text:
    Louis A. PALMER & Keri Kay Shirley Palmer, Plaintiffs-Appellants v. VERMILLION HOME BUILDERS, LLC, et al (John William Kamphuis), Defendants-Appellees.
    No. 48,838-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Mark W. Odom, Shreveport, for Appellants, Louis A. Palmer & Keri Kay Shirley Palmer.
    David L. White, Bossier City, for Appel-lees, Vermillion Home Builders, LLC & Randolph R. Hines.
    Blanchard, Walker, O’Quin & Roberts, by M. Thomas Arceneaux, Drew E. Smith, Shreveport, B. Slattery Johnson, Jr., for Appellee, John William Kamphuis.
    Barham, Warner, Stroud & McKay, LLC., by Vicki C. Warner, Shreveport, for Third Party Appellee, PPT, Inc.
    Before WILLIAMS, PITMAN & GARRETT, JJ.
   PITMAN, J.

Lin this action brought under the Louisiana New Home Warranty Act, (“NHWA”), La. R.S. 9:3141, et seq., Plaintiffs, Louis A. Palmer and Keri Kay Shirley Palmer, appeal a ruling of the trial court granting the motion for summary judgment filed by Defendant John William Kamphuis and dismissing the Palmers’ action against him on the basis that he was not engaged in a “joint venture” and, thus, was not liable to them as “builder” of the home under the statute. The trial court also denied Plaintiffs’ cross-motion for partial summary judgment seeking a determination that Defendant was engaged in a “joint venture” with the seller and, for that reason, was a builder of the home. For the following reasons, the judgments of the trial court are affirmed.

FACTS

The home at issue in this case was built in Shreveport, Caddo Parish, by Vermillion Home Builders, LLC (“Vermillion”). Construction on the home began in 2007 while Vermillion was owned by Randolph Hines and Defendant. Hines and Defendant were also the owners of three other companies, Vermillion Painting and Construction (“VPC”), H & K Equipment, L.L.C. (“H & K”) and Redman Development, L.L.C. (“Redman”). The two men decided to alter their business arrangement; and, in 2007, they entered into a written agreement to divide the assets of the various business interests they shared.

In a document entitled “Stock and Business Interest Bill of Sale and Exchange Agreement” (“the Agreement”), dated July 26, 2007, Hines transferred his stock in VPC and H & K to Defendant, and Defendant | transferred all of his interest in Vermillion and Redman to Hines. Defendant also provided cash consideration to Hines of $150,000 and delivered a promissory note in the amount of $85,000 as part of the consideration for the transfer of the business interests. The Agreement contained a clause for future payments by Defendant to Hines in the amount of $150,000.

Paragraph 9(a) of the Agreement concerns- additional payment by Vermillion and Redman to Defendant for compensation for contractual and management services rendered or to be rendered by him. That paragraph provides that Vermillion agrees to pay Defendant an amount equal to 40 percent of its net income before taxes for the year 2007. The clause also states: “In the event that Vermillion Homebuild-ers has a loss for 2007, no payment shall be due, and Kamphuis shall not be required to make any payment as a result of such loss.”

Paragraph 12 of the agreement states as follows:

a. Kamphuis agrees to manage the jobs described in Exhibit B attached hereto, being current jobs in progress for Vermillion Homebuilders, until completion of such jobs, but such completion shall be at the sole expense of Vermillion Homebuilders. At the conclusion of each such job, Hines shall cause Vermillion Home-builders to pay Kamphuis compensation equal to 20% of the gross profit on the job in question, less any draw or draws made by Kamphuis on any such job prior to the date of this Bill of Sale. Such payments shall be due on or before 30 days following closing on each particular job, and Kam-phuis shall provide a calculation of each payment with the payment. In addition, VPC will provide office space, equipment and staffing services for Vermillion Homebuilders in accordance with rates agreed upon by the parties, or, in the absence of such agreement, at reasonable rates determined by an objective third party or a court of competent jurisdiction.

Paragraph 15 of the Agreement contains an indemnity clause entitled | ..“Indemnity of Kamphuis,” which states as follows:

Hines, Redman and Vermillion Home-builders, as solidary obligors, agree to indemnify and hold harmless Kamphuis from and against any and all claims, damages or causes of action of any nature whatsoever, arising out of the operation of Redman or Vermillion Home-builders, whether before or after the date of this Bill of Sale, except for any claim, damage or cause of action caused by any legal fault of Kamphuis. Such indemnity shall include and [sic] costs of defending any claim, including attorneys’ fees.

The house at issue in this case was one of the jobs referred to in Paragraph 12 and itemized on Exhibit B of the Agreement as Lot 120, Provenance Subdivision, Caddo Parish, Louisiana. Defendant did manage the job of building the house located on Lot 120 until its completion and also engaged in activities which resulted in the sale of the house to the Palmers.

The Palmers bought the house in March 2008. After taking possession, they began to notice numerous major structural defects in the home, allegedly caused by noncompliance with building standards or other defects in materials or workmanship in the construction of the home. These defects included movement between the foundation and adjacent structures, vertical cracks in the exterior finishes, cracks in the slab of the foundation and cracks in the drywall in the interior of the home.

The Palmers filed suit against Vermillion, Hines and Defendant, alleging defects in load-bearing portions of the house resulting in the home becoming unsafe, unsanitary or otherwise unlivable. They claimed that, under the NHWA, they were the “owners” of the home and the defendants were the “builders” against whom they have a cause of action in warranty. The Palmers alleged that Defendant was to manage the jobs described in the | ¿Agreement between Vermillion, Hines and Defendant until completion of the jobs, including their home. The Palmers also alleged that the Agreement constituted a joint venture between Vermillion, Hines and Defendant for the construction of the home sold to them, making Defendant a “builder” of the home as the joint venturer with Vermillion.

Defendant filed an answer to the petition denying any claim of solidary liability and admitting only that he agreed to provide certain services in exchange for compensation for those services. Defendant also filed a cross-claim against Vermillion and Hines, alleging that, pursuant to the Agreement, Hines and Vermillion had agreed to indemnify and hold him harmless against any and all claims, damages or causes of action arising out of the operation of Vermillion, including the cost of defense of any claim and reasonable attorney fees.

Defendant also filed a motion for summary judgment seeking dismissal from the suit on grounds that he was not engaged in a joint venture with Vermillion and was in no way personally liable to the Palmers. He claimed summary judgment was appropriate because he and the Palmers had no express agreement between them, he did not own the land on which the house was built and he did not perform any services in connection with the construction of the house or with the design or construction of its foundation. He also claimed that the construction supervisor of the Palmers’ home was an employee of Vermillion and that, prior to the sale of the home to the Palmers, Defendant had exchanged all of his interest in Vermillion for all of Hines’ interest in VPC. He further claimed that, from that point forward, he no longer owned any interest in Vermillion.

| .^Defendant’s motion for summary judgment also alleged that the Agreement expressly provided that he would not share in any losses of Vermillion for the year of the closing of the Agreement and that he would be indemnified by Vermillion and Hines and held harmless from any claims or liabilities. Last, he claimed that the sale of the house to the Palmers closed on March 31, 2008, and that he had no interest in Vermillion at the time of the sale. Based on these facts, Defendant sought dismissal from the Palmers’ suit against him.

The Palmers filed a cross-motion for summary judgment and claimed that, under the Agreement between Defendant, Hines and Vermillion, no genuine issues of material fact remained and that the Agreement provided that Defendant receive consideration for the division of ownership interests and was to “manage the jobs described in Exhibit B.” Further, they claimed that Defendant acted as manager of the project for construction of the home pursuant to the terms of the Agreement and assumed responsibility for the sale of the home. They allege that Defendant participated in negotiations with them on behalf of Vermillion for the purchase of the home and that he received compensation in the form of a commission for the sale, all pursuant to the terms of the Agreement. The Palmers also assert that Defendant responded to their calls concerning warranties covering the home under the NHWA. For these reasons, they sought summary judgment in their favor declaring Defendant and Vermillion to be considered a joint venture for all purposes of this lawsuit and that Defendant be considered a “builder” under the NHWA.

Following a hearing at which both motions for summary judgment | fiwere argued, the trial court granted Defendant’s motion, finding that, under the Agreement, Defendant was not “at risk of loss”; therefore, there was no joint venture. The trial court denied the Palmers’ motion for summary judgment.

The Palmers filed a motion for new trial, claiming to have found new evidence showing that Defendant would have been at risk of loss because he had cosigned a mortgage with Vermillion when the lot upon which their home was built was purchased. However, the trial court denied the motion for new trial.

The Palmers have appealed the judgment granting Defendant’s motion for summary judgment and the judgment denying their cross-motion.

DISCUSSION

The issue presented in this appeal is whether the trial court erred in finding that Defendant was not engaged in a joint venture with Vermillion as a builder of the home under the NHWA, and, thus, whether summary judgment in his favor, and against the Palmers, was proper.

The Palmers argue that the trial court erred in granting Defendant’s motion for summary judgment and in denying theirs because, by the express definition of “builder” in La. R.S. 9:3143(1) of the NHWA, Defendant is personally liable in warranty to them as “owners” by virtue of his being an individual “joint venturer” with Vermillion. The Palmers claim that the remedies available to the homeowner, when it involves the construction of a new home, are in warranty against the “builder,” and those remedies are the exclusive remedies available to the homeowner for defects in a new home under the NHWA.

|7The Palmers rely on the Agreement entered into between Vermillion, Hines and Defendant as proof that the relationship between those parties is one of joint venture with regard to the Palmers’ house. They claim that, pursuant to Defendant’s duties to manage completion of the home and the corresponding benefits described in the Agreement, Defendant established himself as a joint venturer with Vermillion. The Palmers claim that all of Defendant’s assertions of fact claiming the lack of personal and actual participation in the construction of the home are not material facts that would have any bearing on the validity of either motion for summary judgment if Defendant is, in fact, defined as a builder of the home. They claim that they are not attempting to argue that Defendant is personally liable to them for any defects in their home beyond the warranty owed to them by Defendant as a “builder” as defined in the NHWA. They argue that whether Defendant is a joint venturer and a “builder” under the NHWA is the only material fact relevant to the inquiry.

Defendant argues that the trial court correctly rejected the theory that he had a “joint venture” with Vermillion with regard to the Palmers’ home because there was no sharing of losses or agreement to share losses between Vermillion and himself. Rather, he claims the Agreement required Vermillion to bear all expenses and losses. Defendant also argues that the Agreement between Hines and himself specifically negates any theory that they were engaged in a joint venture with respect to the Palmers’ house. He asserts that the Agreement dictates that he be compensated for the work he did managing the job, not as a joint venturer, but, instead, as any other third person who participated in the building of the home and expected to be ^compensated for work performed.

He further argues there is no basis for personal liability for his individual acts since he did not install, participate in or supervise the installing of the foundation, or have anything whatsoever to do with its installation, design or construction.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’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 produce factual support 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. La. C.C.P. art. 966(C)(2); Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Mahoney v. East Carroll Parish Police Jury, 47,494 (La.App.2d Cir.9/26/12), 105 So.3d 144, writ denied, 12-2684 |9(La.2/18/13), 108 So.3d 88.

We review the grant of a motion for summary judgment de novo. Schroeder, supra; Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791. A fact is material it if potentially insures or precludes recovery, affects a litigant’s ultimate success or determines the outcome of the legal dispute. 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. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780.

With respect to issues of law, the court is required to determine whether the trial court applied the law appropriately. Appellate review of questions of law is to discern whether the district court’s interpretative decision is legally correct. See Forum for Equality PAC v. McKeithen, 04-2477 (La.1/19/05), 893 So.2d 715.

La. R.S. 9:3143, defining terms found in the NHWA, states in pertinent part as follows:

For purposes of this Chapter the following words, phrases, and terms shall be defined and construed as follows:
(1) “Builder” means any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or any addition thereto, is a “builder”, whether or not the consumer purchased the underlying real estate with the home.

A joint venture results from the undertaking by two or more persons to combine their efforts, knowledge, property or labor to engage in and carry |inout a single business venture for joint profit. A joint venture is analogous to a partnership and controlled largely by the rules applicable to partnerships. There must be a sharing of the profits and losses with each party having some right of control over the business. The existence or nonexistence of a joint venture is a question of fact and each case must be considered according to its circumstances. Riddle v. Simmons, 589 So.2d 89 (La.App. 2d Cir.1991), unit denied, 592 So.2d 1316 (La.1992).

The principal difference between a partnership and a joint venture is that, while a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint venture is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years. No formal or specific agreement is required. Generally the relationship may be formed by an oral agreement and the existence of a joint venture may be inferred from the conduct of the parties and other circumstances. Riddle, supra.

The existence or nonexistence of a joint venture is a question of fact, although what constitutes a joint venture is a question of law. There are no hard and fast legal rules fixing the requisites for a joint venture; each case must be considered sui generis, and care must be exercised that consideration is given to the usages and practices characteristic of the particular commercial undertaking sought to be labeled a “joint venture.” Cajun Elec. Power Co-op., Inc. v. McNamara, 452 So.2d 212 (La.App. 1st Cir.1984), writ denied, 458 So.2d 123 (La.1984).

For a business arrangement to be considered a joint venture, the Inparties to the venture must share in profits and losses. According to the Agreement between Hines and Defendant, the Palmers’ house was being built by Vermillion “at the sole expense of Vermillion Homebuilders.” Defendant merely agreed to manage the job to completion in return for compensation. The fact that he did not share in the losses, if any, indicates that the parties themselves did not believe the construction of the house was a joint venture.

Further, by the time the Palmers purchased the house from Vermillion, Defendant no longer owned any interest in that business, since he conveyed all of his interest to Hines in the year prior to the sale of the house. Were the facts interpreted as the Palmers suggest and Defendant found to be a “joint venturer” and builder under the NHWA, he would have personal liability as a “joint venture” separate and apart from, and in addition to, that of the true builder of the home, Vermillion. The Agreement did not create another entity for the Palmers to sue as builder of their home, and no extra liability can be attributed to Defendant simply because he is no longer a member of Vermillion. We find that the facts, taken as a whole, do not create a commercial undertaking which could be defined as a joint venture. Therefore, following a de novo review of the record in this case, we conclude that the trial court correctly found that no joint venture existed between Defendant and Vermillion in the construction of the Palm-ers’ home, and Defendant is not a “builder” under the definition found in the NHWA. Accordingly, the Plaintiffs’ assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding that |^no joint venture existed between Defendants, Vermillion Homes, Randolph Hines and John William Kamphuis, is affirmed. Further, the trial court’s judgment granting the motion for summary judgment in favor of Defendant, John William Kamphuis, and against Plaintiffs, Louis A. Palmer and Keri Kay Shirley Palmer, is affirmed. Costs of this appeal are assessed to Plaintiffs, Louis A. Palmer and Keri Kay Shirley Palmer.

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Martonius FRAZIER, Appellant.
    No. 48,805-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Martonius Frazier, Pro Se.
    Douglas L. Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

|, Martonius Frazier was charged by bill of information in August 2012 with armed robbery, a violation of La. R.S. 14:64. He subsequently pled guilty and was sentenced to 20 years at hard labor, without benefit of probation, parole, or suspension of sentence. After Frazier’s motion to reconsider sentence was denied, this appeal ensued. Frazier’s appellate counsel filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base an appeal. For the reasons stated herein, the motion to withdraw is granted, and Frazier’s conviction and sentence are affirmed.

Facts

At Frazier’s guilty plea hearing, he agreed with the State’s recitation of the facts underlying the charges against him, including the following. On July 4, 2012, in Springhill, Louisiana, Frazier went to the home of Rapheal Armstead to purchase marijuana. However, when Frazier believed he was given less marijuana than he was owed, he pulled a shotgun on Arm-stead and argued with him. Frazier ultimately shot Armstead in the hand, grabbed some money from Armstead’s room, and fled. Shortly thereafter, he was arrested and ultimately charged by bill of information with armed robbery, a violation of La. R.S. 14:64.

At his guilty plea, Frazier was advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Once the defendant waived his rights, the trial court accepted his guilty plea and ordered a presentence investigation report (“PSI”). At a subsequent hearing, |aafter reviewing the PSI, the trial court sentenced Frazier to serve 20 years at hard labor for the armed robbery conviction, without the benefit of parole, probation, or suspension of sentence.

Frazier’s appellate counsel filed an An-ders brief, seeking to withdraw, alleging that no nonfrivolous issues existed to raise on appeal. See Anders v. California, supra; State v. Jyles, 1996-2669 (La.12/12/97), 704 So.2d 241, 242; State v. Mouton, 1995-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and facts of the case and the agreement under which Frazier’s guilty plea was entered. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra at 242. Defense counsel further verified mailing copies of the motion to withdraw and his brief to Frazier, in accordance with Anders, Jyles, Mouton, and Benjamin, supra. Additionally, in a letter to the court, the State has expressed agreement that no nonfrivolous issues exist to raise on appeal.

On October 10, 2013, this court issued an order holding the motion to withdraw in abeyance, rescinding the pro se briefing deadline, and notifying Frazier that he could file a brief in this appeal within 30 days of the date of the order and file a request to view the appellate record within 10 days of the date of the order. Frazier was further advised that if no brief was timely filed, the appellate record would be reviewed only for error patent. ^Nonetheless, Frazier failed to file a supplemental brief in his appeal within the allocated time period in which to do so.

Discussion

Appellate counsel’s brief, containing no assignments of error, conforms with the procedures set forth in Anders v. California, supra, and State v. Jyles, supra. The appellate brief reviewed the procedural history of the case and stated that after a thorough review of all the pleadings filed in the trial court, the court proceedings, and all transcripts contained in the record, no nonfrivolous issues could be advanced for appellate review. Appellate counsel particularly pointed out that Frazier was sentenced in accordance with his plea agreement and that under La. C.Cr.P. art. 881.2(A)(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Counsel referenced State v. Dorthey, 623 So.2d 1276 (La.1993), pointing out that the benefit Frazier received from his plea bargain coupled with the great discretion of the sentencing court renders meritless any claim of constitutional exces-siveness. Counsel also verified sending a copy of the appellate brief and the motion to withdraw to Frazier.

Louisiana C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Pee, 47,261 (La.App.2d Cir.09/26/12), 107 So.3d 69. Here, the transcript of the guilty plea hearing clearly reflects that Frazier agreed to a sentencing cap of 40 years. He was advised of his Boykin rights and |4knowingly and voluntarily pled guilty to armed robbery. The appellate counsel has shown that Frazier cannot successfully appeal the sentence imposed and no nonfrivolous errors can be found after a conscientious review of the record. We agree that this matter has no nonfrivolous issues to raise on appeal. Further, we have examined the record for error patent and found none. Thus, for the foregoing reasons, the motion to withdraw by appeal counsel is granted, and Martonius Frazier’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . The sentence was ordered to be served consecutively to a two and a half year sentence in a separate matter.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Patrick Randall DAVIS, Appellant.
    No. 48,777-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Robinson & Williams, L.L.C., by Kyle M. Robinson, Bossier City, Craig L. Williams, New Orleans, for Appellant.
    J. Schuyler Marvin, District Attorney, Andrew C. Jacobs, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE & PITMAN, JJ.
   PITMAN, J.

| ,Defendant Patrick R. Davis was found guilty of issuing worthless checks to Horseshoe Casino (“the Horseshoe”) in the amounts of $100,000 and $150,000 in violation of La. R.S. 14:71. He was sentenced to six years at hard labor with all but one year suspended. Upon his release, Defendant was ordered to serve five years of supervised probation, to pay restitution to the Horseshoe in the amount of $215,000 and to pay a fine of $1,000, in addition to other standard conditions of probation. For the reasons stated herein, we reverse Defendant’s conviction and sentence and order that he be discharged.

FACTS

Defendant is a chiropractor from Dun-canville, Texas, a suburb of Dallas. He is a high-stakes gambler at the casinos in Shreveport/Bossier City, and prefers the Horseshoe. In June 2008, Defendant was gambling at the Horseshoe and signed markers for $100,000 and $150,000 and lost all of the money at the tables. After months of negotiations and Defendant’s failure to pay on the debt, the markers were submitted for payment to Defendant’s financial institutions, but were returned unpaid. Thereafter, the matter was turned over to the Bossier Parish District Attorney’s Office, and a bill of information was filed charging Defendant with issuing worthless checks, a violation of La. R.S. 14:71.

Prior to trial, counsel for Defendant made an oral motion in limine to have the photocopies of printed counter-checks, which were issued by the casino as evidence of the debts, excluded from evidence because the district attorney had failed to present certified copies or properly authenticate the Rcopies as required by La. R.S. 14:71. The trial court agreed and granted the motion as to the actual copies of the counter-checks. In so ruling, however, the trial court expressly stated that the “checks” could be referred to as counter-checks, markers or instruments, and that it would allow testimony from the business records of the Horseshoe regarding the extension of credit to Defendant in the form of markers and the fact that the markers had not been satisfied. Any reference to a “check” or that any instrument was returned marked “insufficient funds” was prohibited.

A jury trial was held and the following facts are gleaned from the testimony:

Karen Haydale, the current credit manager of the Horseshoe, testified regarding the procedure followed by all patrons seeking credit with the casino and defined all the terms necessary for understanding how a casino credit system works. Ms. Haydale testified that, after application for credit and credit approval, patrons can obtain chips up to a certain predetermined limit, for which they sign a “marker” or “counter-check” for the amount of chips given them indicating that indebtedness. Counter-checks are synonymous with markers. They can be paid or redeemed at the casino in a variety of ways, i.e., through payment with chips, cash, personal checks, certified checks or by the counter-check being presented for payment at the banking facility listed on the patron’s credit application. The Horseshoe typically allows 30 days for repayment of the marker by a patron. If the marker is not satisfied by the patron and no other payment extensions or arrangements are made, it is deposited with the banking institution provided |sby the patron during the application process.

Ms. Haydale also testified regarding Defendant’s account with the Horseshoe, which was represented by a 24-page printout of transaction history. As with all patrons to whom credit is extended by the Horseshoe, Defendant had to make an application and supply personal information, such as driver’s license and bank account information, to the casino’s credit department. He was also required to provide checks on his bank accounts at Bank One and Comerica, with their routing numbers, to be linked to the casino credit account. He signed an agreement expressly authorizing the casino to present drafts for payment with those banking institutions in order to satisfy unpaid markers to the casino.

After the credit check was performed and inquiry was made into the levels of funds available in the bank accounts supplied by Defendant, an authorized employee of the Horseshoe credit department approved him for a credit line of $75,000. In April 2006, his credit limit was increased to $150,000 and, in March 2007, it was increased to $250,000 at Defendant’s request. At some point during this time period, Defendant provided the Horseshoe with the information on an account he held with E-Trade and linked his line of credit to that account.

Ms. Haydale was questioned about the amount of money in Defendant’s bank account in 2006 when his credit limit was increased. She explained that, when accounts were increased, usually bank ratings were often “re-run,” but that she could not determine from the document about which she was testifying whether Defendant’s accounts had been “re-run.” Ms. Haydale further explained that a patron’s request for an increase | generally resulted in the casino performing a “rerun” of the patron’s account, especially if the bank balances the casino had at the time did not reflect a balance that would substantiate the amount the patron was requesting, but it was not always required. Ms. Haydale testified that the casino updated the records of the banks every six months.

When asked about Defendant’s increase to $250,000 in March 2007 and the amount Defendant had in the bank on that date, Ms. Haydale stated that she would not be able to answer without access to the Casino Management System. She stated that the decision to increase a patron’s credit limit was based on bank information, play history, outstanding balances and outstanding balances at other casinos.

Brenda Bison, who was the credit manager at the Horseshoe at the time of Defendant’s indebtedness, testified that, on June 13, 2008, Defendant arrived at the Horseshoe with a cashier’s check in the amount of $85,000. After losing that amount, Defendant signed two markers, or counter-checks, in the amounts of $100,000 and $150,000, and subsequently lost the entire $250,000. At Defendant’s request, the Horseshoe extended the repayment period on those markers from the typical 30 days to 45 days and applied a discount to the amount owed, leaving a balance owed of $215,000.

Within the 45-day grace period, Defendant was in contact with employees of the credit department at the Horseshoe and advised them that he was attempting to liquidate assets in order to satisfy the markers. Ms. Bison testified that Defendant explained he was having trouble liquidating assets because of the national financial crisis. She also testified [ .-that, to her knowledge, Defendant was trying to repay the Horseshoe and was in continuous contact regarding satisfaction of the markers. The business records of the Horseshoe were introduced into evidence, which indicated that several requests by Defendant to extend the deposit dates of the markers were granted in order to allow him more time to obtain the funds necessary to satisfy the debt. Defendant offered to convey a piece of commercial property to the casino in an effort to satisfy the markers, but the Horseshoe declined.

On January 6, 2009, the Horseshoe deposited both markers to Defendant’s E-Trade account, but neither was paid. It was at that time that the matter was turned over to the Bossier Parish District Attorney for prosecution. Frank “Buddy” Mondello, an investigator with the Bossier Parish District Attorney’s Office, testified for the state. He stated that, after the counter-checks were submitted to the district attorney’s office, he issued a demand letter to Defendant. As per a decision made by the Horseshoe, Mr. Mondello advised Defendant that he would have 90 days to pay off the markers or an arrest warrant would issue.

Mr. Mondello testified as to the substance of a response letter he received from Defendant. In the correspondence, Defendant acknowledged receipt of the demand letter and stated that he did not contest the debt to the Horseshoe; however, he denied any fraudulent intent in obtaining the markers in question. Defendant further informed Mr. Mondello that he was | (¡attempting to liquidate assets in order to satisfy the markers.

Mr. Mondello further testified that the district attorney’s office received a $5,000 payment from Defendant, from which the district attorney deducted $500 in fees and transferred the balance of $4,500 to the Horseshoe. Mr. Mondello also testified as to the policies and procedures of the district attorney’s office regarding fees charged on worthless check collections.

The defense did not present any witnesses. The jury found Defendant guilty as charged, and he was sentenced by the trial court to six years, with all but one suspended, followed by five years of supervised probation. The trial court ordered restitution and imposed a $1,000 fine, along with other special conditions. Defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal. Both were denied, and this appeal ensued.

DISCUSSION

Defendant has raised three assignments of error on appeal: (1) the sufficiency of the evidence; (2) that the trial court erred in allowing the district attorney and witnesses to reference “checks,” “counter-checks” and “markers” during the testimony; and (3) that his sentence is excessive.

Sufficiency of the Evidence

Defendant argues that the state failed to meet its burden of proof with regard to each element of the offense set forth in La. R.S. 14:71.

When issues are raised on appeal, both as to the sufficiency of the 17evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Under the Jackson v. Virginia standard, we review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of |sevidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of. the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000).

In the case sub judice, in order for Defendant’s conviction to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the essential elements of issuance of worthless checks. La. R.S. 14:71, issuing worthless checks, provides in pertinent part:

A. (l)(a) Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.
|fl(b) This Section shall apply to a check, draft, or order tendered for satisfaction, in whole or in part, of payments due on installment contracts, open accounts, or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay.
⅜ ⅜ ⅜
(2) The offender’s failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.
C. Whoever commits the crime of issuing worthless checks, when the amount of the check or checks is one thousand five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
G. In addition to any other fine or penalty imposed under this Section, the court shall order as part of the sentence restitution in the amount of the check or checks, plus a fifteen dollar per check service charge payable to the person or entity that initially honored the worthless check or checks, an authorized collection agency, or justice of the peace. In the event the fifteen dollar per check service charge is paid to a person or entity other than one who initially honored the worthless check or checks, the court shall also order as part of the sentence restitution equal to the amount that the bank or other depository charged the person or entity who initially honored the worthless check, plus the actual cost of notifying the offender of nonpayment as required in Paragraph A(2).

Thus, under La. R.S. 14:71, to obtain a conviction for issuing of a worthless check, the state is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, whether the |inexchange is contemporaneous or not; (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which drawn has insufficient funds with the financial institution on which the check is drawn to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud. Subparagraph A(2) creates a statutory re-buttable and permissible presumption of the issuer’s intent to defraud when the offender fails to pay the amount of the worthless check within ten days of the receipt of notification by certified mail of nonpayment of the check, sent to the address shown on the check or the address shown in the records of the bank on which the check was drawn. State v. Mosby, 42,519 (La.App.2d Cir.5/18/07), 956 So.2d 843; State v. Washington, 29,784 (La.App.2d Cir.9/26/97), 700 So.2d 1068. The presumption, however, is not absolute. State v. Bond, 584 So.2d 1212 (La.App. 2d Cir.1991), citing State v. Lindsey, 491 So.2d 371 (La.1986). The presumption does not relieve the state of its burden of proving beyond a reasonable doubt, the “intent” element, which is subject to the presumption, and the “knowledge” element, which is not subject to the presumption. La. R.S. 15:271.

The proper inquiry under La. R.S. 14:71(A) is whether a defendant knew that he had not sufficient credit with the bank, not whether his actual monetary balance was sufficient to cover a check, draft or order for payment issued by him. State v. Bond, supra.

In this case, the two elements that are most clearly lacking in proof are Defendant’s alleged intent to defraud the casino at the time he signed for the |nmarkers and his alleged knowledge that he had not sufficient credit with’ E-Trade to cover the markers.

Regarding the element of intent to defraud, the state offered Mr. Mondello’s testimony concerning the demand letter; however, the letter was not admitted into evidence. Arguably, therefore, the evidence that Defendant was notified by certified letter of the debt is lacking; and, thus, the permissive presumption of intent to defraud may not have been triggered. However, even if the state is favored with the presumption, it failed to satisfy its burden of proving intent generally. State v. Bond, supra. Defendant’s response letter to Mr. Mondello indicated he did not dispute that he owed the debt. In that correspondence with Mr. Mondello, Defendant continued to convey his desire to satisfy the debt and expressly denied any intent to defraud or to evade payment.

Further, as evidenced by the testimony of the state’s witnesses from the Horseshoe, Ms. Haydale and Ms. Bison, Defendant remained in contact with the credit department of the casino, was actively attempting to satisfy the markers by liquidating assets, made a partial payment of $4,500 on the debt and indicated on more than one occasion to employees of the credit department that he was attempting to obtain the necessary funds to satisfy the markers. In addition, Ms. Bison testified that it was her belief that Defendant desired to repay the casino and was attempting to do so. Moreover, there is no evidence in the record to suggest that Defendant had ever failed to repay any markers in the past. Rather, he had enjoyed a positive history of gaming, including the extension of markers by the casino and his regular repayment over many years prior to the onset of his financial 112troubles.

Based on the foregoing, the state failed to prove that Defendant had the intent to defraud the Horseshoe at the time he signed for the markers at issue. The jury’s conclusion to the contrary is not reasonably supported by the evidence.

Next, the state failed to prove beyond a reasonable doubt that Defendant knew he had not sufficient credit with his banking institution (E-Trade) to cover the markers at the time he signed for them on June 13, 2008. The state did not introduce the balances of the bank accounts it had on file for Defendant (including E-Trade) on the date the markers were issued to him, or any evidence of what credit limit E-Trade may have extended to him. Ms. Haydale explained that the casino rated the accounts according to the range of funds in the accounts at the time the credit application was made by the patron. While these figures/balances were updated from time to time, there was no specific information introduced by the state regarding Defendant’s E-Trade account on June 13, 2008, the date on which the markers were signed. Furthermore, there was no evidence introduced as to Defendant’s knowledge, or lack thereof, of what was in those accounts on that date or what amount E-Trade would extend to him in payment of any deposits made against the account. In addition, at Defendant’s request, deposit of the markers to his E-Trade account was delayed more than six months. There simply is no evidence that there were insufficient funds in the E-Trade account on June 13, 2008, or that Defendant had any knowledge of that fact. The record does not contain a reasonable basis upon which to base a contrary conclusion.

| i3In summary, in order to convict, the circumstantial evidence must exclude every reasonable hypothesis of innocence. A rational trier of fact could not draw the conclusion from the circumstances of this record that Defendant had both the intent to defraud the casino and the knowledge that he did not have sufficient credit with the bank for payment of the markers when he signed for them. Jackson v. Virginia, supra. Accordingly, we find that the evidence in this matter is legally insufficient to convict Defendant of issuing worthless checks and that Defendant’s assignment of error regarding sufficiency of evidence has merit. In light of this conclusion, we pre-termit any discussion of Defendant’s remaining assignments of error.

CONCLUSION

For the foregoing reasons, we reverse the conviction and sentence of Defendant, Patrick Randall Davis, and discharge him.

CONVICTION AND SENTENCE REVERSED AND DEFENDANT DISCHARGED.

      . Because of the previous ruling on the motion in limine regarding references to the "worthless checks,” the trial court disallowed the letter into evidence. The letter was proffered by the state, but its exclusion was not challenged on appeal. The trial court allowed Mondello to testify that he issued the demand letter to Defendant at his address in Texas and that he received a reply.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Winford Jay MOORE, Appellant.
    No. 48,769-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    Robert W. Levy, District Attorney, Laurie Whitten James, John Fitzgerald Bel-ton, Jeffrey Levance Robinson, Michael Shane Frederick, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and PITMAN, JJ.
   DREW, J.

| iWinford Jay Moore was tried by jury and convicted of aggravated rape of a child under 13. La. R.S. 14:42(A)(4). He appeals his conviction and life sentence upon the sole ground of ineffective assistance of counsel. We affirm.

I. PRETRIAL CHRONOLOGY OF EVENTS

• On October 8, 2009, the defendant was arrested for aggravated rape.

• On January 21, 2010, he was charged by bill of information with sexual battery of a child under the age of 13. La. R.S. 14:43.1(A) and (C)(2)(16).

• On February 2, 2010, he waived formal arraignment and entered a plea of not guilty, through his court-appointed Indigent Defender Board (“IDB”) attorney.

• In June of 2010, the state filed a rule to allow DNA testing, even though the entire sample would be expended by the testing.

• On September 24, 2010, the defendant filed a pro se motion to quash, arguing that the evidence did not support the crime charged and that the state had failed to timely institute prosecution within 60 days of his arrest.

• In November 2010, attorney Ivan Daigs withdrew; IDB attorney Gina Jones was appointed.

• Four months later, Jones withdrew; attorney Robert Sharp was appointed.

• Two months later, Sharp withdrew; attorney Bruce Hampton was appointed.

• On July 12, 2011, Hampton requested that the DNA evidence be tested by an independent lab, and stated that he was informed by the IDB that there would be funding available to do the testing and the state agreed. Counsel agreed that prescription was interrupted or suspended while the evidence was being tested. The matter was continued.

75 The next month, the defendant filed pro se motions to quash and for a preliminary examination.

• On September 13, 2011, attorney Hampton adopted defendant’s pro [ 9se motion for preliminary examination and requested that it be refixed to another date. The court granted a continuance over the state’s objection and denied defendant’s motion to quash. The defendant rejected a plea offer. The state noted that the charge might be amended to aggravated rape.

• On November 15, 2011, Hampton withdrew; IDB attorney Forrest Moegle was appointed.

• On February 22, 2012, defendant filed a pro se motion to quash, arguing that more than two years had passed from date of institution of prosecution.

• On April 20, 2012, Moegle filed a motion for continuance, claiming that he needed more time to prepare for trial and to seek other sources of funding for additional DNA testing.

• Three days later, the court granted a continuance over the state’s objection;

• The state advised that it would have the DNA testing; defendant objected.

• On September 5, 2012, the state filed an indictment charging the defendant with aggravated rape of a child under 13. La. R.S. 14:42(A)(4).

• On September 11, 2012, the defendant pled not guilty to the charged offense.

• On September 18, 2012, the defendant requested that Moegle be relieved as his lawyer, claiming that Moegle had waived his right to a jury trial.

• Two days later, Moegle moved for a continuance, noting that the state had just provided him with notice of potential exculpatory evidence relative to Dr. Landon Smith’s reports of his examinations of the victim.

• Four days later, the court granted a continuance, over the state’s objection.

• On October 9, 2012, the court held a hearing to address the defendant’s various pro se motions. The court denied defendant’s motion to relieve Moegle, since the lawyer had in fact reserved defendant’s right to a jury trial. As counsel stated that he did not want to adopt the defendant’s other motions, the court did not rule on the motions.

|s* Weeks later, the court dismissed all pro se motions not adopted by counsel.

II. TESTIMONY

DeSandra Burks, mother of BB, testified that:

• in 2009, BB was 11 years old;

• DeSandra and BB lived with Lovie Burks, DeSandra’s aunt;

• Their family had known the defendant for years;

• On October 4, 2009, DeSandra, BB, Angela Williams, and the defendant were visiting a friend, when she asked the defendant to take BB home;

• he left with BB, but did not bring her home until a couple of hours later;

• unlike earlier, the child had a cold drink, candy, gum, and money;

• BB said the defendant put his privates in her and played with her breasts;

• when BB pulled down her clothes, her underwear was wet; and

• she and BB’s father took BB to North Louisiana Medical Center.

Valerie Renee Skipper, an expert in sexual assault examination and a registered nurse, examined BB at the hospital, and testified that:

• she observed that BB had special needs;

• BB’s aunt told her that BB had a learning disability;

• BB was very open and had good eye contact with her;

• when she smiled, BB would smile back at her;

• she saw no physical injuries, but BB complained of pain to her genital area;

• there was a white gel-like substance in BB’s panties; and

14» she put all DNA samples into a personal evidence recovery kit (“PERK”).

Deputy Matt Sims received the PERK from Skipper and took the evidence to the sheriffs office. Later, deputies Stephen Williams and Matt Shively transported all the evidence to the North Louisiana Crime Lab for testing.

Lt. George Webb of the Lincoln Parish Sheriffs Office testified that:

• he met with BB and her family on October 5, 2009;

• because he saw that BB was “mentally challenged,” they asked Dr. Sally Thig-pen of the Pine Hills Advocacy Center to conduct a forensic interview;

• after the interview, Lt. Webb showed BB a photographic lineup of six males, and asked BB to pick the man who had sexually assaulted her;

• BB immediately identified the defendant; and

• he obtained a warrant to search the defendant’s white Cadillac and a warrant to take a sample of the defendant’s DNA.

BB, age 14 at trial, did not testify about the rape, but answered questions about her daily routine at school. She confirmed that she understood the difference between the truth and a lie. The video of BB’s interview with Dr. Thigpen was played for the jury. BB confirmed | severything on the video.

Debra Gale Jenkins, BB’s aunt and current legal guardian, testified that BB attends Ruston Junior High School, where she is in a special needs class but goes into a generalized population for physical education and other activities. Debra stated that BB rides the bus to school, can find her way around the school, does not need assistance at lunch, and has friends at school.

Barry Amanuel, manager of the Stop and Shop Grambling Junction, testified that the defendant is a regular customer. On the day in question, BB came in by herself, bought some candy, and walked back to the defendant’s vehicle.

Adriana Perez, an expert in DNA analysis, testified that:

• the DNA profile obtained from the cutting of the crotch area of BB’s panties was consistent with being a mixture of DNA from at least two individuals;

• the defendant could not be excluded as a donor;

• the DNA profile was 291 trillion times more likely to be a mixture of DNA from BB and the defendant than a mixture of DNA from BB and an unknown, unrelated individual; and

• the defendant could not be excluded as a donor of DNA obtained from the perineal and external genitalia swabs.

The defendant did not testify. After the verdict, the jurors were not polled.

On December 12, 2012, at a sentencing hearing, the trial court noted that the evidence overwhelmingly supported the conviction.

|fiThe defendant said he wanted to make a statement. He presented a note, upon which nine words were written. No grounds were listed in the document. Trial counsel did not adopt defendant’s motions/notes, which were denied.

The court sentenced the defendant to life imprisonment at hard labor.

The defense did not file a motion to reconsider the sentence.

DISCUSSION

Ineffective Assistance of Counsel

The defendant claims ineffective representation because his lawyers failed to:

• promptly press the case to trial;

• file pretrial motions;

• secure independent DNA tests;

• interview a potential exculpatory witness;

• be competent or prepared;

• subpoena witnesses;

• adopt his pro se motions;

• thoroughly cross-examine the state’s witnesses;

• conduct themselves so as not to allow the state to increase the charge 17from sexual battery to aggravated rape, during the time that the sexual battery case should have prescribed for failing to bring it to trial on a timely basis;

• preserve his right to a speedy trial on the original charge; and

• investigate significant discrepancies in the evidence.

The state responds that:

• the record is insufficient for this court to address the defense’s claim of ineffective assistance of counsel, and notes that such claims are more properly raised in an application for post-conviction relief;

• each complaint can be explained as a strategic decision by counsel; and

• delays usually benefit the defense, more so with lay witnesses, and defense counsel may have hoped that the minor victim’s testimony would change or that other witnesses would become unavailable.

Our law on the review of ineffective assistance claims is well settled.

| ¿Failure to pursue pretrial motions

The defendant claims that his attorneys were ineffective in failing to file a motion to preserve or test the state’s evidence. Tellingly, the defendant makes no claim that the scientific testing was in any way compromised.

Failure to interview a potential exculpatory witness

The defendant urges that his lawyers were ineffective in failing to interview and/or subpoena a potential exculpatory witness who told Lt. Webb that he did not see a white Cadillac in the area when the alleged crime occurred. Although the failure to interview known witnesses may constitute ineffective assistance of counsel, there is no evidence in this record to back up that claim. State, v. Butler, 41,985 (La. App.2d Cir.6/20/07), 960 So.2d |91208, writ denied, 2007-1678 (La.5/9/08), 980 So.2d 685. This claim falls stunningly short, considering the DNA evidence at trial.

No independent forensic DNA testing

Defendant argues that his attorneys should have pursued independent forensic DNA testing, even though there is no suggestion that the testing conducted was incomplete or suspect in any way. Mere conclusory statements are insufficient to establish a claim of ineffective assistance of counsel. See State v. Celestine, 2011-1403 (La.App.3d Cir.5/30/12), 91 So.3d 573. The defense has failed to show that his lawyers were deficient in failing to pursue independent DNA testing, or that such testing would have changed the outcome of this case.

Waiving delays, not seekiny a speedy trial, not seeking to quash the charge because of trial delays, resulting in a life sentence for a more serious crime

On February 22, 2012, the defendant filed a pro se motion to quash, arguing that more than two years had passed from the date of institution of prosecution. Our law on the review of these issues is well settled.

In this case, prosecution was instituted by bill of information on January 21, 2010. Thus, the state had until January 21, 2012, to commence trial. La. C. Cr. P. art. 578(2). The defendant filed his own pro se motions to quash on September 24, 2010, and August 8, 2011, suspending the time | inlimit for prosecution for almost one year, until September 13, 2011, when the motions were denied. Defense counsel also requested several continuances, which were granted, and there is no indication that such continuances were improper.

The filing and pursuit of pretrial motions are part of an attorney’s trial strategy, and counsel is not required to engage in efforts of futility. State v. Shed, supra. The trial began December 3, 2012, well within the acceptable delays.

In addition, the district attorney has complete authority to amend bills of information and indictments, both as to form and substance, before trial. La. C. Cr. P. art. 487; State v. Neslo, 433 So.2d 73 (La.1983).

Failure to rule on motions and failure of counsel to adopt his motions

No objection to the trial court’s dismissal of the defendant’s frivolous pro se motions was made. Accordingly, the issues may not be complained of on appeal. This issue is more properly raised in an application for post-conviction relief.

In State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, the Louisiana Supreme Court held that trial courts must accept and consider filings from represented defendants in a pre-verdict context unless doing so will lead to confusion at trial. Here, however, the defendant fails to specify which motions, other than the motion to quash, should have been adopted. He shows no prejudice.

Failure to pursue a preliminary examination

We note that when the motion for a preliminary examination wasJjjfiled, there was no indictment, though an indictment was later rendered. There is no right to a preliminary hearing after the presentation of an indictment. The district attorney has full authority to amend bills of information and indictments, both as to form and substance, at any time before trial. La. C. Cr. P. art. 487; Neslo, supra.

Inexperience and poor performance of his fifth lawyer

The defendant objects to his lawyer’s comments during voir dire:

Good afternoon. And I am Forrest Moegle and I’ve been in court appointed to represent Mr. Moore. And I’ll be honest with you, this is the first time that I have picked a jury and sat in the first chair. So, if I seem to be fumbling around because I’m nervous, that’s because I am nervous.

There is no showing that Moegle’s statement to the potential jurors during voir dire had any effect on the proceedings. Mere conclusory statements are insufficient to establish a claim of ineffective assistance of counsel.

Failure to pursue discrepancies, and related poor cross-examination

Defendant argues that his attorney was ineffective in failing to ask certain questions on cross-examination of Deputy Sims, BB, DeSandra, and Lovie Burks.

Cross-examination is a strategy decision. This court affords great deference to trial counsel’s tactical decisions and trial strategy. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ de nied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Mitchell, 44,008 (La.App.2d Cir.2/25/09), 4 So.3d 320, writ denied, 2009-0718 (La.2/12/10), 27 So.3d 841. Defendant has failed to reveal how the trial outcome would have differed had certain questions been asked.

The photo lineup

Defendant finds his lawyer ineffective in failing to file a motion to suppress the photographic lineup, though he alleges no facts justifying suppression. He does not assert that the lineup was suggestive or that there was a substantial likelihood of misidentification. See State v. Martin, 595 So.2d 592 (La.1992); State v. West, 561 So.2d 808 (La.App. 2d Cir. 1990), writ denied, 566 So.2d 983 (La. 1990). He does not show a reasonable probability that but for counsel’s failure to file a motion to suppress, the result of the trial would have been different.

Speculations of a law officer about the lack of forensic evidence in the car

The defense claims that the defendant’s attorney was ineffective in failing to object to Lt. Webb’s speculation as to why no evidence was found in the defendant’s car and in failing to ask him what testing procedures were used during cross-examination. On direct examination, Lt. Webb was asked whether he found anything of evidentiary value through his search of defendant’s Cadillac, and responded as follows:

I did not find anything. It had been several days. If memory serves me eor-rect, I don’t believe I executed that search warrant till the 12th day of October, if I remember right, so several days had passed since the crime had occurred. You know, he could have cleaned seats, whatever. I just didn’t locate anything.

The decision to object to this testimony and the decision of what 11squestions to ask on cross-examination fall within the ambit of trial strategy. This court affords great deference to trial counsel’s tactical decisions and trial strategy. State v. Grant, supra. Again, there is no showing as to how the trial’s outcome would have been any different.

Leading questions

Defendant complains of his lawyer allowing leading questions, but does not show that but for counsel’s failure to object to leading questions, the outcome of the trial would have been different.

Conclusory statements at trial as to the “rape victim” and the “rape kit

In State v. Langendorfer, 389 So.2d 1271 (La.1980), the Supreme Court held that use of the phrase “rape kit” at the defendant’s trial was not prejudicial.

Asking a “why” question, allowing the officer to give a hearsay answer

The defendant criticizes his lawyers for eliciting damaging hearsay testimony from Lt. Webb. Counsel’s decision to cross-examine Lt. Webb about how he developed suspects in his investigation falls within the ambit of trial strategy. See State v. Skipper, 2011-1346 (La. App.4th Cir.10/10/12), 101 So.3d 537. This court affords great deference to trial counsel’s tactical decisions and trial strategy. State v. Grant, supra. Even if counsel’s questioning of Lt. Webb was deficient, there is no showing that the trial outcome would have differed.

Eliciting empathy for the victim, particularly by lay witnesses

Defendant urges that his lawyer was ineffective by failing to object to testimony regarding BB’s mental capabilities. The decision whether to object to such testimony constitutes trial strategy. This Court affords great deference to trial counsel’s tactical decisions and trial strategy. State v. Grant, supra. Defendant does not show how this alleged failure would have changed the verdict.

No motion for a unanimous verdict and no polling of the jury

No Louisiana law requires a unanimous verdict in a life sentence case. Polling of a jury is not required. We see no prejudice here.

La. C. Cr. P. art. 782 provides that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must concur to render a verdict. La. C. Cr. P. art. 812 provides, in pertinent part, that, “The court shall order the clerk to poll the jury if requested by the state or the defendant. It shall be within the discretion of the court whether such poll shall be conducted orally or in writing[.]”

| ^Failure of counsel and the comt to consider his pro se motion for new trial and motion for post verdict judgment of acquittal

Defendant urges prejudice in that his lawyer would not adopt these two pro se “motions.” In actuality, there were no allegations.

Failure to mitigate sentence

Defendant shows nothing supportive of a downward deviation from the mandatory life sentence. To rebut the presumption that a mandatory sentence is constitutional, a defendant must clearly and convincingly show that he is exceptional, namely that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Parker, 47,952 (La.App.2d Cir.4/10/13), 113 So.3d 471, writ denied, 2013-1051 (La.11/15/13), 125 So.3d 1101.

This sentence for this heinous crime is not constitutionally excessive and certainly does not shock the conscience.

A. It never did make me want to look in another direction from all the other information that I was taking in about this case. There was no reason to go to another suspect.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Skipper observed no tears, abrasions, redness or swelling of BB’s genital or anal areas.

      . Dr. Thigpen testified that she observed that BB was "a little slow.”

      . The white Cadillac was impounded on October 8, 2009, the day of the defendant’s arrest. Lt. Webb did not find anything of evidentiary value in the Cadillac.

      . In the video, BB stated that:
      • the defendant took her to the Junction Store in Grambling and gave her money;
      • she bought gum, red pop, and Starburst candy;
      • he then made her get in the back seat of his Cadillac and take off her shorts and panties;
      • he put his "thing” or "dick” in her "front part”;
      • he pulled her shirt up and licked her “knots” and her “front part”;
      • he put his hand in her "front part”, and told her they were going to make love;
      • he asked her to marry him, but she told him that she was not going to marry him;
      • she could not stop him, and it hurt;
      • when he put his "thing” in her, pee came out of his "thing”;
      • he told her to shut up because it was a secret and brought her home;
      • while the defendant was outside, she told her mom, dad and aunt what happened; and
      • she did not want to say anything around the defendant.

      . "Motion for New Trial” and "Motion in Arrest of Judgment.”

      . La. R.S. 14:42(D) provides that a person convicted of aggravated rape of a child under 13 shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Here, the trial court failed to order that the defendant’s life sentence be served without the benefit of parole, probation or suspension of sentence. The sentence will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Braziel, 42,668 (La.App.2d Cir. 10/24/07), 968 So.2d 853; State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

      .It would seem counterproductive, before a jury, for counsel to raise numerous objections, cross-examine law officers about minor issues, or grill a young mentally challenged rape victim whose Dora the Explorer panties contained the defendant’s DNA.

      . Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Eiskina, 42,492 (La.App.2d Cir.9/19/07), 965 So.2d 1010; State v. Lane, 40,816 (La.App.2d Cir.4/12/06), 927 So.2d 659, writs denied, 2006-1453 (La.12/15/06), 944 So.2d 1283, and 2006-2502 (La.5/4/07), 956 So.2d 599. However, when the record is sufficient, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Eiskina, supra; State v. Lane, supra.

      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. See State v. Wry, 591 So.2d 774 (La.App.2d Cir.12/4/91). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
      To establish that his counsel was ineffective, a defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland v. Washington, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The fact that a particular strategy is unsuccessful does not establish ineffective assistance. State v. Felde, 422 So.2d 370 (La.1982).
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. See Strickland v. Washington, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. See Strickland v. Washington, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland v. Washington, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.
      The filing and pursuit of pretrial motions are squarely within the ambit of the attorney’s trial strategy, and counsel is not required to engage in efforts of futility. State v. Shed, 36,321 (La.App.2d Cir.9/18/02), 828 So.2d 124, writ denied, 2002-3123 (La.12/19/03), 861 So.2d 561; State v. Hollins, 99-278 (La.App.5th Cir.8/31/99), 742 So.2d 671, writ denied, 1999-2853 (La. 1/5/01), 778 So.2d 587.
      In State v. Allen, 2003-2418 (La.6/29/05), 913 So.2d 788, cert, denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787, the Louisiana Supreme Court stated that “the failure to object to a valid error may be the proper subject of a post conviction claim of ineffective assistance of counsel.” Conversely, the failure to object to invalid errors may not be the proper subject of a claim of ineffective assistance of counsel. State v. Grant, supra, State v. Bradford, 2002-1452 (La.App. 1st Cir.4/23/03), 846 So.2d 880, writ denied, 2003-1410 (La. 11/26/03), 860 So.2d 1133.
      Counsel is ineffective when he fails to interview known witnesses. State v. Butler, 41,985 (La.App.2d Cir.6/20/07), 960 So.2d 1208, writ denied, 2007-1678 (La.5/9/08), 980 So.2d 685. However, the election to call or not to call a particular witness is a matter of trial strategy and is not, per se, evidence of ineffective assistance of counsel. Id. Moreover, great deference must be given to counsel's trial strategies and tactics. State v. Pratt, 32-302 (La.App.2d Cir.9/22/99), 748 So.2d 25.

      . Under La. C. Cr. P. art. 578, the state has two years from the institution of the prosecution to bring the defendant to trial on a non-capital felony offense. La. C. Cr. P. art. 580 provides that when a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by La. C. Cr. P. art. 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence trial.
      A preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 2002-0792 (La.2/14/03), 838 So.2d 778; State v. Wright, 45,980 (La.App.2d Cir.1/26/11), 57 So.3d 465, writ denied, 2011-0421 (La.9/2/11), 68 So.3d 520. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particular. Id.

      . Defendant cannot have it both ways. If he or his lawyers file motions, the time frame will be extended until disposition. If his lawyers don’t file motions, his rights may be prejudiced.

      . In felony cases where an indictment has not been issued, a defendant has both a constitutional and a statutory right to a preliminary examination. La. Const. Art. I, § 14; La. C. Cr. P. art. 292. After the defendant has been indicted by a grand jury, the court may rescind its order for a preliminary examination. La. C. Cr. P. art. 292. The primary function of the preliminary examination is to insure that probable cause exists to hold the accused in custody or under bond obligation. State v. Holmes, 388 So.2d 722 (La.1980). Once a valid indictment is returned by a grand jury, the existence of probable cause is conclusively presumed and the preliminary examination is limited to the perpetuation of testimony and the fixing of bail. Id.; La. C. Cr. P. art. 296.

      . On cross-examination, defense counsel asked Lt. Webb why he did not try to develop other suspects in his investigation:
      Q. And once your case began to develop, your initial suspect, and your only suspect, was Mr. Moore. Correct?
      A. That’s correct.
      Q. Did you even try to develop any other suspects?
      A. I did not because he was named from the start of the investigation.
      Q. And why didn’t you try to develop any other suspects?

      A. There was no need at that time since he was named the suspect. B.B. knew the gentleman. He was a friend of the family. She was absolutely positive who—that’s who was with him. [Mr. Amanuel] identified Moore.
      Q. Based on the fact that you had enough experience with her to know that she was mentally challenged, wouldn't that give you pause to maybe want to develop one or two more suspects other than Mr. Moore?

      . The death penalty for aggravated rape has been declared unconstitutional. Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . Because the death penalty is no longer a possibility for aggravated rape, the defendant was not entitled to a unanimous verdict. His lawyer was therefore not ineffective in failing to request a unanimous verdict. Further, the jury was properly instructed that 10 of them must agree on the verdict. La. C. Cr. P. art. 812 allows, but does not require, counsel to request that a jury be polled. As there is no indication in the record that the jury’s verdict was not proper, defendant has failed to show that his attorney was ineffective in failing to have the jury polled.

      .The record here does not provide enough information for us to properly rule on most of defendant’s allegations. If issues actually exist, they can be more properly reviewed in an application for post-conviction relief, on a full record.


author: PETERS, J.

text:
    Laureen OLSON v. LOUISIANA MEDICAL MUTUAL INSURANCE CO., et al.
    No. 13-1182.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Rehearing Denied April 23, 2014.
    J. Lomax Jordan, Jr., Victor R.A. Ashy, Lafayette, LA, for Plaintiff/Appellant, Laureen Olson.
    Michael W. Adley, Judice and Adley, APLC, Lafayette, LA, for Defendants/Ap-pellees, Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., APMC.
    James D. “Buddy” Caldwell, Attorney General, J. Elliot Baker, Irving H. Koch, Special Assistant Attorney General, Cov-ington, LA, for Appellee, State of Louisiana.
    Thomas S. Schneidau, Milling, Benson, Woodward L.L.P., Covington, LA, for Defendant/Appellee, Louisiana Medical Mutual Insurance Company.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|i The plaintiff, Laureen Olson, appeals from a judgment of the trial court granting an exception of lis pendens in favor of the defendants, Dr. Paul M. Toce, Jr.; the doctor’s medical corporation, Dr. Paul M. Toce, Jr., A Professional Medical Corporation; and their liability insurer, Louisiana Medical Mutual Insurance Company (Louisiana Medical). For the following reasons, we reverse the trial court judgment, render judgment rejecting the exception, and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The April 9, 2013 petition filed by Ms. Olson against the three defendants asserts various causes of action arising from Dr. Toce’s long-time treatment of Ms. Olson. In fact, some of the allegations form the basis for a January 2013 medical review panel opinion which found that Dr. Toce breached the applicable standard of care in numerous instances during his treatment of Ms. Olson. In addition to these medical malpractice claims, Ms. Olson asserted negligence claims against Dr. Toce’s medical corporation based on the corporation’s failure to properly train and supervise its employees, including the doctor himself; respondeat superior liability of the corporation for the actions of its employees; and intentional torts based on 12Pr. Toce’s personal relationship with her, including sexual battery. Ms. Olson sought to recover both general and special damages from the three defendants.

The three defendants responded to Ms. Olson’s petition by filing a number of exceptions, including the peremptory exception of lis pendens. The basis for the defendants’ lis pendens exception was the existence of an earlier suit filed by Ms. Olson against the same defendants, bearing a different docket number and pending in another division of the Fifteenth Judicial District Court.

After a May 28, 2013 hearing on the exception, the trial court initially informed the litigants that the two suits would be consolidated. However, when presented by the defendants with a judgment to that effect, the trial court struck through the judgment and wrote “Denied. New Judgment to be presented.” The trial court signed the judgment as modified on June 24, 2013.

The next day, Ms. Olson filed a written objection to the modified judgment, and in doing so, referred to a telephone conference between counsel for both sides of the litigation and the trial court, which she claims occurred on the same day as the trial court’s action in executing the modified judgment. The pleading asserts that the trial court instigated the telephone conference and informed both sides in the litigation that the trial judge of the other division did not want the matters consolidated, and, as a consequence, the trial court was rescinding its order of consolidation, sustaining the exception of lis pen-dens, and dismissing the April 9, 2013 suit. According to the pleading, Ms. Olson’s counsel objected to the lack of notice of the telephone conference, requested that a court reporter be summoned to |smake a record of the proceedings, and objected to the grant of the exception. The trial court denied both objections and the request that the conference be recorded.

On July 18, 2013, the trial court executed a written judgment granting the exception of lis pendens and dismissing Ms. Olson’s claims against the defendants. Following a request by Ms. Olson, the trial court issued written reasons on July 26, 2013. On August 2, 2013, Ms. Olson filed notice of her intent to seek a writ of review and/or a supervisory writ to seek review of the trial court judgment by this court. On September 23, 2013, we denied the writ, finding that the trial court’s judgment was appealable and that Ms. Olson had an adequate remedy through appeal. See Olson v. La. Med. Mut. Ins. Co., 13-985 (La.App. 3 Cir. 9/23/13) (unpublished writ). Thereafter, Ms. Olson perfected this appeal, asserting in her one assignment of error that the trial court erred in sustaining the exception of lis pendens and in dismissing her suit.

OPINION

With regard to the exception of lis pen-dens, La.Code Civ.P. art. 531 provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Additionally, La.Code Civ.P. art. 930 states, “On the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon,” The evidentiary burden associated with such an | ¿exception was explained in Lexington Insurance Co. v. Tasch, Inc., 12-339, pp. 8-9 (La.App. 5 Cir. 11/27/12), 105 So.3d 950, 955, wherein that court stated:

When a party raises an exception or motion that must be proven, it is that party’s burden to present evidence establishing the claims made therein. See La. C.C.P. arts. 930, 931, 963. The exceptions to that rule are the peremptory exception of no cause of action and the motion for summary judgment.

An exception of no cause of action must be tried on the face of the petition alone. La. C.C.P. art. 931; Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114,118.

A motion for summary judgment is decided on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” La. C.C.P. art. 966(B). Summary judgment may be granted only if the documents in the record show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Id.

Other defenses, however, whether raised by exception or motion or in other pleadings, must be proven by evidence introduced at a hearing, where the trial court performs its function of weighing evidence, making credibility determinations, and making factual findings. Scheuermann v. Cadillac of Metairie, Inc., 11-1149, pp. 5-7 (La.App. 5 Cir. 5/31/12), 97 So.3d 423, 427.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.

Without addressing the merits of Ms. Olson’s appeal, we note that the defendants introduced no evidence at the May 28, 2013 hearing on their exceptions. While the twenty-one page petition filed by Ms. Olson does refer to the previously filed suit, it references it as having been filed based on claims not covered by the | ^Louisiana Medical Malpractice Act. Thus, the grounds for the defendants’ lis pendens exception does not appear on the face of the petition. La.Code Civ.P. art. 930. Because the grounds for the objection are not obvious from a review of Ms. Olson’s petition, the defendants bore the burden of proving, through the submission of testamentary or documentary evidence, why the exception should be granted. Based on a lack of such evidence, we are left with nothing on which to base a finding as to the correctness of the trial court’s judgment. Accordingly, the trial court judgment granting the exception of lis pen-dens and dismissing Ms. Olson’s claims is reversed, and we render judgment denying the exception of lis pendens. The matter is remanded to the trial court for further proceedings.

DISPOSITION

We reverse the trial court judgment granting the declinatory exception of lis pendens and dismissing the claims of Lau-reen Olson against Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., A Professional Medical Corporation, and Louisiana Medical Mutual Insurance Company; render judgment denying the exception; and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to the defendants, Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., A Professional Medical Corporation, and Louisiana Medical Mutual Insurance Company.

REVERSED; RENDERED; AND REMANDED.

      . At a point later in the litigation, the State of Louisiana filed an intervention based on a claim by Ms. Olson in her pleadings that the Louisiana Medical Malpractice Act is unconstitutional, but that claim is not before us, and the State of Louisiana is not a party at interest in this appeal.

      . The petition was entitled, "Petition for Damages Resulting from Medical Malpractice and Other Acts of Negligence Not Covered by the Louisiana Medical Malpractice Act, and From Intentional Acts or Other Acts[.]”

      . The petition alleges that Ms. Olson suffers from bipolar disorder, depression, anxiety, and other illnesses and that she has issues of abandonment, severe self-esteem problems, and has experienced suicidal tendencies.

      .The proposed judgment stated that the exception of lis pendens would be granted, but only to the extent of transferring the litigation to be consolidated with other pending suit, and would be denied in all other respects. The judgment further provided that the other exceptions filed were deferred to the other division of the court for consideration.

      . Ms. Olson references a second suit in her petition, which she states was filed by Dr. Toce for the purpose of conducting discovery and extending the deadline for completion of the medical review panel deliberations.