author: FREDERICKA HOMBERG WICKER, Judge.

text:
    ZURICH AMERICAN INSURANCE COMPANY v. QUEEN’S MACHINERY CO., LTD.
    No. 08-CA-546.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Thomas L. Gaudry, Jr., Michael D. Pey-tavin, Attorneys at Law, Gretna, LA, for Plaintiff/Appellee.

      Perry R. Staub, Jr., Mark E. Van Horn, Stephen T. Perrien, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2This is a workers’ compensation subro-gation proceeding in which the employer’s workers’ compensation insurer seeks to recover from the manufacturer of an extruder the amounts it paid or may pay in workers’ compensation benefits as a result of an alleged workplace accident involving the extruder. The manufacturer filed a reconventional demand against the insurer in which it alleged the following claims: (1) spoliation of evidence; (2) mishandling of the workers’ compensation claim; and, (3) quantum meruit. The trial judge granted the workers’ compensation insurer’s exception of no cause of action and dismissed the reconventional demand. For the following reasons, we affirm.

Proceedings Below

Zurich American insurance Company, plaintiff/appellee, (Zurich) filed a petition for damages in August 2004 against Queen’s Machinery Co., Ltd., defendant/appellee (Queen’s). Zurich alleged that on or about September 1, 2003 Nhut Nguyen, an Alpine Plastics, Inc. (Alpine) employee, suffered an accident for | -¡which Zurich, as Alpine’s workers’ compensation carrier, paid and may continue to pay workers’ compensation benefits.

Zurich alleged that Mr. Nguyen suffered an electrocution injury while working with the Queen’s extruder. It alleged that it would not have had to pay the workers’ compensation benefits had it not been for Queen’s negligence and/or fault.

Mr. Nguyen intervened in the suit in July 2005. He intervened individually and as the natural tutor of his wife and children. He sought damages from Queen’s for himself and loss of consortium for the other family members, alleging that he sustained serious and disabling injuries as a result of the accident.

A few weeks later, Queen’s filed a notice of removal to the United States District Court for the Eastern District of Louisiana. The following year, in September 2006, Queen’s filed a “counterclaim” to Zurich’s petition for damages. Among its defenses, Queen’s pleaded alternatively that Zurich had the right to require Alpine to preserve the evidence related to the accident but that instead Zurich allowed the evidence to be lost and/or destroyed at a time when Zurich was on notice of a potential subrogation claim against Queen’s.

In addition to the defense that Zurich failed to preserve the evidence, Queen’s pled as a “counterclaim” the independent tort of spoliation of the evidence. Queen’s alleged the following:

Zurich, as Alpine’s workers’ compensation insurer, operated under a contract of insurance that provided in the event of an injury to an Alpine employee, Zurich had the right to control Alpine in all matters related to that injury. Specifically, Alpine had an obligation to cooperate with and assist Zurich in the investigation of any claim. And Alpine had an obligation to do everything to | ¿preserve Zurich’s right to assert subrogation rights against third parties. Also, that contract of insurance provided that in the event of an injury to an employee, Alpine had the obligation to give Zurich and/or Zurich’s agent the name and addresses of witnesses and other information that Zurich requested.

On September 1, 2003, Mr. Nguyen was allegedly injured while working in the course and scope of his employment with Alpine. One week later, Zurich received notice of the employee’s alleged injury. About two weeks after the alleged accident, Jack Scheinuk, Zurich’s agent, through his employee, contacted Zurich and requested information regarding Mr. Nguyen’s claim. Zurich appointed its employee Renee Marquez as the workers’ compensation adjuster (file handler), and Ms. Marquez communicated with Joseph B. Guilbeau, the workers’ compensation defense counsel.

Before this incident, Mr. Guilbeau had defended a spoliation of evidence claim asserted against Alpine. As a result, Zurich was on notice of the need to instruct Alpine to preserve all evidence associated with Mr. Nguyen’s alleged injuries.

Ms. Marquez contacted Alpine and received information regarding the incident. But Ms. Marquez gave Alpine no instructions regarding the preservation of evidence. On or before September 19, 2006, Mr. Scheinuk requested that Zurich’s legal personnel and Zurich’s engineering personnel investigate Mr. Nguyen’s alleged accident. Around that date, Mr. Scheinuk, acting on behalf of Zurich, inspected the extruder and took photographs. That date, Mr. Scheinuk provided the photographs of the extruder to Ms. Marquez and advised her to make a subrogation demand on behalf of Zurich against Queen’s. Later that date, Ms. Marquez forwarded the photographs to Daphne Hasten, a subrogation adjustor, and instructed her to call Mr. Scheinuk so that the subrogation could proceed. On the |fisame day, Zurich’s counsel communicated by letter with Ms. Hasten and Ms. Rhonda Kleinman, another subrogation adjustor. Therefore, before the end of September 2003 Zurich was developing its subrogation claim against Queen’s and had decided to file suit against Queen’s. At no time during this period did Zurich take custody of the evidence or instruct Alpine to preserve evidence relevant to the claim.

During the following month, Alpine contacted Mr. Scheinuk and inquired whether Zurich’s investigations would interfere with Alpine’s operations. Mr. Scheinuk told Alpine that there may be a need to shut down the machine. Mr. Scheinuk, however, gave Alpine no instructions regarding preserving the evidence nor did he request custody of the machine or any of its component parts. As a result, Alpine did not preserve and it did in fact discard crucial evidence related to Mr. Nguyen’s alleged accident, including but not limited to the configuration of the extruder and the heater bands and physical evidence of or the lack of physical evidence of the alleged accident. Also, although Alpine did locate component parts from other heater bands, Alpine could not produce the actual heater band or Allen wrench allegedly involved in Mr. Nguyen’s accident. Zurich’s failure to preserve or to direct its insured to preserve all evidence related to Mr. Nguyen’s alleged accident has harmed Queen’s. Accordingly, Queen’s requested that in the event it is found liable, in whole or in part, for Mr. Nguyen’s alleged injuries and ordered to pay damages on the principal demand to Zurich and/or to the Nguyens, then there be judgment holding Zurich liable to Queen’s on this “counterclaim” and that Zurich be ordered to pay damages to Queen’s in an amount commensurate with any amount that Queen’s is ordered to pay on the principal demand.; Queen’s sought to have judgment in its favor dismissing Zurich’s petition for damages with prejudice or alternatively in the event that Queen’s is cast in judgment, that ^judgment also be entered in favor of Queen’s against Zurich on Queen’s’ “counterclaim” in an amount commensurate with any amount awarded to Zurich and the Nguyens.

Later, in 2006, The United States District Court for the Eastern District of Louisiana remanded the case to the 24th judicial District Court for the Parish of Jefferson for lack of subject matter jurisdiction.

The following year, Queen’s filed an unopposed motion for leave to amend its “counterclaim.” The trial judge granted the motion.

In its amended counterclaim, Queen’s added two alternative claims — “mishandling of claim” and “quantum meruit.”

In its “mishandling claim,” Queen’s alleged the following:

During the course of discovery, Queen’s learned that Zurich employees failed to properly investigate and administer the medical portion of Mr. Nguyen’s workers’ compensation claim. Zurich employees failed to obtain the most important set of medical records pertinent to Mr. Nguyen’s workers’ compensation claim. These records show that Mr. Nguyen was not paralyzed, despite his alleged presentation of paralysis symptoms. Zurich employees failed to communicate the information in those medical records to other medical providers. Also, Zurich employees failed to communicate properly information included in other medical records to their management showing that doctors’ conclusions regarding Mr. Nguyen’s paralysis symptoms were inconsistent and that no basis existed to pursue a claim against Queen’s. In fact, Zurich employees took affirmative steps to conceal or explain away inconsistencies in the medical records. Had Zurich employees properly investigated and administered the medical portion of Mr. Nguyen’s workers’ compensation claim and communicated the information available to medical providers and Zurich management, Zurich would not have |7paid workers’ compensation benefits to Mr. Nguyen to the extent it did, if at all, and would have had no basis to pursue a subrogation claim against Queen’s. Thus, but for Zurich’s errors in handling Mr. Nguyen’s workers’ compensation claim, Zurich would not have pursued a subrogation claim against Queen’s and Queen’s would not have incurred the attorney fees, expert fees, and expenses associated with investigating and defending Zurich’s sub-rogation claim. Accordingly, Queen’s sought damages in attorney fees and expenses incurred investigating and defending Zurich’s subrogation claim. Queen’s presented rather detailed allegations regarding Zurich employees’ alleged mishandling of the claim.

In its “Quantum Meruit” claim, Queen’s alleged the following:

During the course of discovery, Queen’s investigated Mr. Nguyen’s workers’ compensation claim. Queen’s discovered evidence favorable to Queen’s that Mr. Nguyen is not paralyzed. Instead, he suffers from a hysterical psychosis or, is malingering. Zurich will benefit from this information, which Queen’s obtained at its cost. Therefore, Queen’s requests that Zurich be ordered to reimburse Queen’s in an amount equal to its attorney fees and expenses incurred investigating and defending Zurich’s subrogation claim. Queen’s provided detailed allegations regarding the expenses it incurred in investigating the workers’ compensation claim.

Zurich filed an exception of no cause of action with respect to Queen’s “counterclaims.” Zurich asserted that the petition failed to state a cause of action for spoliation of evidence, and for attorney’s fees, investigation, and defense expenses. The trial judge granted the exception and dismissed the reconventional demand.

Queen’s argues that the trial judge erred in dismissing the claims for these reasons: (1) Allegations that Zurich had control over the alleged defective product |aand failed to preserve it, and knowing it would file suit against Queen’s, are sufficient to state a spoliation of evidence cause of action against Zurich. (2) Allegations that Zurich’s file handler misrepresented medical information to her superiors and doctors retained by Zurich and such misrepresentations caused Queen’s to incur attorney fees and litigation expenses are sufficient to state a cause of action against Zurich.

Analysis

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 5, n. 3 (La.11/30/94), 646 So.2d 885, 888, n. 3. The function of the exception is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1235 (La.1993). No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.C.C.P. art. 931. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690, p. 1 (La.7/5/94), 640 So.2d 237, 241 (Citations omitted). In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. City of New Orleans, 93-0690 at 28, 640 So.2d at 253 (Citations omitted). A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle lühim to relief. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349 (Citation omitted).

Spoliation

Queen’s argues that it has alleged facts to support a cause of action for negligent or intentional spoliation of evidence. Furthermore, the spoliator need only have control of the evidence rather than possession of the evidence. On the other hand, Zurich argues that there is only a cause of action for the tort of intentional spoliation of evidence. As such, there is no allegation that Zurich intentionally destroyed evidence or that Zurich ever had possession of the evidence. In fact Queen’s alleges that at no point did Zurich take custody of the evidence or instruct Alpine to preserve evidence.

In Pham v. Contico International Inc., 99-945, p. 4 (La.App. 5 Cir. 3/22/00), 759 So.2d 880, 882 (citation omitted), we explained that the theory of “spoliation of evidence” refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use. The tort of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Id. (Citations omitted).

Pham held that a plaintiff must allege an intentional destruction of evidence to assert a cognizable claim for spoliation of evidence. Id. 99-945 at 7, 759 So.2d at 883-84. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Longwell v. Jefferson Parish Hosp. Service Dist. No. 1, 07-259, p. 7 (La.App. 5 Cir. 10/16/07), 970 So.2d 1100, 1104, writ denied, 07-2223 (La.1/25/08), 973 So.2d 756, citing Pham, 99-945 at 4, 759 So.2d at 882; Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La.App. 4 Cir.3/3/04), 869 So.2d 922, 927, writ denied, 04-0987 (La.6/18/04), 876 So.2d 808. Accord: Desselle v. Jefferson Hosp. Dist. No. 2, 04-455, p. 15 (La.App. 5 Cir. 10/12/04) 887 So.2d 524, 534.

Longwell, supra, cited jurisprudence that held the duty to preserve evidence for the plaintiff could also arise from a statute, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence. Id., 07-259 at 8, 970 So.2d at 1104-1105. In Longwell, the court found that the defendant hospital had a statutory duty to preserve the evidence for the plaintiff. The court distinguished that case from Pham. It recognized, under those facts, a cause of action in negligence for spoliation arises when a defendant has a statutory obligation to preserve evidence. 07-259 at 8-9, 8, n. 9, 970 So.2d at 1104-1105, 1105, n. 9. Here, there is no statutory duty on the part of Zurich to preserve evidence. There was no affirmative agreement or undertaking on Zurich’s part to preserve the evidence. And, the workers’ compensation insurance policy does not satisfy the relationship or the contractual prong of the test because the contract was not a contract between Queen’s and the insurer. Accord: Dardeen v. Kuehling, 213 Ill.2d 329, 336-37, 290 Ill.Dec. 176, 821 N.E.2d 227, 231-32 (Ill.2004). See also, Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 118 Nev. 630, 634, 55 P.3d 952, 954-55 (Nev.2002) (The liability insurers for the property owner and the general contractor owed no duty in tort to a subcontractor to preserve debris. The insurers’ agreement with the owner and general contractor to preserve evidence did not create a tort duty to the subcontractor).

Therefore, we decline to extend the Longwell exception to the factual scenario presented here.

In Queen’s argues that it met the “intent” pleading requirements of the above jurisprudence for two reasons. First, it alleged that Zurich knew it would file suit against Queen’s prior to the time the evidence was discarded. Second, it alleged that “Alpine did not preserve and did in fact discard crucial evidence related to Nguyen’s alleged accident, including but not limited to the configuration of the extruder and the heater bands and physical evidence of or the lack of physical evidence of the alleged accident.”

Additionally, Queen’s argues that its allegations that Zurich had control of the extruder, although not possession, are sufficient to state a spoliation cause of action against Zurich. Queen’s asserts that by virtue of the Zurich workers’ compensation policy with Alpine, Zurich had the right to control Alpine and to do everything to preserve Zurich’s rights to assert subrogation rights against third parties.

Even if true, Queen’s alleged only negligent conduct. Queen’s failed to allege that either Zurich or Alpine intentionally destroyed evidence. Since allegations of negligent conduct are insufficient, the trial judge did not err in granting the exception of no cause of action and dismissing the spoliation claim.

Misrepresentation Claim and Attorney’s Fees

Queen’s does not dispute Zurich’s right to pursue legitimate subrogation claims. However, Queen’s argues that in this case, Zurich should be held liable and required to pay damages, including attorney fees because of its employees’ misrepresentations. Queen’s asserts that its misrepresentation claim sets forth allegations sufficient to plead both intentional and negligent misrepresentation claims against Zurich, which is vicariously liable for the torts of its employees. The crux of Queen’s argument is that Zurich employees’ misrepresentations 112caused Zurich to erroneously pay workers’ compensation benefits. Hence such misrepresentations caused Queen’s to incur attorney fees and litigation expenses.

In Smith v. State, Dept. of Transp. & Development, 04-1317, p. 17 (La.3/11/05), 899 So.2d 516, 525, citing Huddleston v. Bossier Bank and Trust Co., 475 So.2d 1082 (La.1985), the Louisiana Supreme Court determined that attorney fees are not allowed except where authorized by contract or statute. The prohibition is known as the “American Rule.” See: Sierra Club v. Louisiana Dept. of Wildlife and Fisheries, 560 So.2d 976, 978 (La.App. 4 Cir.1990) (Plotkin, J. dissenting), citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975).

Queen’s points to neither statutory nor contractual authority to support an award of attorney’s fees for its defense. Instead, it asks this court to recognize the Restatement of Torts “tort of another” exception to the “American Rule.” The Restatement refers to the tort of another which causes a party to file suit against a third party or defend itself in a suit brought by a third party.

Queen’s asserts that the Louisiana Supreme Court recognized such a tort in Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 786-92, 269 So.2d 239, 244-46 (La.1972). That case is distinguishable. Ramp involved an attorney malpractice claim against former counsel. The court allowed recovery for the cost of litigation later engaged in to recover the heirs’ unencumbered legitime.

haWe decline to recognize such an independent tort under these factual circumstances. Rather, we find that Matter of Interdiction of Thomson, 602 So.2d 300, 300 (La.App. 3 Cir.1992) governs.

In Thomson, the plaintiff sued for the interdiction of her father. He answered the suit, denying the allegations of incapacity. He also alleged that the action was frivolous, and that the plaintiff should be cast for his damages as a result of embarrassment and humiliation, and as a result of the expenses he had incurred in defending the action. The court found that the lawsuit was frivolous when the defendant introduced the report of the court-appointed physician indicating that the father suffered from no disabilities. The court awarded damages, which included the court-appointed doctor’s fee, the plaintiffs attorney’s fees, and a damage award. The plaintiff appealed. The court affirmed the dismissal of the main demand on the basis that the plaintiff failed to appear on the day set for trial. The court affirmed the assessment of costs against the plaintiff, including the assessment of the doctor’s fee as an item of costs.

However, the court reversed and set aside the damage awards. The court reasoned:

The order setting the case for trial summarily and with preference pertained to the interdiction only. The demand for damages in the answer and prayer in [the father’s] answer cannot be treated as a motion for sanctions under La.C.C.P. art. 863. Our Article 863 has its source in Federal Rule 11. Under that rule, as interpreted by the federal courts, a claim for sanctions may not be raised as a counterclaim, but may only be raised by motion. Lenoir v. Tannehill, 660 F.Supp. 42 (S.D.Miss.1986). If the hearing in the present case was intended to be a sanctions hearing, it was in violation of La.C.C.P. art. 868(E), because no motion for sanctions was ever made and the plaintiff and her counsel never received any notice of such a hearing. It is a matter of due process. Tom Grouwney Equip. v. Shelley Irr. Development, 834 F.2d 833 (9th Cir.1987).
The defendant’s demand for damages asserted in its answer can only be treated as a reconventional demand. This demand was improperly considered. The cause of action asserted in the re-conventional demand |ucould not arise prior to the final determination of plaintiffs claim, and therefore it did not yet exist. It was subject to an exception of no cause of action. Thomas v. Mobley 118 So.2d 476 (La.App. 1st Cir.1960); Ortiz v. Barriffe, 523 So.2d 896 (La.App. 4th Cir.), writ denied, 531 So.2d 273 (La.1988); see, also, Justice Watson’s dissent in Union Service & Maintenance v. Powell, 393 So.2d 94 (La.1980). On our own motion, we notice that the reconventional demand states no cause of action. La.C.C.P. art. 927. Accordingly, we dismiss and set aside the judgment as it pertains to the demands raised in defendant’s answer[.]

Id.

Therefore, the cause of action asserted in Queen’s reconventional demand could not arise prior to the final determination of Zurich’s claim, and hence it did not yet exist. Accordingly, the trial judge did not err in granting the exception of no cause of action. On the facts of the case, Queen’s has failed to state a cause of action for the alleged misrepresentation which allegedly caused Zurich to incur litigation expenses.

Accordingly, for the reasons stated, the judgment granting the exception of no cause of action and dismissing Queen’s re-conventional demand is affirmed.

AFFIRMED.

      . These pleadings were styled "counterclaims,” having first been filed in federal court.

      . Zurich brought the employee-subrogation action pursuant to La.R.S. 23:1101(B).

      . See, infra, note 3.

      . We are also unpersuaded by Queen's reliance on Mills v. Ganucheau, 416 So.2d 361, 365 (La.App. 4 Cir.1982). In that case, the Clerk of Court and the deputy clerk were held liable for the deputy’s failure to properly check court records before replying to a letter from the Los Angeles Police Department inquiring as to the legal custody of the minor children.


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    Geraldine OUBRE and Linda Gentry On their Behalf, as well as Others, Similarly Situated v. LOUISIANA CITIZENS FAIR PLAN.
    No. 08-CA-713.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      N. Madro Bandaries, Dane S. Ciolina, LLC, Bernard Charbonnet, Jr., Desiree M. Charbonnet, Attorneys at Law, New Orleans, Louisiana, for Appellant.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Sonoza, Attorneys at Law, Gretna, Louisiana, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

12The intervenors have appealed the trial judge’s grant of the plaintiffs’ exception of no cause of action. For the reasons that follow, we reverse.

FACTS

Intervenor, Madro Bandaries, is an attorney. On November 18, 2005, Mr. Ban-daries filed a petition for damages and recognition as a class action on behalf of plaintiffs Geraldine Oubre and Linda Gentry, as well as others similarly situated, against Louisiana Citizens Fair Plan (hereinafter Citizens) for the alleged failure of Citizens to pay claims as a result of damages sustained in Hurricanes Katrina and Rita. On November 22, 2005, Beevers & Beevers, LLP enrolled in these proceedings on behalf of John Macera, II, Sylvia Randolph, and Susan Hano. Mr. Bandaries contracted with the other intervenors, Desiree Charbonnet and Bernard Charbonnet to work along with he and the Beevers firm on this proposed class action. The suit was certified as a class action on July 11, 2006. Wiley |sBeevers and Steven Mauterer of the Beevers firm, as well as Mr. Bandaries, Bernard Charbonnet, and Desiree Charbonnet were appointed class counsel. Mr. Bandaries and the Charbon-nets withdrew as class counsel in August 2007. In October 2007, a settlement was reached with Citizens regarding the claims of Ms. Oubre and Ms. Gentry.

On January 23, 2008, Mr. Bandaries and the Charbonnets filed a joint petition for intervention stating they had spent considerable time in litigating the action and having the class action status granted by the trial court affirmed on appeal and were therefore entitled to a share of legal fees derived in this matter and repayment of costs incurred. In response to the intervention, on February 15, 2008, Mr. Beev-ers filed an exception of no right of action on behalf of the plaintiffs. The plaintiffs took the position that Mr. Bandaries and the Charbonnets withdrew as class counsel, filed a separate lawsuit on behalf of Ms. Oubre and Ms. Gentry which had been settled, and as such, the intervenors had no interest in the case that would allow them a right of action.

Following a hearing, the trial court took the matter under advisement then rendered judgment granting the exception. This timely appeal followed.

LAW AND ANALYSIS

The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Wallace v. Nathan, 96-119 (La.App. 5 Cir. 7/30/96), 678 So.2d 595. The exception of no right of action is directed to showing that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La.C.C.P. art. 927; Dufour v. Westlawn Cemeteries, Inc., 94-81 (La.App. 5 Cir. 6/28/94), 639 So.2d 843.

The grant of an exception of no right of action is subject to de novo review. Guidry v. East Coast Hockey League, Inc., 2002-1254 (La.App. 3 Cir. 3/5/03), 844 So.2d 100.

LSA-R.S. 37:218 provides that an attorney “may acquire as his fee an interest in the subject matter of a suit” if there is a written contract. Mr. Bandaries testified that he executed written contracts with both Mr. Macera and Ms. Randolph. These contracts were admitted into evidence. Mr. Macera and Ms. Randolph testified that they executed the contracts admitted into evidence. Plaintiffs state in their brief that Mr. Banderies, the Beevers firm and others retained by Mr. Bandaries “worked together for the betterment of their respective contractual clients.” After Mr. Banderies resigned as class counsel, Mr. Macera and Ms. Randolph signed a contract with the Beevers firm.

In granting the exception, the trial court stated the intervenors do not have a justi-ciable interest in the matter as required for a third party intervention, relying on Atchley v. Atchley, 97-474, (La.App. 5 Cir. 1/14/98), 707 So.2d 458. In Atchley, this court affirmed the dismissal of the intervention of Mary Lou Atchley in the partition suit between her brother and his former wife. Mary Lou Atchley alleged that her brother omitted certain bonds from the succession of their father. The trial court found the bonds in question were the separate property of the brother and thus were not subject to partition between the brother and his ex-wife. This court found in order to intervene, a party must have a justiciable interest in and a connexity to the principal action. Id at 459. This court noted a justiciable interest is defined as “the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties | shave a real interest in opposing it.” Id at 459. This court affirmed finding Mary Lou Atchley’s cause of action is not related to or connected with the partition suit between her brother and his ex-wife.

We find the trial court’s reliance on Atchley to be misplaced. In the case at bar, the evidence reflects that plaintiffs, Mr. Macera and Ms. Randolph, entered into a contract for representation with the intervenor, Mr. Banderies. While there is some dispute as to whether Mr. Macera and Ms. Randolph actually desired that they be represented by Mr. Banderies or the Beevers firm, they admitted to entering into the contract with Mr. Banderies. Moreover, plaintiffs acknowledge in their brief that the Beevers firm and others retained by Mr. Bandaries “worked together for the betterment of their respective contractual clients.” Furthermore, it is undisputed that Mr. Bandaries was appointed class counsel. Louisiana courts have consistently recognized the right of the discharged attorney to enforce his claim for fees through intervention in the suit in which the attorney provided service. Cox v. Boggs, 39,566, (La.App. 2 Cir. 4/6/05) 899 So.2d 770, 774-775; Simmons v. Chambliss, 37,461 (La.App. 2 Cir. 8/20/03), 852 So.2d 1237. Mr. Banderies’ entitlement to attorney fees under LSA-R.S. 37:218 is related to and connected with plaintiffs’ class action suit.

The record does not contain any evidence that the Charbonnets had a written contract with the plaintiffs. However, it is acknowledged in the plaintiffs’ brief that the Charbonnets worked with the Beevers firm and Mr. Banderies on the plaintiffs’ behalf and that the Charbonnets were also appointed class counsel. Thus, although their claim may not be preserved under LSA-R.S. 37:218, they are entitled to intervene in this matter as plaintiffs’ attorney recognizes they performed work on behalf of the plaintiffs.

I ^CONCLUSION

For the foregoing reasons the judgment of the trial court is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED.


author: MARION F. EDWARDS, Judge.

text:
    Irma Jean Mott SIMMONS and Joseph Charles Mott v. Vivian M. CLARK and Malcolm Clark, Jr.
    No. 08-CA-431.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Writ Denied April 13, 2009.

      Steven F. Griffith, Sr., Steven F. Griffith, Sr., Ltd., Destrehan, LA, for Defendants/Appellants.
    Gregory A. Miller, Attorney at Law, Norco, LA, for Plaintiffs/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

|2The judgment on review in this appeal is a judgment rescinding the purported conveyances of undivided interests in certain immovable property after a finding of fraud and lesion beyond moiety. For reasons that follow, we reverse part of the judgment and affirm part of the judgment.

The immovable property in question was acquired by four siblings, namely Vivian M. Clark (“Vivian”), Irma Jean Mott Simmons (“Irma”), Joseph Charles Mott (“Joseph”) and Alfred Mott, Jr. (“Alfred”), in a judgment of possession in the succession of their parents, Rebecca Hamilton and Joseph Mott, Jr., dated August 23, 1994. Each sibling received a one-fourth undivided interest in the immovables, which included the family home, a bar, some rental property, and a trailer park.

In 2003, Alfred filed a petition to partition the property. At that time, the various properties were appraised. The record of that procedure is not before this Court. However, it appears that an agreement was reached among the parties before the property went to a sheriffs sale. All parties acknowledge that there was an agreement of the siblings that Alfred should be bought out in order to save the | .¡family property from being sold at a sheriffs sale. However, the parties do not agree on the method and outcome of this agreement.

To put the plan into operation, Malcolm Clark, Jr. (“Malcolm”), Vivian’s son, prepared and presented the family with some ineptly crafted documents.

There is one undated document signed by all parties except Alfred that evidences an intention of Vivian, Irma, and Joseph to buy Alfred’s one-fourth interest in the estate. A second undated document repeats this intention and adds a purchase price of $35,000 to be paid in two installments of $17,500. The first installment was to be paid within thirty days of the undated document and the final payment “to be paid in full with end [sic] six months.” That document also lists the properties affected by the agreement as:

1. Bar
2. Brick house
3. Lot next to bar
4. Trailer park
5. Ante [sic] Vic [sic] house

All parties signed this agreement.

A more formal document dated March 12, 2004 shows that Alfred sold his one-fourth undivided share in all of the property to his sister, Vivian, for $35,000. Although the document states that the consideration of $35,000 cash was paid, and Alfred signed the document acknowledging that he received the money in full, testimony at the trial in the matter before us shows otherwise.

After Alfred sold his share, the remaining three siblings executed a “Cash Sale,” dated May 6, 2004, in which both Joseph and Irma are listed as sellers. The document transfers a one-fourth interest in the estate property owned by Joseph and Irma to Vivian.

|4Also on that date, a “Promissory Note and Release” was executed. This document appears to be an attempt to arrange for payment from Vivian to Alfred for his one-fourth share. However, the document states:

As stated, after date I promise to release Vivian M. Clark for her (1/4) interest in the Estate of Joseph Mott, Jr. and Rebecca Hamilton Mott from paying Alfred Mott the sum of THIRTY-FIVE DOLLARS AND 00/100 [sic] ($35,000.00), payable in (2) installments of $17,500.00 each, with the first (1st) payment commencing within 30 days of siding [sic] of the sale on March 12, 2004, payment your [sic] due and payable within Six Months of signing of sale thereafter until paid in full for value received.
Promissory Note and Release due base [sic] on Alfred Mott getting Financing at another Loan Agent to buy his mother and father [sic] house, and Irma M. Simmons getting the bar to keep ownership within the current four family owner.[sic] This loan must not interfere with the loan that is now pending. With this release he all so [sic] agree [sic] to pay Vivian M. Clark ($17,-500.00) SEVENTEEN THOUSAND FIVE HUNDRED, same as above Thirty Days of Signing, [sic] This is now a PROMISSORY NOTE from ALFRED MOTT to VIVIAN M. CLARK.

(Emphasis as found in original.) The document is signed by Alfred as “Releaser/Ac-ceptor” and by Malcolm as “acceptor.” Vivian did 15not sign the document.

A second promissory note was executed on May 6, 2004, which, in pertinent part, states as follows:

_ [sic] Notary Public, duly commissioned and qualified, and in the presence of the undersigned witnesses and persons, personally come and appeared: [sic]
As stated, after date I promise to pay to the order of CHARLES MOTT for his (1/4) interest in the Estate of Joseph Mott, Jr. and Rebecca Hamilton Mott for the sum of THIRTY-FIVE THOUSAND DOLLARS AND 00/100 ($35, 000.00), payable in (5) installments of $7,000.00 each, or one-have [sic] of the fowling [sic] Properties [.]

(Emphasis as found in original.) The document lists all of the estate properties and is signed on the second page by Joseph, Irma, and Malcolm as “sellers. Vivian did not sign the document. There is nothing in the document that identifies the maker of the note.

A letter dated May 19, 2004 and written to Vivian indicates that the title insurance company required some curative .work before the mortgage could be obtained. The letter points out that the cash sale does not clearly state the names of the parties, and that it appears to only transfer a one-fourth interest, rather then a one-fourth interest for each of the sellers. The letter suggests the parties execute two separate “quit claim sales” without warranty on the property using the full and correct names.

In response to this letter, Malcolm drew up two “Quit Claim Sales.” They are both dated “the _ Day of May, 2004” [sic]. Both of these documents purport to transfer the same properties conveyed in the May 6, 2004 cash sale. However, one lists the seller as “Joseph Charles Mott” and the other lists the seller as “Irma Mott Simmons.” Each document conveys a one-fourth interest in the properties. The documents also state in pertinent part that:

Who declared that for the consideration hereinafter mentions, Seller does by these presents grant, bargain, sell, transfer, convey, assign, set over, abandon and deliver, with all legal warranties and with full substitution and subrogation in and to all the rights and actions of warranty which he has or may have against all preceding owners, and vendors ....
This sale is made and accepted for and in consideration of the ONE HUNDRED PERCENT (100%) INTEREST OF ONE-FOURTH (1/4%) [sic] INTEREST IN A CERTAIN LOT OR PORTION OF GROUND ABOVE, hereby [sic] acknowledges thereof full acceptance and discharge thereof.

(Emphasis as found in original.)

| r,These are three-page documents. The substance of the documents is contained on the first two pages, and the third page consists only of the signatures.

This was obviously an attempt to correct errors in the cash sale pointed out to the parties in the letter from the title company. After all of the documents were executed and filed in the conveyance office, Vivian obtained a mortgage from Ameri-quest Mortgage (“Ameriquest”) in the amount of $64,999.

When Joseph and Irma failed to receive any payment for the property or the return of their one-fourth interest in the property, they filed this action to annul and rescind the property transfers, alleging lesion beyond moiety and fraud. After a hearing on the matter, the trial court rendered judgment in favor of plaintiffs/appellees, annulling, rescinding and setting aside all of the “purported conveyances.” The judgment further ordered that the mortgage in favor of Ameriquest did not affect the undivided one-half interest owned by Joseph and Irma. Additionally, the judgment found fraud on the part of the defendants/appellants, Vivian and Malcolm, and provided for attorney’s fees pursuant to LSA-C.C. art.1958. Defendants/appellants have appealed that judgment.

According to plaintiffs/appellees, Irma and Joseph, it was Vivian who actually wanted to purchase Alfred’s one-fourth interest in the property but could not afford to pay Alfred the amount due on the agreement unless she could secure a mortgage on the property. The family formed a plan whereby Alfred, Irma, and Joseph would each transfer their one-fourth interest in the property to Vivian so that she could secure a mortgage. After Alfred sold his shares to the other three siblings in the partition proceeding, Joseph and Irma attempted to convey their shares to Vivian by way of a cash sale. Joseph and Irma thought that this was |7necessary for Vivian to obtain a mortgage of the property to secure the funds to pay Alfred and to make some improvements to the bar.

The expectations of the plaintiffs/appel-lees was that, after the funds were obtained, Vivian would pay Alfred the $85,000 due and pay the mortgage. In return, Vivian would return to Joseph and Irma their one-fourth interest each in the property of the estate, and the property would be owned by the Vivian, Joseph, and Irma, with Vivian owning a one-half interest and Joseph and Irma each owning a one-fourth interest.

At the trial on the petition filed by Joseph and Irma to annul and rescind the sales, Joseph testified that he lived in one of the properties affected by the transactions. In January 2005, Joseph returned from a job in Alabama to find an eviction notice on his front door. The locks on his home had been changed and some of his personal belongings were removed from the home. Upon investigation, Joseph discovered that eviction proceedings were filed by Vivian and her son, Malcolm. Joseph tried to speak to Vivian to no avail. Joseph went back to his home and climbed through a window to retrieve the remainder of his belongings from his home. Joseph consulted an attorney and filed this action to have the sales annulled and rescinded.

It is clear from the testimony at trial that Joseph has a sixth-grade education and is unable to read. He stated that he trusted his sister, Vivian, and her son, Malcolm, who told Joseph they needed him to sign some papers so they could buy Alfred’s share and fix up the bar. Joseph was trying to help his sister and never intended to give her his share of the estate.

Irma also testified at trial. Her testimony supports that of Joseph. Irma said she only signed the documents to protect the property from a sheriff’s sale and to help Vivian get a loan to pay Alfred’s share and to make improvements on some of |sthe property. She and Joseph both testified that Malcolm prepared all of the paperwork and they trusted him. Irma and Joseph both stated they never saw the Quit Claim documents because Malcolm was preparing them on his laptop computer and told them he was running out of ink. Consequently, he only printed out the signature pages. Neither Irma nor Joseph has received any money from Vivian.

Malcolm appeared in proper person representing his mother and himself. Vivian testified that she agreed to pay Alfred $85,000 for his one-fourth share of the property. She agreed with Joseph and Irma that the entire family agreed to help her obtain the mortgage to keep the property from being sold at a sheriffs sale pursuant to the Petition for Partition filed by Alfred. Vivian stated that she needed the consent of Joseph and Irma to get a mortgage on the property.

However, Vivian’s concept of what should result from the transactions differs greatly from that of Joseph and Irma. Vivian stated that she gave Irma and Joseph a promissory note to ensure them they were still entitled to their one-fourth interest in the estate property. However, she also testified that there was never an intention to pay either Joseph or Irma any money. The promissory note was only given to stop the sheriffs sale. Vivian stated that Irma and Joseph still have their share of the property, but it’s now in the form of a promissory note. Vivian explained that she and her son, Malcolm, handle and control the family property for the benefit of the family. She recognizes the Joseph and Irma each still hold one-fourth of the estate. However, they will get no money for it, no control over it, and apparently no consideration for any appreciation of the property in the future.

Vivian and Malcolm insist that the consideration for the transfer of the property to her is a promissory note in the amount of $35,000.

| nIrma and Joseph both stated they believe Vivian and Malcolm committed fraud because they never intended to return the property, as agreed, after the mortgage was obtained. Further, they never intended to pay anything on the promissory note.

Vivian testified that Joseph’s house had to be rented out to pay the mortgage. She explained that she took out the loan and handled the family’s property because no one else in the family was willing or able to do so.

Vivian also said that she gave Malcolm power of attorney, although she did not have a copy of that document with her. It is clear from Vivian’s testimony that she allowed Malcolm to handle the transactions.

She paid Alfred $17,500. However, according to Vivian’s testimony, when she tried to pay Alfred the other half of the money, he refused to accept it.

Alfred testified that his agreement was to sell his share of the family home to Vivian for $35,000 to be paid in two installments within thirty days of the signing of the note. Alfred stated that nothing was done the way he, Joseph, and Irma expected. He testified that Malcolm took the “crooked” way and kept changing the agreements. At some point, Alfred tried to borrow $70,000 to get Vivian and Malcolm “out of our hair.” Alfred stated he felt that he, Joseph, and Irma could handle the property situation fairly and much easier without Malcolm and Vivian. Alfred said that he, Joseph, and Irma were in agreement about what should happen to the property and could have divided it up fairly, but Malcolm was the problem.

Alfred’s plan failed because Vivian refused to sell her share. Alfred stated that Vivian and Malcolm want all of the property with value, including the house, the bar, and the trailer park. Alfred testified that Vivian and Malcolm wanted “everything.” In conclusion, Alfred stated that he received the first payment of $17,500. However, he did not receive the second payment due thirty days later. 110Malcolm wanted to change the agreement to pay Alfred in “dribs and drabs.” Alfred did not accept that change in the agreement and refused to take the smaller payments. Consequently, Alfred only received one-half of the amount owed on the promissory note.

Malcolm also testified at trial that he admitted the only consideration given to Irma and Joseph for the sale of their interests in the property was a promissory note. Malcolm testified that he also gave a promissory note to Alfred to “reverse the agreement with Alfred on the condition that Irma would get the family home.” Malcolm also said that he and his mother intended to pay Joseph the money owed on the other promissory note when they started getting some income from the rental property. He did not say when that might happen.

Malcolm also asserted that he gave Joseph some money to make repairs on one of the houses, a fact which Joseph denied. However, Joseph did acknowledge that Malcolm once gave him $800 to get to Alabama for a job. It was when Joseph came back from that job that he discovered Malcolm had initiated eviction proceedings. Joseph also denied Malcolm’s testimony that Joseph was offered “Aunt Vic’ [sic] house” in return for Vivian getting all of the other property. Joseph testified he never agreed to pay a mortgage note on the property or to give all property rights to the sibling who paid the mortgage note.

LAW

In brief to this Court, defendants/appellants, Vivian and Malcolm, assign two errors. In the first error, they assert that the trial court erred in finding the sale was void due to lesion beyond moiety. The argument on this assignment is twofold. Vivian and Malcolm argue the failure of competent expert evidence to establish the contemporaneous value at the time of the act of sale precludes the finding by the trial court. Second, the Clarks argue that plaintiffs/appellees, Joseph |^and Irma, are limited to the enforcement of the promissory note. We find no merit in either argument for the following reasons.

We find neither the Cash Sale nor the two Quit Claim Sales are valid sales documents. In Louisiana a valid sale requires the concurrence of three elements: the thing sold, the price, and the consent of the parties. A contract of sale is incomplete unless there is a meeting of the minds between the parties as to the object and the price.

None of the documents contain a price for the property sold. Further, it is clear from the testimony there was never a meeting of the minds to sell. Joseph and Irma thought they were simply helping Vivian to get funds to buy Alfred’s share.

In addition to the problems of lack of intent to sell on the parts of Irma and Joseph, and the lack of consideration for the sale, there are issues of form.

The Civil Code requires that all sales of immovable property shall be made by authentic act or under private signature. The Civil Code further requires that an act under private signature need not be written by the parties, but must be signed by them. None of the purported sales documents were signed by the purchaser, Vivian. They were all signed by Malcolm, who is not a party to the sale.

Although Vivian testified that she told Malcolm to execute whatever documents were necessary, that is not sufficient to establish a mandate to purchase immovable property in Louisiana. The authority to alienate, acquire, encumber, or lease a thing must be given expressly. When the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. Therefore, a mandate hato purchase immovable property must be express and in writing. Here, there is no showing that Vivian expressly and in writing gave Malcolm the mandate to execute any of the purported sales documents.

Defendants/appellants argue the consideration for the sales of property from Irma and Joseph to Vivian was the promissory note. We disagree. As previously noted, none of the purported sales documents mention a price decided upon for the property. Further, we find the promissory note is invalid as to content and form.

It is axiomatic that any legally enforceable promise to pay must be signed by an identifiable maker. The promissory note to which defendants/appellants refer has no maker. It simple states, “I promise to pay.” The top paragraph of the note, which would normally state the name of the Notary Public and the affiant, is blank. Further, the note is not signed by the purchaser. As is the case with the sales documents, Malcolm signed the note. The note is signed by Malcolm, Joseph and Irma, but not by Vivian. All signed as “seller/acceptor.”

Thus, the document, which defendants/appellants claim is the only recourse Joseph and Irma have for remedy in this action, is an unenforceable promise to pay by an unknown party an amount of $35,000 to Joseph. Irma is not listed on the note.

Because we find none of the documents purported to transfer property to be valid, the issue of whether the sales represented lesions beyond moiety is moot. This argument is without merit.

Accordingly, we find the trial court was correct in finding the Cash Sale executed on May 6, 2004 and the two Quit Claim Sales executed on an unidentified day in May of 2004 are null and void.

In the second assignment of error, Vivian and Malcolm argue the trial court erred in finding fraud. The basis of the argument calls into question the credibility |13of Joseph and Irma. Defendants/appellants argue simply that the scenario presented by the testimony of plaintiffs/appel-lees is “beyond belief.”

In the original petition, Joseph and Irma have affirmatively alleged fraud and requested attorney’s fees pursuant to LSA-C.C. art.1958.

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. There are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

The defendants/appellants do not deny they tried to get control of Joseph and Irma’s share of the estate property nor do they deny they gave Joseph and Irma no consideration for the sale. Further, although Vivian and Malcolm argue the consideration is the promissory note, they both admitted they have no set plans to pay the amount owed on it. We have also taken into consideration the fact that all of the relevant documents were drawn up by Malcolm without a legal mandate, in an attempt to do his mother’s bidding, and that both Joseph and Irma trusted him.

It is clear from the Reasons for Judgment that the trial court found Joseph and Irma’s testimony to be more credible than that of Vivian and Malcolm. When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in | ^demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

A court of appeal may not set aside a judge or jury’s factual finding unless that finding is manifestly erroneous or clearly wrong. Given the facts of this ease, we cannot find error in the trial court’s finding of fraud.

Accordingly, we affirm the trial court’s ruling that plaintiffs/appellees have proven fraud on the part of defendants/appellants, entitling plaintiffs/appellees to attorney’s fees pursuant to LSA-C.C. art.1958.

As an alternative argument, defendants/appellants assert the matter should be remanded to the trial court for the failure to join Ameriquest as an indispensable party. Part of the judgment orders that the mortgage in favor of Ameriquest Mortgage does not affect the undivided one-half interest owned by Joseph and Irma.

The concept of necessary and indispensable parties has been consolidated in LSA-C.C.P. art. 641, which reads as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Clearly, Ameriquest has an interest in this matter. It holds a mortgage on at least some of the estate property and that mortgage is filed in the conveyance 11soffice of St. Charles Parish. Consequently, Ameriquest would be included in the above article. Although it is clear from the record that only Vivian is the debtor on the mortgage, it is not clear from the record which properties are included in the mortgage. We find that the trial court erred in rendering a judgment limiting Ameriquest’s mortgage to the one-half undivided interest owned by Vivian and we reverse that portion of the judgment.

Any recourse that Joseph and Irma may have as a result of the mortgage on their interest in the property is not before this Court in this proceeding.

For the foregoing reasons, we reverse that portion of the judgment that orders the mortgage dated October 1, 2004, in favor of Ameriquest and recorded at MOB 1248, folio 761, Parish of St. Charles, State of Louisiana, shall not affect the undivided one-half interest of Irma and Joseph in the property. In all other respects the judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . The document actually lists "Charles Mott” as one of the sellers; however, it appears the seller is actually Joseph Charles Mott, plaintiff-appellee herein.

      . LSA-C.C. art. 2439.

      . LSA-C.C. art. 2456.

      . LSA-C.C. art. 2440.

      . LSA-C.C. art. 1837.

      . LSA-C.C. art. 2996.

      . LSA-C.C. art. 2993.

      . LSA-C.C. art. 1953.

      . Shelton v. Standard/700 Assoc., 2001-0587 (La.10/16/01), 798 So.2d 60, 64.

      . Rosell v. ESCO, 549 So.2d 840 (La.1989).


text:
    STATE of Louisiana v. Terry L. SCOTT.
    No. 08-KA-704.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Kenneth P. Bordelon, Assistant District Attorneys, Gretna, Louisiana, for Appellee.

      Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2In this Anders appeal, defendant, Terry L. Scott, appeals his conviction for distribution of cocaine in violation of LSA-R.S. 40:967(A). Defendant pled not guilty at arraignment. After being advised of his rights, defendant later withdrew the not guilty plea and pled guilty as charged under the provisions of North Carolina v. Alford. Defendant was sentenced to ten years imprisonment at hard labor, with the first two years being without benefit of parole, probation, or suspension of sentence.

For the following reasons, we affirm defendant’s conviction, and grant counsel’s motion to withdraw as counsel of record.

FACTS

Defendant pled guilty under Alford to distribution of cocaine. In offering a factual basis for the charged offense, the State provided that had defendant gone to |,.¡trial, it would have proven beyond a reasonable doubt that in Jefferson Parish on January 31, 2006, defendant did knowingly and intentionally distribute a controlled dangerous substance that was in fact cocaine.

ANDERS

Under the procedure set forth in State v. Benjamin, appointed appellant counsel has filed an Anders brief pursuant to Anders v. California and State v. Jyles, asserting 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.

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. If, after an independent review, the reviewing court determines there are no non-frivolous 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 the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Defense counsel sets forth a statement of the case, the action of the trial court, and a statement of the facts. Thereafter, defense counsel addressed the following issues.

|4Pefense counsel notes that defendant pled guilty in this case and received a negotiated sentence. She provides that by pleading guilty, a defendant waives his right to challenge the sufficiency of the evidence to support his conviction. Nevertheless, she states that the facts recited by the State were sufficient to support a conviction for distribution of cocaine. Defense counsel also notes that this matter never went to trial and there were no pretrial hearings.

Defense counsel states that the trial judge informed defendant of the rights he was waiving if he chose to plead guilty. She states that the trial court explained the sentencing range defendant was exposed to as well as the sentence that was agreed upon. She states that defendant received a specific sentence as a result of a negotiated plea and, therefore, is prohibited from appealing his sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

As required, the bill of information plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally, LSA-C.Cr.P. arts 464-66.

Defendant pled guilty as charged to distribution of cocaine. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. The record does not reflect that defendant filed any pre-trial motions. Therefore, it does not appear that there are any trial court rulings defendant could have preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Defendant offered his plea under North Carolina v. Alford, 400 U.S. at 38, 91 S.Ct. at 167 n. 10, which requires the establishment of a factual basis for the |fiplea when a defendant protests his innocence. The prosecutor offered a factual basis for the plea sufficient to satisfy the Alford requirements.

The record does not reveal any irregularities in defendant’s guilty plea. Once a defendant is sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

The record shows that defendant was advised of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Further, defendant acknowledged that he executed a waiver of rights form that was reviewed with his attorney. When asked if defendant understood that by entering the guilty pleas that he was waiving these constitutional rights, defendant responded affirmatively.

Defendant was informed that the maximum penalty was 30 years at hard labor and a fine of $50,000.00. Defendant indicated that he understood the nature of the charge against him as well as the possible penalties. Defendant was advised that if the judge accepted his guilty plea, he would be sentenced to serve ten years at hard labor and that an opportunity to participate in drug treatment programs | (¡would be recommended. The waiver of rights form was corrected to reflect the crime was distribution of cocaine.

The trial judge ascertained that defendant understood his rights, and that he was waiving them knowingly and voluntarily. He denied that force, intimidation, coercion, threat or promise was used. The trial judge also explained defendant’s right to an appeal if he chose to go to trial. Defendant was informed again of his rights to a jury trial and to confront his accusers. Defendant responded affirmatively when asked if he understood that by pleading guilty he was waiving these rights. Defendant also agreed that he understood that by pleading guilty he could not assert allegations of defects.

Defendant pled guilty under the provisions of Alford, stating that he believed it was in his best interest to plead guilty. Defense counsel agreed that defendant knowingly, intelligently, freely, and voluntarily entered this guilty plea in his best interest. The trial judge stated that he was convinced that defendant understood the nature of the charges against him and the possible penalties and that there was a basis for the guilty plea. The trial judge stated that both defendant and his counsel indicated to the court that the guilty plea was in defendant’s best interest, and that the State read into the record a factual basis for the court’s acceptance of the plea. The trial judge accepted defendant’s guilty plea as knowingly, intelligently, freely, and voluntarily made.

After defendant pled guilty to distribution of cocaine, the trial judge imposed a sentence in conformity with the plea agreement. LSA-C.Cr.P. art. 881.2 A(2) provides, “[t]he defendant cannot appeal or seek review of a sentence imposed in | conformity with a plea agreement which was set forth in the record at the time of the plea.” Further, the defendant’s sentence was within the sentencing range.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence. Appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

The record was reviewed 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).

The commitment reflects that defendant pled guilty to “DIST/POSS. WITD OF A CDS-COCAINE.” According to the transcript, defendant actually pled guilty to distribution of cocaine. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Further, the transcript reflects that this was an Alford plea, and the commitment does not. Accordingly, we remand the case to the trial court to have the commitment accurately conform to the transcript.

AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . 573 So.2d 528, 530-31 (La.App. 4 Cir.1990).

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

      . State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . It is noted that when the colloquy began, the trial judge referred to the crime as possession with intent to distribute cocaine. The waiver of rights form initially reflected that the charge for which defendant was pleading guilty to was possession with intent to distribute cocaine. During the colloquy, it was discovered that the actual charge was distribution of cocaine. The trial judge explained this to defendant, and defendant indicated that he understood. The trial judge also explained that the penalty provisions for distribution of cocaine were exactly the same as discussed regarding possession with intent to distribute cocaine.

      . Defendant pled guilty to distribution of cocaine in violation of LSA-R.S. 40:967(A). He faced a possible sentence of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence. Defendant also faced a possible fine of not more than fifty thousand dollars. See LSA-R.S. 40:967(B)(4)(b).
      According to the waiver of rights form, the State agreed not to multiple bill defendant in this case as part of the plea agreement. The record reflects the State agreed to multiple bill defendant as a double offender in case number 08-1826. The State mentioned that it believed defendant to be a quadruple offender and that if defendant was convicted of any of the two cases he would face a sentencing range of 20 years to life imprisonment.


author: CLARENCE E. McMANUS, Judge.

text:
    Dwight NUNLEY and Pauline Nunley v. Dr. Ahmed SHANABLEH and Louisiana Medical Mutual Insurance Company.
    No. 08-CA-537.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    David A. Abramson Lewis, Kullman, Sterbcow and Abramson, Attorney at Law, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Stewart E. Niles, Jr., Bryan J. Knight, Niles, Bourque & Fontana, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

12Plaintiffs appeal from the decision of the trial court granting summary judgment in favor of defendants, dismissing plaintiffs’ suit for medical malpractice. For the reasons that follow, we affirm the decision of the trial court.

On June 20, 2003, plaintiffs instituted a medical review panel, alleging that Dr. Shanableh committed medical malpractice in prescribing an excessive dose of Predni-sone. On November 17, 2005, the medical review panel rendered a unanimous opinion denying the complaint, finding that “The evidence does not support the conclusion that Ahmad M Shanableh, M.D. failed to comply with the appropriate standard of care[.]”

Plaintiffs filed suit on January 9, 2006 against Dr. Ahmed Shanableh and Louisiana Medical Mutual Insurance Company. In their petition, they allege that on August 1, 2000 Dwight Nunley was referred to a pulmonolgy specialist, Dr. Eugene Rosenberg, for the purpose of evaluation and possible placement into a pulmonary rehabilitation program. At that time, Dr. Rosenberg prescribed a course of Predni-sone, 20mg daily, to be tapered to a minimum dose. Plaintiffs contend that Dr. Rosenberg informed Dr. Shanableh, Mr. Nunley’s primary care physician |3that Mr. Nunley should be kept on a small dose of Prednisone. However, Dr. Shanableh continued to prescribe 20mg Prednisone, and supplemented this course of treatment with Celestone injections. On September 21, 2001, Mr. Nunley again saw Dr. Rosenberg, who suggested that the Prednisone dose be lowered.

Plaintiffs contend that as a result of the 20mg dose of Prednisone which he ingested daily for one year, he developed avascular necrosis of his left femoral head resulting in the necessity of a total left hip replacement, bilateral cataracts requiring surgery, right hip pain, right side TMJ, bilateral shoulder pain, bilateral elbow pain, back pain, loss of bone density, mood changes and hormonal changes. He further alleges that his body’s ability to produce cortisol had been suppressed and despite his best efforts to taper down to 5mg, he must now take 9-10mg of Prednisone daily.

Plaintiffs further contend that Dr. Shan-ableh’s actions in continuing to prescribe 20 mg Prednisone, instead of a lesser dose, caused or contributed to his injuries and damages and constituted medical malpractice.

On October 11, 2007 defendants filed a motion for summary judgment. In their motion they alleged that there was no genuine issue of material fact because plaintiffs failed to produce an expert medical witness to prove that Dr. Shanableh deviated from the prevailing standard of care for an internist, and failed to present an expert medical witness to prove that any breach of the prevailing standard of care caused any damage or injury to plaintiff. Plaintiffs opposed the motion, contending that the deposition of one of the medical review panel doctors created a material fact as to whether Dr. Shanableh breached the standard of care, and that the medical records of Mr. Nunley’s treatment created an issue of fact as to whether the breach caused Mr. Nunley’s injury.

|4On February 28, 2008, the trial court rendered judgment granting the motion for summary judgment and dismissing plaintiffs’ suit. Plaintiffs have appealed from the decision of the trial court.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. La. C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Fat Tuesday Cafe, L.L.C. v. Foret, 06-738 (La.App. 5 Cir. 2/13/07), 953 So.2d 821.

This Court’s review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424, (La.4/14/04), 870 So.2d 1002, 1006. This Court asks the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1.

In a medical malpractice action based on the negligence of a physician, the plaintiff has the burden of proving the applicable standard of care under similar circumstances, breach of that standard of care, and causation between the breach Land the injuries. La. R.S. 9:2794(A) ; Wilson v. Ochsner Foundation Hosp., 05-953 (La.App. 5 Cir. 4/25/06), 927 So.2d 696, 698, writ denied 06-1446 (La.9/22/06), 937 So.2d 393.

Expert witnesses who are members of the medical profession are usually necessary sources of proof in medical malpractice actions to establish the standard of care under the circumstances and to determine whether the defendant doctor possessed the requisite degree of skill and knowledge or failed to exercise reasonable care and diligence. Hyman v. East Jefferson General Hosp., 04-1222 (La.App. 5 Cir. 3/1/05), 900 So.2d 124, 128.

In this appeal, plaintiffs allege that it was error for the court to dismiss their claim. They contend that the deposition of Dr. Jay Shanes, expert for the defense and a member of the medical review panel, created a genuine issue of material fact to preclude summary judgment. They further contend that there is evidence to create a material issue of fact as to causation.

In support of the motion for summary judgment, defendants offered the results of the medical review panel, a page of Dr. Shames’ deposition in which he states that he did not think that Dr. Shanableh deviated from the standard of care, and the affidavit of Dr. Shanes in which he averred that he was “still of the opinion |fithat Ahmed Shanableh, M.D. complied with all applicable standards of care in all aspects of his care and treatment of Dwight Nun-ley.”

In opposition to the motion for summary judgment, plaintiffs offered Mr. Nunley’s treatment records and a different portion of the deposition testimony of Dr. Jay Shames. In that portion of the deposition, Dr. Shames considered a hypothetical posed by plaintiffs attorney and concluded that there could have been a breach of the standard of care. This hypothetical, it is alleged, was based on facts as sworn to by Mr. Nunley and therefore is expert testimony sufficient to create a material issue of fact. Plaintiffs also offered certified medical records, in which they allege that Mr. Nunley’s treating physicians linked his medical issues to his Prednisone use. Plaintiffs did not list any expert witnesses that they intended to call at trial.

In its reasons for judgment, the trial court found that

... this is not a case wherein a lay person can infer a breach in the standard of care. The question of whether mover prescribed the appropriate dosage of prednisone, the length of time plaintiff was on Prednisone, the side effects of it, and whether these issues caused damage to plaintiff and constituted a breach of the due standard of care is a complex medical issue. The plaintiff has not put forth any expert medical testimony to show a breach in the standard of care by mover.
Even assuming plaintiff could show a breach of the standard of care by mover in not tapering the dosage of predni-sone, plaintiff has no expert evidence to prove the causation element of his burden of proof.

In this case, we agree with the trial court’s determination that plaintiffs have failed to present any specific evidence showing the existence of a genuine issue of material fact as to the issue of breach of standard of care. Accordingly plaintiffs have not established that they could satisfy their evidentiary burden at trial. Plaintiffs’ reliance on the deposition of mover’s expert, in which he states that 17there could have been a breach of care under a hypothetical situation, does not create an issue of fact, especially in light of the medical expert’s clear pronunciation, in affidavit in support of this motion, in deposition, and in the medical review panel determination, that Dr. Shanableh’s treatment did not fall below the accepted standard of care.

Finding no error in the trial court’s determination that defendants were entitled to summary judgment, we affirm the judgment of the trial court. All costs are assessed against appellants.

AFFIRMED.

      . LSA-R.S. 9:2794 provides in part:
      A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq. ..., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      . The page of the deposition attached to the motion for summary judgment does not reflect who was deposed. The brief filed in conjunction with the summary judgment motion states that it is from the deposition of Dr. Shames.


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Darian SPEARS.
    No. 08-831.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Norris J. Greenhouse, Assistant District Attorney, Twelfth Judicial District Court, Marksville, LA, for Appellee, State of Louisiana.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Darían Spears.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   DECUIR, Judge.

| ] Defendant, Darían Spears, was charged with armed robbery, a violation of La.R.S. 14:64. Defendant’s motion to suppress a statement he had given to police was denied. A jury heard evidence and found Defendant guilty as charged. The court denied Defendant’s motion for new trial and sentenced Defendant to ten years at hard labor. The Defendant appeals his conviction and sentence arguing seven assignments of error.

FACTS

It is alleged that on July 8, 2007, the Defendant pointed a handgun at Keith Roy and took one-hundred and seventy dollars in cash from him during a dice game. Local police quickly picked up Defendant and a friend of his and put each of them in a separate unit. Police then had Roy approach each unit. An officer pointed out Defendant’s friend first, but Roy informed the officer that person was not the robber. The officer then pointed out Defendant, and the victim identified him as the perpetrator.

DEFICIENT RECORD

In this assignment, Defendant argues the record is so deficient in some areas that it deprives him of his right to appeal. He observes that many portions of the voir dire transcript refer to individual venire members as “prospective juror” rather than by name. Also, a number of the comments and statements made throughout the voir dire are listed as “inaudible.” Further, the contents of various bench conferences are not recorded. Defendant also complains that portions of the victim’s testimony and portions of the transcription of his confession are listed as “inaudible.”

Further, he notes the record is unclear whether he used all of his peremptory challenges during voir dire. The minutes indicate Defendant used only eleven of his |2peremptory challenges. However, at the hearing on his motion for new trial, he stated that he had used all of his peremp-tories, and neither the State nor the trial court contradicted him. The voir dire transcripts (original and supplemental/amended) do not provide any information regarding the parties’ peremptory challenges, but the jury strike sheets show Defendant used all of his peremptory challenges.

Defendant also alleges inadequacies in various bench conferences, both during voir dire and during trial. Defendant cites State v. Pinion, 06-2346 (La.10/26/07), 968 So.2d 131, in which the supreme court reversed the defendant’s conviction. In Pinion, bench conferences during the voir dire were unrecorded, the record was unclear when peremptory strikes and challenge for cause were made, or which party made them. The supreme court held that the unclear record of the jury selection process required reversal due to the uncertainty regarding the cause-based challenges. Id.

The supreme court also stated that the contents of the bench conferences should have been recorded in accordance with La.Code Crim.P. art. 843. Further, the Pinion court stated the trial court, rather than defense counsel, bore the ultimate responsibility for ensuring the bench conferences were recorded, since La.Code Crim.P. art. 795(B)(2) requires that peremptory challenges be made in side bar conferences. Id.

The State cites State v. Campbell, 06-286 (La.5/21/08), 983 So.2d 810, cert. denied, - U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008), in which the supreme court denied relief to a defendant who claimed he was prejudiced by omissions from the transcript of the voir dire. Campbell is easily distinguishable from Pinion. The Campbell opinion clearly contains more detail than was available in Pinion, as the former includes | ¿detailed discussions of the voir dire examinations of various named jurors or potential jurors. Id.

In the present case, in many record entries, the individual venire member speaking is named only as “Potential Juror.” On July 28, Defendant filed a Motion for Supplementation of Record and for Suspension of Briefing Delays, noting the many entries of “inaudible” in the record, and the unrecorded bench conferences. This court granted the motion, and ordered the court reporter to transcribe all bench conferences, attempt to clarify the inaudible responses in the record, and attempt to identify the venire member or members identified as “potential juror” in the original record. On August 22, this court received a supplemental record containing new transcripts of the voir dire and the trial. In an affidavit, the court reporter affirmed her attempts to clarify the “inaudible” responses, but noted there was no way to identify potential jurors who were not named in open court.

Jury strike sheets received from the district court show that Defendant used all of his peremptory strikes. Therefore, he may seek review of the denial of his challenges for cause on appeal. The strike sheets also list which venire members were challenged for cause. However, they do not show which party made each individual challenge, and do not list the reasons for any challenge.

Although trial counsel sought and obtained a copy of the voir dire transcript, and argued possible bias by the jury foreman in his motion for new trial, he did not raise any issue regarding the challenges made during voir dire. However, this does not preclude Defendant from raising such issues on appeal, either through counsel or pro se. The Pinion court explained:

In jury selection, counsel satisfies the requirements of Louisiana’s contemporaneous objection rule by stating his grounds for a cause |4challenge and then by removing the juror with one of his remaining peremptory challenges when the court declines to excuse the juror for cause. La.C.Cr.P. art. 841 (‘It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take ... and the grounds therefor.’).

Pinion, 968 So.2d at 136.

The difficulty in this case, as in Pinion, is the fact that the discussions of the jury challenges do not appear in the record. We find the record does not contain enough information for Defendant to effectively challenge the denials of his challenges for cause. As a practical matter, a careful reading of the revised transcript of voir dire enables a reader to identify at least some of the unnamed prospective jurors. However, any attempt at argument or review would require identification of Defendant’s unrecorded causal challenges, and reconstruction of both the reasons supporting them and the reasons for the trial court’s denial of them. Any such attempt would venture into the realm of mere speculation. As the current record is insufficient for practical review of the denials of Defendant’s challenges for cause, Defendant’s conviction and sentence are vacated and the case remanded for new trial, pursuant to Pinion.

Because our resolution of this assignment is dispositive, we pretermit the discussion of all other matters.

DECREE

Defendant’s conviction and sentence are vacated due to the incomplete record of the voir dire process. The case is remanded for further proceedings.

CONVICTION AND SENTENCE VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS.


author: GENOVESE, Judge.

text:
    Robert TURNER, Sr. v. RELIANCE INSURANCE CO., et al.
    No. 08-1135.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, Louisiana, for Defendant/Appellant, Safeway Insurance Company of Louisiana.
    J. Craig Jones, Craig R. Hill, Jones & Hill, LLC, Oakdale, Louisiana, for Plaintiff/Appellee, Robert Turner, Sr.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¡In this personal injury case arising out of a car-truck collision, Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the judgment of the trial court in favor of the Plaintiff, Robert Turner, Sr., alleging error with the trial court’s fault allocation. After thorough consideration of the record, applicable law, and the requisite manifest error standard of review, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On February 3, 2000, Mr. Turner was involved in an automobile accident at the intersection of Louisiana Highway 10 and Hospital Drive in Oakdale, Allen Parish, Louisiana. Mr. Turner alleges that he was driving east on Louisiana Highway 10 with the intention of turning left onto Hospital Drive; however, while he was stopped at the aforementioned intersection, an eighteen-wheeler being driven west on Louisiana Highway 10 by Defendant, Michael Stokes, collided with Mr. Turner’s vehicle.

Mr. Turner filed suit on December 5, 2000, against Mr. Stokes, the owner of the eighteen-wheeler, Keith Chenevert Logging, Inc., and its liability insurer, Reliance Insurance Company. Mr. Turner amended his suit on September 8, 2005, to include Safeway in this matter as his uninsured or underinsured motorist (UM) liability coverage provider.

A bench trial was held on April 20, 2007, after which the trial court gave the parties time to submit post-trial memoranda. After the parties extensively briefed the issues, the trial court took the matter under advisement. On October 31, 2007, the Iztrial court issued its opinion wherein it credited the testimony of “the only independent witness,” Sally Moreaux, for its finding that “the sole cause of [the] accident was the excessive speed of the log truck driven by Michael J. Stokes and crossing into the road lane of Robert Turner.” Judgment in favor of Mr. Turner awarding him Safeway’s policy limits in the amount of $10,000.00 was signed on August 14, 2008. Safeway appeals.

ASSIGNMENT OF ERROR

In its sole assignment of error, Safeway argues that “[t]he trial court committed manifest error in concluding that the accident made the basis of this matter was caused through the negligence of Michael Stokes and, therefore, in rendering Judgment [against] Safeway Insurance Company of Louisiana as Appellee’s uninsured motorist carrier.”

LAW AND DISCUSSION

As set forth by this court in Johnson v. Safeway Insurance Co., 06-224, p. 2 (La.App. 3 Cir. 5/31/06), 931 So.2d 1221, 1223:

An assessment of fault is a factual determination. Thus, an appellate court reviewing a fact finder’s allocation of fault owes the same deference to that finding as it does to any other factual determination and such determination should not be disturbed on appeal unless it is clearly wrong or manifestly erroneous. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

Safeway contends that the trial court was manifestly erroneous in its assessment of fault solely against Mr. Stokes. Safeway asserts that the inconsistencies in the testimony of both Mr. Turner and Mrs. Moreaux support its contention that the trial court erred in finding that Mr. Stokes, and not Mr. Turner, was solely responsible for causing the accident at issue herein. Safeway also contends that the trial court misinterpreted the physical evidence. Therefore, Safeway Largues that the trial court was clearly wrong in concluding that Mr. Stokes was the sole cause of the accident.

At trial, Safeway introduced into evidence the deposition of Mr. Stokes taken on March 21, 2007. According to Mr. Stokes, on the morning of February 3, 2000, he was driving west on Louisiana Highway 10 and:

As I was going through the slow-down process of coming into town there, I seen Mr. Turner. You know, he was— he done everything right. You know, he was fully stopped. He had his turn signal on, and he was sitting there, and he was waiting, but it seemed like within 50 feet of me approaching him, that’s when he just all of a sudden he just wanted to start turning to the left to go towards the hospital. And then there just wasn’t — there was no place for me to go.

Safeway also entered into evidence the deposition of Sergeant Edward Buford Johnson of the Oakdale City Police Department. Attached to Sgt. Johnson’s deposition is a Uniform Motor Vehicle Crash Report which Sgt. Johnson prepared while investigating the accident at issue herein. Safeway argues that Sgt. Johnson’s investigation and the Uniform Motor Vehicle Crash Report prepared therefrom also supports its contention that the trial court was manifestly erroneous.

According to Sgt. Johnson, he visited Mr. Turner in the hospital the day following the accident in order to take Mr. Turner’s statement. The Uniform Motor Vehicle Crash Report contains Driver/Witness Voluntary Statements from both Mr. Stokes and Mr. Turner. The statement of Mr. Turner was taken at the hospital the day following the accident and states:

I[,] Robert Turner[,] was in a[sic] accident on 2-3-2000 at around 7:00 a.m. on La. Hwy[.] 10 E. I was attempting a left turn onto Hospital Dr. I thought I saw the truck and had time to make it. At this time[,] the truck hit me.

This statement was written by PFC E. Johnson [ ] because of injuries. | ¿Finally, the Uniform Motor Vehicle Crash Report and Sgt. Johnson’s testimony both indicated that the major damage to Mr. Turner’s vehicle was on the front left of his vehicle.

Mr. Turner testified that, on the morning of February 3, 2000, he was driving east on Louisiana Highway 10, and that “[he] slowed down. It was kind of foggy. And when [he] slowed down the only thing [he] knew something hit [him].” Mr. Turner also declared that he did not turn his vehicle into the path of the oncoming truck being driven by Mr. Stokes. When questioned whether he remembered a police officer going to the hospital to question him about the accident, Mr. Turner stated that, though he was badly injured, he did remember telling a police officer how the accident occurred. Mr. Turner also expressed to the trial court that the report written by the police officer did not contain an accurate description of how the accident occurred.

Mrs. Moreaux’s testimony at trial corroborated Mr. Turner’s version of how the accident occurred. Mrs. Moreaux testified that, immediately prior to the accident at issue herein, she was driving east on Louisiana Highway 10 directly behind Mr. Turner when she witnessed him stop and signal his intent to turn left onto Hospital Drive. Mrs. Moreaux recalled being stopped behind Mr. Turner’s “dead still” vehicle when “[t]he big truck struck Mr. Turner’s vehicle.” According to Mrs. Mor-eaux, Mr. Turner did not turn in front of the approaching truck being driven by Mr. Stokes.

In brief, Safeway contends that “this [c]ourt should find manifest error, even though the trial court’s ruling was based upon a credibility determination.” The standard of review for courts of appeal for reviewing both factual findings and questions of credibility is well-established.

|fiIt is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Robin v. Allstate Ins. Co., 03-1009, 03-926, p. 4 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, 406, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted)).

In this case, it is undisputed that the damage to Mr. Turner’s vehicle was on the front left of his vehicle and not in the middle or right front of his vehicle, which is totally inconsistent with Mr. Stokes’ testimony that Mr. Turner turned left in front of him. This court recognizes the numerous inconsistencies in the depositions and testimony of the witnesses in this case, and this court may very well have a different view of the evidence presented; however, this court is not legally permitted to substitute its own judgment for that of the trial court. It is clear that the trial court made a demeanor and credibility determination based upon the conflicting testimony. Recognizing that the trier of fact is in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony, we cannot say that the trial court was manifestly erroneous or clearly wrong in determining that Mr. Stokes was solely at fault in this accident.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs are assessed to the Defendant/Appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.

      . Reliance was placed into receivership, and, therefore, the Louisiana Insurance Guaranty Association (LIGA) became a Defendant herein pursuant to the Insurance Guaranty Association Law. See La.R.S. 22:1375, et seq. Louisiana Revised Statutes 22:1386(A) required Mr. Turner to first “exhaust his rights” under his UM policy issued by Safeway.

      . PFC E. Johnson and Sergeant Edward Buford Johnson are the same individual.