text:
    EOLA PROPERTIES, L.L.C. v. BAYOU JACK LOGGING, L.L.C., et al.
    No. 14-362.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, for Plaintiff/Appel-lee, Eola Properties, L.L.C.
    Joseph J. Valencino, III, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendants/Appellants, Kenneth Guillot, Bayou Jack Logging, L.L.C., StarNet Insurance Company.
   AMY, Judge.

hThe plaintiff entered into a stumpage contract for the removal of certain timber on a 180-acre tract in which it owned a one-half interest. The plaintiff filed this matter, seeking damages for timber trespass upon an allegation that the defendant logger and his limited liability company impermissibly cut timber beyond that designated in the contract. Following a jury trial and, upon entry of a judgment notwithstanding the verdict, the trial court found in favor of the plaintiff, awarding damages for the timber trespass and for loss of aesthetic value of the affected land. The trial court also awarded attorney fees. The defendants appeal. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

The plaintiff in. this case, Eola Properties, L.L.C., owns an undivided one-half interest in a 180-acre tract of timberland (Tract A) in Avoyelles Parish. The plaintiff entered into a September 30, 2010 “Timber Stumpage Sales Contract” with Bayou Jack Logging Company for the removal of certain hardwood on that property. The contract indicated that Bayou Jack Logging Co. was represented within that contract by Kenneth Guillot, its owner.

According to the record, Mr. Guillot began moving equipment to Tract A in May of 2011. Thereafter, cutting was conducted June through August, 2011. Pertinent to this timeline is Mr. Guillot’s formation of Bayou Jack Logging, L.L.C. in June 2011. Subsequent to the logging operations, however, William M. Tebow, a co-owner of and the land manager for Eola Properties, explained that he learned from John Earles, a neighboring farmer and Eola Properties’ tenant, that there may have been a timber trespass on adjacent tracts of land solely owned by Eola Properties. Upon investigation, it was discovered that the Bayou Jack Logging ^operations had been conducted not only upon the contracted lands in Tract A, but also on a fifty-acre tract (Tract B), situated to the North of Tract A and on a twenty-acre tract (Tract C), situated to the East of Tract A.

Eola Properties thereafter filed this matter against Mr. Guillot, Bayou Jack Logging, L.L.C. and its insurer.. Eola Properties sought damages for timber trespass under La.R.S. 3:4278.1 and damages associated with the alleged negligence leading to the trespass. The matter proceeded to trial, with the jury returning a verdict on a verdict sheet divided into Section 1, entitled “Timber Trespass” and Section 2, entitled “Negligence.”

With regard to the timber trespass claim brought under La.R.S. 3:4278.1, the jury determined that “Bayou Jack Logging, LLC and/or its owner, Kenneth Guil-lot” removed the timber without the consent of Eola Properties. The jury ^valued the subject timber at $23,941.89 and found that the defendants should have been aware that the “actions were without consent • or direction of Eola Properties[.]” The jury further concluded that the defendants failed to make payment within thirty days of notification and demand for the timber. See La.R.S. 3:4278.1(D). Thus, the jury assessed attorney fees against the defendants in the amount of $3,986.33.

As for Eola Property’s claim in negligence; the jury determined that the defendants were negligent in harvesting the trees on the fifty-acre and the twenty-acre parcels and that the negligence was a legal cause of the claimed damages. The jury assigned fifty percent of the fault to the defendants and fifty percent to Eola Properties. The jury denied Eola Property’s claim for loss of aesthetic value and the cost of clearing land.

In response to the motion of Eola Properties, the trial court entered a judgment notwithstanding the verdict. In that judgment, and with regard to the claim for trespass under La.R.S. 3:4278.1, the trial court: 1) increased the determined fair market value of the felled timber from $28,941.89 to $47,883.71 and calculated the treble damages awardable pursuant to La. R.S. 3:4278.1(0 to be $143,651.13; and 2) increased the award of attorney fees from $3,986.33 to $40,000.00.

With regard to the jury’s verdict on Eola Property’s negligence claim, the trial court entered a JNOV: 1) increasing the fault allocated to the defendants from fifty percent to ninety percent and, correspondingly, decreasing the fault assessed to Eola Properties from fifty percent to ten percent; and 2) awarding damages for loss of aesthetic value in the amount of $35,000.00 and subjecting the award to a 14ten percent reduction for the comparative fault assigned to Eola Properties. The trial court maintained the judgment in all other respects.

The defendants appeal, arguing that the trial court erred in granting the motion for judgment notwithstanding the verdict with regard to the apportionment of fault, appropriateness of damages for loss of aesthetic value, value of attorney fees proven, and appropriateness of the damages for the felled timber. The defendants also contend that the trial court erred in awarding damages against Mr. Guillot, individually.

Discussion

JNOV

The defendants question each aspect of the trial court’s granting of the motion for JNOV, asserting that the evidence developed at trial supported the jury’s verdict. Each of the components of the JNOV, addressed below, requires reference to the considerations surrounding such a motion, provided by La.Code Civ.P. art. 1811. Such a motion should be “granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions.” Forbes v. Cockerham, 08-0762, 08-770, p. 30 (La.1/21/09), 5 So.3d 839, 857. On review, an appellate court uses the same criteria as the trial court and “must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Id. at 858. In the event that the appellate court determines that reasonable persons might reach a different conclusion, then the jury’s verdict must be reinstated. Id.

We take the defendants’ arguments out of order and first address those stemming from the claim under La.R.S. 3:4278.1.

|fi Damages

In this case, the Timber Stumpage Contract entered into by Eola Properties pertained to timber on Tract A. However, it is largely uncontested that the subsequent work on the properties resulted in an over-cut onto Tracts B and C, both wholly owned by Eola Properties. Thus, the petition was filed, in part under La.R.S. 3:4278.1, which the supreme court has described as a punitive statute enacted to impose a penalty upon those disregarding the property rights of timber owners. Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361. The defendants do not challenge the jury’s determination that certain timber on Tracts B and C was cut without the permission of Eola Properties. Neither do the defendants challenge the jury’s determination that the circumstances of the case indicated that the defendants “should have been aware that its actions were without [the] consent or direction of Eola Properties[,]” thus subjecting it to damages of three times the fair market value of the trees felled. See La. R.S. 3:4278.1(C).

Instead, the defendants focus on the jury’s determination that the fair market value of the overcut timber was $23,941.89. In urging its motion for JNOV, Eola Properties suggested that the figure arrived at by the jury was in error as the only expert testimony regarding valuation of the timber assessed a greater value. In fact, the figure was approximately one-half of that arrived at by the expert forester for Eola Properties, Donald Baker. Mr. Baker testified that the subject timber was valued at $47,883.71. Dr. Nile Tahoop, the defendants’ own expert in forestry, explained upon questioning by counsel for Eola Properties that the figure was reasonable, although he suggested that the actual amount could be “slightly less than that[.]” However, Dr. Tahoop stated that to “it would cost a lot of money to, to really determine that[.]” Thus, the figure opined by Mr. Baker was the only figure of fair market value provided by the record.

|fiIn entering the JNOV, the trial court determined that the jury’s award of almost exactly one-half of the figure as to value demonstrated by the testimony (within a few cents) likely revealed that the jury considered its apportionment of one-half of the fault to Eola Properties. However, that apportionment of fault related to the second part of the jury verdict sheet, which pertained to negligence. In this regard, the trial court found that the jury erred in merging the two theories of recovery and, accordingly, reformed the judgment to award $47,883.71 as the fair market value of the timber and, in turn, assess treble damages in the amount of $143,651.13.

While the defendants suggest that the jury’s view was permissible under the evidence permitted, our review of the evidence supports the trial court’s determination. Again, the figure of $47,883.71 was the only valuation offered in the record. Additionally, the figure arrived at by the jury does, in fact, suggest a reduction by fifty percent, the percentage of fault the jury subsequently found attributable to Eola Properties. However, as noted by the supreme court in Hornsby, 902 So.2d at 369, the plain language of La.R.S. 3:4278.1, a punitive statute, unambiguously indicates that “a person who is found to have unlawfully cut timber belonging to another without consent is liable to the owner for three |7times the fair market value of the timber taken.” Accordingly, any confusion between the statutory penalty authorized under La.R.S. 3:4278.1 and the negligence aspect of the ease placed before the jury was error.

Finally, we find no merit in the defendants’ contention that, in valuing the timber, the jury may have taken into account that timber was taken from Tracts B and C, but that a corresponding amount was not taken from Tract A. While true that the parties had contracted for the timber on Tract A (for the price of $40,000.00) and that timber may not have been, in fact, cut from Tract A, the defendants’ argument confuses the issues. This suit was brought for the trespass on to Tracts B and C, wholly owned by Eola Properties and not subject to a stumpage contract. The fact that Tract A may have ultimately fetained the amount of timber cut from Tracts B and C is of no moment and was not the subject of any question posed to the jury.

Accordingly, we find that the trial court appropriately entered the JNOV with regard to the appropriate valuation of the statutory damages.

Attorney Fees

As noted above, the jury found that the defendants should have been aware that the subject actions were without the consent or direction of Eola Properties and that the defendants further failed to make payment within thirty days of notification and demand. Thus, attorney fees were awardable under La.R.S. 3:4278.1(D). The jury awarded $3,986.38 for this item of recovery. On motion for JNOV, the trial court increased that figure $40,000.00. The defendants now challenge the trial court’s actions arguing that Eola Properties failed to introduce evidence supporting the trial court’s upward deviation of the fee. In particular, the defendants assert that Eola Properties failed to prove that the award was reasonable. See Rivet v. State, Dep’t of Transp. & Dev., 01-0961 (La.11/28/01), | 8800 So.2d 777 (wherein the supreme court explained that, even in the presence of a contingency fee contract, an attorney is not entitled to recover a fee beyond that which is determined to be reasonable). See also La.Rules Prof.Conduct, Rule 1.5.

We find no error in the trial court’s increase of attorney fees to the $40,000.00 range. With regard to its claim for attorney fees, Eola Properties presented testimony from an attorney who explained that he was familiar with the trespass involved, the property involved, and the work involved in this litigation. He stated that Eola Property’s counsel provided assistance pursuant to a contingency fee arrangement that provided for an attorney fee of one-third of the amount of recovery in the event suit was filed. Despite that evidence, the jury awarded less than $4,000.00. The record supports a determination that this low figure was not reflective of a reasonable fee under the circumstances of this case.

Instead, the record indicates that Eola Properties’ counsel developed the matter now before the court, secured expert and lay witnesses (two of which were procured and presented by deposition), and ultimately advocated during a two-day jury trial involving a distinct theory of recovery for timber trespass. Additionally, the attorney procured an award of $143,651.13 in treble damages under La.R.S. 3:4278.1, the statute under which an award of attorney fees is also available. Thus, the $40,000.00 figure assessed by the trial court is reasonable, albeit less than the one-third contingency agreement testified to at trial.

This argument lacks merit.

IsNegligence

The defendants’ remaining arguments regarding the JNOV involve the trial court’s reapportionment of fault and the award for loss of aesthetic value. However, in addressing this issue, an error in the judgment is apparent. As explained above, the plaintiff pursued both recovery under La.R.S. 3:4278.1 and under a general negligence theory of recovery. These theories were not presented as alternative theories. Instead, the two theories proceeded to the jury and, following the JNOV, resulted in a judgment allowing recovery under both statutory and civil code theories for Eola Properties. The parties submitted briefs on the propriety of this dual recovery following the oral argument in this matter. Upon consideration, we conclude that the trial court erred in entering judgment that permitted recovery for both.

Notably, in Hornsby, 902 So.2d 361, the supreme court considered a case in which the plaintiff sought recovery under Lait.S. 3:4278.1 and La.Civ.Code art. 2315. Citing its earlier jurisprudence in First South Production Credit Association v. Georgia-Pacific, 585 So.2d 545 (La.1991), the supreme court observed that it had previously “held that a landowner whose timber has been removed without his consent may recover pursuant to La.R.S. 3:4278.1 or under general tort principles set forth in La.Civ.Code art. 2315.” Id. at 365 (emphasis added). Thereafter, the | lf)supreme court determined that the record developed in the case before it did not support a finding that an award for restoration costs in excess of the actual market value of the land and the trees cut was justified. Id. Thus, the supreme court reversed the award of damages previously awarded under the principles of general tort law and entered an alternative award for damages for violation of La.R.S. 3:4278.1. See also Sagnibene v. Roy O. Martin, 10-1331 (La. App. 3 Cir. 6/1/11), 68 So.3d 32 (wherein a panel of this court cited Hornsby in affirming an award of statutory damages, but in reversing an award of damages made under general tort principles). But see Hooper v. Wisteria Lakes Subdivision, 13-50 (La.App. 1 Cir. 9/13/13), 135 So.3d 9; Mathews v. Steib, 11-0356, p. 8 (La.App. 1 Cir. 12/15/11), 82 So.3d 483, 488 (wherein the first circuit, without reference to Hornsby, found that “in addition to the amount recoverable under La.R.S. 3:4278.1, damages are recoverable, if supported by the record, for: the costs of removing stumps and clearing the land after a timber trespass, ... reforestation, ... loss of aesthetic value/buffer zone,.... and mental anguish”), writ denied, 12-0106 (La.3/23/12), 85 So.3d 90.

In this case, it was not error for Eola Properties to proceed under both, alternative theories of recovery. However, in light of supreme court jurisprudence, we find that it was error for the trial court to enter judgment, permitting recovery for both theories. Here, and even in the presence of the trial court’s determination that damages for loss of aesthetic value had been proven, the statutory penalties exceeded those available under the general negligence theory. Accordingly, the trial court was required to enter judgment as to the statutory damages alone. Below, we reverse the judgment to the extent it reflected an award for loss of |1Taesthetic value. This conclusion pretermits consideration of the defendants’ arguments regarding apportionment of fault and burden of proof regarding the tort claim.

Personal Liability

In their remaining assignment of error, the defendants question the entry of judgment against both Mr. Guillot, personally, and Bayou Jack, LLC. The defendants note supreme court jurisprudence indicating that if a limited liability company member’s conduct “was required by, or was in furtherance of, a contract between the claimant and the LLC, that situation weighs against holding the member personally liable for the conduct.” Ogea v. Merritt, 13-1085, p. 21 (La.12/10/13), 130 So.3d 888, 904.

Undoubtedly, La.R.S. 12:1320(B) provides that: “Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.” However, the factual background of this case does not clearly fit within the above provision. As stated above, Bayou Jack Logging, L.L.C. did not exist at the time Mr. Guillot entered into the stumpage contract on behalf of Bayou Jack Logging Co. In fact, given the general timeline of events, it is not clear at what point in the logging process the L.L.C. was recorded. Neither is it clear at what point Mr. Guillot took the actions that have been one of the issues in this case, i.e., establishing the property boundaries to guide the logging operations that led to the timber trespass. In light of this background, we find no error in the trial court’s decision to cast Mr. Guillot in judgment, along with Bayou Jack Logging, L.L.C.

This assignment lacks merit.

Jj^DECREE

For the foregoing reasons, the trial court’s judgment notwithstanding the verdict for loss of aesthetic value to the plaintiff-appellee, Eola Properties, L.L.C., is reversed. The correlative apportionment of fault is also reversed. The remaining as- . pects of the trial court’s judgment notwithstanding the verdict are affirmed. Costs of this proceeding are asséssed equally to the defendants — appellants, Bayou Jack Logging, L.L.C., Kenneth Guillot, and StarNet Insurance Company, and to the plaintiff-appellee.

REVERSED IN PART. AFFIRMED IN PART.

      . The record reflects a June 2, 2011 filing date with the Secretary of State.

      . Louisiana Revised Statutes 3:4278.1 was amended by 2011 La. Acts No. 226 during the timeline alleged in this case. In its present form, and in pertinent part, La.R.S. 3:4278.1(A) provides:
      A. (1) It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.

      B. Whoever willfully and intentionally violates the provisions of Subsection A of this Section shall be liable to the owner, co-owner, co-heir, or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney fees and costs.
      C. Whoever violates the provisions of Subsection A of this Section in good faith shall be liable to the owner, co-owner, coheir, or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner, co-owner, co-heir, or legal possessor of the trees.
      D. If a good faith violator of Subsection A of this Section fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner, co-owner, co-heir, or legal possessor, the violator shall also be responsible for the reasonable attorney fees ■ and costs of the owner, co-owner, co-heir, or legal possessor.

      . The defendants alleged that Eola Properties was at fault in providing unreliable information regarding the location of its property lines.

      . In ruling on this aspect of the motion for JNOV, the trial court stated that:
      [The jury] took the fifty percent of the negligence finding and they applied it to the timber trespass statu[t]e. So they wholly confused the two elements, those two elements of the jury verdict form, those two elements of damages if any. They confused them and tried to fuss [sic] them together as using one, the damages in one. They took that and then they self applied [sic] a fifty percent rule, self applied [sic] a fifty percent deduction and placed that on the other element of damages. One element of damages as y’all know streamed from the negligence articles and the other element of the case or of damages streamed from the statutory guidance, the timber trespass statu[t]e and I don’t think it’s proper to fuss [sic] the two as the jury did or tried to do in this particular case. Not only did they fuse it together but they tried to apply a deduction based upon their finding of the, they believe fifty percent negligent [sic] on behalf of the plaintiff and I think that’s probably harmless at this point whether I apply the fifty percent deduction or they do, but I just think crossing the line and applying it from a timber statu[t]e into the negligence section of the verdict form was improper. For those reasons, I'll grant it.

      . In concurrence, Justice Weimer noted that the focus of La.R.S. 3:4278.1 is on the value of trees as timber, not on the value trees provide to the property upon which they are located. He explained that, therefore, “recovery under the statute is limited to the fair market value of the tree as timber — not damages otherwise ordinarily associated with Article 2315 such as restoration value, mental" anguish, or diminution in value of the real estate.” Justice Weimer stated that:
      To summarize, a plaintiff may bring an action for damage to trees alleging, in the alternative, damages pursuant to Article 2315 or LSA-R.S. 3:4278.1 due to a tree being cut, felled, destroyed, removed, or diverted. However, one cannot combine Article 2315 damages and the treble damages allowed by LSA-R.S. 3:4278.1 as to the value of a tree because that would result in duplication of damages. Recovery can only be had for the value of the tree based on one provision or the other, not both. If one proceeds under LSA-R.S. 3:4278.1, damages are limited to the fair market value of the tree as timber.... Alternatively, if one proceeds under Article 2315, the full measure of damages is available depending upon the facts and circumstances of each case, but treble damages are not available.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mauricio Garcia CUMBRERA.
    No. 14-372.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      John Foster DeRosier, District Attorney, Lake Charles, LA, for Plaintiff/Appel-lee: State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Charles, LA, for Defendant/Appellant: Mauricio Garcia Cumbr-era.
    Carla Sue Sigler, Assistant District Attorney, Karen C. McLellan, Assistant District, Lake Charles, LA, for Plaintiff/Ap-pellee: State of Louisiana.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

_JjOn December 1, 2001, the State filed a bill of information charging Defendant, Mauricio Garcia Cumbrera, with two counts of first degree murder, in violation of La.R.S. 14:30. On September 3, 2013, the bill was amended to charge two counts of second degree murder, in violation of La.R.S. 14:30.1; on the same date, jury selection began. Jury selection was completed the next day.

The jury began hearing evidence on September 5, 2013; said jury found Defendant guilty as charged the next day. Defendant waived sentencing delays, and the court sentenced him to life imprisonment on each charge.

Defendant now appeals his convictions. In his appeal, he assigns three errors.

FACTS:

On September 4, 2011, Anna Cumbrera and Julia Landry, Defendant’s wife and stepdaughter, respectively, traveled from Sulphur to Texas to attend a baptism. Defendant spent the day at the apartment of Jessica Landry, another stepdaughter, with her children and boyfriend while she was at work. When she returned home in the mid-afternoon, Defendant was arguing with Mrs. Cumbrera on" the telephone. The basis of the argument was whether one or more of Jessica’s children would be able to go home with Defendant.

Some long-standing domestic issues also arose, and Defendant became agitated. Jessica tried to calm him, but Defendant replied in broken English, “No, I make a crazy,” and left soon thereafter.

When Defendant returned to his residence, Mrs. Cumbrera stood in the back door holding a machete and advised him not to come in. He walked to his tool |2area where he had a gun. He returned to the door and shot Mrs. Cumbrera twice. Julia was in the living room, and he shot her, too. Julia was still standing, so he shot her again. She left through the front door and ultimately fell in the driveway. Medical evidence showed he shot her a total of three times.

Defendant drove away, apparently hitting Julia initially in some manner. Thereafter, he called authorities and surrendered behind a grocery store in Lake Charles.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record.

After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

We observe that Defendant does not contest that he killed the two victims. Rather, in his first assignment of error, he argues that there was sufficient evidence in the record to show he killed them in sudden passion or “heat of blood” caused by immediate provocation which would have deprived an average man of his self-control. The bulk of this language comes from the manslaughter statute, La.R.S. 14:31, which states in pertinent part:

A. Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed!)]

|sThe test for sufficiency of trial evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

Defendant argues that the trial evidence shows events took place that “were sufficient to deprive anyone of his self-control and cool reflection.” While the situation surrounding the offense was undoubtedly emotional, the jurisprudence indicates that some sort of immediacy must be involved in order for emotions to mitigate murder to manslaughter:

Regardless of the words exchanged, “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135, 1143 (La.App. 2 Cir.1988). See also State v. Mitchell, 39,202 (La.App. 2 Cir. 12/15/04), 889 So.2d 1257, writ denied, 05-132 (La.4/29/05), 901 So.2d 1063, quoting State v. Conerly, 48 La.Ann. 1561, 21 So. 192 (1897). “Further, an argument alone will not be a sufficient provocation in order to reduce a murder charge to manslaughter. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98); 720 So.2d 829, citing State v. Gauthier, 546 So.2d 652 (La.App. 4 Cir.1989).” State v. Charles, 00-1611, p. 4 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420.
In reviewing the Defendant’s claim, this court must determine “if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence.” State v. Hamilton, 99-523, p. 7 (La.App. 3 Cir. 11/3/99), 747 So.2d 164,168.
_k---
In State v. McCray, 621 So.2d 94 (La.App. 2 Cir.1993), the defendant went to the victim’s home armed with a pistol. He went into one of the bedrooms and left his gun there, but kept the clip. The defendant then returned to the living room and began talking to the victim about their relationship. When the victim told the defendant she did not love him anymore, he hit her in the head several times with the clip. The defendant then went to the bedroom, retrieved the gun, and inserted the clip. The defendant returned to the living room and hit the victim over the head with the gun several times saying, “Well, I tell you what, b--ch, if I can’t have you, can’t nobody have you.” Id. at 96. The defendant then aimed the gun at the victim and fired. The victim’s brother grabbed the defendant’s hand, causing the bullet to go through the ceiling. The defendant fired a second time, and the bullet struck the victim in the abdomen. The defendant was convicted of attempted second degree murder. On appeal, the defendant argued that the evidence supported a verdict of attempted manslaughter. The court found that the defendant had ample time to reflect on his actions because he went into another room of the house to retrieve his gun.
In the present case, we find the verdict of guilty of second degree murder should stand. The stabbing occurred at least ten to fifteen minutes after Jerry threw a cup at and/or hit the Defendant. Based on the cases cited herein, Jerry’s acts were too far removed from the stabbing to support the provocation element necessary for a conviction of manslaughter. Subsequently, Jerry and the Defendant were arguing; however, an argument alone is not sufficient provocation to support a verdict of manslaughter. Additionally, the Defendant left the area of the living room and went into the kitchen to retrieve the knives she used to stab Jerry. Based on these facts, we find the Defendant failed to establish the mitigating factors necessary to support a verdict of manslaughter by a preponderance of the evidence. Additionally, based on the cases cited herein, any arguments or physical abuse that occurred prior to the date of the incident, would not be sufficient provocation for manslaughter.

State v. Johnson, 06-623, pp. 8-11 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, 702-04, writ denied, 06-3024 (La.9/14/07), 963 So.2d 995. This court has also observed:

In reviewing the claim, this court must determine if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence. State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96); 676 So.2d 160, writ denied, 96-1734 (La.1/6/97); 685 So.2d 126.
|aIn an effort to establish that he shot his estranged wife and Deputy McIntosh in sudden passion or heat of blood, the defense emphasized that the Defendant found his wife, partially naked, having just engaged in sexual intercourse with her nineteen-year-old boyfriend. According to the Defendant, this was the provocation for the shootings and his actions after the shootings.
Neither the Defendant seeing his estranged wife with a boyfriend, [State v.] Sanders, [93-01] 648 So.2d 1272, [cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996) ], nor disputes between spouses over their impending divorce or over-due money payments, Huls, 676 So.2d 160, are sufficient provocation to reduce first degree murder to manslaughter.

State v. Hamilton, 99-523, pp. 7-9 (La.App. 3 Cir. 11/3/99), 747 So.2d 164, 168-69.

Defendant, in his statement to police, claimed that his wife armed herself with a machete; however, he also stated that her possession of the machete neither scared nor angered him. Thus, the machete forms no basis for mitigation. The trial evidence demonstrated that an emotional domestic situation took place but not sufficient provocation to justify reduction of the convictions to manslaughter. Also, Defendant’s statement to police showed that he left the trailer to retrieve the murder weapon, which was wrapped in a bag and hidden in his tool area outside. Thereafter, he returned to shoot the victims after having checked the weapon before firing. Thus, there was some time delay and thought process involved, not an immediate flash of rage. Accordingly, we find that this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Defendant argues that the trial court erred by giving an instruction that did not in-elude the preponderance of the evidence standard applicable to mitigating factors needed to reduce murder to manslaughter, as mentioned in the previous assignment. However, the actual assignment of error rests on an argument that counsel was ineffective for failing to object to the jury | (¡instruction. Defendant notes the correct test for such a claim has two steps, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

(1) it must be demonstrated that trial counsel’s performance was deficient; and

(2) said deficiency must have prejudiced Defendant. State v. Washington, 491 So.2d 1337 (La.1986).

However, Defendant acknowledges that a faulty jury instruction regarding manslaughter may be harmless. Further, his argument on appeal rests on his assertion that the trial evidence showed provocation sufficient to deprive an average person of self-control. This argument was refuted in the analysis of the previous assignment. The trial evidence did not demonstrate by a preponderance of the evidence that such mitigation existed. Thus, Defendant failed to meet the second prong of the Strickland test, and the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE:

In his final assignment of error, Defendant argues that the trial court erred by permitting Jessica Landry to testify regarding the meaning of a statement Defendant made before the offense. We disagree.

As mentioned earlier, on the date of the offense, Defendant spent the day at Jessica’s residence with her boyfriend while she was at work. After she got home, she heard Defendant arguing on the telephone with Anna Cumbrera. Jessica tried to get him to calm down, but he said, “No, I make a crazy.” The State asked Jessica what that meant, and she opined, “He’s going to do something bad.” Defendant objected to the opinion testimony, but the trial court allowed it, based upon La.Code Evid. art. 701, which states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
|7(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
The second circuit has explained:
In his second assigned error, Davis argues that KF.’s mother was erroneously allowed to state that in her opinion Davis was the “architect of what was done.” Davis asserts that this was inadmissible opinion evidence that was not based on personal knowledge of the facts and which was “unfairly prejudicial.”
A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from facts based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. State v. LeBlanc, 05-0885 (La.App. 1st Cir. 2/10/06), 928 So.2d 599.
As a general rule, a lay witness is permitted to draw reasonable inferences from his or her personal observations. If the testimony constitutes a natural •inference from what was observed, no prohibition against it as the opinion of a non-expert exists as long as the lay witness states the observed facts as well. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
On direct examination by the state, the mother of K.F. testified that she first met Daws in 2000 after which she and Davis became friends. During a period of time in 2005 when K.F.’s mother and father were having marital difficulties, her mother allowed other people to watch her children. She testified that those people included Davis and Ticer, with whom her children often stayed. In early 2005, K.F. told her what Davis and Ticer had done. On cross-examination, the defense sought to elicit testimony to show that Davis’s codefendant, Melissa Ticer, was the main actor in the crime.
At that point, defense counsel lodged an objection to K.F.’s answer. Before the court was able to overrule the objection, the witness named Davis in answer to the state’s question. It is this exchange which is the subject of the assignment of error.
| sFrom KF.’s testimony, she primarily reported the facts of Davis’s involvement with her daughter and his opportunity to commit the crime.' She also reported the initial revelation of the crime by her daughter and was obviously aware of the details of Davis’s actions which K.F. testified to at trial. Her view regarding Davis's role as the architect of the assaults .upon her child was drawn from the reasonable and natural inferences from the facts. To the extent that her conclusion elevated Davis’s role in the matter above that of Ticer’s, we find that conclusion as á harmless expression of her opinion since both parties were shown to have been involved in the crime. This assignment of error is without merit.

State v. Davis, 44,656, pp. 15-17 (La.App. 2 Cir. 11/18/09), 26 So.3d 802, 811-12, writ denied, 09-2768 (La.6/25/10), 38 So.3d 855, cert. denied, — U.S.—, 131 S.Ct. 922, 178 L.Ed.2d 769 (2011).

In the present case, Jessica testified that she had heard Defendant use the phrase before, so she knew what he meant. In light of Davis, we find that Jessica’s testimony was permissible. Given that she had heard Defendant use the phrase before, her testimony is a logical inference based upon her observations.

Further, even if this court were to determine that the testimony was improperly admitted, it was harmless. As Defendant observes, such testimony could be read as suggesting the formation of intent before he returned to his residence. However, it can also be viewed as merely showing that Defendant was stressed and angry about the argument with his wife. Whatever “something bad” meant when Jessica heard Defendant say it previously, it did not mean he was going to kill somebody. As Defendant points out, the statement did not lead Jessica to take any action. Additionally, as discussed in the first assignment of error, the situation surrounding the offense was not mitigating to the extent that Defendant’s second degree murder convictions should have been reduced to manslaughter. For the reasons discussed, this assignment lacks merit.

UDECREE:

Defendant’s convictions are affirmed.

AFFIRMED.

      . There was conflicting testimony regarding whether it was Defendant or Mrs. Cumbrera and Julia who did not want Jessica’s children to go to the Cumbrera home.

      . Although some testimony suggested Defen- ■ dant had backed over Julia in the driveway, medical evidence from the State's own witness indicated she was not run over.

      . Defendant cites State v. Fuentes, 13-957 (La.App. 1 Cir. 2/18/14), 2014 WL 651849 (unpublished opinion).


author: THIBODEAUX, Chief Judge.

text:
    UNDERWRITERS AT LLOYD’S SYNDICATE 1036, et al. v. DANOS & CUROLE MARINE CONTRACTORS, L.L.C., et al.
    No. 14-375.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      W. Gerald Gaudet, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellant-Danos & Curóle Marine Contractors, L.L.C.
    Edward Joseph Koehl, Jr., Jones Walker LLP, New Orleans, LA, for Defendant/Appellant-The Gray Insurance Company.
    Douglas C. Longman, Jr., Jones Walker LLP, Lafayette, LA, for Defendant/Appellant-The Gray Insurance Company.
    Robert Michael Kallam, Preis PLC, Lafayette, LA, for Plaintiffs/Appellees-Badger Oil Corporation and Underwriters at Lloyd’s Syndicate 1036.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|,An employee of Danos & Curóle Marine Contractors, L.L.C. was injured while working on a fixed platform that was owned and operated by Badger Oil Corporation on the Outer Continental Shelf (“OCS”) off the coast of Texas. The employee’s injury occurred as he attempted to swing from the platform to a utility vessel owned and operated by Kevin Gros Offshore, L.L.C.

The employee filed suit against both Badger Oil and Kevin Gros, seeking damages for negligence. Pursuant to a Master Service Agreement (“MSA”) between Kevin Gros and Badger Oil, Kevin Gros demanded that Badger Oil defend and indemnify it against the employee’s claims. In response, Badger Oil sought defense and indemnity from Danos & Curóle for its contractual liability to Kevin Gros pursuant to a separate MSA between Badger Oil and Danos & Curóle. Danos & Curóle denied this demand, contending that the language of the MSA between Badger Oil and Danos & Curóle does not explicitly require Danos & Curóle to defend and indemnify Badger Oil against its contractual obligations to third parties.

At a hearing on cross motions for summary judgment, the trial court granted summary judgment in favor of Badger Oil and its insurer, Underwriters at Lloyd’s Syndicate 1036 (“Underwriters”), and denied the cross motions of Danos & Curóle and its insurer, Gray Insurance Company, reasoning that the expansive language in the MSA between Badger Oil and Danos & Curóle extended indemnity protection beyond tort liability to contractual liability with third parties. The trial court further noted that although the parties stipulated that Texas law governed the interpretation of MSA, it would not make a specific finding as to |2whether Texas law or general maritime law applies, as the contract interpretation would be the same under either body of law. For the following reasons, we amend the trial court’s judgment in part, finding that Texas law governs the interpretation of the MSA. We further reverse the trial court’s granting of summary judgment in favor of Underwriters and Badger Oil and grant summary judgment in favor of Danos & Curóle and Gray, dismissing all claims with prejudice.

I.

ISSUES

We shall consider:

(1) whether general maritime law or Texas law governs the interpretation of the MSA between Badger Oil and Danos & Curóle; and
(2) whether the trial court erred in granting summary judgment in favor of Underwriters and Badger Oil and denying the cross motions for summary judgment filed by Danos & Curóle and Gray.

II.

FACTS AND PROCEDURAL HISTORY

Thao Nguyen, an employee of Danos & Curóle, was injured while working as a blast/paint superintendent on an OCS fixed platform that was owned and operated by Badger Oil off the coast of Texas. Specifically, Mr. Nguyen’s injury occurred as he attempted to swing via swing rope from the platform to a utility vessel owned and operated by Kevin Gros.

After the incident, Mr. Nguyen filed suit against both Badger Oil and Kevin Gros, seeking damages for negligence. Badger Oil subsequently demanded that Danos & Curóle and its insurer, Gray, defend and indemnify Badger Oil for |sMr. Nguyen’s tort claims pursuant to the terms of the MSA between Badger Oil and Danos & Curóle. Specifically, Badger Oil relied on Section 7(a) of the MSA in making its demand, which stated:

7. Indemnity Obligations

a. [Danos & Curóle] releases [Badger Oil] from any liability to [Danos & Cu-role] for, and [Danos & Curóle] shall protect, defend, indemnify and hold harmless [Badger Oil], its principals, subsidiaries and related or affiliated companies, and its and their directors, officers, employees, agents, servants and underwriters (hereinafter referred to as “[Badger Oil] indemnitees”), from and against any and all claims, demands, causes of action and lawsuits of every kind and character (whether meritorious or not) brought by any person or entity, and all related losses, damages, costs and expenses, including attorneys fees and court costs, for personal injury, death, disease or illness, whenever occurring, suffered or incurred by [Danos & Curóle], its subcontractors and vendors, and the directors, officers, employees, agents and servants of any of them, arising out of or in any way directly or indirectly related to the work rendered under this MSA by [Danos & Curóle], howsoever caused, including the unseaworthiness or unairworthiness of any craft, or the negligence (whether sole or concurrent, active or passive) or other legal fault (including strict liability) of any of the [Badger Oil] indemnitees, excepting only [Badger Oil’s] gross negligence or willful misconduct.

Considering Gray was the insurer of Da-nos & Curóle, Badger Oil further relied on Section 6(f) of the MSA in making its demands against Gray, contending it is entitled to additional insured status:

f. With respect to all policies of insurance, [Danos & Curóle] shall furnish evidence that [Danos & Curole’s] underwriters waive all rights of subrogation against [Badger Oil] and its underwriters. [Danos & Curóle] shall also furnish evidence that [Badger Oil] is named as an additional assured in all policies of insurance, with the exception of the Workmen’s Compensation policy, and that [Badger Oil] is named as an additional assured in the Comprehensive General Liability and the Automobile Public Liability policies of insurance. However, in no event shall [Badger Oil] receive the benefit of [Danos & |4Curole’s] insurance by additional assured status, waiver of subrogation, or otherwise for [Badger Oil’s] indemnity obligations hereunder or for obligations of any nature not arising under this MSA.

Danos & Curóle, along with Gray, accepted these demands.

Pursuant to a completely separate MSA between Kevin Gros and Badger Oil, Kevin Gros demanded that Badger Oil defend and indemnify it against Mr. Nguyen’s tort claims. In response, Badger Oil sought defense and indemnity from Danos & Cu-róle for its contractual liability to Kevin Gros pursuant to Section 7(a) of the MSA between Badger Oil and Danos & Curóle. Danos & Curóle denied this demand, contending that the language of Section 7(a) does not explicitly require Danos & Curóle to defend and indemnify Badger Oil against its contractual obligations to third parties.

After Underwriters and Badger Oil initially petitioned for declaratory judgment, they filed a Motion for Summary Judgment, seeking a ruling that Danos & Cu-róle and Gray must defend and indemnify Underwriters and Badger Oil against the contractual claims of Kevin Gros. Underwriters and Badger Oil also sought reimbursement for costs and attorney fees incurred in prosecuting their claims for defense and indemnity. In response, both Danos & Curóle and Gray filed cross motions for summary judgment seeking dismissal of the claims for defense and indemnity against the contractual claims of Kevin Gros.

At the hearing on the cross motions for summary judgment, the trial court granted summary judgment in favor of Underwriters and Badger Oil and denied the cross motions of Danos & Curóle and Gray, reasoning that the | ¡¡expansive language in Section 7(a) providing indemnity protection against “any and all claims, demands, causes of action and lawsuits of every kind and character ... for personal injury, death, disease or illness” extended indemnity protection beyond tort liability to contractual liability with third parties. The trial court further noted that although the parties stipulated that Texas law governed the interpretation of MSA, it would not make a specific finding as to whether Texas law or general maritime law applies, as the contract interpretation would be the same under either body of law. Danos & Curóle and Gray now appeal the trial court’s judgment, contending that Texas law should govern the interpretation of this MSA. Furthermore, they argue that they are entitled to summary judgment, as the indemnity provision in the MSA between Badger Oil and Danos & Curóle does not expressly extend to contractual liabilities with third parties, and Badger Oil is not entitled to additional insured status under the Gray policy with Danos & Curóle.

III.

STANDARD OF REVIEW

Choice of law determinations are, by their very nature, questions of law that we review de novo. Wooley v. Lucksinger, 06-1140 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, rev’d in part on other grounds, 09-571 (La.4/1/11), 61 So.3d 507.

We further review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether a genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and 6 Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. In our. review, we shall consider the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-moving party. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence showing a lack of factual support for one or more essential elements to the non-mover’s case. La. Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has met his burden of proof, the burden shifts to the non-mover to produce factual support sufficient to establish that he will be able to meet his burden of proof at trial. Id. If the non-mover fails, the motion for summary judgment should be granted. See id.

IV.

LAW AND DISCUSSION

Choice of Law

While the trial court did not feel it necessary to decide what body of law governs the interpretation of the MSA between Badger Oil and Danos & Curóle, we shall address this issue to resolve the inherent discord between the choice of law provision in the MSA, which requires the application of general maritime law to issues involving offshore work, and the Outer Continental Shelf 17Lands Act (“OCSLA”), which potentially requires the application of the adjacent state law of Texas. The United States Supreme Court explains that “[OCSLA] makes it clear that federal law, supplemented by state law of the adjacent State, is to be applied to these artificial islands as though they were federal enclaves in an upland State.” Rodrigue v. Aetna, Cas. & Sur. Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969). To determine whether adjacent state law applies as surrogate federal law (1) the controversy must arise on a situs covered by OCSLA; (2) federal maritime law must not apply on its own force; and (3) state law must not be inconsistent with federal law. Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 1043 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990) (citing Rodrigue, 395 U.S. 352, 89 S.Ct. 1835). Applying this test to the present case, it is clear that Texas law, as the adjacent state law, governs the interpretation of the MSA in question.

In regards to the situs requirement for contractual claims of indemnity, the Fifth Circuit has held that “the ‘controversy’ ... arises under an OCSLA situs if a majority of the work called for by the contract is on stationary platforms or other enumerated OCSLA sitases.” Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir.2009), cert. denied, 560 U.S. 952, 130 S.Ct. 3386, 177 L.Ed.2d 302 (2010). Here, since the MSA in question called for Danos & Curóle to provide sandblasting and painting services on Badger Oil’s fixed Isplatform located on the OCS off the coast of Texas, the situs requirement is satisfied.

In determining whether federal law applies on its own force, the key question is whether or not the contract is maritime in nature, considering that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22-23, 125 S.Ct. 385, 392, 160 L.Ed.2d 283 (2004). The Fifth Circuit has provided guidance in ascertaining maritime contracts subject to federal maritime law:

Whether the blanket agreement and work orders, read together, do or do not constitute a maritime contract depends, as does the characterization of any other contract, on the “nature and character of the contract,” rather than on its place of execution or performance.
Determination of the nature of a contract depends in part on historical treatment in the jurisprudence and in part on a fact-specific inquiry. We consider six factors in characterizing the contract: 1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury?

Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir.1990) (footnotes omitted).

Considering these factors, the MSA in question is not maritime in nature. The work contemplated in the MSA was for Danos & Curóle to provide painting and sandblasting services to Badger Oil’s fixed platform. There is no mention of any work aboard or in service of a vessel on navigable waters. ^Furthermore, Mr. Nguyen, as an employee of Danos & Cu-róle, was engaged solely in these painting and sandblasting activities at the time of his injury. Since this MSA does not constitute a maritime contract, federal maritime law does not govern on its own force.

Finally, in regards to the third element of the Rodrigue test, Texas law is not inconsistent with federal law. The Fifth Circuit has held that Louisiana’s Oilfield Indemnity Act is not inconsistent with federal law as it relates to non-vessel related indemnity agreements. Knapp v. Chevron USA, Inc., 781 F.2d 1123 (5th Cir.1986), superseded on other grounds by statute, La.Civ.Code art. 466. Considering the Texas Oilfield Indemnity Act is virtually identical to the Louisiana Oilfield Indemnity Act, it follows that the Texas Oilfield Indemnity Act is also not inconsistent with federal law in regards to non-vessel related indemnity agreements. See Tex. Civ. Prac. and Rem.Code § 127.001 et seq.; La. R.S. 9:2780. Furthermore, the rules of contract interpretation for indemnity agreements under Texas law and general maritime law are also practically identical and not inconsistent. See Corbitt v. Diamond M. Drilling Co., 654 F.2d 329 (5th Cir.1981) (holding that indemnity contracts governed by general maritime law should be interpreted to cover all losses and liabilities which appear to be within the contemplation of the parties); Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417 (Tex. 2000) (holding that indemnity agreements in Texas are construed under the normal rules of contract construction with the primary goal of giving effect to the parties’ intent as expressed in the contract).

It is true that the MSA in question contains a choice of law provision mandating that general maritime law shall govern any incident invqlving offshore work, and in the event that general maritime law is deemed judicially inapplicable, | inLouisiana law shall apply. However, the Fifth Circuit has held that choice of law provisions are void and unenforceable in regards to disputes governed by OCSLA, as such “provision[s] violated the federal policy expressed in the [OCSLA], which seeks to apply the substantive law of the adjacent states to problems arising on the Shelf.” Matte v. Zapata Offshore Co., 784 F.2d 628, 631 (5th Cir.), cert. denied, 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986). The Fifth Circuit further noted that “[t]his policy of federal deference reflects the Congress’s recognition of the special relationship which exists between the Outer Continental Shelf and the adjacent states.” Id. Considering Mr. Nguyen’s injuries occurred on the OCS and this indemnity dispute is, therefore, governed by OCSLA, the choice of law provision in the MSA is unenforceable and in violation of federal policy. As such, in applying OCSLA, we recognize that the three factors of the Rodrigue test are satisfied, and thus, Texas law shall govern the MSA.

Danos & Curole’s Indemnity Obligation to Underwriters and Badger Oil

Danos & Curóle contend that the language of Section 7(a) in the MSA does not require Danos & Curóle to defend and indemnify Badger Oil against its contractual obligations to third parties, such as Kevin Gros. We agree.

The Texas Supreme Court has provided the following guidance in interpreting contract provisions:

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense.

\11Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005) (citations omitted).

Applying these principles to the MSA in question, the parties did not intend for Danos & Curóle to indemnify Badger Oil against its contractual liabilities to third parties. Section 7(a) requires that Danos & Curóle indemnify the Badger Oil indem-nitees:

from and against any and all claims, demands, causes of action and lawsuits of every kind and character ... for personal injury, death, disease or illness, whenever occurring, suffered or incurred by [Danos & Curóle], ... arising out of or in any way directly or indirectly related to the work rendered under this MSA by [Danos & Curole][.]

Specifically, the Badger Oil indemnitees covered under Section 7(a) are “[Badger Oil], its principals, subsidiaries and related or affiliated companies, and its and their directors, officers, employees, agents, servants and underwriters[.]” In contrast, Sections 7(e), 7(f), 7(g), and 7(h) of the MSA, which require Danos & Curóle to indemnify Badger Oil against government regulation violations, patent infringement claims, pollution claims, and work damages, all explicitly include “other contractors and invitees to which [Badger Oil] owes indemnification” as indemnitees. When reading the contract in its entirety to achieve harmony among the different provisions, the noticeable absence of this indemnitee clause in Section 7(a) juxtaposed with its inclusion in Sections 7(e), 7(f), 7(g), and 7(h) indicates that the parties did not intend for contractual indemnity claims of third parties to be covered by section 7(a) of the MSA. To hold otherwise would render this indemnitee clause meaningless and run afoul of the well-established principles of Texas contract interpretation.

| ij>Even beyond the desire to harmonize and give effect to the different provisions of the contract, requiring that the parties explicitly state whether third party ihvitees and contractors are included as indemnitees is critical from a policy standpoint, as it provides necessary notice to the indemnitor that it may be liable for claims by parties not privy to the contractual negotiations. While we recognize that Underwriters and Badger Oil have referenced cases that extend indemnification to contractual claims with third parties, it must be noted that the ruling court in each of the cited cases shares our policy sentiment, as they all made note of the fact that the indemnity provisions under review expressly included third party invitees and contractors as indemnitees. See, e.g., Sumrall v. Ensco Offshore Co., 291 F.3d 316, 322 (5th Cir.2002) (reasoning that the employer “expressly agreed to indemnify not only [the company] but also [the company’s] ‘contractors and subcontractors’ ”); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 365 (5th Cir.2009) (reasoning that “the agreement unambiguously encompasses indemnity for [the company] and ‘its contractors’ ”); Ebanks v. Offshore Lifeboats, LLC, 08-1340, p. 5 (E.D.La. 2009), 2009 WL 3834363 (unpublished opinion) (reasoning that the indemnity provision in question “is distinguishable from the indemnity provision in Corbitt in that [the indemnitee provision in question] names ‘[Company], its ... affiliated and interrelated corporations ... and ... subcontractors’ as indemnitees”); Clayton Williams Energy, Inc. v. National Union Fire Ins. Co. of La., 03-2980, p. 15 (E.D.La.2004), 2004 WL 2452780 (unpublished opinion) (reasoning that “the indemnity provision clearly expresses an intent to indemnify not only [the company], but also [the company’s] invitee”). Considering the glaring absence of such an indem-nitee provision in Section 7(a), it | iawould be against public policy to read into this provision an intent to indemnify for contractual liabilities to third parties.

Underwriters and Badger Oil further argue that the expansive language in Section 7(a) providing for indemnification “against any and all claims, demands, causes of action and lawsuits of every kind and character ... for personal injury, death, disease or illness” encompasses contractual indemnification claims of third parties arising from personal injuries. While this language is indeed expansive, it must be read within the context of the entire provision, which limits the scope of this language to claims “for personal injury, death, disease or illness.” The Fifth Circuit has held that indemnity provisions containing qualifying language limiting coverage to claims “for injury or death” effectively limit indemnitees to indemnification against claims grounded in tort. See Foreman v. Exxon Corp., 770 F.2d 490 (5th Cir.1985); Corbitt, 654 F.2d 329. Here, the express language of Section 7(a) is in line with this assertion. The use of the language “for personal injury” in the indemnity provision effectively limits indemnity claims to those grounded in tort. Had the parties intended to include contractual claims that' are consequences of personal injuries, they could have easily used such consequential and encompassing language. Here, such language is absent. “While we are mindful of the policy that, at drilling sites, employers are generally' responsible for their own employees ... we cannot expand the contractual language beyond the contract’s express language.” Nabors Drilling USA, L.P. v. Encana Oil & Gas (USA) Inc., 02-12-00166-CV, p. 5 (Tex.App.-Fort Worth July 11, 2013), 2013 WL 3488152, review denied (Dec. 13, 2013) (unpublished opinion) (citation omitted). Badger Oil’s contractual liability claim, while a consequence of a personal injury, is not a claim grounded in tort. |uConsequently, it is not covered by Section 7(a), irrespective of the other expansive language in the indemnity provision.

Gray’s Insurance Obligation to Underwriters and Badger Oil

While Gray was required to name Badger Oil an additional assured under the MSA, such coverage has its limits. Section 6(f) of the MSA between Danos & Curóle and Badger Oil states that “[Danos & Curóle] shall ... furnish evidence that [Badger Oil] is named as an additional assured in all policies of insurance[.]” However, Section 6(f) also states that “in no event shall [Badger Oil] receive the benefit of [Danos & Curole’s] insurance by additional assured status, waiver of subro-gation, or otherwise for [Badger Oil’s] indemnity obligations hereunder or for obligations of any nature not arising under this MSA.” As discussed above, indemnification against Badger Oil’s contractual liabilities to Kevin Gros does not arise under this MSA. As such, Underwriters and Badger Oil are not entitled to additional assured status under the Gray insurance policy with Danos & Curóle.

Summary Judgment

Because the MSA can be construed from the four corners of the instrument without looking to extrinsic evidence, the contractual interpretation of the agreement is a matter of law, and summary judgment is appropriate. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741; LaFleur v. Hollier Floor Covering, Inc., 00-969 (La.App. 3 Cir. 12/6/00), 774 So.2d 359. After reviewing the MSA between Danos & Curóle and Badger Oil, we conclude that it does not require Danos & Curóle to indemnify and defend Badger Oil against its contractual liabilities to Kevin Gros. We further conclude that Badger Oil is not covered under 11fithe Gray insurance policy with Danos & Curóle, as Badger Oil does not qualify as an additional insured under the MSA. We, therefore, reverse the trial court’s granting of summary judgment in favor of Underwriters and Badger Oil and grant summary judgment in favor of Da-nos & Curóle and Gray, dismissing all claims against Danos & Curóle and Gray with prejudice.

V.

CONCLUSION

For the foregoing- reasons, we amend the ruling of the trial court, finding that Texas law governs the interpretation of the Master Service Agreement between Badger Oil and Danos & Curóle. We further reverse the trial court’s granting of summary judgment in favor of Underwriters and Badger Oil and grant summary judgment in favor of Danos & Curóle and Gray, dismissing all claims with prejudice. Costs are assessed against Underwriters and Badger Oil.

AMENDED IN PART, REVERSED IN PART AND RENDERED.

      . Badger Oil and Underwriters settled claims with Mr. Nguyen against Kevin Gros. They now only seek indemnity for defense costs and setdement amounts from Danos & Curóle and Gray.

      . Section 23 of the MSA between Badger Oil and Danos & Curóle states:
      23. Applicable Law
      In the event the WORK consists of any offshore WORK, this MSA shall be governed by, construed and interpreted in accordance with the General Admiralty and Maritime Law of the United States. In the event the WORK consists exclusively of onshore WORK, or if the General Maritime or Admiralty Laws of the United States are judicially determined to be inapplicable, or if the General Maritime or Admiralty Laws calls for the application of state law, this MSA shall be governed by, construed and interpreted in accordance with the laws of the State of Louisiana, excluding any choice of law rule which may direct the application of the laws of another state.


author: GREMILLION, Judge.

text:
    Evelyn Thiels HOLT, et ux v. ACE AMERICAN INSURANCE COMPANY, et al.
    No. 14-380.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Steven Patrick Mansour Attorney at Law Alexandria, LA, for Plaintiffs/Appel-lees, Evelyn Thiels Holt, Chris Holt.
    John Patrick Guillory, The Dill Firm, APLC, Lafayette, LA, Eric K. Habig, Attorney Pro Hac Vice, Indianapolis, IN, for Defendant/Appellant, Ace American Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

IjAce American Insurance Company, the liability insurer of the several defendants in this matter, appeals the award of statutory penalties and attorney fees pursuant to La.R.S. 22:1978. Plaintiff/appellee, Evelyn Thiels Holt, answered the appeal and requests attorney fees for the appeal and for attorney fees for a frivolous appeal under La.Code Civ.P. art. 2133. For the following reasons, we affirm in part and reverse in part.

FACTS

Mrs. Holt alleged that on July 15, 2009, she was driving her Ford Explorer on Louisiana Highway 28 West when she was rear-ended by a tractor-trailer rig driven by Mr. Robert L. Ervin. Mrs. Holt and her husband, Chris, filed suit against Mr. Ervin; his employer, Byas Transport, L.L.C.; Greatwide Dedicated Transport, L.L.C., the lessee of the rig; and Ace American, the defendants’ insurer.

When a settlement was perfected is the crucial issue. The “SETTLEMENT AND RELEASE AGREEMENT” was signed by the Holts and their counsel on January 21, 2013. However, prior to that, the parties had procured the services of Mr. Vincent Fornias, an attorney and mediator, to assist them in settling the matter. There followed a series of e-mails between Mr. Fornias, Mr. Mansour for the Holts, and Mr. Habig for the defendants. This exchange of e-mails occurred on Wednesday, December 26, 2012:

-Original Message-

From: Vincent Fornias < [redacted] >

To: Steven P. Mansour < [redacted] > Sent: Wed, Dec 26, 2012 1:31 pm Subject: Re: Holt matter Steve, if u r willing to eat your share of mediation and clerk of court costs (Ha-big’s face saver) I believe we have a deal at 150K.' But has to be accepted by this Friday. There will be a small supplemental charge for ny (sic) fillow (sic) up time with each of you. Please confirm. Vince

| 2From: “Steven P. Mansour” < [redacted^

Date: December 26, 2012, 2:57:39 PM EST

To: [Mr. Fornias] [redacted]

Cc: [Mr. Holt] [redacted]

Subject: Re: Holt matter

Vince:

I just talked with the Holt’s. From your email, I advised them of the following facts: Greatwide will settle with the Holt’s by paying $150,000.00, plus Great-wide will pay their own clerk of court costs and Greatwide will pay one-half of your mediation costs and fees, to include any supplemental charges for the work you have performed since the date of mediation. In exchange for those payments and assumption of fees and costs, Mr. and Mrs. Holt will accept payment of $150,000.00, plus the Holt’s will pay their own clerk of court costs and one-half of the mediation fees and costs incurred, to include the supplemental charges by you for your work since the mediation conference in Baton Rouge. Additionally, the Holt’s will dismiss their claims against all defendants.

Please have Greatwide, through their counsel, confirm the terms of the compromise settlement to insure that it is an enforceable compromise agreement. I would like to have that confirmation as soon as possible, so I can cancel the pending work being performed by my experts.

For Greatwide’s records, my tax ID# [redacted].

Steven P. Mansour

Attorney & Counselor at Law

Suite One, Rayford Building

2230 South MacArthur Drive

Alexandria, Louisiana 71301

Telephone (318) 442-4855

Fax (318) 484-2777 [redacted]

Mr. Fornias then forwarded Mr. Mans-our’s e-mail to Mr. Habig:

From: Vincent Fornias [mailto: [redacted]]

Sent: Wednesday, December 26, 2012 03:01 PM

To: Habig, Eric

Subject: Fwd: Holt matter

Eric, please confirm asap. Thanks!

Vince Fornias

Sent from my iPhone

who responded:

On Dec 26, 2012, at 4:44 PM, “Habig, Eric” < [redacted] > wrote:

Vince,

Thanks for the a-mail. This will confirm Greatwide agrees to the settlement per the e-mail string below. I will send a draft Settlement and Release Agreement to Steve via John in the next few days.

Thanks again for your efforts.

Eric Habig

|3A draft for the $150,000.00 settlement proceeds and the formal Settlement and Release Agreement were forwarded to Mr. Mansour. As already stated, the Holts duly executed the document, but their case was not dismissed.

On October 10, 2013, the defendants filed a Motion to Enforce Settlement Agreement in which they prayed that the Holts be compelled to execute a joint dismissal of the case and that the Holts be taxed with reasonable attorney fees. The Holts filed a motion to enforce the settlement agreement themselves and therein sought attorney fees and penalties.

The motions were heard on December 9, 2013. The trial court granted the Holts’ motion and assessed Ace American with a $5,000.00 penalty in favor of Mrs. Holt, a $5,000.00 penalty in favor of Mr. Holt, and attorney fees of $4,000.00. This appeal ensued.

ASSIGNMENTS OF ERROR

Ace American contends the trial court committed three errors: 1) finding that the settlement was reduced to writing in the exchange of e-mails, rather than the actual release document of January 21, 2013; 2) abuse of discretion in awarding penalties and attorney fees under La.R.S. 22:1973; and 3) denying its demand for attorney fees for bringing a meritless motion for enforcement of the judgment.

ANALYSIS

Settlements of claims are governed by Title XVII of Book III of the Louisiana Civil Code, entitled, “Compromise.” Article 3071 provides that “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” The Louisiana Supreme Court has stated that article “provides |4for two elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences.” Trahan v. Coca Cola Bottling Co. United, Inc., 04-100, p. 10 (La.3/2/05), 894 So.2d 1096,1104.

A compromise must be made in writing or recited in open court and recorded so that it is susceptible of transcription. La.Civ.Code art. 3072. The compromise, though, need not be contained in a single document. Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981). Only those differences that the parties clearly intended to settle are compromised. La.Civ.Code art. 3076. “The same rules of contractual interpretation apply to compromises as to other contracts.” Broussard v. Brown’s Furniture of Lafayette, Inc., 13-596, p. 4 (La.App. 3 Cir. 12/11/13), 128 So.3d 640, 643, writ denied, 14-333 (La.4/11/14), 138 So.3d 605. Finally, we note that our colleagues on the Louisiana Second Circuit Court of Appeal have held that the writing requirement of the article can be satisfied by an exchange of e-mails. See Klebanoff v. Haberle, 43,-102 (LaApp. 2 Cir. 3/19/08), 978 So.2d 598.

Because compromises are only given the effect the parties intended, the trial court’s determination of what was intended is subject to review under the manifest error standard. Feingerts v. State Farm Mut. Auto. Ins. Co., 12-1598, 13-23 (La.App. 4 Cir. 6/26/13), 117 So.3d 1294, writ denied, 13-2156 (La.11/22/13), 126 So.3d 489. The manifest error standard requires that this court review the record in its entirety, not to determine whether the trial court’s findings are wrong, but whether they find reasonable support in the record, even though the reviewing court is convinced that its interpretation is more reasonable. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

1 ¡/Therefore, our task is to review the evidence and determine whether the trial court’s determination that the settlement was reduced to writing by virtue of the e-mail exchanges meets the test set forth by the supreme court in Trahan.

The e-mail forwarded to Mr. Fornias by Mr. Mansour stated that his clients would accept payment of $150,000.00. Mr. Ha-big’s reply to Mr. Fornias indicated an agreement to this payment. In exchange for the payment, the Holts agreed to pay the costs they had incurred with the clerk of court in prosecuting the claim, as well as one-half of the charges for Mr. Fornias’s services, and to dismiss their demands against all defendants. Mr. Mansour also asked that Mr. Habig confirm this agreement “to insure (sic) that it is an enforceable compromise agreement.”' The payment of the $150,000.00 and dismissal of suit represent mutual concessions. That the suit would be dismissed upon payment reflects the mutual intention of ending the litigation.

We are unable to conclude that the trial court manifestly erred in finding that the settlement agreement was reduced to writing on December 26, 2012. Ace American’s first assignment of error is without merit.

Ace American, in its second assignment of error, contends that the trial court abused its discretion in awarding penalties and attorney fees for the violation of Section 1973. We note that subsection (C) provides (emphasis added):

In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

Thus, this court has held that a trial court’s award of penalties and attorney fees pursuant to Section 1973 is discretionary. Nolan v. Audubon Ins. Group, 10-13621 6(La.App. 3 Cir. 3/9/11), 59 So.3d 487, writ denied, 11-987 (La.6/24/11), 64 So.3d 218. However, Louisiana law does not allow for an award of attorney fees except where specifically provided for by statute or contract. State, Dep’t of Transp. & Dev. v. Williamson, 597 So.2d 439 (La.1992). Section 1973 does not provide for an award of attorney fees; therefore, as a matter of law, the trial court erred in awarding attorney fees against Ace American, and we reverse that award.

Louisiana courts have generally equated an abuse of discretion to unwarranted or arbitrary and capricious exercises of discretion. See Yuma Petroleum Co. v. Thompson, 98-1399 (La.3/2/99), 731 So.2d 190. We find no such unwarranted, arbitrary, or capricious exercise of the trial court’s discretion. There was no dispute among the parties as to the terms of the settlement. Ace American argues that the purpose of La.R.S. 22:1973 is to deter bad faith conduct. It further argues that the final terms of the agreement were to be hammered out and finalized in the subsequently-executed document. However, a perusal of the executed document reveals that three additional conditions were called for outside of what was included in the email exchanges: conferring with the Centers for Medicare and Medicaid Services to ascertain whether Mrs. Holt was eligible for or received such services; indemnity of the defendants from all related claims; and confidentiality. We would be more persuaded by Ace American’s argument had these provisions not been included in the settlement, as these are quite typically found. The $150,000.00 check was dated February 14, 2013, fifty days after the exchange of e-mails. Thus, under the terms of La.R.S. 22:1973(B)(2), the payment was late.

Because we affirm the trial court’s factual finding and the award of penalties, we need not address Ace American’s third assignment of error; obviously, 17afiirming the trial court obviates a finding that the Holts’ motion for penalties was frivolous.

Lastly, we address Mrs. Holt’s answer of the appeal. As we have already noted, Louisiana law does not allow for an award of attorney fees except where specifically provided for by statute or contract. State, Dep’t of Transp. & Dev., 597 So.2d 439. The sole statutory provision at issue in this matter is La.R.S. 22:1973, which does not provide for an award of attorney fees, only damages. “Normally, when a plaintiff seeks relief that was denied at the trial level, and such relief is again denied on appeal, an increase in attorney’s fees for services rendered on appeal is unwarranted.” Stacks v. Mayflower Transit, Inc., 95-693, p. 5 (La.App. 3 Cir. 11/2/95), 664 So.2d 566, 569. The only statutory authority for an award of attorney fees on appeal when the trial court is without authority to award them is found in La.Code Civ.P. arts. 2133 and 2164. These only authorize an award of attorney fees for a frivolous appeal. We find that Ace American’s appeal is not frivolous; it presented a cogent argument that the settlement was not perfected until the signing of the receipt and release. Accordingly, attorney fees pursuant to La. Code Civ.P. art. 2133 are denied.

The award of penalties in favor of Evelyn Thiels Holt and Chris Holt are affirmed. The award of attorney fees in favor of the Holts is reversed, and her demand for attorney fees on appeal are denied. All costs of this appeal are taxed to Ace American Insurance Company.

AFFIRMED IN PART, REVERSED IN PART.

      . Redacted by court.


author: AMY, Judge.

text:
    STATE of Louisiana v. Herbert William PARKER.
    No. 14-393.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee: State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: Herbert William Parker.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hThe defendant pled guilty to second degree kidnapping, a violation of La.R.S. 14:44.1. The trial court imposed a sentence of thirty years imprisonment at hard labor, with ten years suspended. Further, the trial court ordered that, upon the defendant’s release, he be subject to five years of supervised probation, and ordered various fees and conditions of probation. The defendant appeals. Finding an error patent, we vacate the defendant’s sentence and remand for resentencing.

Factual and Procedural Background

According to the State, the defendant, Herbert William Parker, and an accomplice, Nicholas Broussard, “banged” on the door of an apartment and identified themselves as police officers. When the occupant of the apartment, Tanner Tittsworth, answered the door, the defendant and Mr. Broussard forced their way inside, where they beat Mr. Tittsworth and demanded money. Because Mr. Tittsworth did not have any money, he gave the two men his debit card and PIN number. After arming themselves with a box cutter, the defendant and Mr. Broussard forced Mr. Tittsworth into his car and drove him to a truck stop, where Mr. Broussard attempted to obtain money from an ATM with Mr. Tittsworth’s debit card. Mr. Tittsworth was able to escape from the vehicle and confront Mr. Broussard. Both the defendant and Mr. Broussard ran from the scene and were later arrested.

The defendant and Mr. Broussard were initially charged with home invasion, a violation of La.R.S. 14:62.8; aggravated kidnapping, a violation of La.R.S. 14:44; and armed robbery, a violation of La.R.S. 14:64. Thereafter, pursuant to a plea agreement, the defendant pled guilty to a reduced charge of second degree | ^kidnapping, a violation of La.R.S. 14:44.1, and the State nolle prossed the remaining charges. The record reveals that, as part of the plea agreement, there was a joint recommendation that the defendant be sentenced to fifteen years imprisonment at hard labor, with ten years suspended, and five years of supervised probation upon the defendant’s release. However, the trial court imposed a sentence of thirty years imprisonment at hard labor, with ten years suspended, and five years of supervised probation upon the defendant’s release. The trial court also imposed various fees and conditions of probation.

The defendant appeals, asserting that his sentence is unconstitutionally excessive.

Discussion

Error Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all criminal appeals for errors patent on the face of the record. After performing such a review, we note an error which requires vacating the defendant’s sentence and remanding for re-sentencing.

The sentencing provisions of La. R.S. 14:44.1 state that “[wjhoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.” The transcript from the defendant’s guilty plea and sentencing hearing reveals that the trial court sentenced the defendant to “30 years with the Department of Corrections^]” with ten years suspended and five years of supervised probation upon release. The trial court also ordered several conditions of probation, fees, and left the matter of restitution open for a later hearing.

13However, our review of the record indicates that the trial court did not specify the portion of the defendant’s sentence to be served without the benefit of parole, probation, or suspension of sentence. Where the trial court is silent as to the portion of a sentence to be imposed without benefits, the provisions of La.R.S. 16:301.1 typically obviate the need to correct the sentence. However, “where the statute gives the trial court discretion as to the number of years imposed to be served without benefits, the reviewing court should vacate the illegally lenient sentence and remand for resentencing.” State v. Ourso, 10-1133, p. 3 (La.App. 3 Cir. 6/1/11), 67 So.3d 684, 685-86.

Accordingly, we vacate the defendant’s sentence for second degree kidnapping and remand for resentencing.

Excessive Sentence

The defendant contends that his sentence is unconstitutionally excessive. However, as we have vacated the defendant’s sentence and remanded for resen-tencing, we need not reach the issue of excessiveness.

DECREE

For the foregoing reasons, the sentence of the defendant, Herbert William Parker, for second degree kidnapping is vacated and remanded for resentencing.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . The defendant is also referred to in the record as "William Herbert Parker.”