author: THERIOT, J.

text:
    Brad Michael HEBERT v. Jessica SCHEXNAYDER.
    No. 2012 CU 1414.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Carolyn A. McNabb, Houma, LA, for Plaintiff/Appellant, Brad Michael Hebert.
    Joan M. Malbrough, Gray, LA, for Defendant/Appellee, Jessica Schexnayder.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

|2In this custody suit, the father appeals a trial court judgment modifying a prior custody decree. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Brad Hebert and Jessica Schexnayder are the parents of a minor child born in February of 2008. They were never married. Brad filed a petition for filiation in April of 2008, and also sought joint custody, establishment of a physical custody schedule, and other incidental matters. In August of 2008, Jessica filed a petition to establish paternity of the minor child, and sought joint custody, designation as the domiciliary parent, child support, and other incidental matters.

The parties entered into a consent judgment in 2010 which declared that Brad was the father of the child, awarded joint custody to Brad and Jessica, named Jessica the domiciliary parent, ordered that Brad’s physical custody of the child be supervised by his parents, ordered Brad to pay child support and for the child’s health insurance, and ordered Brad to submit to a drug screen.

In September of 2011, Jessica filed a rule seeking sole custody of the child on the grounds that there had been a change in circumstances and that it was in the child’s best interest for Jessica to have sole custody and for Brad to have supervised visitation with the child at his parents’ home. Brad also filed a rule seeking to modify the existing custody decree to remove the requirement that his parents supervise his custody of the child, to establish a joint custody implementation plan, and other incidental matters.

After a hearing, judgment was rendered awarding sole custody to Jessica; awarding supervised visitation to Brad; ordering Brad to have family counseling, psychiatric treatment, parenting classes, and anger ^management classes; ordering Jessica to have Brad’s name placed on the birth certificate; and ordering Brad to pay his child support on time as a condition of his supervised visitation. Brad appealed, asserting that the court erred in awarding sole custody of the child to Jessica, in ordering supervised visitation, and in refusing to allow him to put on evidence of his good character.

DISCUSSION

The burden of proof required of a party seeking to modify an existing custody award is dependent on the nature of the underlying custody determination. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control over a child. Shaffer v. Shaffer, 00-1251, p. 3 (LaApp. 1 Cir. 9/18/00), 808 So.2d 354, 356, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

If the original custody decree is a considered decree, the party seeking its modification bears the heavy burden of proving that the continuation of the present custody is so “deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

However, the original custody decree in the instant case was not a considered decree, but rather a stipulated judgment by consent of the parties. As such, a party seeking to modify this custody decree need only prove that a change materially affecting the welfare of the child has occurred since the ^original consent decree and that the proposed modification is in the best interest of the child. Richard v. Richard, 09-0299, pp. 6-7 (La.App. 1 Cir. 6/12/09), 20 So.3d 1061,1066.

In this case, both parties requested a modification of custody. Jessica sought to have the court modify the original decree to award her sole custody of the child, and Brad sought a modification to remove the supervision requirement. Under these circumstances, each party bears the burden of proof on his or her individual request for modification.

Sole Custody

Brad’s first assignment of error is that the court erred in awarding sole custody to Jessica because there was insufficient evidence to support the court’s decision.

Louisiana Civil Code article 132 provides that sole custody may be awarded to one parent when it is proven by clear and convincing evidence to be in the best interest of the child. Proof by clear and convincing evidence requires more than “a preponderance of the evidence,” the traditional measure of persuasion, but less than “beyond a reasonable doubt,” the stringent criminal standard. Talbot v. Talbot, 03-0814, pp. 9-10 (La.12/12/03), 864 So.2d 590, 598; Harper v. Harper, 33,452, p. 6 (La.App 2d Cir. 6/21/00), 764 So.2d 1186, 1190. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Id.

In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in Louisiana Civil Code article 134:

| fil- The love, affection, and other emotional ties between each party and the child.
2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
4. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. The moral fitness of each party, insofar as it affects the welfare of the child.
7. The mental and physical health of each party.
8. The home, school, and community history of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
11. The distance between the respective residences of the parties.
12. The responsibility for the care and rearing of the child previously exercised by each party.

The best interest of the child test is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Every child custody ease is to be viewed on its own particular set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded |6to the decision of the trial court. A trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello v. Martello, 06-0594, p. 5 (La.App. 1 Cir. 3/28/07), 960 So.2d 186, 191-92.

In awarding sole custody to Jessica in this case, the judge reviewed each of the article 134 factors and concluded that the clear and convincing evidence before the court was that sole custody was in the child’s best interest. In so concluding, the judge noted that Brad suffered from Post Traumatic Stress Disorder since returning from active duty in Iraq and had flashbacks triggered by crowds and loud noises; that there had been several recent incidents involving violence or confrontations with Brad’s own family, one of which involved him pulling a knife on his brother, and two of which occurred with the child present; that Brad had not exercised physical custody of the child or communicated with her for extended periods of time without good reason; and that Brad did not pay his child support for an extended period of time without good reason. Based on the evidence before the trial court, we cannot say that the trial court’s ruling was a clear abuse of discretion. This assignment of error is without merit.

Supervised Visitation

Brad’s next assignment of error is that the court erred in denying his request to modify the custody decree to remove the supervision provision.

The trial court has discretion to impose conditions on visitation, including ordering supervised visitation, in order to minimize the risk of harm to a child. See Harper v. Harper, 33,452 (La.App. 2 Cir. 6/21/00), 764 So.2d 1186, 1191. See also Fountain v. Fountain, 93-2176 (La.App. 1 Cir. 10/7/94), 644 So.2d 733, 737-38. The paramount consideration in setting visitation privileges for a non-custodial parent is the best interest of the 17child. Id. Appellate review of a trial court’s findings with respect to child visitation is governed by the manifest error standard of review. See Givens v. Givens, 10-0680, p. 9-11 (La.App. 1 Cir. 12/22/10), 53 So.3d 720, 728-29.

Considering the evidence before the court regarding Brad’s history of Post Traumatic Stress Disorder, anger management issues, and violent confrontations with his family, including several incidents which occurred in the presence of the child, we cannot say that the court’s determination that supervised visitation is in the best interest of the child is manifestly erroneous. This assignment of error is also without merit.

Excluded Testimony

Brad’s final assignment of error is that the court erred in excluding testimony about his good character, which he argues was relevant to the court’s article 134 analysis of the best interest of the child. At trial, Brad attempted to call Melanie Le-Boeuf, his mother’s first cousin, to testify about how he had mentored her drug-addicted teenage son while her son attended a juvenile boot camp. The court, finding that Brad’s good relationship with a nineteen-year-old relative was irrelevant to his ability to parent a three-year-old child, refused to allow the testimony.

The standard of review for evidentiary rulings of a trial court is abuse of discretion; the trial court’s ruling will not be disturbed unless it is clearly erroneous. Riverside Recycling, L.L.C. v. BWI Companies Inc. of Texas, 12-0588, p. 4 (La.App. 1 Cir. 12/28/12), 112 So.3d, 869, 2012 WL 6725684. We can find no evidence that the trial court abused its discretion in finding that Ms. LeBoeufs testimony was not relevant to the determination of the issue before the court. This assignment of error is also without merit.

^CONCLUSION

For the reasons set forth hereinabove, the judgment of the trial court modifying custody is affirmed. Costs of this appeal are assessed to Brad Hebert.

AFFIRMED.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge.

license: Public Domain

text:
    Brittani L. NOLAND v. 5 STAR FOOD SERVICES, LLC, Tony Bang Duong and the ABC Insurance Company.
    No. 12-CA-656.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.
    Louis B. Merhige, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    Melvin G. Ripp, Jr., Attorney at Law, Gretna, LA, for Defendants/Appellants.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

12The judgment at issue here is the trial court’s denial of a motion for summary judgment filed by defendants-appellants 5 Star Food Services, LLC and Tony Bang Duong. In their motion for summary judgment, defendant-appellants sought to dismiss plaintiff Brittani Noland’s defamation action in its entirety based upon her alleged inability to meet her burden of proof. After conducting a hearing on the merits, the trial court denied defendants-appellants’ motion for summary judgment based upon the presence of genuine issues of material fact. Defendants-appellants now appeal the trial court’s ruling.

Though defendants-appellants seek a judgment on appeal granting their motion for summary judgment against plaintiff, that issue is not properly before this court. A denial of a motion for summary judgment is an interlocutory judgment and is not appealable unless expressly provided by law. La. Code Civ. Proc. art. 2083(C) (2013). We note that under article 968 of the Louisiana Code of Civil Procedure, “[a]n appeal does not lie from the court’s refusal to render judgment on the pleading or summary judgment.” La.Code Civ. Proc. art. 968 |s(2013). Therefore, defendants-appellants may not appeal the denial of their motion for summary judgment against plaintiff.

Under the circumstances of this case, this court lacks jurisdiction to entertain this matter as an appeal. Accordingly, the appeal is dismissed. Defendants-appellants are given thirty days from the release of this opinion to apply for supervisory writs addressing the trial court’s denial of their motion for summary judgment if they so desire.

APPEAL DISMISSED


author: ROBERT A. CHAISSON, Judge.

text:
    In re SUCCESSION OF Charles John SPITZFADEN, III.
    No. 12-CA-895.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.
    Jack M. Alltmont, Brandon H. Robb, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee, John A. Stassi, III.
    Richard J. Tomeny, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellant, Dee Hunter Spitzfaden.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

| gThis is an appeal in a succession proceeding by a legatee who disputes the executor’s interim accounting. We grant the executor’s motion to dismiss the appeal, and remand the matter for further proceedings.

Charles John Spitzfaden, III died on September 25, 2007, survived by his wife, Dee Hunter Spitzfaden. The decedent had made several wills in the months before his death. On October 9, 2007, John A. Stassi, III, filed a petition to probate a will dated August 2, 2007. That will appointed Mr. Stassi as independent executor and made bequests to various legatees, including Mrs. Spitzfaden. Mrs. Spitzfa-den opposed probate of that will. On July 23, 2008, the trial court rendered judgment, finding the testament dated August 2, 2007, was valid. Mrs. Spitzfaden appealed. On appeal, this Court upheld the ruling that validated the August 2, 2007 will.

On November 21, 2011, Mr. Stassi, as executor, filed an Interim Accounting, from the date of death through September 30, 2011. On December 12, 2011, Mrs. Spitzfaden filed an Objection to Interim Accounting. The trial court conducted a hearing on June 20, 2012, Rnd rendered judgment on July 2, 2012. The judgment denied Mrs. Spitzfaden’s Objection to Interim | ¡.Accounting. Mrs. Spitzfaden appealed and that appeal is now before us on motion to dismiss.

The record was lodged in this Court on November 28, 2012. The appellee, Mr. Stassi, filed a Motion for Dismissal of Appeal on December 6, 2012. Pursuant to Uniform Rules — Courts of Appeal, Rule 2-8.1, the appellant, Mrs. Spitzfaden, had seven days from the filing of the motion to file an opposition brief. However, the appellant has not responded to the motion to dismiss.

The basis for Mr. Stassi’s Motion for Dismissal of Appeal is as follows:

The District Court’s July 2, 2012 Judgment was only a partial judgment, as it did not settle all of the outstanding issues in the Succession proceeding. Thus, according to La. C.C.P. art. 1915(B), it was only appealable if it was “designated as a final judgment by the court after an express determination that there is no just reason for delay.” There was no such certification by the District Court, nor was there any express determination made that no reason for delay existed.

La. C.C.P. art. 1915(B) provides, in pertinent part:

B. (1) When a court renders a partial judgment , as to one or more but less than all of the claims, demands, issues, or theories, ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. [Emphasis added.]

In this case, the judgment simply denies Mrs. Spitzfaden’s objection to the Interim Accounting. It makes no allocation of assets of the succession and involves no parties other than the executor, as succession representative, and |4Mrs. Spitzfaden, as one of several heirs. It is not a final judgment because it “adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties.” There is no certification by the trial court designating it as final for the purpose of an immediate appeal. Pursuant to La. C.C.P. art. 1915(B)(2), therefore, the judgment is not appealable and the appeal must be dismissed.

“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” Interlocutory judgments may be reviewed either by timely application for supervisory writs or by appeal after final judgment in the matter.

Review of this judgment could properly be undertaken under this Court’s supervisory jurisdiction. Therefore, the appellant, Dee Hunter Spitzfaden, is given thirty days from the date of this dismissal to file an application for writs that fully complies with Uniform Rules — Courts of Appeal, Rule 4-3, if she so desires.

APPEAL DISMISSED; CASE REMANDED.

      . In re: Succession of Spitzfaden, 09-212 (La. App. 5 Cir. 12/8/09), 30 So.3d 88.

      . La. C.C.P. art. 1841.

      . La. C.C.P. art. 2201; Uniform Rules— Courts of Appeal, Rule 4-3.

      . "When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party has taken the appeal.” Sporl v. Sporl, 00-1321, p. 2 (La.App. 5 Cir. 5/30/01), 788 So.2d 682, 684, writ denied, 01-1926 (La.10/12/01), 799 So.2d 506.


author: HUGHES, J.

text:
    SAFECO INSURANCE COMPANY v. NORCOLD, INCORPORATED.
    No. 2012 CA 0755.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 2013.

      Dan Boudreaux, Baton Rouge, LA, for Plaintiff/Appellant, Safeco Insurance Company.
    Henry D.H. Olinde, Jr., Drew Bernard, Baton Rouge, LA, for the Defendant/Ap-pellee Norcold, Incorporated.

      Before PARRO, HUGHES, and WELCH, JJ.
   HUGHES, J.

| .This is an appeal of a judgment sustaining the exception of prescription raised by defendant/appellee, Norcold Incorporated (Norcold), and dismissing the claims of the plaintiff'appellant, Safeco Insurance Company (Safeco). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arose from a fire that erupted on May 16, 2009, inside a Monaco Coach recreational vehicle (RV). The RV was parked inside a storage garage at the time of the fire, and both were damaged in the flames. The RV was insured by a policy of insurance issued by Safeco; the garage was insured by a policy of insurance issued by Hanover Insurance Company (Hanover). Because Safeco alleged that the fire began as a result of faulty parts in the RV\s refrigerator, which was distributed by Norcold, Safeco contended that Norcold was liable to it for reimbursement of the damages it had paid under its policy.

Safeco and Norcold both hired experts to inspect the damaged RV and its contents. Communications between Safeco and Norcold took place; however, Norcold did not make any payments or offers of settlement to Safeco. On June 1, 2010, more than a year after the fire, Safeco filed suit against Norcold for reimbursement. Norcold responded with an exception raising the objection of prescription. Safeco twice filed discovery requests. Norcold responded to the original requests, but did not respond to Safeco’s supplemental discovery, and Safeco filed a motion to compel.

The hearing on Norcold’s exception and Safeway’s motion was held on November 14, 2011. The trial court rendered judgment sustaining the exception and dismissing Safeco’s claims as prescribed. Because, the suit |Rwas dismissed, the court determined that Safeco’s motion to compel was moot and it was also dismissed. Safe-co appeals and assigns as error both the sustaining of the exception and the dismissal of its motion to compel.

LAW AND ANALYSIS

Safeco first alleges error in the trial court’s ruling on the exception of prescription. Normally, the exceptor bears the burden of proof regarding his exception; however, if the exception of prescription is raised and prescription is evident on the face of the pleadings, the burden shifts to the adverse party to show suspension, interruption, or renunciation. SS v. State ex rel. Dept of Social Services, 2002-0831 (La.12/4/02), 831 So.2d 926, 931 (citing Lima v. Schmidt, 595 So.2d 624, 628 (La.1992)).

Safeco alleges that Norcold is liable to it for the damages that resulted from a fire caused by defective parts in Norcold’s product. The fire occurred on May 16, 2009; Safeco filed a petition for damages against Norcold on June 1, 2010, more than one year from the time the cause of action arose. As such, on the face of the pleadings, the action appears to have prescribed. Therefore, the burden shifted to Safeco to show suspension, interruption, or renunciation of the prescriptive period. Safeco contends that its cause of action against Norcold had not prescribed at the time the suit was filed, because the one-year prescriptive period was interrupted by acknowledgement, pursuant to LSA-C.C. art. 3464, which states, “[prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”

Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest, by pledge, or in other ways; or it may be implicit or inferred from the facts and | circumstances. Lima, 595 So.2d at 632. The essence of acknowledgment is not its form, but the debtor’s recognition of the creditor’s right to the debt claimed by him. Lima, 595 So.2d at 632; see Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul. L, Rev. 430, 435 (1940). If the acknowledgement is tacit, it is necessary to ascertain that the alleged facts imply a definite admission of liability. Lima, 595 So.2d at 634. The supreme court has held the following with regard to tacit acknowl-edgement:

A tacit acknowledgement occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute ac-knowledgements. These generalizations are reflected in the host of cases addressing the issue of what constitutes a tacit acknowledgment. Our courts have added to the above generalizations other criteria that evidence an acknowledgment, including undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period. Conversely, our courts have recognized that mere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgement. (Footnotes omitted.)

Lima, 595 So.2d at 634.

Safeco contends that an acknowledgment is evidenced through email correspondence between its employee and an agent for Gallagher-Bassett Services, Inc. (GB), Norcold’s third-party administrator. In an effort to carry its burden, Safeco introduced the emails at the hearing, along with an affidavit of its employee, which stated as follows:

1. I am an employee of Safeco Insurance Company as a Subrogation Specialist.
2. I make this affidavit from my personal knowledge of the facts stated herein or upon information and facts available to me as a duly authorized employee of Safeco Insurance Company.
|fi3. On July 28, 2009, an e-mail was forwarded to me for review from Defendant’s claim representative, Patti Hileman White with Gallagher Bas-sett Services, Inc.
4. Said e-mail indicated that Defendant required supports for the claim and once received would negotiate a settlement and issue checks.
5. On September 29, 2009,1 had a telephone conversation with Ms. Hileman White who indicated that reimbursement from Defendant was pending a meeting of Defendant.
6. On November 2, 2009 and again on December 2, 2009 correspondence from Gallagher Bassett advised that the reimbursement was being held up because Defendant was waiting for supports from Hanover Insurance on a related claim.
7. Throughout the course of these exchanges, I believed based upon the correspondence and conversations with Gallagher Bassett that the claim was acknowledged, settlement was pending and Defendant intended to pay the claim.
8. No denial of Safeco Insurance Company’s claim was ever presented to or received by me.
s/Christina Freund, Subrogation Specialist
Safeco Insurance Company

The emails are summarized below, as follows:

1. 7/28/09 — email from GB to Safeco and Hanover advising that GB is the claims representative for Norcold and that Norcold is self-insured. GB advised that it would need to obtain all of the necessary information for the claim and then “go to [Norcold] for authority on the file. Once we have negotiated the settlements and releases, you will receive the checks directly from Norcold.”
2. 7/29/09 — email from Safeco to GB requesting confirmation that the mo-torhome and/or its contents would no longer be needed and could therefore be salvaged.
3. 7/29/09 — email response from GB to Safeco advising that its expert had already completed his inspection and thus, it had no objection to the sale of the salvage.
|fi4. 7/29/09 — email response from Safeco to GB advising that the hold preventing a sale of the RV and/or its contents had been removed.
5. 11/2/09 — email from GB to Hanover with a courtesy copy to Safeco asking Hanover about the status of the matter and advising that GB’s representative “can’t request authority on the file to take care of Safeco” until she received information from Hanover. She stated further that GB would “like to get this one moving towards settlement due to the one year statute of limitations that will run in May.”
6. 1/11/10 — email from GB to Hanover with a courtesy copy to Safeco inquiring as to the status of the matter and again requesting information so that GB could “request authority on the file. [Safeco] had their info [] to us quite some time ago and wants settlement.”

Applying the principles set forth in Lima to the instant case, the email correspondence and affidavit of Safeco’s employee do not suffice to show a tacit acknowledgment by Norcold. The emails between Safeco and GB and between GB and Hanover repeatedly stated that additional information was necessary in order for GB to request authority and begin settlement negotiations. There is no indication that the necessary information was provided to GB. Thus, no settlement offer was ever made. Notably, even had such an offer been made, the law is clear that settlement offers do not evidence an ac-knowledgement unless the offer is tendered unconditionally.

In the case of Flowers v. United States Fidelity & Guaranty Co., 381 So.2d 378 (La.1980), confusingly cited by Safeco as support for its position, the Louisiana Supreme Court ruled that conduct very similar to Nor cold’s did not amount to acknowledgment. In Flowers, a husband and wife filed an untimely action for damages they suffered as a result of an automobile accident. While the defendant insurance company had previously settled the claims of the husband and also paid some of the medical bills of the wife, its representative had repeatedly advised the wife 17that the medical reports of her doctors were necessary before an offer of settlement for her remaining claims could be made. The one year statute of limitations expired before the suit was filed, and the insurance company raised the exception of prescription, which was granted. On appeal to the Louisiana Supreme Court, the court found that neither the insurance company’s acknowledgment of the husband’s right to reimbursement of his wife’s medical expenses by making an unconditional payment, nor the insurance company’s willingness to discuss settlement with the wife were sufficient to interrupt prescription of the wife’s personal injury claim, because the statements and actions of the company’s representative failed to manifest an intent to admit liability to the wife. Flowers, 381 So.2d at 383.

Such is the case before us. While the email correspondence indicates that Nor-cold intended and was willing to discuss settlement with Safeco once the information it had requested from Hanover was received, Norcold’s statements and actions failed to manifest a definite admission of liability to Safeco. Thus, Safeco failed to meet its burden of showing that a tacit acknowledgment occurred. Therefore, it failed to show an interruption of prescription. We find no error in the trial court’s judgment sustaining the exception of prescription and dismissing Safeco’s claims.

Likewise, we cannot find error in the dismissal of Safeco’s motion to compel. At the hearing, Safeco’s attorney argued that the information requested in its supplemental discovery could have contained evidence sufficient for Safeco to show tacit acknowledgment as required. Safeco’s attorney argued that communications between GB and Hanover or GB’s internal communications may evidence a definite admission of liability for the debt. This argument must fail, however, as correctly noted by the trial court at the hearing. In order to rely on an acknowledgment of liability and Rnot timely file suit, Safeco must have possessed knowledge on which it could rely that Norcold did not dispute its liability for the damages. Obviously, Safeco could not rely on statements or actions of Norcold of which it was unaware, as would be the case with any information contained in GB’s communications with another company that were not communicated to Safeco, or to the internal communications of GB and/or Norcold. Thus, any information revealed through discovery would be of no use to Safeco. Safeco was not aware of that information and therefore could not have relied upon it in its decision not to file the lawsuit within the applicable delays. As such, we agree with the trial court that Safeco’s failure to show an interruption of the prescriptive period rendered moot its motion to compel.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Safeco Insurance Company.

AFFIRMED.

      . The details of any payments made by Safeco are not contained in the appellate record.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    CLAIBORNE MEDICAL CORPORATION (a Professional Medical Corporation) and Dr. Fiaz Afzal v. Gulnaz Q. SIDDIQUI.
    No. 12-CA-759.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2013.

      Bruce M. Danner, Attorney at Law, Madisonville, LA, for Plaintiff/Appellant.
    Kurt C. Garcia, Attorney at Law, Ken-ner, LA, Eric Carter, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

On February 18, 2010, plaintiffs, Claiborne Medical Corporation and Dr. Fiaz Afzal, filed a “Petition for Injunctive and Incidental Relief/’ seeking to enjoin Dr. Afzal’s sister-in-law and former employee, Gulnaz Siddiqui, from entering Claiborne Medical’s premises or disrupting its business in any manner. On February 25, 2010, Ms. Siddiqui filed an Answer, Re-conventional Demand, and Shareholder’s Derivative Action seeking a judicial declaration that she held a 50% ownership interest in Claiborne Medical along with other requested relief. On April 19, 2012, plaintiffs filed an amended petition, naming as additional defendants Ahmad Siddi-qui, Ms. Siddiqui’s husband and former employee of Claiborne Medical, Siddiqui and Afzal, L.L.C. and Days Inn of Ken-ner, L.L.C. The amended petition sets forth a business relationship between Mr. and Mrs. Siddiqui and Dr. Afzal and alleges that certain business transactions and property transfers were confected under duress as a result of defendants’ threats or misrepresentations surrounding Dr. Af-zal’s immigration status. In their amended petition, plaintiffs seek (1) a judicial declaration that Dr. Afzal is the sole owner of Claiborne Medical; (2) a judicial declaration that Claiborne Medical is the sole owner of two parcels of property in Ken-ner, Louisiana; (3) reimbursement of non-wage amounts paid to the Siddiqui by mistake; (4) judgment against Mr. Siddiqui in the amount of $50,000.00 for payment of a previous loan; (5) the dissolution of certain transfers of property from Claiborne Medical to Afzal and Siddiqui, L.L.C. and Days Inn of Kenner, L.L.C.; (6) damages relating to payments made by Claiborne Medical in connection with investment loans not related to its medical practice; (7) reimbursement of $230,000.00 paid by Claiborne Medical on behalf of defendants for architectural services; and’ (8) damages for Dr. Afzal’s emotional distress re-suiting from defendants’ intimidating actions.

On October 4, 2010, plaintiffs filed a motion for partial summary judgment on the issue of Ms. Siddiqui’s ownership interest in Claiborne Medical. Plaintiffs sought to have a May 25, 2008 document, which purported to transfer a fifty-percent ownership interest in Claiborne Medical to Ms. Siddiqui declared an absolute nullity. On January 3, 2011, the trial court granted plaintiffs’ motion for partial summary judgment, declaring that the purported transfer of fifty-percent ownership interest in Claiborne Medical to Ms. Siddiqui was an absolute nullity and that Ms. Siddiqui, as a non-physician, is prohibited by law to hold an ownership interest in any medical corporation.

The matter proceeded to trial on the remaining issues and, on May 31 ⅝ 2012, the trial judge issued the following judgment:

JUDGMENT

This matter came before the court for trial on March 28, April 9 and April 10, 2012. For the reasons stated in the Reasons for Judgment issued contemporaneously herewith, judgment is hereby entered in favor of plaintiffs for $50,000.00 plus interest as allowed by law.
Plaintiffs are entitled to judgment declaring Dr. Fiaz Afzal the sole owner of Claiborne Medical.
Plaintiffs request for a permanent injunction is denied.
All claims and damages in defendants’ reconventional demand are denied.

We find that the judgment appealed is not a valid, final judgment and, therefore, this Court lacks jurisdiction to consider the merits of plaintiffs’ appeal. The judgment at issue addresses plaintiffs’ causes of action for (1) repayment of a $50,000.00 loan; (2) a judicial declaration that Dr. Afzal is the sole owner of Claiborne Medical; and (3) a permanent injunction. The judgment also addresses all claims raised by defendants in their recon-ventional demand. However, the judgment does not dispose of all claims asserted by plaintiffs in their amended petition. Specifically, the judgment does not address (1) whether Claiborne Medical is the sole owner of the two parcels of property in Kenner, Louisiana referenced in the amended petition; (2) the request for reimbursement of nonwage amounts allegedly paid to defendants by mistake; (3) the request for dissolution of certain transfers of property from Claiborne Medical to Af-zal and Siddiqui, L.L.C. and Days Inn of Kenner, L.L.C.; (4) damages relating to payments made by Claiborne Medical in connection with investment loans not related to its medical practice; (5) the request for reimbursement of $230,000.00 allegedly paid on behalf of defendants for architectural services; and (6) damages for Dr. Afzal’s emotional distress resulting from defendants’ alleged intimidating behavior.

Since the trial court rendered a partial judgment as to less than all claims asserted, and the judgment has not been designated as a final judgment by the trial court after an express determination that there is no just reason for delay, the judgment at issue is not a final judgment under La. C.C.P. art. 1915 and is not appealable as one “... in which appeals are given by law.” La. C.C.P. art. 2083; See Laviolette v. Dubose, 07-916 (La.App. 5 Cir. 3/25/08), 983 So.2d 160,162.

In her written reasons for judgment, the trial judge addressed additional issues raised in plaintiffs’ amended petition ; however, the trial judge’s determinations and findings in her written reasons for judgment are absent from the judgment itself. A final judgment must contain decretal language and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the specific relief that is granted or denied. Input/Output Marine Systems, Inc. v. Wilson Greatbatch Technologies, Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 916. The specific relief granted or denied should be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment. Id.; Babin v. State Farm Mutual Automobile Insurance Company, 11-192 (La.App. 5 Cir. 9/27/11), 76 So.3d 100, 102. Jurisprudence reflects a well-settled rule that the district court’s oral or written reasons for judgment form no part of the judgment and that -appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 572; Bellard v. American Cent. Ins. Co., 07-1335 p. 25 (La.4/18/08), 980 So.2d 654, 671; Alvarez v. Clasen, 06-304 (La.App. 5 Cir. 10/31/06), 946 So.2d 181, 184. “The written reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend, or affect the final judgment being appealed.... ” Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d at 572, citing State in the Interest of Mason, 356 So.2d 530, 532 (La.App. 1 Cir.1977).

Because this court lacks jurisdiction in the absence of a final, appealable judgment, this appeal is dismissed without prejudice. This matter is remanded to the trial court so that a proper final judgment may be rendered.

APPEAL DISMISSED; REMANDED

      . The trial court issued a temporary restraining order and a preliminary injunction was subsequently ordered by consent of the parties. As reflected in the trial court's May 31, 2012 judgment, plaintiffs request for a permanent injunction was denied.

      . Defendants sought supervisory review of that judgment and, on April 27, 2011, this Court denied defendants' writ application.

      . We further find that the May 31, 2012 trial court judgment awarding $50,000.00 in favor of plaintiffs does not specify the party or parties against whom such judgment is rendered as required by La. C.C.P. art. 1918.

      . In her written reasons for judgment, the trial judge additionally found that (1) Claiborne Medical is sole owner of one parcel of property referenced in plaintiffs' amended petition; (2) plaintiffs did not enter into any business transactions with defendants as a result of intimidation or duress; (3) Claiborne Medical is not entitled to any restoration payments under La. C.C. art. 2033; and (4) plaintiffs are not entitled to reimbursement of any nonwage amounts paid to the Siddiquis.

      .Additionally, parties may not rely on Reasons for Judgment in further related proceedings. Metairie Carnival Club, Inc.v. Lundgren, 12-246 (La.App. 5 Cir. 10/20/12), 102 So.3d 999, 1002. Specifically, in this case, plaintiffs seek judgment declaring Claiborne Medical as the sole owner of certain parcels of property in Kenner, Louisiana. Although the trial judge, in her reasons for judgment, finds that one such property at issue was transferred to Claiborne Medical on May 28, 2008, Claiborne Medical will be unable to rely solely on the trial judge's written reasons for judgment to enforce its sole ownership of that property.


author: PAINTER, Judge. PAINTER, Judge.

text:
    KANO INVESTMENTS, L.L.C. v. KOJIS CONSTRUCTION, L.L.C.
    No. 12-1269, 12-1007.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.
    Opinion on Rehearing April 24, 2013.

      Jerold Edward Knoll, Marksville, LA, Brian K. Thompson, Alexandria, LA, for plaintiff-applicant-appellee Kano Investments, L.L.C.
    Charles A. Riddle, Marksville, LA, for defendant-respondent-appellant Kojis Construction, L.L.C.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

1 ,This matter arises out of a lease contract. Kano Investments, L.L.C. (Kano) brought a motion for summary judgment asserting that no genuine issue of fact remained as to Kojis Construction, L.L.C.’s (Kojis) breach of the lease of the premises owned by Kano and that Kojis was, therefore, not entitled to reimbursement for improvements made. The trial court found no genuine issue of fact remained with regard to violation of the lease, but found that questions of fact remained as to the claims for reimbursement. Kano applied to this court for a writ of review as to the trial court’s denial of summary judgment on the reimbursement claim. Kojis moved to appeal the grant of the motion with regard to breach of the lease. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 20, 2009, Kojis entered a commercial lease agreement with Shelton Development Company, L.L.C. (Shelton) for a space in the Marksville Square shopping center. The trial court correctly found the undisputed facts to be as follows:

1) On or about March 5, 2008[,] Shelton Development Company, LLC acquired immovable property from Marksville, La[.] Commercial Properties Development Company, LLC.
2) During the summer of 2009, Steven Todd Kojis, owner of Kojis Construction, LLC, contacted Mike Shelton, owner of Shelton Development, about leasing a space in a building situated upon the property acquired by Shelton in March 2008. All negotiations between Kojis and Shelton were conducted via e-mail and telephone calls.
3) In August of 2009[,] Kojis delivered to Mike Tudor, attorney for Shelton, a draft of a Lease Agreement used by Kojis for property in Jennings, Louisiana. This Lease Agreement reflected the tenant as Kojis Construction, LLC and the name of the business to be “ANYTIME FITNESS (to be used by tenant)[ ] with the tenants use to be “health club.”
| g4) On August 20, 2009[,] a Lease Agreement was executed ■ between Shelton and Kojis, said Lease Agreement being similar to the agreement forwarded by Kojis to Mike Tudor. However, Tudor apparently made changes. This Lease Agreement indicated the name, to be “ANYTIME FITNESS” (to be used by assignee of,” and the tenants use was listed as health and fitness club.”
5) On or about November 6, 2009[,] a Commercial Lease Agreement was entered into between Kojis as lessor and Three Monkeys Fitness, LLC as lessee. This Commercial Lease covered the same property leased by Kojis from Shelton and specifically included a provision entitled “Assignment and Subletting” which indicated that the Lease could not be sublet without the written permission of lessor, Kojis.
6) On or about November 22, 2011, Kano purchased the subject premises from Shelton and also received, pursuant to an Act of Assignment recorded November 23, 2011[,] in MOB 692, Page 545, an Assignment of five Leases affecting the subject property, all with Shelton as landlord. Of these five Leases being assigned, one such Lease was listed as “Kojis Construction, LLC, Anytime Fitness.”
7) On or about November 30, 2011[,] an Assignment and Consent to Assignment of Lease Agreement was executed by and between Kojis as landlord; Three Monkey’s Fitness as tenant; and Chad Laviolette as as-signee.
8) In late February 2012, Kano notified Kojis that they intended to cancel the Lease between Shelton and Kojis, and thereafter issued a second item of correspondence stating that the Lease was in fact cancelled.

On February 28, 2012, Kano filed a Petition for Declaratory Judgment recognizing that Kano acted in good faith and complied with its obligations under the lease, that Kojis violated the terms of the lease by failing to obtain written permission to sublet or assign the lease, and that the lease should be cancelled. Kojis responded with an Answer to Petition for Declaratory Judgment and Reconventional Demand first asserting that the sublease was not a breach of the lease and, in the alternative, that it was entitled to reimbursement for the expenses it incurred in improving the lease space.

| sIn May 2012, Kano filed a motion for summary judgment. As stated above, the trial court found that no genuine issue of fact remained with regard to violation of the lease, but that questions of fact remained as to the claims for reimbursement. Both parties appeal.

DISCUSSION

Summary Judgment

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. 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. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-766.

Priola Constr. Corp. v. Profast Dev. Group, Inc., 09-342 (La.App. 3 Cir. 10/7/09), 21 So.3d 456, writ denied, 09-2403 (La.1/22/10), 25 So.3d 142 (citing King v. Ill. Nat’l Ins. Co., 08-1491, p. 6 (La.4/3/09), 9 So.3d 780).

Therefore, we will conduct a de novo review to determine whether any material issues of fact remain which would prevent the granting of summary judgment in this matter.

| ^Breach of Lease

The lease contains the following provisions: The tenant’s name is designated as Kojis Construction Co., LLC. However, the name of the business is indicated as ANYTIME FITNESS [to be used by as-signee of]. Section 16 of the lease entitled Assignment and Subletting provides as follows:

Subject to the written permission of the Landlord, Tenant may assign or encumber this lease of its rights thereunder. In such event, the Tenant shall remain at all times liable for the payment of all rents required to be paid thereunder and for the performance of all term, covenants and conditions hereto undertaken by Tenant. Failure to secure the written permission of Landlord for an assignment of this Lease by Tenant]] shall result in a default of the Lease.

Kano alleges that it was entitled to cancellation of the lease based on Kojis’ failure to notify it in writing of the assignment of the lease to Laviolette’s Gym, LLC (Laviolette’s Gym), an Anytime Fitness franchisee. Kojis opposed the motion arguing that the intent of the original lease was that whoever held the Anytime Fitness franchise would operate the business on the premises.

Louisiana Civil Code Article 1848 provides that:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

In this case, Kojis would like to introduce evidence of the negotiations which preceded the execution of the lease. As such, this evidence is not admissible to vary the contents of the lease.

Further, the words of the contract are clear, the tenant, designated as Kojis, may not assign the lease of sublet without the written permission of the lessor/landlord, now Kano. It is undisputed that written permission was not obtained for the assignment of the lease to Laviolette’s Gym. Regardless of whether it was understood that the lease was to be assigned or sublet, as evidenced | sby the name of the business in the lease, the lease makes it clear that assignment by the tenant, Kojis, requires the written consent of the Lessor to any assignment or sublease.

Therefore, we conclude that no issue of material fact remains but that Kojis’ failure to obtain written consent for the assignment of the lease to Laviolette’s Gym, was a violation of the lease agreement.

Reimbursement of Improvement Expenses

Kano further asserted in its motion that it Kojis is not entitled to the amount claimed in its reconventional demand for the expenses of improving the premises.

Kojis seeks to recover the cost of its improvements to the leased premises under the Louisiana Civil Code provisions on accession in relation to immovable property.

Louisiana Civil Code Article 495 provides that:

One who incorporates in, or attaches to, the immovable of another, with his consent, things that become component parts of the immovable under Articles 465 and 466, may, in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition.
If he does not remove them after demand, the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable.

Articles 496 and 497 make further provision for good and bad faith possessors.

Comment (b) to Article 495 provides, in pertinent part: “When improvements are made by a lessee in accordance with the terms of the lease, the rights of the parties are determined by the contract or under the law of lease. Article 495
applies only in the absence of other provisions of law or juridical act.”
In Smith v. State, Department of Transportation & Development, 04-1317 (La.3/11/05), 899 So.2d 516, the supreme court discussed the |,¡application of Article 495, noting that it is a supplementary remedy that applies in the absence of other laws or juridical acts.

Priola Const. Corp., 21 So.3d at 464.

The lease makes the following provisions with regard to improvements and as to the Lessor’s rights on default:

Tenant’s Improvements: Tenant is accepting the Premises in “as is” condition. Tenant shall be responsible for all improvements made to the Premises. This Lease and the payment of rent shall not be delayed due to any delay in Tenant completing its improvement.
5. Landlord’s Rights upon Default. If the Tenant shall abandon or vacate the Premises before the end of the term of this Lease, or shall suffer the rent to be in arrears, or be in default of the Lease, the Landlord may at its option, forthwith cancel this Lease or it may enter the Premises as the agent of the Tenant, by force or otherwise, without being liable in any way therefore, and relet the Premises with or without any furniture or fixtures that may be therein, as the agent of the Tenant, at such a price and upon such terms and for such duration of time as the Landlord may determine, and receive the rent therefore, applying the same to the payment of the rent due by these presents, and if the full rental herein provided shall not be realized by Landlord over and above the expenses of Landlord in such re-letting, the Tenant shall pay any deficiency, and if more than the full rental is realized, Landlord shall retain that excess rent. In any event, the Tenant remains liable for all amounts due under the Lease, and Landlord may institute proceedings against the Tenant to recover all sums due.

Contrary to Kano’s assertions, the lease contains no provision with regard to the Lessor’s liability or lack of liability for improvements made to the premises on default.

Because La.Civ.Code art. 2695, however, provides for this situation, the code articles governing accession do not apply. Article 2695 provides as follows:

In the absence of contrary agreement, upon termination of the lease, the rights and obligations of the parties with regard to attachments, additions, or other improvements made to the leased thing by the lessee are as follows:
(1) The lessee may remove all improvements that he made to the leased thing, provided that he restore the thing to its former condition.
|7(2) If the lessee does not remove the improvements, the lessor may:
(a) Appropriate ownership of the improvements by reimbursing the lessee for their costs or for the enhanced value of the leased thing whichever is less; or
(b) Demand that the lessee remove the improvements within a reasonable time and restore the leased thing to its former condition. If the lessee fails to do so, the lessor may remove the improvements and restore the leased thing to its former condition at the expense of the lessee or appropriate ownership of the improvements without any obligation of reimbursement to the lessee. Appropriation of the improvement by the lessor may only be accomplished by providing additional notice by certified mail to the lessee after expiration of the time given the lessee to remove the improvements.
(c) Until such time as the lessor appropriates the improvement, the improvements shall remain the property of the lessee and the lessee shall be solely responsible for any harm caused by the improvements.

After a de novo review, we conclude that questions of fact remain as to whether the lessor has made demand for restoration of the leased premises to its former condition or has chosen to appropriate the improvements and reimburse the lessee. Therefore, summary judgment is not warranted in connection with Kojis reconventional demand.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be divided equally between the parties.

AFFIRMED.

Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.

ON REHEARING

PAINTER, Judge.

_|jWe grant the application of Defendant-Appellant, Kojis Construction, L.L.C. solely as to the issue of estoppel. After reviewing the facts and the applicable law, we find that payment of rent for three months did not act to estop the breach of lease claim. The lease contract provides that the landlord’s failure to exercise its rights under the lease promptly does not operate to forfeit such rights. Further,

[E]quitable estoppel applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation. State v. Mitchell, 387 So.2d 1186, 1188 (La.1976). We must narrowly construe this argument, as “estoppel is not favored in our law,” Id., and estop-pel is a “doctrine of last resort.” How ard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986).

Waste Management of Louisiana, LLC v. Penn-America Ins. Co., 12-1038, pp. 5-6 (La.App. 3 Cir. 2/6/13), 110 So.3d 200, 204. The documents supporting the motions for summary judgment do not support application of this doctrine.

Therefore, we affirm our original opinion and affirm the trial court’s grant of summary judgment with regard to breach of lease.

AFFIRMED.


text:
    STATE of Louisiana v. Cody VEDOL.
    No. 12-KA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Myles D. Ranier, Scott Schlegal, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Nisha Sandhu, Attorneys at Law, New Orleans, LA, for Defendant/Apellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

[¡¡Cody Vedol, defendant, was convicted on October 19, 2011 of second degree murder, a violation of La. R.S. 14:30.1, and of being a felon in possession a firearm, a violation of La. R.S. 14:95.1. On appeal, defendant argues that the evidence presented at trial was insufficient to convict him of second degree murder and that his sentence for that crime is unconstitutionally excessive in violation of the U.S. Constitution’s Eighth Amendment. Defendant also argues that his rights under the Fifth and Sixth Amendments to the U.S. Constitution were violated when the trial court failed to allow defendant a recess to call a material witness and when the trial court allowed the State to present an expert witness in rebuttal to defendant’s own testimony without allowing defendant the opportunity to present his own witness in surrebuttal. For the reasons below, this Court finds these assignments of error meritless and affirms defendant’s convictions and sentences.

J¿'ACTS AND PROCEDURAL HISTORY

On August 18, 2009, defendant was standing with five other males in a parking lot between 1116 Tallow Tree Lane and 1117 Orange Blossom Lane in Harvey. That night, defendant encountered Mr. Van Vo and fired several shots at him. One of these shots killed Mr. Vo.

At trial, defendant testified that Mr. Vo tried to buy drugs from a member of the group. Defendant testified that after Mr. Vo was told that no one in the group was selling, Mr. Vo began to argue with one of the men, Charles Lorio. On cross-examination, defendant stated that it appeared that Mr. Lorio was attempting to rob Mr. Vo. Defendant testified that he attempted to stop this altercation by telling Mr. Lorio to leave Mr. Vo alone. Defendant further testified that at this point Mr. Vo got off his bicycle and came towards he and Mr. Lorio to attack them. Defendant testified that Mr. Vo then threw a rock at him which missed. According to defendant, he was moving away from Mr. Vo when he fired three shots at Mr. Vo.

The State re-called Charles Lorio after defendant testified, Mr. Lorio testified that he did not get into an altercation with Mr. Vo and that Mr. Vo never got off his bicycle. Mr. Lorio also testified that defendant told him that defendant did not mean to shoot Mr. Vo.

Defendant was indicted on December 17, 2009, on one count of second degree murder in violation of La. R.S. 14:30.1 and on one count of possession of a firearm by a felon in violation of La. R.S. 14:95.1. Defendant’s trial began on October 17, 2011 and on October 19, 2011, a jury found defendant guilty on both charges. On the charge of second degree murder, defendant was sentenced to life in prison without benefit of parole, probation, or suspension of sentence. On the charge of felon in possession of a firearm, defendant was sentenced to 15 years at hard labor. Both sentences were ordered to run concurrently-

L DISCUSSION

First Assignment

In his first assignment of error, defendant argues that the evidence at his trial was insufficient to convict him of second degree murder. He contends that the evidence shows he fired the weapon in self-defense to stop Mr. Vo from advancing in a pursuit he reasonably believed was an attack. Defendant further contends that he did not intend to kill or harm Mr. Vo, and that he only fired the weapon to scare Mr. Vo away. The State responds that the evidence was sufficient to support the conviction, noting that the undisputed evidence not only shows defendant was the aggressor, but that he had the specific intent to kill.

In reviewing the sufficiency of evidence, this Court must determine that the evidence, whether direct, circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases such as this which involve circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This Court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, this Court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342,5 p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

Second degree murder is the killing of a human being when the killer: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. La. R.S. 14:30.1; see State v. Lewis, 05-170, p. 8 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277. In this case, the jury was instructed as to both theories: specific intent murder and murder while committing or attempting: armed robbery; first degree robbery; second degree robbery; or simple robbery.

Under the first theory of second degree murder, the State had to prove that defendant had the specific intent to kill or to inflict great bodily harm. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v. Durand, 07-4, p. 8 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Applying the legal principles to the evidence in this case, this Court finds that the State carried its burden of proving that defendant acted with specific intent to kill or inflict great bodily harm. Defendant admitted that as he was running away from Mr. Vo, he pointed the gun in Mr. Vo’s direction and fired it three times. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118, p. 48 (La.4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869, p. 6 (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27. Additionally, Dr. Garcia testified that Mr. Vo was shot in the back, and that the bullet went through the aorta, one of the main branches of the heart, and hit the pulmonary artery, another main trunk of the heart, causing Mr. Vo to bleed to death as a result of that wound. Specific intent to kill may be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, unit denied, 03-411 (La.10/10/03), 855 So.2d 327. In light of this, we find that a reasonable juror could have found that defendant had the specific intent to kill Mr. Vo.

Defendant also contends that he shot Mr. Vo in self-defense. At trial, defense counsel argued that defendant fired the weapon because Mr. Vo was coming at him, and he was trying to scare Mr. Vo away. The jury was instructed as to justifiable homicide and self-defense. When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982); State v. Theriot, 07-71, p. 13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715. The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18.

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A). A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(1). The 17aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

La. R.S. 14:20(D) provides that no finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry. However, this Court has continued to recognize that while there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Terrell, 08-1189, p. 12 (La.App. 5 Cir. 2/25/09), 9 So.3d 245, 252, writ denied, 09-657 (La.12/18/09), 23 So.3d 931.

Here, this Court finds that the State carried its burden of proving that defendant did not act in self-defense and that the killing was not justifiable. The evidence reveals that defendant pointed a handgun at the unarmed victim and shot him in the back. Defendant fled the scene, ran into an apartment, and asked Mr. Thomas to hide the weapon in the vacuum cleaner. These theories are inconsistent with a theory of justifiable homicide. See State v. Patterson, 10-415, pp. 12-16 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 149-50, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037, where this Court found that a defendant’s flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. In Patterson, this Court also found that a gunshot wound to the back of the head indicated that the defendant became the aggressor and that his claim of self-defense was unsupported by the facts. Id.

^Although defendant claimed that Mr. Vo threw a rock at him and came toward him, defendant also testified that after the rock hit the wall, he did not know if Mr. Vo had anything else in his hands. Defendant stated that after Mr. Vo threw the rock, he turned and did not even look back at Mr. Vo. Defendant could not tell whether Mr. Vo had a gun or any other weapons. Defendant explained that he did not see anything in Mr. Vo’s hand, that he did not look at Mr. Vo to see whether he had something in his hand, and that he just started shooting. Defendant conceded at trial that if he had not had a weapon, he would have had no other choice but to keep running from Mr. Vo or maybe fight him, and that without the gun there were other ways this situation could have ended.

By returning the guilty verdict, the jury rejected defendant’s account of the events and found that defendant’s actions were neither reasonable nor necessary. It is the role of the fact-finder to weigh the credibility of the witnesses, and on review, this Court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Wallace, 00-1745, p. 8 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297.

For these reasons, this Court finds that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant had the requisite intent to support his conviction for second degree murder, and that defendant did not act in self-defense. Therefore, the evidence presented at trial was sufficient to support defendant’s conviction.

Secmd Assignment

Defendant next argues that his sentence of life without parole for his second degree murder conviction is unconstitutionally excessive in violation of the U.S. | ¡Constitution’s Eighth Amendment. Defendant contends that a downward departure is warranted considering that Mr. Vo was chasing him and that he fired the weapon out of fear for his life. He claims that his actions do not comport with the verdict rendered, and he indicates that the sentencing ranges for manslaughter (not more than forty years) and negligent homicide (not more than five years) would be more appropriate. Defendant also contends that a downward departure is warranted considering his youth, lack of education, and his expressed remorse at having caused Mr. Vo’s death. Lastly, he asserts that the likelihood of rehabilitation on account of his youth is greater than that of recidivism. The State responds that the Louisiana Supreme Court has consistently rejected the assertion that a mandatory life sentence for a second degree murder conviction is excessive.

Defendant’s life sentence is mandatory under La. R.S. 14:30.1(B). It is presumed that a mandatory minimum sentence is constitutional. State v. Royal, 03-439, p. 11 (La.App. 5 Cir. 9/30/03), 857 So.2d 1167, 1174, writ denied, 03-3172 (La.3/19/04), 869 So.2d 849. Nevertheless, even though defendant received the mandatory minimum sentence, that sentence may still be reviewed for constitutional excessiveness. Id. To rebut the presumption of constitutionality, the defendant must show that: “[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances.” Id.

In Royal, the defendant was convicted of second degree murder and received the mandatory minimum sentence of life imprisonment. Id. At his sentencing hearing, the defendant failed to present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence. As a |inresult, we found that the defendant failed to carry his burden and concluded that his sentence was not excessive. Id.

As in Royal, here, defendant failed to present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence at his sentencing hearing. On appeal, he argues that a downward departure is warranted considering that Mr. Vo was chasing him and that he fired the weapon out of fear for his life, and that his actions did not comport with the verdict rendered. As discussed above however, the evidence is sufficient under the Jackson standard to show that defendant had the specific intent to kill or to inflict great bodily harm when he fired the gun in Mr. Vo’s direction, hitting unarmed Mr. Vo in the back.

Defendant also argues on appeal that the sentence is excessive based on his youthfulness. At the time he committed this crime, defendant was twenty-one years old. Although this is a young age and defendant is more likely to be susceptible to rehabilitation, .defendant was still an adult. The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012). The Miller court did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. Id.; State v. Simmons, 2011-1810 (La.10/12/12), 99 So.3d 28(Mem). Here however, defendant was above the age of eighteen and therefore his young age of twenty-one does not require that this Court find his mandatory sentence for second degree murder unconstitutional.

|nIn light of the foregoing, this Court finds that the facts of this case are insufficient to support a downward deviation from defendant’s mandatory sentence of life imprisonment and that the defendant’s sentence is not unconstitutionally excessive.

Third Assignment

In his third assignment, defendant argues that the trial court erred by failing to grant him a recess until he could call Terrell Thomas, a witness defendant argued was essential for his case. The decision to grant a recess lies within the discretion of the trial court and will not be overturned absent an abuse of that discretion. State v. Hampton, 98-331 (La.4/23/99), 750 So.2d 867, 877, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Stevenson, 02-79, p. 3 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345.

A motion for recess is evaluated by the same standards set in La.C.Cr.P. art. 709 for a motion for a continuance. State v. Warren, 437 So.2d 836, 838 (La.1983); State v. Rodriguez, 02-334, p. 14 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 117, writ denied, 03-482 (La.5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 321 (2003). In defense counsel’s motion for recess, he was obligated to state: first, facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; second, facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and third, facts showing due diligence used in an effort to procure attendance of the witness. Id.

The record shows that Mr. Thomas was served with a subpoena to appear as a witness in this case. After Mr. Thomas missed court, an attachment was issued for him. At one point, the U.S. Marshals Service found Mr. Thomas in Texas. The 11 ¡.record indicates that before the lunch break on the trial’s second day, the State, defense counsel, and the trial court, were all under the impression that Mr. Thomas could be located in Houston, Texas and be made to come to the trial pursuant to the already issued attachment. After the lunch break however, defense counsel stated on the record that the State had given him a phone number for Mr. Thomas which turned out to be Mr. Thomas’ mother’s telephone number. Defense counsel stated that he called this number, and that Mr. Thomas’ mother told him that her son was still in Houston and gave him a phone number for Mr. Thomas. Defense counsel stated he then called this new number and spoke to Mr. Thomas. During this phone call, Mr. Thomas told defense counsel that he was in San Antonio, Texas and claimed not to know the airport’s location. Defense counsel told the trial judge that Mr. Thomas was being “totally obstructive.” Defense counsel then asked the trial court judge to call Mr. Thomas to determine what city he was in and to help get him into court. The trial court judge refused to call Mr. Thomas to question him without any verification that he would actually speak to Mr. Thomas and not another person.

The prosecutor told the court that Mr. Thomas’ mother had told him that morning that Mr. Thomas was in contact with the U.S. Marshals. Defense counsel responded that as of lunch time, Mr. Thomas stated that he was not in the custody of the U.S. Marshals. After this, defense counsel asked the court to call the U.S. Marshals Service, to try to locate Mr. Thomas. The trial court refused; however, it did allow for a five minute recess to allow a phone call to the U.S. Marshals Service to find out whether it knew Mr. Thomas’ location. After this five-minute recess, the prosecutor told the court that it had Officer DiGiovani call -the U.S. Marshal’s Service and that the State had put defense counsel and Officer DiGiovani in communication. Defense counsel stated, that Officer DiGiovani told | ^him that Mr. Thomas would come in if needed. Later however, another prosecutor stated for the record that [Officer] DiGiovani attempted to place calls to Mr. Thomas numerous times without answer.

Defense counsel then, at around 2:00 p.m., moved for a recess until 8:00 a.m. the next day to give him time to locate Mr. Thomas and bring him to court. The trial judge denied this motion. Defense counsel proceeded to argue for the recess, noting first that he had spoken to Mr. Thomas. Defense counsel next argued that he was told by law enforcement that Mr. Thomas had agreed to come back. Third, defense counsel argued that he was told by law enforcement that Mr. Thomas had agreed to come back because the warrant for his attachment had been recalled. Defense counsel concluded by arguing that since he was only given Mr. Thomas’ phone number at lunch, that he was moving as quickly as possible to get Mr. Thomas into court. Defense counsel then stated that he believed Mr. Thomas would corroborate defendant’s trial testimony and defendant’s last statement to the police.

The State responded by pointing out that nothing in Mr. Thomas’ previous statements indicated that Mr. Thomas would so testify. The trial judge then stated Mr. Thomas made three statements on August 19, 2009 and that he had read each of these statements. The trial judge found that in none of Mr. Thomas’ statement did he say that he saw the shooting.

Defense counsel then pointed out a portion of a statement by Mr. Thomas which reads,

[Question:] [a]nd all you all are standing outside when you all heard the shots?
[Answer:] Correct.
' [Question:] I’m sorry, you’ve got to say yes or no.
[Answer:] Yes. Yes. Yes.

[ 14Pefense counsel argued that this part of Mr. Thomas’ statement, and the fact that only two and a half hours remained for trial that' day, supported his motion to recess. The trial judge denied defense’s motion to recess. Defense counsel objected, and then moved for a mistrial. The motion for mistrial was denied.

Applying La.C.Cr.P. art. 709, this Court finds first that defense counsel failed to show any evidence that Mr. Thomas would testify to material facts which were needed for defendant’s defense. Each of Mr. Thomas’ statements to the police indicated that he did not see the shooting. Further, defense counsel admitted that he never received any information from Mr. Thomas, on the phone or otherwise, that should Mr. Thomas take the stand, he would testify to facts different from those in his previous statement. Defense counsel’s argument that he could get Mr. Thomas to suddenly change his story on the witness stand was baseless conjecture. This Court also finds that defense counsel failed to state facts and circumstances showing a probability that the witness would be available the next morning. When defense counsel moved to recess, defense counsel could not tell the court where Mr. Thomas was, nor of any plans to have Mr. Thomas attend trial the next day. Rather, defense counsel stated that Mr. Thomas was being “totally obstructive” on the phone and that Mr. Thomas was no longer answering his phone calls.

Even without these two findings however, defendant’s argument on this point is moot. After defendant testified on the second day of trial, trial was recessed for the day to allow the State time to call an expert witness to rebut defendant’s testimony. The practical effect of this was to give defense counsel the time he sought. In light of these findings, this Court holds that the trial court did not manifestly err by denying defendant’s motion to recess.

| fourth Assignment

Finally, defendant argues that the trial court erred by allowing the State to call an expert rebuttal witness regarding the location of the shell casings without allowing defendant to put on his own expert witness in surrebuttal.

During his direct examination, defendant admitted that he shot and killed Mr. Vo. Defense counsel then further questioned defendant regarding the fourth statement defendant gave to police. In that statement, which was played for the jury, defendant discussed his and the victim’s locations during the incident. Defendant said he and his friends were standing outside when the victim pulled up in the middle of the parkway on a bicycle. Defendant explained that he was standing right on the side of the building Mr. Lorio lived in when the incident occurred. Defendant stated that there was a car on the right side of him, that Mr. Lorio and the victim were behind the car in the middle of the parking lot talking, and that the car was parked in front of the building. After the tape was played, defendant testified on direct examination that he fired the weapon three times, that he did not see the victim get hit by a bullet, and that the last time he saw the victim, the victim was running towards the alleyway. On cross-examination, defendant testified that when the victim approached his group, defendant was standing behind the building and that by the time he fired at Mr. Vo, he was shooting from the “right side of the car.” On redirect examination, defendant said he knew the location from which the officer retrieved the shell casings. When defense counsel asked him whether those locations would be consistent with him shooting from “exactly where [the officers] told the District Attorney you were located,” defendant answered, “No, sir.” After defendant finished testifying, the trial recessed for .the day.

| mThe next morning, the State called Colonel Timothy Scanlan, an expert, to rebut defendant’s testimony about where he was when he fired his shots. Defense counsel objected to this witness. The trial court noted that during the State’s case-in-chief it had admitted into evidence, without objection, schematic drawings showing the location of the body, shell casings, and other evidence. The trial court found that defendant’s testimony put at issue the location of the casings, and because this was now at issue, the State had the right to call Colonel Timothy Scanlan as a rebuttal witness. The trial court reasoned that the State was under no duty to disclose rebuttal evidence before that time because the State could not have known what issues defendant would raise on his direct examination. It therefore rejected defense counsel’s objection and allowed Colonel Scanlan to testify.

Colonel Scanlan took measurements of the crime scene in the morning before testifying. He testified that the weapon used in this crime ejected shell casings from its right side. He also testified that, in his opinion, the places the shell casings were found were more consistent with a shooter “being near the center in between those two buildings than hugging a wall.” Colonel Scanlan’s material testimony was narrowly confined to the issue of the likely location of the shooter based on the locations of the shell casings.

La.C.Cr.P. art. 765 states the normal order of trial as follows:

(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument.

Although the article provides the prosecution a statutory right to rebut evidence introduced by the defense, the defendant does not have a right to rebut the State’s evidence. The introduction of additional evidence before argument is within the sound discretion of the trial court. State v. Silva, 96-459, p. 7 (La.App. 5 Cir. 11/26/96), 685 So.2d 1119, 1122, writ denied, 96-3067 (La.6/13/97), 695 So.2d 964.

Proper rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts which are given in evidence by the adverse party. State v. Williams, 03-942, p. 10 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1010, writ denied, 04-450 (La.6/25/04), 876 So.2d 832. The trial court is vested with sound discretion in determining what constitutes valid and admissible rebuttal evidence. A trial court’s ruling on the admissibility of rebuttal evidence will not be disturbed, except in extreme cases, such as when the evidence was kept back deliberately for the purpose of deceiving and obtaining an undue advantage. Id.

Here, defendant, during his direct-examination, raised the issue of his location at the time of the shooting relative to the shell casings’ locations. This testimony was new evidence by the defendant which gave the State the right to put on rebuttal evidence. La. C.E. art. 611(E). Therefore, this Court finds that the trial judge did not err by allowing the State to call Colonel Scanlan to rebut defendant’s testimony. Further, given that defendant had no right to introduce surrebuttal evidence, this Court finds the trial court did not err by denying defendant the ability to put on his own expert in surrebuttal to Colonel Scanlan.

ERROR PATENT DISCUSSION

Pursuant to La.C.Cr.P. art. 920, this Court has conducted a review of this record for errors patent. We find that the trial judge did not advise defendant of the two-year prescriptive period for filing an application for post-conviction relief under La.C.Cr.P. art. 930.8. By way of this opinion, we now advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La]C.Cr.P.18 arts. 914 or 922. See State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-248 (La.10/30/09), 21 So.3d 272.

CONCLUSION

For the reasons discussed above, we find defendant’s assignments of error without merit. We therefore affirm defendant’s convictions and sentences.

AFFIRMED