author: CARAWAY, J.

text:
    LOUISIANA GRANITE YARD, INC., Plaintiff-Appellee v. LA GRANITE COUNTERTOPS, L.L.C., Defendant-Appellant.
    No. 45,482-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2010.
    Rehearing Denied Sept. 16, 2010.

      The Smitherman Law Firm, L.C., Shreveport, LA, by Donald Lee Brice, Jr., for Appellant.
    Tyler & Johnson, L.L.C., Shreveport, LA, by Tommy J. Johnson, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

| TThe plaintiff retailer/installer of granite filed suit for trade name infringement against a competing business incorporated by a former employee. Plaintiff seeks to enjoin defendant’s use of plaintiffs trade names. Following a preliminary injunction hearing, the trial court enjoined defendant from using, displaying or advertising the trade names of plaintiff. This appeal by defendant ensued.

Facts

In December of 2004, David Randall Cook incorporated a retail granite business specializing in granite countertops, called Louisiana Granite Yard, Inc. (hereinafter LGY). Cook’s wife, Somsri, operated a restaurant next door to Louisiana Granite Yard. From June of 2005 to February of 2008, Somsri’s brother, Sompong Sitkrong-wong (“Mark”), began working for the two businesses. While working at LGY, Mark met with customers, answered phones, took payments, performed computer input, measured jobs and created computer drawings.

In mid-February 2008, Cook terminated Mark’s employment. Subsequently in late February 2008, Mark incorporated his own granite business calling it LA Granite Countertops, L.L.C. (“LA Countertops”). Initially, Mark utilized his home address as the business address. On March 31, 2008, however, he changed the business address after he secured leased premises some 4.3 miles from LGY.

|2In September and October of 2008, the Louisiana Secretary of State approved LA Granite and Louisiana Granite as trade names for Cook’s business. Based upon allegations that Mark was utilizing LGY’s trade names (LA Granite and Louisiana Granite), LGY instituted suit for trade name infringement against LA Counter-tops on November 3, 2008. LGY alleged that LA Countertops used its “trade names, LA Granite and Louisiana Granite, in its day to day business activities,” and that the use of its trade names caused “actual confusion, mistake and/or deeeption” to LGY clients. Specifically, plaintiff alleged LA Countertops was receiving payment in the name of LA Granite and answered the phone using both trade names. In a supplemental petition, LGY also raised claims of unfair trade practices and alleged that the name LA Granite Coun-tertops, L.L.C., caused confusion to the public. Alleging that such activity was likely to injure the business reputation of LGY and dilute its business market, LGY prayed for injunctive relief under La. R.S. 51:222, et seq., relating to the use of the names and telephone numbers and damages and attorney fees. LA Countertops answered the suit and filed a reeonventional demand against LGY seeking the cancellation of the trade names Louisiana Granite and LA Granite.

On September 28, 2009, the trial court conducted a hearing on LGY’s motion for preliminary examination. At the hearing, Cook, his wife, Somsri, and Mark testified in addition to numerous customers of the two businesses. Specifically, LGY presented the testimony of three customers who were confused about the names of the two businesses.

|sMeIanie Petchak testified that in August of 2008 she purchased granite from LGY. Because of a change order, she tried to contact LGY. She looked in the phone book for the telephone number and called LA Countertops instead. Petchak testified that she was confused over the names of the two companies. On cross-examination, the witness admitted that she did not compare addresses before she called. She knew the name of LGY as Louisiana Granite.

Diana Roath also testified that she purchased granite from LGY. When she and her husband attempted to locate LGY, they were unable to find it. She called a number from a 2007 newspaper ad. The individual who answered the phone identified the business as LA Granite and gave her directions to LGY. She asked the person who answered the phone if she had reached “Louisiana Granite” and he said responded that the business was LA Granite. She asked if LA stood for Louisiana and he responded in the negative. Roath’s husband, Terry Roath, testified consistently with his wife.

Diane Cook, Cook’s sister, testified the she had worked for LGY answering the phone. When answering the phone, she utilized the names LA Granite, Louisiana Granite and Louisiana Granite Yard. Cook estimated that she received at least two “confused” customer calls per week. She also testified that she called LA Counter-tops and heard that they answered the phone under the name LA Granite.

Mark testified that he could not recall whether he referred to LGY as LA Granite or Louisiana Granite during the time he worked for his brother-in-law. Later, Mark testified that he had referred to the business as Louisiana Granite Yard, but not LA Granite Yard. Mark identified documents he prepared for a client which were entitled LA Granite Yard, but he claimed that he did not notice the details of the document. He later testified that he put the name LA Granite Yard on the documents at the request of Cook. Mark identified 34 documents including price quotes, drawings, bills, checks and deposit slips from November 2005 to February 2008, containing the names LA Granite, Louisiana Granite or Louisiana Granite Yard.

Mark testified that he never recalled customers referring to the business as LA Granite Yard or LA Granite. Nor did he answer the phone with LA Granite. Mark recalled Petchak’s phone call and admitted that he had called his sister concerning Petchak’s inquiry.

Mark testified that he never held his business out as LA Granite or Louisiana Granite. He advertised his company in newspapers and the phone book utilizing the full name, “LA Granite Countertops.” He never instructed his clients to make checks payable to LA Granite, although he identified four checks which were made payable to LA Granite. Mark also identified numerous corporate documents which included the entire name of his company.

Somsri Cook testified that the names, LA Granite, Louisiana Granite and Louisiana Granite Yard were used to refer to LGY from the company’s inception in 2005. She identified approximately 250 pages of copies of checks and deposit slips dated June of 2005-September of 2008, made out to LLA Granite Yard, Louisiana Granite Yard, LA Granite, Louisiana Granite, La. Granite and La. Granite Yard. She knew that during his employment, Mark answered the business phone as LA Granite or Louisiana Granite.

In July of 2008, one of Mark’s customers mistakenly brought in a payment check to LGY. It was written to “LA Granite.” Somsri also testified that in July of 2009, a granite supplier sent a facsimile to LGY with the name of LA Countertops relating to an order made by LGY. A business card vendor also erroneously left a voice message at LGY for LA Countertops. In August and September of 2008 two LGY customers erroneously called LA Counter-tops to change LGY orders. Somsri testified that customers called her with confusion over the two company names. Somsri identified the sign which was presently in front of LGY which read LA. Granite, Yrd. She testified that the sign had been used by the business since late 2005. A photograph of the sign was introduced into evidence.

On cross-examination Somsri identified the phone book ads of LGY which advertised the company as Louisiana Granite Yard. Defendants submitted telephone book ads for both businesses dating from 2007-2010. Both businesses were listed on the same pages in the 2009-2010 phone book under the headings Counter Tops and Granite, under their respective names, Louisiana Granite Yard and LA Granite Countertops.

David Cook testified that he has tried to establish the business identity of his company with the names Louisiana Granite and LA Granite. He identified the sign in front of the business which he recalled had been there since May of 2005. Cook testified that LGY does business in 1 (¡Shreveport, Bossier City and Webster Parish. Cook recalled that the LGY phone was answered with Louisiana Granite and LA Granite, although LA Granite was primarily used. He also testified that Mark answered the telephone LA Granite when he worked for LGY. Cook noticed that the incidents of confusion increased when both companies were listed in the telephone book.

After considering the evidence and testimony, the trial court granted a preliminary injunction in favor of LGY, as follows:

[Restraining, enjoining, and prohibiting said entity, its owners, agents, employees, and all persons, firms or corporations acting or claiming to act in its behalf, or in concert with said entity from using, displaying, advertising, and/or referring to in any manner and/or capacity the trade names of “LOUISIANA GRANITE” and/or “LA GRANITE” and, more specifically, from using the “LA GRANITE” within the name of the defendant, LA GRANITE COUN-TERTOPS, L.L.C.

The court fixed a $20,000 bond and denied enjoining the use of LA Countertops’ telephone number. LA Countertops appeals the issuance of the preliminary injunction and, alternatively, contests the amount of the bond.

Discussion

I. Merits of Preliminary Injunction

In Louisiana, an entity’s corporate name registered under Title 12, the Louisiana Corporations and Associations Law, shall be distinguishable from the name of any corporation or other limited liability company or trade name previously registered with the secretary of state under La. R.S. 12:23B and 1306A(3). Likewise trade names can be registered pursuant to Title 51, Chapter 1, Part IV, Trade Names, Trade Marks and Domain |7Names, if the Secretary of State finds that the trade name is available for use. La. R.S. 51:213, 215. Under those provisions, the term “trade name” means a word, name, symbol, device or any combination thereof used by a person to identify his business, vocation or occupation and distinguish it from the business, vocation or occupation of others. La. R.S. 5L211D. The term trade name is applicable to the particular business and its good will. Gulf Coast Bank v. Gulf Coast Bank & Trust Co., 94-2203 (La.4/10/95), 652 So.2d 1306.

Under Louisiana law, however, the mere registration of a the trade name confers only procedural advantages. Substantive rights in a trade name may be acquired only by actual usage. Bobby and Ray Williams Partnership, L.L.P., v. Shreveport Louisiana Hayride Co., L.L.C., 38,866 (La.App.2d Cir.9/22/04), 882 So.2d 676; Givens Jewelers, Inc. v. Givens, 380 So.2d 1227 (La.App. 2d Cir.1980), writ denied, 383 So.2d 800 (La.1980); Couhig’s Pestaway Co., supra; Gallo v. Safeway Brake Shops of Louisiana, Inc., 140 So.2d 912 (La.App. 4th Cir.1962). This is because the protection of trademarks and trade names under the law of unfair competition is based on the proprietary interest one has in the mark or name and such protection is based on equity and does not require statutory provisions. Gulf Coast Bank, supra at 1311-1312. Thus, the registration by one party, or the lack of registration by the other, is not decisive to the right 18of either party to use the trademark or trade name. Couhig’s Pestaway Co., supra.

The Louisiana Supreme court has sanctioned a cause of action for trade name infringement. Because, however, that cause of action is not “existent in the statutory scheme,” it exists in the “jurispru-dentially developing law of trade names as part of the law of unfair competition.” Gulf Coast Bank, supra at 1312.

The law of unfair competition protects trade names against unfair use, simulation, or imitation. New Orleans Checker Cabs v. Mumphrey, 205 La. 1083, 18 So.2d 629 (1944); Boogie Kings v. Guillory, 188 So.2d 445 (La.App. 3d Cir.1966), writ denied, 249 La. 761, 191 So.2d 140 (1966). In the context of trademarks, which are accorded the same protections as trade names, the Louisiana Supreme Court long ago discussed the law of unfair competition in Handy v. Commander, 49 La. Ann. 1119, 22 So. 230 (1897):

The law applicable to trade-marks is very well stated in Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550, in which Mr. Justice Miller, speaking for the court, said: ‘The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country, and by the statutes of some of the states. It is a property right, for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement. This exclusive right was not created by the act of congress, and does not depend upon it for its enforcement. The whole system of trade-mark | nproperty, and the civil remedies for its protection, existed long anterior to that act, and have remained in full force since its passage. These propositions are so well understood as to require neither the citation of authorities nor elaborate argument to prove them.’

The court further stated:

The trade-mark may be, and generally is, the adoption of something already in existence as the distinctive symbol of the party using it. At common law the exclusive right to it grows out of its use, and not its mere adoption.

The law’s protection against unfair competition by the use bf another’s trade name rests upon the deceit or fraud which the newcomer in the business practices, not only upon the one already established in the business, but also upon the public. Boogie Kings, supra.

Whether there has been a trade name infringement centers upon the distinctiveness of the name used. Trade names are often classified in categories of generally increasing distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Gulf Coast Bank, supra.

The general rule regarding distinctiveness is clear. An identifying mark is distinctive and capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Two Pesos, Inc., supra. Secondary meaning is used generally to indicate that a mark or dress has come through use to be uniquely associated with a particular manufacturer’s product or service. To establish secondary meaning, a plaintiff must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the |;nproduct rather than the product itself. Id. Louisiana courts have looked to the appearanqe and actual similarity of the name or marks, evidence of actual confusion, as well as actual fraudulent intent, and the geographic area in which the businesses operate in relation to each other. Gulf Coast Bank, supra. Other factors which are appropriately considered by the courts are similarity of product, identity of retail outlets and purchasers, identity of advertising media, strength or distinctiveness of the mark or name, defendant’s intent and similarity of design Id.

A generic term is the name of a particular genus or class of which an individual article, service or business is but a member. Generic terms are considered to be in the public domain and are not susceptible to appropriation for exclusive use and thus are not given trademark or trade name protection.

A suggestive term suggests, rather than describes, a characteristic of the goods, services or business and requires an effort of the imagination by the consumer in order to draw a conclusion as to the nature of the goods, services, or business. Suggestive marks or names are considered inherently distinctive and need not acquire secondary meaning to be protected. Arbitrary or fanciful terms bear no relationship to the product, service or business to which it applies, and like suggestive ones, are considered inherently distinctive and are accorded protection without having to prove secondary meaning. Gulf Coast Bank, supra.

Descriptive terms identify a characteristic or quality of an article, service or business. Though ordinarily not protectable, a descriptive name |nmay become a valid, protectable trade name if it acquires a secondary meaning. Included in the category of descriptive terms which must have secondary meaning in order to be afforded protection as a trade name are geographic terms. Gulf Coast Bank, supra.

An injunction is a harsh, drastic, and extraordinary remedy, and should issue only where the party seeking it is threatened with irreparable loss or injury without adequate remedy at law. Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (La.1969), cert. denied, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970); Lafreniere Park Foundation v. Friends of Lafreniere Park, Inc., 97-152 (La.App. 5th Cir.7/29/97), 698 So.2d 449, writ denied, 97-2196 (La.11/21/97), 703 So.2d 1312. A preliminary injunction is an interlocutory procedural device designed to preserve the existing status pending a trial of the issues on the merits of the case. Lafreniere Park Foundation, supra. The trial court has great discretion to grant or deny the relief. Id.

La. C.C.P. art. 3601 provides in pertinent part that, an injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law. Clearly, absent specific authorization by law, an injunction will not issue without a showing of irreparable injury. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1967); Lafreniere Park Foundation, supra.

In order to obtain a preliminary injunction a plaintiff must show that he will suffer irreparable harm if the injunction is not granted, that he is entitled to the relief sought, and he must make a prima facie showing that he | ^will prevail on the merits. Lafreniere Park Foundation, supra. In contrast, the issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22. Thus, because an applicant for a preliminary injunction need make only a prima facie showing, less proof is required that in an ordinary proceeding for a permanent injunction. Gaumnitz v. Williamson, 36,177 (La.App.2d Cir.8/14/02), 824 So.2d 531; Monroe Real Estate & Dev’t Co. v. Sunshine Equipment Co., 35,555 (La.App.2d Cir.1/23/02), 805 So.2d 1200; Hailey v. Panno, 472 So.2d 97 (La.App. 5th Cir.1985).

For purposes of determining whether preliminary injunction is warranted, “irreparable injury” means that the moving party cannot be adequately compensated in money damages for his injury or suffers injuries which cannot be measured by pecuniary standards. Lafreniere Park Foundation, supra. Where one relies on secondary meaning to establish the distinctiveness of the name, in order to enjoin another’s use of a similar name, proof of a likelihood of consumer confusion is required. Gulf Coast Bank, supra.

In this case, the sequence of the corporate name actions by the Secretary of State for the key phrases “Louisiana Granite” and “LA Granite” was, as follows:

December 2004 — Corporate name issuance to
“Louisiana Granite Yard, Inc.”
February 2008-Corporate name issuance to
“LA Granite Countertops, L.L.C.”
| tsSeptember/October 2008 — Approval of LGY’s trade name use for
“LA Granite” and “Louisiana Granite”

Thus, if approval by the Secretary of State was the controlling test for a resolution of this case, LGY first obtained formal use of the phrase “Louisiana Granite,” and LA Countertops first received approval for use of the phrase “LA Granite” in connection with their respective business entities. However, contrary to LA Countertops’ assertions, the Secretary of State’s actions do not resolve this dispute as shown by the above jurisprudence.

Despite the concluding terms “yard” and “countertops” in the respective names of the parties’ business entities, LGY claims that defendant’s choice of the principal component of its name, “LA Granite,” and'the defendant’s use of that name and the name “Louisiana Granite,” create an infringement upon the distinctiveness and use of “Louisiana Granite” in LGY’s name and business. Clearly, LGY’s appropriation of “Louisiana Granite” within its formal corporate name and its use of that phrase in its business name and operations since 2004 justifies the preliminary injunctive relief preventing LA Counter-tops’ use of “Louisiana Granite” as a business trade name. The phrase has its own distinctiveness and had acquired secondary meaning by its use in the Shreveport/Bossier market. LA Countertops was shown to have employed the phrase “Louisiana Granite” at times in conducting its business, and the above jurisprudence supports the affirmance of the trial court’s injunction against the defendant concerning the use of that phrase.

|14A closer issue is presented regarding the defendant’s use of the key phrase, “LA Granite,” as its trade name. First, the established use of “Louisiana Granite” by LGY involves a name identifying a “granite” business (a generic concept) with “Louisiana,” a formal descriptive name, geographically identifying the business as located in our state. As stated above, there is a distinctiveness in the combination of those words as “Louisiana Granite” and a clear secondary meaning for this phrase as a business trade name used by LGY since 2004. Although the defendant’s use of the capitalized letters “L” and “A” can be pronounced and communicated as “L” and “A,” the Louisiana customer might also easily interpret “LA Granite” as the same as “Louisiana Granite,” since “La.” is the abbreviation for our state name. Thus, there is some confusion in the words alone created by the defendant’s choice of the name “LA Granite.”

Secondly, LGY produced prima facie evidence of its prior trade name use of “LA Granite” and thus distinctiveness through secondary meaning which LGY had obtained in the marketplace prior to the formation of LA Countertops. The evidence reviewed above consisting of the name plate on the outside of LGYs place of business and the use of “LA Granite” in the business is admittedly not so overwhelming. However, this was evidence of a secondary meaning which was not clearly rebutted by defendant. The higher burden of proof for a permanent injunction might produce a different outcome. Yet, at the preliminary injunction stage, the confusion caused by the abbreviation of the state name and the direct employment of the trade name “LA Granite” by LGY in the marketplace prior to LA Countertops’ | ^formation, provided the trial court with sufficient evidence for the grant of injunc-tive relief.

Finally, although the two formal corporate names are distinguished by the words “Countertops” and ‘Yard,” the primary name component of each business involves Louisiana Granite. The defendant’s infringement on LGY’s established use of its trade name for that key component may be presently enjoined during the pendency of this action.

II. Insufficiency of Bond

On appeal, Mark argues that the $20,000 preliminary injunction bond set by the trial court in accordance with La. C.C.P. art. 3610 should be increased to not less than $80,000. In oral reasons for judgment, after granting the preliminary injunction in favor of LGY, the trial court set the bond at $20,000. No oral objection to the amount was made by counsel at that time. A written judgment memorializing the ruling followed on November 3, 2009. Without any further objection by Mark, LGY obtained an order from the court for the placement of the cash bond into the registry of the court.

It is well established that the amount of the preliminary injunction bond addresses itself to the discretion of the trial court. Hall v. Fertility Institute of New Orleans, 94-1135 (La.App. 4th Cir.12/15/94), 647 So.2d 1348. Moreover, La. C.C. P. art. 5123 requires any person in interest | ^wishing to test the sufficiency of a bond furnished as security in a judicial proceeding to rule the party furnishing the bond into the trial court in which the proceeding was brought to show cause why the bond should not be deemed insufficient. Because no such rule to show cause is evident from the record before us, Mark is precluded from now raising the issue of the sufficiency of the bond on appeal. Hall v. Fertility Institute of New Orleans, supra.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and PEATROSS, JJ.

Rehearing denied.

      . In November of 2008, the name of the corporation was changed to Louisiana, Granite Yard, Inc.

      . The L and A are intended to be pronounced separately.

      . It has been held that the determination by the Secretary of State that the names of two corporations are not deceptively similar is not conclusive or binding on the court, but is persuasive and entitled to some weight. Couhig’s Pestaway Co. v. Pestaway, Inc., 278 So.2d 519 (La.App. 3d Cir.1973); but see, Glenn Morris and Wendell H. Holmes, Business Organizations, 7 Louisiana Civil Law Treatise, § 8.05 (2009), suggesting that no weight be given at all to such acceptance on the question of likelihood of confusion in the relevant marketplace.

      . La. R.S. 51:222 provides that any person who shall use without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered with the Secretary of State in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source or origin of such goods or services may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use display or sale as may be by the said court deemed just and reasonable. (Emphasis added).

      . La. C.C.P. art. 3610 provides that a preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security indemnifies the person wrongfully restrained or enjoined for costs and damages.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Brian GARNER, Appellant.
    No. 45,474-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2010.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Laura Owen Wingate Fulco, Jacob P. Broussard, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   CARAWAY, J.

11 Brian Garner was charged and convicted after a jury trial of second degree murder, in violation of La. R.S. 14:30.1, and received a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served and 30 days of imprisonment in the parish prison in lieu of court costs. Garner appealed his conviction and sentence. For the following reasons, we affirm his conviction and amend his sentence.

Facts

At approximately 11:00 p.m. on October 29, 2006, police responded to the scene of a shooting at 1815 Hickory Street in Shreveport, Louisiana, and discovered that the victim, Jacqueline Chatman, had been shot three times. Chatman later died as a result of her injuries.

Chatman had met Zosia Myles in 2005, while the two were incarcerated at Caddo Correctional Center. Chatman and Myles became friends in jail and continued their friendship when both were released. Myles was incarcerated for shooting her on-again, off-again boyfriend, the defendant, Brian Garner.

Approximately three weeks before Chat-man’s murder, Myles agreed to purchase Chatman’s 1999 Ford Explorer for $500.00. A short time after the sale, Chat-man and her boyfriend flagged down Myles to ask her for a bride to a hotel. Myles agreed, on the condition that she drop her children and niece off at school beforehand. When Myles went into the school to drop off her niece, Chatman and her boyfriend drove off with Myles’s vehicle. Myles later went with her uncle to the home of Chatman’s sister, Lashunda Bright, to complain to her about the theft. Myles claimed to have been upset because she had left several personal documents (including birth certificates and social security cards), her purse, cell phone and $2,000.00 cash in the Ford Explorer.

Myles informed Garner of the theft while he was in Dallas, Texas. Garner returned to Shreveport approximately one week later, and he and Myles resumed their relationship.

On the night of Chatman’s murder, Myles and Garner were driving around in Garner’s sister’s car and stopped to get gas at a Chevron station in Shreveport. While Garner was pumping gas, Myles recognized what she believed to be her stolen vehicle at the station. Two men were sitting in the Ford vehicle at the time, and Myles approached them and asked where they had gotten the vehicle. The men told Myles that they had rented it from a “crackhead.” Myles searched the glove box and found documents confirming that it was the same vehicle she had bought from Chatman. Myles informed Garner of her discovery. Garner then went over to the truck, pulled out a gun and sat in the back seat of the Explorer behind the two men. He told Myles to follow them in his sister’s car. Myles followed the men to Hickory Street.

| ¡¡Once at their destination, Myles, who believed she recognized Chatman standing in the front yard, called out her name. When her identity was confirmed, Myles approached Chatman and a physical altercation between the two ensued. Chatman fell to the ground as a result of the fight and Myles turned to walk away. As she did, she told Garner either to “shoot the bitch,” or “kill the bitch” (she could not recall which verb she used). Immediately thereafter a gun discharged and after a slight pause several more shots were heard. Garner then told Myles to get her truck and the two fled the scene to Garner’s aunt’s home. Both Garner and Myles changed clothes and Garner left the residence. As police processed the murder scene, they received a phone call about a Ford Explorer found burning. Police ultimately identified the vehicle as the one involved in the crime. Police also discovered six spent 9 mm shell casings at the crime scene.

When making death notifications to Chatman’s family, police were informed of Myles’s anger at Chatman for stealing her vehicle. When witnesses to the crime identified Myles from a photographic lineup, police arrested Myles on November 6, 2006, for second degree murder. Upon Myles’s implication of Garner as Chat-man’s shooter, police arrested him in Dallas.

After a trial, an 11-1 jury convicted Chatman as charged. Post verdict motions for judgment of acquittal and for a new trial were filed by the defense and denied by the court on September 25, 2009. On September 25, 2009, Garner waived sentencing delays and was sentenced to the mandatory life sentence without benefit of probation, parole, or suspension of sentence, |4to run concurrently with any other sentence Garner was required to serve and 80 days of imprisonment in the parish prison in lieu of court costs. This appeal ensued.

Discussion

Garner argues that the state failed to prove beyond a reasonable doubt that he killed Chatman based upon the lack of physical evidence, including a murder weapon, and the lack of eyewitness testimony, other than Myles, identifying him as the shooter. Garner argues that Myles lacked credibility due to her involvement in the crime.

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an | ¡^alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999). The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The crime of second degree murder is set forth in relevant part in La. R.S. 14:30.1 as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.

Testifying for the state, Myles explained her relationship with Garner. The couple had three children together and had been in an intermittent relationship for the last 14 years. Garner’s threats of physical violence caused Myles to shoot him nine times in 2005. Myles met Chatman in 2005 while serving her sentence for the offense. Myles admitted her additional criminal history which dated to 1998, when she was charged with aggravated assault. In 2002, she pled guilty to misdemeanor theft.

Myles admitted that in the present case she was originally charged with second degree murder but that she pled guilty to conspiracy to commit second degree murder and agreed to testify truthfully regarding the murder of Chatman. After testifying, she would receive a sentence of credit for time served of 2 years and 10 months.

Myles testified about her purchase of the Ford Explorer from Chatman three weeks before the incident for $500, Chat-man’s subsequent theft of the truck, and her resentment toward Chatman following the theft. She also testified that she had resumed her relationship with Garner and told him about the theft.

|7On the evening of October 29, 2006, Myles explained how she saw the Ford Explorer at the Chevron station and confirmed it was the same one she had bought from Chatman. She testified that Garner became very upset at this discovery and pulled out a gun before jumping into the back seat of the truck: In response to Garner’s command, Myles followed the Ford Explorer to Hickory Street, where she recognized Chatman standing in the front yard. Myles then physically attacked Chatman, leaving her on the ground. Myles admitted to walking away and telling Garner to either “shoot the bitch,” or “kill the bitch.” Immediately after, she heard a gunshot, followed by a short pause and then several other gunshots.

Myles testified that although she did not actually see Garner shoot Chatman, she did not see anyone else at the crime scene with a gun. Garner told Myles to get the Explorer while he got into his sister’s vehicle and the two drove to Garner’s aunt’s house. The two changed clothes and Garner left without Myles. Myles noticed the next morning that the Ford Explorer was gone. She later learned that it had been burned.

Myles and Garner broke off their relationship a few days after the murder, and Myles was arrested on November 9, 2006. She agreed to make a statement to police and was not promised any leniency or special treatment in exchange for it. Myles testified that the statement she gave to police on November 9 regarding the murder was the same as her previous trial testimony, with two exceptions. First, at the police station she had not told the police that she told Garner to either “shoot the bitch,” or “kill the bitch.” |s Second, there was some confusion when she talked to police about whether or not her children were present during the murder.

In her testimony, Myles admitted certain contradictory accounts of the crime she had previously given. Myles signed an affidavit for police swearing that Garner had not participated in the murder. She also stated in that affidavit that Chatman’s death was her fault because she felt that her instruction to Garner to shoot Chat-man caused him to commit the murder. The prosecutor also presented Myles with letters she had sent Garner while both were incarcerated for the murder of Chat-man. In one letter, Myles told Garner she had never told the police he had shot Chatman. Myles explained at trial that in many of her letters she told Garner that she would make the district attorney believe she would testify against Garner, but at the last minute would refuse. She also promised Garner that she would try to talk to his attorney and come up with an alibi for him.

The prosecutor showed Myles several letters that were sent to her by Garner while they were in jail. In one of the letters, Garner explained to Myles that he wanted her to act as if she would testify against him, but “tell their story” to the jury at trial. He also instructed her in a letter to tell the judge and jury that she was coerced into making the statement that implicated Garner as the shooter. Finally, in the last letter presented by the prosecution, Garner threatened Myles, inferring he would get her into trouble because she told him to “kill the bitch,” or “shoot the bitch.” ■

On defense cross-examination, Myles explained that she refused to testify against Garner the first two times she was asked, but eventually told | nher attorney that she would testify if she were able to go home to be with her children. Eventually, on August 31, 2009, Myles met with her attorney and agreed to the plea bargain.

The defense then presented Myles with several of the letters she had written Garner while in jail. In some of the letters Myles lied to Garner about being threatened by the district attorney and also about refusing to testify against him. In other letters she told Garner that the murder was her fault and that she would do whatever she had to in order to get Garner out of jail. She wrote Garner that Lash-unda Bright, Chatman’s sister, was in jail with her and that she was going to try to beat her up for telling police about Myles’s involvement in Chatman’s murder. In various other letters she wrote Garner, she stated that she knew he was innocent and that she would take responsibility for her actions.

Victor W. Fearance testified for the state and admitted to a criminal history. Fearance testified that he went to 1815 Hickory Street on October 29, 2006, and that Chatman was at the house. His friend, Ronald Johnson (also known as “Goosey”), was waiting to get a truck from Chatman in exchange for cocaine. Fearance and Goosey then went to get gas for the Explorer at the Chevron station.

Fearance testified that at the gas station a vehicle drove up and a man asked who owned the truck the men were driving. Fearance also stated that a female got out of the car and came over to the Explorer to look through the glove box. Fearance saw the man pull out a gun and then get into the vehicle with Fearance and Goosey. Fearance testified that the man wanted |10his car back, but that he and Goosey pleaded for a ride back to their car. He stated that when they got back to Hickory Street, he immediately went to get his car to leave. Fearance testified that as he was trying to get into his car he heard female voices and then one of the women said something like, “shoot her.” He then heard gunshots. Fearance and Goosey immediately left with another female. Fearance testified that he did not actually see the shooting.

On cross-examination, Fearance admitted he had been drinking and smoking marijuana on the day of Chatman’s murder and that he had been awake for two and a half days at the time. Fearance also stated that the man with the gun never threatened to kill either him or Goosey. Fearance could not identify in a lineup the man or woman who approached him at the Chevron station. He stated that when he got to the address on Hickory his only concern was leaving, but he did notice a lot of people on the porch. He further admitted that he did not know who said “shoot the bitch,” or who actually shot Chatman.

Lashunda Bright, Chatman’s sister, testified that she knew the Ford Explorer Chatman had in her possession was a stolen vehicle and that Chatman had the vehicle about a month before her death. She also testified that Chatman sold the vehicle to Myles who possessed it about a week before Chatman took it back. Bright testified that on the day Chatman stole the truck from Myles, Myles stopped by her house very upset. When Myles returned to Bright’s apartment with family members, Bright called the police. A little while after the police arrived Myles and her family left.

|nOn cross-examination, Bright said Myles was “real aggressive” and kept cursing at her when she came to her apartment after Chatman stole the vehicle. She testified that Myles repeatedly said she was “going to get Jackie.” Bright testified that when she heard of her sister’s murder she told police that she believed Myles would have had a motive to kill her sister, although she had no firsthand knowledge of who killed Chatman.

Daniel Davis, Jr. was the owner of the residence at 1815 Hickory Street. Davis was at his house at the time of Chatman’s murder and testified that he knew her. He testified that Chatman showed up at his residence with the Ford Explorer and that she and another young man talked for a while before the man left with the keys to Chatman’s vehicle. The young man also called a friend who arrived later, and the two left in the Ford Explorer. Davis testified he saw Chatman with cocaine after she gave the young man the key to the. truck. He understood the transaction to be a “rent-a-rock,” the renting of a vehicle for a rock of cocaine.

Davis testified that later after the two men left in Chatman’s truck he heard arguing and fighting outside. Davis started to go outside to break up the fight, but heard two gunshots. He then quickly closed the door and dropped to the floor. Davis and two friends who were with him did not look out the window to try to see what was going on, but heard voices. Davis testified that he heard two shots and then heard Chatman say “you all ain’t got to do it like this” or something to that effect. He then heard another shot. Davis explained that from the time he first heard the arguing to the time he heard gunshots, approximately 20 to 80 seconds had elapsed. After 112the shooting stopped, Davis turned his porch light on to try to disperse the crowd. The Ford Explorer was gone and everyone else scattered.

Detective Rod Johnson, a violent crimes investigator with the Shreveport Police Department, investigated the murder of Chatman. On cross-examination, Detective Johnson admitted that, except for Myles, none of the other eyewitnesses identified Garner as the shooter. Detective Johnson additionally testified, however, that Myles’s version of the facts matched Fearance’s, a factor which he found important. In fact, Detective Johnson explained further that Myles’s statement was similar to those of all of the other witnesses he had interviewed.

After the state rested, the defense called three witnesses. Angela Grant, Brian Garner’s older sister, testified that she thought Myles was obsessed with her brother. Deputy Gloria Evans of the Cad-do Parish Sheriffs Office testified that it is her duty to handle the mail at the Caddo Correctional Facility. She was unaware whether Garner and Myles had permission to write each other when they were incarcerated, although she knew that Myles was subjected to disciplinary action for writing letters to Garner using another inmate’s mail identification. Captain Rick Farris, the captain of security at Caddo Correctional Facility, testified that he received correspondence from Garner wherein he complained about having letters taken from him during a “shakedown.” Captain Farris attempted to find the letters that were taken from Garner, but was unable to do so. Captain Farris testified that Garner and Myles were not supposed to be communicating.

11sWhen viewed in the light most favorable to the state, we find this evidence sufficient to convict Garner of the second degree murder of Chatman. Both Myles and Fearance testified that Garner possessed a gun when he entered the Explorer and traveled to Davis’s house where Chatman was located. Three individuals testified who were present at the shooting. Although Fearance and Davis could not identify the shooter, both recalled hearing women fighting and gunshots thereafter. Fearance recalled hearing a woman yelling “shoot her” right before shots rang out. The two men’s testimony corroborates Myles’s account that she told Garner, either to “shoot the bitch,” or “kill the bitch,” and immediately following her command Chatman was shot several times. Myles further testified that Garner was the only person with a gun when Chatman was shot.

If believed, Myles’s testimony is sufficient to support the conviction even in the absence of physical evidence. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, supra. Despite some inconsistencies in Myles’s pretrial statements, Fearance’s and Davis’ similar accounts of the events which surrounded the shooting corroborate Myles’s version of the events. That testimony is sufficient to establish that after an altercation between Chatman and Myles, it was Garner who shot the victim three times. Moreover, Garner’s forcibly taking back the vehicle from Fearance and confronting Chat-man with Myles clearly establishes his participation in the assault that resulted in the victim’s death.

The jury was presented with Myles’s explanations of why she changed stories and her ultimate testimony that Garner was the shooter. |14 Great discretion is afforded to the jury in its assessment of Myles’s credibility and an appellate court is not in a position to assess that credibility determination or to reweigh the evidence. From the evidence before it, the jury could have reasonably found Garner guilty of second degree murder to the exclusion of every other hypothesis of innocence beyond a reasonable doubt. This assignment has no merit.

In his second assignment of error, Garner argues that the trial court’s use of a jury instruction on flight was in error because there was no evidence that he fled Louisiana in order to avoid apprehension. He further alleges that the instruction defining flight as “consciousness of guilt” was in error because the trial court does not have the requisite authority to comment on the evidence or instruct the jury as to what they must infer from the evidence.

The trial court gave the following jury instruction regarding the flight of the defendant:

If you find that the defendant fled immediately after a crime was committed or after the defendant was accused of a crime, the flight alone is not sufficient to prove that the defendant is guilty; however, flight may be considered along with all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.

Garner objected to the instruction on the grounds that there was no evidence of flight elicited at trial. The court overruled the objection on the grounds of the testimony that Garner fled the scene of the crime and was ultimately arrested in Dallas.

Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, 36,842 (La.App.2d Cir.04/09/03), 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131. La. C. Cr. P. art. 802 provides:

The court shall charge the jury:
(1) As to the law applicable to the case;
(2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
(3)That the jury alone shall determine the weight and credibility of the evidence.

A requested special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La. C. Cr. P. art. 807; State v. McDuffey, 42,167 (La.App.2d Cir.6/20/07), 960 So.2d 1175, writ denied, 07-1537 (La.1/11/08), 972 So.2d 1163; State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

In the instant case, the record provides support for the trial court’s granting of the state’s request for the special jury instruction regarding flight. There was testimony during trial that the defendant fled the scene of the crime immediately following the shooting. He fled to another house where he changed clothes and then left again. A short time after the murder Garner left Shreveport and went to Dallas.

Moreover, the present instruction is broad. The court reminded the jurors of their duty to review all of the evidence presented and to draw from it whatever inference they thought proper. Thus, the jurors were not forced 11ñto choose between two inferences but were instructed either to consider that the evidence introduced was probative of the defendant’s guilt or that it was not. See, State v. McIntyre 381 So.2d 408 (La.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980). The court’s jury charge did not require qualification, limitation or explanation, and was wholly correct and pertinent. Thus, the instruction was properly given.

In his third assignment of error, Garner claims that the trial court erred in granting the state’s motion in limine regarding Chatman’s naming of “Eric” to a Shreveport Fire Department employee while en route to the hospital, where she later passed away. Garner argues that Chat-man’s statement to the Shreveport Fire Department employee, and later relayed to Detective Ronald Johnson during his investigation, was a dying declaration, and therefore not hearsay.

In regard to its witness, Detective Rod Johnson, the state argued in a motion in limine that a statement from Jacqueline Chatman regarding a person named “Eric” as she was being transported to the hospital should be ruled inadmissible. The prosecutor acknowledged the fact that the statement was made before Chatman’s death and, therefore, may have been a dying declaration. The state contended, however, that because it was not actually made in Detective Johnson’s presence, but was heard by someone working for the Shreveport Fire Department, the statement should still be considered inadmissible hearsay. Defense counsel argued that the statement was admissible since it was made to another “law-enforcement-type person” and was discovered during Detective Johnson’s investigation.

|17The trial court granted the motion in limine, reasoning -that it was unclear whether the statement was a dying declaration. There was no explanation why Chatman had said the name “Eric”— whether it was in response to a question or whether “Eric” was a friend or family member. Additionally, the court held that even if the statement was a dying declaration, the proper person to testify as to the statement would be the fireman who actually heard Chatman say the name.

La. C.E. art. 804(B)(2) provides an exception to the hearsay rule, when the de-clarant is unavailable, for a dying declaration, which is defined as “[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” State v. Griffin, 01-0579 (La.3/7/01), 783 So.2d 1241, 1241-42.

No factual basis exists to conclude that the statement made by Chatman on her way to the hospital was a dying declaration as defined in La. C.E. art. 804(B)(2). While it is reasonable to conclude that Chatman was under the belief that her death was imminent (she died later that evening), there exists no basis to determine whether her statement regarding a person named “Eric” concerned the cause of her fatal injuries. Because a person named “Eric” is not identified in relation to the crime scene, Chatman’s mention of that name has no relevance to the cause of her death. This assignment therefore has no merit.

In his final assignment of error Garner claims that his sentence is excessive as it is grossly disproportionate to the crime committed;^ He claims that nothing in the record indicates that the imposed sentence (life imprisonment without the benefit of probation, parole or suspension of sentence) is necessary to avoid further criminal conduct by the defendant.

La. R.S. 14:30.1(B) provides:

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

On September 25, 2009, the trial court imposed the sentence required by La. R.S. 14:30.1(B), sentencing the defendant, Brian Garner, to life imprisonment without the benefit of probation, parole or suspension of sentence, to run concurrently with any other sentence he was required to serve and with credit for time served. He was further sentenced to 30 days in the parish jail in lieu of court costs, concurrently, with credit for time served.

Because Garner failed to file a motion to reconsider sentence, his sentencing claims on appeal are limited to constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

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 infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

In addressing the mandatory sentence imposed by La. R.S. 14:30.1, this court has held that it is the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies, and the | ^courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503. So, the decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. Id. The claim that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Thompson, 27,512 (La.App.2d Cir.12/6/95), 665 So.2d 643, writ denied, 96-0232 (La.4/26/96), 672 So.2d 679. To rebut the presumption that the mandatory minimum sentence of La. R.S. 14:30.1 is constitutional, Garner must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Gill, 40,915 (La.App.2d Cir.5/17/06), 931 So.2d 409, writ denied, 06-1746 (La.1/26/07), 948 So.2d 165.

Here, the jury found that Garner shot Chatman at the direction of his girlfriend after the two women squabbled over a vehicle. Thus, without provocation, he shot an unarmed victim three times. Garner’s impetuous actions demonstrate a callous disregard for human life. In these circumstances, Garner has failed to show clearly and convincingly that the imposed sentence is not meaningfully tailored to his culpability. Thus, assignment therefore has no merit.

12nError Patent

On error patent review, we find that the trial court erred in ordering Garner to serve 30 days in default of payment of court costs. An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs, or restitution. State v. Green, 41,977 (La.App. 2 Cir. 5/16/07), 957 So.2d 891, State v. Mack, 30,832 (La.App.2d Cir.6/24/98), 715 So.2d 126; State v. Hughes, 587 So.2d 31 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1197 (La.1992). Indigence may be discerned from the record. State v. Green, supra; State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992), writ denied, 610 So.2d 797 (La.1993). Because Garner was appointed counsel at trial and is represented on appeal by the Louisiana Appellate Project, we may conclude that he was and is indigent. Considering the defendant’s indigency, we find that the sentence in lieu of payment of court costs was illegal, and we amend the sentence to delete that portion providing for the additional 30 days in default of court costs.

Conclusion

Garner’s conviction is affirmed. His sentence is amended to delete default time, and as amended, is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED.

      . At trial, Dr. Frank Peretti, a forensic pathologist, testified that Chatman died as a result of three gunshot wounds. She had one gunshot wound through her left hand, which reentered her right upper chest and went into her lung. The two other bullets, one going through her back, the other through her left side, involved damage to her left kidney, spleen, stomach and vena cava vein. Dr. Peretti testified that Chatman had cocaine, ecstacy, methamphetamine and tranquilizers in her system at the time of her death. She was under the influence of ecstacy and cocaine.

      . He testified consistently with the facts above regarding the identification of the burned Ford Explorer and the facts leading to his arrest of Myles.


author: DREW, J. CARAWAY, J.,

text:
    Kalencia YOUNG, et al., Plaintiff-Appellant v. ALLSTATE INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 45,512-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2010.
    The Law Office of Anthony J. Bruscato by Anthony J. Bruscato, for Appellant.
    Hudson, Potts & Bernstein, L.L.P. by Johnny R. Huckabay, II, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

liKalencia Young and Ashley Newsome sued Gerald Adams and his insurer, Allstate Insurance Company, after Adams allegedly ran a red light at the intersection of DeSiard and Renwick Streets in Monroe, Louisiana. The trial court found Adams to be more credible and rendered judgment in his favor, at the cost of Young and Newsome. Plaintiffs’ motions for new trial was granted.

At the new trial, all the previous testimony was included, plus some additional filings were made. Adams again testified.

The trial court again rendered judgment in favor of Adams. Young and Newsome have appealed. We affirm.

BACKGROUND

On October 18, 2007, Kalencia Young and her passenger, Ashley Newsome, were traveling on DeSiard Street toward its intersection with Renwick Street. During that time, Gerald Adams was driving on Renwick Street toward the same intersection. The cars collided at the intersection, with Adams’ pickup truck striking the passenger side of Young’s car.

Adams claimed that he had the green light; Young and Newsome claim they had the green light. The trial court believed Adams.

Officer Tobyn R. Berry testified, through his deposition, that he came to the scene immediately after the accident. He questioned both drivers and inspected the traffic light to determine that it was properly working. Berry also questioned two bystanders, Jimmie White and Linda Patton, as possible witnesses to the accident. Neither White nor Patton testified at the first trial, |?but White’s deposition was admitted into evidence at the second trial. White claimed that he saw Adams talking on his cell phone as Adams approached the intersection. White also alleged that the traffic light was red for Renwick Street, on which Adams was traveling.

Adams testified that he was not on his cell phone at the time of the accident and that his light was not red. Young and Newsome attempted to subpoena Patton, but were unable to serve her. After his very brief investigation, Officer Berry issued a ticket to Adams for running the red light.

Both plaintiffs were pregnant at the time. They were taken by ambulance to the St. Francis Emergency Room, where they were released the same day.

The trial court rendered judgment in favor of Adams, finding his testimony more credible than the entirety of the plaintiffs’ case. All claims against Adams and his insurer were dismissed.

Young and Newsome moved for a new trial, seeking the opportunity to subpoena the two witnesses. A new trial was granted.

Plaintiffs were able to serve Jimmie White, but not Linda Patton. White failed to appear in court, so Young offered his deposition into evidence. The trial court once again entered judgment in favor of Adams and dismissed all claims against Adams and his insurer. •

1 ^Assignment of Error Number One: Was the trial court clearly wrong in accepting Adams’ testimony over that of Young and Newsome?

Plaintiffs argue that the trial court’s ruling is manifestly erroneous on the evidence presented since it accepted the uncorroborated testimony of Adams and failed to give any weight to the corroborated testimony of Jimmie White and the plaintiffs.

Adams counters that plaintiffs contradicted each other as to the facts of the case. The two women had trouble remembering what happened, particularly what happened immediately before the crash.

Young could not remember what lane she was traveling in or if there were other vehicles around.

Newsome also testified that she did not know what lane they were in, nor could she recall any witnesses at the scene.

One plaintiff said they went through the intersection at 30-35 mph; the other plaintiff said they had stopped at that very red light, and proceeded [¿into the intersection when Adams ran into them. At least one plaintiff was very wrong in her recollection on this point.

Both Young and Newsome were absolutely positive that they had the green light. On this one point, they totally agreed.

The testimony of Young and Newsome is also supported by Officer Berry’s deposition as to their description of the accident. After questioning both White and Patton at the scene of the accident, Officer Berry concluded that Adams had run the red light and issued him a ticket. White and Patton saw the accident at different angles, and each of them claimed that Adams was the one who ran the red light. Since Patton could not be located, only White’s deposition was admitted into evidence. Plaintiffs argue that the only evidence favoring the defense is Adams’ own self-serving testimony, which is uncorroborated.

Adams’ testimony clearly recalled that Young’s vehicle was traveling in the left lane of DeSiard, with another vehicle in the right lane. He testified that the vehicle in the right lane stopped at the red light where Young failed to yield. Adams argues that his testimony should be found more credible, as it has not changed. Young and Newsome testified inconsistently with their own depositions.

DISCUSSION

A trier of fact’s decision to hold the testimony of one of two or more witnesses more credible does not constitute manifest error. Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the 1 ^appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trier of fact is in a better position to evaluate the credibility of witnesses and make factual determinations than is a reviewing court. Stobart v. State, 617 So.2d 880 (La.1993). Deference is given to the trier of fact’s findings when those findings are based on determinations regarding the credibility of witnesses; only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

Only the parties gave testimony in court. Everything else was depositions, photos, or other filings. The trial court was in a position to judge who was credible and who was incredible. Even though an appellate judge may have ruled differently at trial, there is no way to adjust a verdict on the appellate level without finding manifest error.

Though we are troubled by the evidence against Adams, we still are unable to substitute our judgment over the trial court, which had the opportunity to determine credibility, while we are constrained by reading the cold transcript.

We do not find that the trial court was clearly wrong. Accordingly, we affirm the judgment in favor of Gerald Adams and against the plaintiffs, against whom all costs of court shall be cast.

| (jSince we are affirming the judgment in favor of defendant, it will be unnecessary to review the assignment of error urged in relation to the damages sought by plaintiffs.

DECREE

At the cost of plaintiffs, the judgment of the trial court is AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|,I respectfully dissent.

While the majority cites the important description of the manifest error test and the trier of fact’s dominion over the credibility of witnesses from Rosell v. ESCO, 549 So.2d 840 (La.1989), it fails to quote from that case and review the important caveat to the deference owed the trial court, expressed as follows:

When documents or objective evidence so contradict the witness’s story ... that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Id. at 844-845.

The objective evidence was that which the officer obtained immediately at the accident scene from the two impartial eyewitnesses. One of those witnesses was able to testify, and the trial court accepted that testimony but rejected it out-of-hand unjustifiably along with the officer’s objective conclusion. I too would follow Rosell, but would find the trial court’s ruling clearly wrong.

      . Patton was never served and never testified.

      . Allegedly an eyewitness, Jimmie White, in his deposition observed the accident as follows:
      A: I was looking right at the driver. I could tell what he was doing and everything. I was looking at what he was doing and everything. He was on the cell phone when the accident occurred ... he was on his cell phone[.]
      Q: Did you see what color the light was before this accident happened?
      A: [T]he light was green coming from West Monroe going down DeSiard. It was red— it had turned red coming off of Renwick— Renwick Street.
      Q: So the man driving the truck ... had the red light?
      A: He had the red light. That's right. He was distracted by the phone I’m sure[.]

      A: If he hadn’t of [sic] been on the phone, he would have knowed [sic] it — If he hadn’t been on the phone, he would have seen the light red ... he was far enough to stop if he hadn't of [sic] been on that phone.

      A: She had the green light ... On DeSiard ... she had the green light.

      . Ponderantur testes, non numerantur.


author: Judge MICHAEL E. KIRBY.

text:
    STATE of Louisiana v. Roger RICHARDS.
    No. 2010-KA-0247.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
   | STATEMENT of case

Judge MICHAEL E. KIRBY.

Roger Richards was indicted for aggravated kidnapping, aggravated anal rape, aggravated rape by oral penetration, attempted aggravated vaginal rape, and armed robbery. He pled not guilty. Evidence was taken on defense motions to suppress evidence and statements and even though Mr. Richards was charged by grand jury indictment, he received a preliminary hearing. The trial court denied the defense motions and found probable cause. At trial, after voir dire, the State dismissed the attempted vaginal rape charge. The following day, the jury returned responsive verdicts of guilty of two counts of forcible rape, and one count of simple robbery. They acquitted Mr. Richards of aggravated kidnapping.

The court sentenced the defendant to fifteen years at hard labor on each count of forcible rape and to five years at hard labor for simple robbery. All sentences are to be served concurrently.

Mr. Richards’s motion for appeal was granted. In this court he argues that the trial court violated his constitutional right to confront his accuser when it permitted an investigator to testify that the victim had identified him a photographic lineup. Because we find the victim was present at the trial and |2subject to examination on the issue of the photographic identification we find no error in the court below and affirm his conviction and sentence.

STATEMENT OF FACT

The victim, K.P., was walking along Galvez Street near Music Street. A young man, later identified as the defendant, rode past her on a bicycle. Richards slowed the bicycle, came back around to the victim and asked whether they knew each other. K.P. told him no, but Richards got off the bicycle, came up to her, and said, “I do know you. I know you”. K.P. replied, “No. You don’t know me,” and walked off. Richards grabbed her arm, dragged her into the garage of an adjacent abandoned house and held her against the wall. As he was pulling her into the structure, K.P. dropped her purse, phone, and sunglasses.

While facing her, Richards tried to pull KP.’s pants down. She fought back and tried to get away, but he started hitting her in the face with his fist. Then he turned her around and penetrated her anally.

As K.P. began to pull up her pants up and walk away, Richard’s said, “No,” and he demanded that she suck his penis. K.P. resisted, but Richards pulled out a pocket knife, held it to her side, and forced his penis into her mouth. She vomited.

From a window inside the garage, Richards saw a police car traveling on Galvez. At the same time, K.P.’s phone started ringing. Richards grabbed the phone and left.

|3K.P. straightened her clothes, retrieved her purse, and went outside where the police saw her. She was crying and upset. She told the officers what happened and they took her to the hospital.

K.P. denied knowing Richards or giving him her phone number a month earlier. She was positive that she was not assaulted by her boyfriend. From the witness stand, K.P. identified Richards as her attacker.

Sergeant Arthur P. Stubbs, of the National Guard, testified that while on patrol on Music Street heading towards Galvez he saw a man come out from a house, get on a bicycle, and dart around the corner. The man was some seventy-five yards away, and Stubbs did not observe any of his physical characteristics.

Turning left onto Galvez Street, Stubbs spotted a young woman walking down the street. She was crying, her hair was messed up, and she had vomited on herself. Stubbs and his partner stopped to see what was wrong, and the woman told them that she had just been raped. Stubbs alerted the NOPD dispatcher that he had encountered a possible rape.

Detective Mathew Riles and Sergeant James Kelly, of the New Orleans Police Department Sex Crimes Unit, were assigned to investigate the case.

Detective Riles arrived on the scene shortly after the crime was reported. Riles observed tear stains on KP.’s face from where she had been crying. Her appearance was one of general disarray: She had dirt on her face and clothes, her hair was messed up, she had scratches on her arms, and she had vomit on her shirt.

Detective Riles identified some crime scene photographs depicting the location of the assault. He related that there was a small alcove on the lower right side of the abandoned house where one could not be seen from the street. Riles | ¿identified a photograph of the victim’s broken sunglasses that were recovered at the scene. Although the area was searched, no knife was recovered.

Detective Riles explained that Richards became a suspect after the investigation revealed that the victim’s phone was still being used. He and Sergeant Kelly obtained phone records to determine who was being called from KP.’s cell phone. Kelly and Riles visited these locations to try to identify who was using the phone. At one location Kelly was referred to Richards’s grandmother. Upon finding Richards’s grandmother, he learned the defendant’s identity and location.

Sergeant Kelly and two detectives proceeded to Richards’s house. He was seated on the sofa in the front room, and his mother pointed to him. At that moment, Richards got up and quickly moved his arms behind his back. Concerned by Richards’s movements, Kelly grabbed him, and noticed that the object behind his back was a cell phone. He recognized it as the same type as the victim’s phone. Kelly then dialed his own phone from the recovered phone and saw that it was the victim’s number.

The detectives advised Richards of his rights and transported him to the police station. There, he gave a statement saying that on the day of the rape he ran into a girl he previously knew who attacked him and dropped her phone. He explained that he picked up the phone and then rode away on his bicycle.

Detective Riles compiled a photographic lineup containing a picture of Roger Richards. He presented the lineup to K.P., and she pointed to Richards’s photograph and identified him as “probably the person” who raped her

Ms. Cora Jean Holland, a registered nurse and certified sexual assault examiner, was called by the State. Ms. Holland testified that she performed a |sphysical examination of K.P. where she discovered a small abrasion on K.P.’s forehead, and some point tenderness on her head. The examination revealed significant tears to K.P.’s anus. Holland explained that when there is anal penetration it is very common to have tears.

Kawonda Williams testified for the defense. She stated that on the day in question she was talking to Mr. Richards at the corner of Music and Tonti Street. Williams knows Richards because her stepfather is his uncle. She stated that Richards received a telephone call from K.P., whom she knows. K.P. was a block away at the time. Richards then went to see what she wanted. Ms. Williams stated that the two talked for a while and then walked away together. Ms. Williams related that later, Richards came back, but she did not speak with him.

Roger Richards testified in his own behalf. His testimony mirrored that of Ka-wonda Williams. He stated that when he came up to K.P. to see what she wanted, she began asking him why he had not called her. Richards believed that K.P. thought Kawonda Williams was his girlfriend. Richards stated that K.P. started pushing him, and that he pushed her back. She stumbled and dropped her phone, and he picked it up and walked away.

ERRORS PATENT

The defendant was sentenced to fifteen years at hard labor on each count of forcible rape. La.R.S.14:42.1 requires that at least two years of the sentence be served without benefit of probation, parole or suspension of sentence. This condition was not imposed by the trial court and thus constitutes an error patent.

However, La. R.S. 15:301.1(A) provides that where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence, whether or 16not actually imposed by the sentencing court. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. Hence, we need take no action to correct the trial court’s failure to specify that the first two years of defendant’s sentence must be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. State v. Comena, 2002-1562 (La.App. 4 Cir. 3/19/03), 843 So.2d 464.

ASSIGNMENT OF ERROR

Mr. Richards argues that he was deprived of his Sixth Amendment right to confrontation and that allowing Detective Riles’s photo line up testimony was a violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that testimonial hearsay statements by an unavailable witness may be admitted as evidence at a criminal trial only when the defendant has had a prior opportunity to cross-examine the declar-ant. While the essential holding of Crawford prohibits admission of statements made to police officers by an unavailable witness when 17the defendant did not have an opportunity to cross examine the witness, the Court also made clear that the Confrontation Clause has no place in circumstances where the declarant is present at trial to defend or explain his previous statement. The Court stated:

Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). It is therefore irrelevant that the reliability of some out-of-court statements “cannot be replicated, even if the declarant testifies to the same matters in court.” Post, [124 S.Ct.] at 1377 (quoting United States v. Inadi, 475 U.S. 387, 395, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Crawford, 541 U.S. at 59, n. 9, 124 S.Ct. 1354 (Emphasis added).

K.P. did not testify regarding her previous identification of the defendant. Although K.P. had already testified when Officer Riles testified regarding the identification, she was nevertheless still under subpoena and available to testify if defendant had exercised his right to examine her about the identification. Because K.P. was present at the trial, Mr. Richards cannot claim that his Sixth Amendment right to confront K.P. was violated.

We have considered whether Officer Riles’s testimony about the photo lineup was inadmissible hearsay, but, this argument also fails. Article 801(C) of the Louisiana Code of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in | ^evidence to prove the truth of the matter asserted.” Even so, La. C.E. art. 801(D)(1)(c) provides that a statement is not hearsay if it is “[o]ne of identification of a person made after perceiving the person” when the witness “testifies at the trial or hearing and is subject to cross-examination concerning the statement.” In State v. Stokes, 2001-2564 (La.9/20/02), 829 So.2d 1009, the Court explained that such a statement may be introduced as direct evidence, stating:

Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Johnson, 99-3462, pp. 2-3, 774 So.2d 79, 80-81. The federal rule is similar. See Fed.R.Evid. 801(d)(1)(C);

Id., 2001-2564, p. 1, 829 So.2d at 1010.

Accordingly, any argument that KP.’s identification statement was inadmissible hearsay is without merit. The statement was one of identification; K.P. testified at the trial, remained under subpoena following her testimony, and she was subject to cross examination, had the defendant so chosen. The assignment of error lacks merit.

CONCLUSION

For the reasons given above we affirm Mr. Richards’s conviction and sentences.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W)(l)(a), initials of the victim are used in order to protect her identity.

      . The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”. U.S. Const, amend. VI. There is no opportunity for confrontation when an assertion by one party is presented through the testimony of another party.

      . In State v. Kennedy, 2005-1981 (La.5/22/07), 957 So.2d 757, the Louisiana Supreme Court explained the significance of Crawford as follows:
      Traditionally, for purposes of the Confrontation Clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement fell under a "firmly rooted hearsay exception” or bore "particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). But the United States Supreme Court recently overruled Roberts insofar as it applies to out-of-court statements that are "testimonial” in nature. See, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1369-1374, 158 L.Ed.2d 177 (2004). The Crawford Court held that the "adequate indicia of reliability” standard set forth in Roberts is too amorphous to adequately prevent the admission of "core testimonial statements that the Confrontation Clause plainly meant to exclude." Crawford, supra. The Court held that testimonial hearsay statements may be admitted as evidence at a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Id.

      2005-1981, pp. 25-26, 957 So.2d at 775-776.

      . The prosecutor explained that she had not planned on introducing the photo lineup or raising the subject until the question of whether the victim had identified the deten-dant in a photographic lineup was raised by defense counsel during cross examination of Sergeant Kelly.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    GENERAL LONGSHORE WORKERS, INC. and Edward Comeaux, Jr. v. ILA LOCAL 3000 and James Campbell, ILA President.
    No. 2010-CA-0264.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 19, 2010.

      Gregory C. Bachaud, Stephen J. Horn-yak, Gretna, LA, for General Longshore Workers, Inc. and Edward Comeaux, Jr.
    E. Howell Crosby, Charles D. Marshall III, Chaffe McCall, LLP, New Orleans, LA, Louis L. Robein, Jr., Robert H. Ur-ann, Robein Urann Spencer Picard & Can-gemi, APLC, Metairie, LA, for ILA Local 8000 and James Campbell, ILA President.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, General Long-shore Workers, Inc. (hereinafter “GLW’), appeals the summary judgment dismissal of its claims against the defendants-appel-lees, ILA Local 3000 (hereinafter “Local 3000”).

We review summary judgments de novo. In this case the burden of proof at trial is not on the moving parties; rather it is on the plaintiffs. Therefore,

... according to La. C.C.P. 966(C)(2), the mover need not negate all essential elements of the adverse party’s claim, action, or defense, but rather need point out to the court that there is an absence of factual support of one or more elements of the claim. Once the movant negates such a necessary element(s) of the adverse party’s claim, the burden then shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Lozier v. Security Transfer and Inv. Corp., 96-2690 (La.App. 4 Cir. 4/30/97), 694 So.2d 497. The effect of the legislature’s 1996 amendment to La. C.C.P. art. 966 is that the non-moving party is not allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488.

Moody v. City of New Orleans, 99-0708 (La.App. 4 Cir. 9/13/00), 769 So.2d 670, 671.

LThe parties to this litigation contest the ownership of certain property on South Claiborne Avenue in the City of New Orleans. This action commenced with the filing by the plaintiff of a Petition for Declaratory Relief and for Possession of Property. The named plaintiffs were the GLW and Edward Comeaux, Jr. Mr. Co-meaux was described as a “past active member” of the GLW. Named as defendants were ILA 3000 and James Campbell, ILA President.

The petition alleges that:

On June 9, 1948 petitioners, DAVE A. DENNIS, individually and representing the GENERAL LONGSHORE WORKERS, INC. (GLW), purchased immovable property located in New Orleans, Louisiana, by act of sale before a Notary, James Wilkerson, III, in good faith, from Dr. Oliver B. Deichman. Please see Exhibit “A”, p. [sic] attached to this petition.

The defendants acknowledge the authenticity of this act of sale, but note that GLW is mentioned nowhere in the document as vendee of the contested property or in any other capacity. The vendee named in the Act was the:

“General Longshore Workers, International Longshoremen’s Association, Local Union No. 1419, an unincorporated association ... acting through its president, DAVE A. DENNIS, by virtue of a resolution of the general membership thereof adopted on the 28th day of February, 1948, a copy of which resolution is hereto annexed ...” [Emphasis added.]

The petition alleges that the resolution referred to above in the language quoted from the Act “was never confected and the copy of the resolution attached to the act of sale was missing the required signatures.” The petition goes on to allege that “absent the resolution,” GLW became the owner of the property [^because the funds used to purchase the property allegedly came from a check drawn on a GLW checking account. The petition further alleges that GLW was aware at the time (1948) of the problem with the resolution, and, therefore, when GLW went forward with the purchase of the property with its own funds, it was with the intention of purchasing it for GLW.

The act was signed by Dr. Oliver B. Deichmann, Dave A. Dennis in his capacity as president of “General Longshore Workers, International Longshoremen’s Association, Local No. 1419,” along with the signatures of two witnesses and the notary. The copy furnished by GLW shows that it was duly recorded in the conveyance records at C.O.B. 560, folio 92, on June 11, 1948.

It is undisputed that on March 19, 1980, the United States District Court for the Eastern District of Louisiana issued an Order, a copy of which was annexed to the plaintiffs’ petition, ordering the approval effective immediately of a plan of merger whereby Local 1419 merged with International Longshoremen’s Association, Local Union No. 1418 (hereinafter “Local 1418”). The merged organizations took on the name, ILA Local 3000 (hereinafter “Local 8000”). The court ordered merger specifically provided that Local 3000 would “assume the assets and liabilities of the two constituent Locals without any dissolution of those Locals.” Therefore, the ap-pellees contend that as a result of this merger, Local 3000 became the successor in interest to Local 1419’s title to the South Claiborne Avenue property.

The merger order referred to the assets of the two merged unions in globo rather than enumerating any of them specifically. Therefore, in order to [ memorialize on the public records the transfer of the South Claiborne Avenue property from Local 1419 to Local 3000, Local 3000 executed an “Act of Transfer and Conveyance of Property per Court Order” from itself as the successor in interest to the assets of Local 1419, to itself in the same capacity, in conformity with the 1980 court ordered merger which contains the following provision:

Where necessary legal steps will be taken to place the assets officially in the name of the Merged Local [3000].

The transfer to Local 3000 was duly recorded in the records of the Orleans Parish Register of Conveyances. The plaintiff annexed a copy of this act to its petition. While the plaintiff challenges its validity, it does not challenge its authenticity.

The defendants moved for summary judgment based on the face of same the documents annexed to the plaintiffs’ petition as well as certain other documents, chief among which was a copy of the resolution annexed to the 1948 act of sale.

The 1948 Act of Sale is in authentic form. Therefore, GLW may not contradict the declarations in the act with parol evidence, in the absence of fraud, error, counter-letter, or admission of facts to the contrary made by the parties thereto. Cosey v. Cosey, 376 So.2d 486, 488 (La.1979). It is well-established in Louisiana jurisprudence that parol evidence is inadmissible to show that the vendee was in reality someone other than the one named in the deed. Id.; Ceromi v. Harris, 187 La. 701, 706, 175 So. 462, 464 (1937). The Louisiana Supreme Court was emphatic on this point stating that it was “axiomatic.” Id. Moreover, it is a fundamental principle of Louisiana law that interests in immovable property must |sbe recorded to affect third persons. Cosey, supra, 376 So.2d at 487. Therefore, GLW is barred from arguing that it was the purchaser rather than Local 1419 as shown in the Act of Sale.

We find that the resolution is, in fact, a valid extract/copy that was properly executed by the recording secretary of Local 1419. The resolution bears a certification attesting to its authenticity bearing the original signature of the recording secretary. The plaintiffs do not challenge the authenticity of the secretary’s signature on the certification of the copy of the minutes, but they contend that his signature is not sufficient in the absence of the signatures of the original signatories to the resolution. As the resolution is a copy duly certified by the secretary of Local 1419, it does not bear the original signatures of the signatories thereto, but, as is entirely appropriate and valid, shows their names typed under the signature lines.

GLW contends that the extract authorizes negotiations but not actual purchase of the property. But the extract specifically says, “negotiate and buy this property...."

GLW contends that the execution of the Act of Sale by “Dave Dennis, President” was invalid because “no minutes [were] submitted to verify the extract ...” conferring upon him the authority to sign. However, the certified extract accompanying the act of sale states that the President has the authority to negotiate for and buy the property for a price not to exceed $90,000.00, which was sufficient authority to cover the $80,000.00 purchase price of the property.

The 1948 act of sale describes Local 1419 as an unincorporated association. GLW is a corporation.

LThe plaintiff further complains that the merger was never finalized, but offers no proof, or the possible existence of any proof of any kind to support this allegation. This mere conclusory allegation that “the confusing nature of the relationship between GLW, 1419 & 1418 was never clarified and resolved,” is insufficient to overcome the undisputed United States District Court Order of merger, which by its very terms states that the merger was “put into effect immediately....”

In opposition to the defendant’s motion for summary judgment, the plaintiff offered the affidavits of Duralph Hayes and Ray Worthy.

Mr. Hayes avers that he “was previously a member of General Longshore Worker’s, Inc.,” having worked both on the docks and in the administration. He said that it was his understanding that the GLW owned the building “because anyone that used the building had to pay us rent or get permission to use the building.” He further attested that:

Just because we were a chartered member of ILA with the number 1419 did not mean that they owned the property that we, the GLW, had purchased with our money that was gotten from dues paid by members of the GLW.

We will assume for purposes of argument that Mr. Hayes’ affidavit expresses the truth as he perceives it to be. However, it expresses nothing more than his conclusory opinion as to ownership, and does not show that at a trial on the merits that the plaintiffs could prove title to the property in the face of the following: (1) the 1948 act of sale in authentic form to which GLW was not a party; (2) the certified copy of the resolution annexed to the act of sale; (3) the United States District Court ordered merger between Locals 1418 and 1419 into |7Local 3000; and (4) the 2008 transfer of title from Local 3000 to itself. In other words, Mr. Hayes’ affidavit does nothing to discharge the plaintiffs burden of proof and fails to raise any genuine issue of material fact.

The affidavit of Mr. Ray Worthy describes him as having worked for many years as a member of GLW, worked as a longshoreman and “was very involved with the organization and functions of the organization.” He averred that:

I don’t think that the ILA 3000 had owned the building at Washington & Claiborne when they tore it down after Katrina.

This conclusory expression of opinion by Mr. Worthy as to ownership is not proof as to ownership in the face of the documented chain of title offered by the defendants. See discussion, supra.

Mr. Worthy’s affidavit concludes with the averment that:

The GLW owned the property and building and in 1957 had negotiate[d] with the architectural firm to build the building that has now been destroyed.

Once again, this conclusory allegation is not evidence of ownership in the face of the documents and public real estate records.

Exhibit 1 annexed to the plaintiffs opposition to the motion for summary judgment appears to be a page from a memorandum filed in the United States District Court merger case. Regardless, it indicates that the Claiborne Avenue property will serve as the headquarters for the “merged local,” a reference to the merger of Locals 1418 and 1419. No mention is made of GLW as owning the Claiborne Avenue property. Therefore, assuming this uncer-tified document could 18be offered as proof, it tends to prove the defendants’ case and not that of the plaintiff.

Exhibit 2 annexed to the plaintiffs opposition to the motion for summary judgment shows that in 2008 the Claiborne Avenue property was carried on the assessment rolls for Orleans Parish in the name of, “Gen Longshore Workers Assn.” We know of no authority whereby assessment rolls may supersede a United States District Court order and what is shown on the parish conveyance records. The assessment record is not a muniment of title under the public records doctrine of the State of Louisiana. It is not evidence of title in the face of the authentic transfers on the public record and court documents relied upon by the defendants. The assessment record creates no genuine issue of material fact. Additionally, the assessment record refers to an association, not a corporation.

Exhibit 3 annexed to the plaintiffs opposition to the motion for summary judgment is a copy of a contract recorded in the mortgage records of the Parish of Orleans concerning the construction of a headquarters building for “General Longshore Workers International Longshoremen’s Association, Local No. 1419.” There is no reference to the plaintiff, GLW, anywhere in the document. Nor is it in any way part of a chain of title to the property. If it has any bearing on the title at all, which we do not find that it does, its reference to “Local No. 1419” supports the defendant’s, Local 8000’s, claim to the property as the successor in interest to Local 1419 as designated by the United States District Court Order of Merger.

The defendants have shown that there is an absence of factual support of one or more elements of the claim. Therefore, as the plaintiff will bear the burden of proof at trial, the burden shifts to the plaintiff to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at 19trial. The mere conclusory allegations offered by the plaintiffs are insufficient to bear this burden. The plaintiff has failed to establish the existence of any genuine issues of material fact.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Mr. Comeaux was dismissed by judgment from these proceedings as a party plaintiff on an exception of no right of action.

      2. It appears that the plaintiffs are not alleging that Mr. Dennis is a party to this litigation; rather they are alleging that he appeared on behalf of the GLW in the 1948 act of sale in spite of the recitations in said act of sale that he was appearing as a representative of Local 1419 and GLW is mentioned nowhere in the act.

      . The merger was ordered by the court in order to eliminate certain racial disparities that existed between Local 1418 and Local 1419.

      . For an excellent discussion of this issue see Mitchell v. Clark, 431 So.2d 817 (La.App. 2 Cir.1983).

      5. Emphasis added.

      6. On numerous occasion, the plaintiffs lament the demolition of an allegedly historic building that once occupied the site in dispute, but the demolition forms no part of this appeal.