author: HIGGINBOTHAM, J.

text:
    Jonathan GREER and Rene Greer v. TOWN CONSTRUCTION CO., INC., Christopher A. Town, Chris Town Construction, LLC and XYZ Insurance Company.
    No. 2011 CA 1360.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      Todd Hebert, Teri D. Smith, Baton Rouge, LA, for Plaintiffs-Appellants, Jonathan and Rene Greer.
    Craig L. Raster, Zachary, LA, for Defendant-Appellee, Town Construction Co., Inc.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

1 Jonathan K. and Rene P. Greer (“the Greers”) brought suit for damages arising out of an allegedly defective foundation in their home that had been built pursuant to a construction contract between them and Town Construction Company, Inc. (“Town Construction”). The Greers appeal a district court judgment sustaining Town Construction’s peremptory exception on the basis of res judicata due to a prior arbitration proceeding. For the reasons set forth below, we reverse and remand.

BACKGROUND

In April 2004, the Greers entered into a contract with Town Construction for the construction of their residence at 6929 Woodstock in Baton Rouge, Louisiana. At some point, a dispute arose between the Greers and Town Construction concerning costs, change orders, workmanship, and timeliness issues. In March 2006, pursuant to the construction contract, Town Construction filed a demand for the unpaid contract balance by arbitration through the American Arbitration Association (“AAA”). The Greers filed a counterclaim for damages in the arbitration proceeding, asking for reimbursement, repairs, and diminution in the value of their home due to alleged construction defects and pursuant to the Louisiana New Home Warranty Act (“LNHWA”). In their counterclaim, the Greers specifically alleged that their home had mold/mildew problems and cracks in the walls that were “growing at an alarming rate” and were allegedly “due to a structural defect in the foundation” or “faulty construction of the home[’]s foundation.”

|sThe arbitration proceeding took place in two phases, the first in November 2006 and the second in March 2007. Prior to each phase, the parties submitted their claims to the arbitrator. The arbitrator heard and considered evidence regarding the Greers’ various claims, including the alleged damage to the foundation of the Greer home, cracks in the walls, structural deficiencies in the roof framing system, and mold/mildew problems. On April 30, 2007, the arbitrator issued an arbitration award to Town Construction that amounted to the full contract balance plus extra costs and interest. The arbitrator also issued a damage award to the Greers on their counterclaim for reimbursement, repair, or replacement for “Structural Claims (including] foundation)” damages. The arbitrator specifically denied all other claims and counterclaims made by the parties in both phases of the arbitration. Rather than seeking a modification in the district court, the Greers filed a request with the AAA arbitrator for modification of the assessment of costs and fees that had been rendered solely against them. The Greers did not, however, seek any modification or correction regarding the actual merits of the arbitration award. The record does not reflect the outcome of the Greers’ costs/fees modification request with the AAA, and the record is void, as well, of any confirmation of the arbitration award by the district court.

Three years after the arbitration award was issued, the Greers discovered additional cracks in the floors and walls of their home. They filed this lawsuit against Town Construction in the district court on May 27, 2010. The Greers sought damages in the form of repair costs and diminution in the value of their home as a result of an alleged “defective foundation” in their home. Town Construction responded to the Greers’ lawsuit by filing a peremptory exception raising the objection of res judicata, maintaining that the Greers’ petition should be dismissed because the claims between the parties had already been litigated through an arbitration process. After a hearing, the district court sustained the 1 ¿exception and dismissed Town Construction from the Greers’ lawsuit on December 15, 2010. The Greers appealed. The only issue on appeal is whether the district court erred in sustaining Town Construction’s exception of res judicata.

DISCUSSION

The doctrine of res judicata is codified in La. R.S. 13:4231, which provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. (Emphasis added.)

This statute explicitly applies only when there is a “valid and final judgment” between the parties. Official Comment (d) (1990) to La. R.S. 13:4231 further explains the requirement of a “valid and final judgment,” stating:

To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given.... The use of the phrase “final judgment” also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court. (Emphasis added.)

In a recent opinion with three dissenting views, the Louisiana Supreme Court considered the requirement of a “valid and final judgment” in the context of an unconfirmed arbitration award, holding that an unconfirmed arbitration award is not a “valid and final judgment,” because it was not “rendered by the court” and as |ssuch, the unconfirmed award has no res judicata effect. Interdiction of Wright, 2010-1826 (La.10/25/11), 75 So.3d 893, 897. In Wright, the supreme court illustrated the distinction between an unconfirmed “arbitration award” and a “judgment” by examining the language of the Louisiana Binding Arbitration Law found in La. R.S. 9:4209, et. seq,, and concluding that the legislature intended for parties to seek judicial confirmation before an arbitration award would become a legally enforceable judgment. Id, 75 So.3d at 897. The supreme court further held that the power to issue a legally binding judgment cannot be delegated to nonjudicial personnel such as an arbitrator, because the Louisiana Constitution mandates independent judicial review before an arbitrator’s award can serve as the ground for a judgment that has res judicata effect. Id, 75 So.3d at 898; see La. Const. Art. V, § 1.

The record in this case reflects that both parties consented to the arbitration, that neither party objected to or questioned the merits of the arbitration award or the finality of the award, and that the parties apparently honored the arbitrator’s decision. As previously noted, the Greers filed a motion with the AAA arbitrator, | fiseeking to modify the arbitration award as to the assessment of costs and fees only, not as to the merits of the awards. The record does not contain any filing in the district court or ruling by the district court on a motion to modify, and the record is void of any evidence of a petition to confirm the arbitration award or any district court confirmation of the arbitration award. One explanation for the lack of a confirmation proceeding is that the parties accepted the proceeds of the awards, so confirmation was not necessary for purposes of execution.

Nevertheless, while we question the necessity of confirmation of the arbitration award in this case, we are bound to follow the narrowly-decided supreme court precedent established in Wright, 75 So.3d at 897. Therefore, we conclude that the district court erred in sustaining Town Construction’s peremptory exception raising the objection of res judicata based upon a prior unconfirmed arbitration award. The district court is obligated to first determine whether a valid arbitration award was in existence and had been confirmed before considering the merits of the exception. See Wright, 75 So.3d at 898. In other words, a district court errs in giving preclusive effect to an unconfirmed arbitration award, even though the parties do not dispute the existence of or the finality of the unconfirmed award. We emphasize that this decision should not be read to express any opinion as to the merits of the claims or as to the propriety of damages sought in the Greers’ lawsuit.

^CONCLUSION

Based on our thorough review of the record and relying on recent Louisiana Supreme Court precedent, we find that the district court ruling must be reversed. The matter is remanded for further proceedings in accordance with this decision and consistent with the holding in Interdiction of Wright, 2010-1826 (La.10/25/11), 75 So.3d 893. All costs of this appeal are assessed equally to Town Construction Company, Inc. and Jonathan and Rene Greer.

REVERSED AND REMANDED.

      . The record reflects that the other defendants, Christopher A. Town and Chris Town Construction, LLC, were voluntarily dismissed, and the Greers reserved all rights against the remaining defendant, Town Construction. Thus, throughout this opinion, we refer to a sole defendant, Town Construction.

      . The LNHWA is found at La. R.S. 9:3141, et seq.

      . This holding is contrary to, and consequently, rejects prior jurisprudence maintaining that an arbitration award, confirmed or not, carries the same res judicata effect as a judgment, but only as to those issues actually presented and considered in the arbitration proceeding. See Aucoin v. Gauthier, 2009-1245 (La.App. 1st Cir.2/12/10), 35 So.3d 326, 330, writ granted, 2010-0585 (La.6/18/10), 38 So.3d 312; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, 2003-0481 (La.App. 1st Cir.2/23/04), 872 So.2d 1147, 1153; Peter Vicari General Contractor, Inc. v. St. Pierre, 2002-250 (La.App. 5th Cir. 10/16/02), 831 So.2d 296, 299; Craig v. Adams Interiors, Inc., 34,591 (La.App.2d Cir.4/6/01), 785 So.2d 997, 1001; Glod v. Baker, 99-0872 (La.App. 3d Cir. 12/8/99), 755 So.2d 910, 913, writ denied, 2000-0039 (La. 1/26/00), 753 So.2d 223; Hurley v. Fox, 587 So.2d 1, 2 (La.App. 4th Cir.1991). See also Frank L. Maraist, 1A Louisiana Civil Law Treatise: Civil Procedure-Post-Arbitration Proceedings § 13.7 at p. 55 (2011 Supp.). Furthermore, the three well-reasoned dissents in Wright, 75 So.3d at 898-901, all point out that confirmation of an arbitration award is not mandatory, but is only necessary for purposes of execution, and therefore, an arbitration award that has been accepted and honored by the parties should have a preclusive effect between the same parties on a subsequent action based upon the same matters resolved in the arbitration proceedings. See La. R.S. 9:4209 and La. C.C. art. 3129.

      . Louisiana Revised Statutes 9:4209 provides, in pertinent part: “at any time within one year after the award is made any party to the arbitration may apply to the court ... for an order confirming the award.” Louisiana Revised Statutes 9:4214 provides the procedure for converting the award to a judgment and states, "[t]he judgment so entered shall have the same force and effect ... as a judgment in an action, and it may be enforced as if it had been rendered in an action in the court in which it is entered.”

      . The record does not contain any evidence that either party timely filed a motion to vacate the arbitration award pursuant to La. R.S. 9:4210 or a motion to modify or correct the arbitration award pursuant to La. R.S. 9:4211. Thus, because arbitration is favored in Louisiana and arbitration awards are presumed to be valid, we note that the district court would have been required to confirm this final arbitration award if timely petitioned to do so, since the award was never challenged on any of the exclusively-specified statutory grounds for vacation, modification, or correction. See National Tea Co. v. Richmond, 548 So.2d 930, 932-33 (La.1989); Kleinschmidt v. Lanza, 2010-0540 (La.App. 4th Cir.9/15/10), 45 So.3d 1165, 1168; Farmers Cotton Co., Inc. v. Savage, 30,289 (La.App.2d Cir.6/26/98), 714 So.2d 926, 928-29, writ denied. 98-2322 (La. 11/20/98), 728 So.2d 1288.

      . Neither the Greers nor Town Construction make any allegations in their pleadings or statements in briefs or argument regarding a district court confirmation of the arbitration award.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    TOMORROW’S INVESTORS, LLC through its CEO/President, Chester J. JONES v. STATE of Louisiana through the LOUISIANA GAMING CONTROL BOARD and the Louisiana Department of Public Safety and Corrections Office of the State Police, Bureau of Investigations, Gaming Enforcement Division.
    No. 2011 CA 1616.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      Michael H. Schwartzberg, Lake Charles, LA, for Plaintiff/Appellant Tomorrow’s Investors, LLC.
    James D. Caldwell, Attorney General, Karen L. Godwin, Baton Rouge, LA, for Defendants/Appellees State of Louisiana through the Louisiana Gaming Control Board and the Louisiana Department of Public Safety and Corrections, Office of State Police, Bureau of Investigations, Gaming Enforcement Division.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2The plaintiff/appellant, Tomorrow’s Investors, LLC (“TI”) through its CEO/president Chester Jones, appeals the decision of the 19th Judicial District Court to dismiss its appeal of the actions of the defendant/appellee, the State of Louisiana through the Louisiana Gaming Control Board and the Louisiana Department of Public Safety and Corrections Office of the State Police, Bureau of Investigations, Gaming Enforcement Division (“the Board”). For the following reasons, we affirm the ruling of the 19th Judicial District Court.

FACTS AND PROCEDURAL HISTORY

On April 14, 2010, the Board was notified by a holder of a Louisiana riverboat license that it was surrendering its license and cancelling its casino construction project in Lake Charles, Louisiana. On April 20, 2010, the Board made the surrender of the license officially known to the public.

Upon learning of the surrender, TI became interested in acquiring the license and filed a timely application to the Board on September 23, 2010. Along with the application, TI sent a letter with questions to the Board. Specifically, TI wanted to know the minimum size the Board required for the construction project before committing. TI’s application did not include a $50,000 certified or cashier’s check, which is required by La.R.S. 27:72(D) to defray the costs of the Louisiana State Police’s performance of a background check of the applicant. Since TI did not include this fee with its application, the Board sent a deficiency letter to TI on October 1, 2010, citing the lack of the $50,000 application fee, as well as pieces of information lacking in the application. The letter states specifically: “After a close review of each application, the Division has determined that your initial application is incomplete ... You have five (5) business days from ^receipt of this notice to provide the Gaming Enforcement Division with payment.”

TI responded to the Board in a letter dated October 11, 2010, stating it had the necessary funds for the application fee, but wanted to hold onto the funds until the Board answered its initial inquiries about the project. In response, the Board sent a letter of rejection of TI’s application on October 14, 2010. In the letter the Board emphasized that according to La.R.S. 27:72(D), the application fee must be sent along with the application at the time of filing.

Chester Jones arranged a meeting with representatives of the State Police Gaming Enforcement Division in Baton Rouge on October 20, 2010. At the meeting, Mr. Jones allegedly sought to confirm that TI was still under consideration by the Board, despite not having forwarded the $50,000 and not having his letter of questions fully answered to his satisfaction by the Board. He was advised to attend the Board meeting on the following day.

On October 21, 2010, the Board met in Baton Rouge to review the applicants for the riverboat casino license. The purpose of the meeting was to review the applicants, but no applicant was required to submit a proposal for that day, and no Board decision to award the license would be made until February, 2011. The Board had three applicants, of which TI was not one, under consideration. Mr. Jones was present at the meeting, and he brought with him $50,000 in certified funds, along with all other information the Board required that was not on TI’s application. Jones requested that the Board still consider TI, now that he had provided all the things that the Board required for the application. The Board voted on whether to amend their agenda to include TI in their review of applicants, and the vote was 6-3 |4against amending the agenda. Mr. Jones withdrew TI’s application at that time.

On November 1, 2010, TI sent correspondence to the Board to initiate an appeal on TI’s behalf, but the Board claimed it never received any such correspondence. TI therefore filed an appeal with the 19th Judicial District Court on November 8, 2010, to review what TI claimed was an arbitrary and capricious administrative decision by the Board. The defendants filed exceptions to the appeal. The one exception pertinent to this appeal is the declina-tory exception to the lower court’s lack of subject matter jurisdiction to hear the appeal. On March 21, 2011, the court sustained the defendants’ exception, and on March 30, 2011, TI’s appeal was dismissed. On May 31, 2011, TI timely filed the present appeal before this court.

ASSIGNMENT OF ERROR

The appellant’s sole assignment of error is that the trial court erred when sustaining the defendants’/appellees’ declinatory exception for lack of subject matter jurisdiction, as the 19 Judicial District Court is granted jurisdiction by La.R.S. 27:26 to hear appeals of administrative decisions by the Board.

STANDARD OF REVIEW

Once a final judgment is rendered by the trial court in reviewing an administrative final decision in an adjudication proceeding, an aggrieved party may seek review of same by appeal to the appropriate appellate court, and on review of the trial court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the trial court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Blair v. Stalder, 1999-1860, p. 9 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, 139. We therefore take a de novo | ^review of this case, not being bound by factual or legal findings of the lower court.

DISCUSSION

Louisiana Revised Statutes 27:26 states:

All appeals from any decision of the board shall be filed within ten days of notice of the decision in the Nineteenth Judicial District Court and shall be reviewed solely on the record.

To decide whether the 19th Judicial District Court has subject matter over the Board’s action, we must consider whether the action is a decision as contemplated by La.R.S. 27:26. Appeals may only be taken from a final decision or order of the Board in an adjudication proceeding. Metro Riverboat Assoc., Inc. v. Louisiana Gaming Control Board, 2001-0185, p. 9 (La.10/16/01), 797 So.2d 656, 662. In that case, Metro qualified the “decision” as being a final decision in order to avoid the absurd result of over-burdening the courts with piecemeal appeals of every action of an administrative agency that can be considered a “decision.” Id., p. 8, 797 So.2d 656.

Was the Board’s vote to deny amending their agenda to include TI in their list of applicants a “final decision?” TI thinks it was, and uses Delta Bank & Trust Company v. Lassiter, 383 So.2d 330, 334 (La.1980) for support. We acknowledge that Delta Bank holds that a hearing is to be held when mandated by constitution. Id., at 334. The hearing, or due process, is required when a deprivation of life, liberty, or property is at stake. La. Const. Art. 1, § 2. As the Louisiana Supreme Court similarly found in Delta Bank, we find no such deprivation of life, liberty, or property here as a result of state action, because TI suffered no actual deprivation of property interest at the hands of the State when its licensure application was rejected. Neither the $50,000 application fee nor any other property of TI or Chester Jones |6was permanently taken by the Board. In that respect, the Board’s action was not a hearing or a final decision, and the Delta Bank case offers no support to TI’s argument.

TI also uses for support Moity v. Firefighters’ Retirement System, 2006-0775 (La.App. 1 Cir. 3/23/07) 960 So.2d 158. TI believes Moity and the present case follow the same fact pattern, and that in Moity the court’s judicial review of an arbitrary and capricious administrative agency’s decision was upheld. We, however, find the case to be distinguishable along the same grounds as Delta Bank because the plaintiff in Moity applied for “service-connected disability retirement benefits.” Moity, p. 10, 11, 960 So.2d 158. Where it was found that the plaintiff in Moity was entitled to those benefits, TI can show no right or entitlement to a riverboat gaming license. Where the issues in Delta Bank and Moity concerned a deprivation of property or a right in property which constitutionally required an adjudication hearing, TI has suffered no such deprivation and therefore has no constitutional right to an adjudication hearing. The Board’s action that TI complains of cannot necessarily be viewed as a “final decision” from an adjudication hearing.

The above referenced cases refer to the Louisiana Administrative Procedure Act (LAPA), Title 49 of the Louisiana Revised Statutes, as the governing body of law for administrative procedure. While La.R.S. 27:26 statutorily grants appellate jurisdiction to the 19th JDC to hear appeals from the Board, it is La.R.S. 49:964 that sets the guidelines for judicial review of administrative decisions. It is also ■ based on 49:964(G)(5) that TI makes its arbitrary and capricious claim against the Board. However, we must look to 49:964(A)(1) as the “threshold” by which courts may receive administrative decisions for review. Louisiana Revised Statutes 49:964(A)(1) states:

|7[A] person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.

Being a more general law than La.R.S. 27:26, La.R.S. 49:964 was intended to create procedures in those instances where none exist. Metro, p. 9, 797 So.2d 656. La.R.S. 49:964 takes effect when a person is aggrieved by a final decision or order in an adjudication proceeding. Was the Board’s action a final decision or order in an adjudication proceeding according to La.R.S. 49:964(A)(1)? An adjudication means an agency proceeding that results in a disposition that is required to be made (by constitution or statute) after notice was given and a hearing is held. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330, 333 (La.1980). We note that both notice and a hearing are required for an adjudication. Both parties in this case argue fervently as to whether the Board meeting on October 21, 2010 constitutes a hearing, but one fact is unavoidable: neither TI nor Chester Jones were ever served with notice of that meeting. In fact, Mr. Jones took it upon himself to attend the meeting. TI was not part of the Board’s agenda for applicants under review. Evidently, no representative of TI was expected to attend the meeting for any reason. We cannot find how, given these circumstances, an adjudication was held on October 21, 2010, handing down an order which deprived TI of a right or interest in its property.

CONCLUSION

After a complete review of all statutes and jurisprudence regarding the issue of whether the 19th Judicial District Court has subject matter | ¡Jurisdiction to review the action taken by the Board against TI, we find that the Board did not conduct an adjudication hearing or render a final decision according to either La.R.S. 27:26 or La.R.S. 49:964. The court therefore has no subject matter jurisdiction to hear TI’s appeal and rightly granted the Board’s declinatory exception.

DECREE

The decision of the 19th Judicial District Court to grant the declinatory exception for lack of subject matter jurisdiction for the appellees and against the appellant in this matter is affirmed. All costs of this appeal are assessed to the appellant, Tomorrow’s Investors, L.L.C. through its CEO/president, Chester Jones.

AFFIRMED.

McDONALD, J., concurs.


text:
    STATE of Louisiana v. Ron Daniel UNDERDONK.
    No. 2011 KA 1598.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Martin E. Regan, Jr., New Orleans, LA, for Defendant/Appellant, Ron Daniel Un-derdonk.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

[^Defendant, Ron Daniel Underdonk, was charged by bill of information with one count of attempted aggravated rape (Count 1), in violation of La. R.S. 14:27 and 14:42, and one count of aggravated kidnapping (Count 2), in violation of La. R.S. 14:44. At his arraignment, defendant pled not guilty. After a trial by jury, defendant was found guilty as charged on Count 1, and he was found guilty of the responsive offense of second degree kidnapping, a violation of La. R.S. 14:44.1, on Count 2. On Count 1, defendant was sentenced to imprisonment for ten years at hard labor, without benefit of parole, probation, or suspension of sentence. On Count 2, defendant was sentenced to imprisonment for five years at hard labor, with the first two years to be imposed without benefit of parole, probation or suspension of sentence. Defendant was subsequently adjudicated a third-felony habitual offender. Thereafter, the trial court vacated defendant’s original sentences on both counts, and defendant was sentenced to 33.33 years at hard labor, without benefit of parole, probation, or suspension of sentence on Count 1, and to. 26.67 years at hard labor, without benefit of probation or suspension of sentence on Count 2. The trial court ordered defendant’s sentences to run concurrently with each other. Defense counsel orally moved for reconsideration of both sentences, but that motion was denied by the trial court. Defendant now appeals, alleging three assignments of error. For the following reasons, we vacate defendant’s conviction, habitual offender adjudication, and sentence on Count 2, and we affirm defendant’s conviction, habitual offender adjudication, and sentence on Count 1.

1 ¡¡FACTS

At trial, the victim, O.N., testified that around 7:00 a.m. on May 8, 2007, she was working at the S & T Food Mart on Grand Caillou Road in Houma when defendant entered to purchase a bottle of water. O.N. recognized defendant as a regular customer who normally pulled up to the store in a silver Ford Expedition with loud music emitting from his vehicle. O.N. asked defendant why he had come into the store so early, and defendant responded that he had been up all night because he had gone to Morgan City to get a tattoo. Defendant left the store after buying his bottle of water.

Approximately ten minutes later, defendant reentered the store and asked O.N. whether she wanted to see his tattoo, indicating that it was by his penis. O.N. said that she did not want to see defendant’s tattoo, but defendant then stated that he was just joking about his tattoo being by his penis, and defendant asked O.N. to come around the counter to see his actual tattoo. As O.N. rounded the counter, defendant punched her in her head, and O.N. fell to the ground. Defendant dragged O.N. a short distance to a room in the back of the store and attempted to close the door, but was unsuccessful due to several boxes blocking the way. O.N. struggled to free herself from defendant and repeatedly asked him to stop, but O.N. testified that defendant kept punching her. As O.N. continued to struggle with defendant, defendant opened an exterior door leading to the rear of the store, and he dragged O.N. outside. Defendant dragged O.N. behind the S & T Food Mart and through an unlocked fence that bordered an abandoned Delchamps supermarket. Upon reaching the back of the Delchamps, defendant held O.N. in a bear hug with her arms immobilized and with O.N.’s back facing defendant’s l4front. According to O.N., defendant then began trying to undress her by grasping at the button and zipper of her jeans. Defendant also placed his hands over O.N.’s jeans and touched her private area. Eventually, defendant released O.N. from his grasp and told her that she could leave. According to O.N. defendant never succeeded in undressing her or placing any part of his body in her pants, but he did unbutton her pants. After she was released, O.N. witnessed defendant begin to walk to his car, which he had parked in an alley behind the Del-champs, and she ran around to the front of her store to ask for help. O.N. reentered the S & T Food Mart through its front door to retrieve her cell phone, which she then used to call 911. Surveillance video from the S & T Mart indicates that this entire incident took place in the span of about one minute and forty seconds.

Immediately after the incident, Officer Kyle Faulk of the Houma Police Department retrieved a surveillance video from a nearby business during the course of his investigation. He observed defendant’s vehicle on the surveillance video and relayed the pertinent information to his squad commander.

Officer Stephen Kazusky was employed as a detective for the Houma Police Department at the time of the incident. Officer Kazusky received the information relating to defendant’s vehicle and assisted in locating the vehicle, which was parked behind a shed outside of defendant’s grandmother’s house. Officer Kazusky made contact with defendant inside the house, and defendant stated that he knew that the police were there because he had “struck the female at the store.” Defendant was taken into custody and brought to the police station, where he made a second | ¡^statement. In this statement, defendant indicated that he had taken cocaine the night before and that he remembered going to the S & T Food Mart and striking O.N. However, defendant stated that he blacked out after he struck O.N., and he only recalled running back to his vehicle and subsequently leaving the scene. Defendant said that he did not remember what happened between first hitting O.N. and running away toward his vehicle. Officer Kazusky left the interrogation room to prepare the probable cause affidavit for defendant’s arrest warrant, and when he returned to handcuff defendant, defendant said that he was starting to remember more details of the incident. Defendant stated that in addition to taking cocaine the night before, he had also been drinking beer and daiquiris. Defendant also said that he remembered struggling with O.N. in the “back parking lot” and running to his car. Officer Kazusky asked defendant what he was going to do with O.N. when he got her outside, and defendant responded, “I can only speculate that 1 was going to rape her, but I still don’t recall the details of what I was going to do.”

Defendant testified on his own behalf at trial. He stated that he had been awake doing cocaine and drinking alcohol all through the night before the incident. He admitted to striking O.N. but said that he did not remember anything until he unlocked the back door of the store and ran away. Defendant stated that, to his knowledge, nothing happened between him and O.N. outside the store. Defendant stated that he never had any sexual intent, that he did not know why he speculated about rape to Officer Kazusky, and that he did not intend or try to rape O.N. Defendant also testified that he was not attempting to argue to the jury that he was not guilty by reason of insanity or not guilty by reason of intoxication. On cross-examination, defendant testified that he parked his vehicle in front of the store on his first 16visit to the S & T Food Mart and that he parked it in the back of the store on his second visit. Defendant explained that he parked his vehicle in the back of the store during his second visit in order to hide from his wife, who he thought might be exiting their subdivision to bring their kids to school. Defendant also reiterated that he blacked out after hitting O.N. only one time. After hearing all the testimony presented at trial, the jury found defendant guilty of attempted aggravated rape and guilty of the responsive offense of second degree kidnapping.

REVIEW FOR ERROR

This Court reviews the record for error under La.Code Crim. P. art. 920(2). Under Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 128 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277. We note such an error which requires us to vacate defendant’s conviction, habitual offender adjudication, and sentence for second degree kidnapping.

Defendant was charged by bill of information with attempted aggravated rape and aggravated kidnapping. Article I, section 15 of the Louisiana Constitution provides that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Likewise, La. Code Crim. P. art. 382(A) provides that prosecution for an offense punishable by death, or for an. offense punishable by life imprisonment, shall be instituted by grand jury indictment. Aggravated kidnapping is punishable by life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:44. Therefore, the institution of prosecution for this offense |7should have been by grand jury indictment. The failure to proceed by grand jury indictment on defendant’s aggravated kidnapping charge is a fatal defect. See State v. Donahue, 355 So.2d 247 (La.1978). This defect may not be cured by a responsive verdict of a lesser included offense which could have been charged by a bill of information. See State v. Ruple, 437 So.2d 873, 875 (La.App. 2d Cir.1983).

We must now determine whether our invalidation of defendant’s second degree kidnapping conviction due to a fatal defect in the bill of information requires us to invalidate defendant’s conviction for attempted aggravated rape. See Donahue, 355 So.2d at 249.

Attempted aggravated rape is neither a capital crime nor a crime punishable by life imprisonment. See La. R.S. 14:27(D)(1)(a) & La. R.S. 14:42(D)(1). Therefore, it may be charged by grand jury indictment or by bill of information. See Donahue, 355 So.2d at 249. It is clear, therefore, that had the attempted aggravated rape charge been brought alone, it could have properly been brought by bill of information. Moreover, if the aggravated kidnapping charge had been quashed or severed before trial began, the prosecution for attempted aggravated rape could have continued separately. See Donahue, 355 So.2d at 249. This is so because each count in a multiple-count bill of information independently charges an offense. See Donahue, 355 So.2d at 249. Thus, if one count of a two-count indictment or information is invalid, only the defective count will be quashed or nullified. See Donahue, 355 So.2d at 250.

The only real question, then, is whether the charge and evidence of the aggravated kidnapping charge, presented to the jury simultaneously with that from the attempted aggravated rape charge, so infected the otherwise properly charged and tried attempted aggravated rape prosecution as to | ^require reversal of the attempted aggravated rape conviction. See Donahue, 355 So.2d at 250. We believe that it did not.

Here, the two crimes arose out of the same transaction, and facts as to each offense would have been admissible at trial of the other offense as part of the res gestae. See Donahue, 355 So.2d at 250. Thus, the instant situation is not one where the counts could not have been joined and where such misjoinder resulted in inherent prejudice to defendant on each charge. See Donahue, 355 So.2d at 250; La.Code Crim. P. art. 493.

In this case, the State used evidence of defendant’s attempted aggravated rape to try to support a conviction for aggravated kidnapping by arguing that defendant had attempted to secure something of value from O.N. (ie., sexual gratification) to secure her release. However, the state’s introduction of evidence related to the forcible seizing and carrying element of the aggravated kidnapping charge was equally relevant to the force element of attempted aggravated rape. Therefore, the state’s introduction of evidence related to the aggravated kidnapping charge did not taint defendant’s trial on his attempted aggravated rape charge because the same evidence was relevant for both offenses.

We hold that the defective bill of information nullifies only defendant’s conviction for second degree kidnapping and his subsequent habitual offender adjudication and sentence related to this conviction. Therefore, we must now address defendant’s assignments of error as they relate to his conviction for attempted aggravated rape.

ASSIGNMENT OF ERROR # 1

In defendant’s first assignment of error, he argues that the evidence presented at trial was insufficient to support his conviction for attempted 1 flaggravated rape. Specifically, defendant contends that the state failed to prove that he had the specific intent to commit aggravated rape.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statutes 14:42 provides in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: (1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

Louisiana Revised Statutes 14:41 provides in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Louisiana Revised Statutes 14:27(A), in turn, provides:

|inA. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. The trier of fact is to determine the requisite intent in a criminal case. State v. Crawford, 619 So.2d 828, 831 (La.App. 1st Cir.), writ denied, 625 So.2d 1032 (La.1993).

Viewing the evidence in the light most favorable to the prosecution, we find that the state established that defendant did have the specific intent to commit an aggravated rape of O.N. The victim testified at trial that defendant hit her, forced her into an alley behind her store, and attempted to undress her while simultaneously touching her private area. Further, defendant succeeded in unbuttoning O.N.’s jeans. Additionally, the recording of O.N.’s call to 911 reveals that it was her perception of defendant’s actions that he was attempting to rape her during the struggle. Lastly, when he was asked by Officer Kazusky what he planned to do with the victim once she was outside, defendant replied that he could only speculate that he was going to rape her. These facts and circumstances, taken together, establish that defendant had the requisite intent to support his conviction for attempted aggravated rape.

As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting |, ¶ testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984).

In his own testimony, defendant stated that he blacked out after he hit O.N. the first time and that he regained awareness when he unlatched the back door of the store and began to run away from the scene. Defendant further stated that he did not remember anything happening between him and O.N. outside of the store. The jury apparently rejected defendant’s version of the events and his contention that he had no sexual intent toward O.N. In reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Furthermore, a reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. \KState v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). We further note that, despite the admission of his intoxication at the time of the offense, defendant never raised the defense of intoxication as an attempt to negate the specific intent element of attempted aggravated rape, and he specifically disclaimed this defense in his own testimony.

After a thorough review of the record, we are convinced that, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, defendant was guilty of attempted aggravated rape.

This assignment of error is without merit.

ASSIGNMENT OF ERROR #2

In his second assignment of error, defendant contends that his habitual offender sentence is excessive and that it was unconstitutionally imposed. Specifically, defendant claims that his habitual offender sentence is disproportionate and that it serves no meaningful sentencing goals. Secondly, defendant contends that he was improperly adjudicated a habitual offender because the state did not present evidence of constitutionally sound guilty pleas for his predicate convictions. Defendant argues that he was not advised of the sentencing range for one of his offenses and that he was advised in each of his predicate pleas that by pleading guilty, he was waiving his right to court-appointed counsel. We will address defendant’s second contention first.

Habitual Offender Adjudication

If the defendant denies the allegations of the habitual offender bill of information, the burden is on the state to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when the |13pleas were taken. See State v. Shelton, 621 So.2d 769, 779 (La.1993). If the state meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Shelton, 621 So.2d at 779. If the defendant is able to do this, then the burden shifts to the state. The state will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one that reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. Shelton, 621 So.2d at 779-80. If the state introduces anything less than a perfect transcript, for example, a guilty plea form, a minute entry, an imperfect transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and the state to determine whether the state has met its burden of proving that the defendant’s pri- or guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights. Shelton, 621 So.2d at 780.

The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 2004-1401 (La.7/2/04), 879 So.2d 689, 691 (per curiam). The state is not required to use a specific type of evidence in order to carry its burden of proof pursuant to the Habitual Offender Law, La. R.S. 15:529.1. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 344-45 n. 3, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). Rather, any competent evidence may be used to prove a defendant’s prior convictions. Accordingly, the state’s burden of proof may be met by various means including the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the defendant with those in the record of prior convictions, or photographs contained in a duly authenticated record. State v. Mays, 2005-2555 (La.5/26/06), 929 So.2d 1231, 1232 (per curiam).

Herein, the state presented evidence in support of the following predicate convictions in Terrebonne Parish: a November 16, 1998 guilty plea to attempted possession of cocaine (a violation of La. R.S. 40:967(C) & La. R.S. 40:979) in case number 317574; a June 16, 2003 guilty plea to simple burglary (a violation of La. R.S. 14:62) in case number 406746; and a June 16, 2003 guilty plea to simple burglary (a violation of La. R.S. 14:62) in case number 407990. At the hearing, the State presented expert testimony matching the fingerprints of defendant with those in the record of his prior convictions. The state also introduced into the record the transcript of each of defendant’s Boykin colloquies for his predicate offenses. Defense counsel argued at the habitual offender hearing that defendant’s guilty pleas were invalid because he was not advised that they may be used against him in future habitual offender proceedings and because defendant was advised that by pleading guilty, he was waiving his right to court-appointed counsel. On appeal, defendant adds the contention that he was not informed of the actual sentencing range for his predicate conviction for attempted possession of cocaine.

We first note that although advice with respect to a defendant’s sentencing exposure and the possibility of enhancement may facilitate the |, staking of a voluntary guilty plea, such advice has never formed part of the Supreme Court’s core Boykin requirements for the entry of a presumptively valid guilty plea. See State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, 1164. Therefore, these contentions are not fatal to defendant’s predicate guilty pleas.

Defendant’s second argument is that when the trial court advised him in each of his predicate guilty pleas that he was waiving his right to court-appointed counsel, this advice misled defendant into believing that he was not entitled to counsel in future proceedings in those cases, such as potential appeals. In denying this argument, the trial court noted that it had reviewed the transcripts of defendant’s Boykin colloquies and found them to be substantially the same as those used in his own and other jurisdictions. (R. p. 625). Furthermore, defendant introduced no affirmative evidence to support his assertion of being misled on the issue of court-appointed counsel. We find no error in the trial court’s finding that the evidence presented at defendant’s habitual offender hearing was sufficient to adjudicate him a third-felony habitual offender.

Excessive Sentence

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may fell within statutory limits, it may nevertheless violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Generally, a sentence is considered constitutionally excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain |ifiand suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. State v. Reed, 409 So.2d 266, 267 (La.1982). A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Landos, 419 So.2d 475, 478 (La.1982). See also State v. Savario, 97-2614 (La.App. 1st Cir.11/6/98), 721 So.2d 1084, 1089, writ denied, 98-3082 (La.4/1/99), 741 So.2d 1280.

Here, defendant was convicted of attempted aggravated rape, a crime which carries a potential penalty of not less than ten nor more than fifty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(l)(a) & La. R.S. 14:42(D)(1). After his adjudication as a third-felony habitual offender, defendant’s sentencing range was a minimum two-thirds of the longest possible sentence for his attempted aggravated rape conviction and a maximum of not more than twice the longest possible sentence. See La. R.S. 15:529.1(A)(l)(b)(i) (prior to 2010 amendments). So, when the trial court sentenced defendant to 33.33 years at hard labor, without benefit of parole, probation, or suspension of sentence as a third-felony habitual offender, defendant was given the shortest possible sentence for which he was eligible. Given the facts of this case and considering that defendant’s enhanced sentence is the minimum possible under the Habitual Offender Law, we find no abuse of the trial court’s discretion.

This assignment of error is without merit.

I ^ASSIGNMENT OF ERROR # 3

In his final assignment of error, defendant argues that each of his verdicts should be set aside because of confusion regarding the jury tally for his second degree kidnapping conviction.

Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. See La. Const, art. I, § 17(A); La.Code Crim. P. art. 782(A). The record reflects that, during polling, one juror mistakenly answered both “yes” and “no” on the card asking whether her verdict was guilty of second degree kidnapping on Count 2. Two other jurors had marked “no.” The multiple-answer juror was then re-polled, and she indicated “yes” on a new card asking whether her verdict was guilty of second degree kidnapping on Count 2. After carefully reviewing the record, we have determined that there was no confusion about the sufficiency of the jury tally on Count 1, and we have already determined that defendant’s conviction on Count 2 should be vacated for the reasons stated above.

This assignment of error is without merit.

For the foregoing reasons, defendant’s conviction, habitual offender adjudication, and sentence on Count 1 are affirmed. Defendant’s conviction, habitual offender adjudication, and sentence on Count 2 are vacated. We remand for further proceedings.

COUNT 1 CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED; COUNT 2 CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE VACATED AND REMANDED.

      . In accordance with La. R.S. 46:1844(W), the victim herein is referenced only by her initials, or referred to as "the victim.”

      . Officer Kazusky now works for the Louisiana State University Police Department.

      .Officer Kazusky indicates in his testimony that the vehicle was located outside of defendant's uncle's house, but defendant's own testimony indicates that the house belonged to his grandmother. There is no dispute that the house where the vehicle was found is located on Cleveland Street in Houma, so we will refer to the location as defendant’s grandmother’s house.

      . In Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that because a guilty plea constitutes a waiver of constitutional rights, including the privilege against self-incrimination, the right to trial by jury and the right to confront one’s accusers, the prosecution is required to show that the plea was intelligent and voluntary.

      . Because two of defendant's convictions were obtained on the same day (June 16, 2003) before October 19, 2004, those convictions are counted as one conviction for the purposes of the Habitual Offender Law. See La. R.S. 15:529.1(B).

      . Due to the nullity of the State’s aggravated kidnapping bill of information, jeopardy has not yet attached as per La.C.Cr.P. Art. 596(3). See Illinois v. Somerville, 410 U.S. 458, 459, 93 S.Ct. 1066, 1068, 35 L.Ed.2d 425 (1973), Duncan v. Tennessee, 404 U.S. 821, 92 S.Ct. 121, 30 L.Ed.2d 49 (1971), cert. dismissed 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972), State v. Williams, 301 So.2d 587, 588 (La.1974). The State may retry the defendant for aggravated kidnapping provided an indictment is returned from a grand jury.

      . Original sentence for second degree kidnapping was incorrect, as the court did not impose at least two years without the benefit of probation, parole, or suspension of sentence. La.R.S. 14:44.1(C). This issue is moot, however, since Count 2 will be remanded for other reasons.


author: CARTER, C.J.

text:
    Melissa GUTIERREZ and Fernando Gutierrez, individually and on behalf of his Minor Children, Dustin, Evan, Selah and Haley v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and the Parish of Ascension.
    No. 2011 CA 1774.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.
    Rehearing Denied May 4, 2012.

      James D. “Buddy” Caldwell, Attorney General, John H. Ayres, III, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellant, Louisiana Department of Transportation and Development.
    Daniel J. Balhoff, Randi S. Ellis, Steven R. Giglio, Baton Rouge, LA, for Plaintiffs/Appellees, Melissa Gutierrez and Fernando Gutierrez, individually and on behalf of his minor children, Dustin, Evan, Selah and Haley.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

|2In this action for damages arising out of an automobile accident, the defendant, the Louisiana Department of Transportation and Development (DOTD), appeals a judgment of the trial court finding DOTD partially at fault and awarding damages to the plaintiffs. Plaintiffs, Melissa Gutierrez and Fernando Gutierrez, individually and on behalf of his minor children, Dustin, Evan, Selah, and Haley, have answered the appeal, challenging the percentage of fault assessed to DOTD and the amount of damages awarded.

FACTS AND PROCEDURAL HISTORY

The accident at issue occurred on April 27, 2004, at the intersection of Louisiana Highways 931 and 431 in Ascension Parish. Ms. Gutierrez was driving northbound on Highway 431, with the intention of proceeding onto Highway 931. Her four minor children were riding as passengers in the vehicle. At that time, the intersection was configured such that Highway 431 curved to the right for northbound traffic and intersected Highway 931 in the curve. Thus, a motorist northbound on Highway 431, such as Ms. Gutierrez, would see Highway 931 straight ahead, but would have to cross Highway 431’s oncoming traffic to reach Highway 931. As she attempted to travel onto Highway 931, Ms. Gutierrez crossed the center line of Highway 431 and collided, head-on, with a vehicle traveling southbound around the curve of Highway 431. Ms. Gutierrez and her four children were injured in the accident, with seven-year-old Dustin suffering the most serious injuries.

Plaintiffs filed suit against DOTD, alleging that the intersection presented “a trap for motorists due to its construction, design and traffic |.scontrol defects.” The driver of the other vehicle involved in the accident was not a party to the suit.

Trial was held March 15 through March 17, 2011, with some claims tried to a jury and others tried to the bench. In oral reasons, the trial court explained that “[pjursuant to the stipulation of the parties, the plaintiffs’ claims were [bifurcated], with the claims of Melissa Gutierrez, Fernando Gutierrez, Evan Gutierrez, Se-lah Gutierrez, and Haley Gutierrez tried as a bench trial. The claim relating to Dustin Gutierrez was tried by the jury.” The jury returned a verdict finding no fault on the part of DOTD. In rendering judgment on the bench trial, the trial court found DOTD to be 25% at fault. The trial court then stated that it would reconcile the inconsistent fault determinations and entered judgment allocating 25% fault to DOTD and awarding damages to the plaintiffs.

The plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), seeking additional amounts in damages and contending that a higher percentage of fault should be assessed to DOTD. DOTD filed a motion to enter judgment in accordance with the jury’s verdict and to strike the premature bench judgment and premature motion for JNOV. The trial court denied DOTD’s motion, granted a new trial with respect to damages only, and vacated its previously entered judgment. The trial court then entered a new judgment based on its determination that DOTD was 25% at fault and Ms. Gutierrez was 75% at fault, and awarded damages to the plaintiffs.

|4DOTD has appealed, challenging the trial court’s action in reconciling the jury’s finding with its own, the trial court’s determination of liability on the part of DOTD, as well as particular findings concerning Dustin’s damages. Plaintiffs have answered the appeal, contending the trial court erred in its apportionment of fault between DOTD and Ms. Gutierrez, and in failing to award certain damages related to Dustin’s injuries.

DISCUSSION

The judgment on appeal reflects the trial court’s reconciliation of the bench and jury determinations as to the fault of the sole defendant, DOTD. DOTD contends that it was improper for the trial court to render such a judgment. Two very different legal principles are involved here— reconciliation of a jury verdict with a different finding of the trial court and the law applicable to a JNOV.

In a bifurcated trial, an inconsistent jury verdict and bench trial decision must be harmonized. See Thornton v. Moran, 348 So.2d 79, 81-82 (La.App. 1 Cir.), writ denied, 350 So.2d 900 (La.1977); see also Hartec Corporation v. GSE Associates, Inc., 10-1332 (La.App. 1 Cir. 2/24/12), 91 So.3d 375, 380-85 (setting forth a comprehensive overview of the methods of resolving conflicting verdicts applied by the various Louisiana courts of appeal). However, harmonization is only necessary when both the jury and trial court have legal authority to decide the issues and reach conflicting decisions. Fontenot v. Patterson Insurance, 08-0414 (La.12/12/08), 997 So.2d 529, 534. Thus, the initial inquiry here is whether both the jury and trial court had the authority to decide the issue of liability (as it was the issue of liability on which the two triers of fact reached conflicting decisions). See id.

| ,-,In its answer, DOTD requested a jury trial on all issues in this case. Shortly before trial, plaintiffs stipulated that each of the plaintiffs’ damages, except Dustin’s, were less than $50,000.00 (these plaintiffs will collectively be referred to as the bench-trial plaintiffs). Nonetheless, DOTD asserts that it did not waive its right to a jury trial as to liability, maintaining that the trial court was only authorized to fix damages for the bench-trial plaintiffs should the jury find liability on the part of DOTD.

Plaintiffs contend that DOTD stipulated to the procedure of a jury trial on Dustin’s claims and a bench trial on the bench-trial plaintiffs’ claims.. The pre-trial order signed by counsel for plaintiffs and DOTD contains the following:

Plaintiffs Statement as to Trial by Jury:
Dustin’s claim exceeds $50,000, thus giving the DOTD a right to a jury trial. The only other claim that might exceed $50,000 is Melissa’s (we have not yet decided whether we will stipulate that her claim -will not exceed $50,000). We will stipulate that Fernando’s, Evan’s, Selah’s, and Haley’s claims do not exceed $50,000. Therefore, the Court will decide those claims, both as to damages and as to liability. (Emphasis added.)
Defendant’s Statement as to Trial by Jury:
The matter is fixed for trial by jury regarding all issues; plaintiffs have lately asserted that they may stipulate to a bench trial regarding some plaintiffs.

Plaintiffs also point out that DOTD did not object as this matter proceeded before the trial court, particularly during the portion of the bench trial that took place after the jury returned its verdict of no liability, and that DOTD’s brief on the claims tried to the bench included a discussion of liability.

A litigant’s right to a jury trial is fundamental in character, and courts will indulge every presumption against a waiver, loss, or forfeiture thereof. Champagne v. American Southern. Ins. Co., 295 So.2d 437, 439 (La.1974). The Louisiana Supreme Court recently re-affirmed the right to a jury trial in a civil case, noting that the right is “favored in the law.” See Pugeau v. Hebert, 00-0875 (La.5/12/00), 760 So.2d 325, 326. This right inures to the benefit of both plaintiffs and defendants. Able v. Vulcan Materials Co., 11-0448 (La.App. 1 Cir. 2/8/12), 94 So.3d 1, 9.

The record in this matter does not contain a motion to strike the jury as to the claims of the bench-trial plaintiffs. It also does not reflect any stipulation on the part of DOTD as to the procedure of holding simultaneous trials by the jury and trial court as to the liability of DOTD, the single defendant in the case. Rather, the record evidences confusion as to the procedural posture of the case proceeding to trial, with the pretrial order being the only possible indication that both the jury and the trial court would decide liability.

There is no dispute that DOTD’s request for jury trial entitled it to have the jury determine its liability as to Dustin, even after plaintiffs’ stipulation that the bench-trial plaintiffs’ damages did not exceed the jurisdictional amount for a jury trial. Further, by their argument in support of reconciliation of the jury’s and trial court’s fault determinations, plaintiffs acknowledge that in this case, all plaintiffs can be subject to only one fault determination. Considering that there is no stipulation by DOTD that it was waiving its right to have the jury try liability, and being mindful that courts will indulge every presumption against waiver or loss of a jury trial, we must conclude that, in this case, the procedural effect of the stipulation as to the damages claims of the bench-trial plaintiffs was limited to removing those damage claims from the province of the jury. The jury retained the sole authority to decide DOTD’s liability through Dustin’s case. We cannot 17conclude that such a stipulation as to less than all plaintiffs’ damages, at the last instant, created a bifurcated trial on liability, thereby subjecting the single defendant to the real possibility of having conflicting liability determinations that must be reconciled or harmonized. Bifurcated trials and their attendant difficulties should be avoided whenever possible. Fontenot, 997 So.2d at 537. Moreover, procedural maneuvers designed solely to deprive litigants of their right to a jury trial based on jurisdictional amounts are disfavored. Prudential Ins. Co. v. Gideon, 02-0532 (La.App. 1 Cir. 2/14/03), 845 So.2d 437, 440.

For the reasons set forth, we conclude that the trial court should not have determined DOTD’s liability as part of the bench trial. Thus, there should not have been conflicting decisions or reconciliation of those decisions on that issue. At this stage of the proceedings, the trial court should have rendered judgment on the jury’s verdict finding that DOTD was not at fault. It was legally incorrect for the trial court to do otherwise. However, this is not the end of the inquiry.

After the jury rendered its verdict, plaintiffs did file a motion for JNOV. In its written reasons, the trial court stated that it “[believed] that no reasonable trier of fact could reach the conclusion that DOTD was not at fault with such a blatantly defective intersection and that the defect was not a cause in fact of the accident.” Thus, the trial court made findings consistent with a JNOV. See Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 89.

A JNOV is a procedural device authorized by Louisiana Code of Civil Procedure article 1811, by which the trial court may modify the jury’s finding of fault or damages, or both, to correct a legally erroneous jury |sverdict. See La.Code Civ. Proc. art. 1811 F; Adams v. Parish of East Baton Rouge, 00-0424 (La.App. 1 Cir. 11/14/01), 804 So.2d 679, 687, writ denied, 02-0448 (La.4/19/02), 813 So.2d 1090. The Louisiana Supreme Court has set forth the standard to be used in determining whether a JNOV has been properly granted as:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Davis, 774 So.2d at 89 (citations omitted).

A JNOV is proper only when the trial court determines that reasonable minds could not reach a contrary verdict, or when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable jurors could not find otherwise. Cavalier v. State, Dept. of Transp. and Develop., 08-0561 (La.App. 1 Cir. 9/12/08), 994 So.2d 635, 644. In considering a motion for JNOV, the trial court is prohibited from weighing evidence, making credibility determinations, drawing inferences, or substituting its fact determinations for that of the jury. Id. The trial court must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict. Id. \ 9Stated simply, if reasonable persons could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. Id.

An appellate court reviewing a trial court’s grant of a JNOV employs the same criteria used by the trial court in deciding whether to grant the motion. Smith v. State, Dept. of Transp. & Dev., 04-1317 (La.3/11/05), 899 So.2d 516, 525. In other words, the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact. If the answer is in the affirmative, then the appellate court must affirm the grant of the JNOV. Id. However, if the appellate court determines that reasonable minds could differ on that finding, then the district court erred in granting the JNOV, and the jury verdict should be reinstated. Id. Neither the trial court nor this court may substitute its evaluation of the evidence for that of the jury, unless the jury’s conclusions totally offend reasonable inferences from the evidence. Templet v. State ex rel. Dep’t of Transp. and Dev., 00-2162 (La.App. 1 Cir. 11/9/01), 818 So.2d 54, 58.

Thus, our initial inquiry is whether the evidence overwhelmingly supported plaintiffs’ contention that reasonable jurors could not have apportioned 0% fault to DOTD and 100% fault to Ms. Gutierrez. If so, then the trial court was correct in granting the JNOV, and we must then conduct a manifest error review of the trial court’s independent apportionment of fault. See Cavalier, 994 So.2d at 645. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then the trial court erred in granting the motion, and the jury’s apportionment of fault should be reinstated.

10It was plaintiffs’ burden to prove: 1) DOTD had custody of the thing that caused plaintiffs’ damages; 2) the thing was defective because it had a condition that created an unreasonable risk of harm; 3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and 4) the defect was a cause-in-fact of plaintiffs’ injuries. La. Civ. Code Ann. arts. 2315, 2317; Shilling v. State, Dept. of Transp. and Develop., 05-0172 (La.App. 1 Cir. 12/22/05), 928 So.2d 95, 99. At trial, the parties stipulated that DOTD had custody of the intersection of Louisiana Highways 931 and 431.

In written reasons, the trial court stated “[t]here is no doubt that the geometric design of the 431/931 intersection was defective and was unreasonably dangerous.” The trial court then set forth relevant evidence adduced at trial to support its finding. The trial court likewise found that plaintiffs proved the actual or constructive notice element, citing testimony of witnesses as well as this court’s decision in Farley v. State Through Depart. of Transp. and Development, 95-2473 (La.App. 1 Cir. 9/27/96), 680 So.2d 746, 748, which concerned the same intersection. Assuming the trial court correctly concluded that reasonable jurors could not have found that the intersection was not defective, and that reasonable jurors could not have found that DOTD did not have notice of the defect and failed to take corrective measures within a reasonable time, the crux of the matter is whether reasonable jurors could disagree as to the defect being a cause-in-fact of plaintiffs’ injuries.

J^The accident occurred just after noon on a sunny, clear day. The parties agree that as Ms. Gutierrez proceeded northbound on Highway 431, she passed a curve-ahead sign advising drivers of an upcoming curve to the right. She next passed a highway junction sign indicating the meeting of Highways 431 and 931. That portion of Highway 431 also had double centerline striping, indicating a no passing zone.

Plaintiffs had lived in the Gonzales area for approximately four years prior to the accident. Although Ms. Gutierrez had gone through the intersection as a passenger more than once, she maintains that she had never driven through it herself. Ms. Gutierrez testified that she did not recall seeing the posted signage as she approached the intersection and thought she could proceed straight ahead onto Highway 931 without the necessity of yielding to traffic rounding the curve in the oncoming lane. Ms. Gutierrez admitted that there was no northbound traffic ahead of her blocking her vision, and there was no testimony that anything obstructed her view as she approached the intersection.

Dr. Olin K. Dart, Jr., an expert in highway design and traffic engineering, agreed that a road or intersection could have a defect that did not cause a particular accident. Further, he agreed that, hypothetically, a motorist driving in broad daylight should be alerted to a major change in alignment by the curve-ahead sign. Moreover, the double centerline striping would normally alert a motorist that crossing the striping would put them in the opposing lane of traffic. Although Dr. Dart unequivocally testified that the intersection was, in his opinion, defective, he did not opine as to the cause of the accident.

| ^Louisiana State Trooper First Class Kevin Biddy, who investigated the accident, characterized Ms. Gutierrez’s action as an attempt to turn left from Highway 431 onto Highway 931. He testified that her statement to him was that as she began to make the turn, she noticed the approaching vehicle, tried to swerve and avoid the collision, but was unable to do so. Trooper Biddy concluded that Ms. Gutierrez was inattentive or distracted as she navigated the intersection. He testified that if Ms. Gutierrez had stated that she did not know she was in the intersection, he would have so indicated in his report. Ms. Gutierrez testified that she only vaguely remembered speaking to a State Trooper after the accident while she was in the hospital.

The primary evidence that the defective intersection was a cause-in-fact of the accident and resulting injuries was the testimony of Ms. Gutierrez. On the other hand, the jury heard testimony as to signage and striping, that the accident occurred on a clear day with no visual obstructions present, and that Ms. Gutierrez failed to yield to oncoming traffic as she proceeded from Highway 431 to Highway 931. DOTD argued that, in this case, Ms. Gutierrez was a careless motorist who ignored the obvious layout of the intersection.

At trial, the factfinder is charged with assessing the credibility of the witnesses and is free to accept or reject, in whole or in part, the testimony of any witness. Succession of Fisher, 06-2493 (La.App. 1 Cir. 9/19/07), 970 So.2d 1048, 1055 n. 5. It is apparent that, here, the jury chose to reject the testimony of Ms. Gutierrez in light of the other evidence presented.

When contemplating a JNOV, the trial court is prohibited from weighing evidence, making credibility determinations, drawing inferences therefrom, or substituting its own factual conclusions for those of the jury. Lewis v. State Farm Mut. Auto. Liability Ins. Co., 09-1242 (La.App. 1 Cir. 3/26/10), 36 So.3d 970, 973, writ denied, 10-0933 (La.6/25/10), 38 So.3d 342. The trial court is not authorized to interfere with the verdict simply because it believes another result would be correct. Id. After careful review, we conclude that reasonable minds could differ as to whether the defective intersection was a cause-in-fact of the accident. The jury’s verdict finding that DOTD was not at fault is reasonably supported by the evidence adduced at trial. Thus, we find that granting the JNOV was improper and that judgment should have been entered based on the jury’s finding that DOTD was not at fault in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the JNOV is reversed. Judgment is entered based on the jury’s verdict, absolving DOTD of liability in this ease. The relief requested in plaintiffs’ answer to this appeal is denied. Costs of this appeal are assessed to Melissa Gutierrez and Fernando Gutierrez, individually and on behalf of his minor children, Dustin, Evan, Selah and Haley.

JUDGMENT REVERSED AND RENDERED; ANSWER TO APPEAL DENIED.

      . Between the time of the accident and trial in this matter, the intersection was reconfigured.

      . Plaintiffs named the Parish of Ascension as a defendant in their suit, but later dismissed the Parish as a party.

      . Although this court has previously reviewed cases of accidents at this intersection, ultimately, DOTD’s liability depends on all of the facts and circumstances determined on a case-by-case basis. Netecke v. State ex rel. DOTD, 98-1182, 98-1197 (La.10/19/99) 747 So.2d 489, 495.

      . Our determination renders the remaining issues raised by the parties moot. Accordingly, plaintiffs' answer to this appeal is denied,


author: McCLENDON, J.

text:
    BATON ROUGE GENERAL MEDICAL CENTER v. LOUISIANA RESTAURANT ASSOCIATION, SIF.
    No. 2010 CA 2195.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      John S. Bradford, Lynsay M. Fontenot, Thomas A. Filo, Lake Charles, LA, for Plaintiff/Appellant Baton Rouge General Medical Center.
    Stephen W. Glusman, Stephen Broyles, Baton Rouge, LA, for Defendants/Appel-lees Louisiana Restaurant Association, SIF.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

lain this workers’ compensation case, a health care provider appeals a judgment sustaining a peremptory exception raising the objection of prescription as to its claim for penalties and attorney fees. In light of our recent decision in St. Tammany Parish Hospital v. Trinity Marine Products, Inc., 10-1481 (La.App. 1 Cir. 2/16/12), 91 So.3d 985 (en banc), we reverse and remand.

On March 27, 2006, Baton Rouge General Medical Center (Baton Rouge General) provided medical services to Jeremy Crawford after he was injured at work. After receiving what it considered to be only partial payment for its services from Mr. Crawford’s employer and the Louisiana Restaurant Association Self Insurers Fund (collectively, the employer) on or about June 16, 2006, Baton Rouge General filed a disputed claim for compensation on August 27, 2008. In addition to the unpaid portion of its fees for services, Baton Rouge General also asserted a claim for penalties and attorney fees pursuant to LSA-R.S. 23:1201 F.

In response, the employer filed a peremptory exception raising the objection of prescription, arguing that the disputed claim was filed more than one year after the alleged underpayment was made, and the claim for penalties and attorney fees was therefore prescribed. The Office of Workers’ Compensation (OWC) sustained the exception as to the claim for penalties and attorney fees, and Baton Rouge General appealed.

In St. Tammany Parish Hospital, a plurality of this court, citing LSA-R.S. 23:1201 F, reasoned that “it is the employer’s (or the insurer’s) failure to 13provide the payment of the medical benefit within the time period required for the payment of that medical benefit under [LSA-]R.S. 23:1201 that triggers the health care provider’s entitlement to a penalty.” That plurality, therefore, concluded that “this is when the health care provider’s claim for penalties and attorney fees arises or accrues.” St. Tammany Parish Hospital, 10-1481 at p. 8, 91 So.3d at 990. The plurality held that under LSA-R.S. 23:1209 C, the health care provider’s claim for the underpayment of medical benefits prescribed at the expiration of three years from the time of making the last payment of medical benefits. St. Tammany Parish Hospital, 10-1481 at p. 10, 91 So.3d at 991-92.

In this matter, the uncontroverted evidence established that the employer’s “last payment” was made to Baton Rouge General on June 2, 2006. Baton Rouge General filed its claim for the underpayment of its fee and for penalties and attorney fees on August 27, 2008, well within the three-year prescriptive period.

Another plurality of this court in St. Tammany Parish Hosp. reached the same result but applied a different rationale. That plurality emphasized the delic-tual nature of the claim for penalties and attorney fees, and suggested that because LSA-23:1201F, creating the cause of action for the health care provider’s claim, does not provide a time period within which to assert the claim, the one-year prescriptive period of LSA-C.C. art. 3492 was the applicable prescriptive period. While pointing out that under Article 3492, the prescriptive period commences the date that the injury or damage is sustained, that plurality 14noted that prescription cannot run against a cause of action that has not accrued or while the cause of action cannot be exercised. St. Tammany Parish Hospital, 10-1481, 91 So.3d at 993 (Carter, C.J., concurring). Because a health care provider may only be awarded penalties and attorney fees “[i]n the event that [it] prevails on a claim for payment of his fee,” that plurality held that the health care provider’s claim does not begin to accrue until the health care provider has prevailed on its claim for payment of its fee. Id.

Applying this rationale to the matter before us, because it was not until the employer paid the full amount of the fee on March 5, 2010, that Baton Rouge General prevailed on its claim for payment of its fee, the instant suit filed on August 27, 2008, was timely asserted.

Accordingly, under either rationale, Baton Rouge General’s claim was timely asserted. Therefore, the decision of the OWC sustaining the peremptory exception raising the objection of prescription as to Baton Rouge General’s claim for penalties and attorney fees is reversed, and this matter is remanded to the OWC for further proceedings. Costs of this appeal are assessed to the Louisiana Restaurant Association Self Insurers Fund and Jeremy Crawford.

REVERSED AND REMANDED.

      . After the peremptory exception raising the objection of prescription was sustained, the employer tendered the disputed underpayment amount plus interest thereon, for a total amount of $149.09, to Baton Rouge General. Thereafter, the OWC signed a summary judgment dismissing the claim.

      . Louisiana Revised Statutes 23:1201 provides, in relevant part:
      E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
      F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty....
      (4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

      . Louisiana Revised Statutes 23:1209 C provides:
      All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.