text:
    STATE of Louisiana v. Conrad RICHARD.
    No. 2013-KK-0416.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Richard, Conrad;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 337-454; to the Court of Appeal, Fourth Circuit, No. 2012-K-1724.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    DUPREE TRACTOR COMPANY, INC. and Dupree Land Properties, L.L.C. v. STATE of Louisiana through the LOUISIANA STATE LAND OFFICE.
    No. 2013-CC-0409.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Lavin, John; State of Louisiana through the Louisiana State Land Office et al.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. O, No. 35629; to the Court of Appeal, Second Circuit, Nos. 48,046-CW, 48,052-CW.

Denied.


text:
    In re Medical Review Panel Proceeding of ROBINSON.
    No. 2013-C-0401.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Robinson, Ruthie;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 134650; to the Court of Appeal, Second Circuit, No. 47,-380-CA.

Denied. Untimely. See Louisiana Supreme Court Rule X, § 5(a).'


text:
    STATE of Louisiana v. Robert McCOY.
    No. 2013-KK-0400.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re McCoy, Robert;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 163,572; to the Court of Appeal, Second Circuit, No. 48083-KW.

Denied.


text:
    STATE of Louisiana v. Byron HUDSON.
    No. 2013-KK-0555.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 487-955; to the Court of Appeal, Fourth Circuit, No. 2012-K-1449.

Granted.


text:
    STATE ex rel. Willie FULLILOVE v. STATE Of Louisiana.
    No. 2012-KH-2506.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Fullilove, Willie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 98-3922; to the Court of Appeal, Fifth Circuit, No. 12-KH-726.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Mozine JOHNSON v. STATE of Louisiana.
    No. 2012-KH-2505.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Johnson, Mozine;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 05-2244; to the Court of Appeal, Fifth Circuit, No. 12-KH-647.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Akeem FALKINS v. STATE of Louisiana.
    No. 2012-KH-2484.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Falkins, Akeem;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, Nos. 09-1133, 09-3283; to the Court of Appeal, Fifth Circuit, No. 12-KH-671.

Denied.


text:
    STATE ex rel. Stephen JOHNSON v. STATE of Louisiana.
    No. 2012-KH-2481.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Johnson, Stephen;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 295-624; to the Court of Appeal, Fourth Circuit, No. 2012-K-1363.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Anderson B. CLARK v. STATE of Louisiana.
    No. 2012-KH-2480.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Clark, Anderson B.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F. No. 358-792; to the Court of Appeal, Fourth Circuit, No. 2012-K-1411.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Dale GAVER v. STATE of Louisiana.
    No. 2012-KH-2479.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Gaver, Dale;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 88-0961; to the Court of Appeal, Third Circuit, No. KH 12-00386.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Charles CARTER v. STATE of Louisiana.
    No. 2012-KH-2477.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Carter, Charles;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 59370; to the Court of Appeal, First Circuit, No. 2012 KW 1443.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Jeremy COLEMAN v. STATE of Louisiana.
    No. 2012-KH-2476.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Coleman, Jeremy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 266,164; to the Court of Appeal, Second Circuit, No. 47714-KW.

Denied.


text:
    STATE ex rel. Percy ALLEN v. STATE of Louisiana.
    No. 2012-KH-2475.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Allen, Percy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 474-262; to the Court of Appeal, Fourth Circuit, No. 2012-K-1472.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Tyrone YOUNG v. STATE of Louisiana.
    No. 2012-KH-2446.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Young, Tyrone;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 351-026; to the Court of Appeal, Fourth Circuit, No. 2012-KO-1179.

Denied.


text:
    STATE ex rel. Clarence Walker NELSON v. STATE of Louisiana.
    No. 2012-KH-2445.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Nelson, Clarence Walker;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. C9236; to the Court of Appeal, Third Circuit, No. KA 12-11.

Denied.


text:
    STATE ex rel. Charles D. EMERICH v. STATE of Louisiana.
    No. 2012-KH-2444.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Emerich, Charles D.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. F, No. 851,079-A; to the Court of Appeal, Second Circuit, No. 47,792-KH.

Denied.


text:
    STATE ex rel. Christopher BAZILE v. STATE Of Louisiana.
    No. 2012-KH-2443.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Bazile, Christopher;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. B, No. 79846; to the Court of Appeal, Second Circuit, No. 47,-412-KA.

Denied.


text:
    STATE ex rel. Jason Lee SHORT v. STATE of Louisiana.
    No. 2012-KH-2442.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Short, Jason Lee;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 05-796; to the Court of Appeal, Third Circuit, No. KW 11-01446.

Denied.


text:
    STATE ex rel. Michael SMITH v. STATE of Louisiana.
    No. 2012-KH-2438.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Smith, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 368-352; to the Court of Appeal, Fourth Circuit, No. 2012-K-1339.

Denied.


text:
    STATE ex rel. Robert Kevin McCartney v. STATE of Louisiana.
    No. 2012-KH-2376.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re McCartney, Robert Kevin;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 234,925; to the Court of Appeal, Third Circuit, No. KH 12-00975.

Denied.


text:
    STATE ex rel. James VEAL v. STATE of Louisiana.
    No. 2012-KH-2373.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Veal, James;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 09-2050; to the Court of Appeal, Fifth Circuit, No. 12-KH-741.

Denied.


text:
    James A. WAYNE, Sr. v. CAPITAL AREA LEGAL SERVICES CORPORATION. James A. Wayne, Sr. v. Capital Area Legal Services Corporation.
    No. 2012-C-2343.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Capital Area Legal Services Corporation;—Defendants; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 599,578 C/W 600,715; to the Court of Appeal, First Circuit, Nos. 2011 CA 1988, 2011 CA 1989.

Denied. The court of appeal remanded the matter to the trial court for an eviden-tiary hearing at which all bases for summary judgment may be considered in light of LHSAA v. State, 2012-1471 (La.1/29/13); 107 So.3d 583.


text:
    STATE of Louisiana v. Byran Louis FOGLEMAN.
    No. 2012-KO-2336.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Fogleman, Byran Louis;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. D, No. 303,545; to the Court of Appeal, Third Circuit, No. KA 12-16.

Denied.


text:
    STATE of Louisiana v. Ricky J. DUCRE.
    No. 2012-KO-2329.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Ducre, Ricky J.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 461375; to the Court of Appeal, First Circuit, No. 2012 KA 0269.

Denied.


text:
    STATE of Louisiana v. Elroy COOPER.
    No. 2012-KO-2308.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Cooper, Elroy;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 460214-1; to the Court of Appeal, First Circuit, No. 2012 KA 0227.

Denied.


text:
    STATE of Louisiana v. James W. MARTIN.
    No. 2012-K-2302.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Martin, James W.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 478933; to the Court of Appeal, First Circuit, No. 2012 KA 0234.

Denied.


text:
    STATE of Louisiana v. Derrick Dewayne GRANT.
    No. 2012-K-2279.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Grant, Derrick Dewayne;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 232,405; to the Court of Appeal, Second Circuit, No. 47,365-KA.

Denied.


text:
    STATE of Louisiana v. Michael L. MEYERS III.
    No. 2012-K-2274.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Meyers III, Michael L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 494-191; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1145.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Michael W. HOOD.
    No. 2012-KO-2265.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Hood, Michael W.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 76571; to the Court of Appeal, Third Circuit, No. KA 12-282.

Denied.


text:
    STATE of Louisiana v. Jonathan L. CITIZEN.
    No. 2012-KO-2264.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Citizen, Jonathan L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. F, No. 75,174; to the Court of Appeal, Third Circuit, No. 12-58.

Denied.


text:
    STATE of Louisiana v. Deshaun TORREGANO.
    No. 2012-KO-2254.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Torregano, Deshaun;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 487-799; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1671.

Denied.


text:
    STATE of Louisiana v. Joseph PARKER.
    No. 2012-KO-2253.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Parker, Joseph;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 492-662; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1714.

Denied.


text:
    STATE of Louisiana v. Joseph L. CAMMATTE.
    No. 2012-KO-2247.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Cammatte, Joseph L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 08-5790; to the Court of Appeal, Fifth Circuit, No. 12-KA-55;

Denied.


text:
    STATE ex rel. Johnathan Tramaine GIVENS v. STATE of Louisiana.
    No. 2012-KH-1953.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Givens, Johnathan Tramaine;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 253,104; to the Court of Appeal, Second Circuit, No. 45,246-KA.

Denied.


text:
    STATE in the Interest of K. B.
    No. 2012-CK-1868.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re State of Louisiana;—Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2012-037-01 DQ F; to the Court of Appeal, Fourth Circuit, No. 2012-C-0748.

Denied.


text:
    Ted S. DAVIS v. LOUISIANA CITIZENS FAIR PLAN.
    No. 2012-CC-0370.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Louisiana Citizens Property Insurance Corporation;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 685-560; to the Court of Appeal, Fifth Circuit, No. 11-C-1047.

Denied. See Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12), — So.3d —.


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2012-KH-2224.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Spencer, Edmond D.;—Plaintiff; Applying for Reconsideration of this court’s action dated March 1, 2013, Parish of Washington, 22nd Judicial District Court Div. E, No. 96-CR1-064076; to the Court of Appeal, First Circuit, No. 2012 KW 1253.

Reconsideration denied.


text:
    Bianka BEARDON v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CC-2654.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Louisiana Citizens Property Insurance Corporation;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 09-11295; to the Court of Appeal, Fourth Circuit, No. 2011-C-1319.

Denied.


text:
    JABOUR'S INCOME TAX & SERVICE, LLC v. ALLFAX SPECIALTIES, INC.
    No. 2013-CC-0468.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Jabour’s Income Tax & Service, LLC;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 712627; to the Court of Appeal, Fifth Circuit, No. 13-C-30.

Not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Darrell PRATER.
    No. 2013-KK-0051.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Prater, Darrell;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. 2011-6022; to the Court of Appeal, Third Circuit, Nos. KW 12-00953, KW 12-00953.

Writ granted. The judgment of the court of appeal is reversed The judgment of the trial court is reinstated.

GUIDRY, J., would deny the writ.


text:
    Lula HARRIS v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2012-CC-1519.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Harris, Lula;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 687-448; to the Court of Appeal, Fifth Circuit, No. 12-C-127.

Granted. The case is remanded to the court of appeal for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) — So.3d —, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.


text:
    Olin LORY, Jr. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 2012-C-1229.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Lory Jr., Olin;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2008-16829; to the Court of Appeal, First Circuit, No. 2011 CA 1621.

Granted. The case is remanded to the court of appeal for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) — So.3d —, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.

HUGHES, J., recused.


text:
    Doric and Fannie WILKIENSON v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 2012-C-1228.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Wilkienson, Doric; Wilkienson, Fannie;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2008-16823; to the Court of Appeal, First Circuit, No. 2011 CA 1421.

Granted. The case is remanded to the court of appeal for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) So.3d, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.

HUGHES, J., recused.


text:
    Susan FERRERA v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2012-CC-0377.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Louisiana Citizens Property Insurance Corporation; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 114-467; to the Court of Appeal, Fourth Circuit, No. 2011-C-1556.

Granted. The case is remanded to the district court for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) — So.3d —, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.


text:
    Donald and Diann ALBERT v. LOUISIANA FAIR PLAN INSURANCE COMPANY.
    No. 2012-CC-0130.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Louisiana Citizens Property Insurance Corporation;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 09-12442; to the Court of Appeal, Fourth Circuit, No. 2011-C-1490.

Granted. The case is remanded to the district court for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) — So.3d —, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.


text:
    Jessi MACK v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CC-2824.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Louisiana Citizens Insurance Corporation;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 10-4626; to the Court of Appeal, Fourth Circuit, No. 2011-C-1275.

Granted. The case is remanded to the district court for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.11/2/12) — So.3d —, and Quinn v. Louisiana Fair Plan Ins. Co., 12-0152 (La.11/2/12) — So.3d —.


text:
    VADA GROUP, LP v. John L. GLASER, April Marie Glaser Bergeron, Charity Ann Glaser, Pauline Marie Glaser, Angelle Aline Glaser, Theodore H. Glaser, III, Cynthia Long Steib, Charles R. Glaser, Audrey Glaser Browning, John Burton Prather, Jeanette Prather Heinen, Georgie Fay Prather, Cynthia Prather Robertson, Johnnie Prather Olinger, Yvonne Prather Cramer, Michael J. Cramer, Anthony E. Cramer, Rhena Vienne Cramer, Brent Beauvais, Cynthia Marie Beauvais, Jodie Henderson Williams, Sr., Charles G. Chauvin, Stacy Marie Chauvin Gueho, Gretchen Ann Chauvin Alleman, Jason Andrew Chauvin, Adair Chauvin Chutz, Shirley Ballard Elam, Frederick Domingue, Michael Northern, Sylvia Northern, Brenda Sam and David Michael Moye.
    No. 2012-C-2064.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Cramer, Anthony E.; Cramer, Michael J.; Cramer, Rhena Vienne; Cramer, Yvonne Prather; Heinen, Jeanette Prather; Olinger, Johnnie Prather; Prather, Georgie Fay; Prather, John Burton; Robertson, Cynthia Prather; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 41,759; to the Court of Appeal, First Circuit, No. 2011 CA1243.

Granted.


text:
    Appeal of the Decision of the DISCIPLINARY BOARD NO. 12-PDB-105.
    No. 2013-OB-0453.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Alexander, Dwayne;—Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 12-PDB-105.

Leave to appeal denied.


text:
    In re Randy J. UNGAR.
    No. 2013-OB-0521.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Disciplinary Counsel;—Other; Applying For Findings and Recommendations (Reinstatement) Office of Disciplinary Board, No. 12-DB-030.

Petition for reinstatement denied. Petitioner may not reapply for reinstatement until at least two years have passed from the date of this judgment. Supreme Court Rule XIX, Section 24(1).

WEIMER, GUIDRY and HUGHES, JJ., would grant reinstatement.


text:
    STATE of Louisiana v. Rogers LACAZE.
    No. 2013-KD-0545.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 375-992; to the Court of Appeal, Fourth Circuit, No. PENDING.

Denied.


text:
    Laura Kelley GHOLSTON v. Robert Matthew GHOLSTON.
    No. 2013-CC-0540.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re Gholston, Robert Matthew;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. M, No. 2012-3792; to the Court of Appeal, Third Circuit, No. CW13-00086.

Denied.


text:
    James WALKER and Raynette Walker v. Price LEBLANC, Shirley Leblanc and Farmers Insurance Exchange.
    No. 2013-C-0539.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re Walker, James; Walker, Ray-nette;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 66,486; to the Court of Appeal, First Circuit, No. 2012 CA 0764.

Denied.


text:
    Ryan BREAUX, et al. v. LOUISIANA PATIENT'S COMPENSATION FUND.
    No. 2013-C-0538.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re Louisiana Patient’s Compensation Fund;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. G, No. 75688; to the Court of Appeal, Third Circuit, No. CA 12-878.

Denied.

GUIDRY, J., would grant.


text:
    Helen B. EGAN v. Marianne SULLIVAN, Administrator, Office of Unemployment Insurance; Hospital Service District No. 1 of Tangipahoa Parish, d/b/a North Oaks Medical Center.
    No. 2013-C-0537.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re Egan, Helen B.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, Appeal Tribunal/ Office of Regular Services, No. H00027 AT 2011; 21st Judicial District Court Div. D, No. 2011-0001960; to the Court of Appeal, First Circuit, No. 2012 CA 0741.

Denied.


text:
    Tyrone ROBINSON v. DEPARTMENT OF POLICE.
    No. 2013-C-0528.
    Supreme Court of Louisiana.
    April 12, 2013.
   In re City of New Orleans;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil Service Commission, No. 7667; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1039.

Denied.


author: McClendon, j.

text:
    STATE of Louisiana v. Shedrick READO, III.
    No. 2012 KA 0409.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Joseph Waitz, District Attorney, Houma, LA, by Ellen Daigle Doskey, Assistant District Attorney, for Appellee State of Louisiana.
    Bertha M. Hillman, Thibodaux, LA, for Defendant/Appellant Shedrick Reado, III.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McClendon, j.

| ^Defendant, Shedrick Reado, III, was charged by bill of information with armed robbery (count one) and aggravated flight from an officer (count two), violations of LSA-R.S. 14:64 and LSA-R.S. 14:108.1(0). Defendant initially pled not guilty on both charges but subsequently entered a plea of guilty as charged on count two, and proceeded to trial on count one. Defendant was found guilty as charged upon trial by jury on count one and was sentenced to seventy years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two he was sentenced to two years imprisonment at hard labor, to run concurrently with the sentence imposed on count one. The trial court denied defendant’s motion to reconsider sentence. Defendant now appeals, raising the constitutionality of the sentence and the trial court’s denial of his motion to reconsider sentence. For the following reasons, we affirm the convictions and the sentences.

STATEMENT OF FACTS

On March 10, 2010, at approximately 7:30 a.m., defendant entered Gaubert’s Food Mart and Texaco Station in Houma, Louisiana, and purchased a cup of coffee. Roberta Pitre, the manager at the time, was present and served defendant. Pitre observed defendant put his coffee cup on the counter and walk behind the counter, armed with a knife. Defendant commanded Pitre to get in the corner and open the cash register. Defendant was standing a “[c]ouple of inches” away from the victim at the time. The victim complied with defendant’s commands and defendant removed the cash from the cash register. Defendant then commanded the victim to give him the money from the store’s safe and the victim again complied. Because the victim was in the middle of paperwork when defendant entered the store, the safe was unlocked at the time and the money |awas being stored in an unlocked bank bag. The victim gave defendant the bank bag of cash and he proceeded to leave. He told the victim to exit the store with him. As she followed defendant to the exit, a customer drove up and defendant fled to his vehicle. The victim locked the store doors and called the police.

Deputy Teron Stokes and Detective Jason Kibodeaux of the Terrebonne Parish Sheriff’s Office were dispatched to the scene. The victim reported the details of the incident, including a description of the perpetrator (a tall black male), the knife, the getaway vehicle (a blue and white pickup truck), and the direction in which the perpetrator travelled after the offense. Later that day, after defendant was apprehended, the victim further identified defendant as the perpetrator. During the subsequent execution of a search warrant for defendant’s' vehicle, the police recovered and seized a large sum of cash totaling $1,630.58, a black and tan six-inch pocketknife from the driver’s side door panel, and a small utility or razor-blade knife from the center console. At the trial, defendant stipulated to the commission of the elements of the offense with the exception of being armed with a dangerous weapon. The facts of the aggravated flight from an officer offense were not fully developed during the trial since defendant entered a guilty plea to that offense before the opening remarks.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends that the sentence is excessive and constitutes cruel and unusual punishment under the facts of this case. In that regard, he argues that the trial court erred in denying his motion to reconsider sentence. Defendant argues that the trial court failed to give adequate consideration to the following mitigating circumstances: he did not threaten the victim; he was forty-five years old at the time of the sentencing and will thus serve a life sentence based on the sentencing; and he admitted that he committed the robbery. Defendant notes that most of the aggravating factors listed in LSA-C.Cr.P. art. 894.1 are not applicable in this case. Defendant |4contends that under the facts of this case, the sentence is grossly out of proportion to the severity of the crime.

The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454.

The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir.1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

On count one, armed robbery, defendant was subject to a hard labor sentence without the benefit of probation, parole, or suspension of sentence for a minimum term of ten years and a maximum term of ninety-nine years. LSA-R.S. 14:64(B). As noted above, on count one, the trial court imposed a sentence of seventy years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, aggravated flight from an officer, defendant was subject to a maximum sentence of two years imprisonment at hard labor. LSA-R.S. 14:108.1(E) (as in effect at the time of the offense). On count two, the trial court imposed the maximum sentence of two | ¿years imprisonment at hard labor, to be served concurrently with the sentence imposed on count one.

As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. James, 02-2079 (La.App. 1 Cir. 5/9/03), 849 So.2d 574, 586. Also, maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Hilton, 99-1239 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-0958 (La.3/9/01), 786 So.2d 113.

According to the victim’s trial testimony, when she saw defendant’s knife she stated, “Oh God, please don’t hurt me.” She also testified that she was afraid at the time and that this was the only time that she had ever been robbed. The victim testified that she was able to observe the blade of the knife and described it as a long, silver, utility or kitchen knife. There was no doubt in her mind that defendant was in possession of and presented a knife. At the sentencing hearing, it was noted that defendant had previous convictions for distribution of cocaine, first-degree robbery in Terrebonne Parish, and another first-degree robbery offense in Lafourche Parish. Defendant was sentenced to twenty-five years imprisonment at hard labor on each of the first degree robbery convictions and was on parole for those offenses at the time of sentencing in this case. In imposing the sentences, the trial court considered defendant’s criminal history and the seriousness of the instant case.

We find that the trial court adequately considered the factors set forth in Article 894.1. Bearing in mind defendant’s previous convictions and the nature of the instant crimes, we find no abuse of discretion by the trial court. The record provides ample justification for the imposition of the seventy-year sentence on count one and the concurrent maximum sentence on count two, considering the fact that defendant had three previous felony convictions and apparently had no intention or desire to become a productive, law-abiding citizen. Accordingly, the sentences imposed are not grossly disproportionate to 16the severity of the offenses and, therefore, are not unconstitutionally excessive. We find no error in the trial court’s denial of the motion to reconsider sentence and, likewise, find no merit in the assignment of error.

CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . In challenging the sentencing below and on appeal, defendant uses singular terminology but does not specify which sentence is being challenged. In his appeal brief, he argues that the trial court failed to consider the circumstances of the armed robbery offense. In his motion to reconsider sentence, defendant lists both sentences but again briefly notes circumstances of the armed robbery offense. Although he may have only intended to challenge the seventy-year sentence imposed on count one, out of an abundance of caution we will review both sentences for constitutionality-


author: GAIDRY, J.

text:
    BARBER BROTHERS CONTRACTING COMPANY, LLC v. STATE of Louisiana, through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2011 CA 2305.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2012.

      Michael D. Fisse, Patrick E. Moore, D. Stephen Brouillette, Jr., Covington, LA, Timothy Strohschein, Baton Rouge, LA, for Defendant/Appellant State of Louisiana, Department.
    Scott E. Frazier, Baton Rouge, LA, for Plaintiff/Appellee Barber Brothers Contracting Company, LLC.
    David P. Salley, Michael W. Rutledge, Erika L. Mullenbach, New Orleans, LA, for Defendant/Appellee Professional Engineering Consultants Corporation.
    Steven B. Loeb, Baton Rouge, LA, for Amicus Curiae Louisiana Associated General Contractors, Inc.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

IgThis is an appeal from a partial summary judgment finding La. R.S. 38:2216(H)’s prohibition of waiver of delay damages applicable to the contract at issue in this case. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from a highway construction project in East Baton Rouge Parish. The Louisiana Department of Transportation and Development (“DOTD”) contracted with Barber Brothers Contracting Company, L.L.C. (“Barber Bros.”) in December of 2003 to perform the construction work for the sum of $17,414,209.19, with the entire contract to be completed within 585 calendar days.

The contract between DOTD and Barber Bros, provides that DOTD will “notify all known utility companies, pipeline owners or other parties affected by the work and endeavor to have the necessary adjustments of public or private utility fixtures, pipelines and other appurtenances within or adjacent to the limits of construction made as soon as possible.” However, the contract between the parties also contains a provision stating:

It is agreed that the contractor has considered in the bid all permanent and temporary utility appurtenances in their present or proposed relocated positions and that no additional compensation will be allowed for delays, inconvenience or damage sustained due to interference from the said utility appurtenances or the operation of moving them.
When the engineer determines that the contractor is experiencing significant delays in the controlling items of work because of delays by others in removing, relocating or adjusting utility appurtenances, contract time credits will be considered for such delays.

IsBecause some of the public utilities located within the project’s boundaries failed to relocate their facilities in time to prevent delays to the project, plan changes were executed by DOTD and Barber Bros., increasing the contract time. The plan changes did not increase the contract price due to the utility delays.

Barber Bros, filed this suit for damages on March 4, 2009, alleging that it incurred expenses in excess of one million dollars as a result of the utility delays and was also assessed stipulated damages of $24,000.00 by DOTD when the utility delays delayed the installation of the Storm Drainage System. DOTD and Barber Bros, filed cross motions for summary judgment. DOTD’s motion alleged that the contract between the parties expressly excludes recovery of additional compensation for delays, inconvenience, or damage sustained due to interference of utility appurtenances, and therefore Barber Bros, is contractually prohibited from recovering the damages sought. Barber Bros, alleged that it did not waive its right to delay damages by executing the contract with DOTD, as La. R.S. 38:2216(H) prohibits any contractual waiver of claims for damages caused by delay on public works projects. After a hearing, the court granted Barber Bros.’s motion for partial summary judgment, finding that La. R.S. 38:2216(H) applies to the facts of this case and precludes the waiver of the damages asserted by DOTD. The court designated the partial summary judgment as final and appealable, finding that, pursuant to La. C.C.P. art. 1915(B), there is no just reason for delay. This appeal by DOTD followed.

The Louisiana Associated General Contractors, Inc. (“LAGC”) filed motion for leave to file an amicus curiae brief pursuant to the Uniform Rules Courts of Appeal, Rule 2-12.11. LAGC, a construction industry trade association, is interested in the outcome of this case due to the significant |4issue raised concerning the applicability of Title 38 and the ability of DOTD to require contractors to waive damages in direct violation thereof. LAGC urges the court to maintain consistency in the law by continuing to apply Title 38 to the DOTD where those laws do not conflict with Title 48.

DOTD filed a motion seeking to strike LAGC’s amicus curiae brief on the grounds that the brief was not timely filed and did not state specific reasons why its brief would be helpful to the court in deciding the case. In the alternative, DOTD requested leave to file a response to LAGC’s amicus curiae brief. We will allow both the amicus brief and DOTD’s reply to be filed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the |smotion and in favor of trial on the merits. Fernandez v. Hebert, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

Louisiana Revised Statutes 38:2216(H) provides that any provision in a public contract which purports to waive, release, or extinguish the rights of a contractor to recover cost of damages, or obtain equitable adjustment, for delays in performing such contract, if such delay is caused in whole or in part by acts or omissions within the control of the contracting public entity or persons acting on behalf thereof, is against public policy and is void or unenforceable and shall be severed from the other provisions of the contract.

DOTD alleges that the provisions of Title 38, and specifically 38:2216(H), cannot be applicable to the contracts at issue herein because La. R.S. 48:250(A) provides that DOTD contracts are to be exclusively governed by Title 48. Section 250(A) provides:

This Part shall exclusively govern the contracts of the Department of Transportation and Development or let by the department on behalf of other political subdivisions of the state in addition to the laws of the state relating generally to obligations and the department not in conflict with this Part.

| (¡DOTD focuses on the “shall exclusively govern” language of the statute in arguing that La. R.S. 38:2216(H) is inapplicable to the contract at issue herein; however, DOTD’s argument overlooks the provision in the statute stating that other laws relating to the department which are not in conflict with the provisions of Subpart A, “Contracts and Contractors for Department Projects,” are also applicable to DOTD contracts. This court has previously acknowledged that the provisions of Title 38 remain applicable to DOTD contracts where they do not conflict with those of Title 48. See JB James Construction, L.L.C. v. Louisiana Department of Transportation and Development, 11-1086, 2011 WL 6776999 (La.App. 1 Cir. 12/21/11), unit denied, JB James Construction, L.L.C. v. Louisiana Department of Transportation and Development, 12-0237 (La.3/30/12), 85 So.3d 122. Louisiana Revised Statutes 38:2216(H) prohibits the inclusion of a waiver provision in a “public contract,” which is defined in La. R.S. 38:2211 as any contract awarded by the State of Louisiana, or any agency, board, commission, department, or public corporation of the state. Thus, La. R.S. 38:2216(H) is a law “relating to the department” as referred to by La. R.S. 48:250(A), and would therefore be applicable to the contract at issue as long as it does not conflict with the provisions of Title 48. Finding no conflicting provision in Title 48, we agree with the trial court that La. R.S. 38:2216(H) is applicable to the contract at issue herein. This assignment of error by DOTD is without merit.

DOTD also argues that even if Title 38 applies to DOTD contracts, the waiver provision in the subsection 105.06 does not violate the prohibition against waiver of damages in 38:2216(H). Section 2216(H) prohibits provisions which “waive, release, or extinguish the rights of a contractor to recover cost of damages, or obtain equitable adjustment, for 17delays in performing such contract.” DOTD argues that because “equitable adjustment” is not waived by the contract, Section 2216(H) is not violated. We disagree. The statute does not say that to be prohibited, a contract must waive both cost of damages and equitable adjustment. It says that a provision which purports to waive cost of damages or equitable adjustment is prohibited. This assignment of error is also without merit.

CONCLUSION

For the reasons set forth hereinabove, the judgment appealed from is affirmed, and this matter is remanded to the trial court for further proceedings. Costs of this appeal in the amount of $2,498.00 are assessed to DOTD.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

GUIDRY, J., concurs in the result.

      . This provision is contained in Section 105, "Control of Work,” subsection 105.06, "Cooperation With Utilities,” of the Louisiana Standard Specifications for Roads and Bridges, 2000 Edition ("Standard Specifications”), which is incorporated by reference in the contract between DOTD and Barber Bros.


author: McCLENDON, J. WELCH, J.,

text:
    Judy N. BROWN and John W. Brown v. AMAR OIL COMPANY d/b/a Swifty’s Food Mart No. 15 and First Financial Insurance Company.
    No. 2011 CA 1631.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2012.

      Catherine L. Plauché, Frank Tomeny, III, Baton Rouge, LA, for Plaintiffs/Appellants Judy N. Brown and John W. Brown.
    Kevin P. Landreneau, Johanna R. Lan-dreneau, Baton Rouge, LA, for Defendants/Appellees Amar Oil Co. d/b/a Swifty’s Food Mart No. 15 and First Financial Ins. Co.
    Before PETTIGREW, GAIDRY, McDonald, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|2In this personal injury suit, the plaintiffs appeal a summary judgment granted in favor of the defendants, dismissing their claim for damages. For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On November 9, 2007, the plaintiffs, Judy N. Brown and John W. Brown, commenced these proceedings against the defendants, Amar Oil Company d/b/a Swifty’s Food Mart No. 15 (Swifty’s) and its liability insurer, First Financial Insurance Company (First Financial), seeking damages for injuries sustained by them as a result of a fall by Ms. Brown. According to the allegations of the plaintiffs’ petition, on November 11, 2006, Ms. Brown entered Swifty’s for the purpose of purchasing a beverage when she tripped on a dangerous condition in the doorway of the entrance, which caused her to fall and hit her head on some shelving, resulting in her suffering head trauma and loss of consciousness. It is undisputed that the “dangerous condition” alleged in the plaintiffs’ petition was a flipped-up floor mat.

On September 17, 2010, the defendants filed a motion for summary judgment claiming, that the plaintiffs would be unable to meet their burden of proof under LSA-R.S. 9:2800.6 and, therefore, sought dismissal of the plaintiffs’ claims against them. By judgment signed on May 18, 2011, the trial court granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ claims. It is from this judgment that the plaintiffs now appeal.

APPLICABLE LAW

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B; Collins v. Randall, 02-0209 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

The initial burden of proof is on the moving party. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2). It is only after the motion has been made and properly supported that the burden shifts to the non-moving party. Pugh v. St. Tammany Parish School Bd., 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 98, writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113.

A genuine issue is a triable issue. More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case. Hall v. Our Lady of the Lake R.M.C., 06-1425 (La.App. 1 Cir. 6/20/07), 968 So.2d 179, 185.

The applicable substantive law in this case is set forth in LSA-R.S. 9:2800.6, which provides, in pertinent part:

A. A Merchant owes a duty to persons who use his premises to |4exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C.Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

DISCUSSION

The plaintiffs have the burden of proving that the floor mat where Ms. Brown tripped presented an unreasonable risk of harm to her, that the risk of harm was reasonably foreseeable, that Swifty’s either created or had actual or constructive notice of the condition prior to the occurrence, and that Swifty’s failed to exercise reasonable care to eliminate the condition. The plaintiffs contend that the trial court erred in finding that they could not show that Swifty’s had constructive notice of the unsafe condition of the floor mat. They further claim that the trial court erred in finding that the flipped up mat did not create an unreasonable risk of harm. Finally, the plaintiffs contend that the trial court erred in not finding that the unsafe condition caused Ms. Brown to fall. The defendants maintain, however, that summary judgment was appropriate as there were no genuine issues of material fact.

In support of their motion for summary judgment, the defendants offered excerpts of the deposition testimony of Ms. Brown; excerpts of the deposition testimony |fiof Brandon Amar, the designated representative of Swifty’s; and their answers to the plaintiffs’ interrogatories. According to the excerpts of Ms. Brown’s deposition, she could not recall any details regarding her entry into and fall at Swifty’s. She stated that all she could remember was that she walked into the store, “[sjome-thing caught [her] foot,” she couldn’t balance or catch herself, and she fell. According to the excerpts of the deposition of Mr. Amar, “Cintas” maintains their rugs weekly and Swifty’s has had no incidents of patrons slipping or falling because of a rug in the store. Additionally, he stated that Swifty’s did not have any documentation or checklist concerning the frequency that the interior of Swifty’s is supposed to be inspected, swept, or mopped.

In their answers to the plaintiffs’ interrogatories, the defendants identified the only witness to the incident, stated that there was a surveillance video of the incident in the custody of Mr. Amar, and stated that an accident report was prepared shortly after the accident. Additionally, they described the accident as occurring in the following manner: “On November 11, 2006 around 11:20 am a customer exiting the store inadvertently turned over the corner of a mat at the front of the store. According to the surveillance video, at 11:23 am, Ms. Brown entered the store, tripped on her own feet or stepped on the turned-up mat and apparently fell forward.” Additionally, the defendants stated that “the accident appeared] to be caused by the plaintiff either tripping herself or stepping on the mat and then tripping on the edge of the mat.”

The plaintiffs offered no evidence in opposition to the motion for summary judgment.

After conducting a de novo review of the evidence submitted in support of the motion for summary judgment, we conclude that the defendants showed that there was an absence of support for essential elements of the plaintiffs’ claim, including, that the flipped up mat had existed for such a period of time that it would have been discovered |fiif Swifty’s had exercised reasonable care. In the absence of any evidence presented by the plaintiffs as to the location of any Swifty’s employee prior to the accident or whether a Swifty’s employee had an opportunity to see the flipped up mat before Ms. Brown entered the store, the plaintiffs failed to show that Swifty’s had constructive notice of the condition. Moreover, even if an employee was in the area, the presence of an employee in the vicinity in which the condition exists does not, alone, constitute constructive notice. LSA-R.S. 9:2800.6 C(l). Additionally, in the absence of any evidence by the plaintiffs, the plaintiffs did not show that Swifty’s failed to exercise reasonable care in this matter. Not only was no evidence presented to show that a Swifty’s employee was present in the area of the floor mat, but no evidence was presented to show that, if an employee was in the area of the floor mat, the employee knew, or in the exercise of reasonable care should have known, of the condition.

The plaintiffs failed to establish that they would be able to satisfy their eviden-tiary burden of proof at trial. Accordingly, summary judgment in favor of Swifty’s and First Financial was appropriate.

CONCLUSION

For the above and foregoing reasons, the May 18, 2011 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs, Judy N. Brown and John W. Brown.

AFFIRMED.

WELCH, J., dissents with reasons.

PETTIGREW, dissents.

GAIDRY, concurs.

WELCH, J.,

dissenting.

1¶1 respectfully dissent. I find that summary judgment was inappropriate because the defendants did not establish the absence of factual support for any specific element of the plaintiffs’ claims, and therefore, the burden did not shift to the plaintiffs to provide factual evidence sufficient to establish that they will be able to satisfy their evidentiary burden at trial.

The burden of proof on the motion for summary judgment shifts to the non-moving party only after the motion has been properly supported by the mover. Pugh v. St. Tammany Parish School Board, 2007-1856 (La.App. 1st Cir. 8/21/08), 994 So.2d 95, 98, writ denied, 2008-2316 (La.11/21/08), 996 So.2d 1113. I disagree with the majority’s conclusion that the defendants showed that there was an absence of factual support on the issue of constructive notice. It is well settled that there is no bright line time period for demonstrating that the condition existed for a period of time that it would have been discovered if the merchant had exercised reasonable care. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, 1084-85 . Although some time period must be shown, whether the period of time is sufficiently lengthy that a merchant should |2have discovered the condition is necessarily a question of fact. Id. The defendants offered evidence of the temporal element of the plaintiffs’ claim in its answers to the plaintiffs’ interrogatories by stating that approximately three minutes prior to Judy Brown’s fall, another patron exiting the store flipped over the floor mat. Whether this period of time was of sufficient length that Swifty’s, through its employees, should have discovered the condition a question of fact; it does not demonstrate that plaintiffs will be unable to satisfy their evidentiary burden at trial. See Wheelock v. Winn-Dixie, Inc., 2001-1584 (La.App. 1st Cir. 6/21/02), 822 So.2d 94, 96. Thus, I find that the defendants failed to properly “point out” the lack of factual support for the constructive notice element of the plaintiffs’ claim.

Furthermore, with regard to the defendants’ contention that there is a lack of evidence establishing that Swifty’s failed to exercise reasonable care, the record before us contains no evidence with respect to this issue. Again, I must conclude that the defendants failed to properly point out the absence of factual support for this element of the plaintiffs’ claim.

Lastly, I find that summary judgment on the issue of whether the flipped-up floor mat presented an unreasonable risk of harm was inappropriate. It is well settled that whether a condition presents an unreasonable risk of harm to a claimant is a question of fact that must be resolved on a case-by-case basis; again, there is no bright line rule. See Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 364. In this case, Judy Brown’s deposition testimony established that something caught her foot, that she lost her balance, and that she fell. In light of this testimony, combined with the defendants’ statements in its answers to interrogatories that the floor mat in the doorway of Swifty’s had been turned up by a previous customer and that Judy Brown stepped on the floor mat and fell, a trier of fact could reasonably conclude that the flipped-up floor mat presented an unreasonable risk of harm to store patrons such as the Judy Brown. Thus, 11 ...conclude that the defendants failed to properly point out that the plaintiffs would be unable to establish this element of their claim.

Accordingly, I would reverse the summary judgment and remand to the trial court for further proceedings.

      . Also in support of their motion for summary judgment, the defendants relied on the defendants’ responses to the plaintiffs’ request for production of documents, including a copy of the store surveillance video of the incident. Competent summary judgment evidence includes the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. LSA-C.C.P. art. 966 B. We note that at the beginning of the hearing on the motion for summary judgment, counsel for Swifty’s submitted "the motions, memorandum, and attached exhibits into the record as exhibits on this motion” without apparent objection, and the trial court allowed their introduction. Having been offered and introduced into evidence without objection, we find no error in the trial court's consideration of this evidence. Cf. Sheffie v. Wal-Mart Louisiana, LLC, 11-1038 (La.App. 5 Cir. 5/31/12), 92 So.3d 625 (holding that a surveillance video that was not offered and introduced into evidence on a motion for summary judgment could not be considered). Nonetheless, even without the video, our decision would remain the same.

      . Having found that the plaintiffs failed to establish that Swifty’s had actual or constructive notice of the condition, we need not address the plaintiffs’ argument that the turned up floor mat created an unreasonable risk of harm.

      . Although the supreme court in White interpreted the version of La. R.S. 9:2800.6 prior to its amendment by 1996 La. Acts, 1st Ex. Sess., No. 8, § 1, eff. May 1, 1996, the requirement in the statute that the plaintiff prove that the condition existed for "such a period of time" was not changed by the 1996 amendments. Thus, the analysis in White regarding the temporal element of LSA-R.S. 9:2800.6 is equally applicable to the instant case. See Williams v. Shoney’s, Inc., 99-0607 (La.App. 1st Cir. 3/31/00), 764 So.2d 1021, 1024 n. 3.


author: WELCH, J.

text:
    STATE of Louisiana v. Kaven P. CLOUATRE.
    No. 2012 KA 0407.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 14, 2012.

      Richard J. Ward, Jr., District Attorney, Port Allen, LA, for Appellee Plaintiff, State of Louisiana.
    Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, for Appellant Defendant, Kaven P. Clouatre.
    Before PARRO, HUGHES, and WELCH, JJ.
   WELCH, J.

12The defendant, Kaven P. Clouatre, was charged by grand jury indictment with simple rape, a violation of La. R.S. 14:43. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to twelve years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.

FACTS

On Saturday, March 6, 2010, fourteen-year-old A.H., who lived in Prairieville, went to the defendant’s trailer in Port Allen to sleep over. A.H.’s family (her mother and siblings) were friends with the twenty-four-year-old defendant, his wife, Jessica, and their children. Also, A.H.’s mother was previously married to Jessica’s father (which, at that time, made Jessica A.H.’s stepsister). Sleeping over with A.H. were her younger half-sister and her good friend, Angela (who was the older half-sister of A.H.’s half-sister, but not related to A.H.). A.H.’s mother was not there. Jessica had bought alcohol earlier in the day and, later that evening, the defendant went to the store and purchased more alcohol.

A.H. testified at trial. The defendant did not testify at trial. A.H. and the defendant both gave recorded interviews to Detective Ray Bryant, with the West Baton Rouge Parish Sheriffs Office. Both interviews were played at trial. According to A.H.’s testimony and her interview, A.H. drank alcohol that night, including tequila and Bacardi Silver wine coolers. Later that evening, A.H. became sick and vomited on her shirt and pajama pants. The defendant and A.H.’s half-sister took off A.H.’s shirt and put a clean one on her. The defendant took off RA.H.’s pajama pants, which also had vomit on them. A.H. did not change into clean pants, because she was already wearing shorts and underwear. A.H. lay down on the sofa. The defendant lay down behind A.H. on the sofa. A.H.’s half-sister and Angela were sleeping on a mattress next to the sofa. According to the defendant and A.H. in their interviews, the defendant lay down with A.H. to make sure she was all right. A.H. testified that she fell asleep, but then woke up to the defendant pulling her pants (shorts) down. She asked the defendant what he was doing, and he told her he was not going to hurt her. As the defendant was pulling her shorts and underwear down, A.H. told him several times “no” and “stop.” The defendant then vaginally penetrated her with his penis. When the defendant was finished, he went to lie down with his wife. A.H. did not know if the defendant had ejaculated or not. A.H. sat on the sofa and cried before going to the bathroom to clean herself with a rag. A.H., a virgin before being raped, experienced significant vaginal bleeding. In her interview, A.H. stated that at no point was she on top of the defendant. When asked how the sex took place, she responded that “he was behind me.”

Sunday, the next day, when A.H. returned home, she called her best friend Patrick to come pick her up. He did and, as they were driving, A.H. told Patrick that the defendant had raped her. Patrick told A.H. to tell her mother, or he would. The following day, Monday, A.H. was at school and called her mother to come pick her up. When her mother arrived at school, A.H. told her that the defendant had raped her. A.H.’s mother took her to Dr. Arnette Scavella at Prime Medical. Dr. Scavella testified at trial that she examined A.H. and found a vaginal tear, which was suggestive of intercourse. The underwear A.H. wore the night she was raped were brought to Detective Bryant, who turned them over to the Louisiana State Police Crime Lab. Phillip Simmers, a DNA analyst for the crime lab, testified at trial that the underwear had a large, reddish-brown stain in the crotch |4area. The presumptive test for blood on the stain was positive. Simmers testified that the seminal test was inconclusive because of the heavy staining on the underwear, and there were no findings of spermatozoa.

In his interview, the defendant confirmed everything that A.H. had stated, up to the point where he lay down on the sofa with her. The defendant denied that he raped A.H. He stated that he also drank alcohol that night and that he knew he should not have given them alcohol. The defendant told the detective that he lay on the sofa with A.H. to “make sure she [was] okay.” Then he fell asleep and vaguely remembered A.H. on top of him at some point in time. Following these initial comments to Detective Bryant, the defendant continued throughout the interview with seemingly equivocal responses. For example, the detective asked, “So you’re saying you could’ve had sex or you could’ve not?” The defendant replied, “We could have had sex. I’m not — I’m not going lie. We could have had sex. I remember her being on top of me, but I — I wouldn’t I wouldn’t do anything to [A.H.] like that.” Later, the defendant provided less than definitive responses, such as, “There’s a possibility that it could have happened, but I don’t — I wouldn’t have done it forcibly”; “I’m not saying ... I had sex with her, but I’m not saying I didn’t”; and “But I’m not saying she tried to do anything to me or anything like that, but it’s a very good possibility that we had sex.” When asked by Detective Bryant if he (the defendant) believed A.H. would lie about having had sex, the defendant responded that he did not believe she would lie, and continued, “if I did anything, sir, I was drinking, and I would love to apologize to her, you know, if I did anything. But sir, like I said, I vaguely remember her being on top of me at one point in time. So if we had sex,- then yeah, you know.” Near the conclusion of the interview, Detective Bryant asked the defendant if he was willing to give a DNA swab. The defendant responded in the affirmative and added, “Like I said, if she — Apparently, if we had sex, we had sex, but I didn’t try to rape her.”

¡.ASSIGNMENT OP ERROR

In his sole assignment of error, the defendant argues the evidence was insufficient to support the simple rape conviction. Specifically, the defendant contends that the State did not prove beyond a reasonable doubt that A.H. was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent.

A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. To uphold a conviction, the standard of review for the sufficiency of the evidence is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La.C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patomo, 2001-2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statute 14:41 states, in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Louisiana Revised Statute 14:43(A) defines simple rape, in pertinent part, as:

IfiA. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.

The defendant asserts in his brief that the evidence was insufficient to prove that A.H. was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent. According to the defendant, A.H.’s own testimony that she asked the defendant what he was doing as he pulled down her shorts, and that she told the defendant to “stop” as he prepared to rape her, proved that she was not incapable of resisting or of understanding the nature of the act by reason of her intoxication. The defendant avers that A.H. could have cried out to awaken any number of people for help. The defendant concludes in his brief that A.H. was “completely aware at the time as to the nature of the act.”

We have found nothing in the jurisprudence that supports the defendant’s position. To the contrary, our review of this issue makes clear that the “stupor or abnormal condition of mind produced by an intoxicating agent” element of simple rape does not require unconsciousness or such incognizance as to render the victim unaware that she was raped; nor do the victim’s verbal protestations during the act of rape indicate that she was necessarily capable of effectively resisting being raped. As the third circuit noted in State v. Clark, 2004-901 (La.App. 3rd Cir.12/8/04), 889 So.2d 471, 475, “the very purpose of the simple rape statute [is] to criminalize behavior which takes advantage of a person who has had too much to drink and participates in an act to which he or she would not otherwise have consented.” In Clark, C.T., the female victim, had smoked marijuana and taken a muscle relaxer. C.T. testified that after sleeping for a while she was awakened by |7the sound of the defendant coming into her room. He took off his clothes, got in bed with her, and proceeded to have sex with her. Id. at 472-73. She testified that she was “frozen” and did not fight him off, scream to a friend for help, or try to get away. Rather, she pleaded with him to stop and was overpowered by him. She stated that he pinned her down, but he did not threaten her and was not violent with her. The defendant testified the sexual act was consensual. The third circuit found that under these facts, the defendant was guilty of simple rape. Id. at 475.

In State v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137, 1143, the supreme court stated that a “defendant may be convicted of simple rape when the victim’s capacity to resist was negated by an abnormal condition or state of mind produced by alcohol consumption.” In Porter, there was evidence of alcohol consumption by the victim and of an alcohol-influenced state of mind. Although the victim denied excessive drinking and recalled the events of the ordeal, a reasonable juror could have concluded that the essential elements of simple rape had been proved. There was evidence from which the jury might have inferred, despite the victim’s protestations of resistance, that she became intoxicated with these two young men and that they criminally took advantage of her alcohol-influenced incapacity to resist their advances effectively. Porter, 639 So.2d at 1143.

In State v. Brown, 2001-41 (La.App. 5th Cir.5/30/01), 788 So.2d 694, 701, the evidence showed that the victim had consumed about eight beers. Co-defendant Arthur Williams, who had just minutes before raped the victim, took her to a shed where the defendant was waiting. She (the victim) and the defendant testified that the defendant vaginally penetrated her. She testified that it was done without her consent. The facts indicate the victim was alert and conscious while the defendant raped her. During the assault, she begged the defendant to help her, and he stopped raping her. The fifth circuit found that the facts were sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant 1 ^committed simple rape.

In State v. Fruge, 2009-1131 (La.App. 3rd Cir.4/7/10), 34 So.3d 422, 430-32, writ denied, 2010-1054 (La.11/24/10), 50 So.3d 828, a ease similar to the instant matter, J.H. drank alcohol, then fell asleep on the couch. She was awakened by the defendant kissing on her neck, grabbing her breasts, then finally vaginally penetrating her. J.H. yelled for her sister, kept screaming “no,” and finally pushed the defendant off of her. The defendant denied having sex with J.H. He also testified he was drunk and did not know exactly what was going on. The third circuit found that under these facts, the State proved beyond a reasonable doubt that the defendant committed simple rape.

Thus, the jurisprudence on the offense of simple rape makes clear that the element of a stupor or abnormal condition of the mind produced by an intoxicating agent, such as alcohol, does not require an unaware victim with no capacity to resist, but rather an agent-influenced incapacity to effectively resist the advances of the perpetrator. See Porter, 639 So.2d at 1143. The degree of alcohol influence is for the jury to decide. Id. The jury in this case, heard the testimony, viewed the evidence presented to it at trial, and found the defendant guilty. The jury apparently believed A.H.’s testimony, which revealed that the defendant, after providing enough alcohol to A.H. to make her sick and pass out on the sofa, lay down on the sofa with her and proceeded to rape an inebriated fourteen-year-old girl who could not effectively resist his advances.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a | factfinder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La.App. 1st Cir.1987), writ denied, 519 So.2d 113 (La.1988).

After a thorough review of the record, we find that the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of simple rape. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

The assignment of error is without merit.

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

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the initials of the child victim and her family members are used to protect the identity of the minor child.


author: McDonald, j.

text:
    Don KAHL and Maureen Kahl v. Larry LUSTER, Jan Luster and Allstate Insurance Company. Don Kahl and Maureen Kahl v. Frances Borghardt and Liberty Mutual Insurance Company.
    Nos. 2011 CA 2332, 2011 CA 2333.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2012.

      John D. Powers, Steven H. Watterson, Baton Rouge, LA, for Plaintiffs/Appellants Don Kahl and Maureen Kahl.
    Donald R. Smith, Baton Rouge, LA, for Defendants/Appellees Larry Luster, Jan Luster, and Allstate Insurance Company.
    Michael M. Thompson, Baton Rouge, LA, for Defendants/Appellees Frances Borghardt and Liberty Mutual Insurance Company.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

|aIn this suit involving the unlawful cutting of foliage without the owners’ consent, the plaintiffs Don and Maureen Kahl appeal the trial court’s judgment, awarding damages for the unauthorized cutting of thirty-three camellias, and cite three assignments of error. The Kahls contend that the trial court erred in granting summary judgment and motion in limine in favor of the defendants when the court held that the Kahls’ camellias were shrubs and not trees, despite the opinion of the Kahls’ expert arborist, James L. Culpep-per, and other evidence to the contrary, thus preventing the Kahls from presenting this evidence to the jury.

It is the responsibility of the judge to instruct the jury as to what laws are applicable to a case before it. In this case, the Kahls had instituted suit alleging a violation of Louisiana Revised Statute 3:4278.1, the Timber Piracy Statute. In the trial judge’s opinion, the camellias at issue were shrubs and not trees, therefore, he determined that La. R.S. 3:4278.1 would not be implicated. However, because the determination of whether the camellias were shrubs or trees should have been given to the jury, and a finding that the camellias were trees possibly implicated La. R.S. 3:4278.1, we find legal error on the part of the judge requiring us to conduct a de novo review of that issue.

FACTS AND PROCEDURAL BACKGROUND

Don and Maureen Kahl are owners of residential property located in Cottonwood Subdivision at 2436 Cottonwood Street in Baton Rouge, Louisiana. The Kahls bought the property on August 30, 2007, for $148,000.00. On the south and eastern borders of the Kahls’ property there were 33 Camellia Sasanquas (camellias). According to Mrs. Kahl, the Kahls purchased the property because they fell in love with the lot and because they loved the camellias. They intended |4to build their dream home on the lot. However, the Kahls did not begin construction of their home until April, 2008, nearly seven (7) months after they purchased the property. The camellias located on the eastern portion of the Kahls’ property bordered their neighbors, Jan and Larry Luster. The camellias on the southern portion of the Kahls’ property bordered the property of their neighbor, Frances Borghardt.

Mrs. Luster testified that the Lusters pruned the camellias bordering their property on two occasions before the incident at issue because they had grown unwieldy and overgrown with vines. Mrs. Luster further testified that by 2007 the camellias had not been pruned in years and required work, because they had poison ivy, trumpet vine, and Virginia creeper running through them. In early 2008, the Lusters and Ms. Borghardt cut back the camellias for a third time. They were unaware that the property had been sold to the Kahls.

The Kahls contend that the Lusters trespassed on their property without consent, and willfully and intentionally cut, felled, removed, and destroyed thirteen (13) camellias on the eastern border of their property. Additionally, the Kahls contend that Ms. Borghardt also trespassed, and cut down twenty (20) camellias on the southern portion of their property without consent.

The plaintiffs brought suit pursuant to Louisiana Revised Statute 3:4278.1. After trial on July 5-7, 2011, the jury returned a verdict in favor of the Kahls. The Kahls were awarded $25,000.00 in damages, based on a $20,000.00 award for economic damages and a $5,000.00 award for trespass damages. However, the jury denied the Kahls an award for invasion of privacy and loss of gratification of physical enjoyment and lifestyle.

DISCUSSION

As stated earlier, the Kahls’ first assignment of error alleged that the trial court should have let the jury hear evidence regarding whether the camellias were |Bshrubs or trees, and as noted, we agree. The question of whether the camellias were shrubs or trees in the context of this matter is a mixed question of law and fact that should have been determined by the jury. As the case now stands, we will have to make that determination. The initial decision by the trial court of whether the camellias at issue were shrubs or trees was for the purpose of deciding whether the “timber trespass” or “timber piracy” statute would be applicable in this case.

Louisiana Revised Statute 8:4278.1 provides in relevant part:

A. 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 shall be liable to the owner 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’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner 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 or legal possessor of the trees.

The factual determination of whether the Kahls’ camellias were shrubs or trees is immaterial except as it contributes to the legal determination of whether the statute under which the Kahls initiated their lawsuit is applicable to the matter. We consider the discussion of the statute by the supreme court in Sullivan v. Wallace, 10-0388 (La.11/30/10), 51 So.3d 702. The issue before the court in Sullivan concerned a co-owner rather than a neighbor, but the discussion of the statute is informative.

| fiIn Sullivan, the supreme court considered whether a co-owner of timberland can be liable to his fellow co-owners for treble damages under La. R.S, 3:4278.1 when he cuts and sells the timber without the co-owners’ consent. Id. at 703. The court reiterated that the Timber Piracy Statute, due to the treble damages and attorney’s fees awards, is clearly a punitive statute and, therefore, must be strictly construed, citing Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361, 369. Under a strict reading of the statute’s language the court reasoned that the statute is violated only when “any person” acts with respect to trees growing or lying “on the land of another” and when this action is taken without “the consent of ... the owner or legal possessor.” Sullivan, 51 So.3d at 709. The court found the statute inapplicable because, when viewed in light of its proper construction, the statute applied to actors other than an owner.

While we do have third persons acting here, and without the consent of the owner, ultimately we find that the statute is not applicable, and that the damages awarded in this case are appropriate. Initially, we note that the Kahls’ neighbors did not “willfully and intentionally” violate the provisions of La. R.S. 3:4278.1. Section C of the statute applies to persons in good faith. According to Mrs. Luster, the camellias had already been pruned twice before the current pruning. The circumstances here clearly supported a belief that the Kahls’ neighbors were in good faith. Additionally, the circumstances do not prove that the Lusters and Ms. Borghardt “should have been aware that [their] actions were without the consent” of the owner, because they had cut the bushes back on two prior occasions without any objection.

Generally, camellias are ornamental flowering bushes used in landscaping. The majority of the evidence referred to the camellias as “shrubs,” although some included a reference to “trees.” However, the testimonial evidence indicated that the camellias posed a nuisance to the neighbors and had grown to a height one does |7not associate with a shrub. Nevertheless, camellias are not grown as “timber.” The purpose for which the legislature enacted La. R.S. 3:4278.1 relates to loggers and harvesting of timber, none of which is at issue here.

After reviewing all of the evidence, we agree with the trial court that camellias are “shrubs.” In fact, we believe the trial court’s determination indicates the common view of the majority of people’s consideration of the issue. As noted, the Kahls’ camellias were of a substantial height, and they may choose to let the replacement camellias they were awarded grow to that height again, but regardless of their height, they will not be “trees” within the meaning of La. R.S. 3:4278.1.

As noted by the supreme court, the legislative purpose of the Timber Piracy Statute is well documented. The court in Sullivan noted:

Furthermore, La.Rev.Stat. 3:4278.1 is found within Title 3 of the Revised Statutes entitled “Agriculture and Forestry,” Chapter 28, entitled “Forests and Forestry” and Part 1 thereof, entitled “Protection and Reforestation.” Section 4278.1 is entitled “Trees, cutting without consent; penalty.” Given this context, the legislative purpose behind La.Rev. Stat. 3:4278.1 is to protect those with interests in trees from loggers who enter their property without permission to harvest timber illegally. [Id.].

Applying the Timber Piracy Statute to protect the foliage of homeowners against the actions of their neighbors in a residential community is inconsistent with legislative intent. The defendants in this action are not loggers, nor are they deriving economic benefit from their actions. Neither were they intentionally taking the action because of a dispute with their neighbors. In glaring contrast they are merely neighbors who wrongfully trimmed the plaintiffs’ camellias on several occasions because the owners would not properly maintain their lot. Applying the Timber Piracy Statute in this context leads to an absurd result, conflicts with the legislative intent of the statute, and would result in an unwarranted expansion of its scope.

|Jn their second assignment, the Kahls contend the court erred in granting the defendants’ second motion in limine, thus denying the Kahls the legal right to present evidence to the jury regarding Mr. Culpepper’s valuation of the camellias. The trial court has great discretion in its consideration of motions in limine. Furlough v. Union Pacific Railroad Company, 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, 757, writ denied, 2000-2929 (La.1/12/01), 781 So.2d 556. Before trial, Ms. Borghardt and her insurer, Liberty Mutual Insurance Company, filed a motion in limine seeking to exclude evidence from the jury regarding the Kahls’ expert ar-borist’s valuation of the camellias. The court granted the defendants’ motion and limited the valuation of the Kahls’ camellias to the replacement value of $450.00 per plant.

As noted by the trial court, the general rule in cases where property is damaged due to the fault of another is that the damaged party may recover the cost of restoration “that has been or may be reasonably incurred,” or may elect to recover damages based upon the difference between the value of the property before and after the harm. Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Company, 618 So.2d 874, 879-80 (La.1993). The Kahls did not present property valuation evidence and, instead, elected to attempt to recover for the cost of restoration of their camellias.

Initially, the Kahls presented an expert report from Mr. L.D. Kelleher. Mr. Kelle-her’s report concluded that the restoration value for replacing the damaged camellias with 8 to 10 foot camellias was $450.00 per plant, fixing the total replacement value for the thirty-three camellias at $14,850.00. However, the Kahls later sought an estimate from an expert arborist, James L. Culpepper, who offered evidence that the restoration value of the camellias would be $150.00 per foot of height. Based on the approximate height of the camellias and the $150.00 per foot cost to cure value; Mr. Culpepper estimated the value of the camellias to be | g$2,300.00 per plant. Under Mr. Culpepper’s valuation, the total value of the camellias was $77,100.00. However, Mr. Culpepper’s evidence was excluded by the defendants’ motion. In its ruling the trial court relied on the rule articulated by the court in Roman Catholic, supra, that when property is damaged by the fault of another, the plaintiffs may elect to recover the cost of restoration that has been, or may be, reasonably incurred (emphasis added). Applying the general rule, the trial court found that the 8 to 10 foot camellias available, priced at a cost of $450.00 per camellia, were reasonable replacements for the damaged camellias.

The Kahls’ camellias reached heights of approximately 18 feet, however, as noted by the Kahls’ original expert, Mr. L.D. Kelleher, camellias of the species and size destroyed by the Lusters and Ms. Bor-ghardt were not available from commercial growers. Consequently, the trial court’s decision to grant the defendants’ motion in limine excluding Mr. Culpepper’s evidence of the cost to cure value was reasonable and not an abuse' of the trial court’s discretion.

In their third assignment of error the Kahls contend that the jury erred in its award for trespass damages and in its denial of an award for invasion of privacy, loss of gratification of physical enjoyment and lifestyle. A court of appeal may not set aside a jury’s findings of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order for an appellate court to reverse a fact finders’ determination, two elements must be satisfied. First, the appellate court must find from the record that no reasonable factual basis exists for the findings of the trial court. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993) (See Trinh ex rel. Tran v. Dufrene Boats, Inc., 2008-0824, p. 7 (La.App. 1 Cir. 1/22/09), 6 So.3d 830, 836). Second, the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id.

|10The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but rather to determine whether the fact finders’ conclusion was reasonable. Id. The reviewing court must remember that if the trial court or jury’s findings are reasonable, the court of appeal may not reverse. In light of the degree of deference afforded to the fact finder, in this case the jury, we cannot say that the decision to award the Kahls $5,000.00 in trespass damages was clearly wrong. Nor can we say the jury’s failure to award damages for invasion of privacy and loss of gratification of physical enjoyment and lifestyle was clearly wrong.

We find an award of $5,000.00 for trespass damages reasonable. We also find no error with the denial of an award for invasion of privacy and loss of gratification of physical enjoyment and lifestyle.

At the time the camellias were pruned, the Lusters and Ms. Borghardt were not aware of the Kahls. While they trespassed on the property of the lawful owners, they had no way of knowing that the owners would find the pruning of the trees objectionable as they had done it twice before with no adverse reaction. More importantly, the Kahls were not physically disturbed by this trespass, and in fact were unaware of it until they noticed the damage to the camellias. Since they were not physically present at the time of the trespass, denying an award for loss of privacy is not clearly wrong. The jury’s denial of an award for loss of gratification of physical enjoyment and lifestyle will not be disturbed.

For the foregoing reasons, we do not believe La. R.S. 3:4278.1 is applicable to these facts, and we believe the trespass damages are sufficient. Therefore, the August 16, 2011, judgment is affirmed. Costs of this appeal are split equally between the plaintiffs, Don and Maureen Kahl, the defendants, Jan and Larry Luster, and the defendant, Frances Bor-ghardt.

AFFIRMED.

HUGHES, J., concurs in the result.

      . Sullivan v. Wallace, 10-388 (La. 11/30/10), 51 So.3d 702, 706 refers to the statute in these terms.

      . When a prejudicial error of law skews the trial court’s findings as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying law and determining the material facts de novo. Boyd v. Boyd, 2010-1369 (La.App. 1 Cir. 2/11/11), 57 So.3d 1169, and cases cited therein.

      . The statute in effect at the time of this cutting was that adopted by the Louisiana Legislature in 1992.