author: MOORE, J. SEXTON, J. (Ad Hoc),

text:
    Debra N. SHIPP, Plaintiff-Appellee v. Zachary T. CALLAHAN, Defendant-Appellant.
    No. 47,928-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Zachary T. Callahan, In Proper Person, Appellant.
    Debra N. Shipp, In Proper Person, Ap-pellee.
    Before WILLIAMS, MOORE and SEXTON (Ad Hoc), JJ.
   MOORE, J.

| T Zachary Callahan, appearing pro se, appeals an abuse prevention protective order obtained by his former girlfriend, Debra Shipp. We affirm.

Zachary and Debra started dating sometime in 2010, when he was 25 and she was 19. Debra admitted that before they got together, she had done drugs; however, she went through detox and Zachary conceded she was “clean” while they were a couple. In 2011, they moved into a trailer near Blanchard; Debra got pregnant. According to Debra’s mother, the couple argued a lot; she often saw bruises on her daughter. The relationship strained, and Debra left, staying sequestered from Zachary and his family for 2½ weeks. During this time, Zachary and his mother phoned Debra’s mother often; Zachary insisted he was concerned about the welfare of his unborn child, but Mrs. Shipp thought he was just jealous that she might be off with another man. When Debra returned to her mother’s house, Zachary called again, and according to Mrs. Shipp, he was “not very civil.”

On May 6, 2012, Zachary found a note or letter on the windshield of his car. Zachary testified that he knew it was from Debra, and he felt that its contents showed she was in danger of hurting herself or relapsing into drug use. This alarmed his whole family; with their encouragement, he decided to get a coroner’s commitment on Debra. ■ At trial, he denied actually signing the petition, but admitted that he authorized his mother to do so. Debra, however, denied ever putting any note on Zachary’s car. On May 6, she testified, she was at the Louisiana Boardwalk, applying for jobs, |2a point her mother corroborated.

Early on the morning of May 8, deputies knocked on the Shipps’ door and took Debra into custody for the commitment. She was taken to LSU-HSC for an evaluation. According to an emergency room report from Dr. James Patterson, Debra had an adjustment disorder, no suicidal or homicidal thoughts, and no drug use (only some iron supplements). With these findings, apparently, the coroner refused to commit Debra.

The next day, May 9, 2012, Debra filled out a petition for protection from abuse under the Domestic Abuse Assistance law, La. R.S. 46:2131-2148. The court signed an ex parte abuse prevention TRO prohibiting Zachary from abusing, harassing, stalking or threatening Debra; from contacting her in person or through third persons, or going within 500 yards of her person; and from going within 100 yards of her residence.

At the hearing on the rule, held May 30, 2012, the parties both appeared pro se. Debra, her mother and Zachary testified as outlined above. Debra offered in evidence a printout of Zachary’s Facebook wall, where he stated on May 2 that he might get Debra committed; his grandmother replied that Debra is “still playing her little games” and his cousin posted, “get dat bitch!” Debra admitted that the note on Zachary’s car was in fact in her handwriting, but it was a poem she had written many years earlier, when she was under the influence, and she denied putting it on Zachary’s car. She explained that Zachary still had many of her things in his possession, including the pink notebook from which that page had been taken. Finally, [¡¡she testified that while they were living together, Zachary had pushed her, hit her in the head, and grabbed and choked her.

Mrs. Shipp testified that she never actually saw Zachary strike Debra, but, “There’s been lots of bruises on my daughter,” which Debra finally admitted had been inflicted by Zachary. She felt that Zachary always “bullied” Debra, and she described several phone calls and personal visits from Zachary while Debra was away.

Zachary testified that he did not sign the coroner’s commitment, “and I didn’t have anything physically to do with that as well,” but then admitted that he encouraged or permitted his mother to do so. Also, he had thought about committing her for months because of her drug use, but he admitted she had been clean as long as he had known her. He reiterated that he was calling and visiting the Shipps only out of concern for his unborn child. Finally, Zachary offered into evidence four letters from friends of his, stating that they had never seen him strike Debra, but they had seen her cursing at and threatening him.

The court granted the abuse prevention protective order, noting that Zachary’s false allegations to get Debra committed amounted to pure harassment. The court also advised Zachary that if he is really concerned about the welfare of his unborn child, there are “proper channels” to seek visitation.

Zachary has appealed, pro se, identifying three issues and one assignment of error, “The trial court erred in issuing this protective order.” 14He argues that Debra failed to show that “domestic abuse of any kind occurred at any time,” and that mere verbal harassment does not constitute a valid reason for issuing a protective order. In support, he cites Culp v. Culp, 42,239 (La.App. 2 Cir. 8/9/07), 960 So.2d 1279, writ not cons., 2007-1836 (La.10/5/07), 964 So.2d 378.

Debra has not filed a brief.

The purpose of the Domestic Abuse Assistance law, La. R.S. 46:2131-2143, is to provide relief to victims of domestic violence by establishing a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Coy v. Coy, 46,655 (La.App. 2 Cir. 7/13/11), 69 So.3d 1270, and citations therein. Domestic abuse includes but is not limited to physical or sexual abuse or any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another. La. R.S. 46:2132(3). The court may grant any protective order to bring about a cessation of abuse of a party. La. R.S. 46:2136 A; Coy v. Coy, supra. Abuse protection protective orders are reviewed for abuse of discretion. Coy v. Coy, supra; Rouyea v. Rouyea, 2000-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558.

This court and others have held that the definition of domestic abuse in R.S. 46:2132(3) does not incorporate nonphysical acts. General harassment and family arguments, if they do not rise to the threshold of physical or sexual abuse, or an offense against the person, are not within the ambit of the Domestic Abuse Assistance law. Coy v. Coy, supra; Rouy-ea v. | (Rouyea, supra; Fontenot v. Newcomer, 2010-1530 (La.App. 3 Cir. 5/4/11), 63 So.3d 1149; Harper v. Harper, 537 So.2d 282 (La.App. 4 Cir.1988).

If the only evidence of domestic abuse in this case were Zachary’s act of filing a groundless coroner’s commitment against Debra, this would indeed be nonphysical harassment and insufficient to support the domestic abuse protective order. As in Coy and Culp, this court would be constrained to vacate the protective order.

However, on examination by the court, Debra described some instances of actual physical abuse:

The Court: Let me cut you off. You have in your petition allegations that he pushed you?
Miss Shipp: Yes, sir. I put that in the past incidents.
The Court: And the part about hitting you in the head and grabbing and choking you, that’s—
Miss Shipp: That’s all in the past when I was living with him, sir, yes, it is.

Notably, Zachary did not deny or contradict this testimony. Later, Mrs. Shipp corroborated Debra’s account:

The Court: You said you saw bruises, bruises on your daughter, when was the last time you saw some bruising on her?
The Witness: Probably a couple of months ago. There’s been lots of bruises on my daughter.
The Court: Do you know where those bruises came from?
The Witness: From him.
IrThe Court: How do you know that?
The Witness: Because she finally told me that he was hitting her. I questioned her about it and she was ashamed of it and didn’t want to come to us for help, and I told her she needed to get out of the situation.

Again, Zachary did not object to this testimony or contradict it when he took the stand. Instead, he equivocated about whether he or his mother signed the petition for a coroner’s commitment, admitted that he had no basis to allege that Debra might be lapsing into drug use, and asserted, “I left her because she was being violent with me.” From this record, the district judge did not abuse its discretion in finding that Zachary committed physical abuse or an offense against the person of Debra.

The abuse prevention protective order is supported by the evidence and complies with the Domestic Abuse Assistance law, La. R.S. 46:2135 A and 46:2136 A(l). The assigned error lacks merit.

The protective order is affirmed. All appellate costs are to be paid by Zachary Callahan, to the extent permitted by La. C.C.P. art. 5188.

AFFIRMED.

SEXTON, J. (Ad Hoc), dissents with reasons.

SEXTON, J. (Ad Hoc),

dissenting.

|TThe record clearly reflects, and Ms. Shipp testified, that the reason she sought the protective order was the effort to get her committed. Indeed that effort caused her significant inconvenience and was clearly manipulative.

However, the statutes at issue, La. R.S. 46:2135 and 46:2136, require that there be “good cause shown” for the issuance of a protective order. “Good cause shown” is defined in La. R.S. 46:2135 as a showing of “immediate and present danger of abuse.”

Domestic abuse is defined in La. R.S. 46:2132(3) as an offense against the person except negligence, injury or defamation. Offenses against the person are found in Part II of Title 14 beginning with 14:29, homicide, and concluding with 14:502.2, crimes of violence against 65-year-old victims.

I believe this record does not support that this petitioner was in immediate danger of physical or sexual abuse or an offense against the person as defined by Title 14. See Coy v. Coy, 46,655 (La.App. 2 Cir 7/13/11), 69 So.3d 1270; Culp v. Culp, 42,239 (La.App. 2 Cir. 6/20/07), 960 So.2d 1279.

I respectfully dissent.

      . The note was not offered in evidence..

      . The petition for a coroner’s commitment was not offered in evidence.

      .The records (if any) from the coroner’s proceedings were not offered in evidence.

      . Debra did not object to the letters as hearsay, but complained that one of them was "exaggerated.”

      . Such conduct might constitute the offense of filing or maintaining false public records, La. R.S. 14:133 A(3), but this is classed as an offense affecting organized government, not an offense against the person as required to activate R.S. 46:2132(3).


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Michael Wayne FOX, Plaintiff-Appellant v. Harriet Mae FOX, Nee Wadley, Defendant-Appellee.
    No. 47,937-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Rehearing Denied May 9, 2013.

      Stephen Donald Fox, for Appellants, I.C.C.D. Fox, L.L.C.; C.D. Fox, Individually and as Managing Partner of I.C.C.D. Fox, L.L.C.; Irmgard C. Fox; and Stephen D. Fox.
    Loomis & Dement, Monroe, LA, by Albert Edward Loomis, III, for Plaintiff-Appellee Michael Wayne Fox.
    Rankin, Yeldell, Katz & Lowery, (A Professional Law Corporation), by Stephen J. Katz, for Defendant-Appellee, Harriet Mae Fox, Nee Wadley.

      Before STEWART, DREW and MOORE, JJ.
   DREW, J.

liDr. and Mrs. Fox had an unhappy marriage. Dr. Fox (“Michael”) was caught concealing assets, i.e., trying to hide $47,000 cash -with his parents and their corporations. But for a random traffic stop in South Carolina, he would have probably succeeded in defrauding Mrs. Fox (“Harriet”). Michael’s sly plan boomeranged, as the cash was seized by a South Carolina state trooper. Michael admitted in correspondence, in so many words, that his plan was to defraud his ex-wife. Now her attorney wants to protect her interests, and for that he needs financial information. This discovery dispute was triggered by Michael’s clumsy attempt at swindling Harriet out of her rightful portion of community assets.

Harriet filed a notice of records deposition only to I.C.C.D. Fox, L.L.C., and C.D.I.C. Fox, L.L.C. Service was effectuated upon C.D. Fox, Michael’s father, the managing partner of the businesses. A subpoena duces tecum was also issued to Michael, through his attorney, requesting numerous bank records. Yet another subpoena duces tecum issued, directing the two companies to produce corporate and financial records and tax returns of the company.

|2On June 5, 2012, Harriet filed another notice of records deposition only to I.C.C.D. Fox, L.L.C., through its managing partner, C.D. Fox.

On June 13, 2012, the four third party interveners (I.C.C.D. Fox, L.L.C.; C.D.I.C. Fox, L.L.C.; C.D. Fox; and Irm-gard C. Fox, collectively referenced as the elder Foxes and the two Fox LLCs) filed a motion to quash the subpoena duces tecum and for a protective order. In addition the interveners sought sanctions against Harriet’s attorney, Stephen J. Katz, who they asserted had a direct financial interest in a favorable property division. Arguing that the subpoena was unreasonable, unduly burdensome, and expensive, the elder Foxes and the two Fox LLCs contended that Harriet was seeking to cause unnecessary delay and increase the cost of litigation by attacking Michael’s elderly parents and by pressuring Michael to settle. The elder Foxes and the two Fox LLCs urged that the scope of the subpoena was overbroad, vague, and a fishing expedition. The in-terveners prayed for sanctions against Harriet’s attorney, as well as attorney fees of $7,500, for the granting of their motion to quash and for a protective order.

Harriet filed exceptions to the intervention, maintaining:

• Insufficiency of service of process;

• Failure to obtain leave of court to file intervention received after the filing of the answer to the principal demand;

• Failure to comply with La. C.C.P. arts. 1032 and 863;

• C.D. and Irmgard Fox have no cause or right of action; and

• The two business entities have no cause or right of action.

13At the hearing, the trial court noted that Harriet was simply conducting discovery, triggered by Michael’s ill-fated South Carolina traffic stop and the substantial cash proceeds in his possession. The court also cited Michael’s letter seeking to retrieve the seized proceeds, wherein he stated that he was taking the $47,000 “to his parents to hold for me should my marriage dissolve.” Michael also stated in his letter: “My covert intentions have been exposed to my wife. What damage is done and I have nothing to lose but time.” His letter was a smoking gun that reasonably prompted Harriet to exercise extreme diligence concerning concealment of assets.

Because Harriet was not seeking to seize property rightfully owned by any of the interveners, the trial court found that there was no need for an intervention, at least at this stage of the litigation. Specifically, the trial court ruled that neither the elder Foxes nor the two Fox LLCs had causes or rights of action in this dispute.

The trial court observed that Harriet had the right to her fair share of the community and she and her attorney have a right to find out what constituted the community, where the property is located, and how they might gain access to it.

The attorney for the elder Foxes and the two Fox LLCs argue that Harriet’s subpoena was like a judgment debtor examination in scope. Amazingly, they urge in brief that Harriet had absolutely no evidence that |4either the elder Foxes or the two Fox LLCs were concealing community property.

The trial court:

• denied relief to the elder Foxes and the Fox LLCs;

• granted Harriet’s motion to compel;

• awarded a $1,000 attorney fee for her pursuit of the motion; and

• ordered that the documents be provided before a coming deposition.

To this ruling, the attorney for the elder Foxes and the two Fox LLCs noted an intent to seek supervisory writs, seeking a stay. Since the deposition was to be held in just a few days, the trial court denied a stay.

Two judgments were signed on August 6, 2012.

The first judgment denied the third party interveners’ requests to quash the subpoena, to be granted a protective order and to sanction Harriet’s lawyer. The judgment also granted Harriet’s motion to compel discovery against I.C.C.D. Fox L.L.C., ordering the corporation to produce all requested documents.

The second judgment denied the third party interveners’ request to intervene as neither of the elder Foxes nor the two Fox LLCs had causes or rights of action. That judgment was declared final and immediately appealable by the trial court.

The two Fox LLCs and the elder Foxes filed a petition for suspensive appeal of both judgments. On August 21, 2012, this court issued an order directing the trial court to submit a per curiam informing the court (1) whether the applicants were part of the litigation, (2) whether the order of | ¿August 15, 2012, granted a suspensive appeal or a supervisory writ, and (3) the reasons for its ruling. The litigation was stayed in the trial court pending receipt of the requested information. The trial court’s per curiam is clear. It references the $47,000 cash and the letter as well as a $75,000 check written by Michael in favor of his father as managing partner of I.C.C.D. Fox, LLC, a limited liability corporation engaged in acquiring, managing, and selling real estate. Shortly after this check was received, the corporation in fact purchased some real estate.

The trial court denied their request for sanctions against Harriet’s attorney, finding her discovery requests to be within the scope of La. C.C.P. art. 1422. Subject to deadlines, the trial court granted Harriet’s motion to compel discovery against I.C.C.D. Fox, L.L.C. Additionally, the trial judge ordered I.C.C.D. Fox, L.L.C., or Stephen Fox to pay attorney fees of $1,000 to Harriet’s attorney for having to pursue the motion to compel.

Specifically, the trial court stated that the elder Foxes and the two Fox LLCs are not parties to this litigation. Moreover, the trial court ruled that, since this dispute was related to discovery, it was not a final judgment and was subject to review by supervisory writ. Though a close question, a writ panel of this court found that the contested judgment could be appealed, granting the writ of the elder Foxes and the two Fox LLCs. On September 13, 2012, the panel granted a suspensive appeal and remanded the matter for perfection of the appeal.

Arguments of the Elder Foxes and the Two Fox LLCs, Appellants

The elder Foxes and the two Fox LLCs complain that the trial court:

!,;• erred in failing to quash the June subpoena duces tecum in which Harriet sought to obtain records from a nonparty with service of the subpoena without service of a subpoena to compel the nonparty’s attendance for deposition, arguing that neither C.D. Fox nor the company had any obligation to appear at a certain time and date;

• erred in requiring a nonparty to appear in a parish (Morehouse) other than his domicile (Ouachita) without fixing a convenient place to take the deposition; and

• erred in not granting a protective order to limit the scope of the subpoena duces tecum.

The elder Foxes and the two Fox companies also request attorney fees and permission to intervene in the pending property partition.

Arguments of Mrs. Harriet W. Fox, Ap-pellee

Harriet asserts that the trial court correctly resolved the dispute. Since any deficiencies in service and any complaints about the location of the deposition were not raised in the trial court by the elder Foxes and the two Fox LLCs, Harriet urges that those matters are not now properly before this court. We agree.

As to the merits of the asserted deficiencies in service, Harriet notes that the subpoena duces tecum was personally and properly served on C.D. Fox as managing partner of I.C.C.D. Fox, L.L.C. She argues that no appearance would have been necessary had the company timely produced the records sought.

Concerning the objections to the scope of the discovery sought by her, Harriet correctly asserts that a party may obtain discovery on any nonprivileged matter that is relevant to the dispute being litigated as long as it reasonably appears that the information sought could lead to the discovery of admissible evidence. Louisiana jurisprudence requires that discovery |7statutes be liberally and broadly construed. Harriet references in support of her position the following:

• the $47,000 in cash;

• Michael’s letter in which he admits his nefarious game plan;

• the $75,000 check to the family corporation; and

• the corporate purchase of land immediately after the $75,000 infusion.

Harriet’s argument is compelling. The trial court correctly perceived that Michael was seeking to sandbag her as to the location and value of community proceeds. Michael has simply outsmarted himself.

The rulings of the trial court were well within its discretion. We affirm in all respects, at the cost of the appellant.

DECREE

The rulings of the trial court are AFFIRMED at the cost of Michael Wayne Fox.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, DREW, MOORE and GARRETT, JJ.

Rehearing denied.

      . A judgment of divorce was rendered on April 19, 2012, leaving open issues concerning spousal support and partition of the community property. There are no minor children. Harriet has requested periodic spousal support, including health and related insurance. She alleges that she is in need and that Michael is a dentist with much income. She also wants her rightful share of the community, and desires that her ex-husband be assessed attorney fees and court costs.

      . The trooper incorrectly suspected that the proceeds might have been drug-related.

      . Perhaps facetiously, Michael’s counsel urged at oral argument that his client claimed a Fifth Amendment privilege regarding this letter. That constitutional provision, of course, applies only to criminal cases in which involuntary and incriminating statements are generated pursuant to custodial interrogations taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Fifth Amendment is not remotely pertinent to the instant civil litigation.

      .The trial court’s per curiam notes that the attorney for the third party interveners is Stephen D. Fox, who is Michael’s brother. C.D. Fox is Michael’s father. Irmgard Fox is wife of C.D. Fox and is Michael's mother.

      . The trial court indicated that it could consider intervention at a later date, depending upon what transpires in this suit.

      . La. C.C.P. art. 1422 and Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125 (La.1983).

      . Interestingly, Michael was the registered agent for the corporations, though with no known ownership interest, raising the ques-

      . Harriet seeks the loan closing documents for the corporate real estate purchase.


text:
    Wayne STRINGFELLOW, Plaintiff-Appellant v. Lawrence Webster JOHNSON, M.D., and Willis-Knighton Medical Center, Defendant-Appellee.
    No. 47,942-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Law Offices of Richard Fewell, Jr. by Edward Dion Young, Law Offices of Jim Norris, West Monroe, LA, by William M. Norris, III, for Appellant, Wayne String-fellow.
    Pugh, Pugh & Pugh, L.L.P., Shreveport, LA, by Robert Gahagan Pugh, Jr., for Appellee, Lawrence Webster Johnson, M.D.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Craig James Sabottke, Peter T. Dazzio, for Appellee, Willis-Knighton Medical Center.
    Before CARAWAY, DREW and PITMAN, JJ.
   DREW, J.

bOn November 4, 2008, Wayne String-fellow, through retained counsel, filed a proper request for a medical review panel, contending that he was the victim of medical malpractice committed by Dr. Lawrence Johnson and Willis-Knighton Medical Center (“WKMC”).

On September 14, 2011, almost three years later, the panel rendered its conclusion that the applicable standard of care had not been violated. Shortly thereafter, plaintiffs lawyer terminated his-representation of the plaintiff.

On December 21, 2011, Stringfellow filed a pro se medical malpractice suit against these defendants, requesting service on each in the prayer of the petition, asking to proceed as a pauper, and adding service instructions.

On January 3, 2012, he was denied pauper status, without reasons.

On May 23, 2012, advance court costs were paid.

On June 1, 2012, putative service was made on Dr. Johnson through an employee at his office. Dr. Johnson responded by filing a declinatory exception of insufficiency of service, contending that the service was improper, and even if service was sufficient, it was untimely.

On June 13, 2012, WKMC was served.

On June 25, 2012, attorney Young formally enrolled for plaintiff.

On June 27, 2012, WKMC answered, alleging that it had not been served within 90 days of filing of the petition as required by La. C.C.P. art. 1201(C). WKMC did not seek a dismissal or other relief at that time.

li>On July 2, 2012, WKMC filed a motion for involuntary dismissal predicated upon plaintiffs failure to make a timely request for service.

On July 26, 2012, the trial court rendered judgment in favor of each defendant, dismissing the suit without prejudice. Plaintiff now appeals.

DISCUSSION

Pauper Status

Apparently pauper status was denied because of the lack of a third party affidavit of indigency. Stringfellow’s own affidavit revealed that he owned no movable or immovable property, had $4 in a checking account, received $1,113 per month, and had monthly expenses of $1,380. He clearly would have been able to establish his pauper status, had he provided the missing affidavit.

Plaintiff cites Tenney v. Burlington Northern & Santa Fe Ry. Co., 2003-1260 (La.1/21/04), 863 So.2d 626, where the supreme court held that when a pro se litigant’s request to proceed in forma pau-peris is denied, the court should:

• provide a reasonable period in which to cure the defect in the pauper application or to pay advance court fees; and

• state the consequences if the litigant failed to respond timely.

Defendants distinguish Tenney from the present facts, as that case dealt with La. R.S. 13:850 and the facsimile (“fax”) filing of a lawsuit. That court held that the requirement to pay filing and transmission fees within five days of the fax filing can be satisfied by filing a request for pauper lsstatus within five days, and that if the request was denied, then the trial court should issue an order granting a reasonable delay to pay the fax filing fee. Defendants argue that, in contrast, Stringfellow had 90 days to pay the filing fee, which should have been more than enough time in which to cure any defects.

Plaintiff also cites Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3d Cir.1975), where the Third Circuit concluded that a motion to proceed in forma pauperis that was missing a third party affidavit could be confirmed and/or ratified retroactively by the later filing of the missing affidavit.

Defendants argue that Roy merely held that when a clerk of court issued an order allowing a plaintiff to proceed in forma pauperis, even though required affidavits were not attached to the petition, the order was a relative nullity that could be confirmed later by filing the requisite affidavits at the time the court ruled on pauper status. Defendants argue that String-fellow had not supplied an affidavit by the time the court denied the request for pauper status.

Stringfellow responds that he should have been informed of:

• the fact of and the reason for the denial;

• the consequences of his not taking timely corrective actions; and

• a reasonable time frame to correct the error or advance costs.

14Fairness militates in favor of liberally construing code provisions authorizing pauper status in favor of affording an indigent litigant his day in court. Nothing here shows that Stringfellow abused this privilege.

Service Issues

La. C.C.P. art. 1201(C) requires that service shall be requested on all named defendants within 90 days of commencement of the action. Stringfellow complied with art. 1201(C) by requesting service on both defendants in his prayer and by providing service instructions. He argues that even if the Johnson service and return were defective, these mistakes would be imputable to the sheriff, not the plaintiff.

WKMC relies on Ayers v. Goodwill Industries, 2003-1576 (La.App. 4th Cir.3/10/04), 870 So.2d 348, in support of its motion, but that case is distinguishable. Ayers, who was at all times represented by counsel, filed a lawsuit on October 4, 1999, along with an application for in forma pauperis status, which was denied four days later. The petition contained service information, but advanced no costs, so no service was effected until February of 2003, following a service request made only three days earlier. | ¡Ayers contended that she was unaware of the denial of pauper status, but her petition was nonetheless dismissed without prejudice. The appellate court affirmed, holding that no good cause existed for the failure to pay costs and request service for a period of over three years after the denial of pauper status, during which lengthy time frame neither Ayers nor her attorney made any effort to inquire as to her pauper status.

Defendants also urge that we affirm the dismissal based on the holdings in Tran-ehant v. State, 2008-0978 (La.1/21/09), 5 So.3d 832.' This reliance is misplaced, in that there are three stark differences between Tranehant and this case:

1. At all times, Tranehant was represented by counsel;

2. Tranchant’s attorney initially requested that service be withheld, and

3. The core issue in Tranehant was whether the 90-day time limit could be satisfied by mailing the request, or whether there actually had to be communication with the clerk before the 90-day deadline.

La. C.C.P. art. 1672(C) states that a judgment dismissing an action with prejudice shall be rendered for a defendant for whom service has not been requested within the time period prescribed by art. 1201(C), unless good cause is shown why service was not requested. Stringfellow made a timely request on day one. String-fellow’s attorney paid the advance costs |fiand requested service five months after Stringfellow filed his initial pro se petition. Under these unique facts, we find good cause for the delay.

This is admittedly a troubling area in our jurisprudence, and we see no clearly outlined path to follow.

OUR REASONING

We must reverse the trial court’s dismissal, though we certainly understand that rules are rules and defendants have the right to be promptly advised of adverse lawsuits. These unusual facts require, however, that we must exercise some equity in the furtherance of justice. This plaintiff deserves his day in court.

The trial court should have notified the plaintiff:

• that it had denied the request for pauper status;

• the reasons for the denial;

• the ramifications of ignoring this denial; and advising of

• a time frame during which he could either resubmit his application for pauper status, or post advance costs.

17Most importantly, the trial court abused its great discretion, under these peculiar facts, by dismissing the lawsuit.

We reverse the judgment of dismissal, and order that the trial court reconsider the application for pauper status, if a proper application is made.

DECREE

At the cost of defendants, the judgment of dismissal is REVERSED. The trial court is ordered to reconsider an application for pauper status, should a request in proper form be filed.

      . This record does not indicate when or if the plaintiff received notice of the denial.

      . It would be reasonable to assume, and this record clearly preponderates, based on the plaintiff hiring a lawyer and advancing required court costs, that had he received the order of denial in early January 2012, he would have attempted to timely comply.

      . As is apparently the situation here.

      . The request to proceed as a pauper was denied two weeks after the filing of the petition. This time frame included the Christmas holidays.

      . WKMC urges that the issue is moot, since plaintiff never took a writ, and since costs have now been paid. See Johnson v. St. Francis Medical Center, Inc., 521 So.2d 803 (La. App. 2d Cir.1988), which held that "the issue of whether the trial court erred in denying the motion to proceed in forma pauperis is properly before the court on the appeal from the final judgment dismissing plaintiff’s suit.”

      . See Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La. 1977).

      .After his signature and contact information at the end of his original petition, String-fellow makes this service request as to Dr. Johnson:
      PLEASE SERVE DEFENDANTS: DR. LAWRENCE WEBSTER JOHNSON c/o Gastrointestinal Specialists, AMC, 3217 Mabel Street, Shreveport, Louisiana 71103.
      This is an adequate service request by an unrepresented 44-year-old unemployed father of two children who is married to a housewife and in desperate financial straits, with four bucks in the bank. To maintain that this is not an appropriate request for service is hair-splitting and Byzantine beyond words.

      . Stringfellow filed suit with no lawyer. He paid for service five months after filing suit and 4½ months after being denied leave to proceed as a pauper. This is a long way from the 40-month delay occasioned by Ayers, who was a represented plaintiff.

      . The Tranehant court held that a request for service is not a proper request, until the clerk of court receives a service request upon which he can act.

      . We recognize that the good cause requirement relative to lack of service is strictly construed. See Barnett v. Louisiana State University Medical Center-Shreveport, 2002-2576 (La.2/7/03), 841 So.2d 725, Calegero and Johnson, dissenting. Barnett involved failure to make service until more than 90 days after the plaintiff's attorney was informed that service had been made on the wrong agent for service of process. The Barnett facts are dissimilar to those in this record. Stringfellow was unrepresented and may never have been notified of the court’s denial of pauper status.

      . Perhaps it is time for legislation or a court rule, establishing a mandatory protocol for required notification to a plaintiff whose request for indigent status is denied.

      . See Jenkins v. Larpenter, 2004-0318 (La. App. 1st Cir.3/24/05), 906 So.2d 658, writ denied, 2005-1078 (La.6/17/05), 904 So.2d 711, where our sister court found, in a 2-1 decision (Guidry, dissenting), that an inmate’s suit against the sheriff was properly dismissed on account of a failure to request service for over 10 months after notification of the denial of his request to proceed as a pauper. In contrast, we can't tell when, if, or how String-fellow received notification.


author: LOLLEY, J.

text:
    MADDEN CONTRACTING COMPANY, INC., Plaintiff-Appellee v. Alice HARRIS, et al., Defendants-Appellants.
    No. 47,951-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Samuel L. Jenkins, Jr., for Defendant & Intervenor Appellants.
    Smith & Jacobs by Charles A. Smith, Edward Charles Jacobs, Springhill, LA, for Plaintiff Appellee.
    Dale N. Montgomery, II, for Defendant Appellees.
    Before BROWN, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

|! Defendant Steven Lee Hudson and in-tervenor defendants Ruth Branford, Dorothy K. Thompson, Zabrina Johnson, and Denise Walker (collectively, the “appellants”) appeal the judgment of the 26th Judicial District Court, Parish of Webster, State of Louisiana, in favor of plaintiff Madden Construction Company, Inc. For the following reasons, we affirm the judgment of the trial court.

FACTS

In 1918, John and Emma Flournoy Harris purchased a 40-acre tract of land in Webster Parish (the “property”). Since that time, Madden Construction Company, Inc. (“Madden”), purchased a 7.5 percent undivided interest in the property from two of the heirs of John and Emma Flour-noy Harris. Steven Hudson acquired a 43.75 percent undivided interest in the property by inheritance. Webster Parish public records showed that Alice Harris, Gladys Harris Oliver, Mary Elizabeth Anderson, Lou Harris, Felix Harris, Booker T. Green, and Lee Odis (the “recorded owners”) owned the remainder of the property.

Madden petitioned the trial court for partition of the property in May, 2010, naming Hudson and the recorded owners as defendants. However, after a diligent effort to locate the recorded owners, their whereabouts remained unknown. The trial court appointed a curator who posted two advertisements in the local newspaper requesting that anyone with information concerning the whereabouts of the recorded owners contact him.

lain April 2012, Hudson filed a petition to force a private sale of Madden’s minority share of the property pursuant to La. R.S. 9:1113. Shortly thereafter, Ruth Branford, Dorothy Thompson, Zabrina Johnson, and Denise Walker (the “interve-nors”) filed a petition for intervention uniting with Hudson to resist Madden’s- partition action. The intervenors claimed co-ownership of the property as heirs of recorded owner Mary Elizabeth Anderson. The day before the partition hearing and after the curator had submitted his report to the trial court, the appellants provided the curator with a letter listing the purported heirs of many of the recorded owners, which list contained the intervenors among them. However, due to the extremely late nature of the information, the curator did not attempt to contact the alleged heirs prior to the hearing.

After a bench trial, the trial court determined that the evidence submitted on the part of the intervenors failed to establish an ownership interest in the property and treated the recorded owners as absentees. The trial court denied Hudson’s request for private sale of the property as untimely and granted Madden’s request to partition the property by licitation. This appeal by the appellants followed.

DISCUSSION

Absentees

As their first assignment of error, the appellants argue that the trial court erred in its determination that the recorded owners were absentees. The appellants claim that pursuant to La. C.C.P. art. 5251(1), a person believed to be dead is not an absentee if information concerning the |sperson’s heirs becomes available. More specifically, the appellants argue that the curator failed to properly discharge his duty as to notice when he relied solely upon the public record even after receiving information concerning the probable heirs of many of the absent parties. The appellants seek to nullify the partition action due to the curator’s failure to serve notice to the heirs of the recorded owners and the resultant nonjoinder of an indispensable party.

The trial court correctly defined the recorded owners as absentees. No one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act. La. C.C. art. 807. Due process dictates that a court may not deprive a person of a right to property unless the person is subject to the jurisdiction of that court and receives fair notice and an opportunity to be heard. Shaffer v. Heitner, 483 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Where a defendant is subject to a court’s jurisdiction, but the defendant cannot be located with diligent effort, the court shall appoint an attorney to represent the defendant. La. C.C.P. art. 5091. An attorney as curator must use reasonable diligence to communicate with the absentee and inform the absentee of the pendency of the action and time delays within which action must be taken on the absentee’s behalf. La. C.C.P. art. 5094.

Louisiana C.C.P. art. 5251 defines an absentee as:

[A] person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually |4present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown. (Emphasis added).

Where an absentee’s property is partitioned by licitation, the absentee’s share of the proceeds shall be deposited into the registry of the court for the account of the absentee, his succession representative, or heirs. . La. C.C.P. art. 4628. Substitution for a deceased party generally requires proof of quality, such as an affidavit of death and heirship or a judgment of possession. Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App.2d Cir.07/29/99), 746 So.2d 11, writ denied, 1999-2954 (La.01/07/00), 752 So.2d 861.

Here, the record reflects that the trial court correctly identified the recorded owners as absentees. John Madden, vice-president of Madden Contracting Company Inc., testified concerning his efforts to ascertain the identities of additional co-owners of the property and their whereabouts. He stated that he discovered the names of the recorded owners by conducting a public records search. He then posted an advertisement in a local newspaper offering a reward for information concerning their whereabouts. He also personally questioned individuals in the community with the same last names as those of the recorded owners; however, his inquiries provided no further information.

The curator, Dale Montgomery, also testified concerning his efforts to notify the recorded owners, which included posting two advertisements in the local newspaper requesting information concerning their whereabouts. He too was unable to contact them.

| ^Hudson testified concerning his knowledge of the recorded owners and their heirs. While he provided his personal knowledge as to who may have inherited from Alice Harris, Gladys Harris Oliver, Mary Elizabeth Anderson, Lou Harris, and Felix Harris, Hudson admitted that he had never heard of either Booker T. Green or Lee Odis, two of the recorded owners.

Finally, the intervenors attached several documents with their petition to intervene in an attempt to prove that they were the rightful heirs of recorded owner Mary Elizabeth Anderson. These documents included the death certificate of Mary Elizabeth Anderson’s daughter, Mary Taylor, a funeral notice of Mary Taylor’s daughter, Betty Johnson, and a parcel listing naming Mary Elizabeth Anderson as one of the recorded owners of the property.

Based on the evidence before it, the trial court correctly determined that the recorded owners were absentees. The evidence provided to the trial court by the intervenors’ petition, while instructive, was insufficient to prove that they were heirs of the recorded owners. Furthermore, recorded owners Booker T. Green and Lee Otis are undeniably absentees as neither party had any information concerning them. Therefore, because the whereabouts of the recorded owners remained unknown and because no proof of quality concerning possible heirs was forthcoming after a diligent effort, the trial court properly treated the recorded owners as absentees.

Although appellants argue that Montgomery failed to perform a diligent effort to provide notice to the heirs of the recorded owners, the trial court properly held that Montgomery had satisfied his responsibilities as ^curator. Considering the efforts made to contact the recorded owners and the extremely late letter purporting to name the heirs of the recorded owner, which Montgomery received only one day before the hearing despite the fact that the partition had been pending for over two years, it cannot be said that Montgomery failed to use reasonable diligence in carrying out his duties. The recorded owners’ interest in the partition hearing was protected by the appointment of a curator. Should the intervenors establish their filiation to the absentee recorded owners at a later date, they may then claim their portion of the sale proceeds deposited in the registry of court. This assignment of error is without merit.

Partition by Licitation

Next, the appellants argue that the trial court erroneously granted a partition by licitation without requiring Madden to meet its burden of proof showing that the subject property was not susceptible to partition in kind. Property may be partitioned by licitation regardless of whether it is susceptible to partition in kind if at least one co-owner is an absentee. La. C.C.P. art. 4621; Munsterman v. Crawford, 532 So.2d 264 (La.App. 3d Cir.1988), writ denied, 535 So.2d 743 (La.1989). As stated above, the trial court correctly identified the recorded owners as absentees and, therefore, properly granted partition by licitation. Madden was not required to show that partition in kind was not possible, and this assignment of error is without merit.

| ■Private Sale

As their final assignment of error, appellants argue that the trial court erroneously denied Hudson’s request for a private sale of the property. Appellants claim that because the heirs of the recorded owners were never properly served a copy of the petition by the curator, the triggering event for accrual of the time limitation on filing for a private sale never occurred. We disagree.

When a minority co-owner moves for a partition of undivided property, La. R.S. 9:1113(A) allows the remaining co-owners to purchase the minority co-owner’s share by private sale. However, La. R.S. 9:1113(B) provides a limited time frame within which to file a motion for private sale and states, in pertinent part:

Each remaining co-owner shall have thirty days from the date the last defendant is served with the petition to partition or thirty days from receipt of written notice, sent by certified mail or commercial courier, from a co-owner waiving his right to purchase, whichever is earlier, in which to file a notice to exercise his option to purchase his pro rata share of the property being sold.

Here, the record reflects that the curator filed an answer on behalf of the absentee recorded owners on June 6, 2010, and that Hudson filed his answer on June 10, 2010. Not until April 4, 2012, did Hudson file a motion for private sale of the property pursuant to La. R.S. 9:1113(A)-well after the 30-day -window allowed by La. R.S. 9:1113(B). The trial court correctly denied Hudson’s motion for private sale of the property as untimely, and this assignment of error is without merit.

| ^CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Madden Contracting, Inc. All costs of this appeal are to be paid by Steven Lee Hudson, Ruth Branford, Dorothy K. Thompson, Zabrina Johnson, and Denise Walker.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Joshua R. PARKER, Appellant.
    No. 47,952-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, II, District Attorney, Brady D. O’Callaghan, R. Bennett Lang-ford, III Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

|TOn June 5, 2009, 20-year-old Joshua R. Parker and his friend Don Heflin arranged a drug transaction with 17-year-old Phillip Livigni and his friend Caleb Duos. The four agreed to meet at University Elementary School in Shreveport, Louisiana. Moments into their encounter, defendant, Joshua R. Parker, “upped” a weapon and shot Livigni in the back. Li-vigni died of his injuries. A week later, defendant was apprehended in Rhode Island, while Heflin turned himself in to authorities in Massachusetts. Defendant was indicted for first degree murder on August 28, 2009; however, the charge was later amended to second degree murder. A jury convicted defendant of second degree murder, and he was subsequently sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. Defendant now appeals. We affirm defendant’s conviction and sentence.

Discussion

As relevant to this case La. R.S. 14:30.1 provides:

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; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, second degree robbery, simple robbery ... even though he has no intent to kill or to inflict great bodily harm.

There is no dispute that defendant shot and killed Phillip Livigni. In his statement to the arresting officer, defendant claimed that after arriving at University Elementary School he believed that Livig-ni and Duos were going 12to rob him. Defendant claims that Livigni was pulling a weapon from his pocket and that he shot Livigni once in self-defense.

James Traylor, M.D., a forensic pathologist at LSU Health Sciences Center in Shreveport, was qualified as an expert in forensic pathology and testified with regard to the autopsy he performed on Li-vigni. According to Dr. Traylor, the bullet entered Livigni’s back just above the elbow, and traveled from left-to-right, from back-to-front, and from top-to-bottom. While the victim suffered injuries to his 11th rib, lung, pancreas, liver, and small bowel, the cause of death was the laceration of the abdominal aorta artery. Dr. Traylor noted that there was no soot in the wound, which suggested to him that there was more than two inches of distance between the gun and the victim at the time it was discharged.

As stated by the prosecutor, “The grand jury chose to indict [Don Heflin] for simple burglary, did not find him criminally responsible in connection with the homicide.” Although his case was pending, Heflin agreed to testify in this case. Heflin testified that he was with defendant at University Elementary School at the time of the shooting. He said that he and defendant were there to purchase marijuana from Livigni, and that Livigni was supposed to buy Oxycontin pills from defendant. He, defendant, and defendant’s girlfriend arrived at the meet before Duos and Livigni. After waiting about 10 minutes Heflin called Livigni to see if they were almost there. Livigni informed them that they were just around the corner and would be there soon. Defendant told his girlfriend to go wait in |8the car. According to Heflin, defendant and Livigni had never met, so when Livigni and his friend arrived, “Josh came across and was like, is this your friend. I’m like, yeah. And he upped on him with a pistol.” Heflin stated that when defendant pulled out his gun, “[defendant] told [Livigni] to give him his shit.” After that, Heflin testified, defendant either spun Livigni or Livigni was turning to look at Heflin, and then defendant shot Livigni in the back. Heflin said that Livigni had not attacked or threatened them, nor was there any indication that Livigni had a weapon. Lastly, Heflin testified that, although he saw defendant go through Livigni’s pockets, he did not actually see him take anything. Later in the car, however, defendant showed Heflin Livigni’s cell phone.

On cross-examination, Heflin gave somewhat conflicting testimony with regard to the actual shooting. He first claimed that defendant “pointed” the gun at Livigni’s “face, just in that chest, face area.” Later, he said that defendant was “waving” the gun as opposed to holding it steady. Hef-lin admitted that defendant “looked kind of stunned at what he actually just did.”

Also present that day was Caleb Duos, who testified that on the day of the murder, Livigni told him that he was going to buy drugs from someone at University Elementary School. Livigni asked Duos to accompany him because he was afraid that the dealer “might , jump him.” According to Duos, as the two approached Heflin, Duos was suspicious “because of [Heflin], because the way he was acting. He was kind of |4backing up trying to hide from me, and then he was pointing toward us.” Duos did not even initially see defendant because he was “hiding” behind a building. Duos stated that defendant quickly approached them and,. without provocation, pulled out a gun. According to Duos, “[defendant] cocks [the gun], holds it at his kind of waist, lower area, then he was like, give me the money ... and then all I know is [Livigni] turning around, I’m thinking to turn to talk to [Heflin], that’s when [defendant] ... pulled the trigger.” Duos ran to a local gas station and called 911.

Rhode Island State Police Lieutenant John P. A’Vant testified that on June 16, 2009, at approximately 2:30 p.m., he and fellow officers apprehended a young man who was wanted for murder in Louisiana. Though the young man originally identified himself as Jim Baker, he later admitted to officers that he was Joshua Parker. A’Vant read defendant his rights and obtained a recorded statement. On cross-examination, A’Vant said that Parker’s statement was not coerced and that he did not appear to be under the influence of drugs or alcohol.

As part of the state’s case, Parker’s recorded statement was played in open court. According to the statement, Parker had been unemployed for the past few months and was “getting pretty low” on money. Therefore, on June 5, 2009, defendant, his fiancée, and Heflin went in search of a business that would exchange cash for gold coins that Heflin had taken from his grandmother. They managed to find a coin exchange business that purchased one coin for $15.

| .^Defendant said that Heflin called several drug dealers looking to purchase marijuana and Oxycontin pills for themselves. Parker claimed he had roughly $65, which would have been enough to buy an ounce of marijuana. Heflin located a dealer, Phillip Livigni, and arranged a meeting with him at University Elementary School. Parker, armed with a .38 Special, drove himself, his fiancée, and Heflin to the school and waited under a breezeway for Livigni to arrive. Heflin had stolen the gun in a car burglary.

When Livigni approached, Livigni “said something like: give the shit up, or something,” and swung at defendant. Livigni then stuck his hand in his pocket, and, believing he had a weapon, defendant “reacted and pulled my gun and, and I pushed him. As soon as I pulled my gun, he looked like he was pulling his hand out, and I got a good — I loo — got a good look at it and Don (Heflin) did too.” Defendant said that Livigni “kind of turned a little bit and I pulled, you know, and I didn’t even aim or nothing, I just shot, and I believe it struck him in the back ... my elbow was bent and everything, you know, it wasn’t aimed or nothing, you know, I just fired and I believe I struck him in the back, and when I fired, we turned around and hauled ass.”

Defendant told A’Vant that he threw the gun in the lake at Toledo Bend. Although he intended to turn himself in, he said that he first agreed to drive Heflin to his home in Rhode Island. He denied taking any money from Livigni or Duos, and maintained that he shot Livigni in self-defense. Defendant did not testify at his trial.

| (¡Detective Eric Farquhar, a homicide detective with the Shreveport Police Department at the time of the incident, testified that on June 5, 2009, he responded to a reported shooting at University Elementary School in Shreveport, Louisiana. Upon arriving at the scene Det. Farquhar interviewed Caleb Duos, Livigni’s friend and an eyewitness to the shooting. Det. Farquhar stated that after conducting additional interviews he was able to identify defendant and Heflin as potential suspects. Det. Farquhar informed both Heflin’s grandmother and defendant’s brother that the two men were wanted for questioning in connection with the shooting. More than a week after the shooting, Det. Far-quhar was contacted by Rhode Island State Police Lieutenant John A’Vant. Lt. A’Vant informed Det. Farquhar that defendant had been apprehended and that he had made a post-Miranda statement. Approximately one week after defendant’s apprehension, Heflin turned himself in to the authorities in Massachusetts. Both were subsequently extradited to Caddo Parish, Louisiana.

According to the testimony of Det. Far-quhar, during the course of his investigation he received information that the weapon used to kill Livigni had been thrown into a pond on defendant’s grandfather’s property. After obtaining a search warrant, Det. Farquhar sent a dive team to the location to search for the weapon. A-though the weapon was not recovered, the two halves of the victim’s cell phone were found in the pond.

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to |7the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La.01/19/06), 921 So.2d 94.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Gamer, 39,731 (La.App.2d Cir.09/8/05), 913 So.2d 874; State v. Dooley, 38,763 (La.App.2d Cir.09/22/04), 882 So.2d 731, writ denied, 04-2645 (La.02/18/05), 895 So.2d 30. A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. La. R.S. 14:20.

Viewing the evidence in a light most favorable to the prosecution, the evidence adduced at trial was sufficient to convict defendant of second degree murder. First, the evidence was sufficient to prove that defendant had the specific intent to kill Livigni. Specific intent to kill can be inferred from a person pointing and firing a gun at another. State v. Robinson, 02Jj3698 (La.04/14/04), 874 So.2d 66; State v. Brown, 42,054 (La.App.2d Cir.08/29/07), 965 So.2d 580. In his statement, defendant did not claim that the gun accidentally discharged. Both Heflin and Duos testified that defendant, standing only a few feet away from Livigni, pointed the gun and fired at Livigni, striking him in the back. Thus, this first provision of the second degree murder statute is satisfied.

Next, the state proved that Livigni was not killed in self-defense. Duos and Heflin both testified that defendant was the aggressor. Heflin said there was no indication that Livigni was armed, nor was any weapon found on Livigni. As such, the facts do not suggest that defendant was in imminent danger of losing his life or receiving great bodily harm. Therefore, the state sufficiently proved that defendant did not shoot Livigni in self-defense.

The state also put forth sufficient evidence to prove that defendant killed Livig-ni during the commission or attempted commission of an armed robbery. According to both Duos and Heflin, defendant pulled out a gun and told Livigni to “give him the shit,” which could reasonably be construed to mean money or drugs. Hef-lin then watched defendant rifle through the victim’s pockets, and later saw him with Livigni’s cell phone. Lastly, Detective Farquhar’s testimony established that Livigni’s cell phone was recovered from defendant’s grandfather’s pond.

Excessive Sentence

Defendant was convicted as charged of second degree murder. The statutorily mandated sentence for second degree murder is punishment by |3life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). Where there is a mandatory sentence there is no need for the trial court to justify a sentence it is legally required to impose. State v. Koon, 31,177 (La.App.2d Cir.02/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App, 2d Cir.1992).

To rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, namely, 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. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758; State v. Chandler, 41,063 (La.App.2d Cir.09/08/06), 939 So.2d 574.

Defendant asks this court to declare that, under the facts of this particular case, the mandated sentence is unconstitutionally excessive. Defendant argues for a downward departure from the mandatory sentence due to mitigating factors particular to this case. Defendant claims that he has shown remorse for his actions, and that a mandatory life sentence is excessive considering he was a 20-year-old first time offender.

In addition to the senseless and brutal shooting of Livigni, defendant’s actions in the aftermath of the shooting were callous and calculated, not remorseful. Defendant robbed Livigni as he was lying on the ground dying. He and Heflin spray painted his car, fled to Rhode Island and had the car crushed, all in an attempt to avoid arrest. And lastly, when | infinally apprehended, defendant concocted a story to try and shift blame onto the victim.

Considering the aforementioned, we find that defendant’s mandated life sentence is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice.

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

      . Heflin was represented by counsel who sat in the courtroom throughout his testimony.

      . The girlfriend did not testify.


author: MOORE, J.

text:
    URBAN’S CERAMIC TILE, INC., d/b/a Bob Moss Carpet One, Plaintiff-Appellant v. John E. McLAIN and Kristi Ayers McLain, Defendant-Appellees.
    No. 47,955-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      M. Randall Donald, West Monroe, LA, for Appellant.
    Booth, Lockard, Politz, Lasage & Odom, L.L.C. by Mark W. Odom, Shreveport, LA, for Appellees.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

|! Urban’s Ceramic Tile Inc., d/b/a/ Bob Moss Carpet One (“Urban”), the subcontractor, appeals a writ of mandamus directing it to deliver a request to cancel a claim or privilege under the Private Works Act, and an order for Urban to pay attorney fees to John and Kristi McClain, the owners. For the reasons expressed, we affirm.

Factual and Procedural Background

The McClains bought a 5.7-acre lot on Dogwood Trail in Minden and, in April 2010, hired Mustang Homes to build a house on it. Neither Mustang nor the McClains filed notice of contract in the public records of Webster Parish or posted a bond to secure the payment of subcontractors. Mustang subcontracted the carpet, flooring and ceramic tile work to Urban; the McClains never had any interaction with Urban.

According to testimony at trial, Mustang fell into financial difficulty and later declared bankruptcy; by late November 2010, Mustang was not answering the McClains’ phone calls and faxes. The McClains sent a paper letter to Mustang via express mail, received on December 8, 2010, which complained that the house “has not been constructed in a timely manner,” requested a “10-day completion of our home,” and attached a punch list of 43 items still to be completed. Mustang never responded in any way.

Mustang failed to pay Urban for its materials and labor, a total of $15,411.62. On February 16, 2011, Urban filed a statement of “lien and privilege” in the public records of Webster Parish, and on September 19, 2011, it filed the instant petition for amounts due and to enforce its privilege funder the Private Works Act.

The McClains answered, showing that the claimant must file its statement of claim or privilege within 60 days of substantial completion of the work, under La. R.S. 9:4822C(2); despite their earlier letter to Mustang, they alleged that the house was substantially completed by December 8, 2010. By an accompanying memo, they argued that on that date they changed the locks on the doors; the punch list contained only minor items to be remedied, not affecting substantial completion as defined by La. R.S. 9:4822H(2). They alleged that Urban’s statement of claim and privilege, filed February 16, 2011, was over 60 days after December 8, 2010, the date of substantial completion, not timely and thus invalid. They also moved for writ of mandamus directing Urban to deliver a written request to the clerk of court of Webster Parish to cancel the claim or privilege under La. R.S. 9:4833 B, and a request for attorney fees under La. R.S. 9:4833C.

Trial Testimony and Action of District Court

At trial in April .2012, Mr. McClain testified that the house was “just about finished” by late October 2010. He identified a receipt showing the last major delivery to the house, the major appliances, on November 2. The punch list, he explained, was just for minor touch-ups which he himself performed after December 8, when he took possession of the house by changing the locks. He introduced photos date-marked December 19, showing the kitchen in use by then. On cross-examination, he agreed that his family did not actually move into the house until early 2011, but |amaintained it was ready to occupy by December 8. Questioned by the court, he described the punch list items he actually performed (such as bolting the dishwasher to the frame, installing the garage door and laying the attic insulation) and those he simply left undone (such as placing shutters on the outside windows and installing a shower door in the master bath — he hung a shower curtain instead). He added that he was at the house almost every day he was not out deer hunting.

Urban’s first witness, Nugent, a carpet layer who sub-subcontracted work from Urban, testified that he finished his part of the job in early November. At that time, the house looked “pretty much complete.”

Urban’s other witness, Ms. Floyd, had been a design consultant for Mustang Homes at the time of these events and was a carpet salesman for Urban at the time of trial. She testified that she tried to help the McClains finish the house after “the builder quit.” In fact, she furnished the punch list to the McClains on October 26; she described it as “a long list of small things,” the most serious being the attic insulation.

The district court ruled orally that by December 8, 2010, when the McClains changed the locks on the house and started going there daily, they exercised possession (if not occupation) of the house. The court accepted Nugent’s testimony that the house looked complete by sometime in November, and Ms. Floyd’s testimony that the punch list comprised only small things. The court found that the statement of claim and privilege, filed February 26, 2011, was untimely. The court granted the writ, directing |4the clerk of court to erase Urban’s statement of claim and privilege, and ordered Urban to pay the McClains an attorney fee of $3,000. Urban has appealed.

Applicable Law

The Private Works Act, La. R.S. 9:4801-4855, creates a privilege on an immovable to secure the owner’s obligation arising out of work on the immovable. La. R.S. 9:4801. The privilege is in favor of, inter alia, subcontractors for the price of their work. La. R.S. 9:4802 A(l); First Thrift & Loan LLC v. Griffin, 41,666 (LaApp. 2 Cir. 3/14/07), 954 So.2d 269. When no notice of contract has been filed, the preservation of claims and privileges is regulated by La. R.S. 9:4822C:

C. Those persons granted a claim and privilege by R.S. 4802 for work arising out of a general contract, notice of which is not filed, * * * shall file a statement of their respective claims and privileges within sixty days after:
(1) The filing of a notice of termination of the work; or
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.
Substantial completion is defined in La. R.S. 9:4822H:
H. A work is substantially completed when:
(1) The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
(2) The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

|fiAny statement of claim and privilege filed over 60 days after substantial completion is invalid. E. Smith Plumbing Inc. v. Manuel, 11-1277 (La. App. 3 Cir. 3/28/12), 88 So.3d 1209; Norman H. Voelkel Const. Inc. v. Recorder of Mortgages, 2002-1153 (LaApp. 1 Cir. 6/27/03), 859 So.2d 9, writs denied, 2003-1962, 2003-2133 (La.10/31/03), 857 So.2d 486, 488; C & S Safety Systems Inc. v. SSEM Corp., 2002-1780 (LaApp. 4 Cir. 3/19/03), 843 So.2d 447. The determination of when substantial completion occurred is a question of fact and subject to the manifest error standard of review on appeal. All Seasons Const. Inc. v. Mansfield Housing Auth., 40,490 (LaApp. 2 Cir. 1/25/06), 920 So.2d 413, and citations therein.

As it applies to this case, the cancellation of a statement of claim or privilege is governed by La. R.S. 9:4833, which provides in part:

A. If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of claim or privilege to give a written request for cancellation in the manner provided by law directing the recorder of mortgages to cancel the statement of claim or privilege from his records. The request shall be delivered within ten days after a written request for it is received by the person filing the statement of claim or privilege.
B. One who, without reasonable cause, fails to deliver a written request for cancellation in proper form to cancel the claim or privilege as required by Subsection A. of this Section shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be cancelled.
C. A person who has properly requested a written request for cancellation shall have an action pursuant to R.S. 44:114 against the person required to deliver the written request to | F,obtain a judgment declaring the claim or the privilege extinguished and directing the recorder of mortgages to cancel the statement of claim or privilege if the person required to give the written request fails or refuses to do so within the time required by Subsection A of this Section. The plaintiff may also seek recovery of the damages, and attorney fees to which he may be entitled under this Section.

The owner is not required to prove that the subcontractor’s refusal to request cancellation was arbitrary and capricious, only that it was without reasonable cause. LaMoyne-Clegg Dev. Corp. v. Bonfanti-Fackrell Ltd., 509 So.2d 43 (La. App. 1 Cir.1987). Attorney fees are never automatically assessed against the losing party, but when they are authorized by statute or contract, the award of attorney fees rests within the discretion of the fact finder. Sher v. Lafayette Ins. Co., 2007-2441 (La.4/8/08), 988 So.2d 186; Hendrick v. Patterson, 47,668 (La.App. 2 Cir. 1/16/13), 109 So.3d 475.

Discussion: Substantial Completion

By its first four assignments of error, Urban contests the district court’s finding that the house was complete prior to December 18 or that the McClains took possession of it on December 8,-2010. It concedes that under R.S. 9:4822C(2), it had to file its statement of claim or privilege within 60 days after substantial completion; because the statement was not filed until February 16, 2011, Urban had to prove that the work was substantially complete after December 18, 2010. Urban argues the court’s finding was plainly wrong in light of (1) the McClains’ letter to Mustang on December 7, asserting that the house was not complete; (2) the long punch list that still remained; and (3) the fact that the items on the punch list were major, including “complete insulation of the home, painting inside and out, | lighting to be installed and repaired, trim and molding to be installed in numerous places, and AC/heating to be commissioned.” Urban argues these were not minor items, and cites in support E. Smith Plumbing, Inc. v. Manuel, supra Finally, Urban argues that changing the locks on December 8 did not prove possession, but only an intent to keep Mustang out; the McClains merely intended to hire other contractors to finish the house. Urban concludes the finding should be reversed and the case remanded.

The McClains respond that the manifest error rule governs all factual findings and that the court’s finding is not plainly wrong. They urge that the punch list items really were minor. For example, the attic insulation was easily installed, and lack of it did not affect the intended use of the house; and the house had already been painted but still needed “touch-up and trim.” They suggest that Urban is distorting R.S. 9:4822’s concept of substantial completion into final completion.

The court based its finding of substantial completion largely on the lay testimony of Urban’s own witnesses. Nugent testified that by early November, there were still Mustang employees on the site but the work looked “pretty much complete.” Ms. Floyd, who testified that she actually drafted the punch list for the McClains, said it was a “long list of small things,” the only significant job being to install the attic insulation. Despite his letter to Mustang demanding the completion of 43 items, Mr. McClain testified that he considered the house substantially complete by late [^November; he introduced a photo of the kitchen taken on December 19, showing a mayonnaise jar on the counter.

This court has previously held that substantial completion may be found even though deficiencies exist. All Seasons Const. Inc. v. Mansfield Housing Auth, supra. The court may examine the extent of the defect or nonperformance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit of the work to be performed. Id. Although some of the items, such as laying the attic insulation, attaching the washer and dryer, and installing the garage doors, strike us as larger projects than changing certain drawer pulls, they do not defeat the intended use of the house. Notably, Urban introduced no evidence to contradict Mr. McClain’s testimony that even the larger items were relatively easy to complete. On this record, the district court did not abuse its discretion in finding substantial completion, under R.S. 9:4822H, by December 8, 2010. These assignments of error lack merit.

Attorney Fees

By its final two assignments of error, Urban urges the district court erred in awarding attorney fees to the McClains when it had reasonable cause to refuse to remove the lien. Urban concedes that it failed to deliver the request for cancellation as provided by R.S. 9:4833B, but argues that it had reasonable cause as (1) the McClains’ letter requesting cancellation contained no documentation in support, (2) the McClains never filed a statement of substantial completion, and (3) Mr. McClain testified that substantial work continued on the property until the family moved in, in |92011. Urban submits that on these facts, a reasonable man would not have cancelled a lien of over $15,000. Norman H. Voellcel Const, Inc. v. Recorder of Mortgages, supra. Urban concludes that the award of the attorney fee should be reversed and vacated.

By reply brief, the McClains concede that they did not attach documentation to their request for cancellation, but argue that they in fact provided it to Urban’s counsel. Nevertheless, they argue, this is irrelevant because if the statement of claim and privilege is invalid, R.S. 9:4833C is mandatory. They add Urban failed to take basic ' steps to find out about the status of the project or to protect its rights under R.S. 9:4822K, thus negating any claim of reasonable cause. In brief, they urge this court to affirm the award.

Admittedly, this record contains some evidence to show that Urban’s conduct was not unreasonable. The McClains’ letter to Mustang catalogued 43 unfinished items, which suggests lack of substantial completion; and their letter to Urban requesting cancellation lacked supporting documentation. In Z. Ellis Roofing Co. v. McDonnel Enters. Inc., 562 So.2d 1191 (La.App. 5 Cir.), writ denied, 567 So.2d 616 (1990), the court reversed an award of attorney fees on somewhat apposite facts:

While we cannot disagree with the trial judge’s determination that the lien was untimely, this finding was made only after a full trial and after Ellis had presented considerable although not persuasive evidence in its favor. We can understand, from the record, Ellis’ reluctance to voluntarily erase its lien when asked to do so. A considerable sum of |10money was due Ellis; further, a precise (or approximate) date the job was substantially completed (or abandoned) was uncertain until the case was tried. Even now, on appeal, there remains some doubt although any ambiguity cannot now avail Ellis in the wake of the trial judge’s adverse factual findings.

Unlike the subcontractor in Z. Ellis Roofing, however, Urban did not bring to trial a considerable amount of evidence; its two witnesses agreed with the McClains that the house was substantially complete by early November 2010, and no witness, expert or lay, testified that the punch list items were difficult to correct or impaired the intended use of the house. On this record, we must defer to the district court’s vast discretion and affirm the finding that Urban’s failure to deliver a written request for cancellation when requested was without reasonable cause. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Urban’s Ceramic Tile Inc., d/b/a Bob Moss Carpet One, is to pay all costs.

AFFIRMED.

      . The owners’ name is misspelled as "McLain” in the petition.

      . Mr. McClain initially testified that he moved in "probably sometime in early February,” but a moment later agreed with counsel’s statement that "the house wasn't fully completed until April when you moved in.”

      . In E. Smith Plumbing, the Third Circuit found the house was substantially complete as of July 25, 2009, despite the need for further work: "additional work was performed on the house after that date, but we find that these items were merely 'minor or inconsequential’ items of work such hs installation of a light fixture.”

      . This subsection authorizes any person to whom a privilege is granted under R.S. 9:4802 to "give notice to the owner of an obligation to that person arising out of the performance of work under the contract.” Such notice must be given to the owner before substantial completion and by certified or registered mail.