author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Joseph K. DAUZAT.
    No. 08-KA-460.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

IgThe defendant, Joseph K. Dauzat, pled guilty to purse snatching in violation of LSA-R.S. 14:65.1. A multiple offender bill was filed, alleging that the defendant was a second felony offender. The defendant admitted this allegation and was re-sentenced as a multiple offender to fifteen years at hard labor, sentence to run concurrently with any other sentences. This appeal followed.

The facts, as determined from the police report contained in the record and the transcript of motion hearings, reflect that on September 25, 2006, the defendant physically removed a money pouch from the victim as she left a bank in the West-side Shopping Center in Gretna. The victim was 82 years old and was blind. Two witnesses saw the purse-snatching and alerted police. The defendant fled on foot but was arrested shortly after the robbery. After the defendant was apprehended, he gave an audiotaped confession to the crime. The defendant was identified, both after he was apprehended and at the motion hearing, by Scott Penton, an eye witness to the crime. The defendant was also identified by Ms. |3Socol, the victims’ companion at the scene of the crime, within an hour of the crime. After the defendant was arrested, he led police to the bank envelope or bag that had been taken from the victim. In addition to cash, the bag contained receipts from the victim.

Appellant’s appointed counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), under the procedure set forth in State v. Benjamin, 673 So.2d 528, 530 (La.App. 4 Cir.1990). Counsel asserts that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the Supreme Court of the United States held that appointed appellate counsel may request permission to withdraw if counsel finds the case to be wholly frivolous after a conscientious examination. The request must be accompanied by ‘ “a brief referring to anything in the record that might arguably support the appeal” ’ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

|In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no nonfrivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing any legal point identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In this case, the defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. In the appeal brief, counsel notes that the eyewitnesses were asked to view the defendant in what she characterizes as a questionable “show-up” identification procedure. However, defendant pled guilty without reserving his right to challenge pre-trial rulings. An unqualified plea of guilty waives all non-jurisdictional | ¡¡defects. State v. Crosby, 338 So.2d 584, 588 (La.1976). Accordingly, defendant’s guilty plea precludes review of this issue by appeal

An independent review of the record support’s appellate counsel’s contention that there are no non-frivolous issues to be raised in this appeal. When challenging an identification procedure, the defendant must prove the identification was suggestive and that there was a substantial likelihood of misidentification. It is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness. State v. Hurd, 05-258 (La.App. 5 Cir. 11/29/05), 917 So.2d 567, 570, writ denied, 06-1128 (La.11/17/06), 942 So.2d 530. Fairness is the standard for identification procedures and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. There is nothing in this record to indicate that the positive identification of the defendant was based on anything other than the two independent witnesses’ certainty that the defendant was in fact the purse snatcher.

An independent review of the transcript of the guilty plea and the waiver of rights form establish that the defendant was advised of and waived his rights to trial by jury, to remain silent, and to confront witnesses. During the plea colloquy, the defendant was asked if he was being forced to plead guilty and he responded in the negative.

The record also establishes that the defendant pled guilty in exchange for a known sentence. He received the promised sentences, on both the underlying offense and the multiple offender bill, which is within legal limits. For these reasons, nothing in this record suggests that the defendant’s plea of guilty is constitutionally deficient.

IfiOur review of the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), reflects the following.

On March 21, 2007, the defense filed a motion to determine the defendant’s competency to stand trial. The court appointed experts to evaluate the defendant and, in a report dated April 18, 2007, both experts concluded that the defendant was able to assist in his defense. The defense stipulated to these findings on May 16, 2007. At that time, counsel stated on the record that the defendant had been found to be competent and that he wished to plead guilty. The record contains no indication that the court formally ruled that the defendant was competent to stand trial.

“When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.” LSA-C.O.P. art. 642. The determination of competency to stand trial is a matter for the court to determine. LSA-C.Cr.P. art. 647. For these reasons, the trial court should have placed on the record the court’s express conclusion that the defendant was competent to stand trial.

In this case, the defendant requested a sanity commission. His motion was granted and two mental health professionals, a psychologist and a psychiatrist, examined him. In their expert opinion, the defendant was competent to proceed to trial. The defendant stipulated to these reports, thus obviating the need for a contradictory hearing and establishing his willingness to plead guilty.

While the better practice would have been for the trial court to expressly rule on the sanity motion and to state for the record that the defendant was competent to |7stand trial, it appears that the defendant waived his right to the contradictory hearing mandated by LSA-C.Cr.P. art. 647.

Appellate counsel has filed a motion to withdraw as attorney of record which states that she has followed the procedures of Anders and wishes to withdraw as counsel. Counsel certified that she has served a copy of the appellate brief on the defendant; however she does not attach proof to her motion. Such notification is part of the Anders procedure as detailed in State v. Bradford, 95-929, p. 3 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

This Court sent defendant a letter by certified mail informing the defendant that an Anders brief had been filed and that he had until August 22, 2008 to file a pro se supplemental brief. Despite this opportunity to raise issues in connection with this appeal, the defendant has not filed a brief as of the date of this memorandum’s distribution.

Appellant counsel’s brief adequately demonstrates by full discussion that she has reviewed the trial court proceedings and cannot identify any basis for a nonfriv-olous appeal and an independent review of the record supports counsel’s assertion. Accordingly, defendant’s conviction and sentence be affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The State also alleged that the victim was more than sixty-five years of age.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Cheryl JEANSONNE v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Entergy Louisiana, Inc., Parish of Jefferson, Herbert L. Bennett And Pamela P. Bennett.
    No. 08-CA-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Harold S. Bartholomew, Harold S. Bartholomew, Jr., Bartholomew Law Offices, Metairie, Louisiana, for Plaintiff/Appellant.
    Richard A. Chopin, Caroline L. Stewart, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Daryl A. Higgins, Gevin P. Grisbaum Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, Louisiana, for Defendant/Appellee.
    Sandra Diggs-Miller, Attorney at Law Entergy Services-Legal, New Orleans, Louisiana, Defendant/Appellee.
    Danielle P. Mitternight, Connick And Connick, L.L.C., Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

|3In this civil matter, the plaintiff/appellant, Cheryl Jeansonne (“Ms. Jeansonne”), asks this Court to reverse two summary judgments rendered by the trial court that dismissed her action in tort against all defendants. For reasons that follow, we affirm the rulings of the trial court.

In an original and two amending petitions, Ms. Jeansonne alleged that she was seriously injured when she tripped over three heavy gauge wires supporting a utility pole in front of a residence in Metairie. Ms. Jeansonne alleged that the three |4wires or cables were installed into the ground in such a location that they impede a sidewalk area and have created an unmarked “trap” for pedestrians.

Ms. Jeansonne sued the property owners, Herbert and Pamela Bennett. Ms. Jeansonne also named Bell South Telecommunications, Inc. (“Bell South”), Entergy Louisiana, L.L.C. (“Entergy”), and Cox Communications Louisiana, L.L.C. (“Cox”) as defendants, asserting that all three entities used the utility pole to provide service to their customers. The Parish of Jefferson (“Parish”) was made a defendant on an allegation that the Parish was the owner or custodian of the pole.

The parties conducted extensive discovery after which all defendants, with the exception of the Parish, filed motions for summary judgment. On February 22, 2008, the trial court rendered a judgment granting the motions for summary judgment filed by Cox, Bell South, Entergy and the Bennetts, and dismissing all actions against them.

Subsequently, the Parish filed a motion for summary judgment which was also granted, dismissing plaintiffs action against it.

Ms. Jeansonne appealed both judgments. However, because she subsequently dismissed the Bennetts from the action, this appeal does not relate to the judgment as to those parties.

The record before this Court contains portions of the deposition of Ms. Jean-sonne. In that document, Ms. Jeansonne testified that she rented a home on Bell Street for about a year and half before the accident occurred and was completely familiar with the front sidewalk, as well as the pole and the cables supporting it.

Photos attached to the deposition show that the three wires in question are attached in a cutout within the sidewalk and extend up to the pole. The images |5show that both the utility pole and the grounding of the guy wires impede the pedestrian walkway to some extent.

Ms. Jeansonne testified she told Mr. Bennett when she first rented the house that the placement of the pole and the guy wires presented a dangerous situation. However, she acknowledged that neither the pole nor the wires were on the Ben-netts’ property. Ms. Jeansonne also admitted that she did not call the Parish, Entergy, Bell South, or Cox to inform them of her safety concerns.

Although the home had a driveway, it was Ms. Jeansonne’s custom to park in front of the home on a grassy area between the street and the part of the sidewalk were the wires are located. She also testified that she often parked on the sidewalk to be certain her car was completely off the street.

On the day of the accident, Ms. Jean-sonne was unloading groceries from her car. She could not be certain if she parked next to the sidewalk or whether she actually parked on the sidewalk. However, she was certain that the driver’s side of the car was facing the street and the passenger side was facing the sidewalk. She got out of the driver’s door and walked around to the passenger side to be sure all the groceries were removed from the back seat. As she closed the car door, she stepped backwards and caught her heel on one of the wires. This caused her to trip and fall backwards, seriously injuring her wrist.

It was established though various documents and affidavits that the pole and the wires are on Parish property, that Bell South owns the pole, and that both Enter-gy and Cox had agreements with Bell South to use the pole. It was also established that three tensioned cables known as “guy wires” are attached to the pole and fastened to the ground by two anchors. Cox, Bell South, and Entergy each owned a wire.

| fiAfter consideration of all of the documents presented by all parties, the trial court rendered summary judgment in favor of all defendants/appellees in two separate judgments. It is clear from the transcript that the basis for the trial court’s decision was that Ms. Jeansonne had lived in the house for about a year and a half, knew about the dangerous situation but parked there instead of using the driveway, and was walking backwards at the time she tripped.

LAW

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment.

In brief to this Court, Ms. Jeansonne argues that her expert’s affidavit shows that the placement of the pole and guy wires, as well as the condition of the guy wires, is in violation of the National Safety Code. She argues that the utility companies breached a duty of care associated with the placement of public utility facilities pursuant to LSA-R.S. 48:381.3.

|7Further, as to the Parish, Ms. Jean-sonne argues that the pole and guy wires were on Parish-owned property and impede a public walkway. She also argues the Parish had constructive notice of the dangerous condition because the original placement of the poles and the guy wires created a hazard.

On appeal our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case.

UTILITY COMPANIES

Ms. Jeansonne cites LSA-R.S. 48:381.3 and acknowledges that, while the statute is not directly applicable because it applies to the “motoring public,” it is illustrative of the duty imposed upon a utility company to comply with the ¡^National Safety Code when placing poles and guy wires. She contends that appellees, Bell South, Enter-gy, and Cox, are liable for failure to comply with the National Safety Code.

Defendant/appellee utility companies urge this Court to analyze this action pursuant to LSA-C.C. art. 2317.1. They argue that a violation of the National Safety Code, even if it is proven, does not render the placement of the guy wires an unreasonably dangerous condition. Further, the utility companies argue that appellant had a duty to see what was obvious and well known to her.

To impose liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. With the addition of the requirement to show actual or constructive knowledge in order to impose liability under LSA-C.C. art. 2317.1, the Legislature has effectively turned strict liability into negligence claims. Thus, negligence requires the risk be both foreseeable and unreasonable.

Under either a theory of strict liability or negligence, it is necessary to prove that the condition of the guy wires were defective or presented an unreasonable risk of harm, and that this is the cause-in-fact of plaintiffs injuries. Not every defect gives rise to liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a 1 jiprudent person using ordinary care under the circumstances. The single fact that a pedestrian falls does not automatically elevate the condition of a sidewalk to that of an unreasonably dangerous defect. Several factors may be considered in determining whether a hazard presents an unreasonable risk of harm. The degree to which the danger is evident to the plaintiff is one factor in determining whether the condition is unreasonably dangerous.

Generally a defendant has no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Specifically, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner.

In addition to proving that the defect created an unreasonably dangerous condition, a plaintiff must also show the defect was a cause-in-fact of her injury. Generally, the initial determination in the duty-risk analysis is cause-in-fact. Cause-in-fact usually is a “but for” inquiry that tests whether the accident would or would not have happened but for the defendant’s substandard conduct. When | inthere are concurrent causes of an accident, which nevertheless would have occurred in the absence of one of the causes, the proper inquiry regarding cause-in-fact is whether the conduct under consideration was a substantial factor in bringing about the accident.

We acknowledge that whether a defect presents an unreasonable risk of harm “is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Further, causation is a question of fact. Nevertheless, to overrule a grant of summary judgment we must find a material fact still at issue. A material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.

Upon a de novo review of the facts presented and the applicable law, we find no error in the trial court’s grant of summary judgment in favor of the utility companies. Ms. Jeansonne knew that the guy wires were impeding the sidewalk, she parked next to them rather than use her driveway, and she was walking backwards at the time of the accident. Additionally, she admits she never expressed concern about the placement of, and lack of marking on, the guy wires to any defendants/ap-pellees, other than the Bennetts. We find that Ms. Jeansonne, as the party with the burden of proof at trial, has failed to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial as required by law; therefore, summary judgment was appropriate.

After an analysis of the applicable law, we cannot find a material fact remaining to be decided that would preclude a grant of summary judgment on the issues of whether the placement of the guy wires posed an unreasonable risk of |uharm, or whether the placement of the wires was a cause-in-fact of Ms. Jeansonne’s fall. Further, she presented nothing to show that any of the utility companies had notice of the condition. Accordingly, we affirm the grant of summary judgment as to Bell South, Cox, and Entergy.

JEFFERSON PARISH

To prevail on a claim against a public entity under LSA-C.C. art. 2317.1, a plaintiff must establish: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect; and (4) causation.

Ms. Jeansonne admits she did not notify the Parish about the condition. However, she argues the Parish had constructive notice because it is obvious that the guy wires and the pole impede the sidewalk. We find that is insufficient to constitute notice to the Parish under the law.

Constructive notice as it relates to actions against a public entity is defined as the existence of facts which infer actual knowledge. Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. There has been no showing by Ms. Jeansonne that would meet this standard.

Accordingly, we affirm the grant of summary judgment in favor of Jefferson Parish.

AFFIRMED.

      . LSA-C.C.P. art. 966(B).

      . LSA-C.C.P. art. 966(C)(2).

      . Id.

      . The duty of care owed to the motoring public by the owners and/or operators of public utility facilities, located adjacent to a highway, road, street, or bridge in this state shall be satisfied when:
      (1) With respect to state highways, the public utility facilities comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways and with the applicable edition of the Department of Transportation and Development Standards Manual for Accommodating Utilities, Driveways and Other Facilities on Highway Right-of-Way, Section 4B1. The provisions of this Paragraph shall not alter any conditions and standards of any permit issued by the Department of Transportation and Development for the use and occupancy of the right-of-way of any state highway.
      (2) With respect to roads, streets, and bridges not part of the state highway system, the public utility facilities located in public right-of-way comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways, and to the extent they exist, with applicable ordinances of the parish or municipality that specify the location for public utility facilities in public right-of-way.
      (3) With respect to roads, streets, and bridges not part of the state highway system, the public utility facilities located on private property comply with provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.
      (4) With respect to structures, appurtenances, equipment, or appliances whose placement or installation is not subject to the provisions of the National Electric Safety Code, the public utility facilities comply with the provisions of the applicable national standards, the applicable edition of the Department of Transportation and Development standards, or local standards in effect at the time such structure, appurtenance, equipment, or appliance is placed, installed, or located adjacent to any highway, road, street, or bridge in this state, whether or not a part of the state highway system.
      B.(l) The owner of a road, street, highway, or bridge, which is not itself the owner or operator of a public utility, shall owe no duty to the motoring public regarding or relating to the placement or location of any public utility facilities within or appurtenant to the right-of-way of such road, street, highway, or bridge.
      (2) No private property owner, which is not itself the owner or operator of a public utility, shall owe a duty to the motoring public regarding or relating to the placement or location of any public utility facilities on or appurtenant to this property.
      C. For the purpose of this Section "public utility facilities” means pipes, mains, conduits, cables, wires, towers, poles, and other structures, equipment or appliances, whether publicly or privately owned, installed, or placed adjacent to any roadway by an owner or operator of a public utility facility.

      . Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086.

      . Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883.

      . The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      . LSA-C.C. art. 2317.1.

      . Maiorana v. Melancon Metal Bldgs., Inc., 05-933 (La.App. 5 Cir. 4/25/06), 927 So.2d 700.

      . Moory v. Allstate Ins. Co., 2004-0319 (La.App. 1 Cir. 2/11/05), 906 So.2d 474, writ denied, 05-0668 (La.4/29/05), 901 So.2d 1076.

      . Monson v. Travelers Property & Cas. Ins. Co., 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758.

      . Id.

      . Moore v. Oak Meadows Apartments, 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594.

      . Id.

      . Pitre v. La. Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, 591.

      . Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La.2/20/04), 866 So.2d 228, 235.

      . Id.

      . LSA-C.C. art. 2317.1.

      . McCain v. Howell, 2006-1830 (La.App. 1 Cir. 9/14/07), 971 So.2d 323, writ denied, 2007-2027 (La. 12/14/07), 970 So.2d 533.

      . Id.

      . Tillman v. Johnson, 612 So.2d 70 (La.1993) (per curiam).

      . LSA-C.C.P. art. 966.

      . Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

      . LSA-C.C.P. art. 966(C)(2).

      . Butkiewicz v. Evans, 06-236 (La.App. 5 Cir. 9/26/06), 943 So.2d 509, 513.

      . LSA-R.S. 9:2800(C).

      . Maldonado v. La. Superdome Com’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Jerry BABINEAUX, Jr.
    No. 08-KA-705.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 18, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Jerry Babineaux, Jr.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On July 6, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jerry Babineaux, Jr., with manslaughter, a violation of La. R.S. 14:31. The next day, defendant pled not guilty at his arraignment. After a hearing, the trial judge denied defendant’s pretrial motions, including his motion to suppress statements.

On March 2, 2007, after a three-day trial, the twelve-person jury found defendant guilty of negligent homicide, a responsive verdict to manslaughter. On April 17, 2007, the trial court sentenced defendant to imprisonment at hard labor for five years.

That same day, the State filed a multiple bill alleging defendant was a fourth felony offender, and defendant stipulated to his identity but denied the remaining allegations of the bill. After a hearing, the trial court found that defendant was a fourth felony offender. On April 28, 2007, the trial court vacated the original sentence and, pursuant to La. R.S. 15:529.1, imposed an enhanced sentence of 20 years at hard labor, to run concurrently with any other sentence he was currently serving.

|3On April 10, 2008, defendant filed an untimely motion to reconsider sentence under State v. Dorthey, 623 So.2d 1276 (La. 1993). On May 1, 2008, the trial court heard and denied that motion. On May 2, 2008, defendant filed a motion for appeal that was granted.

Initially, we must address the question of timeliness. La.C.Cr.P. art. 914 provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

La.C.Cr.P. art. 881.1 provides that a defendant may make or file a motion to reconsider sentence within 30 days following the imposition of sentence or within such longer period as the trial court may set at sentence.

In State v. Jupiter, 05-869 (La.App. 5 Cir. 2/3/06), 922 So.2d 1245, this Court found that defendant’s motions to reconsider sentence and appeal were untimely. Further, even though the trial court had granted an appeal, this Court dismissed the appeal and remanded it to the district court to allow defendant the opportunity to seek reinstatement of his appeal rights by application for post-conviction relief. Id., 922 So.2d at 1247.

However, in two recent Louisiana Supreme Court cases, State v. S.J.I., 06-2649 (La.6/22/07), 959 So.2d 483 and State v. Shay, 07-0624 (La.10/26/07), 966 So.2d 562, the supreme court vacated similar judgments of the courts of appeal. In both, the supreme court remanded the case to the court of appeal to address the 14merits of relators’ assignments of error. The supreme court noted that the trial courts had granted relators’ pro se motions for appeal and appointed appellate counsel and the State had not complained of any procedural irregularities in the out-of-time appeal. Dismissing the appeal and remanding to the district court, the court reasoned, would only prolong the delay, without serving any useful purpose.

Because the procedural history and facts in our case are the same as the history and facts in S.J.I. and Shay, we will address the merits of defendant’s assignments of error to avoid further useless delay.

Facts

On the night of April 30, 2006, Jerry Babineaux, who is also known as “Jay,” made a telephone call to arrange to purchase illegal narcotics. After he ended the call, Babineaux and his friend, Darryl Reid, also known as “Rebow,” left the house on bicycles. Several hours later, Babineaux and Reid went to play pool at the Mona Lisa Lounge on Laroussini Street in Westwego. However, when they arrived, the lounge was closed.

At that point, Babineaux asked Reid to repay money Reid had previously borrowed from Babineaux, but Reid refused. Reid kicked and damaged the bicycle that Babineaux had been riding. When Babi-neaux tried to grab Reid’s arm, Reid attempted to punch Babineaux. A fist fight ensued. Babineaux admitted hitting Reid in the face at least two or three times during the altercation. As the physical altercation escalated, Reid pulled out a knife and chased Babineaux around a truck parked in the Mona Lisa’s parking lot.

Babineaux grabbed a wooden board from the bed of the truck and told Reid, “Stop. Leave it alone. I had enough.” Reid, however, continued coming at |sBabineaux with the knife. When Babi-neaux swung the board in an attempt to knock the knife out of Reid’s hand, he struck Reid in the side with the board.

After Babineaux struck Reid in the side, Reid said, “All right, Jay. All right ...” and began walking down 10th Street towards Avenue C. Babineaux started to follow, about a block behind Reid. As they walked, Babineaux asked Reid again for money to buy beer and cigarettes, but Reid again put him off until the next day. Wfiiile they were walking, Reid fell down in the middle of the street and did not move. When Babineaux approached Reid, Reid stated that he was fine and cursed at defendant. Babineaux, who was still carrying the wooden board, started home.

On his way home, Babineaux saw Robert Dominique in front of his house at Avenue D and 10th Street. Babineaux threw the board down behind Dominique’s house and went home. When Babineaux arrived at her apartment, he told his live-in girlfriend, Shantelle Blanda, that he was going to jail that night because he had “knocked the f*ck out of [Reid].”

Blanda decided to check on Reid herself. Blanda stated that she needed a beer before she checked on Reid so, on the way to check on Reid, she and Babineaux walked to the Shell station near her apartment. According to Blanda, while they were walking, Babineaux admitted that he hit Reid with the board because he did not get a share of “crack cocaine” from Reid’s transaction.

In the meantime, at approximately 12:30 to 12:45 a.m., William Bellanger reported a man lying semi-conscious on the ground near the corner of 10th Street and Avenue C. He told the 911 operator that he had seen another man walk away from the scene while holding something in his hand like a stick or a bat. At approximately 12:40 to 1:00 a.m., Officer Kelly Carrigan arrived and found Reid lying flat on his back in the street near the corner of 10th Street and Avenue C.

|i[When Officer Carrigan approached Reid, he heard a gurgling sound coming from Reid’s mouth and observed that Reid was bleeding from his ears, eyes, and nose. Officer Carrigan also observed that Reid was grasping a knife in his right hand, which Officer Carrigan removed for his safety. As Reid was lying there, he told a second policeman, Officer Terry Braun, that he was having trouble breathing. Reid was immediately transported by ambulance to a trauma center; unfortunately, despite the medical team’s best efforts, Reid died.

At approximately 1:00 a.m., Officer Bruce Chauvet obtained a description of the suspect and started searching the neighborhood. Approximately 40 minutes later, Officer Chauvet observed a couple in the vicinity of the incident. The man, later identified as Babineaux, matched the suspect’s description and the white female was later identified as Shantelle Blanda. After speaking with them, Officer Chauvet detained them regarding the incident in question.

After Babineaux was advised of his constitutional rights, he made statements to Officer Chauvet and Officer Carrigan. In essence, defendant stated, “Yeah, what do you want to know? I f* eking hit him with a piece of wood cause[sic] he stumped[sic] on my bike by the Mona Lisa and I was trying to kill him, that f*cking b*tch and I’ll do it again, too. F*ck him, mother f*cker.” The officers then transported defendant to the Westwego Police Headquarters, where he was advised of his constitutional rights in writing.

At headquarters, defendant declined further interview with the detective on the basis that he had already spoken to the police and that his actions were self-defense. That night, Detective Barteet did not observe any visible injuries to defendant.

The next day, which was May 2, 2006, defendant changed his mind and gave a statement to Detective Barteet. In that statement, defendant admitted that |7he and Reid were in a physical altercation and that he struck Reid in the side with a board after Reid revealed a knife.

Dr. Susan Garcia, an expert forensic pathologist, performed the autopsy on Reid. Dr. Garcia testified that the cause of death was blunt force trauma to Reid’s side, which damaged his spleen, causing exsanguination. The blow to Reid’s spleen was fatal because, as a result of advanced cirrhosis of the liver, Reid’s blood did not coagulate properly. Based on the testimony and evidence, the jury found defendant guilty of the responsive verdict of negligent homicide.

In his first assignment of error, defendant argues that the evidence did not support the verdict because the State did not adequately refute his claim that the killing was in self-defense. Defendant specifically contends that he struck the blow, which turned out to be fatal, to disarm the victim. The State responds that the evidence contradicts self-defense because the evidence reflects that defendant attacked the victim because the victim had damaged his borrowed bicycle and refused to give defendant the money he owed him.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). In cases involving circumstantial evidence, the trial court must instruct the jury that, “ ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” La. R.S. 15:438.

l8The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

In this case, defendant was charged with manslaughter but convicted of the responsive verdict of negligent homicide. La. C.Cr.P. art. 814(A)(5). La. R.S. 14:32(A) provides that negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:12 provides that criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. According to La. R.S. 14:20, a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

When a defendant claims self-defense in a homicide case, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Cassard, 01-931, p. 8 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071, 1076, writ denied, 02-0917 (La.12/19/02), 833 So.2d 327. The relevant inquiry on appeal is whether a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. Id.

| nThe determination of a defendant’s culpability focuses on a two-fold inquiry: (1) from the facts presented, could the defendant reasonably have believed his life to be in imminent danger; and (2) was deadly force necessary to prevent the danger. State v. T.N., 94-669 (La.App. 5 Cir. 1/18/95), 650 So.2d 288, 289. While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. Id. at 290.

Here, defendant does not argue that the State failed to prove the elements of negligent homicide, but rather that the State failed to prove that defendant did not act in self-defense. First, the record reveals several different reasons that defendant confronted Reid, including Reid’s refusal to repay money that he owed defendant, Reid’s refusal to share drugs with defendant, and Reid’s damaging of defendant’s borrowed bicycle. Second, defendant had no visible injuries after the fight, compared to Reid who was left lying on the ground, with multiple injuries to his face and torso, unable to breathe and bleeding from his eyes, ears, and nose. Third, defendant was significantly taller than Reid, according to the police report of the incident. Finally, defendant not only did not attempt to retreat from the altercation at the Mona Lisa, but also followed the victim, who did retreat from the fight, for several blocks while still armed with the board. Upon review, we find that the record supports the finding that defendant struck Reid for reasons other than self-defense.

Furthermore, we note that, after listening to the testimony and considering the other evidence, the jury clearly did not find that defendant committed the homicide in self-defense. The credibility of a witness is within the sound Indiscretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of witnesses will not be reweighed on appeal. State v. Macon, 06-0481 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Based on the foregoing, we find that a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the homicide was not committed in self-defense. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court imposed an excessive sentence. We preter-mit discussion of this assignment, however, in light of the fact that we must vacate defendant’s multiple offender adjudication and enhanced sentence.

Upon error patent review in accordance with La.C.Cr.P. art. 920, we find that the trial judge did not sufficiently advise defendant of his statutory multiple offender rights. Pursuant to La. R.S. 15:529.1, the trial court shall inform defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. State v. Morgan, 06-529, p. 22 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213.

Our jurisprudence holds that La. R.S. 15:529.1 implicitly requires that the trial court advise defendant of his right to remain silent. Id. Generally, a trial court’s failure to advise the defendant of his right to a hearing and his right to remain silent is considered harmless error when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949.

1 nIn the instant case, defense counsel stipulated that defendant was the same person who pleaded guilty to the three predicate offenses. The trial court then heard defendant’s objections to the multiple offender bill and found defendant to be a fourth felony offender. The record does not reflect that the trial court advised the defendant of his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent.

In State v. Bourgeois, 08-211 (La.App. 5 Cir. 10/28/08), 998 So.2d 165, this Court reversed defendant’s multiple offender adjudication and vacated his enhanced sentence because defendant was not informed of his rights pursuant to La. R.S. 15:529.1, and the State did not establish proof of the prior convictions by competent evidence. In accord with the prevailing jurisprudence, we must reverse defendant’s multiple offender adjudication. We note that defendant is not protected by principles of double jeopardy from being tried again on the question of the prior felony convictions. State v. Johnson, 432 So.2d 815, 817 (La.1988); State v. Hill, 340 So.2d 309 (La.1976); State v. Schnyder, 06-29 (La. App. 5 Cir. 6/28/06), 937 So.2d 396, 403.

Based on the foregoing, we reverse defendant’s multiple offender adjudication, vacate his enhanced sentence, and remand to the trial court for proceedings consistent with this opinion. In all other respects, defendant’s underlying conviction and sentence are affirmed.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED.

      . Throughout the investigation and trial, the object that Reid carried was referred to as a "razor knife,” a "utility knife,” and a "box cutter.” For consistency, we refer to the object in Reid's hand as a knife.

      . See State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 443, writ denied, 05-2003 (La.2/1/06), 924 So.2d 1013 (prosecution met its burden of proving the homicide was not committed in self-defense where, even though defendant had more significant injuries than the victim, defendant was taller, heavier, and younger than the victim and did not attempt to retreat from the altercation.

      . In Bourgeois, defense counsel stipulated that defendant was the same person who pleaded guilty to the three predicate offenses. After-wards, a hearing was held on defense counsel’s objections to the multiple bill. The trial court took the matter under advisement and later found defendant to be a fourth felony offender. The record did not reflect that the trial court advised the defendant of his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent. 998 So.2d at 167.


text:
    Ann Wood BARNES v. Stephen G. BARNES, Walter S. Barnes, Edward E. Moore, Jr., Commercial Management, Inc., and Trebs Enterprises, Inc.
    No. 08-CA-492.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Writ Denied April 3, 2009.
    Albert J. Derbes, III, Melanie M. Mul-cahy, Eric J. Derbes, III, The Derbes Law Firm, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.

      Kevin C. Schoenberger, Attorney at Law, New Orleans, LA, Wiley G. Las-trapes, Jr., Attorney at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

|?In this shareholder derivative action plaintiff, Ann Woods Barnes, appeals from two decisions of the trial court, the first granting an exception of no right of action filed by her husband, Walter S. Barnes and the second granting an exception of nonjoinder of a party needed for adjudication, (namely Walter Barnes) filed by defendants Stephen Barnes, Edward Moore and Trebs Enterprise, dismissing plaintiffs lawsuit with prejudice. After the record was lodged, defendants filed an exception of no right of action in this Court. For the reasons that follow, we deny the defendant’s exception of no right of action, reverse the decisions of the trial court and remand this matter for further proceedings.

Trebs Enterprises, Inc. (Trebs) is a family owned corporation. Mr. Edward Barnes owns 50.9 shares of stock, and Mrs. Barnes owns 38 shares Their son, Stephen Barnes owns 10 shares. Edward Moore, who is also a shareholder of Commercial Management, Inc. (CMI) owns 1.1 shares of stock. Trebs is the owner of a piece of commercial real estate which it leases to CMI, who in turn sublets to other entities.

|3On October 17, 2007, Mrs. Barnes filed a shareholder’s derivative action on behalf of Trebs, naming as defendants Walter Barnes, Steve Barnes, Edward Moore, Jr., CMI and Trebs.

Walter Barnes filed a reconventional demand for revocatory action in which he sought to revoke the transfer of stock in Trebs to plaintiff. Mrs. Barnes filed an exception of no right of action, alleging interspousal immunity from suit under R.S. 9:291. Thereafter, Walter Barnes field an exception of no right/cause of action to the shareholder derivative action, also claiming spouse immunity to the shareholder derivative suit filed by Mrs. Barnes, his wife, claiming that she had no right to file suit against him pursuant to R.S. 9:291.

On March 18, 2008, the trial court granted the exception of no right of action filed by Mr. Barnes, and dismissed him with prejudice from the suit. The trial court also dismissed his reconventional demand against Mrs. Barnes with prejudice.

After the trial court dismissed Mr. Barnes from the suit, the remaining defendants filed an exception of nonjoinder of a party, alleging that Mr. Barnes was a necessary party needed for adjudication, pursuant to C.C.P. art. 641. The trial court granted the exception, and then, because it had found that the suit against Mr. Barnes could not be pursued, it dismissed the entire cause of action.

On appeal, Mrs. Barnes contends that the trial court erred in dismissing Mr. Barnes from the suit. She argues that the corporation, and not herself, is the true plaintiff in this action, and therefore the spousal immunity does not apply. She further alleges that the trial court erred in dismissing the suit for failure of a necessary party, since Mr. Barnes should not have been dismissed from the suit, and further because the suit could still proceed pursuant to C.C.P. art. 642.

I/The exception of no right of action is provided by LSA-C.C.P. art. 927(A)(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-612, 05-719 (La.3/17/06), 929 So.2d 1211, 1217. Whether a plaintiff has a right of action is a question of law subject to de novo review. Oakville Community Action Group v. Plaquemines Parish Council, 05-1501 (La. App. 4 Cir. 9/27/06), 942 So.2d 1152, 1155.

Mr. Barnes filed his exception of no right of action, claiming immunity from suit pursuant to LSA-R.S. 9:291, which states

Spouses may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code; for restitution of separate property; for divorce or declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart.

The four enumerated exceptions to suits spouses can bring against each other are exclusive, not illustrative. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); Heathcock v. Neuenhaus, 05-954 (La.App. 5 Cir. 4/25/06), 930 So.2d 1013.

LSA-C.C.P. art. 611 provides that

When a corporation or unincorporated association refuses to enforce a right of the corporation or unincorporated association, a shareholder, partner, or member thereof may bring a derivative action to enforce the right on behalf of the corporation or unincorporated association. A derivative action may be maintained as a class action when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties. In the case of a derivative class action, Articles 594 and 595 shall apply.

Black’s Law Dictionary 475 (8th ed.2004) defines a derivative action as:

1. A suit by a beneficiary of a fiduciary to enforce a right belonging to the fiduciary; esp., a suit asserted by a shareholder on the corporation’s behalf against a third party (usu. a corporate officer) because of the corporation’s failure to take some action against a third party.

| fiIn Spruiell v. Ludwig, 568 So.2d 133, 137 (La.App. 5th Cir.1990), writ denied, 573 So.2d 1117 (La.1991), this Court explained the nature of a shareholder derivative action:

Pursuant to R.S. 12:1 et seq. a minority shareholder has a right to bring a derivative action on behalf of the corporation. The minority shareholders in a derivative action are only nominal plaintiffs whose right to recover can only be asserted secondarily.

Furthermore,

... it is well established under Louisiana law that an action for mismanagement, fraud or breach of fiduciary duty belongs to the corporate entity and not to the individual shareholder who brings the derivative action [citations omitted; emphasis added].

Maestri v. Destrehan Veterinary Hospital, Inc., 94-1030 (La.App. 5 Cir. 3/28/95), 653 So.2d 1241 writ denied 95-1534 (La.9/29/95), 660 So.2d 879.

In this suit, it is not a wife’s cause of action against her husband, but a corporation’s cause of action asserted by one shareholder, against the directors of the corporation. The cause of action, and any relief granted, belongs to the corporation, and not the wife. We therefore find that LSA-R.S. 9:291 is inapplicable to a shareholder derivative action, and the trial court erred in granting the exception of no right of action in favor of Walter Barnes.

In her second allegation of error, plaintiff alleges that the trial court erred in granting the exception of nonjoinder, filed by the remaining defendants. The trial court granted the exception finding that Walter Barnes was a necessary party to the litigation. Because the trial court erred in dismissing Mr. Barnes from the suit, the trial court also erred in dismissing the suit on the grounds that Mr. Barnes was a necessary party for its litigation.

After the record was lodged, the defendants filed an exception of no cause of action in this Court, alleging that Mr. Barnes had revoked his donation to Mrs. | ^Barnes, in which the shares of Trebs stock were transferred to her, and that she no longer had a right of action since she was no longer a stock holder. To support his claim, he attaches a document purporting to be a revocation of donation. This document is not in the record, and therefore cannot be considered by this Court. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Jackson v. United Services Auto. Ass’n Cas. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512. Accordingly, this exception of no right of action is denied.

For the above discussed reasons, the decision of the trial court granting Mr. Barnes’ exception of no right of action is reversed. The decision granting the exception of nonjoinder is also reversed, and the matter is remanded for further proceedings.

EXCEPTION OF NO RIGHT OF ACTION DENIED; JUDGMENTS OF THE TRIAL COURT REVERSED; CASE REMANDED.

      . Appellant disputes that she owns only 38 shares and contends that she actually owns 45 shares.

      . Mr. Barnes also filed reconventional demand in the trial court seeking to revoke the donation, which was dismissed on an exception of no right of action. Mr. Barnes did not seek review of that decision.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. John W. MATHIEU.
    No. 08-KA-747.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. MCMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡.This is defendant’s second appeal. For the reasons that follow, we remand the matter for an evidentiary hearing in accordance with this Court’s directive in defendant’s original appeal, State v. Mathieu, 06-946 (La.App. 5 Cir. 5/29/07), 960 So.2d 296, writ denied, 07-1424 (La.2/1/08), 976 So.2d 714.

On June 13, 2006, a twelve-person jury found defendant guilty of second degree kidnapping, a violation of LSA-R.S. 14:44.1. Thereafter, on June 29, 2006, the trial court sentenced defendant to thirty years at hard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. Defendant appealed this conviction and sentence.

In his original appeal, defendant argued that the trial court erred in permitting him to represent himself and that the sentence imposed was excessive. On May 29, 2007, this Court conditionally affirmed defendant’s conviction and sentence and remanded the case for an evidentiary hearing, stating as follows:

| S[A] final determination of the appeal is pretermitted, and the case is remanded to the trial court to conduct an evidentiary hearing to determine whether the defendant made a clear and unequivocal request to represent himself and, if so, whether the trial court made sufficient inquiries into the defendant’s competency before accepting the defendant’s waiver of counsel as knowing and intelligent.
If the evidence shows that defendant did not make a valid waiver of his right to counsel, the district court must set aside his conviction and sentence and grant him a new trial. If, after the hearing, defendant is found to have validly waived his right to counsel, defendant may appeal from any adverse ruling on the waiver issue. In the absence of such an appeal, defendant’s conviction and sentence will be affirmed.

State v. Mathieu, 960 So.2d at 310

On August 23, 2007, pursuant to this Court’s directive, Judge Liljeberg, the same judge who presided over defendant’s trial, conducted an evidentiary hearing. At the hearing, both defendant and William Doyle, the IDB attorney who assisted defendant during trial, testified. After considering the testimony of these witnesses and the arguments of counsel, the trial judge concluded that defendant made a clear and unequivocal request to represent himself and further concluded that defendant was competent to represent himself. However, this evidentiary hearing was subsequently rendered moot pursuant to an order of recusal and transfer signed by Judge Liljeberg on August 27, 2007. That order provided, in part, as follows:

As provided for under Louisiana Code of Criminal Procedure Article 671, and under the Twenty-Fourth Judicial District Rules of Court, this Court voluntarily recuses itself from the evidentiary hearing because this Court may be a witness regarding the Court’s inquiries into the defendant’s competency to waive counsel. As a result, the Court feels that it is in the best interest of all parties that this matter be re-allotted to another division to conduct the eviden-tiary hearing. Therefore;
IT IS ORDERED that the above entitled and captioned matter be re-allotted to another division of the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson for purposes of the evidentiary hearing ordered by the Louisiana Fifth Circuit Court of Appeals.

|4Pursuant to the recusal, the matter was transferred to another division of court for purposes of responding to this Court’s remand order. On June 6, 2008, another hearing was conducted. At the June 6 hearing, no witnesses testified and no evidence was introduced by either the State or the defense. Rather, the trial judge ruled after listening to arguments of counsel.

At the hearing, the State asserted that its evidence consisted of the transcripts that it had previously submitted to the court, including transcripts from the trial, the pretrial hearings, and the post trial evidentiary hearing that took place on August 23, 2007. The State argued that based on the transcripts provided to the Court, it was clear that defendant knowingly and intelligently waived his right to counsel. The State commented that the trial judge had the opportunity to observe the educational level, intelligence, and competency of defendant, and further noted that defendant had the assistance of IDB counsel throughout the entire trial. In response to the State’s argument, defendant noted that neither he nor his trial counsel filed a written or oral motion requesting that defendant be allowed to represent himself before trial. In fact, prior to the commencement of trial, defendant informed the court that he had no problem with his representation; defendant merely wanted to assist counsel and ask questions of some of the witnesses. Defense counsel argued that this showed that defendant’s request to represent himself was not clear and unequivocal, and therefore, there was no direct or valid waiver. Defense counsel further argued that the trial judge did not sufficiently inquire into whether defendant knowingly and intelligently waived his right to counsel.

After considering the arguments of counsel as well as the transcripts provided by the State, the trial court issued a written judgment which it had |Rpreviously prepared. In the judgment, the court concluded that defendant’s waiver of counsel was made knowingly, intelligently, and voluntarily after sufficient inquiry into defendant’s competency by Judge Liljeberg. It is from this ruling that defendant now appeals.

In his second appeal, defendant raises the exact same argument regarding his self-representation that he raised and this Court reviewed in his previous appeal. Specifically, defendant asserts that the trial court erred in allowing him to represent himself, and further that the trial court failed to conduct a reasonable inquiry to establish on the record a knowing and intelligent waiver of counsel under the overall circumstances. Defendant claims that a remand for another evidentiary hearing is warranted because the trial judge, at the June 6, 2008 hearing, did not comply with this Court’s directive. In the appellate brief, defendant argues that rather than developing new evidence sufficient to determine the issues set forth by this Court, the trial judge merely looked at the record that this Court previously found to be inadequate for such a determination. We agree -with defendant that another remand is warranted.

We first note that the June 6, 2008 judgment does not address the issue of whether defendant made a clear and unequivocal request to the trial court either personally or through his trial counsel to represent himself. Furthermore, it is impossible to determine upon what documents the trial judge based his ruling. As noted previously, although the state provided the court with some transcripts, they were never introduced into evidence at the hearing. From the trial judge’s reasons for judgment, we know that he relied in part on some of the transcripts that this Court previously found insufficient to determine the issues relating to defendant’s self-representation. Moreover, the judge who conducted the second evidentiary hearing stated that he had not read or relied upon the first evidentiary hearing | ^transcript in rendering the June 6, 2008 judgment because there was a pending recusal when the previous hearing was conducted.

For these reasons, we once again remand the case and order the trial court to conduct an evidentiary hearing to determine whether defendant made a clear and .unequivocal request to represent himself, and if so, whether the trial court made sufficient inquiries into defendant’s competency before accepting his waiver of counsel as knowing and intelligent. If the evidence shows that defendant did not make a valid waiver of his right to counsel, the district court must set aside his conviction and sentence and grant him a new trial. If, after the hearing, defendant is found to have validly waived his right to counsel, defendant may appeal from any adverse ruling on the waiver issue. In the absence of such an appeal, defendant’s conviction and sentence will be affirmed.

MATTER REMANDED FOR EVI-DENTIARY HEARING.

      . A minute entry from May 8, 2008, indicates that the Assistant District Attorney presented the court with copies of transcripts for the court to review.


author: MADELINE JASMINE, Judge Pro Tempore.

text:
    WELLS FARGO HOME MORTGAGE v. Carey Carter CELESTIN, the United States of America.
    No. 08-CA-691.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Charles H. Heck, Jr., Attorney at Law, Monroe, LA, for Plaintiffs/Appellees.
    Steven T. Richard, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

Lin this suit to enforce a promissory note and mortgage via ordinary process, defendant Carey Carter Celestin (Celestin) appeals the trial court’s grant of summary judgment in favor of plaintiff, Wells Fargo Bank, N.A. (Wells Fargo). On appeal, Celestin argues that the trial court erred in granting summary judgment because:

1) genuine issues of material fact exist as to whether plaintiff is entitled to litigious redemption;
2) genuine issues of material fact exist and a legitimate dispute as to the exact monetary amount sued for herein and claimed to be owed to Wells Fargo;
3) genuine issues of material fact exist as to who is the actual holder of the lost promissory note sued for herein; |s4) genuine issues of material fact exist as to whether Wells Fargo has the right of action to enforce this lawsuit.

For the following reasons, we find no merit to the assignments of error, and affirm the trial court’s judgment in favor of Wells Fargo.

The record reveals that on September 24, 1993, Celestin executed a certain note agreement, originally in favor of Deep South Mortgage Company, Inc., in the original principal amount of $117,000.00 with a fixed interest rate of 7.375% per annum until paid. The note was secured by a mortgage of the same date affecting certain property in Jefferson Parish, Louisiana, owned by Celestin.

On the same day, the note and mortgage was assigned by Deep South to Empire of America Realty Credit Corp. (Empire). On February 3, 1998, the note and mortgage was assigned from Empire to GE Capital Mortgage Services, Inc, which later merged with another company to become GE Mortgage Services, LLC (GE).

The plaintiffs suit alleges that Celestin defaulted on the aforementioned note by failing to make monthly payments when due, and that the loan was currently due for the September 1, 2000 installment and all subsequent installments.

On March 7, 2001, plaintiff Wells Fargo filed this suit against Celestin to enforce the promissory note. Therein, Wells Fargo alleged that it was the holder of the note. Celestin answered the suit with general denials. Wells Fargo moved for summary judgment on June 27, 2001, which Celestin opposed. Celestin also filed a supplemental answer, challenging, among other things, Wells Fargo’s status as a 14hoIder of the note. This first Motion for Summary Judgment was denied on August 21, 2001.

Thereafter, Wells Fargo and GE Capital Mortgage Services, Inc., moved to correct/substitute GE as the proper party plaintiff in this suit, alleging that GE, not Wells Fargo, was the holder of the note, Wells Fargo being the servicer of the note and mortgage. This substitution was granted.

GE moved for a second summary judgment on April 16, 2003, alleging that the issues of material fact challenged by Celes-tin in the previous Motion had been addressed and corrected, namely GE’s status as holder of the note. The Memorandum also noted that Celestin had not set forth any specific facts that would preclude summary judgment, nor had he raised any affirmative defenses to the suit. Celestin opposed this Motion also, arguing procedural issues (lack of a prayer for specific relief) and factual issues (the exact amount sued for herein).

The record indicates that this Motion for Summary Judgment came for hearing on July 16, 2003, and was denied in a written judgment dated August 20, 2003. Again, no transcript of the hearing appears in the record, nor do reasons for judgment.

On May 18, 2005, GE and Wells Fargo moved to substitute the party plaintiff to Wells Fargo, asserting that GE did, in fact, assign the note in question to Wells Fargo. The substitution was granted. Thereafter, Wells Fargo again moved for Summary Judgment on July 25, 2005, noting all evidence attached to previous motions for summary judgment, and further attaching an affidavit that Wells Fargo argued established the exact amount owed by Celestin on the note. This motion was ultimately set for hearing on August 14, 2007. Celestin opposed the Motion, arguing in his Opposition that genuine issues of material fact remained |fias to whether the sale and assignment of the note from GE to Wells Fargo was the sale of a litigious right under LSA-C.C. art. 2652 and whether Celestin was entitled to litigious redemption; he alleged issues of material fact remained regarding the amount owed; and he alleged genuine issues of material fact remained regarding whether Wells Fargo was the actual holder of the promissory note sued for herein.

Celestin issued Interrogatories to Wells Fargo and Requests for Production of Documents in conjunction with his Opposition to the third Motion for Summary Judgment. In response, Wells Fargo asserted that their aforementioned “assignment of the note” was erroneous; that GE had only assigned to Wells Fargo the servicing rights to the note, pursuant to a “Servicing Rights Purchase and Sale Agreement” between GE and Wells Fargo, and that Wells Fargo did not purchase the note in question and thus was not the holder of it, and that GE remained the holder of the note. Wells Fargo attached portions of this Agreement to their responses to the Interrogatories.

This third Motion for Summary Judgment was denied on August 28, 2007.

On December 13, 2007, Wells Fargo filed the Motion for Summary Judgment that is the subject of this appeal. Therein, Wells Fargo argued that all issues raised by Celestin had been addressed and alleviated, and submitted evidence in support thereof. Celestin again opposed the Motion. The matter was submitted, and summary judgment was granted in favor of Wells Fargo on April 30, 2008. Celestin filed this appeal.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The party bringing the motion bears the burden of | (¡proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. LSA-C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir. 1988).

In a suit on a promissory note, the plaintiff must merely produce the note in question to make out a prima facie case. The burden then shifts to the defendant to prove any affirmative defenses. Colonial Mortg. & Loan Corp. v. James, 01-0526 (La.App. 4 Cür. 3/6/02), 812 So.2d 817, 820, citing; Merchants Trust and Sav. Bank v. Olano, 512 So.2d 1218 (La.App. 5 Cir. 8/26/87).

In his first assignment of error, Celestin argues that genuine issues of material fact exist as to whether plaintiff is entitled to litigious redemption. Celestin argues that GE assigned its litigious rights in the promissory note and mortgage to Wells Fargo.

In support of its Motion for Summary Judgment, Wells Fargo acknowledged Cel-estin’s contention that the “assignment” from GE to Wells Fargo was the sale of a litigious right. Wells Fargo contended, however, that the “assignment” in question from GE to Wells Fargo was merely the assignment of the servicing rights |7to the note, not the ownership of the note. In support of its position, Wells Fargo referenced the “Servicing Rights Purchase and Sale Agreement,” portions of which it had submitted with a previous Motion for Summary Judgment. Wells Fargo noted that confusion had stemmed from the recordation of an erroneous instrument that purported to transfer the promissory note from GE to Wells Fargo, dated March 2, 2005 and recorded on May 8, 2005. Wells Fargo asserted that this instrument had been prepared and recorded in error, and that GE had obtained and recorded an Act of Notarial Correction in order to cure the error, which it submitted.

This Act of Notarial Correction was prepared by the notary who originally passed the “Notarial Endorsement and Assignment of Mortgage Note” on March 2, 2005, which purported to reflect the transfer of this mortgage note from GE to Wells Fargo. The only transfer between GE and Wells Fargo regarding this note, asserted the notary, was the servicing rights.

Wells Fargo also attached two affidavits to the Motion for Summary Judgment. The first was executed by GE, whose representative attested that the note in question was never transferred to Wells Fargo, nor was it ever intended that it be transferred, contrary to the erroneous assignment document. Further, GE attested that GE was not paid for, and accepted no consideration for an assignment of this promissory note to Wells Fargo, as no assignment was contemplated, intended, or performed. GE attested that the assignment was intended to memorialize the transfer of servicing rights only, and that an Act of Correction had been subsequently executed and recorded by the same notary who closed the original erroneous assignment.

|/The second affidavit was executed by Dianna Hudgins of Wells Fargo, who attested that only the servicing rights to the Celestin loan were transferred via the Purchase and Sale Agreement; that she had reviewed the document entitled “Notarial Endorsement and Assignment of Mortgage” dated March 2, 2005, noting that it was erroneous in that it purported to transfer ownership of the note. She attested that no such purchase was ever made or agreed upon between the parties GE and Wells Fargo, that Wells Fargo paid no consideration to GE to purchase this note, nor had Wells Fargo at any time held the promissory note. She further attested that she reviewed the Act of Notarial Correction, and that the same appeared to correctly describe the extent of the assignment of servicing rights. The affidavit further itemized the amount owed by Celestin on the note.

Celestin opposed this part of the Motion by arguing, with no evidence or law in support, that notwithstanding the Act of Notarial Correction, the assignment of the servicing rights to Wells Fargo was the assignment of a litigious right under LSA-C.C. art. 2652, and that Celestin was entitled to assert his right of litigious redemption.

A “servicing agent” is defined as the person responsible for receiving any scheduled, periodic payments from a borrower. 42 U.S.C.A. § 4003(a). The court in Valteau, v. Mellon Mortg. Co., 03-2056 (La.App. 4 Cir. 7/21/04), 881 So.2d 122, described a servicing agent as a manda-tary for a principal. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. LSA-C.C. art. 2989. Wells Fargo performs the servicing of this note on behalf of GE, who remains the holder of this note (see discussion below). Celestin has failed to come forward with any facts that counter Wells Fargo’s assertions in the supporting affidavits that it is merely the servicing agent for this note.

| Jn his second assignment of error, Celestin argues that genuine issues of material fact exist regarding the exact amount owed, because at least one item says “estimated.” He further states, without elaboration, that “numerous charges” were not incurred by Wells Fargo and cannot be substantiated by them.

In the affidavit by Dianna Hudgins of Wells Fargo, submitted in support of this Motion, she sets forth the various amounts owed by Celestin on this note, based upon her personal knowledge and belief and upon her view of the business records of Wells Fargo. Out of a total of $192,150.77, only one item worth $794.00, was estimated (Foreclosure/Attorney’s fees and costs through November 12, 2007).

We find that Wells Fargo bore its burden of proof in this regard, and that Celes-tin’s assertions without supporting proof have failed to raise issues of material fact regarding the amount of the debt. Further, the fact that Wells Fargo may not have incurred various charges itself does not defeat summary judgment. Wells Fargo, as servicing agent since 2004, enforces the rights of its principal, GE.

In his third and fourth assignments of error, Celestin argues that genuine issues of material fact exist as to who is the actual holder of the lost promissory note sued for herein, and that genuine issues of material fact exist as to whether Wells Fargo has the right of action to enforce this lawsuit.

Celestin argues that the pleadings, as amended and construed, state that Wells Fargo is the holder of the promissory note, while Wells Fargo’s affidavit submitted in support of this Motion states that at no time has Wells Fargo ever held the aforementioned promissory note, and further, that GE’s affidavit states that GE “held” the subject promissory note. He argues that the pleadings conflict with the affidavits and thus there is a genuine issue of material fact as to who is the holder of the note.

|inWe disagree that this remains a genuine issue of material fact. The affidavits, submitted in support of this Motion and executed by GE and Wells Fargo, individually, are in agreement that GE is the holder of the note and that Wells Fargo was assigned servicing rights only, and that Wells Fargo has never been the holder of the note. Further, the Act of Notarial Correction by the notary who passed the first erroneous act of assignment conclusively establishes that GE is the holder of the note, contrary to Celestin’s arguments.

Celestin also argues that a genuine issue of material fact remains as to whether Wells Fargo has the right to enforce this lawsuit. Celestin argues that Wells Fargo contends it is only a servicing provider but has refused to provide a complete copy of the servicing agreement.

We find no merit to this assignment of error. Both GE and Wells Fargo have attested in the affidavits submitted with this Motion that Wells Fargo was assigned the servicing rights to this note. As servicing agent, Wells Fargo has procedural capacity to sue to enforce the rights of GE. Valteau v. Mellon Mortg. Co., 03-2056 (La.App. 4 Cir. 7/21/04), 881 So.2d 122.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Three previous Motions for Summary Judgment filed by plaintiff were denied, as outlined below.

      . It is alleged in the suit that the original note was lost; however, a copy of the original note was attached to pleadings and is found in the record.

      . The record contains no hearing transcripts, nor reasons for judgment.

      . On November 24, 2004, GE Mortgage Services entered in to a "Servicing Rights Purchase and Sale Agreement” with defendant Wells Fargo, whereby Wells Fargo was provided the servicing rights to the note.

      . The aforementioned Act of Notarial Correction.


text:
    Huey LEE v. Vedora CARSON, Jefferson Parish School Board and the Princeton Excess and Surplus Lines Insurance Company.
    No. 08-CA-666.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Darleen M. Jacobs, Al A. Sarrat, Rene D. Lovelace, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Michael F. Fanning, Brad J. Gegen-heimer, Attorneys at Law, Gretna, LA.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2This is an appeal by Vedora Carson, the Jefferson Parish School Board and The Princeton Excess and Surplus Lines Insurance Co., defendants-appellants, from a judgment in favor of Huey Lee, plaintiff-appellee, for damages sustained by him in an accident involving a school bus. After a judge trial in which it was determined that the driver of the bus was negligent, he was awarded $125,000 in general damages, $5,535.01 in special damages, plus costs. For the following reasons we affirm the judgment.

Appellants urge only one assignment of error, which is that the trier of fact fell into manifest error in finding that the bus driver was negligent. The non-disputed facts are as follows. Lee, a masonry worker, was engaged in a job near the corner of Airline Drive and Grove Street in Jefferson Parish. Immediately before the accident he was either loading or unloading a wheelbarrow from a utility trailer parked partly on the shoulder and partly in the roadway of Grove Street. The school bus, driven by Vedora Carson, was traveling on Airline Drive and turned right onto Grove. As she passed the trailer the bus struck a handle of the | ^wheelbarrow which in turn struck Lee. A contemporaneous photograph of the scene showed the broken wheelbarrow with one handle apparently lodged in the wheel hub of the bus.

Lee’s employer, Eugene Moore, was one or two hundred feet away and did not witness the incident, but heard hollering and immediately came to the scene. Lee told him he was hurt, and Moore testified that he saw bruises on his leg and side. The following day Lee was seen by Dr. S. Daniel Seltzer, an orthopedic surgeon. This physician found tenderness and spasms in various areas of the spine, a bruised left thigh and abrasions on the right knee, all of which he ascribed to a blunt trauma injury. There was no evidence to controvert the facts that the left side or rear wheel of the bus struck the wheelbarrow, that the wheelbarrow struck Lee, and that he suffered those injuries diagnosed by Dr. Seltzer the next day.

The only real issue is therefore whether the driver of the bus negligently sideswiped the wheelbarrow, or whether Lee dropped it as the bus was passing causing one of the handles to be struck by the rear wheel. The trier of fact found that it was the former, and that the driver, the school board, and their insurer were liable for Lee’s injuries. This appeal followed.

In Stobart v. State through DOTD, 617 So.2d 880 (La.1993) the court discussed at length the standard of appellate review of factual findings. Although the standard is often referred to as “manifest error” or “clearly wrong,” those shorthand phrases actually describe the possible result of the actual inquiry, which is the reasonableness of factual determinations. The court said that “the issue to be resolved by a reviewing court is not whether the trier of fact is right or wrong, but whether the factfinder’s conclusion was a reasonable one.” (at 882). It further noted that when findings are based on credibility determinations those findings should not be set aside on appeal. It went on to say, however, that where a |4witness’s story is so inconsistent or implausible on its face, or so contradicted by objective evidence, a reviewing court might find manifest error even if the determinations purport to be based on credibility determinations. (Id).

In the present case, appellants urge that because of inconsistencies and implausibilities in Lee’s version of events, it was manifest error to credit it. We disagree. As noted above, there can be little dispute that the bus struck the wheelbarrow and that Lee was injured as a result of the collision.

Appellants first assert that Lee gave conflicting statements to the investigating officer as to his exact position when the bus hit the wheelbarrow. The report states that Lee first said he was sitting on the rail of the trailer, but then said that he was standing on the ground. Lee testified at trial that the officer was mistaken. Regardless, this conflict is apparently irrelevant. First, wherever Lee was, he was clearly injured by the collision. Second, if he had been sitting on the rail it is difficult to see how he could have been lifting the large wheelbarrow into the trailer from that position and then dropping it as the bus passed, as appellants seem to be implying.

Similarly, Lee was less than concise as to where he was actually standing at the time of the impact. In his deposition and at trial he variously indicated that the wheelbarrow was to the rear of the trailer, or alongside of the trailer, and that he was either pushing it or putting tools into it. Again, there is scant relevance to these discrepancies. Wherever the wheelbarrow was in relation to the trailer or where Lee was standing or what exactly he was doing do not cast doubt on the fact that the bus and the wheelbarrow came into violent contact, and that Lee was injured in the accident. The only possible relevance here would be to show that Lee may have pushed the wheelbarrow into the path of the bus, thus establishing his own fault. He testified rather consistently that the bus came around the corner 15quickly, that the driver seemed to be losing control, and swerved towards his position thus striking the wheelbarrow. Neither was there testimony or other evidence to support the view that Lee may have been responsible for the incident. Finally, there was a second contemporary photograph showing the bus parallel to the trailer and approximately three feet from the side rail and with the wheelbarrow in between, thus showing that if the wheelbarrow had been next to the trailer it easily could have been hit as the bus went by.

Considering all of the above evidence, with all of its contradictions and inconsistencies, the issue here is whether or not a reasonable trier of fact could have found the bus driver negligent. In this court’s opinion he clearly could have so found. This is particularly so in light of the uncontested fact that the bus did indeed strike the wheelbarrow, that Lee’s employer said that he saw injuries to Lee at the scene, and that these injuries were fully diagnosed on the following day by a physician. Although Lee gave somewhat confusing testimony, it was not so inconsistent or implausible as to render a determination that the bus driver was at fault manifestly erroneous, especially in light of the complete lack of other evidence to indicate that it was Lee who somehow caused the accident. Because we do not find manifest error in the determination as to fault made by the trier of fact, we may not set that determination aside.

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

AFFIRMED.


text:
    David GUTHRIE v. Derek B. BREAUX, et al.
    No. 08-CA-576.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Williams Family Law Firm, Richard Bray Williams, Attorney at Law, Natchi-toches, Louisiana, for Plaintiff/Appellant.
    Law Offices of Robert E. Birtel, Kevin T. Phayer, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee Liberty Mutual Insurance Company.
    Panel composed of Judges CLARENCE E. McMANUS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT of the case

On August 8, 2006, David Guthrie and Derek Breaux were involved in an automobile accident. Guthrie was driving a 1997 Freightliner owned by his employer, United Parcel Service. At the time of the accident, Guthrie was in the course and scope of his employment with UPS. Guthrie’s vehicle was rear ended by a car driven by Breaux. Breaux was insured by American International Group (“AIG”). The vehicle owned by UPS was insured by Liberty Mutual Insurance Company.

On July 31, 2007, Guthrie filed a Petition for Damages naming Breaux, AIG, and Liberty Mutual as defendants. Guthrie later amended his petition to replace AIG with New Hampshire Indemnity, as Breaux’s insurer. Guthrie claimed his damages are in excess of the liability limits of Breaux’s liability policy, so he claims he is entitled to damages from Liberty Mutual under the uninsured/underinsured motorist coverage.

Liberty Mutual filed an Answer on October 11, 2007 arguing no uninsured/underin-sured coverage under the UPS policy. Liberty Mutual also filed a motion for summary judgment on March 19, 2008. Liberty Mutual argues it did 13not provide UM coverage for UPS because the corporate representative of UPS, Pat Powers the corporate risk manager, executed a valid and enforceable rejection form which completely rejected UM bodily injury coverage.

On April 8, 2008, Guthrie filed an opposition to the motion for summary judgment, as well as a cross motion for summary judgment. Guthrie argues the rejection form was not properly completed, therefore, there is UM coverage on the UPS vehicle equal to the bodily injury liability coverage. Guthrie argues the legal representative of UPS, Pat Powers, did not print his name on the UM coverage rejection form when it was signed, as required by La. R.S. 22:680 and Duncan v. U.S.A.A. Insurance Company, 2006-363 (La.11/29/06), 950 So.2d 544. Guthrie argues that since the form was not a valid rejection, UM coverage exists under this policy.

The trial court held a hearing on both motions for summary judgment on April 22, 2008. The trial court executed a Judgment on April 30, 2008, granting summary judgment in favor of Liberty Mutual, dismissing all claims against it with prejudice. The cross motion for summary judgment by Guthrie was denied.

Guthrie now appeals this judgment. For the reasons which follow, we affirm the trial court’s judgment granting Liberty Mutual’s motion for summary judgment and denying Guthrie’s cross motion for summary judgment.

DISCUSSION

On appeal, Guthrie argues two assignments of error. Guthrie argues that the trial court erred in granting Liberty Mutual’s motion for summary judgment and the trial court erred in denying the cross motion for summary judgment he filed. Both motions dealt with the validity of the UM coverage rejection form. Therefore, the only issue before this Court on appeal is whether or not the UM | coverage rejection form completed by UPS’s corporate representative, Pat Powers, was valid and enforceable.

La. R.S. 22:680 governs the issuance of uninsured motorist coverage in Louisiana. La. R.S. 22:680(l)(a)(ii) provides, in part, as follows:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.

The Louisiana Supreme Court has addressed the issue of the validity of UM rejection forms and has provided further explanation of the statutory requirements of these rejections forms. In Duncan v. U.S.A.A., supra, the Louisiana Supreme Court found that the statute, La. R.S. 22:680, only requires three things: 1) that the rejection or selection be made on a form prescribed by the commissioner of insurance, 2) that the form be provided by the insurer, and 3) that the form be signed by the named insured or his legal representative. The Louisiana Supreme Court went on to find that the form prescribed by the commissioner of insurance requires six things: 1) initialing the selection or rejection of coverage chosen, 2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident, 3) printing the name of the name insured or legal representative, 4) signing the name of the name insured or legal representative, 5) filling in the policy number, and 6) filling in the date.

IsThe Supreme Court in Duncan found that the form drafted by the commissioner of insurance requires these six tasks, even though the statute only requires three. The Supreme Court held that all six tasks are required to validly reject UM coverage. In Duncan, the Supreme Court ultimately held the rejection form to be invalid, but only because of the failure of the insured to fill in the policy number on the form.

The issue in this case is the printing of the insured’s name on the form. On the waiver form in this case, the policy number and the named insured’s name, United Parcel Service, was typed onto the form. Pat Powers, as legal representative and corporate risk manager of UPS, signed and dated the form and initialed the box indicating UPS did not want UMBI coverage. The policy number and the named insured had already been typed in the appropriate spaces when Powers signed the form.

We find the waiver form executed by Powers is a valid waiver of UM coverage in this case. We further find the completed form meets the requirements of the statute, as well as the six tasks outlined in Duncan. Pat Powers’ name was not printed on the form, however, the named insured, United Parcel Service, was printed on the form. In Duncan, the Louisiana Supreme Court stated one of the required items to be placed on the form is the printing of the name of the insured or the legal representative. La. R.S. 22:680 requires the form to be signed by the named insured or legal representative. In this case, the named insured is UPS, but the form was signed by the legal representative, Pat Powers. In Duncan, the Supreme Court did not find that the named insured and the legal representative’s name must be printed. Only one or the other must be printed.

The named insured in this case is a corporation, therefore, the form must be signed by the legal representative. We find there is no requirement that the | (¡individual legal representative’s name be printed on the form, in addition to the printed name of the insured corporation. In this case, the named insured, United Parcel Service, was printed on the form and we find this meets the statutory requirements of La. R.S. 22:680, as well as those set forth in Duncan.

Accordingly, we find the trial court correctly granted summary judgment in favor of Liberty Mutual, finding the UMBI waiver form to be valid and dismissing all claims against it, and correctly denied Guthrie’s cross motion for summary judgment.

AFFIRMED.