author: MOORE, J.

text:
    ACADIAN GAS PIPELINE SYSTEM, Plaintiff-Appellee v. Pierce Dalton NUNLEY and Susan Moody Nunley, Defendant-Appellants.
    No. 46,648-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      The Faircloth Law Group, by Jimmy R. Faircloth, Jr., Barbara Bell Melton, Alexandria, LA, for Appellants.
    Kean Miller, LLP, Baton Rouge, LA, by Gary A. Bezet, Gregory M. Anding, Carol L. Galloway, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

| ]Dr. and Mrs. Pierce Nunley appeal a judgment that granted Acadian Gas Pipeline System (“Acadian”) a pipeline servitude across the Nunleys’ 400-acre tract in DeSoto Parish. We affirm.

Procedural History

Acadian filed this petition on February 19, 2010, alleging that it had a certificate of transportation from the Department of Natural Resources entitling it to expropriate necessary private property under the general state expropriation laws and the power to expropriate property necessary for transporting and supplying the public with natural gas under La. R.S. 30:554 A(2) and 19:2(5). Acadian alleged it was constructing a natural gas pipeline between Napoleonville and Mansfield to meet the demands and needs of the public, and that a 42-inch pipeline would have to cross the Nunleys’ 400-acre tract (“the subject tract”) in DeSoto Parish. Acadian also alleged that it had negotiated with the Nunleys in good faith but the parties could not agree as to just compensation and other terms and conditions. Acadian demanded permanent and temporary ser-vitudes to construct and operate the pipeline, upon the payment of just compensation.

The Nunleys filed exceptions of vagueness and no cause of action, urging that Acadian alleged insufficient facts to show a public and necessary purpose, and a general denial. At trial, Dr. Nunley made clear that he took offense at Acadian’s petition: nobody from Acadian had ever called him to discuss this servitude. Some months earlier one of Acadian’s landmen had talked to Dr. Nunley’s father-in-law, Dave Moody, about placing a pipeline on a separate, 160-acre tract owned by the Nunleys and |2Moody several miles south of the subject tract. Then, on January 20, Acadi-an sent Dr. Nunley a letter asking permission to survey the subject tract, and threatening legal action if he did not respond within three days. Dr. Nunley briskly replied that nobody was allowed to trespass on his property without -written consent.

On February 2, Acadian again wrote Dr. Nunley, stating that it had selected the subject tract for the pipeline, explaining that a servitude was not a sale of the property, offering him a right-of-way agreement and $84,681.60 in compensation, asking for permission to survey, and stating Acadian’s goal to “work with each and every landowner to reach an amicable agreement.” Dr. Nunley rebuffed this letter as well. He testified he would have been willing to talk to them about it, but he was unwilling to accept their “take it or leave it” stance. As noted, Acadian filed this suit on February 19.

In May 2010, Acadian obtained a court order allowing it to enter the subject tract to survey. Shortly before trial, Acadian filed a motion in limine to exclude any evidence of good faith negotiations, a requirement for expropriation under R.S. 19:2, on grounds that the Nunleys waived this by failing to file a dilatory exception of prematurity. The Nunleys conceded the waiver but argued that if Acadian could show a public and necessary purpose under La. Const. Art. 1, § 4, then they would use any relevant evidence to prove that Acadian selected this route “arbitrarily, capriciously or in bad faith.” ExxonMobil Pipeline Co. v. Union Pacific R. Co., 2009-1629 (La.3/16/10), 35 So.3d 192. They maintained that Acadian failed to | oconsider the site selection criteria outlined in Recreation & Park Comm’n v. C & S Development Inc., 97-2652 (La.7/8/98), 714 So.2d 706, and thus the selected route was arbitrary, capricious or in bad faith.

Summary of Trial Testimony

At trial, Acadian’s director of business development, Rocky Story, testified that in response to growing demand, hurricane threats in south Louisiana and the discovery of the Haynesville Shale, Acadian had decided in 2008 to install a 142-mile pipeline from Napoleonville in southeast Louisiana to Mansfield in northwest Louisiana. Acadian’s senior project manager, Don May, testified that although there was no clear-cut north-south corridor, the route ultimately selected crossed the subject tract along with 436 other individual parcels of land. In DeSoto Parish, the pipe would have a diameter of 42 inches and be buried 30 inches deep, requiring a 50-foot servitude and costing $4.5 million per mile.

Mr. May also testified that Acadian had traced an initial route based on a “desktop” study using aerial photos and topographic maps. The initial route would have bypassed the subject tract, running some 7,000 feet to the east. However, his men physically inspected that route and performed two flyovers; they discovered some wetland areas, extensive timber growth, an auto junkyard and two sharp crossings under 1^49, all of which posed serious “constructability” issues. They therefore did another flyover and noticed two existing overhead electric powerlines running north-to-south over the subject tract. Mr. May ordered another ground-level survey and flyover, and decided that following the existing electrical servitude posed |4less risk of environmental impact and required only one Interstate crossing. He also testified that the company made adjustments to the new route to keep greater distance from a house, the Mansfield Battlefield site and a working coal mine, but the new route was still 1 ½ miles shorter than the initial route.

Mr. May conceded that he considered only two routes, the initial route that bypassed the subject tract, and the selected route that bisected it; he did not consider 10 or 12 alternate routes, as this would take too much time. On cross-examination, he admitted that aside from the flyovers and the physical observations of his men on the ground, all his work had been “desktop,” generating no daily logs, papers or reports reflecting environmental or other assessments.

Dr. Nunley testified that his first communication from Acadian regarding the subject tract was a letter on January 20, 2010; Acadian had followed up with a letter on February 2, requesting a permanent 50-foot servitude and a temporary (for construction) 60-foot servitude for a total of $84,681.60. Dr. Nunley testified that he wanted to know more about the servitude before he granted it, and he was really just confused by Acadian’s conduct. He maintained that if Acadian would “work out an appropriate agreement” and not just present a “take it or leave it” offer, he would grant the servitude. He firmly stated he did not want a natural gas pipeline under his “pristine” farmland, but would agree to it if Acadian would take out a mineral lease on the subject tract.

|fiDr. Nunley presented the testimony of an expert in civil engineering, Frank Willis. Although he had never designed or selected the route for a natural gas transmission pipeline, he testified that it was impossible to select such a route strictly by desktop work and a helicopter flyover. Based on the lack of documentation — no photos, field notes, cost estimates, interviews with landowners — he felt that Acadi-an did not consider the appropriate factors. He suggested that Acadian picked the route first, and then weighed the factors. On cross-examination, he agreed that the 42-inch pipeline was necessary and would not state that the initial route was preferable. However, he insisted that failure to maintain the data used was engineering malpractice.

Action of the District Court

In a written ruling, the district court cited Acadian’s expropriation authority under R.S. 30:554 A(2) and 19:2(5) and summarized the facts. The court found that Acadian, in its haste to acquire servi-tudes for its pipeline, had indeed failed to negotiate, but the Nunleys waived the issue by not filing an exception of prematurity. The court also found a public and necessary purpose for the pipeline, justifying expropriation under La. Const. Art. 1, § 4. The issue was therefore whether Acadian abused its discretion in selecting the route by acting “in bad faith or so capriciously or arbitrarily that its action was without an adequate determining principle or was unreasoned.” Red River Waterway Comm’n v. Fredericks, 566 So.2d 79 (La.1990); United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209 (1946). An expropriator should consider “the availability of alternate sites, costs, 1 f,environmental factors, long-range planning, and safety considerations.” Recreation & Park Comm’n v. C & S Development, supra. The court found, however, that “once removed from the duty to negotiate, a pipeline company has virtually unassailable discretion.” The court agreed with the Nunleys that Acadian failed to preserve and produce “data such as designs, photographs, field notes, and con-structability studies,” but recognized that the supreme court has recently approved the use of testimonial evidence of the site selection process instead of documentation. ExxonMobil Pipeline Co. v. Union Pacific R. Co., supra. The court reluctantly found that Mr. May’s testimony satisfied the requisite criteria. Finally, the court noted that Acadian was not required to consider the landowner’s convenience. La. R.S. 19:2; Louisiana Power & Light v. Caldwell, 360 So.2d 848 (La.1978). The court therefore granted Acadian’s request for expropriation, rendering judgment to that effect and ordering Acadian to pay just compensation of $84,681.60.

Synopsis of Arguments

The Nunleys have appealed, raising two assignments of error. First they contend the court erred in its application of the legal standard to Acadian’s expropriation of private property. Expropriation statutes must be strictly applied; a landowner attacking a taking must show the expropriator acted “without consideration or adjustment with reference to principles, circumstances or significance.” Red River Waterway Comm’n v. Fredericks, supra. Not only are the facts in ExxonMobil distinguishable, |7but Justice Knoll’s dissent comes closer to traditional, strict construction. The instant case is closer to State v. Estate of Griffin, 95-1464 (La.App. 1 Cir. 2/23/96), 669 So.2d 566, which found an arbitrary and capricious taking, and to the Florida cases of Florida Power & Light Co. v. Berman, 429 So.2d 79 (Fla. 4 DCA 1983), and Florida Power Corp. v. Gulf Ridge Council, 385 So.2d 1155 (Fla. 2 DCA 1980), which reached similar results. Mr. May’s testimony, under close scrutiny, is riddled with omissions and exaggerations, such that the court could not reasonably find that Acadian ever considered any other route. Finally, the court confused the dilatory issue of “good faith negotiations” with the merit-based issue of “bad faith exercise of expropriation authority.” The judgment should be reversed owing to these legal and factual errors.

Second, they urge that the court erred in failing to impose a negative presumption due to Acadian’s failure to preserve and/or produce the engineering data and evidence supporting route selection and its alleged weighing of the factors. The failure to produce evidence within its control creates a presumption that the evidence, if produced, would have been unfavorable to Acadian. Allstate Ins. Co. v. Ford Motor Co., 00-710 (La.App. 3 Cir. 11/2/00), 772 So.2d 339. The Nunleys’ expert civil engineer, Frank Willis, testified that failure to retain the kind of data involved in this case would be malpractice. The court should supply the presumption that Acadian simply never performed the requisite studies.

Acadian responds that the court’s factual findings are not plainly wrong; placing the pipeline servitude along the preexisting powerline [ ¡¡servitude minimized the impact on all the affected landowners along that route. An objecting landowner must meet a “heavy burden of proof’ to show that the expropriator acted arbitrarily, capriciously or in bad faith. State v. Jeanerette Lumber & Shingle Co., 350 So.2d 847 (La.1977), rejected the essence of the Nunleys’ argument — that because an alternative route was available, the option selected must have been arbitrary. Earlier cases applied a presumption that the expropriator acted in good faith. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965); Texas Eastern Transmission Corp. v. Bowie Lumber Co., 176 So.2d 735 (La.App. 1 Cir.1965). Mr. May’s testimony satisfied all the requirements; not only the supreme court in Exx-onMobil, but a federal court in Illinois Central R. Co. v. 16.032 Acres of Land, 1999 WL 1276835 (E.D.La.12/22/99), has utilized testimony rather than “hard data” to find that the expropriator considered the relevant criteria. Griffin, supra, and the Florida cases are inapposite. Finally, there is no authority for requiring the expropriator to memorialize its proceedings in writing. ExxonMobil refutes this position, and there is no reason to apply a rule of spoliation.

Applicable Law

Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner. La. Const. Art. 1, § 4(B)(4); ExxonMobil Pipeline Co. v. Union Pacific R. Co., supra. All persons receiving a certificate of transportation from the commissioner of conservation shall possess the right of expropriation with authority to |9expropriate private property under the general state expropriation laws. La. R.S. 30:554 A(2). When a price cannot be agreed upon with the owner, any corporation created for the piping and marketing of natural gas for the purpose of supplying the public with natural gas, may expropriate needed property. La. R.S. 19:2(5). Expropriation laws are special and exceptional in character, in derogation of common rights, and as such must be strictly construed. ExxonMobile Pipeline Co. v. Union Pacific R. Co., supra; State v. Jeanerette Lumber & Shingle Co., supra.

In ExxonMobil, supra at 12-13, 35 So.3d at 200, the supreme court explained the operation of this law (with emphasis added and some citations omitted):

In challenges to the necessity of a taking, the landowner must prove that the legislatively-authorized expropriator exercised “its large discretion” arbitrarily, capriciously, or in bad faith. Red River Waterway Comm’n v. Fredericks, [supra ]. Whether the expropriator’s purpose is public and necessary is a judicial determination that will not be reversed on appeal absent manifest error. Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, 628 So.2d 75, 78 (La. App. 3 Cir.1993), writ denied, 94-0168 (La.3/18/94), 634 So.2d 854. In the context of expropriation, “necessary” refers to the necessity of the purpose for the expropriation!;,] not the necessity for a specific location. Calcasieur-Cameron Hosp. Serv. Dist., 628 So.2d at 78. Once public necessity is established, the extent and the location of property to be expropriated are within the sound discretion of the expropriation authority and determination of same will not be disturbed by the courts if made in good faith. Id.
The criteria to be considered by the expropriator in determining the location and extent of the property to be expropriated inelude[] factors such as costs, environmental impact, long range area planning, and safety considerations. Red River Waterway Comm’n, [supra ]. The amount of land and the nature of the acreage taken must be reasonably necessary for purpose of the expropriation, but it is not necessary “to show actual, immediate, and impending necessity Imfor the expropriation.” City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675, 677 (1930). The suitability of the property for expropriation is primarily a question of fact on which the judgment of the trial court will not be disturbed unless manifestly erroneous. Board of Com’rs of New Orleans Exhibition Hall v. Missouri Pacific R. Co., 625 So.2d 1070, 1073 (La.App. 4 Cir. 1993), writ denied, 93-3088, 93-3100 (La.1/28/94), 630 So.2d 802.

An expropriator enjoys a presumption that the route chosen is the best and most feasible. Texas Eastern Transmission Corp. v. Bowie Lumber Co., supra. The landowner attacking the taking must show that the expropriator exercised its large discretion “without consideration or adjustment with reference to principles, circumstances or significance.” Red River Waterway Comm’n v. Fredericks, supra. The landowner’s burden in such a case is “heavy.” Id.; City of Baton Rouge v. Johnca Properties LLC, 2003-0632 (La. App. 1 Cir. 2/23/04), 873 So.2d 693, writ denied, 2004-0696 (La.5/7/04), 872 So.2d 1083.

Discussion

The Nunleys contend that because expropriation derogates from the free enjoyment of private property, the court committed legal error in finding that a pipeline company “has virtually unassailable discretion.” While the court’s statement may have been slightly overbroad, we perceive no legal error. Acadian stated a public necessity to provide a steady flow of natural gas in light of growing demand, hurricane threats along the coast, and the availability of huge resources in the Haynesville Shale. The court found that this proved a “public and necessary purpose” and satisfied the baseline requirement for expropriation by a private entity. La. Const. Art. 1, § 4(B)(4); La. R.S. 19:2(5), 30:554 A(2).

| nThe supreme court has repeatedly held that once a public and necessary purpose is shown, the expropriator has considerable discretion as to the precise property to be taken. In State v. Jeanerette Lumber & Shingle Co., 350 So.2d at 863, the court held that “the delegation of the power of eminent domain by the State to the expropriator leaves largely to the latter’s discretion the location and area of the land to be taken[.]” In Red River Waterway Comm’n v. Fredericks, 566 So.2d at 83, the court described the expropriator’s discretion as “large.” Most recently, in ExxonMobil Pipeline Co. v. Union Pacific R. Co., supra at 12, 35 So.3d at 200, the court reiterated that “the extent and the location of property to be expropriated are within the sound discretion of the expropriation authority!.]” In light of this authority, we find no merit in the argument that the district court misapplied the proper legal standard.

The Nunleys correctly show that the expropriator must act in good faith and consider factors such as costs, environmental impact, long-range area planning and safety considerations. Red River Waterway Comm’n v. Fredericks, supra. They contend that the court committed manifest error in finding that Acadian considered these, in light of the existence of a workable alternative route and the absence of documentation to support the selection of the route across the subject tract such as photos, field notes, cost estimates and interviews with landowners.

On close examination, we find the district court correctly followed the method and analytical framework provided in Exx-onMobil, supra. There, the district court denied ExxonMobil’s petition to expropriate an 1 ^access road; the court of appeal affirmed, noting only that the record was “devoid of evidence” of a public purpose. ExxonMobil Pipeline Co. v. Union Pacific R. Co., 2008-2347 (La.App. 1 Cir. 5/13/09), at p. 5, 15 So.3d 246, 249. The dissenting judge argued that the plaintiff presented testimony proving a necessary purpose and “safety considerations regarding the location of the access road.” Id. at 2, 15 So.3d at 251 (Kuhn, J., dissenting).

The supreme court reversed, ordering the expropriation. After setting out the legal principles quoted above, the court analyzed the record. Specifically, the court discussed the testimony of the plaintiffs senior staff right-of-way and claims agent, a Mr. Saltaformaggio. The court recounted this testimony extensively, devoting five Tong paragraphs that we will not belabor. Notably for our purposes, the court mentioned not one piece of documentary evidence, and did not suggest that Mr. Saltaformaggio used any at trial. Rather, the court analyzed and accepted his explanation that, e.g., building the road over designated wetlands, ditches or access canals was undesirable. In this regard, Mr. Saltaformaggio’s testimony closely resembles Mr. May’s, both in vocabulary and persuasive force.

The clear implication of the supreme court’s method and analytical framework is that testimony alone may suffice to prove that the expropriator considered the factors of Red River Waterway Comm’n v. Fredericks, supra. Other courts have also utilized testimony rather than “hard data” to find 113compliance with the expropriation criteria. Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, supra; Illinois Central R. Co. v. 16.032 Acres of Land, supra. We find no manifest error in the district court’s decision to accept Mr. May’s testimony even without documentary evidence such as photos, field notes, cost estimates or interviews.

The Nunleys additionally contend that the court erred in confusing the dilatory issue of “good faith negotiations” with the merit-based issue of a “bad faith” exercise of expropriation authority. For the reasons just discussed, we do not find that Acadian exercised its authority in bad faith, or without consideration or adjustment with reference to principles, circumstances or significance. Also, while Acadian’s conduct may not have been an exemplar of legal negotiation, a single offer may be sufficient to constitute good faith. Texas Gas Transmission Corp. v. Pierce, 192 So.2d 561 (La.App. 3 Cir. 1966). This argument lacks merit.

By their second assignment, the Nunleys urge the court erred in failing to impose a negative presumption arising from Acadian’s failure to preserve or produce the hard data supporting its route selection. It argues the rule of spoliation stated in Allstate Ins. Co. v. Ford Motor Co., supra, and numerous other cases: when a litigant destroys, conceals or fails to produce evidence within his or her control, this gives rise to an adverse presumption that had the evidence been produced, it would have been unfavorable to the litigant. The law is settled, however, that when the failure to produce the evidence is adequately explained, the presumption does not apply. See Hanks v. Entergy Corp., 2006-477 (La.12/18/06), 944 So.2d 564, fn. 5; Critton v. State, 43,328 (La.App. 2 Cir. 6/4/08), 986 So.2d 207, writ denied, 2008-1493 (La.10/3/08), 992 So.2d 1019.

The district court did not abuse its discretion in accepting Mr. May’s explanation that the hard data sought by the Nunleys never existed. Moreover, the duty to preserve evidence is enforceable if it arose from a statute, contract, special relationship between the parties or an affirmative agreement or undertaking to preserve the evidence. Wilhite v. Thompson, 42,395 (La.App. 2 Cir. 8/15/07), 962 So.2d 493, writ denied, 2007-2025 (La.2/15/08), 976 So.2d 175, and citations therein. The Nunleys have not cited any statute or contract requiring Acadian to maintain the kind of records requested. Even though their expert testified that in a project of this size, failure to document the route selection process would be engineering malpractice, he did not establish any special relationship or affirmative agreement between the parties. The district court did not abuse its discretion in failure to apply a negative presumption based on spoliation. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellants, Dr. Pierce Nunley and Susan Moody Nunley.

AFFIRMED.

      . The court expressed its personal agreement with Justice Knoll's dissent in ExxonMobil.

      . By contrast, the expropriators' evidence was qualitatively inferior in cases like State v. Estate of Griffin, supra, in which the state relied on a “projected” traffic count that was discredited even by the state’s own expert, and the Florida cases cited in brief, in which the plaintiffs’ experts admitted not considering the expropriation factors.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Roy L. PILKINTON and Amy H. Pilkinton, Plaintiffs-Appellees v. ASHLEY ANN ENERGY, L.L.C., Chesapeake Operating, Inc., Defendants-Appellants.
    No. 46,650-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Baker Donelson Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, by Kenneth M. Klemm, Adam B. Zuckerman, Paul K. Colomb, Jr., for Appellants.
    Downer, Huguet & Wilhite, L.L.C., Shreveport, LA, by Philip E. Downer, III, M. Amy Burford McCartney, for Appel-lees.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   CARAWAY, J.

hln this case, the appellants recognized that the landowners’ property was subject to an existing oil and gas lease that might terminate in four months at the end of the primary term of that lease. Appellants negotiated with the landowners an agreement for a new lease that would become effective the day after the primary term ended for the existing lease. The appellants paid the landowners the negotiated amount for the contract with a draft conditioned for payment “upon approval of title” of the landowners’ property within 20 days. The appellants did not honor the draft, asserting instead that in the 20-day period the lessee of the existing lease had obtained a permit for a well which would maintain the lease and cloud the landowners’ title. The landowners sued for the payment on the agreement to lease, and the trial court rendered summary judgment in their favor. For the following reasons, we affirm.

Facts

In 2008, Ashley Ann Energy, L.L.C. (hereinafter “AAE”) was retained by Chesapeake Louisiana, L.P. to act as its agent with instructions to “identify and seek to lease properties having existing oil, gas, and mineral leases with an expiration date at the end of 2008.” In June 2008, April Smith, an AAE employee, contacted the plaintiffs, Amy and Roy Pilkinton, on Chesapeake’s behalf regarding the possibility of obtaining an oil, gas, and mineral lease on 86.20 acres in Bossier Parish. After the Pilkintons informed Smith that their property was currently leased to KCS Resources (hereinafter “KCS”), Smith discussed the possibility of Chesapeake/AAE |2obtaining a so-called top lease to become effective after the primary term of the KCS lease expired on December 1, 2008.

As a result of the negotiations, on August 7, 2008, the Pilkintons executed the contract now in dispute in this action in favor of AAE (hereinafter the “Agreement to Lease”). The contract was on a standard printed Bath form mineral lease with an additional “Exhibit A.” The primary term was listed as three years but was not to commence until December 2, 2008. Although the stated consideration typed on the Agreement to Lease was “$100 and other valuable consideration,” the Pilkin-tons were presented an AAE draft for $431,000 at the time of their execution of the Agreement to Lease.

Contained in Exhibit A to the Agreement to Lease were several special provisions reflecting the parties’ negotiations. Originally, this attachment only contained the first provision addressing the KCS lease. However, the Pilkintons proposed six additional provisions. Calvin Beasley, AAE’s owner, approved five of the requested provisions, including the second numbered provision of Exhibit A. The three pertinent provisions of Exhibit A are as follows:

1. This lease is expressly made subject to that Oil and Gas Lease dated December 1, 2005 from Roy L. Pilkinton and Amy H. Pilkinton to KCS Resources, Inc. (the “Prior Lease”), a copy of which is recorded in Bk. 1361 Pg. 635, to the extent of its validity; and Lessee herein accepts this Lease subject to the terms of the Prior lease. This lease is a “Top Lease,” insofar and only insofar as it includes land and depths described in the Prior Lease. It is not the intent of Lessor and Lessee to cloud or in any way to impair any rights, titles, and interests, if any, of the parties arising under the Prior Lease. This lease is subject to the Prior Lease and Lessee recognizes that this Lease, although describing lands and depths inclusive of depths held under the Prior Lease, will cover and affect the lands and depths |.^described in the Prior Lease only following the termination of the Prior Lease. Therefore, upon the expiration, release, or termination of the Prior Lease, in whole or part, Lessor shall notify Lessee in writing and Lessee shall have 10 days from receipt of such notice to make payment of the remaining bonus to Lessor based on the proportionate lands available from the Prior Lease. Upon receipt of such payment, this Lease will be deemed to cover and include all lands and all depths so terminated in, on, and under Prior Lease. Specifically, when said Prior Lease expires, as to all or any portion of the lands or depths covered thereby, during the primary term of this Lease or any extension thereof, this Lease shall immediately and automatically include and become effective as to such lands or depths, subject to payment of the remaining bonus as set forth herein. Provided, however, that upon the expiration of the primary term of this Lease, if the Prior Lease has still not expired, terminated, or release of record, in whole or part, then this Lease, insofar as to lands and depths maintained under the Prior Lease, shall expire and shall never become effective as to such lands and depths. In any event, Lessor represents and warrants that Lessor has not executed or entered into any renewal or other agreement to extend the term or renew the Prior Lease, and furthermore, Lessor covenants and agrees not to execute any agreement to extend, renew, amend, or modify the term of the Prior Lease during the primary term of this Lease. This provision shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors, assigns, and legal representatives.
2. Lessor makes no express or implied warranty of title whatsoever, and Lessor shall have no obligation to return any bonus consideration or benefits received under any of the terms hereof, including, but not limited to royalties, shut-in payments, or other monies paid to Lessor on account of a failure of title. Lessee takes this lease at its own risk and peril.
5. To the extent of any conflict between the terms of this addendum and the lease form to which it is attached, the terms of this addendum shall control.

In consideration of executing the Agreement to Lease, the parties negotiated and agreed that the Pilkintons would initially receive one-fourth of the total bonus payment of $20,000 per acre. The other three-fourths of the bonus would be paid in the event that KCS’s lease terminated. Given the choice of a check or draft, the Pilkintons chose to receive their one-fourth bonus payment in a draft, believing it to be the safer option. Upon htheir signing of the lease, they were given a draft for $431,000. On the face of the draft, however, AAE included a provision that stated “upon approval of title but not later than 20 banking days after sight.” The Pilkin-tons signed and deposited the draft with their bank for collection on August 8, 2008. On August 14, the Agreement to Lease was recorded by AAE in the Bossier Parish records.

On August 21, 2008, the Louisiana Department of Natural Resources issued KCS a permit to drill an oil and gas well. While the permit was for a neighboring tract, the tract was within the same unit containing the Pilkintons’ property. AAE considered this permit for a unit well as a title defect and ordered their bank to dishonor the draft. AAE’s bank did not receive the notice to dishonor the draft within the 20 banking days; however, it was not given instructions by AAE to honor the draft. While AAE asserts that the Pilkintons received notification, the Pilkin-tons dispute that notice of AAE’s refusal to honor the draft was ever given within the 20 banking days. On September 22, 2008, AAE executed and recorded a release of the Agreement to Lease, and a week later, the Pilkintons’ bank returned the draft and informed the Pilkintons that it was not honored.

Due to Chesapeake and AAE’s failure to pay the draft, the plaintiffs filed suit against them on November 21, 2008. On July 1, 2009, the Pilkintons filed a motion for summary judgment to determine the validity of the Agreement to Lease and to order the defendants to pay the agreed upon consideration. On October 2, 2009, the defendants filed a cross-motion for summary judgment.

| -After a postponement of the hearing on the motions, on September 10, 2010, the plaintiffs filed a motion for leave to file a first supplemental and amended petition. Since the KCS lease had allegedly expired, the Pilkintons desired to amend the petition to seek recovery of the additional three-fourths bonus payment ($1,293,000) owed under the Agreement to Lease. Chesapeake and AAE opposed the amendment and asked the court to resolve the motions for summary judgment prior to deciding whether the Pilkintons could amend them petition. The court set all of these motions for hearing on November 8, 2010.

On December 20, 2010, the district court issued its opinion, granting the plaintiffs’ motion for summary judgment, and denying the defendants’ cross-motion for summary judgment. The court also granted the plaintiffs’ request to file their supplemental and amended petition. The trial court held that:

In the Court’s view, none of the jurisprudence relied upon by the parties in this case had lease language as clear and precise as the language in this “top lease.” Defendants further clearly and unambiguously manifested their intent to be bound by the “top lease” through their delivery of the draft payment to the Petitioners as consideration and through their recordation of the “top lease” in the Bossier Parish conveyance records.

As a result of this adverse ruling and the $431,000 judgment against them, the defendants filed this appeal which has been certified by the district court as a final partial judgment.

Discussion

The defendants first assert that the 20-day title review period of the draft (hereinafter the “20-day Provision”) must be considered along with the |fiother provisions of the Agreement to Lease and given effect. They contend that the trial court’s ruling erroneously discarded the 20-day Provision. Asserting the application of the 20-day Provision, the defendants argue to this court that the Agreement to Lease “never became effective” because they “learned of a title defect (the fact that the pre-existing lease of the Pilkintons’ mineral interests would not expire thus rendering the object of the proposed mineral lease impossible), dishonored the draft, and notified the Pil-kintons within the allowed time period.” Notably, however, as acknowledged in oral argument before this court, the defendants do not dispute that in the absence of the KCS drilling permit or any other title issue discovered in the 20-day period, they could not dishonor the draft and were obligated for the $431,000 payment.

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764; Adams v. JPD Energy, Inc., 45,420 (La.App.2d Cir.8/11/10), 46 So.3d 751, writ denied, 10-2052 (La.11/12/10), 49 So.3d 892; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. A material fact is one that potentially ensures or precludes recovery, affects a party’s ultimate success, or determines the outcome of the dispute. Hines v. Garrett, supra, citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A summary judgment shall be |7rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Like contracts in general, a mineral lease is the law between the parties and regulates their respective rights and obligations. Winnon v. Davis, 32,988 (La. App.2d Cir.5/15/00), 759 So.2d 321 as cited in Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.3d 1145. Article 2046 states that when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Although it is necessary that mineral leases be in writing, it is not essential that the lessee sign the written instrument; what is required is that lessee indicate consent to lease agreement. Fomby v. Columbia County Development Co., 155 La. 705, 99 So. 537 (1924); St. Romain v. Midas Exploration, Inc., 430 So.2d 1354 (La.App. 3d Cir.1983).

The Louisiana Mineral Code provides for the lessor’s warranty obligation in Article 120, as follows:

A mineral lessor impliedly warrants title to the interest leased unless such warranty is expressly excluded or limited. The liability of the lessor for breach of warranty is limited to recovery of money paid or other property or its value given to the lessor for execution or maintenance of the lease and any royalties delivered on production from the lease.

La. R.S. 31:120.

Top leases are leases granted by landowners during the existence of another mineral lease that become effective if and when the existing lease |sexpires or is terminated. Mobil Oil Exploration and Producing Southeast, Inc. v. Latham, 44,996 (La.App.2d Cir.2/3/10), 31 So.3d 1149. As a legal right, the top lease exists at its inception as a mere hope or expectancy in the extinction of existing superior leasehold rights, which extinction will confer upon the top lease owner the essence of a mineral lease, i.e., the right to explore for and produce minerals. Patrick G. Tracy, Jr., The Effects of Top Leasing in the Louisiana Law of Oil and Gas, 43 La. L.Rev. 1189 (1983).

The parties cite and discuss this court’s ruling in Texas General Petroleum Corp. v. Brown, 408 So.2d 288 (La.App. 2d Cir. 1981). In that case, the lessors of the leases expressly excluded any warranty against pre-existing mineral leases still in effect, “not even for return of bonus monies.” The drafts for the bonus payments for the leases were conditioned “upon approval of title ... by drawee not later than 60 days.” Despite title problems with pri- or unexpired leases which were recognized by the lessee during the 60-day period, the drafts were paid for the bonus monies at the end of the 60-day period. The lessee brought suit claiming the bonus payments were made in error as its bank should not have honored the drafts. In rejecting the lessee’s claims, this court found no conflict in the non-warranty provision of the lease and the lessee’s 60-day period to determine the existence of any title issue with the prior leases. “The terms of the leases and the language of the drafts strongly support the conclusion that plaintiff had 60 days to decide whether it could succeed in getting the desired releases [of the prior leases].” Id. at 291. After the end of the 60-day period with payment made to the lessors, the non-warranty provision was given |fleffect. This court refused to require the return of the bonus monies for any error in payment as claimed by the lessee.

While the Texas General ruling is informative for its effort to resolve conflict and give meaning to the two contractual provisions in question, this dispute concerns a third provision in the parties’ lease contract in addition to its non-warranty provision and the 20-day Provision. We must therefore consider the effect of the KCS lease provision contained in paragraph 1 of Exhibit A to the Agreement to Lease. The instruction of Civil Code Article 2050 is significant as “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. art. 2050.

The Agreement to Lease was signed in August 2008 by the Pilkintons in exchange for the draft even though a lease in complete force and effect was only to become effective on December 2, 2008. The KCS lease provision in Exhibit A explained the reason for this delay, as follows:

This lease is subject to a Prior Lease and Lessee recognizes that this Lease ... will cover and affect the lands at depths described in the Prior Lease only following the termination of the Prior Lease.

Emphasis added. The KCS lease was therefore recognized as being in full force and effect through the end of its primary term on December 1 and the new- AAE lease might only then become effective. Notably, the parties acknowledged that the Agreement to Lease and its recordation were not intended “to cloud” the title and ownership of the KCS lease. An important |incorollary of that understanding by the parties is that the continued existence of the KCS lease, at least during its primary term, was not a cloud on the agreement which they entered in August 2008.

As outlined in paragraph 1 of Exhibit A, the parties’ agreement of August 2008 was clearly a prospective agreement for a lease that conditionally might become effective on December 2. Their contract was exécu-tory and contingent. For the initial down payment of one-fourth of the bonus payment, the Pilkintons agreed to lease and the defendants agreed to acquire the lease upon the happening of a condition — the eventual expiration of the KCS lease. They agreed to become bound in this exec-utory contract in August, and they might later become bound as lessor and lessee in a new lease upon certain conditions. AAE’s recordation in August of the Agreement to Lease protected its rights in this executory contract to lease under the law of registry in accordance with Civil Code Article 3338(3). Upon such recordation, a third party could not obtain lease rights from the Pilkintons to the detriment of the defendants’ rights under the Agreement to Lease.

The KCS lease provides for a primary term of three years that ended December 1, 2008. The lease contains the typical habendum clause allowing the lease to extend “as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith; or (2) it is maintained in force in any other manner herein h provided.” Thus, for the conditional secondary term of the KCS lease to arise, the events set forth in its habendum clause had to be occurring on December 1, 2008, and thereafter. With this governing principle of the KCS lease, KCS’s permitting of a proposed unit well affecting the Pilkintons’ property in August was not an event by itself having any relevance to the maintenance of the KCS lease under the terms of its haben-dum clause. As indicated by the jurisprudence, the act of permitting a well, even if it had occurred on December 1, was insufficient to extend the KCS lease beyond its primary term under the terms of the lease. A permit is not the equivalent of production nor is it one of the stated manners for lease maintenance short of production specified in the KCS lease for its extension under the habendum clause.

With this understanding of paragraph 1 of Exhibit A and the effect of the KCS lease, it is clear that the parties’ agreement was a binding contract to acquire a lease upon their execution of the Agreement to Lease and the payment of the $431,000 draft. Moreover, this executory agreement could result in an actual oil, gas and mineral lease effective December 2, 2008, irrespective of the well permit which KCS obtained in August. The events which might allow the Agreement to Lease to become an effective lease on December 2, 2008, as the parties contemplated, could only be measured on December 1, 2008, and thereafter by a determination of whether the KCS lease remained viable after the end of its primary term. This construction of |Ti>the parties’ agreement obligates defendants to pay the $431,000 draft. However, the defendants seek the application of the 20-day Provision which conditioned AAE’s payment of its $431,000 obligation and allegedly released them of that obligation.

The 20-day Provision is asserted by defendants as allowing them an additional 20 days to approve the title to the Pilkintons’ land before their $431,000 obligation became binding. Although we assume for purposes of this summary judgment that the Pilkintons agreed to this condition, the draft’s meaning of “approval of title” in the context of the parties’ overall agreement could not involve the acknowledged existence of the KCS lease as amounting to any cloud upon the Pilkintons’ title and ownership to their property. Likewise, just as the KCS well permit did not have any bearing in August 2008 upon whether the KCS lease might be extended beyond its primary term on December 1, 2008, and thereafter, the KCS well permit was not a flaw in the Pilkintons’ title and ownership of their property. The parties had agreed by their executory agreement that (1) the property was subject to the KCS lease; (2) the Pilkintons’ land would become leased on December 2 if the KCS lease terminated; and (3) AAE would pay $431,000 to obtain the executory contract and an additional payment if the KCS lease terminated. None of these tenets of the agreement was altered by the KCS permit, and AAE’s conditional right to acquire the December 2 lease remained the same after the permit. Accordingly, the KCS well permit is not a title flaw falling within the meaning of “approval of title” of the 20-day Provision when the overall context of the parties’ contract is | ^considered. The 20-day Provision therefore did not allow AAE to refuse to honor its $431,000 payment for the Agreement to Lease.

Alternatively, the defendants argue in their second assignment of error that under Civil Code Article 1949, error vitiated the parties’ consent at the time of the August 2008 contract and that genuine issues of material fact exist surrounding such error. Defendants claim that the Pilkintons knew that KCS planned to drill a well affecting the KCS lease and “that, if Ashley Ann and Chesapeake knew of such imminent drilling, they would not have been interested in leasing the Pilkintons’ property.” Defendants cite the following exchange in the deposition of Roy Pilkin-ton in support of their argument:

Q. You said KCS did talk to you before you entered into the top lease; correct?
A. Right.
Q. Okay. And when you talked to KCS you say they did tell you about wanting to drill a well?
A. Yeah.

Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. Under Civil Code Article 1848, testimonial proof may be used against a written contract to show a vice of consent which includes error. La. C.C. art. 1848 and Revision Comment (b).

The trial court rejected this claim of error by the defendants after “considering the clear terms” of the Agreement to Lease. As reviewed 114above, both parties to the contract acknowledged the continuing existence of the KCS lease. The parties also acknowledged in the Agreement to Lease the possibility of KCS drilling its lease and maintaining it beyond December 1, 2008, into the conditional extended term of that lease. If such event occurred, the defendants’ additional payment for the new lease would not be owed on December 2. Circumstantially, without any contact by the parties with KCS, the KCS lease itself implies that the company would desire to develop its investment in the lease by exploring for oil and gas during the remainder of the primary term of the lease. Mr. Pilkinton was not a KCS official responsible for a drilling decision nor was it shown that the KCS employee with whom he had contact had made a decision to drill a well. Thus, regardless of Mr. Pilkinton’s understanding, the drilling of a well by KCS remained a clear contingency. The defendants’ intent for their acquisition of the Agreement to Lease was given in full view of the contingency for the extension of the KCS lease after December 1 which might result from a decision by that company to drill. Such decision may have been in the works on August 7, 2008; yet that was an accepted risk by the defendants upon entering the Agreement to Lease. We therefore agree with the trial court that the cited testimony of Roy Pil-kinton does not show or raise a material issue of fact regarding error in the formation of the contract.

Conclusion

For the foregoing reasons, the partial summary judgment of the trial |1Bcourt in favor of plaintiffs is affirmed. Costs of appeal are assessed against appellants.

AFFIRMED.

      . The Pilkintons' argument that they never agreed to the 20-day Provision despite their acceptance of the draft and the execution of the Agreement to Lease is not appropriate for resolution by a motion for summary judgment. For review of this summary judgment, therefore, we will assume that the parties agreed to the inclusion of the 20-day Provision on the draft.

      . In Smith v. Kennon, 188 La. 101, 175 So. 763 (1937), the court addressed a top lease which was executed by the lessor to be effective during the primary term of a prior lease owned by the plaintiff. The court found that the plaintiff stated a viable cause of action against his lessor for the lessor’s repudiation of the lease contract by the execution of the top lease. The parties in this dispute did not execute such a top lease but instead executed an agreement to lease which might result in a lease following the possible termination of the KCS lease.

      . La. R.S. 31:115 and Comment; La. R.S. 31:133; O'Neal v. JLH Enterprises, Inc., 37,432 (La.App.2d Cir.12/1/03), 862 So.2d 1021.

      . See Allen v. Continental Oil Co., 255 So.2d 842 (La.App. 2d Cir.1971), writ denied, 260 La. 701, 257 So.2d 156 (1972), and Wehran v. Helis, 152 So.2d 220 (La.App. 4th Cir.1963), interpreting the language in the KCS lease requiring that at the end of the primary term the lessee must be “then engaged in operations for drilling, completion or reworking” of a well.

      . This ruling does not mean that a title flaw, such as another party’s ownership of a mineral servitude burden on the Pilkintons’ land, could not have caused the 20-day Provision to operate in AAE’s favor under the rationale of Texas General Petroleum, supra.


author: LOLLEY, J.

text:
    Randall A. AUSTIN, Plaintiff-Appellee v. DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES, Defendant-Appellant.
    No. 46,654-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Jennifer Del Murray, for Appellant.
    W. Robert Graves, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

| ,The Louisiana Department of Public Safety, Office of Motor Vehicles appeals the judgment in favor of Randall Austin by the 2nd Judicial District Court, Parish of Bienville, State of Louisiana, which reinstated the commercial driving privileges of Austin. For the following reasons, we reverse the trial court’s judgment.

Facts

Randall Austin was involved in a single-vehicle crash on La. 154 in Bienville Parish on July 9, 2010, at approximately 4:30 p.m. He was transported to Minden Medical Center with a cut on his head. Subsequently an unidentified Louisiana State Trooper investigated the scene and then went to the hospital to question Austin, who was detained at the hospital until La. State Trooper Matt Harris arrived to conduct an interview approximately three hours later. Because Trooper Harris believed Austin exhibited signs of intoxication, he received Austin’s consent to administer the Horizontal Gaze Nystagmus Test on Austin. Austin was advised of his rights by Trooper Harris as they related to tests for chemical intoxication pursuant to La. R.S. 32:661(C), and he refused to submit a blood sample to test for intoxication. After the test, Trooper Harris arrested Austin for violating La. R.S. 14:98, “Operating a vehicle while intoxicated” (the “DWI”).

As a result of Austin’s refusal to submit to testing for chemical intoxication, the Office of Motor Vehicles (the “OMV”) suspended Austin’s driving privileges for 365 days pursuant to La. R.S. 32:667 and La. R.S. |p32:661(C)(l)(b). Additionally, Austin, who possessed a Class A commercial driver’s license (“CDL”) with hazardous materials eligibility, lost his eligibility for commercial driving privileges for one year pursuant to La. R.S. 32:414.2 and 49 C.F.R. § 383.51.

Pursuant to applicable legal procedure, Austin timely requested and was granted an administrative hearing to contest the suspension of his driver’s license. The suspension was affirmed by the administrative law judge. Ultimately, regarding the criminal charge for the DWI, Austin was acquitted and he sought the return of his CDL, as well as his Class “E” license. Although his Class “E” license was reinstated, the OMV refused to return his CDL, and Austin filed suit.

The matter was set for trial on February 17, 2011, but because the matter involved simply a “legal issue” (as characterized by the trial court prior to the trial), the parties agreed that the matter be submitted on briefs. After consideration of the briefs, the trial court rendered judgment in favor of Austin, ordering the OMV to reinstate Austin’s commercial driver’s license. This appeal by the OMV ensued.

Discussion

On appeal the OMV submits that the trial court erred in reinstating Austin’s CDL and that Austin’s acquittal of the criminal charge for violating La. R.S. 14:98 did not negate the mandatory disqualification of his CDL. At issue is whether or not Austin was entitled to a reinstatement of his CDL as a result of his acquittal on his DWI charge. The OMV maintains | sthat his CDL was subject to a mandatory one-year disqualification for his mere refusal to submit to blood alcohol testing, even though he was subsequently acquitted of the DWI charge. We agree.

In 1989, the legislature created a series of provisions relating to the suspension and restriction of commercial driving privileges. La. R.S. 32:414.2 et seq. The thrust of these statutes is to provide stronger penalties for commercial drivers who commit certain enumerated offenses while operating a commercial motor vehicle. Moore v. State, Dept. of Public Safety, License Control & Driver Imp. Div., 26,949 (La.App.2d Cir.05/10/95), 655 So.2d 644.

Title 32 of the Louisiana Revised Statutes contains statutes regarding “Tests for Suspected Drunken Drivers,” specifically section 667 addressing the suspension of driving privileges for refusal to submit to a chemical test for intoxication. However, the issue here relates to the disqualification of Austin’s CDL, so the more specific and applicable statute is contained in the chapter regarding “Driver’s License Law.” There, Louisiana R.S. 32:414.2 specifically addresses commercial motor vehicle drivers and grounds for disqualification of a CDL, and the applicable subsection is (A)(4) which states in pertinent part:

Except as provided in Subparagraph (A)(2)(a) for lifetime disqualification, and in Paragraph (A)(3) for three years disqualification for offenses committed while transporting hazardous materials, any person shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for:
⅜ ⅝ jfj ⅜: 5⅜ :j:
|4(d) A first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver’s license holder.

Notably, La. R.S. 32:414.2 contains other grounds for disqualification of CDLs.

It seems harsh to penalize Austin for refusal to submit to the blood test when he was ultimately acquitted of the crime of DWI — as categorized by the trial court, an “absurd result.” Moreover, the trial court in reaching its conclusion that Austin’s acquittal entitled him to a reinstatement of his CDL, considered only some portions of La. R.S. 32:414.2, but did not consider the subsection dealing squarely with the issue, 1.e., subsection (A)(4)(d). However, a careful reading of the statute on the precise issue of CDL disqualification shows that the OMV was correct in disqualifying Austin for refusing the alcohol test. There is no ambiguity that the obvious legislative intent embodied in La. R.S. 32:414.2 was to hold commercial license vehicle operators to a higher standard. This intent can be seen, for example, under La. R.S. 32:414.2(A)(l)(b)(i), which mandates that once disqualified, there is no economic hardship license to operate a commercial motor vehicle as there is for noncommercial vehicles. Additionally, an individual with a CDL will not be convicted for DWI under La. 14:98 if the alcohol concentration test shows a blood alcohol level less than .08%; |showever, that individual will be subject to having his CDL disqualified if his blood alcohol level is under .08% but at least .04% while driving a commercial vehicle. See La. R.S. 32:414.2(A)(4)(a)(ii). We note that the chapter on driver license law contains stricter requirements for obtaining a CDL than for a noncommercial license. Finally, this section in question was amended by the Legislature in 2007, adding that a CDL holder will also be disqualified if he refuses to submit to the test even while operating a noncommercial vehicle — again showing the legislative intent to hold CDL operators to a higher standard of accountability.

Obviously, the intent of the Legislature was to hold individuals with a CDL to a zero tolerance standard as far as alcohol/drug use and driving, even applying that standard to a noncommercial vehicle driven by the CDL operator. The reasoning is that an individual with the privilege of having a CDL should never imbibe alcohol when behind the wheel of any vehicle, and, that being the case, should never have cause to refuse a request for an alcohol concentration test. Because an individual with a CDL has a heightened duty to the public considering the public safety ramifications, the Legislature’s harsh standard serves to protect the public and is reasonable. Thus, considering the clear and unambiguous wording of the applicable statute, as well as the spirit of the law contained in that chapter of Title 32, the trial court erred in its finding against the OMV on its refusal to reinstate Austin’s CDL.

| ^Conclusion

For the foregoing reasons, the judgment of the trial court which reinstated the commercial driver’s license of Randall A. Austin is reversed, and judgment is entered in favor of the Louisiana Department of Public Safety, Office of Motor Vehicles. The judgment reinstating the disqualification is retroactive to the original date of disqualification. All costs of this appeal are assessed to Austin.

REVERSED.

      . Austin’s Class "E” “Personal Vehicle Driver's License" was suspended.

      . Examples of some other offenses that lead to disqualification are: “serious traffic violations” (subsection (A)(1)(d)); "railroad grade crossing violations” (subsection (A)(1)(e)); use of a commercial or noncommercial vehicle for the commission of a felony involving the manufacture, distribution, or dispensing of a controlled substance or possession with intent to manufacture, distribute, or dispense a controlled substance (subsection (A)(2)(a)); and use of a commercial or noncommercial motor vehicle in the commission of more than one felony arising out of different crime episodes (subsection (A)(2)(b)), among others.


text:
    STATE of Louisiana, Appellee v. Henry Earl CUNNINGHAM, Appellant.
    No. 46,664-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Lane Pittard, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

1, Henry Earl Cunningham appeals his conviction and sentence on one count of bank fraud, La. R.S. 14:71.1. For the reasons expressed, we affirm.

Factual Background

Cunningham worked as a cab driver based at the casinos in Shreveport and Bossier City. He met and befriended his codefendant Shalondrea “Shea” Holmes in 2009 when he gave her a ride from Russell Road in Shreveport to one of the casinos. He gave her his cell phone number and, for weeks afterward, she called him regularly for rides to and from Sam’s Town or Eldorado. She normally paid cash, but on occasions she had none; she testified that she once paid him with a check. She admitted that she was living on Russell Road with her grandmother, Earline Thomas, and that she had once stolen Ms. Thomas’s checks and forged her signature on them. In fact, Ms. Holmes was on probation for this charge in 2009, but she did not disclose this fact to Cunningham.

On August 28, 2009, Ms. Holmes called Cunningham for a cab ride. She told him that she did not have any money for fare but that she did have some of her grandmother’s checks to pay him. She did not testify that she ever told him she had no authority to write checks on her grandmother’s account. However, she did tell him that she had no ID so Cunningham would have to cash the check at a Regions Bank. Ms. Holmes filled out the front of the check, making it payable to Cunningham in the amount of $415. In the memo line she wrote “Maintenance Work” and then signed Ms. L.Thomas’s name. She then told Cunningham to drive her to the Regions Bank branch on Viking Drive in Bossier City where he went in to cash the check. Because he did not have an account there, in addition to indorsing the back of the check, he had to present his driver’s license to the teller, who noted on the check the last four digits and expiration date of his license and his date of birth. The transaction was also recorded on digital camera. He received the $415 and returned to the car; according to Ms. Holmes, he kept $215 for himself and gave her the other $200.

A few days later, Ms. Thomas noticed that her account had been debited $415 for a check she did not sign and payable to a person she did not know, Henry Cunningham. She went to Regions Bank and filled out an affidavit that her check had been forged; her money was ultimately refunded. Ms. Thomas testified that her granddaughter had previously stolen her checks, and this time she asked her who Cunningham was, but Ms. Holmes said she did not know. Later, however, Ms. Holmes put her grandmother on the phone with Cunningham, who said he was sorry and “he did not know that they were not her checks.” Ms. Thomas added that she had never authorized Ms. Holmes to sign her cheeks.

Regions Bank forwarded to Bossier City police the check, Ms. Thomas’s affidavit and surveillance video images of Cunningham cashing the check on August 28. The bank’s security officer, Charles Upchurch, testified that at some point Cunningham called him but he could not recall the gist of the conversation.

RBossier City police obtained a warrant and arrested Cunningham on October 12, 2009. Detective Leander Matthews interviewed him at the police station. According to Det. Matthews, Cunningham said, “I know what this is all about. I’ve spoken with Chuck Upchurch on the telephone. I haven’t done anything wrong. The young lady that gave me the check was [Ms.] Holmes.” Cunningham then described how he and Ms. Holmes had become friends and he drove her around frequently, but he felt she was trying to “play” him by saying she had no money for fare, telling him she had some checks of her grandmother’s, and that he would have to cash one because she had no ID. Nevertheless, he cashed the check and split the proceeds with her; however, he “should have known something wasn’t quite right with the check.” On cross-examination, Det. Matthews testified that he also prepared an arrest warrant for Ms. Holmes, but that he called the judge and recommended a bond on her own recognizance.

Ms. Holmes testified as outlined above. She admitted than when Detective Matthews first asked her about the check, she lied to him, but later told the truth; she testified that her grandmother never asked her about the check, but when Ms. Thomas asked who Cunningham was, she denied knowing him. She admitted stealing checks twice from Ms. Thomas, and that the state would recommend leniency if she “testified good” against Cunningham.

14After a two-day trial in October 2010, a six-member jury found Cunningham guilty as charged of bank fraud, La. R.S. 14:71.1; motions for new trial and post verdict judgment of acquittal were denied. At sentencing in January 2011, the district court reviewed Cunningham’s PSI and found that he had seven prior felony convictions. The court therefore imposed the maximum sentence of 10 years at hard labor; a motion for reconsideration was denied. This appeal followed.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Cunningham urges the evidence was insufficient to convict him of bank fraud. Specifically, he argues the state failed to prove he had the specific intent to defraud the bank. He contends that it was Ms. Holmes who stole the check, wrote it out, forged Ms. Thomas’s signature, and told him to cash it because she had no ID; she never told him she lacked authority to issue the check to him; in light of his serious criminal history, he would never knowingly pass a stolen check. He also suggests that Ms. Holmes’s credibility was fatally impaired, and that his mere presence at the scene of her crime did not make him a principal to the offense. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427.

The state responds that viewed in the light most favorable to the prosecution, the evidence proved every essential element of the offense.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219.

Specific intent may be inferred from the circumstances and actions of the defendant. State v. Spears, 2005-0964 (La.4/4/06), 929 So.2d 1219. Whether the defendant possessed the requisite intent in a criminal case is for the fact finder to determine, and a review of the correctness of this finding is guided by the Jackson v. Virginia standard. State v. Huizar, 414 So.2d 741 (La.1982).

The crime of bank fraud is defined in R.S. 14:71.1 as follows:

A. Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
(1) To defraud a financial institution.
(2) To obtain any of the monies, funds, credits, assets, | ^securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises.

In State v. Forbs, 07-1007 (La.App. 4 Cir. 4/23/08), 983 So.2d 954, the court noted that R.S. 14:71.1 is similar to the federal crime of bank fraud, 18 U.S.C. § 1344, and that the intent necessary to sustain a conviction under § 1344 is “the intent to deceive a bank in order to obtain money or other property.” Id. at 6, 983 So.2d at 957, citing United States v. Staples, 435 F.3d 860 (8 Cir. 1/23/06), cert. denied, 549 U.S. 862, 127 S.Ct. 148, 166 L.Ed.2d 108 (2006). Further, specific intent is established “by the existence of a scheme which was ‘reasonably calculated to deceive persons of ordinary prudence and comprehension,’ and this intention is shown by examining the scheme itself.” Id., citing United States v. Green, 745 F.2d 1205 (9 Cir.1984).

Cunningham correctly shows that much of the conduct constituting the scheme or artifice to defraud was Ms. Holmes’s: she stole the check, filled it out and forged Ms. Thomas’s signature; she directed Cunningham to cash the check using his own ID; notably, she never told him she lacked authorization to use her grandmother’s checks, and perhaps even suggested otherwise. Nonetheless, Cunningham actually presented the check for payment at Regions Bank and received the cash proceeds; his part in the scheme or artifice was substantial. On the critical question of whether he participated knowingly, he admitted to Det. Matthews that “something wasn’t quite right with the check.” His misgiving was reasonable, in that 17Ms. Holmes forged her grandmother’s name, an incident which a person of ordinary-prudence and comprehension would consider fraudulent. Also, she wrote that the check was for maintenance work, which he knew was false. Finally, he split the proceeds with Ms. Holmes, conduct from which a reasonable juror could find an intent to deceive a bank in order to obtain money. State v. Forbs, supra. On this record, the fact that Ms. Holmes executed the first part of the scheme, and omitted to tell Cunningham that the whole thing was a fraud, did not negate the showing that he knowingly intended to deceive Regions Bank to obtain money.

Viewed in the light most favorable to the prosecution, this evidence supports the jury’s finding as to every essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, supra. This assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Cunningham urges the maximum sentence of 10 years at hard labor was excessive. He concedes that he has a criminal history but submits that he is not the worst kind of offender. He reiterates from his motion for reconsideration that the loss to Regions Bank was relatively small, only $415; he was gainfully employed at the time of the offense; there was no violence or threat of harm to anyone; and no substance abuse was involved. Finally, he contends that he has completed all the conditions of his prior felony convictions and thus would be a good candidate for rehabilitation.

|RThe state responds that Cunningham is a seventh felony offender, that prior rehabilitative efforts have failed and this evidence supports the district court’s choice of sentence.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. When the record shows an adequate factual basis for' the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Normally, sentences at or near the maximum are reserved for the worst offenders and |9the worth offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. Ashley, 45,563 (La.App. 2 Cir. 9/22/10), 48 So.3d 332. Nevertheless, the sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

At the sentence hearing, defense counsel gave a long statement arguing Cunningham’s attenuated part in the criminal scheme and detailing other mitigating facts: his gainful employment as a cab driver, his role as a father and husband, his compliance with all prior prison sentences. The court, however, cited the PSI to show Cunningham’s seven prior felony convictions, starting with one for drug distribution in Illinois in 1986, others in Illinois, Indiana and Kentucky for a variety of offenses (possession of marijuana with intent, theft and receipt of stolen goods, three counts of theft and two counts of illegal possession of firearms), and ending with one for cocaine distribution in Indiana in 2005, resulting in a sentence of one to two years. He also had a 2008 arrest for shoplifting and a 2009 arrest for possession of controlled dangerous substances, for which no dispositions were shown. The instant offense occurred on August 28, 2009. This history supports the district court’s finding of an “ongoing lifestyle of committing serious felony offenses all the way from 1986 to 2010.” The PSI also shows that on at least one occasion, Cunningham’s probation was revoked because he committed another offense. This supports the court’s finding that even if Cunningham were eligible, he would not be a good candidate for parole or a | msuspended sentence.

On close examination, we do not find that the district court abused its great discretion or that the maximum sentence of 10 years at hard labor shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. This assignment lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, we affirm the conviction and sentence.

AFFIRMED.

      . Ms. Thomas is actually Ms. Holmes's great aunt, but Ms. Holmes refers to her as grandmother or "granny.”

      . The check was on a joint account co-owned by Ms. Thomas and an elderly neighbor, a Ms. Brown, whom Ms. Thomas assisted with her banking.

      . This portion of Cunningham's statement was made before he received his Miranda rights, but was ruled admissible in a free and voluntary hearing. This ruling is not contested on appeal.

      . This section provides: "Whoever knowingly executes, or attempts to execute, a scheme or artifice — (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”


author: LAMAR, Justice,

text:
    Edna Mae SANDERS v. STATE of Mississippi.
    No. 2009-CT-01925-SCT.
    Supreme Court of Mississippi.
    Jan. 12, 2012.

      Brian B. Alexander, Bay St. Louis, Will Bardwell, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, W. Glenn Watts, for attorneys for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. A Hancock County jury convicted Edna Mae Sanders of murdering her husband, Sherman Sanders, and the judge sentenced her to life in prison. The Court of Appeals reversed her conviction and remanded for a new trial based on the trial court’s error in denying a “no duty to retreat” instruction, and its error in suppressing evidence. Sanders v. State, 77 So.3d 497, 506-07 (Miss.Ct.App. 2011). We granted the State’s petition for writ of certiorari. After full review, we agree with the Court of Appeals’ ultimate disposition. We write to address Sanders’s Confrontation Clause argument and to clarify the Court of Appeals’ discussion of the “Castle Doctrine.”

FACTS AND PROCEDURAL HISTORY

¶ 2. We limit our recitation of the facts to those relevant to the issues we discuss. In July 2006, Sherman Sanders was severely burned with cooking oil, resulting in his death several days later. While the cause of death is undisputed, the circumstances leading up to the incident are not. The State theorized that Edna Mae Sanders threw a pot of hot cooking oil on Sherman while he was sleeping in their bed, as Sherman made several statements to that effect to the first responders. But Sanders testified that she threw the oil to protect herself and her children after Sherman had violently attacked her.

¶ 3. Before trial, Sanders filed a motion in limine, asking the trial court to exclude Sherman’s incriminating statements to the first responders, but the trial court denied the motion after a hearing. At trial, the State called Deputy Brandon Hendry to testify. Hendry testified that he was dispatched on a 911 call from a neighbor who reported “hearing a subject yelling for help and blowing a horn” in the yard. He was the first on the scene, and as he approached Sherman, he asked “what happened?” Hendry testified that Sherman responded that “he was asleep and he don’t [sic] know why his wife poured burning oil on him.” The State also called Emergency Medical Technician (EMT) Lieutenant Michael Munger to testify. Munger also was dispatched to the Sanders’s residence the evening of the incident. Upon his arrival, Munger testified that he had asked Sherman what happened, and Sherman had responded that “he was sleeping and he woke up to his wife pouring oil on him.”

¶ 4. Sanders took the stand in her own defense and testified that Sherman had begun a violent physical altercation with her that evening. She testified that he had punched her and dragged her down the hallway, and that he had leaned her across the couch and had choked her. She screamed for her daughter and son to get out of the house. She testified that she had thought her life and her children’s lives were in danger. At some point, Sherman released her and told her “what he was going to do.” Sanders testified that she had thought “this man is going to, he’s going to kill me,” so she had grabbed the pot of oil off the stove and had followed him down the hallway to their bedroom. Sanders said when she had seen Sherman pull “the mattress back and [come] around with that gun,” she had tossed the grease on him and ran.

¶ 5. At the conclusion of the evidence, Sanders requested a “no duty to retreat” instruction — an instruction that would inform the jury that she was under no duty to retreat from an assault against her in her own home. But the trial judge refused the instruction, stating that he thought it was “inconsistent with the evidence.” The jury found Sanders guilty of murder, and the trial judge sentenced her to life in prison.

¶ 6. Sanders appealed, arguing that the trial judge erred when he (1) allowed the first responders to relay Sherman’s incriminating statements; (2) refused to instruct the jury that she had no duty to retreat; and (3) declined to admit evidence of her state of mind that would support her theory of self-defense. The Court of Appeals agreed with the trial judge that Sherman’s statements were properly admitted under exceptions to the hearsay rule, but failed to address Sanders’s claim that the statements violated her right to confront witnesses. The Court of Appeals found error and remanded for a new trial.

¶ 7. The State filed a motion for writ of certiorari, which we granted. The State argues that the Court of Appeals erred when it (1) found that Sanders was entitled to a “no duty to retreat” instruction, because the evidence showed that she reinitiated the attack after Sherman had released her; (2) incorrectly conflated Mississippi Code Section 97-3-15(3) and (4), and in doing so, “created precedent” for defendants to claim entitlement to the presumption of reasonable fear, even where the person “against whom ‘defensive force’ was used was a resident of the dwelling”; and (3) improperly invoked plain error to review the exclusion of testimony regarding Sherman’s alleged sexual molestation of Sanders’s daughter.

¶ 8. As mentioned above, we agree with the Court of Appeals’ ultimate disposition. But we address the State’s argument that the Court of Appeals incorrectly implied that Sanders was entitled to a presumption that her fear was reasonable. And we also address Sanders’s argument that her right to confront the witnesses against her was violated by the admission of Sherman’s statements to the first responders. We find no merit in the State’s remaining claims on certiorari.

ANALYSIS

A. Presumption of Reasonable Fear

¶ 9. We agree with the Court of Appeals that the trial judge erred when he denied Sanders’s requested “no duty to retreat” instruction. But in its discussion of that issue, the Court of Appeals quoted from subsection (8) of Mississippi Code Section 97-3-15, which clearly does not apply in this case. Subsection (8) establishes a presumption of reasonable fear in certain instances of self-defense and states that:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling ... if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling ... or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling ... or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred.

Miss.Code Ann. § 97-3-15(3) (Rev.2006) (emphasis added).

¶ 10. But subsection (3), read in its entirety, clearly establishes that the presumption of reasonable fear does not apply when the person against whom defensive force was used was lawfully present:

This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof....

Id. (emphasis added). We agree with the State that the Court of Appeals’ inclusion of subsection (3) in its analysis could create confusion, and we therefore clarify that a defendant may not claim the presumption of reasonable fear when the person against whom defensive force was used had a right to be in or was a lawful resident or owner of the dwelling.

B. Confrontation Clause

¶ 11. Sanders argued before the Court of Appeals that the admission of Sherman’s incriminating statements to the first responders violated her Sixth Amendment right to confront the witnesses against her. The Court of Appeals found that the statements were admissible under Mississippi Rule of Evidence 803, but failed to address her Confrontation Clause argument. Because the “primary purpose” of the first responder’s “interrogation” was to “enable police assistance to meet an ongoing emergency,” we find no Sixth Amendment violation. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

¶ 12. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, the United States Supreme Court held that “testimonial” evidence could not be admitted against a criminal defendant unless the declarant was unavailable at trial, and the defendant had had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court declined to specifically define the term “testimonial,” but stated that, at a minimum, it included “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.

¶ 13. Two years after Crawford, in Davis, the United States Supreme Court further defined “testimonial” statements:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822, 126 S.Ct. 2266. In Davis, the Court held that statements made by a domestic violence victim to a 911 operator were not testimonial, noting that the statements “were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.” Id. at 827, 126 S.Ct. 2266.

¶ 14. In February of 2011, the United States Supreme Court decided Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), which expanded discussions of decisions in Crawford and Davis. In Bryant, the Court held that a victim’s statements to law enforcement officials soon after being found shot in a gas-station parking lot were not testimonial, because the “circumstances of the encounter as well as the statements and actions of [the victim] and the police objectively indicate[d] that the ‘primary purpose of the interrogation’ was ‘to enable police assistance to meet an ongoing emergency.’” Bryant, 131 S.Ct. at 1166-67 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266) (emphasis added).

¶ 15. The Bryant Court held that whether the “ ‘primary purpose of the interrogation was to enable police assistance to meet the ongoing emergency ” is the “ultimate inquiry” when deciding whether a statement is testimonial. Bryant, 131 S.Ct. at 1165 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266). In determining the “primary purpose” of an interrogation, courts are to “objectively evaluate the circumstances in which the encounter occurs....” Bryant, 131 S.Ct. at 1156. “That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” Id.

¶ 16. When “objectively evaluating the circumstances” of an encounter, courts should consider whether an “ongoing emergency” existed at the time of the encounter, the formality of the encounter between the victim and the police, and the statements and actions of both the declar-ant and the interrogators. Id. at 1157, 1160. The Bryant Court also noted the importance of the victim/declarant’s medical condition in the “primary purpose” determination “to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one.” Id. at 1159.

¶ 17. Turning to the specific facts of the case, the Bryant Court noted that, when the police arrived at the victim’s side, their first question was “what happened,” to which the victim responded with either “ ‘[Bryant] shot me’ or T was shot,’ followed very quickly by an identification of [Bryant] as the shooter.” Id. at 1165. The Court noted that the victim was suffering from a mortal gunshot wound when he made the statements, and that he was “obviously in considerable pain,” and concluded that “we cannot say that a person in [the victim’s] situation would have had a ‘primary purpose ... to establish or prove past events potentially relevant to later criminal prosecution.’ ” Id. (citations omitted).

¶ 18. As for the police officers’ actions, the Court noted:

For their part, the police responded to a call that a man had been shot. As discussed above, they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred. The. questions they asked— “what had happened, who had shot him, and where the shooting occurred,”— were the exact type of questions necessary to allow the police to “ ‘assess the situation, the threat to their own safety, and possible danger to the potential victim’ ” and to the public, including to allow them to ascertain “whether they would be encountering a violent felon[.]” In other words, they solicited the information necessary to enable them “to meet an ongoing emergency.”

Id. at 1165-66 (citations omitted). And finally, the Court considered the “informality of the situation and the interrogation,” noting that the officers arrived at different times and did not conduct a structured interrogation. Id. at 1166. The Court noted that the “informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted [the victim] to or focused him on the possible future prosecutorial use of his statements.” Id.

¶ 19. After examining all of the relevant facts surrounding the incident, the Bryant Court ultimately ruled that the victim’s statements were not testimonial and thus did not violate Bryant’s Sixth Amendment confrontation rights:

Because the circumstances of the encounter as well as the statements and actions of [the victim] and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency,” [the victim’s] identification and description of the shooter and the location of the shooting were not testimonial hearsay. The Confrontation Clause did not bar their admission at Bryant’s trial....

Id. at 1166-67.

¶ 20. We find the facts in Bryant analogous to the case at hand. Hendry was dispatched to Sherman’s house after a 911 call reporting a person yelling for help and blowing a horn in his yard. When Hendry arrived and approached Sherman, he “immediately noticed he had large lesions on his skin” and that “large portions of skin were hanging from his chest area and arm....” At that point, Hendry asked one question, “what happened,” to which Sherman replied that his wife had poured burning oil on him while he was asleep. Sherman then asked Hendry to help him look for his medication in the trunk of his car.

¶ 21. Looking objectively at this encounter, we find that Hendry’s simple question of “what happened” was the “exact type of question necessary” to “assess the situation.” Bryant, 131 S.Ct. at 1165-66. And, like the Bryant Court, “we cannot say that a person in [Sherman’s] situation would have had a ‘primary purpose ... to establish or prove past events potentially relevant to later criminal prosecution,’ ” as he was suffering from second- and third-degree burns over a large portion of his body and had asked Hendry to help him locate his medication. Id. at 1165. Finally, the “informality” of Hen-dry’s question to Sherman in his front yard indicates that the “primary purpose” was simply to address what Hendry “perceived to be an ongoing emergency.” Id. at 1166.

¶ 22. Similarly, an objective evaluation of Munger’s interaction with Sherman reveals that its “primary purpose” was to assess Sherman’s condition and treat him. Munger was dispatched to the scene for a “medical emergency involving a burn patient.” When he arrived, he testified that he noticed second-and third-degree burns on Sherman’s head, upper body, arms and hands. He asked “what happened” to “determine how [he] needed to treat [Sherman] medically.” We find that the “primary purpose” of Munger’s inquiry as to “what happened” was to ascertain the cause of Sherman’s injuries in order to treat him properly. Thus, we conclude that Sanders’s Sixth Amendment right to confront the witnesses against her was not violated when the first responders were allowed to relay Sherman’s statements.

CONCLUSION

¶ 23. We clarify that a defendant may not claim the presumption of reasonable fear in self-defense cases when the person against whom defensive force was used was a lawful resident of the dwelling. And we find no Sixth Amendment violation in the trial court’s decision to allow the first responders to relay Sherman’s incriminating statements. We affirm the Court of Appeals? judgment and remand this case to the Hancock County Circuit Court for proceedings consistent with both this and the Court of Appeals’ opinion.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS REVERSED AND THE CASE IS REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Sanders was not allowed to relate Sherman’s actual statement.

      . While both the 'no duty to retreat' rule and the presumption recently have been codified by ... statutes, it has always been the law in this state that one has no duty to retreat from an attack if he is in a place where he has a right to be and is not the initial aggressor or provoker. See McCall v. State, 29 So. 1003 (Miss.1901) ("Flight is one of the means of avoiding danger which was necessary to be made at common law, but is not required in this state.”); Bang v. State, 60 Miss. 571 (1882); Long v. State, 52 Miss. 23, 34 (1876) (explaining that an individual may stand his ground and still be entitled to claim self-defense "so long as he is in a place where he has a right to be ... and is no[t] the provoker [of], nor the aggressor in the combat.”).

        Newell v. State, 49 So.3d 66, 74 n. 9 (Miss. 2010).

      . The Davis Court noted that "if 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.” Id. at 823, 126 S.Ct. 2266 n. 2. It left for another day "whether and when statements made to someone other than law enforcement personnel are 'testimonial.'" Id.

      . The victim died soon after making the statements to the police. Bryant, 131 S.Ct. at 1150.

      . "The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account....” Bryant, 131 S.Ct. at 1162.

      . We assume, for purposes of today’s appeal, that Munger was an agent of the police for Confrontation Clause analysis purposes. But the parties did not argue this issue, and we "leave for another day,” as the Davis Court did, the issue of "whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’ ” Davis, 547 U.S. at 823 n. 2, 126 S.Ct. 2266.