juvenile, finding that the evidence was insufficient to sustain the adjudication as the officer did not find the gun on the person of T.S. as required by the statute. Id. at p. 5. There we effectively rejected the notion that § 95.8 A could be violated by a child’s constructive possession of a handgun.

The distinction may be well-drawn by contrasting two distinguishable provisions of La. R.S. 14:95. Both provisions criminalize carrying of weapons. One provision prohibits “[t]he intentional concealment of any firearm ... on one’s person.” La. R.S. 14:95 A(l). The other provision prohibits an offender from using, possessing, or having “under his immediate control” a dangerous weapon while in possession of or during the sale or distribution of a controlled dangerous substance. La. R.S. 14:95 E.

The first provision, the intentional concealment, has for a long time been restricted to actual possession on the person. Even when the statute provided a 17seemingly slightly broader formulation (“concealed on or about his person”), the Louisiana Supreme Court found that concealing a pistol inside the left front door of the defendant’s automobile, immediately beside the seat he was occupying and within his easy reach was insufficient to prove the charge. State v. Brunson, 162 La. 902, 111 So. 321 (1927). Chief Justice O’Neill wrote that the words “on” and “about” “are interchangeable or synonymous terms.” Brunson, 162 La. at 906, 111 So. at 323. He explained that “[w]hen it is said in ordinary parlance that a person had a document or a sum of money or a weapon on or about his person, we never think of analyzing the expression, or wonder whether the document, money or weapon, was really on the person or only in close proximity to or in easy reach of the person.” Id. The Chief Justice advised that “[a] safe rule of interpretation of statutes is to give to commonplace terms their most usual and ordinary meaning.” Id. And, he emphasized, that “the safest of all rules, in the construing of criminal statutes of doubtful meaning, is to resolve the ambiguity into the milder construction, in favor of the party accused.” Id.

But the carrying of a knapsack, whether suspended from the shoulder or in the hand, which contains a concealed weapon is “on or about his person.” State v. Jones, 168 La. 55, 121 So. 300 (1929); see also State v. Fluker, 311 So.2d 863 (La.1975) (involving a pistol holster attached to the defendant’s belt on his right hip). More up-to-date, we affirmed an adjudication for the delinquent act of 18carrying a concealed weapon in a purse. See State in the Interest of K.M., 10-0649 (La.App. 4 Cir. 9/29/10), 49 So.3d 460.

Under the other provision, there is no restriction to “on the person.” It extends to a person’s possessing a firearm or having one “under his immediate control.” “Possession” under La. R.S. 14:95 E includes both actual and constructive possession. See State v. Blanchard, 99-3439, p. 6 (La.1/18/01), 776 So.2d 1165, 1170. For this statute’s purposes, there can be a violation even when possession of the firearm and possession of the narcotics are both constructive. Id.; see also State in the Interest of D.R., 10-0404, pp. 2-3 (La.App. 4 Cir. 11/10/10), 51 So.3d 844, 847-848. Constructive possession exists when a person has dominion or control of the contraband. See, e.g., State v. Every, 2009-0721, p. 15 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 421.

In contrasting the two provisions, one readily observes that the unlawful concealment of a weapon “on the person” does not allow for extending the offense to instances of constructive possession. Circumstantial evidence, however, can be used to establish concealment on the person. See State in the Interest of I.P., 10-0882 (La.App. 4 Cir. 12/8/10), 53 So.3d 658. There the officer observed a young person with his hand over his waistband, as if trying to hold onto something. Id., p. 2, 53 So.3d at 659. The officer instructed the young person to place his hands on a building’s window and, as he complied, a handgun landed on the ground at the juvenile’s feet. Id., p. 3, 53 So.3d 658.

We have previously stated that what is prohibited by § 95.8 A is “the mere knowing possession of a handgun, concealed or unconcealed on someone’s person.” State in the Interest of D.J., 08-0786, p. 5 (La.App. 4 Cir. 2/11/09), 5 So.3d9 923, 926 (emphasis added). In comparing § 95 A(l) (the concealment statute) with § 95.8 A, we noted that under the first statute “carrying and possession are allowed as long as the weapon is not concealed, while under the [latter] statute, any possession is outlawed, whether concealed or not.” Id. But clearly the requirement of § 95 A(l) (“on one’s person”) and § 95.8 A (“on his person”) are identical and only proof beyond a reasonable doubt of actual possession of a handgun on the person of someone under seventeen-years old can suffice for an adjudication of delinquency under § 95.8 A. Constructive possession alone by the juvenile of a handgun is insufficient for a finding beyond a reasonable doubt that a juvenile unlawfully possessed a handgun.

B

We now turn to an examination of the facts.

Officer Slagle, in the company of other police officers, arrived at a location for which there had been complaints of young people smoking narcotics on the porch. While the other officers attended to the suspects on the porch, Officer Slagle spotted T.M. on the ground, crouching between the porch and a fence near a garbage can.

The undisputed evidence in this case is that Officer Slagle, the sole witness on this charge, only noticed the handgun on the ground next to where T.M. was crouched when T.M. stood up. Officer Slagle never saw T.M. with the gun on his person. The officer described the handgun as being in “close proximity” to T.M. He conceded that he never saw the gun in T.M.’s hand.

lipT.M. thus argues that the evidence adduced at trial was insufficient in that the State failed to prove that he possessed a handgun on his person.

The State responds that the juvenile-court judge as fact-finder could have concluded that T.M. had the gun on his person and then removed it when the officer discovered him. The State noted that while it is possible that a handgun was on the ground where T.M. coincidentally crouched down, the trier of fact could have reasonably inferred that the only reasonable explanation was that T.M. had just had the handgun on his person and discarded it on the ground where it was first discovered. We disagree.

To permit the fact-finder to make such an inference under these facts would im-permissibly expand the conduct prohibited by § 95.8 A to include constructive possession. While a fact-finder might reasonably infer that T.M. was constructively in possession of a handgun, such conduct is not proscribed by La. R.S. 14:95.8 A.

We, therefore, find that the juvenile-court judge was clearly wrong in finding that the State proved beyond a reasonable doubt that T.M. unlawfully possessed a handgun on his person. Because the evidence is insufficient to sustain the State’s burden on this charge, we reverse the adjudication.

IV

In this Part we consider the essential elements of the offense of unauthorized use of a motor vehicle and then consider the facts supported by the record.

A

“Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” La. R.S. 14:68.4. [nThe essential elements of the crime of unauthorized use of a motor vehicle are: (1) the intentional taking or use (2) of a motor vehicle (3) which belongs to another (4) without the other’s consent or by fraud. State v. Broussard, 09-1225, p. 3 (La.App. 3 Cir. 04/07/10), 34 So.3d 459, 461 citing State v. Rios, 44,132, p. 4 (La.App. 2 Cir. 4/8/09), 7 So.3d 832, 834.

First, the State must prove that T.M. intentionally took or used a motor vehicle. Specifically, the Louisiana Supreme Court “has expressly construed unauthorized use of a movable as ‘requiring a showing of mens rea or criminal intent, since the ‘evil’ state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another).’ ” State v. Bias, 400 So.2d 650, 652-53 (La.1981). If the State cannot prove the taking of the motor vehicle by T.M., the state must prove that T.M. knew the vehicle was taken without authorization. See State in the Interest of O.B., 559 So.2d 31, 33 (La.App. 4th Cir.1990) (“O.B. testified that he had no idea the car was stolen when he accepted the ride.”); State in the Interest of H.N., L.C., T.B., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, 668 (“He said that he did not know the car was stolen.”); State v. Stevenson, 02-1152, p. 5 (La.App. 4 Cir. 1/22/03), 839 So.2d 203, 206 (“Accordingly, the evidence failed to establish that the defendant took or used the vehicle with the knowledge that it was stolen.”).

The State may use circumstantial evidence to prove T.M. knew the vehicle was taken without authorization, but this evidence must “exclude every reasonable hypothesis of innocence.” See State in the Interest of T.C., 09-1669, p. 5 (La.App. Cir.2/16/11), 60 So.3d 1260, 1263. See also LA. R.S. 15:438. Because of this high-standard of proof regarding the use of circumstantial evidence, the mere | ^inference of wrongful conduct from use of the vehicle does not create intent. State in the Interest of C.B., 09-1114, p. 8 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 529.

Secondly, the State must prove that T.M. took or used specifically a motor vehicle. State v. Broussard, 09-1225 (La.App. 3 Cir. 04/07/10), 34 So.3d 459, 461.

Third, the State must prove that the defendant took or used a motor vehicle which belonged to another. In State v. Dunbar, the Louisiana Supreme Court ruled that:

the crime of unauthorized use of a motor vehicle as defined in La. R.S. 14:68.4 is ... an offense against property, and ... the description of the vehicle taken or used, and not the identification of a particular person to whom the vehicle belonged, is essential to charging and proving the crime.

State v. Dunbar, 07-0219, p. 7 (La.02/26/08), 978 So.2d 899, 903 (La.2008). In discussing this essential element, the court stated that even if the state failed to prove that the vehicle specifically belonged to Ms. Adams, the “question remained whether the state had thereby also failed to prove that the vehicle ‘belonged to another’ for purposes of La. R.S. 14:68.4.” Id, p. 6, 978 So.2d at 902. The court concluded that the collective facts of “officer testimony that the vehicle had been reported stolen, identification of the owner through vehicle registration records, and subsequent conversations between the Officer and the owner confirming the theft ... provided the jury a rational basis to conclude that the Acura belonged to another person and not to defendant.” Id, p. 8, 978 So.2d at 904.

To prove the fourth essential element, the State must show that the defendant took or used the motor vehicle without consent or by means of fraudulent conduct. In State v. Macon, The Louisiana Supreme Court ruled that La. R.S. 14:68.4 “does |13not specifically require the titled owner of the vehicle to testify and/or identify the vehicle.” State v. Macon, 2006-481, p. 14 (La.06/01/07), 957 So.2d 1280, 1287. The court held that if the State can prove that the defendant was aware that he was driving a stolen vehicle, then we can presume that there was no legitimate permission given to him to drive that particular vehicle. Id. The court in Macon concluded that the defendant had knowledge because he was stopped by the police for driving a vehicle he did not own with a tampered VIN, which led to the discovery of the true VIN and identity of the owner who previously reported the vehicle stolen. Id. p. 19-20, 957 So.2d at 1287-1288. Together with testimony by the defendant that he knew the vehicle was stolen, the court found that the defendant knew he had unauthorized use of a motor vehicle. Id.

Similarly, in State v. Broussard, the defendant argued that the evidence was insufficient to prove his guilt beyond a reasonable doubt “because the owner never testified or swore under oath that the vehicle was taken without his authority.” State v. Broussard, 09-1225, p. 6 (La.App. 8 Cir. 04/07/10), 34 So.3d 459, 462. The court concluded that the evidence of the stolen vehicle report, a confirmation of the facts given in the report, verification that the vehicle belonged to the owner, and verification that the owner wanted to file a stolen vehicle report showed “the unauthorized taking of vehicle.” Id.

In contrast, this Court has allowed the owner’s testimony to suffice as proof for lack of authorization to use a motor vehicle. In State v. Gustavis, this Court ruled that because there is no requirement that the vehicle be stolen to prove La. R.S. 14:68.4, the testimony by the owner of the vehicle that she neither knew the 114defendant nor gave him permission to use the vehicle, was sufficient to prove that the defendant had unauthorized use of the motor vehicle in question. State v. Gustavis, 2000-1855, p. 18 (La.App. 4 Cir. 05/30/01), 788 So.2d 1242, 1248.

B

We now turn to an examination of the facts.

After T.M. was arrested on the handgun possession charged, the police learned that there was a warrant for his arrest arising from an incident which had occurred one week earlier. Officer Smith testified that he had investigated an auto theft on May 18, 2011 and concluded that T.M. was the suspect.

Before we parse the officer’s testimony and that of the other witnesses called by the State, we note that the charging petition accused T.M. of the intentional taking or use of a motor vehicle belonging to L.R. Notably, the vehicle was not otherwise or further described in the petition. And L.R., the alleged owner, did not testify at the trial. In fact, other than being described as a female victim who did not live at the location from where the vehicle was stolen, L.R. was not identified.

The State questioned Officer Smith about his conversation with the “owner” and about the arrest warrant which had issued for T.M. At no time did Officer Smith report, either from his own observations or from the information he obtained from the “owner,” the make, model, color, or vehicle identification number of the automobile. Officer Smith did not ever personally observe T.M. in any automobile.

The State also called as a witness David Cohn, who lives with T.M.’s mother and siblings. Mr. Cohn denied that he told Officer Smith that T.M. was in possession of “the car.” He admitted that Kevin Anderson, a neighbor, had asked 11ahim to search for Mr. Anderson’s car, a gold-130 Infinity. The State then recalled Officer Smith who testified that Mr. Cohn had made such a statement. Officer Smith also insisted that the “victim” was a female and not a male. He also stated that the car was stolen from the victim’s sister’s house. Neither the sister nor her house was identified.

Finally, the State called T.M.’s twelve-year old sister who agreed that she told Officer Smith that T.M. stole the car.

T.M. thus argues that the evidence adduced at trial was insufficient in that the State failed to prove that he took or used a motor vehicle in which he was unauthorized to use.

The State responds that the testimonies of Officer Smith and Tyronisha Mitchell support the finding that T.M. had unauthorized use of a motor vehicle. The state also asks the court to rely on the fact-finder’s determination that Officer Smith’s testimony is more credible than Mr. Cohn’s testimony. The state cites State in the Interest of D.R. which supports that:

when findings are based on determinations regarding the credibility of witnesses, the manifest-error clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

State in the Interest of D.R., 2010-0405, p. 12 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 931-932 (citing Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). So, because of Mr. Cohn’s relationship to the mother and T.M., the State asserts that the fact-finder’s credibility determination is reasonable. We disagree.

To permit the fact-finder to make a credibility determination based upon impeachment testimony is in contradiction with the Louisiana Code of Evidence. Section 607(D)(2) of the Louisiana Code of Evidence reads:

| , (¡Other extrinsic evidence, including pri- or inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

LA. CE 607(D)(2). In State v. Alexis, the 5th Circuit held that witness statements made to a police officer, which were inconsistent with testimony ... could not be considered substantive evidence of ... guilt. State v. Alexis, 98-1145, p. 26 (La.App. 5 Cir. 06/01/99), 738 So.2d 57, 67. The court stated that the Louisiana Legislature “rejected the broad doctrine of substantive use of all prior inconsistent statements” and restricted non-hearsay use to statements that are inconsistent with prior testimony given under oath. Id, p. 24, 738 So.2d 57. Therefore, it was inappropriate for the juvenile-court judge to use Officer Smith’s testimony as substantive evidence and weigh the credibility of his testimony over Mr. Cohn’s because Officer Smith’s testimony of Mr. Cohn’s prior inconsistent statement was not a statement made under oath, so it could only be used to attack credibility of the witness.

In totality, the record does not support the finding that T.M. was found to have used the car described in the petition. Neither the petition nor the record gives a description of L.R.’s vehicle that was reported stolen, and the record only reflects that T.M. was seen using a motor vehicle, but the record does not provide any description of the- vehicle T.M. was seen using or that he was using L.R.’s vehicle. Because this crime is a crime against property, the description of the vehicle is essential to proving the crime, and the State has failed to prove this essential element.

| nWe, therefore, find that the juvenile-court judge was clearly wrong in finding that the State proved beyond a reasonable doubt that T.M. had unauthorized use of a motor vehicle. Because this evidence is insufficient to sustain the State’s burden on this charge, we reverse the adjudication.

DECREE

Accordingly, we reverse the adjudication of delinquency of T.M. for the offenses of illegal possession of a handgun by a juvenile and of unauthorized use of a motor vehicle; we dismiss the delinquency petition with prejudice, and discharge the child from custody.

REVERSED AND RENDERED

      . The first offense handgun possession is a misdemeanor-grade delinquent act and the unauthorized use is a felony-grade delinquent act. See La. Ch.C. art. 804(3), (5), and (8).

      . In State in the interest of A.H., 2010-1673, p. 9 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 685, we determined that conducting an error patent review in juvenile delinquency cases was warranted. La. Ch.C. art. 844 provides that the petition utilized to commence a juvenile delinquency proceeding must be verified. The petition utilized to commence the proceedings against T.M. herein is unverified. In State in the Interest of A.H., however, we found that the prosecution of A.H. ratified the unverified petition. State in the Interest of A.H., 2010-1673, p. 9, 65 So.3d at 685. Additionally, the Supreme Court has noted that the proper remedy for a lack of a signature on a petition is a motion to quash. If the motion is not filed, the error is waived. State v. White, 404 So.2d 1202, 1205 (La.1981). Thus, while our review determined that the State failed to obtain a verification of the petition, we find that the prosecution of T.M. ratified the unverified petition. Further, T.M. failed to timely file a motion to quash the petition. Therefore, we deem the error to be harmless,

      . A review under the Jackson v. Virginia standard is made on "all of the evidence.” Jackson, 443 U.S. at 316, 99 S.Ct. 2781. See also Lockhart v. Nelson, 488 U.S. 33, 39-41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (all evidence includes evidence erroneously admitted). Under this standard, inadmissible evidence erroneously admitted is considered in a challenge to the sufficiency of evidence even if, had it been properly excluded, the remaining evidence would have been insufficient for a finding of guilt beyond a reasonable doubt. State v. Hearold, 603 So.2d 731, 734 (1992). Because we find from the entirety of the evidence here (admissible and erroneously inadmissible evidence) that all the evidence is insufficient to support the adjudications, we do not reach — and the parties have not briefed — whether under a Batiste standard of review for sufficiency in a juvenile adjudication proceeding we are so limited or whether we can excise erroneously admitted evidence in our review.

      . See La. R.S. 14:1 ("This Chapter shall be known as the Louisiana Criminal Code.”)

      . Notably, Brunson was decided under an even more stringent standard of review ("no evidence”) than the later Jackson v. Virginia, supra. Historically, based upon Louisiana’s constitution, a Louisiana court reviewing an adult conviction for the sufficiency of evidence was restricted to the "no evidence” standard. See, e.g., State v. Washington, 292 So.2d 234, 237 (La.1974) ("The sufficiency of the evidence is not reviewable on appeal; it is only where there is no evidence to support an essential element necessary to the conviction that the court will review the record on appeal.”). The Louisiana Supreme Court immediately characterized the Jackson v. Virginia standard of review as "broader” or "slightly broader” than the "no evidence” standard and noted that due process would be offended on direct appellate review of a conviction if a standard "lesser” than the one of Jackson v. Virginia were applied. State v. Mathews, 375 So.2d 1165, 1168 (La.1979).

      . The precise holding in D.J., that § 95.8 A was not chargeable as a delinquent act in juvenile court, has been legislatively overruled by subsequent amendment to La. Ch.C. art. 804(3).

      . The Court recognized that although officer’s testimony "had hearsay aspects, review of the sufficiency of evidence takes into account the entirety of the evidence introduced at trial, including evidence that may have been erroneously admitted." State v. Hearold, 603 So.2d 731 (La.1992); see Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).


author: TERRI F. LOVE, Judge. McKAY, J.,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of/and Michelle M. Gaspard v. Sharon COARD, Tony Joseph, and Direct General Insurance Company of Louisiana.
    No. 2011-CA-0799.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2012.

      Kimberly R. Louper, Matthew W. Bailey, Walsh & Bailey, LLC, Baton Rouge, LA, for Defendant/Appellee, Tony Joseph.
    Sharon Coard, New Orleans, LA, In Proper Person, Defendant/Appellant.
    Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Defendant/Appellant, Sharon Coard.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

| ¡Defendant/Third Party Plaintiff/Appellant, Sharon Coard, appeals the judgment of the trial court that granted the exception of no cause of action filed by Defendant in Cross-Claim, Tony Joseph. We find that Ms. Coard’s petition states facts upon which she may be able to recover under a theory of detrimental reliance/es-toppel. Therefore, we reverse the judgment and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

This matter arises from an automobile accident that occurred on April 30, 2004, between vehicles operated by Michelle Gaspard and Sharon Coard. Ms. Gas-pard’s insurer, State Farm Automobile Insurance Company (State Farm), filed a subrogation suit against Tony Joseph, the owner of the vehicle operated by Ms. Coard; his insurer, Direct General Insurance Company of Louisiana (Direct General); and Ms. Coard to recoup monies it paid in connection with the accident. Thereafter, Ms. Coard filed a Third Party Demand/Cross Claim against Ms. 12Gaspard, State Farm, and Direct General. The cross claim against Direct General alleged that she drove Mr. Joseph’s vehicle with his permission and requested damages from Direct General for its failure to provide her with a defense.

In response to Ms. Coard’s cross claim, Direct General filed a Motion for Summary Judgment. The motion alleged that Ms. Coard was an excluded driver. Hence, she was not covered under Mr. Joseph’s policy. The trial court granted Direct General’s summary judgment motion. Ms. Coard sought supervisory writ review before this Court, which was denied.

State Farm initially filed a motion on January 10, 2010, to dismiss voluntarily Tony Joseph, reserving its rights to proceed against Ms. Coard. This motion was not acted upon, and State Farm filed another Motion For Partial Dismissal on September 3, 2010. The trial court granted the Motion For Partial Dismissal that dismissed Mr. Joseph on December 15, 2010.

Before Mr. Joseph was dismissed from the action, Ms. Coard filed a second cross claim on March 18, 2010, in which she named Mr. Joseph as a defendant. The cross claim sought indemnity and other damages from Mr. Joseph on the basis that he breached a statutory duty to provide insurance to her as a permitted driver of his vehicle and that he let her believe that she was an insured on the Direct General policy. To counter, Mr. Joseph filed an Exception of No Cause of Action. The trial court granted the exception and dismissed the cross claim. Ms. Coard then filed the present appeal.

IsSTANDARD OF REVIEW

In Southern Tool Supply, Inc. v. Beerman Precision, Inc., this Court recited the standard of review for a trial court’s decision on an exception of no cause of action as follows:

We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In so doing, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277.

DETRIMENTAL RELIANCE/ESTOPPEL

Ms. Coard alleges that the trial court erred because her cross claim states a cause of action for detrimental reliance/equitable estoppel. In opposition, Mr. Joseph avers that the trial court did not err because there is no specific language in the pleading establishing a cause of action for detrimental reliance or equitable estoppel. He also asserts that even if Ms. Coard’s cross claim states a cause of action, her claims are prescribed.

The purpose of an exception of no cause of action is to test the sufficiency of the petition, questioning whether the plaintiffs allegations, if taken as true, afford him a remedy at law. Johnson v. T.L. James & Co., 93-1170, p. 3 (La.App. 1 Cir. 4/8/94), 635 So.2d 744, 745. The exception of no cause of action should be granted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief.” Industrial 4Companies, Inc. v. Durbin, 02-0665, p. 7 (La.1/28/03), 837 So.2d 1207, 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993). “Recovery may be granted to a party under any legal theory justified by the facts pled.” Bains v. The Young Men’s Christian Association of Greater New Orleans, Louisiana, 06-1423, p. 4 (La.App. 4 Cir. 10/3/07), 969 So.2d 646, 649. Accordingly, we review the facts as pled by Ms. Coard in her cross claim to determine if she may be entitled to recovery.

Ms. Coard’s cross claim alleges that she was present when Mr. Joseph purchased the insurance policy from Direct General and that he placed her name on the policy. It also states that she had his permission to drive his car and that she did not know that Mr. Joseph had taken her off the insurance policy. She requests indemnification for the cost of the defense of her claim, for any sums which may be found to be due to the plaintiff, and for damages relative to mental anguish, inconvenience, and other emotional damages arising out of Mr. Joseph’s failure to provide her with automobile liability insurance.

La. C.C. art. 1967, entitled “Cause defined; detrimental reliance,” states:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

Thus, in order to invoke the doctrine of detrimental reliance, the claimant must prove three elements: (1) a representation by word or conduct; (2) justifiable/reasonable reliance; and (3) a change in position to one’s detriment because of the reliance. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 18 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 393. The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Doss v. Cuevas, 07-1803, p. 4 (LaApp. 1 Cir. 3/26/08), 985 So.2d 740, 743.

Established case law supports that when a petition is read to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Adams v. Owens-Corning Fiberglas Corp., 04-1296, p. 3 (La. App 1 Cir. 9/23/05), 921 So.2d 972, 975-976, rehearing denied, writ denied 05-2501 (La.4/17/06), 926 So.2d 514. In applying this precept to our review of Ms. Coard’s cross claim, the petition asserts an action for detrimental reliance. The facts as pled suggest that Mr. Joseph 1) promised her insurance; 2) that she was justifiable in relying on that promise because she saw him add her name to the policy as an insured and he let her drive his vehicle; and 3) she relied on that promise to her detriment inasmuch as she has to cover the costs of her own defense and faces personal liability for damages incurred by Ms. Gaspard/State Farm. Therefore, although Ms. Coard does not specifically name detrimental reliance as her theory of recovery in her cross claim, the trial court erred in granting the exception.

Having determined that Ms. Coard’s cross claim states a cause of action for detrimental reliance, we now review Mr. Joseph’s contention that any claim for detrimental reliance is barred by prescription. Mr. Joseph relies on La. C.C.P. art. 1067 to support that argument. That article provides in part that an incidental demand is not barred by prescription or per-emption if it was not barred at the time the main demand was filed and is filed within ninety days of the date of service of the main demand. He therefore surmises that, in the instant matter, the cross claim has prescribed because more than five years has lapsed since the service of | fithe main demand on Mr. Joseph. We disagree. Ms. Coard’s cross claim seeks indemnification and damages based on a tor-tious act. She has not yet been cast in judgment. Therefore, prescription has not yet begun to run because the cause of action has not matured. Wiggins v. State Through Dept. of Transp. & Development, 97-0432 (La.App. 1 Cir. 5/15/98), 712 So.2d 1006, 1010-1011.

Similarly, Mr. Joseph’s argument that the detrimental reliance claim is barred because Ms. Coard did not specifically raise estoppel as a defense in her cross claim also fails. He notes that when the trial court granted the exception of no cause of action in the instant matter, it opined that to the extent Ms. Coard invoked the doctrine of equitable estoppel at the hearing on the exception and in her brief, the defense was not urged on a timely basis. The trial court referenced La. C.C.P. art. 1005 that provides in part:

The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estop-pel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense.

The court reasoned that equitable estoppel had not been pled in Ms. Coard’s answer; hence, she was precluded from urging that defense for the first time in her brief and in argument. Norvell v. Crichton, 150 So.2d 621 (La.App. 4th Cir.1963).

However, we agree with Ms. Coard that the allegations raised in her cross claim make an affirmative demand for recovery, rather than raise a defense of |7estoppel. Accordingly, the provisions of La. C.C.P. art. 1005 do not apply to time bar any claim for detrimental reliance/estoppel.

BREACH OF STATUTORY OBLIGATION TO PROVIDE INSURANCE COVERAGE TO DRIVERS

Ms. Coard also avers that the trial court erred because Mr. Joseph violated his statutory obligation to provide insurance coverage to her as a permitted driver of his vehicle. While this Court finds no statute or caselaw that imposes an obligation on the owner to provide insurance coverage to drivers of his vehicle, this assignment of error is moot. Where the operative facts of a petition state any cause of action under any theory of recovery, the exception must be overruled. See Everything on Wheels Subaru, Inc., v. Subaru South, Inc., 616 So.2d 1234, 1236-1239 (La.1993). Here, we find that the facts of Ms. Coard’s cross claim state a cause of action for detrimental reliance; hence, we must reverse the trial court’s decision to grant the exception of no cause of action.

DECREE

Accordingly, for the reasons stated above, we reverse the trial court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

McKAY, J., dissents.

McKAY, J.,

dissents.

|J respectfully dissent and would affirm the judgment of the trial court. I agree with the trial court that Mr. Joseph’s exception of no cause of action should have been maintained.

An exception of no cause of action tests “the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleadings.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). Ms. Coard does not have a cause of action in tort against Mr. Joseph for his not providing her with automobile liability insurance. Ms. Coard, as a vehicle owner, driver and holder of a Louisiana driver’s license could not shift her own duty to Mr. Joseph. Ms. Coard also failed to particularly plead detrimental reliance/estoppel and therefore has failed to properly state a cause of action regarding that argument.

      . The elements of estoppel: (1) a representation; (2) a justifiable reliance; and (3) a change in position to one's detriment because of the reliance are the same elements to support an action for detrimental reliance as outlined in La. C.C. art. 1967. See also Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975). In the case at bar, the parties appear to argue the concepts interchangeably.